NOVJL Board members Jennifer Bishop Jenkins of Illinois and Jody Robinson of Michigan pictured below outside the office of Congressman Bobby Scott at the U.S. Capitol. Jennifer and Jody met with the Congressman to discuss his federal legislation that would have taken away federal crime funds from any state that did not offer parole retroactively to those sentenced to life without parole for crimes committed before they were 18 years of age. Hearings were held on the federal legislation, but it failed to even pass out of committee. To date, the federal legislative attempts to address JLWOP has not been reinstated.
Download NOVJL’s testimony before the United States Congressional House Crime Subcommittee on June 9, 2009 regarding HR 2289.
Hearings were held on a similar bill, HR 4300, in 2008, but victims and law enforcement or prosecutors were deliberately excluded. Only offenders and offender advocates were allowed to speak or informed of the hearing.
So we began to monitor the committee’s hearing schedule, and when the next hearing was announced, we called and asked Congressman Scott to include us on the panel. He refused, so we went to the House Crime Subcommittee Minority leaders, Rep. Louis Gohmert and Rep. Ted Poe of Texas (who is, notably, also the Chair of the bipartisan Congressional Victims Rights Caucus) and they arranged for NOVJL to be able to testify against HR 2289.
We are deeply grateful to Congressmen Gohmert and Poe for their kindness to us. They understand and care about the agony that murder victims families go through. We are concerned that Congressman Scott does not seem to share their compassionate and larger view of the impact of these crimes.
We are also very grateful to our heroes and allies in the prosecutor community. Download Congressional Testimony from the National District Attorneys Association (NDAA).
View the entire 90 minute committee hearing and hear full testimony on HR 2289, including victim testimony from NOVJM. Read our testimony below.
There was no support for the bill and it never even passed out of committee, and has not been reintroduced to date that we know of.
My name is Jennifer Bishop‐Jenkins and I am one of the founders of the National Organization of Victims of “Juvenile Lifers.”
In 1990 my sister Nancy, her husband Richard, and their unborn child were brutally murdered in Winnetka, Illinois by a young man four weeks before his legal adulthood. He planned the murders alone ‐and reportedly did it for the “thrill” of it. He shot Richard in the back of his head, and then turned the gun on my beautiful young sister, who begged him not to kill her baby. He fired directly at her abdomen – exploding the baby ‐ leaving Nancy bleeding to death. Nancy’s last act in life was to draw a heart and a “u” in her own blood.
I have devoted the relative peace and legal finality that his three natural life sentences brought us to the prevention of violence and advancing human rights.
And I have come here to tell you that the bill before us is deeply flawed.
It is the antithesis of due process and a violation of fundamental victims’ rights to even consider retroactively changing life without parole sentences without informing and involving the victims.
Our family’s experience illustrates the rank unfairness.
We were promised life without parole by a judge who chose to exercise a discretionary Life sentence for such a heinous crime because of his privileged upbringing and complete lack of remorse.
Relying on that promise, we believed this part of our ordeal was over.
We don’t have transcripts of the sentencing. The court reporter with his stenographic tapes cannot be found.
We can’t contact the jurors.
My father –the best witness to the carnage of the crime scene – has died.
We can’t get statements from prosecutors, evidence technicians, and police who had direct contact with the case.
Witnesses cannot now be found, such as Nancy’s next door neighbor who heard her terrified pleas for help, and the friend of the killer to whom he confided details of the awful crime.
All that we could have gathered to arm ourselves for a parole hearing someday is lost.
Lost because we were promised that parole or early release for this killer was not possible.
This is a sickening bait‐and‐switch.
I have used my own limited resources to notify a few other victims of this well‐funded national effort to free these killers. All were told the same thing.
“Don’t worry; this guy can never get out.”
This new uncertainty renders our situation entirely different from other victims like Linda White’s(whose story you will hear in a few minutes).
Though she and I worked together for a long time as fellow murder victims devoted to human rights, I am sad to say she literally has no standing in this specific discussion because her offenders did not receive this sentence.
The temerity of anyone to propose something that so profoundly affects us without notifying us is appalling.If you have not gone through it, you cannot understand the impact of the proposal before us.
Parole hearings are incredibly re‐traumatizing and deprive victims of legal finality. To re‐open this pain‐ every three years, for the rest of our lives, and perhaps those of our children ‐ is quite literally TORTURE.
Proponents of this legislation will be hard pressed to produce ONE victims’ family like ours where the offender had no relation to the victim, who wants to endure a lifetime of parole hearings.
They will no doubt give you some rare legitimate stories of injustice that ‐ like all problems in the criminal justice system – can be addressed. But we can easily well outmatch them with horror stories.
• 12‐year‐old Victoria Larson’s killer dug her grave three days before raping her and killing her. He had already been given his “second chance”, and was out on a juvenile parole that he used to rape and murder her.
• And the 16‐year‐old, who took a 5‐year‐old girl into an abandoned housing project, raped her,
then threw her out a 14‐ story window. As she clung with fingertips to the windowsill screaming for her mother, he went to the window and lifted off her hands, sending her to her death.
This is NOT impulse.
It is callous disregard for human life ‐ with cool advance planning ‐ by people old enough to know that killing is wrong.
I note this room isn’t filled with the victims’ families of these crimes.
It is not because they do not care. It is because no one has bothered to tell them you are doing this ‐ despite our pleas to this committee for victim notification and our pleas to the advocates, who have spent millions supporting the offenders,that they devote a nominal portion to reaching out to the victims’ families of these crimes.
My written testimony will detail other important issues pertaining to this legislation.
• How brain development research is being misapplied.
• How a one‐size‐fits‐all parole mandate cannot work when each state has a different sentencing scheme, including half with determinate sentencing, and many with no parole structures at all.
• Ways that the “juvenile life” sentence could be “reformed” without any negative impact on
We need a real conversation about reforming the process ‐ before the filing of any more such legislation ‐and with ALL the stakeholders at the table.
