The Carnage Continues

Hearing for teen accused of murder is held – April 2013.

Colorado Case Referenced in TownHall.Com Article About Supreme Court Ruling Against Mandatory JLWOP

Life Terms for Teen Killers: Neither Cruel Nor Unusual

Jeff Jacoby  Jul 16,  2012

IN A COLORADO TOWN in 1996, Verle Mangum bludgeoned Janet and Jennifer Davis to death.

Janet, a 42-year-old nurse’s aide, had come home from work and discovered Mangum, then 17, having sex with her 11-year-old daughter, Jennifer. When Janet reached for the phone to call the police, Mangum picked up a baseball bat and fatally bashed her with it. He then used the bat to murder Jennifer as she cowered in the bedroom.

A jury eventually convicted Mangum of both murders. Under Colorado law he was given a mandatory sentence of life in prison without parole. In 2007, when the convictions were upheld on appeal, the prosecutor expressed relief. “This was one of the most heinous crimes in the history of our community,” District Attorney Pete Hautzinger told the Grand Junction (Col.) Free Press. “It is very gratifying to know for sure that he will be staying in prison for the rest of his life.”

But that’s no longer a sure thing — not after the Supreme Court’s 5-4 ruling in Miller v. Alabama last month that the Eighth Amendment’s ban on “cruel and unusual punishments” does not allow states to mandate life without parole for murderers who were minors when they committed their crime. Mangum, like at least 2,000 other juvenile killers serving mandatory life terms, including more than 60 in Massachusetts, will now have to be resentenced. The families of murder victims nationwide have now lost the reassurance that their loved ones’ killers would never be turned loose. Survivors may be forced to testify all over again. There is no telling how many monsters like Mangum will end up serving less — perhaps much less — than the life sentence the judge and jury imposed.

Hautzinger, outraged by their decision, said its impact would be “inhuman.” And when Mitt Romney held a town-hall meeting in Grand Junction last week, the DA showed up and asked him to comment on what the Supreme Court had done. But Romney sidestepped. He said only that he would “look at the particular case,” and that he favors “swift and severe punishment” for serious crimes.

What Romney should have said was that the court’s ruling was illogical and indefensible — a textbook case of justices turning their personal preferences into constitutional commands.

There is nothing uncommon about laws requiring life without parole for juvenile murderers, so such punishment can hardly be barred by the Eighth Amendment. As Justice Elena Kagan’s majority opinion concedes, legislators in 28 states plus the federal government have enacted laws mandating that penalty. Courts have meted it out thousands of times. Liberals may disapprove of mandatory “true life,” but it plainly isn’t unusual. By definition, therefore, it isn’t “cruel and unusual.”

Miller marks the third time in recent years that the Supreme Court has invoked “evolving standards of decency” to rationalize a new constitutional barrier to punishing minors convicted of terrible crimes. In Roper v. Simmons 2005), the court outlawed the death penalty for any criminal who was under 18 at the time of his offense. At the time, the majority observed that “life imprisonment without the possibility of parole” would remain an option. Yet now, in what the dissent calls “classic bait and switch,” the court tells states they may not insist on that option.

In Graham v. Florida (2010), meanwhile, the court ruled that juvenile offenders could not be sentenced to a lifetime behind bars for any crime but homicide, no matter how violent. (After all, said the court, “there is a line between homicide and other serious violent offenses.”) But now five justices declare that mandatory life sentences are unconstitutional for youthful killers too. And it’s only a matter of time, they hint broadly, until even discretionary life-without-parole is struck down.

In all these cases, the court has leaned heavily on social science and psychiatry. Since adolescents tend by nature to be more reckless and impulsive than adults, the majority argues, they cannot be assigned quite the same “moral culpability” for their deeds.

As a general rule, that’s obvious; it’s why the law distinguishes between adults and minors in the first place. But why should policymakers be prohibited from recognizing exceptions to the rule, and treating juveniles as adults in certain extreme circumstances?

Suppose, to go back to that terrible day in 1996, a 17-year-old had burst in on Mangum and prevented him from murdering Janet and Jennifer Davis. If public officials then wished to reward that teen for his life-saving courage, no one would suggest that the honor be diminished on the grounds that the hero’s adolescent brain didn’t fully grasp the significance of his valiant behavior. Most Americans would regard it as similarly unreasonable to suggest that any juvenile who acts with criminal depravity must be too mentally immature to understand what he is doing.

Supreme Court justices may personally disagree, of course. But to turn their disagreement into a constitutional imperative? To wrap their subjective views in the authority of the Eighth Amendment? That is inexcusable, and Mitt Romney ought to say so.

