The Supreme Court ruled today that sentencing juveniles to life without parole for non-homicide offenses violates the 8th Amendment ban on cruel and unusual punishment. In a narrow 5 to 4 decision the court found that states must provide juveniles sentenced to life without parole for non-homicide crimes with meaningful opportunities to show that they deserve release.

Writing for the majority, Justice Anthony Kennedy said, “By denying the defendant the right to reenter the community, the state makes an irrevocable judgment about that person’s value and place in society. This judgment is not appropriate in light of a juvenile nonhomicide offender’s capacity for change and limited moral culpability.”

Littered with references to friend of the court briefs detailing childrens’ limited culpability and capacity for change, the decision is in sharp contrast to the dissent authored by Justice Clarence Thomas who wrote that, “The court is quite willing to accept that a 17-year-old who pulls the trigger on a firearm can demonstrate sufficient depravity and irredeemability to be denied reentry into society, but insists that a 17-year-old who rapes…does not. The question of what acts are ‘deserving’ of what punishments is bound so tightly with questions of morality and social conditions as to make it…a question for legislative resolution.”

StopDirectFile.org agrees both with Justice Thomas’ reasoning and the Court’s actions. While the court has taken an important step in the right direction, there are currently 50 juvenile offenders serving life sentences in Colorado. Treated as adults in a system that favors prosecutorial power (direct file) over judicial discretion (actually balancing victims’ rights, community safety and the defendant’s rights), many of those children have been found guilty of crimes such as complicity in murder, vehicular homicide or unintentional second degree murder. A life sentence is not justified for an unintentional or reckless circumstantial act.

It is now up to state legislatures–Colorado’s included–to rectify the moral contradictions in this ruling and recognize that children who commit unintentional or circumstantial “homicide”  are not “morally or penalogically” irredeemable. Juvenile Life Without Parole, whether it is achieved through consecutive terms (i.e. two 40 year terms in the Caudle case) or some other means, is cruel and unusual punishment for a child. Period.

According to Mary Ellen Johnson of Pendulum Juvenile Justice, “Colorado would be well-served to re-visit those 50 cases of juveniles serving life without parole. It is simply a matter of time before juvenile life without parole will be declared unconstitutional for all.”

StopDirectFile.org supports comprehensive sentence reform that provides appropriate community protections by removing juvenile offenders from society (until they are no longer a threat); provides victims with a sense of security and justice (not revenge); and gives juvenile offenders an opportunity for rehabilitation (not cold storage).

In the waning days and hours of the 2010 Colorado state legislative session, HB-1413–Concerning Juveniles Who Are Tried As Adults–passed both the House and the Senate.  StopDirectFile.org endorses HB 1413 as a step in the right direction. As Senator Gail Schwartz recently pointed out in a Colorado Public Radio interview, “you carry a bill; you don’t marry a bill.” StopDirectFile.org wishes to thank Representative Claire Levy, Representative Mike May, Senator Kevin Lundberg, Senator Linda Newell and Speaker of the House Terrance Carroll for all of their efforts on HB 1413. Please write and thank them for their attentiveness to the issue of direct file and ask them to keep up the good work.

It is important to be clear about what the final version of HB 1413 actually does and doesn’t do. The bill summary states that 1413 deals with a district attorney’s power to direct file adult charges against children.

What House Bill 1413 does…

1. Changes the minimum age that defendants can be direct filed from 14 to 16 years, except in the case of first degree murder, second degree murder or a sex offense.

What that means for all intents and purposes is that a child can still be charged by a district attorney as an adult. StopDirectFile.org has relied heavily on the John Caudle case as the prevailing example of how unfair direct file is. Caudle, who was 14 when he allegedly killed his abusive parents, could still be charged as an adult and would still be subject to adult sentencing that might, in effect, put him in prison for life. Never mind the fact that if he had been an adult, he wouldn’t have been subject to his parents’ abuse and could have just left.

2. HB 1413 lists the criteria that the district attorney must consider in determining whether to direct file charges against a juvenile.

