Since those juvenile life without parole sentences were handed down, Colorado's General Assembly has revised the law that made those sentences possible in 2006, allowing parole consideration for new offenders who commit the same crimes after forty years. The General Assembly refrained from making the law retroactive, in part, out of the non-binding separation of powers consideration urged strongly by District Attorneys that correcting sentences already handed down is the perogative of the Governor who has the pardon power allowing him to do so.
Also, since those sentences were handed down the U.S. Supreme Court has ruled that people who commit crimes while under the age of eighteen are not eligible for the death penalty under the 8th Amendment, and in May of this year, the U.S. Supreme Court ruled in the case of Graham v. Florida that "It is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder." The case in question involved a Florida sentence to life in prison without parole in a burglary aggravated by rape. Florida used life parole sentences for serious juvenile crimes other than murder frequently, something done in no other state in the Union to that extent.
Now Is The Time
Governor Ritter has a little more than two weeks left in office. But, the Colorado Juvenile Clemency Board has had more three years and three months since it was created to consider the issue. A year and a half has passed since I spoke with a representative of the Governor's office about the issue in the wake of news reporting about its deliberations. Yet, nothing has happened.
The Governor has issued a handful of pardons in his term, but none of consequence, and none in these high profile juvenile cases for which he convened a special panel to advise him.
Late December (typically in connection with Christmas or New Year's Day) is one of the traditional times for a Governor to issue pardons (Thanksgiving, the other traditional time, has come and gone).
Governors and Presidents tend to be particularly generous in granting pardons particularly when they are leaving office for good, as there are no political consequences for doing so and they are free to act on their consciences in a non-strategic way. There are no indications that Governor Ritter intends to seek higher office in the future, so this month is the end of the political line for him. Granting pardons also clears the deck of worthy cases deserving pardons so that subsequent holders of the office (in this case, Mayor Hickenlooper) don't have to take political heat for doing so.
Governer Ritter's Lens On Pardons
Individuals who look at the pardon decisions that Governor Ritter is faced with making at the close of his term usually point to several factors in his personal life before becoming Governor that have mixed implications.
On one hand, Governor Ritter is Roman Catholic, and the Catholic church, despite its reputation for conservatism on reproductive health issues, has also been a staunch and consistent advocate for mercy for those in prison facing the death penalty, to which the Roman Catholic Church is doctrinally opposed, and for those for whom reform is a possibility. (Note that opposition to the death penalty is a relatively recent development in the history of the Catholic church. The Pope presided over executions of condemned criminals in Vatican City as sovereign leader of the Holy See as recently as 1870, and the death penalty was legal but not used for the crime of assassinating the Pope in Vatican City until 1969.)
Governer Ritter is also a Democrat, and while he is probably more conservative than the median legislative Democrat in Congress, particularly on criminal justice and union issues, his political party has been at the forefront of the movement to turn away from draconian sentences in the criminal justice system, particularly for non-violent offenses and juvenile offenders. Governor Ritter has, with some reservations, assented to and signed many bills spearheaded by his Democratic colleagues in the General Assembly during his four year tenure as Governor that have implemented that vision in Colorado (and greatly reduced the corrections budget in the state as a result).
But, on the other hand, Governor Ritter is the former District Attorney for Denver, a position always associated with tough on crime attitudes, and ran for Governor as a death penalty supporter. In his post in Denver, Governor Ritter was a far cry from the controversial District Attorney Carol Chambers whose hard line approach to criminal prosecutions in Arapahoe County has made headlines and fostered criticism, but he was no softie either. Also, in his capacity as an advocate and person providing policy input for the state's district attorneys' in legislative battles in the state, he has always been adamant about taking the position that the Colorado General Assembly should not retroactively reduce sentences already imposed when it reduces those sentences prospectively. Sometimes this has been posed as an attitude about the separation of powers between a Governor's pardon power and the legislature's law making power. But, it also probably reflects a personal attitude that generally sentences that are legal when imposed should have a high level of finality.
The question in the next couple of weeks will be whether mercy or the hard line attitude of a former prosecutor will prevail in Governer Ritter's personal evaluation of the clemency and pardon requests he considers.
Who Are Colorado's Juvie Lifers?
To recap a little of what we know about those forty-six Colorado inmates:
• 1 of the 46 is a female.
• 57 percent committed their crimes at age 17.
• 22 percent were 16 when they committed their crimes.
• 17 percent were 15 when they committed their crimes.
• 4 percent (two of the juveniles) were 14 years old.
• 26 percent of those serving life sentences are black.
• 29 percent are white.
• Two-thirds of the convictions were for murder, and one-third were for felony murder, in which the juvenile did not personally kill anyone but played a role in a robbery or other dangerous felony in which an accomplice killed someone.