In the meantime, this bill as it stands, only transfers the life sentences from the guilty offenders to the innocent victims’ families left behind.
II. Short Bio on Mrs. Bishop‐Jenkins
Jennifer Bishop‐Jenkins is the sister of Nancy Bishop Langert who, along with her husband Richard Langert and their unborn child, was brutally shot to death in a highly publicized and calculated torture and “thrill kill” murder in Winnetka, Illinois in 1990. The offender is now serving three life without parole sentences in the Illinois Department of Corrections. Inspired by Nancy’s final message of love ‐ scrawling a heart and “U” in her own blood as she lay dying ‐ Jennifer has been a tireless advocate for violent crime victims, troubled youth, Restorative Justice and Human Rights, and violence prevention.
In 2007 Jennifer, and several other murder victims’ families in 8 states, that found each other through their own efforts, co‐founded NOVJL, the National Organization of Victims of “Juvenile Lifers”, to protect victims’ rights in the discussion about teenaged murderers tried as adults and sentenced to life without parole for killing their loved ones.
NOVJL seeks to respect all victims’ rights of the families of these crimes to be fully present, if they so choose, at the policy discussion table fully in any legislation that would retroactively change the natural life sentences being served in their loved ones’ murder cases. NOVJL also seeks to call attention to the significant resources being expended on the convicted murderers, most of whom are guilty and often unrepentant of some of the most horrific and aggravated murders in the nation, by various non‐profit organizations who support only the offenders, while no resources have been devoted to find, inform, support, educate, and listen to the victims’ families of these crimes.
Jennifer has received several awards from humanitarian organizations, such as CONCERN Worldwide and the Rainbow PUSH Coalition, for her work against violence and for restorative justice and victim‐ related issues. She travels the nation speaking in workshops alongside her husband Bill Jenkins, also the father of a murder victim, who is a university professor and the author of the acclaimed book WHAT TO
DO WHEN THE POLICE LEAVE: A Guide to the First Days of Traumatic Loss (WBJ Press).
After retiring from a 25 year high school teaching and administration career, Jennifer worked as a National Program Director for Victims and Survivors of gun violence, and has served as an advisor and on several national and international boards of directors of victim organizations, including Murder Victims Families for Human Rights, and the National Coalition of Victims in Action. She serves on the National Leadership Council for Crime Victim Justice, and founded IllinoisVictims.Org. Jennifer is a member of the Advisory Board to the bi‐partisan United States Congressional Victims Rights Caucus
III. WHY NOVJL OPPOSES HR 2289
We do not oppose all reforms, either to JLWOP (the juvenile life without parole sentence) or to the Criminal Justice system.
We stand for Victims Rights. We stand to be fully notified of and included in any retroactive proposal that would change the life sentence of the offenders in our cases.
First, Victims are genuinely IN DANGER from this particular proposal.
Many offenders, if released, would go right back to where their victims were, and either seek vengeance or cause a highly volatile situation to become worse. Victims have a right to be protected from such threats.
One example: the national automated victim notification system, now in place in over 43 states, run with government contracts by Appriss Technologies of Louisville, KY, was founded by a family whose daughter, a domestic violence victim, was killed within ONE hour of her offender’s release from prison. She was supposed to have been notified if they were to release him. They did not, and she was dead almost within minutes of his release. This case lead to the creation of the SAVIN system of automated victim notification. And there are, sadly, thousands of other examples.
And second, we oppose ANY periodic review model that would require victims’ families to regularly re‐ engage legally with the offenders in parole hearings. This re‐traumatization is torture, literally, to victims’ families.
There are many ways to reform and address any concerns with this sentence without balancing the bulk of the reform primarily on the backs of the victims.
Regular parole review is the WORST possible “solution” to this perceived “JLWOP problem”.
Advocates and officials who have any concern that the laws are currently inadequate to protect the special considerations appropriate for younger offenders.
IV. VICTIMS ARE KEY STAKEHOLDERS
In the national debate generated by advocates for these younger killers, we are here primarily for one reason only ‐ to assert our right to be included in the discussion ‐ something, surprisingly, that generally is not happening.
In the several states where there are proposals to abolish JLWOP, victims’ families of those crimes have not been found and informed and supported to be part of the discussions. In fact, they have often been even deliberately ignored, excluded, or in some cases outright demonized.
Victims of these crimes are a relatively VERY small population of people who could be easily found, for the most part, by a few weeks of work by clerical level employees of prosecutors’ offices.
Resources to do this MUST accompany any proposal for retroactive change to a sentence such as LIFE WITHOUT PAROLE that victims walk away from believing and told is permanent.
Victims for the most part in LWOP cases do not even register for victim notification in their states because they are told or believe it is not necessary in their cases.
This single fact alone requires an extraordinary response by anyone who wishes to retroactively change LWOP.
Some legal experts tell us in fact that retroactive changes in LWOP may be legally so problematic in most cases as to make them nearly impossible.
In any such significant public policy discussions, such as what to do with the “worst of the worst” among us, no key stakeholders should be kept away from the table. The Victims of these crimes are, without a doubt, key stakeholders.
We were made as such through no choice or fault of our own by the very offenders that the advocates to end JLWOP are now working so hard to defend.
V. MYTHS AND FACTS ABOUT JLWOP
Many advocates for the offenders now serving JLWOP sentences have made some fundamental errors,we feel, in the early years of their movement to reform the JLWOP sentence across the nation. Painful as it has been for us victims of these crimes to reading the many well‐funded and published materials from the offender advocates, there is an inaccurate picture of the whole situation being put out we feel an obligation to correct:
- MYTH: That the real “problem” with the whole JLWOP situation is the age of the offender.
FACT: The real problem is that someone, or several someone’s are dead ‐ murdered ‐ and that an offender or offenders chose to commit acts of unspeakable evil against other innocent living human beings.
And there is nothing but devastation in the wake of a murder.
