As this moving blog demonstrates, people who have honestly and openly wrestled with the idea of Juvenile Justice and Sentencing issues must inevitable reach a point where they see that, as our justice system stands now, it is incapable of giving youthful offenders the chance at rehabilitation that they deserve while simultaneously giving them the correction that their crime demands.

It is no surprise that we as a society find ourselves in this situation.  Life can be brutal, and especially so for children.  The number of violent crimes committed by minors is direct proof that we as a society have made some enormous errors, somewhere along the way.  For example, we rightly condemn forced sterilization, but at the same time do nothing to protect innocent babies born to drug addicted prostitute mothers.  We set up a foster care system that too often takes children from one abusive situation only to place them in a worse one.

Conservatives who preach ad nauseam about “traditional family values” are among the first in line to turn their backs on the possibility of meaningful reform to the current foster care system, preferring to insist that the state has no place coming between a child and has/her parents.  I would love to whole heartedly agree with them, but for the fact that they cannot see that their ideology depends upon the parents actually being parents.  It is not enough to insist that the government stay out of peoples lives.  What has to be realized is that the government should only stay out of peoples lives when the people show that they are capable of living those lives responsibly.  On the other hand, liberals whose hearts bleed for every young person in jail are the first to turn their backs on the very real and painful plight of the victims and their families.  Yet apart from these two view points, what else is there?

As the number of broken homes and children in foster care continues to grow, as membership in violent gangs grows, and as the number of minors behind bars increases, we as a society cannot sit back and rely on our justice system, designed for adults, to adequately dispense justice.

Yet the question remains, what else is there?  It is a heinous idea to argue that the government take some sort of active role in preventing the birth of a child into a certain set of circumstances.  It is an impossible idea to argue that any governmental, or private, entity can provide for the thousands of children trapped in our deeply flawed foster care system.  Yet again, what else is there?

Until that question is answered, miscarriages of justice in the name of being “tough on crime” will continue, young people will continue to be ineptly dealt with by a justice system not equipped or intended to deal with them, and violence and social decay will continue to advance in our national statistical studies.

It is time we looked at ourselves in the mirror and for once honestly asked ourselves to answer the question, what else is there?.

The greatest miscarriage of justice happens when a supposedly self-correcting system fails to correct itself. Alan Sudduth was convicted as a juvenile for murder in 1995 and sentenced to 70 years in prison on a plea deal.  The problem is that Sudduth didn’t actually kill anyone and someone else has repeatedly confessed to the murder.

According to Westword, the Colorado State Court of Appeals ruled unanimously that Sudduth waited too long before filing his appeal based on ineffective counsel. Sudduth’s attorney, Alison Ruttenberg, is appealing to the state supreme court. While the Court of Appeals may be technically correct according to the law, they have utterly failed to recognize the injustice that has been done.

As a general rule, there is no statute of limitations on filing murder charges and there should be no statute of limitations on overturning a wrongful conviction. The Arapahoe County District Attorney in 1995 knowingly filed adult charges against Sudduth when the preponderance of evidence pointed to someone else.  Sudduth was too young and too naive to understand the gravity of the decisions his attorneys were making on his behalf. The reason we have court appointed attorneys is to protect defendants against their own ignorance of the law. If they fail to effectively and faithfully represent the interests of their client, the system fails. No judge should ever condone that–whether it fits on their calendar or not.

Sudduth deserves parole.

The story, from this USA Today Article, basically goes like this: a Miami man was wrongfully accused, tried, and convicted of crimes he did not commit.  He was convicted based upon faulty evidence which had been manipulated by the local prosecutor who was looking to score a win.  By the time the truth came to light the life of an innocent man, and that of his wife and children, was ruined beyond repair.  How could this happen?

Sadly, the case outlined in the article is far from the only example of this.  As our technology advances, DNA testing has freed many people from prison, and from the convictions they were wrongly given.  In all of these cases, no matter what the differences are, you will fine one common thread: somewhere, at some point, the prosecuting attorney chose to pursue a conviction at all costs, rather than justice at all costs.  Pandemonium around events such as the recent UT shooting (University of Texas) help us understand why prosecutors, as elected officials, get carried away with the pursuit of conviction rather than the pursuit of justice.

The reality of America today is that law enforcement, like all other public functions, has limited resources.  Investigating crimes, chasing criminals, and legal prosecutions cost money — lots of it.  Resources are scarce, and the waste that would incur from admitting a wrongful arrest, releasing the former suspect, and beginning the investigation all over again, would be enough to make any prosecutor look bad to his bosses.  Essentially, there is a great deal of pressure on law enforcement personnel to get the job done, quickly, efficiently, and correctly; the first time around.  When the uncertainties inherent in human life intervene, and for whatever reason an innocent person is accused of a crime, that pressure all too often prevents justice from being done.  Rather, the prosecutors push ahead with the case, despite faulty evidence and flawed witnesses, because they need to look good to the public that elects them.  Unless they want to be out of a job.