What the summary doesn’t say, but the bill does is that “the amount of weight given to each of the factors listed…is discretionary with the district attorney.” Further, “the insufficiency of any factor or set of factors shall not preclude the district attorney from charging by direct filing.”

What the bill doesn’t do…

1. The bill doesn’t end direct file (obviously)

2. The bill doesn’t deal with a district attorney’s ability to plea bargain with the threat of a possible adult sentence (the primary way direct file is used/abused).

So after all is said and done, DAs now have to think really hard about whether they should file adult charges. But it is still clearly up to them. HB 1413 codifies their ethical obligation to “pursue justice” but does not eliminate their conflict of interest as elected officials with political motives.

As far as Caudle’s situation is concerned, we’re simply playing Monopoly for all of the judicial process that’s available: Move straight to jail and do not pass Go.

StopDirectFile.org applauds the recent decision of Colorado Springs Judge David L. Shakes to try Daniel Gudino as a juvenile for the alleged murder of his younger brother. Presiding over a request by the District Attorney’s office to transfer Gudino to adult court, the defense prevailed in their argument to keep Gudino, who was 13 at the time of the murder, in juvenile court.

This is the way justice is supposed to work. Gudino isn’t some monstrosity that requires monstrous vengeance, he’s a boy; someone who may have committed a horrible crime–a mistake that, if he is guilty, he will have to live with for the rest of his life. Children are different from adults. There is an enormous body of research that shows children are incapable of making adult decisions. As a state, Colorado recognizes that children do not reach “the age of majority” until they are 18. They cannot:

enter[sic] into any legal binding contract (13-22-101(a))

manag[e an] estate (13-22-101(b))

[sic] sue or be sued to the full extent (13-22-101(c))

mak[e] decisions regarding his or her own body (13-22-101(d))

vot[e] in elections (Const. US., amendment XXVI)

arbitrat[e] a claim (13-22-202)

consent[sic] to medical treatment (13-22-102)

join[sic] the military without guardian permission

It is recognized that parents are responsible for their childrens’ actions and yet, we treat children as if they were adults when they commit a crime. The fact is that many of those crimes would not have occurred if those children were adults. Daniel Gudino probably wouldn’t have had the opportunity to kill his brother had he been an adult. Judge Shakes made the right decision and did the right thing. Unfortunately, the only reason he was able to do the right thing was because Daniel was only 13 when the alleged murder occurred. Had Daniel been one year older, the District Attorney would not have had to request a transfer. The DA could have forced the judge’s hand through his ability to direct file.

We don’t pay judges to lay down and agree with the prosecution out of hand, just because the DA saw fit to file charges.  We pay judges to uphold justice and that is exactly what Judge Shakes did.

According to a new article by Joe Boven at the Colorado Independent, Colorado’s kids of color are disproportionately represented in adult courts as a result of direct file. Boven points out that data is scarce, but “between 1 January 2008 and 31 December 2009 there were 273 children tried in adult courts [and] of those children, 73 were black, 34 Hispanic, 2 Indian and 153 white.”

In total that is only 109 children of color versus 153 white children. On the surface that might not seem so bad, but Boven points out that “those numbers don’t match up with the Colorado population.” Independent research projects by both the Colorado Independent and Colorado Defense Bar show that when compared against Colorado’s population, kids of color are dramatically over-represented in adult court.

Boven writes that:

“The percentage of black youth undergoing adult court proceedings is 27 percent even though black people in 2008 made up only 4.3 percent of the state population; Latinos made up 12 percent of youth cases tired in adult courts although Latinos constitute 20 percent of the state population; and whites made up 56 percent of youth undergoing adult court proceedings even though whites make up roughly 71 percent of the Colorado population.”

One surprising finding: “The relatively low percentage of Latino youth suspects landing in adult court.” But Boven is nonplussed and adds, even more surprisingly, that:

“Although the relatively low percentage of Latino youth suspects landing in adult court seems encouraging, [Sandy] Mullins [of the Colorado Defense Bar] said that in El Paso, Arapahoe, Weld, and Douglas counties at least, Latinos seem to be identifying themselves as white.”

So what could explain all of this? Ted Tow of the Colorado District Attorney’s Council offers his thoughts:

“There can be no debate that there is minority over-representation [in direct file]. It is easy to look at raw numbers and say that X number of blacks get charged, but unless you know that they are robbing or shooting other blacks, it is hard to say what the racial overtones are. We don’t track it either. I’m not saying we have that data but it is a neglected feature. Race is not a factor that we consider when making those decisions. The reality is that direct file is often used in gang situations and unfortunately gang involvement is greater in minority communities than in white communities. It is unfortunate but it’s a socioeconomic situation that can’t necessarily be tracked back to a racially biased criminal justice system. I think that direct-file will carry the same basic numbers.”

According to Boven, Mullins generally agrees that  it is  impossible to guess at the motivations that shape the direct file system with regard to race. Mullins says, “We know that these are kids that are vulnerable children but there is no place where that information is integrated to really capture why these kids are being charged as adults.”

In short, over-representation of children of color in the adult court system is a truly systemic problem. Everyone seems to agree that it is a problem that requires address and redress. To start, the state needs better data collection practices. But that only serves to further define the problem.  At StopDirectFile.org we prefer to focus on solutions.

No one is suggesting that DAs are intentionally racist. They have a duty to enforce the law. Direct File was intended to give DAs the authority to effectively prosecute “gang crimes.” But “gang crimes” are in the eye of the beholder. What appears to be a “gang crime” according to one DA might be “a couple of kids who got into trouble together” according to another. It is no surprise that teenagers tend to congregate in groups (for better or for worse).

That “gang involvement is greater in minority communities than in white communities” is an enormous assumption (Ted Tow from above) based on a highly subjective interpretation of “gang crime.” It could be, for instance, that Colorado is policing communities of color more heavily based on that assumption and those subjective interpretations.

What is needed are solid data, judicial discretion and impartiality; people who are paid to separate the wheat from the chaff.  Yes, judges who will second guess enforcement decisions that may have been racially biased. DAs (a la Don Quick) are the first to admit that their decisions aren’t perfect. Our country was intended to be a system of checks and balances. Recognizing that they aren’t perfect, isn’t it time that DAs gave some decision-making authority back to the judiciary? Might that be a better way to “pursue justice” than making a series of unfounded assumptions that have dire consequences for children of color?

By Mary Ellen Johnson, Executive Director, Pendulum Juvenile Justice

Nearly a year ago, 13-year-old Danny Gudino shot his 9-year-old brother to death, and his mother, who survived, in a Colorado Springs’ suburb. Why did Danny commit such an unspeakable crime? By all accounts he was a normal, everyday kid. No problem behaviors at school. He came from a seemingly loving family.

What would cause Danny to rise from his bed, shoot his sleeping brother, then turn a rifle on his mom, only to cry immediately after, “I’m so sorry.”

Because Danny Gudino was only 13 when he pulled the trigger, the court is interested in “why.”

Had Danny been a few months older, 14-years-old to be exact, no one but his defense team and his family would have been seeking an explanation. Danny would have been charged as an adult and would right now be readying for a trial whose outcome would have resulted in decades or life in prison. (Since over 90% of trials result in convictions, it’s pretty much a given that Danny would NOT have been found innocent.)

A few months older and Danny’s fate would have been solely in the hands of district attorneys, who make their decisions whether to try children in the juvenile or adult court, in 72 hours or less.

That process is called “direct file.”

Instead, Danny is being allowed a “transfer hearing.” In a hearing that will last longer than many of the trials where Colorado juveniles have been convicted and sentenced to life behind bars, a judge will hear all the evidence from all sides. Afterward, he will decide whether Danny is to be tried as a juvenile where he can get treatment and will be released after 7 years – or enter the adult system and endure decades of hard time.

Who would YOU rather have determine the fate of a child — a prosecutor whose job it is to prosecute or a judge who is charged to impartially weigh all the facts and then reach a decision?

A new bill, Colorado HB-1413, will narrow the offenses for which prosecutors can directly file juveniles as adults. HB-1413 will provide transparency – guidelines DAs have to follow when pondering the fate of the accused, will lengthen the time from 72 hours to two weeks before a decision can be made to direct file, narrow the range of chargeable offenses, and will offer the alternative of the Youthful Offender System to a wider variety of youth. The bill has received bi-partisan support, and has been endorsed by most District Attorneys and our former DA Governor.

It’s a good start, though there are some important exceptions. Fourteen and fifteen-year-olds charged with murder or sexual offenses can still be directly filed into the adult system.

And, boy, do I have a problem with that.

In the first place, a serious offense like homicide cries for explanation, which would mean an intensive investigation. You can’t do that within 3 days – which, even under this new bill, will still be the norm. And while sexual crimes conjure images of wild-eyed fifteen-year-olds raping babies or a host of innocent schoolmates, the “crime” can simply be sex between two consenting teens. After being found out by angry parents, the frightened daughter says, “I didn’t do anything. He forced me.” And her boyfriend is charged with rape.

Homicide and sexual offenses can consign a youth to prison for life so why give that decision to a prosecutor who can’t fully investigate the circumstances of the crime in two weeks, let alone 72 hours? Shouldn’t such cases, where a juvenile’s future hangs in the balance, be the kind that most strongly merit a transfer hearing? All the facts. All the psychiatric and psychological reports. All the experts to give an answer to what made this kid snap. And why or why not this teen can be redeemed. What is wrong with hearing all relevant evidence before making a decision? Prosecutors like to say they weigh three factors when making the decision whether to direct file– what’s best for the victim and/or their family, the safety of the community and what’s best for the defendant.

They can’t know that within a few days.

Furthermore, when is being thrown into adult prison with murderers, rapists and predators EVER best for a juvenile defendant?

Do I even have to mention that crimes involving death and/or sexual offenses invariably merit front page headlines? And no DA , particularly in Focus on the Family Colorado Springs, ever won re-election for being soft-on-crime. Can’t remember the time when, following a tragedy that led all the local news shows, a prosecutor said, “We’ll have a transfer hearing.” “We’ll try this kid as a juvenile.” Just doesn’t happen.

And the only reason it will happen in Danny Gudino’s case is because prosecutors can’t throw him into the adult system. He’s too young. They MUST have a hearing.

So explain this to me:

Why did it take the defense and prosecutors a year to gather evidence about a thirteen-year-old’s state of mind, about the crime, about his motivation – while it only takes a DA a handful of hours to gather all that evidence for the same crime if the kid is 14-15-16 or 17-year’s old?

This is not justice.

Sitting in the courtroom today watching Danny was very painful. Nearly two decades ago I sat in a similar courtroom when Jacob Ind, barely 15, was charged as an adult for the deaths of his parents.

Where was the investigation for Jacob? Why, when his older brother said immediately after the murders, that he didn’t blame his brother and there were “secrets” in the house, didn’t prosecutors investigate to uncover those secrets?

Today, Danny’s defense spoke of his family having a history of sleep disorders, of mental illness. Jacob didn’t sleep for three weeks straight before the murders, lost 18 pounds in a matter of days and was demonstrably psychotic. Not too hard to find that out. Just talk to Jacob’s classmates.

Didn’t happen. Immediately, Jacob was charged as an adult, was positioned firmly on the path that inexorably led to his conviction and a mandatory life without parole prison sentence .

Worst of all, when Jacob was charged, Colorado still operated an extremely successful treatment facility for youth who had committed similar crimes. At the Closed Adolescent Treatment Center, kids like Jacob received intensive help, rather than incarceration, and upon release, disappeared into middle-class suburbia where they got married, raised families, paid their taxes and were allowed some modest version of a life.

Treatment was a viable alternative for Jacob, and a few years previously, when we still believed in rehabilitation, would have been the norm. Caught up in that dark time of the 1990’s Jacob never had a chance. Redemption was never an option, not for Jacob or hundreds of other Colorado teens, victims of our fear of pint-sized super-predators who never materialized.

Now we’re living with the detritus: tens of millions of dollars spent on prison cells for kids who could have been rehabilitated, who deserved something – if only a transfer hearing before a judge – before being consigned to the living hell that is our justice system.

HB 1413 is a start. But it’s not nearly enough.