Answers.com defines felony murder as:

An unlawful homicide that occurs in the commission or attempted commission of a felony, which is considered first degree murder by operation of this doctrine. In many modern statutes, only homicides that occur in the course of certain specified felonies are “felony murders.”

A Supreme Court ruling in May declared that juvenile life without parole was cruel and unusual punishment for juveniles who committed crimes other than homicide. Already, defense attorneys are using the decision to challenge felony murder doctrine as it applies to juveniles. A recent case filed in York County, Pennsylvania seeks relief for Michael A. Lehman who was 14 when he was sentenced to life in connection with the stabbing death of Kwame Beatty in 1988. Lehman’s attorney has filed a motion arguing for Lehman’s release on the basis that at no time did the state ever allege Lehman carried out the murder.

While the details of the Lehman case are unclear, under Colorado law the rules for charging felony murder include everything from unintended death resulting from arson all the way down to aiding in the immediate flight from a crime scene at which a death occurred.

There are currently at least 12 offenders serving life without parole for felony murders committed as juveniles. While the circumstances of each of these cases is unclear, there are several where the child’s greatest crime was to help a murder suspect leave the scene of the crime. Everyone knows the psychological principles behind ‘fight or flight.’ But dozens of studies show that teens’ decision-making faculties are not fully developed and that full brain maturation does not occur until at least the age of 24.

In light of the recent Supreme Court decision, new scientific evidence around brain research and recent challenges to the felony murder doctrine each case where a child simply sought to flee the scene of the crime (with or without the suspect), needs comprehensive and substantive review to determine if the juveniles in question were fully culpable and deserving of a life sentence.

A recent article in The Pueblo Chieftain by Jeff Tucker announces that the new direct file law passed this spring has gone into effect. The article lists the circumstances under which a juvenile can be direct filed by a district attorney as an adult. In general, a juvenile can now be charged as an adult by a district attorney if:

1. They are between 14 and 15 and commit 1st degree murder, 2nd degree murder or a violent sex offense.
2. Juveniles may also be charged directly by a district attorney if they are over 16 and commit certain felonies.

Pueblo District Attorney Bill Thiebaut complains that the new law doesn’t give District Attorneys enough discretion. Thiebaut told The Chieftan that he isn’t concerned with the 14-day waiting period that district attorneys must now adhere to in filing adult charges, but is concerned that the new law does not allow a district attorney’s office to use its discretion in choosing to file adult charges.

In a written statement to The Chieftain Thiebaut said, “Because the breadth of discretion that our legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse, a district attorney must be sensitive to the community norms while exercising the powers of the office, and to the broad discretion that the law vests in a district attorney’s decision-making.”

It is important to note that Thiebaut’s statement can be read several ways. If he meant to say that he has nearly as much discretion under the new law as he did under the old law, he should clarify that. If that’s not what he meant, he should be aware that the new law allows district attorneys an enormous amount of discretion.

While the enacted law lists criteria that district attorneys should follow in direct filing juveniles, it also makes absolutely clear (on page 5) that:

“The amount of weight given to each of the factors listed…is discretionary with the district attorney.”

Further, the act states (on page 7) that:

“At the discretion of the district attorney, the provisions [listed] shall not apply to charges for first degree murder…second degree murder…or any sexual offense eligible for direct file.”

The fact is that district attorneys still have TOO MUCH DISCRETION and are allowed, in effect, to be judge, jury and executioner when it comes to treating juveniles as adults. Prosecutors aren’t judges and shouldn’t be judges, but do have an ethical obligation to seek justice. Direct filing kids with no judicial review is unjust in the light of myriad studies that show kids don’t have the decision-making capacity of adults. District attorneys know that direct filing kids is wrong…they just have political reasons not to care.

By Mary Ellen Johnson, Executive Director, The Pendulum Foundation

John Caudle was fourteen-years-old when he killed his mother and step-father in their secluded home near Monte Vista, Colorado. The crime made national news. Parricide generally does.

There are two ways of handling a parricide case. If the child’s lucky, prosecutors and press will investigate before “creating a narrative.” They’ll key on one truth – kids who kill their parents generally have a very good reason, so let’s determine that reason before playing Mr. Hardcore and gunning for the kid’s life. Or, they’ll declare this kid is Satan’s spawn and we’re going to take him out.

In John Caudle’s case there was a bit of both. Looking at this skinny kid in over-sized glasses, the community didn’t see the devil in a tattered t-shirt. Plus stories of abuse immediately began circulating.