It is exactly this pressure that makes prosecutors biased attorneys, and should prevent them from having the power to choose to charge child offenders as adults.  Despite the best intentions, despite the desire to see justice done, prosecutors simply do not have the requisite distance to enable them to examine cases objectively.  Judges do, and for that reason, Colorado needs to change its current justice system.  Let the sad stories of destroyed lives show us all that it does not take a willful decision to wrongfully imprison someone, it only takes one overworked and underpaid prosecutor choosing to take the easy road.  This should never happen, but when it happens to young people, it is even more sickening in the eyes of justice.

Labor Day, the one day out of the year that we celebrate all the hard work we do, was intended as a well deserved tribute to the men and women who worked in steel mills, factories, construction, and other such positions that the ruling elite look down on as “manual, menial” careers.  Labor Day has been a federal holiday since 1884, a year and an era when unions were necessary, were actually concerned about the workers who paid dues, and not simply seeking political influence.  The sad fact of modern American reality is that most of the jobs that Labor Day was intended to celebrate are now gone.  Government regulations, environmental regulations, and competition from overseas, have shut down the steel mills, the factories, and made life for “blue collar” workers hell. After all, how can a company, burdened with very costly government mandated OSHA and EPA regulations, compete with the prices of a company free from such regulations?  That is why Chinese steel is everywhere, and America is saddled with a “Rust” belt.

When conservatives talk of a free market based economy, they are not talking about NAFTA type treaties.  In 1993, before Bill Clinton signed NAFTA into law, many conservatives were opposed to the treaty.  The resistance was so strong that  the Heritage Foundation had to address it.  Clearly from that article, job creation was expected, as well as the idea that American companies could “take advantage” of Mexico’s “cheap” labor costs.  What does it mean to have a low labor cost, relative to a high labor cost?  In a nut shell, it means that companies can pay their workers less, because they expect less.  Many Americans on the Left and the Right supported that idea.  Payroll is always a companies largest expense, and finding ways to lower that is always high on a CEO’s priority list.  Oddly enough, the entire company benefits from this, a truth the left is reticent to admit.

NAFTA has never been a cause of illegal immigration.  The idea that Mexican farmers cannot compete with American ones is simply mistaken.  In reality, a great many of the fruits and vegetables we enjoy in America come from Mexico, whereas our own American Farmers are given government subsidies to grown nothing.  The root cause of illegal immigration from Mexico is the corruption and crime that is rampant in that nation.  Living in Las Vegas I have had many opportunities to speak with illegal Mexican immigrants, and they have almost all told me that they miss their nation, but “things are too bad there.”  America and our economy have not caused illegal immigration, rather, those men and women have taken a risk and tried to obtain a better life for themselves in a country relatively free from political corruption (at least so far.)  I do not object to that.  I object to them breaking our laws and draining our social safety nets, when our legal citizens are suffering.

Labor Day was meant to celebrate the American worker.  Today, in our globalized economy, the “American worker” is a term that has lost all its meaning.  Despite what Harry Reid said, most of the manual construction and landscape jobs in Las Vegas (and most cities) are done by illegals.  (Reids claim to the contrary surly ranks high among the most stupid things a human being has ever said.) The current blow-up in Arizona has nothing to do with NAFTA, nothing to do with Free Market economics, but everything to do with a states desire to protect its citizens.

Arizona SB 1070 was not written and passed because of racism, or prejudice against “Brown” people.  It was enacted because of the out of control drug violence in Mexico that is spilling over into Arizona and other border states.  When Governor Jan  Brewer requests 3,000 National Guard troops, and is only given 30 (thats 1%) is it any wonder that there is some angst against the Feds?  As for what Sheriff Joe is doing, I say keep it up.  My friends on the left view prison labor as “slave” labor.  This is their choice, just as it is their choice to remain ignorant of the economic realities surrounding the issue.

Billions of dollars are spent each year on our incarcerated population, and each year the tax payers receive higher crime rates and less safe communities as their ROI. What Sheriff Joe is doing is different, it is unique in America today, and it could be the solution to our woes.  If jails are not places people want to go, then perhaps they will think twice about a life of crime.  If prisoners in jail are given a job to do, perhaps they will acquire some life skills and be able to survive in the real world.  It is not about taking advantage of “slave” labor.  Cynicism and sophistry would like to claim it is, but it is about using scarce tax dollars better than we do now.  The current justice system has double digit recidivism rates.   Clearly something needs to change.  As someone diametrically opposed to Direct File and JLWOP I applaud what Sheriff Joe is trying to do.  Children who have made mistakes deserve a chance at a new life after rehabilitation.  Teaching them to work, stick to a schedule, and a marketable skill are far superior tactics than locking them away for decades.

As we celebrate Labor Day on Monday, most people I know will actually be at work.  The banks will be closed, the government will take a three day weekend, but ordinary hard working Americans like me will be at work.  Trying to survive a bone crunching recession caused by misguided democrat housing policies and made worse by a blind reliance on Keynesian economics.