Considering The Crime
While Graham v. Florida does not, by its terms, extend to felony-murder cases (for which the U.S. Supreme Court has permitted the death penalty to be imposed upon adults who are not triggermen and do not solicit murders, despite categorically prohibiting the death penalty for non-murder crimes other than "crimes against the state" such as treason and espionage), the reasoning in that case together with the Colorado General Assembly's stance on the matter, certainly makes a strong moral case for commuting the sentences of the one-third of juveniles in Colorado serving life without parole sentences in felony-murder cases where they did not personally murder someone.
Simply put, someone who happens to be actively engaged in committing a serious crime that he does not anticipate will result in a death and has no personal role in carrying out a murder or ordering one, is not as culpable as someone who actually murders someone or orders someone to murder someone. Certainly, these individuals are guilty of the serious crime that they did intentionally involve themselves in, and certainly they exercised bad judgment in their choice of criminal accomplices. But, the statutes overreach when they equate they find that someone who set out to participate in a burglary where someone doesn't end up getting killed is so much less culpable than someone who participates in a burglary not expecting that someone would get killed and an intemperate accomplice actually does kill someone. A more serious sentence may be appropriate because a more serious outcome resulted from the collective course of action. But, it doesn't make sense to incarcerate a juvenile for life without possibility of parole when that juvenile's level of personal culpability isn't much different from that of juveniles who commit similar crimes where no one is killed who often aren't even eligible to be tried as adults under current law.
The natural thing for Governor Ritter to do would be to commute the sentences of those offenders to the same sentences that they could have received under existing Colorado, i.e. life with parole available after forty years or to the still long sentence (e.g. twenty-four years) that would have been available had they been convicted of the lesser offenses such as conspiracy to commit murder or aggravated robbery, rather than felony-murder, which involve heavily overlapping conduct.
Graham v. Florida is also notable because it is the first U.S. Supreme Court case to clearly enunciate the principle that life without parole for juveniles is different from an ordinary prison sentence, in much the same way that the death penalty is treated much differently than a prison sentence in the criminal justice system.
The offenders who were younger when they committed their crimes are also particularly attractive as candidates to receive pardons.
Extensive developments in neuroscience have confirmed what most people with common sense have long known. Adolescents are less culpable than adults who commit similar crimes because the parts of their brains relevant to culpability, like ability to control impulses and ability to make good judgments, are less developed. As people get older, the vast majority of people who had developmental deficiencies that made them succeptible to committing crimes mature and are no longer the threats to society that they were when they were younger. Hence, mercy for the individuals, once they have been incarcerated for long enough to "age out" of the period in their lives as their ability to control their conduct and make good judgment has matured, makes sense for them in a way that it does not for someone who continued to commit serious crimes even after becoming a mature adult. The concern is especially strong for the youngest offenders whose capacity to control their conduct, and hence to be culpable criminal actors, is weakest, and who have the greatest potential to mature into more responsible individuals.
Until the U.S. Supreme Court's most recent holding, banning the death penalty for all crimes committed by juveniles, only offenses committed by offenders who were sixteen or seventeen years old were eligible for the death penalty. Now that Graham v. Florida has made clear that life without parole for juveniles is indeed different, life without parole sentences imposed for crimes committed when juveniles were fourteen or fifteen years old look particularly suspect.
Colorado's General Assembly has also made a distinction between juvenile offenders who are sixteen or seventeen years old, and those who are fourteen or fifteen years old in the "direct file" statute that governs when juveniles can be charged with crimes as an adult without the permission of a judge. Direct file prosecutions of first degree murder are still permitted in Colorado when offenderrs are fourteen years old, but the legislative recognition of a distinction between fourteen and fifteen year olds on one hand, and sixteen and seventeen year olds on the other, also argues that this is an appropriate factor for the Governor to consider when faced with commutation requests related to offense committed by individuals when they were juveniles.
The Governor, in considering youth in the context of a pardon petition, also has the benefit of being able to look at how a youth incarcerated for life without possibility of parole has behaved while incarcerated. He might deny a pardon to someone who has been a constant disciplinary problem while in prison, while granting a pardon to someone who has had only the most minor infractions while incarcertion and sought to better himself or herself, despite not having any real prospects for eventual release. This can inform his decision making process with information that was not available to a trial judge had a trial judge had the discretion to decide what sentence would be imposed (which, of course, the trial judge did not). Thus, Governor Ritter can act with greater confidence as a result of this greater information, than the typical trial judge at sentencing in cases where lesser criminal sentences are considered.
Considering National and International Norms
National statistics on juvenile life without parole sentencing elicited in connection with the Graham v. Florida case and recited in that opinion and in related legal briefing also make clear that the younger an offender is, the more highly unusual it is for a life without parole sentence to be imposed on a juvenile offender. Life without parole is available for juvenile offenders at all in only a couple of other countries in the world and used very sparingly in those countries.
The case for pardons (really commutations) for the sixteen and seventeen year olds who personally killed people is the weakest, although the fact that those sentences could not be handed down today in Colorado is relevant.
As the Governor considers commutations for juveniles facing life without parole sentences in his final days in office, it is also worth recalling how little official discretion was available in these cases.
Once the prosecutor in these cases made the decision to direct file them as first degree murder cases, the judges in these case has no power to second guess that decision and send the cases back to juvenile court because the offender was not an individual suitable to try in juvenile court. Direct file was a controversial innovation made in 1993 in Colorado in response to the "summer of violence" and resulting in a major increase in the number of juveniles charged as adults in Colorado. Under prior law, juveniles could be tried as adults only with judicial permission. In 2008, 179 juveniles were tried as adults for crimes under the direct file law. Under the old direct file law, prosecutors were not presented with any evidence of mitigating circumstances that might make it appropriate to try a youth as a juvenile rather than an adult when the decision was made by the prosecutor. Mostly, the decision to charge juveniles as adults was made as a matter of course in order to improve the bargaining power of prosecutors in plea negotiations with defendants, thus making a conviction for something more likely.
The juries in these cases had no role in setting the sentence. The jury's role was simply to determine if the charge brought had been established beyond a reasonable doubt, something that is particularly easy to do in a felony-murder case, where the prosecution need only prove that the individual was part of a group committing a serious felony in the course of which someone was killed in connection with the crime by someone. There are circumstances in which one can exonerate oneself from felony-murder liablity after commencing participating in the crime, but the standards for doing so are so onerous that in practice they almost never apply.
The judges in these cases also had no role in setting the sentence. Life without parole is the only sentence available and was mandatory at the time these convictions were handed down. Under the case law in place at the time that motions were presented to judges at trial regarding these sentences and when these convictions were reviewed on appeal by appellate judges, there was likewise no legal basis for striking down the sentences on the grounds that they constituted cruel and unusual punishment. If the trial judge and appellate judges agreed that the individual was found guilty in a fair trial, the sentence was a foregone conclusion.
In most of these cases, if not all, prosecutors offered plea bargains that would have produced sentences of less than life without parole, and Colorado's prisons are full of similar individuals who were offerred and accepted lighter sentences. So, to a great extent, these individuals are serving life without parole sentences not because of their crimes per se, but because of bad decisions they made in the criminal justice process - something that juveniles are particularly prone to make and that may be in some of these cases something that was a product of receiving bad advice from their public defenders.
Also, since those people who believe that they are innocent of the charges against them are mostly likely to fight them, the possibility that some of the individuals who went to trial when facing a certain life without parole sentence if convicted, rather than plea bargain for a lesser sentence, are innocent (or more likely, were probably guilty of something other than a crime as serious as the one for which the individual was convicted) is real. Even people who are convicted in trials that do not meet the high bar for reversal on appeal aren't always actually guilty. The evidence from DNA based evidence to prove innocence in rape cases suggests that juries rule correctly about 90% of the time, although there are features of those cases, like mistaken identity by witnesses who have been harmed by a stranger, that aren't as important in a typical felony murder case where an accomplice seeking leniency may testify as to the identity of a defendant, that may reduce wrongful conviction rates in these kinds of cases.
I don't personally know if any of these individuals has made an innocence claim. Governors with pardon power often make a point of not pardoning those who claim innocence rather than admitting guilty and aspiring to reform, except in the most high profile and extraordinary cases where there have been closely divided judicial rulings, and innocent claims rarely prevail in collateral attacks on convictions in the courts when the death penalty is not imposed, so there is an incentive for these individuals not to make those claims.
Governor Ritter, as a former District Attorney, is well aware that these young people ended up serving life without parole sentences, rather than simply long prison sentences with some hope of eventual release for these crimes committed as juveniles, because of rare combinations of particularly aggressive exercises of discretion by prosecuting attorneys and bad gamesmanship by juveniles defendants in the criminal justice process.
Other Cases For Juvenile Clemency
A significant number of people in Colorado's adult prison system right now are serving sentences for crimes other than murder based on convictions under Colorado's old direct file system that was reformed under a law signed in May of this year by Governor Ritter, and the reforms have been a focus of legislative interest. The bill greatly reduced prosecutorial direct file discretion in Colorado for fourteen and fifteen year olds, although it retained it for fourteen and fifteen year old offenders charged with first and second degree murder and sex offenses after a fourteen day waiting period in which mitigating evidence can be presented to prosecutors.
The original version of the bill that ultimately passed with modifications would have converted old direct file convictions of fourteen and fifteen year olds to juvenile convictions, but that provision was stripped from the legislation, again in deferrence to the Governor's separation of powers concerns in support a constitutional vision of the pardon power as the preferred means by which sentences are changed retroactively. But, the Governor has thus far offered absolutely no mercy to any of the individuals convicted of crimes when fourteen or fifteen who faced the adult justice system under a direct file regime, even though they would be unlikely to have been tried as adults under current law (which has only been in effect for a few months so far).
There are something on the order of hundreds of juveniles serving adult sentences for crimes that they committed at age fourteen or fifteen in prisons in Colorado who would very likely be serving juvenile sentences instead under current law.