A family friend told us, “There are some really weird stories which make me think his mom was mentally unstable.  Joanne used to do some weird sadistic sorts of things that were more emotionally abusive and really cruel…Apparently, John kept quiet about a lot of the abuse because his mother would threaten him.  The stories I have heard from credible sources even involve John being tasered by his mom for punishment.  And this is when he was 7 or 8 years old.  John did not qualify for the school breakfast and lunch program because his step father made too much money.  Yet, his teachers noticed that he always seemed to have a lunch that looked scraped together.  And from the police report, when they went to the crime scene they noted very little food in the house.  Apparently, his mother and step-father would eat dinner and then when they finished John was allowed to make his own dinner.  Consequently, he lived on hot dogs and spaghetti.  I guess life is actually better in prison in some ways.  At least he gets regular meals.”

In many cases of child abuse, these kids are invisible to anyone with the authority to intervene. “I didn’t know anything was wrong,” they say after a tragedy.  “The parents seemed like nice people.” “He was a good student – a little different maybe. But we had no idea.” Such was not the case with John. Social Services followed Joanne and John through various states and investigations, including Colorado. Here, a teacher reported John after he came to school with a black eye. John was never removed from his house, though classes were ordered.

Despite the abuse, despite community sympathy, despite available legal alternatives to a harsh adult sentence, District Attorney David Mahonee believes it’s his duty to make sure a severely abused kid who got no help from the system and felt trapped in a endless nightmare, should be locked away for the rest of his natural life. Because make no mistake: when John Caudle is convicted — and he will be in a state where DA’s have a 90% conviction rate – he will be immediately sent into the adult prison system. No stopover in juvenile hall until John’s 18 or 21. No sir, not here in Colorado. Put him in with the biggest and baddest. He killed his parents, he was convicted, he deserves no mercy. And he won’t receive any.

John Caudle is still months away from trial. Because of Colorado law, he is kept isolated.  John exists in a legal limbo: the state says he’s an adult and he must be treated as an adult. The state also says he’s a kid and has to be kept separated from adults. However, since there are few accommodations for children in your local jail the solution is to keep him walled off from most human contact. While John’s attorneys are consumed by his case, pre-trial preparation  does NOT necessarily include a lot of one-on-one time with your client, especially when the jail is 45 minutes away.  During the school year former teachers volunteered to keep John abreast of his studies, but their visits averaged about 4 hours a week, and for the rest of the valley it’s still summer. No classes. Most of John’s time is spent watching television, sometimes reading, occasionally writing  letters. No friends. Little communication. Lots of time to think .No one to help him sort through his past, or his deed. Recently two other juveniles who were direct filed into the adult system and kept isolated as  John is being isolated, committed suicide.

Isn’t it ironic that a kid who went through hell with his parents is going through hell at the hands of the state?

Colorado by all accounts is under extreme fiscal stress. Indeed, a recent report by the Colorado Fiscal Policy Institute found that “job losses in 2009 and 2010 indicate a full rebound[from the Great Recession in Colorado] is years away.” In short hand that means a long-term slump in the tax base that supports warehousing children for the rest of their lives.

According to a recent opinion article by Paul Wachter at aolnews.com, the economic slump is the perfect opportunity for the Obama Administration to take up prison reform. StopDirectFile.org agrees and suggests that prison reform ought to start where the system is most detrimental to budgets: juvenile justice.

As Wachter notes, many prison reform activists argue that the justice system should focus more on rehabilitation efforts and reduce penalties…” But the reason we should focus on juvenile justice reform first is simply that society suffers the most prolonged effects of incarceration and repeat crime from juvenile offenders that we fail to reform or keep locked up because of the “heinousness of their crimes.”

What we fail to realize is that some of the “most heinous” criminals are also the least dangerous. In Colorado the Department of Corrections currently houses about 15 inmates who were sentenced to life as juveniles for crimes like aiding and abetting a murder suspect. While helping a known murder suspect get away with the crime certainly shows poor judgment and is certainly worthy of punishment, a life sentence might be a bit stiff. When you consider that the total cost to incarcerate those non-violent offenders is just under $500,000 per year, it just seems ridiculous. When you figure that over their lifetimes they’ll cost the state just over $26 million, you want to rip your hair out.

If anyone qualifies as a political enigma, Senate Majority Leader John Morse may be at the top of the list. A Democrat from traditionally conservative Colorado Springs, Morse made a career out of law enforcement and holds several advanced degrees including a PhD in Public Administration and an MBA. His tenure as a Sergeant in the Colorado Springs Police Department eventually led him to a long-term position as Police Chief in Fountain where he made community policing a hallmark of his department. StopDirectFile.org had the extraordinary opportunity to interview the lawmaker about criminal and juvenile justice issues. Judging from that interview, it is safe to say that Senator Morse stands at the pinnacle of leadership in the State of Colorado and it is our privilege to endorse him.

STOPDIRECTFILE.ORG: You’ve spoken a lot about the importance of Community Policing. What is community policing?

