Juvenile Clemency Betrayed

Colorado's KCFR program, Colorado Matters interviewed people (the link is an audio segment) and broadcast it piece that KCFR describes as follows:

As Colorado's much-touted Juvenile Clemency Board approaches its second anniversary, critics say it has fallen far short of expectations. Ryan Warner speaks with Mary Ellen Johnson of the Pendulum Foundation, which advocates for juvenile offenders; then board chairwoman Jeanne Smith, who is also head of the Division of Criminal Justice.

Jeanne Smith's interview made clear that the Juvenile Clemency Board will not live up to the expectations that went into its establishment. In her view, clemency is basically a way of offering people "extra credit" for extraordinary post-conviction conduct and compassionate release to the ill, but has almost no role in addressing concerns that prosecutors abused their discretion, or that sentences within the scope of law at the time that they were imposed could be nonetheless unjust as applied.

Mary Ellen Johnson offered up the example of someone who was sentenced to life without parole for a fatal hit and run that happened while the driver was a juvenile. The Juvenile Clemency Board found these circumstances to be insufficient and inappropriate for a grant of clemency and has rejected this application. The Juvenile Clemency Board has also categorically ruled out consideration of the fact that sentences imposes on particular juveniles could not be imposed prospectively. Not one juvenile has been recommended for clemency by the Board.

I've seen several similar cases play out, including one involving a juvenile where I represented the family of the two victims in a wrongful death case. The juvenile pleaded guilty to careless driving causing death, a first degreee misdemeanor punishable by up to two years in prison. Vehicular homicide, which punishes more culpable vehicular killings, imposes punishment for a term of years, but still typically, for a single digit term of years.

Some background here is relevant. The Juvenile Clemency Board was created by Governor Bill Ritter (a Democrat) in the wake of the debate of a legislative decision to abolish juvenile life without parole. The District Attorney's association, of which Governor Ritter was once a member, argued strenuously that the legislature should not modify already imposed sentences retroactively, because that was the prerogative of the Governor who has clemency and pardon powers.

The Governor took the side of the District Attorney's association but won over legislators who had sought retroactive application of the new maximum sentence for juveniles. The Governor won over legislators on the brink, however, by announcing that he would carefully examine the justice of existing sentences through a Juvenile Clemency Board created by executive order to review these cases.

More than 40 juveniles in Colorado are serving life without parole sentences, and more are serving very long sentences as a result of being charged as adults by prosecutors in decisions not subject to judicial review. Most of those cases were decided before the U.S. Supreme Court had decided that crimes committed by juveniles were not eligible for the death penalty. Some might not have plea bargained if the death penalty had not been an option. Others might not have been convicted of the same offenses if the juries trying their cases had not been required to be "death qualified" (i.e. screened so that jurors opposed to the death penalty could not serve, effectively making jury panels more conservative on criminal justice issues).

The Governor's implied promise had been that in the sort of cases where a judge would appropriately have denied a district attorney permission to charge a child as an adult, and the juvenile was less culpable than stereotypical life without parole defendants, that the Governor would reduce their harsh sentences, after reviewing the cases in detail through the Juvenile Clemency Board.

The exact line wasn't drawn and was left to the Governor. But, the expectation was that, in general, the Governor would show mercy in cases where subsequent prison conduct hadn't shown the defendants to be problem inmates, and in general, where defendants were younger when the crime was committed, where defendants were not already career criminals at the time they were convicted, and where they had lower culpability because of the nature of the underlying offense (e.g., as an accomplice in a felony-murder case without an intent to kill, or in a hit and run case that was arguably an accident). There was an expectation that the Juvenille Clemency Board would take special notice of the reduced culpability and greater capacity for rehabilitation of younger offenders. There was also an expectation was that the Governor would follow the lead of the legislature to shorten sentences to some middle ground between life without parole or near life sentences for long numbers of years, and the kind of sentence that could have been secured in the juvenile justice system.

But, the people appointed to the Board by the Governor have taken a crabbed view of their mandate. They have taken a separation of powers view precisely the opposite of the view expressed by the District Attorneys making their case to the legislature; that dealing with retroactive change to criminal sentences that are now unavailable is the legislature's job rather than the Governor's job. They have denied that district attorney's could abuse their discretion or that the legislature could be wrong but leave the remedy of that wrong intentionally to the Governor. They have abdicated any ability to have an independent sense of what is just in a particular case.

Jeanne Smith, in particular, when interviewed, took a view of the clemency process more appropriate for a parole board than a clemency board, focusing solely on post-conviction conduct, and was tone deaf to the history by which the board she chairs came into being.

Whether intentionally, or by poor judgment, Governor Ritter has betrayed the promises he made when the legislature took action on life without parole sentencing for juveniles, in the implementation of the Juvenile Clemency Board, by appointing the wrong kind of people to the Board.

Governors and Presidents, generally, have used the pardon power and clemency power increasingly sparingly over the last few decades. George W. Bush, both as Governor of Texas, and as President, set new records regarding the infrequency with which he used the pardon power. President Obama has not yet used his pardon power once, after more than six months in office.

Governor Ritter still has room to redeem himself. The Juvenile Clemency Board is advisory only. He can choose to ignore its recommendations and be more generous. He can change his mandate to the Board to get it one the right track. He can keep the faith with legislators of his own party who trusted him, and show that he has some common sense, and that he has an independent sense of justice which the criminal justice system imperfectly tries to replicate after his many years of experience in the trenches.

But, at this point, the future looks bleak. Governor Ritter has not been concerned about harmony with the legislative branch in the past, has not sought to honor his promises in both letter and spirit in the policy making process, and hasn't shown much moral judgment himself. So, I'm not optimistic about the prospects of juveniles serving sentences that are unreasonably long, given their crimes and their personal culpability in those cases.

News about the Colorado Juvenile Clemency Board is collected here at the Pardon Power blog.