What is at issue in all these cases are horrible, horrible murders and in all these cases tragedy surrounds the entire scenario. The problems go SO much deeper than just the age of the offender. Advocates against JLWOP need to do a much better job of embracing the full complexity of all these cases and talking about the CRIMES, not just the age of the offender. Reading their materials one could almost miss that these offenders are all convicted murderers, no matter what other circumstances surround the cases.
2. MYTH: We solve this “problem” with a discussion focused on the offenders in prison.
FACT: We solve this “problem” by focusing on the crimes, the larger social and criminal justice picture, the staggering and life‐changing harms done (to victims) in these tragic situations, and the need to prevent violence in our society.
The focus of those who support HR 2289 has been, up to this point, almost entirely offender‐centered.
And their messaging has been too much about “the poor kids in prison”. This will not help them build the broad public support needed to make fundamental changes in law. They need to change their approach to one built on not only strong partnerships with law enforcement and violence prevention professionals, but to one that is all about inclusive restorative justice principles.
Restorative Justice is an approach that addresses the harms caused the victims. The victims and accountability for the crime is the focus. Some offender advocates have attempted to hijack the restorative justice process and turn it into something that is simply this: the victim forgives and the killer gets out.
That is not restorative justice.
Restorative Justice is incredibly hard work – a long, slow process that is RARELY even possible because both offender and victim have to be BOTH willing and able, and there has to be an infrastructure to support it.
And Restorative Justice is not possible in these kinds of crimes in PLACE of the criminal justice system – when it happens it is only in addition to the legal system.
And victims, the key stakeholders, are completely at the table, where they choose to be, in any public policy discussions about the sentence being served by the offender.
- MYTH: The offenders in these cases are CHILDREN.
FACT: 53% of all the offenders serving what these offenders called “juvenile life without parole” were 17 at the time of their offenses ‐ hardly “children”. And 17 in many states is the legal age of adulthood anyway.
The vast majority of the remaining (about 35%) were 16. Only the smallest numbers of cases ‐ and the ones they of course love to publicize the most ‐ were younger at the time of their offenses ‐ single digit numbers.
Legally every one of these offenders was found in a court or by state law to be legally an adult. Many states define adulthood at 17 or even 16. States vary on ages assigned for adult criminal culpability.
And while the American Criminal Justice system can and does make errors, and needs reform in many areas, the debate about their being “children” or not is not one in American Law ‐ it is in international standards set up against the expertise of those closest to these crimes – and the experiences of those who actually participated in the crimes themselves.
Neither “side” is wrong but they both come from a very different perspective and valid perspective on what is factually so. Many of us judge “children” versus adult in the context of their own individual abilities, maturity, choices, and behavior.
It is clear that horrific murder cases call for extraordinary case by case examination of the individual facts of the case and the culpability of the offender. “Bright lines” drawn normally by the law must be set aside to look instead at the facts of the powerfully important individual circumstance of each such brutal crime.
Most of the JLWOP cases are from the 1990’s and are gang members, most with previous records of violence, often having been previously imprisoned as juveniles for violent crimes, even murder. States define adulthood by age differently ‐ for many states it is, indeed, 18. But for other states it is 19, 17 and even 16. JLWOP conviction have dropped dramatically in the last decade now that much of the gang leadership infrastructure has been locked up, and much better prevention mechanisms have been put in place.
Also, advocates who continually call them “children” need to consider the impact of this argument on the victims of these crimes, not just use it for its propaganda impact on the public, and publishing pictures of the offenders (as they have many times) when they were MUCH younger than when they actually committed the crimes. Calling these murderers “children” constantly in their advocacy work is incredibly emotionally troubling to many victims’ families ‐ some have described it to us as a dagger into them each time the offender is called that. It is worst when the actual murder victim was a REAL child. Many of these cases were 17 year olds killing, for example, 5 year olds. To hear the offenders called “children” all the time to the mother of a murdered young girl is beyond painful.
“Children” is not a term teens themselves would accept. Those who use this term to describe these offenders are only using it for one purpose – to paint an inaccurate picture of the crimes to propagandize for support for the offenders.
The most accurate is the legal term juvenile, or the social terms teen, youth, or adolescent. Their basis for using the term is derived from the International Treaty of the Child which applies to those under 18. But the political and legal messaging in the United States needs to be applied in ways that are meaningful to our system
- MYTH: The ages of the offenders is not considered in their legal process.
FACT: In most states there are layers of review afforded these offenders that are extra and aimed to look at the factors associated with their ages. Also, there are often extra avenues of appeals open in their cases. Many teens that are guilty of murder do not end up in the adult system in the United States. There are also processes in place in courts and in prosecutors’ offices that review and evaluate appropriate charges and avenues of prosecution to the individual situation and often there is some discretion afforded prosecutors and judges in these cases. However, we do agree that one possible area of examination for reform might be in the areas of the law where mandatory transfers to adult court are less flexible and allow for less discretion by expert judges and prosecutors who are familiar with the
individual facts of the case.
- MYTH: Many of the JLWOP cases are innocent of their crimes.
FACT: Most of the offenders serving JLWOP sentences are guilty of their crimes, and were the actual “trigger men”, though some are convicted as direct accomplices with equal legal responsibility. A smaller percentage of the JLWOP cases were accomplices, serving life for felony murder counts. But it is important to consider, if the proposal becomes to reform the felony murder counts for JLWOP, that there are actually some cases where accomplices could be seen as even more culpable than the “trigger men” if they directed or ordered the shooting, as is often the case in some gang killings. In fact, any proposal that would lessen juvenile penalty for murder like this ACTUALLY ENDANGERS any potential juvenile offenders more because it will most certainly increase the number of older gang members who order the younger members to commit the crimes. Ask any law enforcement official who works up close with these situations.
Keeping the penalties the same based on the ACT and culpability of the offender, and not just the age of the offender, actually serves to protect many juvenile gang members from serving out their lives in prison by removing the incentive to send them to do the dirty work for the older gang members.
- MYTH: One of the favorite arguments of those who want to abolish JLWOP is that the brains of these offenders are not fully developed, and therefore they are not fully culpable.
FACT: The argument of the brain’s frontal lobe development is generally not applicable in these matters.
Yes, recent studies show the frontal lobe of the brain continues to develop into the 20s. But if this argument were all that was relevant, no one should be allowed to do anything ‐ drink, join the military, own a gun, drive, marry, sign contracts, vote, until they were close to 30. And legal culpability for all crimes as adults would have to be raised to 25 at least.
In fact, people learn right from wrong at a very young age and have the ability, generally, at a very young
age to conform their behavior to what they know is right and wrong.
Moral and emotional and cognitive development is by far advanced enough in early adolescence, if not before, to adequately keep anyone from killing another human being. The fully aware CHOICE to kill, knowing full well that killing is illegal and immoral with permanent life consequences, is often completely demonstrable in most of these cases.
The real issue in SO many of these cases, tragically, by the way, is the easy access the young offenders have to guns. In this way, all American lawmakers who support easy access to guns are responsible for the high rate of murder committed by our teenagers compared to other nations. No one under age in the United States should be able to access a gun except under direct adult supervision for legal purposes such as hunting. And adults who allow them to access guns for illegal purposes are themselves culpable for what happens. Guns render the offender deadly from a distance, easily able to ambush the victim,and make them superior to any victim in physical force. Addressing the easy access to guns in this nation will do more to end the “problem” with JLWOP than any other step advocates could take.
- MYTH: Victims families will oppose any and all reforms and therefore should not be consulted in or informed of this discussion about the sentences of their offenders.
And there are some who argue that victims should not be informed of and included in this public policy discussion because they are too “emotional” and too adversarial, and unreasonably so.
FACT: First, Victims have a fundamental right in all 50 states and in Federal Law, either by Constitutional Amendment (33 states) or by extensive statute (all states) to be NOTIFIED of and HEARD in matters pertaining to the disposition of their cases. (www.victimlaw.org). Retroactive proposals that become law without victim notice and participation are, we believe, illegal based on those established rights.
Second, many of us who are victims strongly support some real reforms to the criminal justice system.
And NOVJL does not oppose, for example, the recent decision by the US Supreme Court to decide the JLWOP issue for non‐murder cases.
The principle of case by case decision‐making about which offenders should be held to which level of accountability, depending on the facts of the case, is one we generally support. We invite a national discussion about mandatory transfer of juvenile offenders to adult courts. We believe in extra layers of legal protection being afforded younger offenders, and encourage extra layers of review.
And even if we do not support abolishing JLWOP altogether because we know it to be sadly necessary in some cases, we have experience and evidence that has to be examined in the process nonetheless.
To proceed in a conversation about these crimes and their consequences without fully including those closest to the crime, the victims, is to enter the effort severely disabled, without access to all the information one would need.
We can actually provide evidence to the contrary about who in the process is overly emotional. We have found ourselves in recent hearings in several states that they emotion, hostility, and “unreasonableness” is all coming from the offender advocacy side, sadly enough. Contact us if you want specific and several examples, but we have yet to see a hearing on bills in state legislatures where the few victims “lucky enough” to know about the hearings and be able to attend, were anything other than honest in telling the facts of their cases and respectful of all present. And we have stunning and several examples of out and out hatefulness and rudeness openly leveled at victims’ families by advocates for the offenders ‐‐ including some legislators.
8. MYTH: That everyone convicted of murder deserves the sentence they get (this supports definitely the need for some reforms, and throughout the criminal justice system, not just for “juvenile lifers”).
FACT: We know, and often victims know this better than anyone, that the criminal justice system is not perfect. Many people in prison are fully innocent. Many are over‐sentenced or less guilty than whattheir sentence describes. Many guilty people go free, or are not sentenced as they should be. The”system” is far from perfect and needs reform.
And so while we all talk together as a society about what reforms we genuinely need to make, we must bring all stakeholders to the table ‐ and victims are key to that discussion. Offender advocates and family members cannot make the case for reform on their own. Everyone involved can bring much that will enlighten and inform to the discussion.
But the way to RIGHT these WRONGS is NOT by balancing the repairs on the backs primarily of the victims’ families and make across the board changes in how often they have to go back ‐ over and over ‐ to hearings on the sentence of the offenders in their cases. Victims deserve as much legal finality in their cases as they can possibly have.
The way to right the wrongs in ALL cases of error and injustice in the criminal justice system is to address each case, protect avenues of appeal, raise the standards for rules of evidence and review prior to going to trial, maximize quality defense resources, make sure penalties are appropriate to the crimes and situations, and make strong systemic reforms in all aspects of the criminal justice system, not just for this one group of offenders.
There are innocent and over‐sentenced men and women serving in America’s prisons of every age. That there is such massive attention being paid to 2400 cases of mostly guilty murderers, mostly 17 years old, because of their “youth” is a serious injustice for the entire vital movement for criminal justice reform in the United States. It raises questions about whether or not the younger killers’ cases are being exploited for mainly PR purposes, or because this cause is particularly capable of increasing the funding formorganizations who champion it.
- MYTH: That the JLWOP sentence is commonly and overly given.
FACT: The JLWOP sentence is almost never given. It is extremely rare and constitutes a very small number of cases nationally. Many juvenile‐aged murderers are never tried as adults, and most of those who are do not receive anywhere near an LWOP sentence. Considering the number of violent offenders in the United States, this is a very small issue. The few genuine cases of miscarriage of justice, an issue not limited to JLWOP but pervasive in the criminal justice system, can easily be addressed through opening new avenues of legal appeals and improving the executive clemency process. While it could be true that some states need to reform their mandatory transfer mechanisms by which juveniles can be tried as adults for serious crimes, explaining why some states have a disproportionately larger JLWOP population, these reforms can easily be accomplished without requiring devastated victims’ families across the United States to be re‐traumatized in constant legal re‐engagement with the offenders in unending parole hearings.
And to say that the United States compares so unfavorably with the rest of the world on this issue begs many questions, such as why aren’t we comparing our easy access to guns with other nations as an explanation? Why isn’t an effective life sentence that is a long term of years, and has the same net effect as a life sentence, being considered as a comparison? Why isn’t the overall percentage of violent juvenile offenders compared with the makeup of the rest of the larger prison population being compared across the board with the rest of the world? There are many aspects of the American prisonpopulation that when compared with the rest of the world shows some dramatic differences. These need to be seen in a holistic way as interconnected.
- MYTH: Offenders can be accurately judged as to their rehabilitation while in prison.
FACT: Such evaluations at best are an art, not a science, and often demonstrated, time after time, and all over the nation, can be sadly, and often tragically WRONG. The numbers nationally of repeat offenders, even violent repeat offenders, is staggering.
We have an obligation to keep our communities safe. And to assume that how an offender acts while in the confines of a prison is a good indicator of how they would act once free again is just irresponsible and silly.
- MYTH: Offenders in prison cannot have a “life”.
FACT: In fact offenders can still see family, learn, grow, experience spiritual awakening and comfort, be a friend and supporter to those both in the prison and outside, have relationships, laugh and experience pleasure, read, create and a whole host of other activities.
And we support fully prison reforms in all states that would better allow inmates who demonstrate rehabilitation to transfer to medium and minimum security facilities to serve their sentences, where warranted. This would allow them to work, earn money for their upkeep, their victims, and their families. It would allow them to educate themselves, build relations with the community in somem programs, and to mentor other troubled youth. This nation has a large prison population that needs to do MUCH more of this kind of thing. And often these transfers and programs actually pay for themselves many times over.
VI. VICTIM RE‐TRAUMATIZATION
The neurological information available to experts about the special way that traumatic memories are laid down in the brain for victims of violent crime is now well known.
Trauma actually opens up the brain, a survival mechanism that is deeply biologically ingrained in our species, to receive massive amounts of data quickly and in ways that are NOT stored like memories – there is not time and too much to store. So the brain simply rapidly absorbs it, and it is stored anywhere the brain can literally stick it into, in a primitive, powerful and disorganized fashion. And ANY prompt (a familiar smell, someone who looks like their loved one, or the killer, or any other reminder) can much easier re‐awaken that trauma because of the way it is stored in the brain.
When such memories are re‐awakened they do not FEEL like memories – because they were not stored like memories. They feel to the victim like they are happening NOW. The heart races, they sweat, they get nauseous, they get scared, they can’t concentrate, and they lose sleep. They are re‐traumatized.
Any “reform” that attempts to balance its “corrections” to “flaws” in the criminal justice system by requiring the victims’ families to regularly re‐engage with someone who murdered their loved ones , perhaps for the rest of their lives on a regular basis, is LITERALLY TORTURING the victims.
Regular parole hearings can NOT be the primary solution for flaws in the criminal justice system. This only transfers the life sentence from the victims to the offenders.
VII. THE VARIETY OF SENTENCING SCHEMES IN ALL 50 STATES
One serious flaw with HR 2289 is that it relies on parole hearings after 15 years, and every three years, to “evaluate” offenders now serving life without parole for horrific murders, to correct perceived problems in the system.
To restate the obvious: all 50 states have different sentencing systems. It is a fundamental part of our Constitutional and Federal structure as a nation.
And this bill certainly raises questions of states ‘rights in sentencing that will be legally problematic in a whole separate constitutional law discussion that we will not attempt here in these pages.
But the most glaring problem is:
Approximately half the States in the USA do not have parole built into their current systems – or they have some version of determinate sentencing, actually better for the offender because it sets formulas for release based NOT on the judgments of some politically appointed parole board, but on the
offenders’ own good behavior.
The number of JLWOP cases in most states is extremely low – a few dozen at most. Only a few states, large ones, have over 100. To require a state, as HR 2289 does, to set up an entire parole bureaucracy (boards, officers, infrastructure, etc) to address a handful of cases is RIDICULOUSLY not cost effective.
Why would any state spend millions to establish a parole bureaucracy to address a handful of cases in order to protect 10% of their federal matching crime funds?
Why would the US Congress ask such a thing of states?
The answer is clear: Parole requirements for JLWOP to states are not feasible or desirable. Those who wish to address the need to reform JLWOP must look to other protections for younger offenders in states where the laws are deemed too harsh, if such a determination can be made
VIII. SOME OTHER LEGAL ISSUES
Recently the US Supreme Court announced its intention to rule on two Florida JLWOP cases for NON‐murder. It is important for all in this discussion about JLWOP to remember that the Supreme Court’sruling, when it comes down next year, has already been announced by the SCOTUS blogs and othersources to address the use of the JLWOP sentence in non‐murder.
Advocates for the JLWOP offenders who have been claiming that the recent Supreme Court decision to hear these Florida cases as a rationale for claiming that JLWOP will be undone nationally for all cases, the vast majority of which are horrific murder cases, are simply wrong.
Also, in another case of note, this last year the Connecticut Supreme Court ruled in detail on the JLWOP case before them and said, in absence of a constitutional amendment prohibiting it, state legislatures have the right to determine life sentences for offenders and where to draw those lines.
Finally, my oral testimony above addressed the very serious legal issue of Due Process being denied for these cases where no records were saved because of the life without parole nature. For victims to be able to make a case before a parole board that is legitimate (it’s bad enough they should even be asked to do this at all after a conviction – victims deserve legal finality) they need to have documentation about the original crime and case that will often NOT be available to them because it was not retained in an LWOP case where it was assumed it would never be needed.
This is a serious legal issue regarding the retroactivity of any such proposal in LWOP cases, no matter the age of the offender. Nationally the legal community will have to make systemic changes in how proceedings are accomplished and protected if retroactive changes like this are to be made while attempting to protect Due Process Rights.
IX. REFORMS WE COULD SUPPORT
Since we know that there are problems in the juvenile justice system, surely as in the entire criminal justice system, we know there must be dialog about solutions. We know that there are many problems, and actually many solutions as well. One of our main concerns with the approaches advocated by those who support ending the JLWOP sentence is their often too‐narrow focus. There is not one solution ‐ there is not one problem ‐ and there is not even clear right and wrong answers.
We also know that there are times when human rights may be in actual conflict with each other.
So, hang on ‐ this is a somewhat complicated example of the argument:
If a prisoner is argued to have a “right” (and this is by no means established, in fact, we are sure there is NO such “right”) to a periodic review for early release or parole from a long term sentence, as some prisoner advocates argue; but there is a thorough and rigorous legal case made, given full due process of law and then some, and that offender is found to be fully guilty of a horrific mass or multiplied aggravated murder, and whose life circumstances are such that he or she will highly likely never qualify for early release under any parole system; and since we know it is true that periodic re‐engagement with the offender continues to re‐traumatize already horribly damaged and innocent victims families,and that such damage is clearly a violation of their rights . . . well then, what does one do? It cannot be advocated that the rights of victims should be constantly re‐violated in order to advance the “right” of aprisoner found to merit a life sentence to possible periodic review for release.
One cannot trade one human rights violation for another. Especially when the offender’s violations of the victims lives and rights is what created this problem in the first place.
And no one who understands the nature of trauma and victimology would ever argue that victims can simply choose not to care about or participate in such periodic reviews for early release of the killers of their loved ones. While there may be that rare case of a victim survivor able to completely “move on” in their lives, and not give the fate of the killer a second thought, largely that is not even neurologically possible for most people, much less desirable, for a whole host of reasons. Many of us come to see our grief and our memories as a positive and vital link to those we love take violently from us.
We believe that ultimately the key argument in this national debate over the JLWOP sentence may come down to a recognition that, while the fact that some teenagers are actually capable of such horrors in our beloved nation, and we do not like what that means about us as a nation and a people that such a thing is possible (and how we address that we believe IS the KEY discussion we should be having!) we are in fact a nation that has younger people capable of such horrors. They are here and they are, sadly, among us. And tragic as it is (and no one knows the depth of the tragedy better than we do) that they are capable of committing such crimes, the worst tragedy might be to continue to hurt those same victims’ families over and over and over again, to no end other than allowing access of that offender to frequent reviews for release that will never predictably be granted.
And all this does not even begin to discuss the cost, and the risk to public safety entailed in such legal processes.
Many states that have chosen a system of determinate sentencing have already made this decision not to engage in this highly problematic process. They have set sentences for certain crimes at certain lengths, and even built in mechanisms for automatic sentence reduction based on good behavior. In so doing they have eliminated an incredibly racist, discriminatory, uneven, costly and ineffective parole system.
One only has to look at the states like California that still use parole to see how wildly problematic the system is.
We also grant that it is obvious that the younger a person is, the less they are capable of consistently good decision‐making, and that laws must be written rationally to build in such understandings. But the problem runs along a spectrum and cannot be judged along distinct lines. And knowing that it is wrong to kill, and being able to keep oneself from doing just that, comes pretty early in life for most young people.
Ultimately we believe that reforms must focus on the transfer mechanisms in states ‐ HOW DOES A JUVENILE OFFENDER BECOME CERTIFIED AS AN ADULT?
We know that mandatory transfers can be problematic as it eliminates the ability of courts and experts on the individual facts of the cases to make decisions most responsive to the situation.
We know, better than anyone else in this entire conversation, that this is all a very complex problem, and does require a significant public policy discussion.
But this public policy discussion cannot be had without all the key stakeholders at the table and the victims of these crimes and their families are not just stakeholders, they are the issue
There would not be the crime, the sentence, or the debate unless there were first innocent victims, targeted for death by killers. There cannot now be a discussion as to the fate of those killers, sentenced through Due Process to Life Without Parole without the most important people at the table ‐ the Victims’ Families.
X. THE MISAPPLICATION OF BRAIN RESEARCH
We recommend that anyone concerned with the rationale that the lack of complete frontal lobe brain development until the mid‐20s excuses criminal liability read this article published in the New York Times Magazine about neuroscience and the law, called “The Brain on the Stand” by Jeffrey Rosen:
Click to access NeuroscienceLaw.PDF
Here is a select quotation from that article that gives some sense of our concern and I pick up the article from a point where it is discussing the debate about neurological “excuses” for criminal behavior that began with a historic understanding a different issue – mental illness – and then moves to our point about juvenile brains:
“Since the celebrated M’Naughten case in 1843, involving a paranoid British assassin,English and American courts have recognized an insanity defense only for those who are unable to appreciate the difference between right and wrong. (This is consistent with the idea that only rational people can be held criminally responsible for their actions.) According to some neuroscientists, that rule makes no sense in light of recent brain‐imaging studies. ‘You can have a horrendously damaged brain where someone knows the difference between right and wrong but nonetheless can’t control their behavior,’ says Robert Sapolsky, a neurobiologist at Stanford. ‘At that point, you’re dealing with a broken machine, and concepts like punishment and evil and sin become utterly irrelevant. Does that mean the person should be dumped back on the street? Absolutely not. You have a car with the brakes not working, and it shouldn’t be allowed to be near anyone it can hurt.’ Even as these debates continue, some skeptics
contend that both the hopes and fears attached to neurolaw are overblown. ‘There’s nothing new about the neuroscience ideas of responsibility; it’s just another material, causal explanation of human behavior,’ says Stephen J. Morse, professor of law and psychiatry at the University of Pennsylvania. ‘How is this different than the Chicago school of sociology,’ which tried to explain human behavior in terms of environment and social structures? ‘How is it different from genetic explanations or psychological explanations? The only thing different about neuroscience is that we have prettier pictures and it appears more scientific.’ Morse insists that ‘brains do not commit crimes; people commit crimes’ — a conclusion he suggests has been ignored by advocates who, ‘infected and inflamed by stunning advances in our understanding of the brain . . . all too often make moral and legal claims that the new neuroscience . . . cannot sustain.’ He calls this ‘brain overclaim syndrome’ and cites as an
example the neuroscience briefs filed in the Supreme Court case Roper v. Simmons to question the juvenile death penalty. ‘What did the neuroscience add?’ he asks. If adolescent brains caused all adolescent behavior, ‘we would expect the rates of homicide to be the same for 16‐ and 17‐year‐olds everywhere in the world — their brains are alike — but in fact, the homicide rates of Danish and Finnish youths are very different than American youths. Morse agrees that our brains bring about our behavior — ‘I’m a thoroughgoing materialist, who believes that all mental and behavioral activity is the causal product of physical events in the brain’ — but he disagrees that the law should excuse certain kinds of criminal conduct as a result. ‘It’s a total non sequitur,’ he says. ‘So what if there’s biological causation? Causation can’t be an excuse for someone who believes that responsibility is possible. Since all behavior is caused, this would mean all behavior has to be excused.’ Morse cites the case of Charles Whitman, a man who, in 1966, killed his wife and his mother, then climbed up a tower at the University of Texas and
shot and killed 13 more people before being shot by police officers. Whitman was discovered after an autopsy to have a tumor that was putting pressure on his amygdala. ‘Even if his amygdala made him more angry and volatile, since when are anger and volatility excusing conditions?’ Morse asks. ‘Some people are angry because they had bad mommies and daddies and others because their amygdalas are mucked up. The question is: When should anger be an excusing condition?’”
This article highlights our concern about the reasoning for changing JLWOP is that these offenders’ brains are not yet fully developed. In sum:
- If this were the determination of legal culpability – a FINISHED frontal lobe – then virtually no one under 30 could be held criminally liable for anything.
- People are well aware of right and wrong and are able to comport themselves to those
standards well before adolescence even – most at a very early age. Moral development is also key in understanding this process in the brain.
- We still hold accountable and punish children who make mistakes, in fact we must – to help them grow.
- We hold accountable as full adults many older age offenders who have other diminished
capacity issues that make them far less culpable than a healthy adolescent who commits a
- All behavior has biological causation, but we have decided, correctly, as a society that does not mean that all behavior is excusable.
- Dr. Morse’s point in the article above makes reference to adolescents in other countries who clearly do not commit murder at anywhere near the rates in the United States, which should be the case if the brain is the cause for the juveniles committing murder. In fact, it is primarily easy access to guns and a violent gang culture that is a direct cause of most of the JLWOP cases in the United States.
- Laws regarding punishment of offenders internationally cannot compare to the United States until our laws about easy access to guns are judged comparably to other nations as well.
In conclusion, the frontal lobe of the brain may not be finished developing in the average adolescent, but culpability for a violent crime in an offender who is mentally healthy is still fully present
XI. VICTIMS RIGHTS IN RETROACTIVE LEGISLATIVE PROPOSALS
A. Victims’ Rights to notification
Victims’ Rights to be heard, to be consulted, to be protected, etc (see www.victimlaw.org) are well‐ established in two of the three branches of government in all 50 states and in Federal Law.
First, in the Judicial Branch, in hearings, trials, sentencing – victims’ rights are generally observed, if not always enforced, in virtually every aspect of their cases through the courts.
Second, in the Executive Branch of Government – in the executing of the law – in incarceration, parole release, clemency matters, etc., ‐ Victims can and often do REGISTER in states to be kept notified either through automated systems (43 states) or some other method, of the movements and releases of offenders.
But victims’ rights to be notified of LEGISLATIVE Branch activities that could have the same net effect as a new sentencing hearing or a clemency release have NOT been established in the United States yet because up to now it simply has NOT been an issue.
Victims’ Rights to be notified of any retroactive legislation that would affect their cases MUST be the same as any judicial or executive function with the same protections.
Significant work to protect victims’ rights must accompany any such legislative proposal.
The following summary was recently submitted to the Webb Commission for his work in the US Senate to undertake a comprehensive study of the nation’s prison system:
After decades of “tough on crime” sentencing, a burgeoning and aging prison population, and a nation now facing a severe economic crisis, states are considering various kinds of early release and retroactive sentence reduction measures for many of the nation’s incarcerated offenders. While this trend can be seen as a natural historical cycle and genuine reform, retroactively reducing some prison sentences can, in some cases, pose a serious concern. It also gives rise to a new issue regarding Victims Rights.
Are Victims Rights (i.e. the right to be notified, heard and to consult, etc.) protected in the Legislative Branch of Government, as they are in the Judicial (trial/sentencing, etc) and Executive Branches (prison/parole/clemency) of Government? Or are victims rights limited to the functioning of only two branches?
If a piece of legislation would essentially have the same effect as a new trial ‐‐ a clemency or parole release, or a new sentencing hearing ‐‐ does the victim have a right to know that the Legislature could release the offender? Should victim notification be mandated when proposed legislation wouldretroactively undo the sentence in their cases? If there is no such right for victims, what should the national victim advocate profession and prosecutors offices be telling victims of crime about this aspect of their cases? Should SAVIN efforts include legislative matters such as these?
- Early release of violent offender can pose a direct safety threat and a re‐traumatization risk to the victims/families. These offenders upon release could return to the victims’ community, and could seek vengeance.
- Half the states have Determinate sentencing with little to no parole bureaucracies in place. All 50 states have different “sentencing schemes”. And victims are often told the offender can never get out in cases where they receive natural life.
- Some offender advocates are claiming that “periodic review” for possible release is a “right”
that offenders have. Periodic review is re‐traumatizing to victims and robs them of legal finality in their cases. Can the victim community allow this claim to go unchallenged, especially with so many determinate sentences nationally?
- States are not always focusing on non‐violent offenders first and foremost, as they consider
a. Many states are actually proposing retroactive and early release legislation with the
most violent offenders as their target population: long term prisoners, aging offenders,
for the most aggravated and heinous offenses.
b. Life without Parole sentences for juvenile offenders tried as adults (JLWOP) is a primary
target for retroactive change. These families should be informed of the immediate
threat to the sentences in their cases.
We believe that the national victims’ rights community should address this trend head on and take a legally supported stance on all retroactive sentence reduction legislation. We should articulate Victims’ Rights in legislative matters affecting our cases. And we believe it is now time for the victim advocacy profession to talk proactively with all victims and clients about the very real possibility that a sentence by a court may not be the final word with respect to time served.
B. Victims’ Rights Are Human Rights
The Life Without Parole sentence is widely regarded as the appropriate sentence for those who show an exceptional disregard for human life. Many believe they have simply lost the right to walk among us. And while most of us believe that this sentence should be incredibly rare, and only reserved for the proverbial “worst of the worst”, sadly, there are such truly bad actors among us human beings on planet Earth.
The most complicated aspect of the JLWOP issue is the human rights question – the interpretation of international treaty, not signed by all nations, that no matter the act, no one under that “magic” age of 18 according to some international treaties should receive a life sentence.
In fact, legal interpretations of those treaties and laws and global legal practice that balance the entire picture of violence, victimization, offender behavior and public safety, and victims’ rights can present a different picture.
Victims’ rights are human rights also.
And one cannot merely trade one human rights violation for another.
The founder of NOVJL, Jennifer Bishop‐Jenkins, was instrumental in conversations with Human Rights
Watch (www.HRW.org) a leading advocate to end JLWOP, to address this very question.
And in fact, all international law and treaty and national law affirm that Victims’ Rights are Human Rights also.
Here is a link to the HRW report on the subject: http://www.hrw.org/en/reports/2008/09/23/mixed‐
Here is the KEY POINT: if a reasonable determination can be made ‐ with full due process ‐ by many fine expert legal minds functioning in full integrity that the killer would never meet the standards of the state for parole, then the victims’ rights to not have to be tortured by re‐engaging constantly with the offender in hearings and reviews for release should take precedence.
Justice requires that we weigh in balance the rights of the offenders and the rights of the victims and deliver justice. See the diagram at the end of this document that illustrates the point that after conviction the burden to protect the victim should outweigh the constitutionally appropriate rights of the accused that exist before conviction.
But after conviction, when the offender is declared legally guilty, the rights of the victims to be kept safe, to not be re‐traumatized unnecessarily must and should outweigh any perception that the
offender has any kind of “right” to be periodically reviewed for early release.
NO SUCH RIGHT exists in law.
Advocates for JLWOP reform would be wise to stop talking about periodic review as the solution to their concerns about the sentence. The law has balanced the rights of the offenders against the right of the public to be safe and unnecessarily re‐victimized. The Life without parole sentence is appropriate in sadly a few very rare, worst cases.
And if a determination can be reasonably and lawfully made that the offender will never qualify for early release anyway, as if often the case with these thankfully few but horrifically high level violent offenders, then the victims’ rights to not have to constantly legally re‐engage with them in regular parole hearings is PRIMARY.
And if the offender advocating for change in the law do not find and notify every victims family member of their proposed legislation while they can still have a voice in the process then they are guilty of violating the most innocent and injured of all people ‐ the victims ‐ in order to help the guiltiest ‐ the killers. This set of priorities makes no sense.
Ultimately their decisions to do the right things by the victims in these cases, if they ever do finally make those choices, may be motivated by political pragmatism. Because with public sentiment towards guilty murderers being what it is, it seems clear that they do not stand a chance of passing any major legislation with significant victim opposition.
We do not question the motives of those who advocate for juvenile aged killers. We all love children. We all want to help raise the best children we can. We should not be criticized in any way for not loving and valuing and caring about young people as much, or more, than they do who advocate for these young offenders. We say “care more” because we understand some advocacy groups take on the JLWOP issue because of access to funding for their organization.
We do believe that they see the world as they would like it to be, however. With regards to the dangers inherent in human nature and what some people are capable of, we sadly have been forced to see the world as it IS.
And we have paid the highest price imaginable to learn that lesson
Remember, these are not “routine” murders. Many juvenile offenders commit murder – far too many – and never are tried as adults.
And for those who are tried as adults, they are rarely sentenced to life.
“Juvenile” Life Without Parole is RARE.
It is given to highly aggravated crimes and with offenders who demonstrate the highest levels of culpability to the worst kinds of crimes – multiple murders, rape and murder of children, murders of law enforcement, torture murders, etc.
And while there are some poster cases for reform – as there clearly are throughout EVERY area of the criminal justice system – the vast majority of those serving a “JLWOP” sentence are incredibly guilty of incredibly heinous crimes.
The few cases of miscarriage of justice can and should be handled, as everywhere else in the criminal justice system, by the appeals process and the executive clemency process.
And we would not oppose prospective changes in the law (because those would not violate victims’ rights to know) that would eliminate, or make much more protected for the young offender, the mandatory transfer of juvenile offenders to the adult system in such serious cases. Judges and prosecutors should have discretion to place the offender in the system that is appropriate for the facts of the individual case, and younger offenders should have the right to appeal and demonstrate their case for where they appropriately should be adjudicated.
The victims’ families of these crimes walked away from the horrifying process of the murder of their loved ones, the investigation, arrest, trials and appeals, and sentencing of the offenders with at least the promise that the offender would never get out.
Life without parole should mean life without parole when the crime is highly aggravated, committed by an offender who knows that the act is criminal, and due process has been respected.
And these victims’ families MUST be notified of any legislative effort such as HR 2289.