STOP HB 1271 – March 2012

• Passage of this bill would make Colorado one of the most lenient states in
  the handling of violent juvenile offenders contrary to some of the statements made by public officials. Thirty-eight states, Washington DC and the Feds either have direct file for serious violent offenses, or statutorily exempt these cases from consideration by the juvenile court, or have a mandatory transfer to adult court – 38 states say the worst offenders who commit the most serious crimes shall be treated as adults.
• In Colorado, 80 to 85% of all direct file juveniles go to the Youthful
  Offender System (YOS), not adult prison. It is critical to understand that only juveniles who are charged and convicted as adults are eligible for YOS. House Bill 1271 will effectively strip YOS of recourses. Funds currently being allocated to YOS would be redirected from YOS and, instead, go to the additional processing and court costs associated with making it mandatory for all direct file to go through an adjudicated hearing. HB 1271 would strip this highly successful program, and ironically, will actually the very justice for juvenile offenders that proponents of this change claim they’re seeking.
  • YOS has the lowest recidivism rate of any correctional facility in Colorado and was created to house juveniles prosecuted as adults who commit class 2, 3, and 4 felonies.
  • NO OTHER STATE has a facility like YOS. This means comparing recidivism rates from other states to Colorado is extremely misleading.
  • A sentence to YOS is typically for 5-7 years and for serious violent crimes that an adult might serve 20 – 40 years for in DOC. Only if the juvenile fails to complete the YOS program will he or she be subject to a lengthy sentence to DOC. Offenders who complete YOS will likely leave the facility with, at a minimum, a high school diploma and most likely some college credit.
  • There were a total of only 61 direct files out of 9,7000 juvenile cases last
    year

Sneaky Tactics in Colorado

The last week of March 2011 in Colorado saw a lot of antics around HB 1287, that would retroactively offer parole to convicted murderers sentenced to life without the possibility of parole, and without victims being notified.

No notice was given to the victims families that would be the most affected by the legislation or to the Law Enforcement most familiar with the cases. Even despite this sneak attack, which signalled the weakness of the juvenile advocates’ argument that they did not want all the stakeholders notified, the bill was duly defeated in committee on March 29, 2011, after an agonizing 5 hour hearing. The next day with heavy pressure put on Freshman Representative Duran who voted no on this probably unconstitutional bill in recognition also of how victims had not been notified, she tried to flip her vote. Law enforcement, District Attorneys, those concerned with public safety, and worst of all, murder victims families were once again left hanging while the political football was tossed around. Through a totally back door political manuver, even though the bill lost in committee, Rep. Nikkel and Levy, the sponsors, tried to push it out to the House floor anyway. Fortunately, their attempts failed.

We cannot stress how strongly we object to the dishonest tactics being used by those advocating for the offenders that murdered our loved ones.

Rep. Duran took time to call NOVJL and we appreciate this, and respect how she is struggling with this issue. No struggle is necessary, however, because when courts give a long due process to a convicted murderer, and a final determination is made of natural life for a horrific murder, only a Governor through clemency can undo that. Not legislatures. Duran  stated to us that she wished to see the constitutionality tested so that this matter could be resolved for once and for all, but she also made it clear that she opposed life sentences for 17 year old offenders, no matter if they were mass murderers or not. She is a young first term representative and should receive calls of support to stand as she did at the hearing in her original vote with victims and the constitution.

Rep. B.J. Nikkel, the co-sponsor of HB11-1287 and the lone Republican on the Judiciary Committee who sponsored the bill and voted to pass it, received $800 in campaign contributions from convicted murderer Erik Jensen’s parents in 2010 and another $300 from Mary Ellen Johnson, the Director of the Pendulum Foundation. She also received hundreds of dollars in donations from other individuals named Jensen, who we cannot verify as members of Erik’s family. There may be more money donated to her from that offender community that we cannot trace. We are troubled by this seeming conflict of interest – taking money from family members of convicted murderers and then sponsoring and pushing legislation to release the offender early.

Read Denver Post coverage.

HB 1287 Defeated in Committee

Tuesday, March 29, 2011 in the Colorado House Judiciary Committee, HB 1287, that would have retroactively offered parole early release opportunities to convicted murderers sentenced to life without parole for killing people prior to reaching the age of 18, was defeated 6-5. The bill is now defeated for this session. The five hour long hearing was intensely emotional and contentious. Legislators voting on the bill reported that it was among the most difficult votes of their political careers.

Only two victims families of those murdered by the 48 cases of “Juvenile Life Without Parole” were able to appear at the hearing in oposition to the bill that was held with almost NO notice. This “sneak attack” strategy by advocates against JLWOP obviously failed when the bill went down, and many present expressed anger and frustration that the other victims families could not be found with only two days notice of the bill being called. A few other families were able to send in emails, and legal concerns about violations of the Colorado Victims Rights Amendment were cited.

Some victims, including Sharletta Evans, mother of one of the murder victims killed by a “juvenile lifer” spoke in favor of the bill, citing her work with teens in gang violence prevention in moving testimony, telling how she had been changed by the pleas and apologies of the mother of the offender.

