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.