It’s no secret that Clifford Joseph Harris, Jr. better known to the world as the rapper T.I. made some mistakes.  Those mistakes led to his arrest and conviction on a Federal weapons charge in 2007.  This was hardly his first run in with the law.  By the time young T.I. was 14 he had already been arrested numerous times, a sort of occupational hazard for teenage drug dealers.  The story of T.I. is not unique.  A young man grows up in a desperate situation, falls in with a bad crowd, makes immature decisions, and before you know it the young man is looking at serious criminal charges.  The story of T.I., however, is not totally tragic.

As his music career, which began at age 7,  was really taking off, and his future prospects went from dim to bright, T.I. realized that his street tough, “gangsta” life style was going to bring him nothing but loss and pain.  He put that realization into art form in his song “Dead and Gone.”  What is the lesson for Colorado in this?

Had T.I. been arrested in Colorado when he was a young teenager, would the juvenile justice system have allowed him to learn from his mistakes and essentially rehabilitate himself?  Given the atmosphere of revenge and blind retribution caused by the Direct File practices of DA’s, the answer to that question is most likely no.

This is not meant to imply that Colorado DA’s are not essentially good people who do not care about the safety and needs of the people they are elected to represent.  Rather, those DA’s are laboring under a misguided idea that children who commit serious crimes are somehow forever lost causes who need to be isolated and imprisoned until they are old men.  The life and story of T.I. shows that children who make mistakes can, and do, in fact learn from them.  Young thugs, no matter how hard or tough they think they are, do eventually realize that their lifestyle needs to change.

T.I. should be thanking his lucky star that he was not born in Colorado, otherwise he would never have had the chance to reach that conclusion.  T.I. would have become simply a statistic, another young man locked up for life, with no chance of parole.  JWOP might as well be a death sentence.  How many kids like T.I. are behind bars in Colorado?  How many souls are being sacrificed upon the alter of misguided retribution, when a little true rehabilitation and mercy could have made all the difference in the world?

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?

According to a recent Denver Post article, Gov. Bill Ritter is set to appoint several judges to the bench, including a vacancy created by Supreme Court Judge Mary Mullarkey’s recent decision to step down.   StopDirectFile.org has to ask, “what’s the point?” What’s the point when the judges you’re appointing aren’t really allowed the full scope of decision-making power that Coloradans believe they ought to have? What’s the point when a prosecutor can make an extra-judicial decision that no judge can overturn?

The power to direct file charges against a child isn’t just procedural authority, it is judicial authority. In effect, when a prosecutor chooses to file adult charges against a child, he or she is choosing a sentencing range for that child and pronouncing their judgment on that child in open court. Legal precedent in Colorado is clear. According to Colorado Revised Statutes,”the authoritative expression of legal conclusions in declaring the sentence of the law…and the pronouncing of judgment in open court in the presence of those affected thereby, so as to bind and control persons and property” are judicial functions that “cannot be lawfully exercised, except by those entrusted therewith by the people under the constitution.” De Votie v. McGerr, 14 Colo. 577, 23 P. 980 (1890).

Most states preserve separation of powers in filing adult charges by holding what is called a ‘transfer hearing.’ During a transfer hearing, from juvenile to adult court, a prosecutor presents his or her evidence against an accused child. A defense attorney then has the opportunity to cross examine that evidence before a judge. Based on the presentation and cross examination of evidence, the judge then determines the appropriate venue for trying a child. But NOT in Colorado. In Colorado we presume a child’s guilt just enough to make sure that they face consequences as an adult. In Colorado we make sure that a prosecutor’s decision to file adult charges is not subject to judicial review. That’s wrong and Gov. Ritter’s appointments, as a result, have no real meaning.

I don’t know exactly how tall John Caudle is, but all anyone has to do is look at a picture to know that he wasn’t simply being sent to bed without dinner. The 15-year-old murder suspect who is on trial for defending himself against severely abusive parents only weighed 97 pounds when he was arrested. But according to prosecutors he killed his parents because he didn’t want to do his chores.

So let’s put the facts in context. A healthy weight for a 15-year-old male who is 5 foot, 1 inch tall is 123 pounds…at the low end.  According to MotherJones.com, Caudle is almost 6 feet tall. At that height, Caudle should have weighed at least 147 pounds. If he were healthy, he might have weighed as much as 187 pounds. The only fact that the jury in Caudle’s trial really needs to be concerned with is that Caudle was being systematically starved.

What enrages me is that had Caudle died of malnutrition or starvation, his parents might have only gotten 16 years for child abuse resulting in death. And yet, if convicted in adult court under direct file provisions, Caudle could get as much as 80 years for defending himself.

All of this leads into a wider problem: According to ChildWelfare.gov, “Colorado [has an] estimated…50 percent to 60 percent of child deaths resulting from abuse or neglect [that] are not recorded” that way. What that means is that Colorado’s prosecutors simply aren’t enforcing child abuse laws.  Maybe if Colorado’s prosecutors were less focused on convicting kids for defending themselves and more focused on tracking down and prosecuting abusive parents, we could eliminate parricide in Colorado.

I guess prosecutors would rather spend millions of taxpayer dollars to incarcerate a kid for life than actually work to protect him and end the cycle of violence.  Apparently, it’s just more politically expedient to nail a kid whose friends can’t or don’t vote than it is to adhere to your own ethical standards.