Prosecutors testimony about the actual facts of the crimes, as well as legal testimony from the Attorney General’s office that the constitutionality of this retroactive legislation was highly questionable and would likely be battled all the way to the Colorado Supreme Court where the bill could be completely overturned even if it were passed, carried the day.

Thank you’s can be delivered to these heroes for victims:

Mitch Morrissey
Denver District Attorney
201 West Colfax Ave
Suite 801
Denver CO 80202

Michael Daugherty
Attorney General’s Office
1525  Sherman Street
Denver CO  80203

Steven R Siegel
Director, Special Programs Unit
Denver District Attorney’s Office
720-913-9022

Joe Cannata, Voices of Victims

Legal Analysis Regarding the Unconstitutionality of HB11-1287

Attorneys testifying before the Colorado House Judiciary Committee showed how the bill is unconstitutional:

• HB 1287 is unconstitutional on its face as violates the separation of powers by allowing the legislature to improperly usurp the power of commutation expressly reserved to and possessed by the Governor under Colorado law.
• Art IV, Sect 7 of the Colorado Constitution provides that, “The Governor shall have the power to grant reprieves, commutations, and pardons after conviction, for all offenses except treason.
• In People V. Herrera, the Colorado Supreme Court held that the power of commutation –which is at issue in this bill – is the power to reduce punishment from a greater to a lesser sentence.
• Herrera firmly established that the correction of any inequities and injustices in sentences is a power that belongs to the Governor in Colorado.
• Just as the Herrera court found that nowhere does our constitution vest the power of commutation in the judiciary in that case—neither does it vest that power in the legislature here today.
• Further, there is no merit to the argument that this bill does not reduce and create lesser sentences.  In fact, the reduction of these sentences by legislative fiat is exactly why these victim’s family members are here in opposition to this bill.
• In Graham V. Florida – the U.S. Supreme Court in 2010 – held that life without parole is second most severe penalty permitted by law and that life without parole shares some characteristics with the death sentences that are shared by no other sentences.
• Both the Nebraska Supreme Court (State v. Gales – 2003) and the Pennsylvania Supreme Court (Commonwealth v Sutley – 1977) have definitively determined that life without parole is a different and more serious sentence than life with the possibility of parole.
• Accordingly, changing a sentence from life without parole to life with the possibility of parole clearly creates a lesser sentence and in Colorado only the Governor can do that once a conviction is final.

The Bill violates the promises made to victim’s families, breaches the public trust in the judiciary and truth in sentencing and potentially violates the Victims Rights Act.

• In many ways, the most disturbing aspect of this bill is that is dismissive of the impact on victims and breaks a series of promises they were made by both the judiciary and the prosecutors in their cases.
• This bill unravels the presumed certainty that victim’s families were promised by the court and by prosecutors upon the final convictions of these murderers.
• It should be noted that several of the witnesses testifying against this bill were also here in 2006 when that legislature also promised them that their cases would not be impacted by any retroactive reduction in sentences.  While this legislature is certainly not bound by the promises made in 2006, it should respect them and acknowledge why they were made.
• There are also serious ramifications relating to the Colorado Victims Rights Act.  The clear intent of that constitutional amendment is to ensure that any victim’s designee or family member who wants information about critical stages in their cases is ALWAYS informed and given a right to be heard in a meaningful way.
• The reduction of a sentence or any proceeding that contemplates such an impact on a sentence is undoubtedly a critical stage in the criminal justice system whenever the judiciary, the Governor or a prosecutor makes such a decision or engages in any such hearing or process.
• Because this bill injects the legislature into the fundamental workings of the criminal justice system by usurping the Governor’s authority to commute sentences, the VRA is triggered.  In short, if the legislature wants to play in the criminal justice arena by reducing sentences, it must play by the same rules.
• Legally it is unsure how this would work or who would have to notify victims. No one ever contemplated the legislature attempting this type of intrusion into the criminal justice system. But the basic concept has to hold true to the intent of the VRA: Victims have a right to know when something like this is being contemplated.

You can contact your Colorado Legislators at this website to express your concerns about the issue.

Colorado House Bill (HB) 11-1287 was sponsored by Rep. Claire Levy (D) 303-866-2578 [email protected] and Rep. B.J. Nikkel (R) 303-866-2907 [email protected]. The Senate Sponsor is Sen. Linda Newell, 303-866-4846 [email protected].

