July 2010 Pendulum Newsletter
C olorado’s legislative session ended in May and resulted in a major victory for youth in the justice system. Thanks to bi-partisan support and the efforts of advocates, including The Pendulum Foundation, we further undermined direct file, which allows prosecutors unfettered control over whether to try 14-17-year-olds in the adult or juvenile system. Now, a judge will hold a hearing to determine whether the defendant will be charged as a juvenile or an adult. The judge will make that decision based on all the evidence and following a thorough investigation. (Check out our videos on StopDirectFile debate on home page. Also, www.stopdirectfile.org for arguments for and against direct file.) In fairness, after initial reluctance, prosecutors worked with defense attorneys and legislators to craft an acceptable compromise. HB-1413 is not perfect. Fourteen and fifteen-year-olds can still be charged with first-degree murder within 72 hours of their arrest. Why a child facing virtual life can be charged before any intensive investigation is undertaken makes no sense, but HB-1413 remains a giant step forward.
Why do we hate direct file?
Contrast the following cases: Danny Gudino, a 13-year-old who killed his brother and injured his mother in 2009 and Jacob Ind, 18 months older, who killed his parents nearly two decades ago. Because Danny was too young to be summarily charged as an adult, defense and prosecution had to work together to test and investigate the circumstances surrounding his actions. The investigation took more than a year. While prosecutors still asked that Danny be tried in adult court, the judge disagreed. After hearing reports from psychologists and psychiatrists, family witnesses, and investigators – a mini-trial – the judge ruled Danny suffered from a severe sleep disorder among other things, and agreed he should be tried as a juvenile. The most time Danny can get is 7 years at a youth corrections facility.
Contrast that to the case of Jacob Ind.
Despite the fact that Jacob’s older brother broadly hinted about the abuse in their household hours after the deaths of their parents, Jacob was immediately charged as an adult. Despite the fact that Colorado had an Adolescent Treatment Center created for just such cases as Jacob’s, prosecutors never gave the fifteen-year-old that option. Despite voluminous testimony as to the abuse that drove Jacob to desperate action, prosecutors discounted the abuse. Instead they asked for and received the harshest penalty possible — two life without parole sentences.
What a difference the intervening years, not to mention the differences in Danny and Jacob’s ages, make.
Furthermore, right after Danny Gudino’s sentence, in the same town where he received mercy and Jacob Ind life, a sixteen-year-old girl received probation for killing her abuser. We applaud the changes, of course. The dark times of the 1990’s, the days of criminal hysteria are receding. (Or perhaps they’ve only been replaced by terrorist hysteria.)
Okay, but now what are we going to do for kids like Jacob who have spent more than half their lives behind bars?
We at The Pendulum Foundation believe we’ve reached the moment where real meaningful reform is possible. We are already meeting with legislators and advocates to craft legislation that will give all young men and women a meaningful chance for release. We’re advocating a certain number of years in prison, accompanied by intensive programming and then release to Community Corrections. We have bi-partisan support and trust that 2011 will be our year. While some believe in second chances, more understand that mindless punishment has proven too costly to continue. Whatever the motives, we will be successful.
Finally, the supreme court ruling, Graham v. Florida, ruled unconstitutional life without parole for non-homicides involving juveniles. That means further legislative changes must be made to put Colorado in compliance. We have kids serving up to 500 years for non-homicide offenses. Each must be given an opportunity for meaningful review. Felony murder and complicitor statutes may also be ruled unconstitutional, which will affect some of our JLWOPS. Colorado defense and appeals attorneys are meeting daily to determine how best to litigate. For those out of state who think they may also have a case, please visit Campaign for Fair Sentencing of Youth or contact its director, Jody Kent.
Juvenile life without parole will be ruled unconstitutional. Period. It’s just a matter of time. However, just as Colorado was the first state to end juvenile life without parole via legislation, we are going to be the first state to get retroactivity for our 50 young men and women rotting behind bars.
Just wait and see.
Mary Ellen Johnson, Executive Director