SENATOR MORSE: Community Policing is actively engaging the community in identifying and resolving the issues that lead to crime and disorder. So often, the police sort of figure out for themselves what the problems are or what they want to address and leave the community out of it. We sort of police on to the community instead of policing from within the community. So, community policing is actively working with the community to figure out what issues are important to them and how those issues should be addressed.

STOPDIRECTFILE.ORG:  Why did you choose to go into law enforcement?

SENATOR MORSE: I worked my way through college on a paramedic ambulance and every day I bounced out of bed and said ‘I get to go to work this morning.’ I was going to college; getting an accounting and finance degree. When I finished my degree, I went to work as a CPA and that was great, but I didn’t bounce out of bed every morning saying ‘I want to go to work today.’  With ambulances you sit and wait for calls to come in, but in a police department you get to go out and meet people and that’s exciting in its own right.  The police thing is fascinating on many different levels, but that’s how I got into it and eventually ended up being Chief of Police in Fountain.

STOPDIRECTFILE.ORG: What in your background and experience most informs your work as a state legislator?

SENATOR MORSE: I touched on the fact that I was a paramedic. The CPA also informs my work a great deal as I spent a year on the Joint Budget Committee. That was huge. After I left my position as Police Chief in Fountain, I was president and CEO of Silver Key Senior Services, a non-profit organization that enables people over 60 to stay in their homes as long as possible. That taught me about seniors and the importance of senior issues.  One of the things I learned at Silver Key, that seems to be common sense, is that dental work is so important because as you age into your 80s and 90s you lose your teeth. If you pay attention to seniors’ diet and see that they get at least one hot meal a day, the benefits are enormous, but if their teeth don’t support their nutrition their health deteriorates rapidly. Medicare doesn’t cover dental so when their teeth start to go bad you can just watch them lose their lives.

STOPDIRECTFILE.ORG: You seem very detail oriented. In 2008 you voted to reduce consequences for parolees who violate minor provisions of their parole. Can you tell us more about that legislation and what sort of budgetary implications it had?

SENATOR MORSE: I can’t be too specific without the fiscal note in front of me, but  we estimate it costs us about $28,000 per year to hold someone in prison. Keeping them on the street preferably as a law abiding, fully employed, productive member of society they’re actually contributing to the tax base.  You subtract the cost of incarceration and add the revenue from a productive citizen and it seems like a pretty good net improvement in the fiscal scheme of things. If you watch people long enough, especially as a police officer, it is only a matter of time before they violate a traffic law. When you’ve got somebody on parole, by definition you’re watching them very carefully. People are people and they’re going to make mistakes so you have to be able to differentiate between the stupid things and dangerous things parolees do that might be red flags. What this bill, in my view, was really about was making the distinction between those things so that we don’t send everybody back automatically, but we send just those back that really need to go back. Again, if you watch people long enough we will all make mistakes.

STOPDIRECTFILE.ORG: For you, what is the balance between punishment and rehabilitation?

I wish I had a pithy answer for the difference between punishment and rehabilitation. Punishment is sometimes absolutely necessary both from a societal standpoint as well as an individual standpoint. But punishment needs to be consistent with the crime committed and often we’re punishing people for the rest of their lives over once in a lifetime mistakes.  That’s not appropriate.

One thing we did last session, specifically in Colorado Springs, is we instituted a veteran’s court.  We send lots of young men and women to Iraq and Afghanistan  and they are submitted to huge stresses including  lots of blast injuries.  The soldiers within a block or two of a blast radius end up having their brains rattled. We’re now learning that some of those soldiers come back more aggressive, less patient, less tolerant of society and, for lack of a better term, ‘snap.’ They end up doing something – drink and drive, incur accidents, abuse drugs.  We created the veteran’s court so that judges can consider why veterans might be acting out and devise ways to mitigate their behavior without necessarily putting them in prison and throwing away the key.  Its a pretty good idea, in my view. Every criminal probably has a ‘reason’ why they are the way they are.  So if we can start with this veteran’s court where we take the issues that people have and mitigate them and learn how to do that for everyone then we can start drilling down and say ‘hey, this kid is suffering PTSD related to the way that he was [abused] and that’s why [he] did this and this is how we can fix it to put [him] back on the straight and narrow.’

I think it is fascinating how we’re starting to realize that our soldiers aren’t fully responsible for what they’ve done. Sure we have to punish them and hold them accountable on the one hand, but we have to make darn sure they get the treatment they need so that they don’t fall back into this trap later. That’s a good idea. We should do that for everybody.

STOPDIRECTFILE.ORG: In 2010 you sponsored legislation that reduced drug use to a misdemeanor. Why did you decide to fight for reductions in sentencing?

SENATOR MORSE: We have to look at the system as a whole and what it is really accomplishing. If we’re dinging people for doing drugs, are we really accomplishing something? Is that really having a societal benefit? I think the answer is not only no, but hell no. People tried prohibition and that didn’t really work. You absolutely shouldn’t drink and drive. I have probably made more arrests for drinking and driving as a patrol officer in the Colorado Springs Police Department than any other patrol officer. If I were to go back to that, it would be the same. I would continue to make more DUI arrests because I think people’s lives can be totally altered in an instant because someone was drinking and driving. The reality is that people are going to drink and we should manage that so that it doesn’t have a down side for the rest of us, but we shouldn’t try to prohibit it. It just doesn’t work.

It is the same with drugs. I personally haven’t tasted alcohol. I’ve never been drunk. I’ve never done any drugs; never even been tempted to do drugs. You could legalize drugs tomorrow and I still wouldn’t do them. But I think we need to figure out how to help people get through their lives as opposed to just locking them up when they do something that we, as a society, find morally repugnant. We need to save our limited prison dollars for offenders that need to be locked up for a little while in order to make society safer.

STOPDIRECTFILE.ORG: Are kids redeemable and what do you think of the practice of direct file from a policy perspective?

SENATOR MORSE: Kids are absolutely redeemable. From a policy perspective, I think there are a couple of problems with direct file. First, direct file gives District Attorneys an awful lot of power. They get to decide whether or not to file [adult charges against kids]. I think that’s too much power to put in the hands of that particular office. Second, I think [the decision to file adult charges is] a matter of statewide concern, especially because the rest of us are going to have to pay for charging, trying and holding that person, in some cases, for the rest of their lives. Why are we leaving that up to an individual District Attorney who was only elected by 1/23 of the population when all of us are going to have to bear the cost? Direct file needs to be looked at very, very carefully. We also need to intervene early and often to make sure that kids don’t get into that situation.

STOPDIRECTFILE.ORG: Do you agree with Justice Clarence Thomas that state legislatures need to take up the issue of life sentences for kids?

SENATOR MORSE: I agree that state legislatures [should take up the issue of life sentences for kids]. I think we need to look very carefully at what we’re accomplishing. As a society, we have this idea that if we’re very tough on crime, criminals will recognize that and stop committing crimes and we’ll all live happily ever after. There isn’t a shred of evidence to support that theory and yet we’ve clung to it tenaciously for the last 25 years. So let’s stop, figure out what works and start implementing that. Let’s be careful about giving up on any human being, but especially children.  What I don’t think society gets is that we really only throw away 3% of [offenders]. The other 97% we put away for awhile and then they come back. What are they going to do when they come back? Are they going to be able to get jobs, provide for their families and become good taxpayers? No, they’re not because we make it darn near impossible. We say, ‘you can’t live here, you can’t work here, you can’t associate with these people and don’t forget to pay all your fees on time or we’ll put you back.’ We have to stop being just tough on crime and start being really, really, smart on crime.

Noting the recent U.S. Supreme Court decision to end juvenile life without parole for non-homicide offenses, the Nebraska Democratic Party recently passed a resolution that adds the elimination of JLWOP to their state legislative platform.

The Nebraska resolution states, in part, that:

WHEREAS the United States Supreme Court has again, in Graham v. Florida, reaffirmed the fundamental differences between youth and adults in their ability to exercise judgment, foresee consequences and resist peer pressure, and

WHEREAS the Court has also noted the greater capacity of youth to change, thereby making it impossible to determine at sentencing that a youth cannot be reformed…

THEREFORE be it resolved that the Democratic Party in Nebraska support legislative efforts to eliminate sentences of life without possibility of parole for crimes committed by a youth who has not yet reached the age of 18.

While Colorado eliminated Juvenile LWOP several years ago, the state still practices direct file and consecutive sentencing that can amount to virtual life sentences for kids. In Grand County, 15-year-old John Caudle is being tried as an adult and faces 80 years for allegedly slaying his abusive parents. Children like Caudle cannot forsee the consequences of their actions and have great capacity to learn from their mistakes. They should not, therefore, be subject to abusive practices like consecutive 40 year sentences that ultimately just mean another life lost at great taxpayer expense. Supreme Court members noted the limited scope of their decision by citing Colorado’s consecutive sentencing practices. An adult sentence, whether it is 40, 80, or 120 years for a juvenile does not account for an individual child’s capacity to change.

There is probably no soul sorrier for its master’s mistakes than is John Caudle’s. But the question is: Does his soul deserve redemption or condemnation? And is it the state of Colorado’s purview to make such lasting and ill-begotten judgments on its children? Every religion in the world teaches love and forgiveness and yet here we are as a state encouraging, seeking, enforcing and even disguising the basest revenge we can possibly imagine.  The Nebraska Democratic Party clearly isn’t afraid to face its demons. StopDirectFile.org hopes that in next legislative session, Colorado too can come to terms with its own, very fallible humanity.