The final vote, bi-partisan on both sides in the Colorado House Judiciary, on HB11- 1287 went as follows:
No vote – for victims and law enforcement or siding with legal concerns about the unconsitutionality of the proposal, legislators cannot undo final sentences, only the Governor can legally: DelGrosso, Duran, Sonnenberg, Waller, Barker, B. Gardner (chair)

Yes vote siding with allowing for early release of convicted killers sentenced to life without parole, and knowing that most victims families of these crimes had not been notified of the hearing today:  Kagan, Lee, Levy, Nikkel, Ryden

Advocates for the Killers Violating Victims Rights

The advocates at the Pendulum Foundation who have led this push to free teen killers sentenced to life had been promising all along that they would always include, inform, and be sensitive to the victims families of these cases.

Apparently they no longer intend to be true to their word. In March 2011 we heard of new legislation, HB 1287, that would retroactively parole these offenders. And the victims families of the 41 cases have NOT been informed of the hearings being held on March 29 in the state capitol on the bill that would so profoundly affect them.

They told NOVJL directly in March 2011 that they were “weary” from victim opposition, and intended to go ahead without including them in these hearings. (We believe we are the only ones in this equation that have a right to be weary.)

NOVJL has notified the 3 families there we know of, but the prosecutors were given only 48 hours notice of the hearing. “Sneaking” a bill through to us means that the advocates are afraid of what opposition will say. They must be afraid they cannot win this debate on its merits, and so have opted to hold hearings and push bills through that will seriously re-traumatize victims families and that they have no knowledge of, or say in.

Victims have RIGHTS in all 50 states and federal law. These rights include the right to be notified of, and heard in, all legal proceedings that affect the sentence of the offenders in their cases.

History of Teen Killer Advocacy in Colorado

Colorado was the first state in the USA to pass legislation ending life without parole sentences for teen killers, but they did it in an appropriate way legally – they ended it only prospectively, that is, for future cases.

Prospective changes in the law do not violate victims rights at least, whether you agree they best serve public safety or not. Many of us believe that life sentences for some of the most serious murders in the nation, even if the offender is 16 or 17, or in rare cases 15, should be available, but not mandatory.

There are 48 cases of teens reportedly sentenced to life without parole for truly horrific crimes still serving their duly earned life sentences. It is a rarely given sentence. Many teens that commit violent felonies, even murder, are not charged as adults and are not serving long sentences in Colorado. Prosecutors exhibit significant discretion in charging these cases and reserve life sentences only for the most heinous.

Since retroactive changes in the law entirely violate victims rights and probably are unconsitutional as well, the legislation passed there also created a special juvenile lifer clemency commission to examine the current 48 cases to see if any of them might merit a sentencing reduction for a possible over-sentencing originally.

Victims Wishes

The Pendulum Foundation, the ACLU, and other advocates testifying for HB 1287, also told emotionally charged stories of incarcerated offenders who had turned their lives around behind bars and said how they deserved a chance for redemption. They wore stickers that read “Hope”. Some offender family members sobbed uncontrollably, in contrast to the stereotype that its always the victims families that are “too emotional”. No one listening could not help but feel tremendous compassion for both “sides”.

The “hope” they have is for release from prison of those who committed murder. Our “hope” is for some legal finality in our cases, that one day the offenders who imposed themselves so destructively into our lives will finally -one day- be something we do not have to be constantly thinking about and dealing with.

Tragedy pervades every aspect of this issue. Always has – we know this. No matter what position you take.

Our advice to advocates against JLWOP:

1. Turn your work towards using the special clemency review that these 48 cases get every three years to get relief for the most clearly rehabilitated offenders.
2. A good case was made in these hearings that the felony murder statutes may need reforming in Colorado. Get to work on that.
3. Never ever again try to have this conversation without all the victims families being treated in a way that fully respects each and every one of their rights as victims of crime and their strong emotional need to be heard and included, not to mention their right to some legal finality in their cases. You all now have some “fence-mending” to do with the victims community and specifically the victims whose rights you violated with this hearing.

Our question for supporters of HB 1287: The hearing showed great compassion for those who committed horrible crimes as youth, something you acknowledged over and over at the hearings. Yet you made the conscious decision to not show the same compassion for the victims families left behind in these heinous crimes. How can you have so much compassion for killers but not for their victims? We really want to know.

Stopping HB 1287

Download the letter we sent to Colorado Legislators in opposition to hearings being held on this bill without victim notification.

The Pendulum Foundation and the other advocates for HB 1287 must cease ALL forward motion on this bill until they have found and notified the victims families of these cases that they are proposing to retroactively change.

Our challenge to the advocates in Colorado at the Pendulum Foundation and other supporters of HB 1287:

What are you afraid of? The truth of these crimes? The true stories of the victims? If your bill has merit, it should win on the merits. If you cannot win a public policy debate with all the stakeholders at the table, and all victims rights respected, then you do not deserve to pass this bill.

See our Offender Pages in Colorado for a complete list of ALL of these teen killers sentenced to life and how they murdered their victims.

Read the Heritage Foundation’s Blog on proposed legislation in Colorado: