    [House Hearing, 111 Congress]
    [From the U.S. Government Publishing Office]

          JUVENILE JUSTICE ACCOUNTABILITY AND IMPROVEMENT ACT OF 2009

    =======================================================================

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME, TERRORISM,
                             AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                       ON

                                   H.R. 2289

                                   ----------

                                  JUNE 9, 2009

                                   ----------

                               Serial No. 111-47

                                   ----------

             Printed for the use of the Committee on the Judiciary

       Available via the World Wide Web: http://judiciary.house.gov

          JUVENILE JUSTICE ACCOUNTABILITY AND IMPROVEMENT ACT OF 2009

    =======================================================================

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME, TERRORISM,
                             AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                       ON

                                   H.R. 2289

                                   __________

                                  JUNE 9, 2009

                                   __________

                               Serial No. 111-47

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

                      U.S. GOVERNMENT PRINTING OFFICE
    50-141                    WASHINGTON : 2010
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                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
    MAXINE WATERS, California            DARRELL E. ISSA, California
    WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
    ROBERT WEXLER, Florida               STEVE KING, Iowa
    STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
    HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
      Georgia                            JIM JORDAN, Ohio
    PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
    MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
    LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
    BRAD SHERMAN, California             GREGG HARPER, Mississippi
    TAMMY BALDWIN, Wisconsin
    CHARLES A. GONZALEZ, Texas
    ANTHONY D. WEINER, New York
    ADAM B. SCHIFF, California
    LINDA T. SANCHEZ, California
    DEBBIE WASSERMAN SCHULTZ, Florida
    DANIEL MAFFEI, New York

                Perry Apelbaum, Staff Director and Chief Counsel
          Sean McLaughlin, Minority Chief of Staff and General Counsel
                                     ------

            Subcommittee on Crime, Terrorism, and Homeland Security

                 ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

    PEDRO PIERLUISI, Puerto Rico         LOUIE GOHMERT, Texas
    JERROLD NADLER, New York             TED POE, Texas
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
    MAXINE WATERS, California            J. RANDY FORBES, Virginia
    STEVE COHEN, Tennessee               TOM ROONEY, Florida
    ANTHONY D. WEINER, New York
    DEBBIE WASSERMAN SCHULTZ, Florida
    MIKE QUIGLEY, Illinois

                          Bobby Vassar, Chief Counsel

                        Caroline Lynch, Minority Counsel

                                C O N T E N T S

                                  ----------

                                  JUNE 9, 2009

                                                                       Page

                                    THE BILL

    H.R. 2289, the ``Juvenile Justice Accountability and Improvement
      Act of 2009''..................................................     4

                               OPENING STATEMENTS

    The Honorable Robert C. ``Bobby'' Scott, a Representative in
      Congress from the State of Virginia, and Chairman, Subcommittee
      on Crime, Terrorism, and Homeland Security.....................     1
    The Honorable Louie Gohmert, a Representative in Congress from
      the State of Texas, and Ranking Member, Subcommittee on Crime,
      Terrorism, and Homeland Security...............................    12

                                   WITNESSES

    Mr. Mark William Osler, Professor of Law, Baylor Law School,
      Waco, TX
      Oral Testimony.................................................    15
      Prepared Statement.............................................    18
    Ms. Linda L. White, former Board Member, Murder Victims' Families
      for Reconciliation, Magnolia, TX
      Oral Testimony.................................................    26
      Prepared Statement.............................................    27
    Ms. Jennifer Bishop-Jenkins, Co-Founder, National Organization of
      Victims of Juvenile Lifers, Northfield, IL
      Oral Testimony.................................................    29
      Prepared Statement.............................................    32
    Ms. Anita D. Colon, Pennsylvania State Coordinator, National
      Campaign for Fair Sentencing for Children, Springfield, PA
      Oral Testimony.................................................    78
      Prepared Statement.............................................    80
    Mr. James P. Fox, District Attorney, San Mateo County, CA
      Oral Testimony.................................................    82
      Prepared Statement.............................................    83
    Mr. Marc Mauer, Executive Director, The Sentencing Project,
      Washington, DC
      Oral Testimony.................................................    85
      Prepared Statement.............................................    88

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Material submitted by the Honorable Robert C. ``Bobby'' Scott....   102
    Additional Material submitted by the Honorable Robert C.
      ``Bobby'' Scott................................................   127

                                    APPENDIX

    Material Submitted for the Hearing Record........................   177

          JUVENILE JUSTICE ACCOUNTABILITY AND IMPROVEMENT ACT OF 2009

                                  ----------

                             TUESDAY, JUNE 9, 2009

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                                  and Homeland Security
                                    Committee on the Judiciary,
                                                        Washington, DC.

        The Subcommittee met, pursuant to notice, at 3:07 p.m., in
    room 2141, Rayburn House Office Building, the Honorable Robert
    C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
        Present: Representatives Scott, Lofgren, Quigley, Gohmert,
    Poe, Goodlatte, and Lungren.
        Staff Present: (Majority) Bobby Vassar, Subcommittee Chief
    Counsel; Jesselyn McCurdy, Counsel; Karen Wilkinson, Federal
    Public Defender Office Detailee; Veronica Eligan, Professional
    Staff Member; (Minority) Kimani Little, Counsel; and Kelsey
    Whitlock, Staff Assistant.
        Mr. Scott. The Subcommittee will now come to order.
        I am pleased to welcome you today to the hearing before the
    Subcommittee on Crime, Terrorism, and Homeland Security on H.R.
    2289, the ``Juvenile Justice Accountability and Improvement Act
    of 2009.''
        The United States is the only country on Earth that
    sentences children to die in prison. While other countries have
    abolished this practice, we continue to impose this sentence at
    alarming rates, and in 14 States children as young as 8 years
    old can be sentenced to life without parole.
        Currently, the United States has over 2,500 people in
    prison serving life sentences without parole for crimes they
    committed as children. For the majority of these juveniles, it
    was their first offense.
        What is alarming is that over 2,000 of the 2,500-plus
    juvenile life-without-parole sentences resulted from mandatory
    minimum sentencing guidelines that required the court to impose
    the life sentence. In 29 States, once a youth is convicted of
    certain crimes, the court must impose life and cannot give
    consideration at sentencing to either the child's age or life
    history.
        Whether or not these mandatory minimum sentences were
    intentionally designed to penalize such a large number of
    juvenile offenders is not clear. A recent case, In re Nunez,
    seems to indicate that the sentencing of some juveniles to life
    without parole is an unintended consequence of harsh mandatory
    sentencing schemes originally designed for adult offenders.
        In Nunez, the court compared California State sentences for
    first-degree murder and for kidnapping for ransom that does not
    result in injury. Under current laws, a 14-year-old convicted
    of kidnapping for ransom that involved a substantial risk of
    death, but no death or even injury occurred, they would receive
    a mandatory life-without-parole sentence. Had the offender
    murdered the victim and been convicted, the harshest sentence
    he could have received would be life with parole.
        The inconsistency between these two sentencing schemes
    implies that at least some juvenile life-without-parole
    sentences have resulted because of legislative oversight as
    opposed to any deliberate legislative intent.
        Also of concern is that over a quarter of youth offenders
    serving life-without-parole sentences were convicted of felony
    murder. Under felony murder laws, a teen who commits a non-
    homicide felony, such as robbery, is held responsible for a
    codefendant's act of murder that occurs during the course of
    the felony. State laws do not require the child offender to
    have intended or even known that murder would take place, or
    that he even participated, or even that the other participant
    was armed--he might not have even known that.
        These felony murder convictions are problematic when we
    consider that many of the juveniles serving these sentences
    committed their crimes with adult codefendants. In California,
    for example, 70 percent of the juvenile life-without-parole
    cases in which a teen was acting with codefendants, at least
    one of the codefendants was an adult. In over 50 percent of
    these cases, the adult received a more lenient sentence than
    the teen, even though the children generally were neither the
    ringleaders, sometimes not even directly involved.
        For example, if a 13-year-old juvenile joins a 25-year-old
    brother in stealing a car and going on a joy ride, while the
    13-year-old juvenile waits in the stolen vehicle his older
    brother stops at a drug house and murders someone, because the
    13-year-old juvenile helped steal the vehicle that was used to
    drive to the drug house, under the felony murder rule, he will
    be held accountable for the murder that his brother committed
    even if the juvenile did not know of the plan.
        Now, scientists have revealed that children's brains are
    underdeveloped in areas dealing with impulse control,
    regulation of emotions, risk assessment, and moral reasoning.
    During adolescence, neurological structures most critical to
    making good judgments, as well as moral and ethical decisions,
    are still being developed. Additionally, because of their low
    social status in relation to adults and their dependency on
    adults, juveniles are uniquely susceptible to coercion and
    intimidation by adults.
        For these reasons, the United States Supreme Court has
    found that sentencing children to death violates the eighth
    amendment's prohibition against cruel and unusual punishment.
    The California Senate recognized this fact and recently passed
    legislation allowing courts to review juvenile parole cases
    after 10 years and, if appropriate, resentence the offender to
    a new sentence of 25 years to life.
        While juvenile life without parole is often imposed on
    children offenders who have been convicted of crimes of
    homicide, life without parole is also imposed on a variety of
    other crimes, including assault, carjacking, robbery,
    molestation, burglary, drugs, and grand larceny. In many of
    these instances, the crime resulted in no death.
        In the case of Sullivan v. Florida before the Supreme Court
    this coming term, a 13-year-old was sentenced to life without
    parole in Florida after being convicted of sexual battery. In a
    second case to be heard by the Supreme Court this term, Graham
    v. Florida, a 17-year-old on parole was sentenced to life
    without parole for taking part in an armed home invasion which
    also did not result in a murder. The issue before the Supreme
    Court is whether, in either of these cases, whether or not
    there is a violation of the eighth amendment's prohibition of
    cruel and unusual sentences.
        There also appears to be a discriminatory impact in life-
    without-parole sentences. African American youth, on average,
    receive juvenile life-without-parole sentences 10 times more
    often than White youth. In Connecticut, Pennsylvania, and
    California, this disparity is even greater, with Black youth
    being sentenced 18 to 28 times more often than White youth.
        In the bill before us, we are not seeking to prohibit the
    incarceration of juveniles from life sentences or mandating
    their release. The bill simply provides that, for a juvenile
    sentence to life or the equivalent, a meaningful opportunity
    for a review and possible parole must take place. Only after
    serving 15 years of incarceration and then only at intervals of
    3 years thereafter will juveniles be allowed a chance to show
    that they are worthy of parole.
        Now, we recognize the pain and suffering of victims of
    child offenders and the need for closure in these cases. For
    this reason, the bill provides for victim notification
    requirements in an effort to protect these victims' rights and
    understandable sentiments. However, there are several States
    that do not sentence juveniles to sentences of life without
    parole which manage this need against the need for society to
    recognize that there are irrefutable scientific differences
    between juveniles and adults in their ability to make
    responsible decisions.
        We recognize these differences in many ways: Juveniles
    can't vote; juveniles can't serve on juries; can't drink,
    smoke, or serve in the military; can't sign contracts, play the
    lottery, and so forth, because they are not viewed as having
    the mental capacity or maturity to responsibly do these things.
    Yet, we toss aside all science and reason regarding the mental
    capacity of juveniles when it comes to crime.
        We addressed this issue in a reasonable manner over 100
    years ago through the establishment of a juvenile court system.
    However, we have allowed the emotions and politics of crime to
    roll back the provisions of that system to substitute the
    harsher adult system in not just serious violent crimes but in
    a whole host of other areas. We continue to do this in spite of
    the fact that every credible study now reveals that treating
    juveniles as adults generally results in them committing more
    serious crimes, and sooner, than similarly situated children
    sentenced as juveniles.
        So we look forward to hearing from the panel on how we can
    address the issue of why we are the only country in the world
    to sentence children to die in prison, sometimes for relatively
    minor involvement in crime.
        [The bill, H.R. 2289, follows:]

        Mr. Scott. It is my pleasure to recognize the esteemed
    Ranking Member of the Subcommittee, the gentleman from Texas,
    Judge Gohmert.
        Mr. Gohmert. Thank you, Chairman Scott.
        Today the Crime Subcommittee will review H.R. 2289, the
    ``Juvenile Justice Accountability and Improvement Act.'' This
    bill requires States to give parole reviews to juvenile
    offenders who are sentenced to life without parole.
        This bill seeks to regulate prerogative sentencing of
    convicted criminals. That is exclusively a State issue. As most
    law professors and lawyers know but some forget, States have
    exclusive control over the prosecution and sentencing of
    defendants within their jurisdiction unless their laws violate
    a constitutional right.
        In the 1990's, the overwhelming majority of State
    legislatures adopted sweeping changes to their juvenile
    criminal codes to properly address what the juvenile justice
    system had overlooked: that protection of public safety is of
    paramount concern whether the offender is juvenile or adult.
        These State legislatures revised their codes to allow
    juveniles charged with serious violent crimes to be tried as
    adults to ensure that a juvenile offender was not sentenced
    less seriously for their criminal behavior solely because of
    their age and perceived immaturity. They also reasoned that
    juveniles who pause to consider the consequences of their
    conduct before committing crimes will be deterred if they face
    harsh sentences such as life in prison without parole.
        Presently, 39 States allow for juveniles to be tried as
    adults and sentenced to imprisonment for life without parole if
    they are convicted of violent crimes such as murder. In some
    States, a sentence of life without parole is mandatory if a
    juvenile is convicted of certain crimes. In other States, the
    sentencing judge has discretion as to the sentence.
        In its next term, the Supreme Court will consider the
    constitutionality of sentencing certain juveniles to sentences
    of life without parole. In making its decision, the Court will
    consider two cases involving offenders who committed crimes
    that did not result in the death of a victim. That is a
    slightly peculiar choice of cases, considering that Amnesty
    International tells us that almost 93 percent of juveniles
    serving life without parole were convicted of homicide.
        When making its decision in these cases, I hope the Court
    is mindful that prosecutors consider a number of factors when
    they determine whether to charge a juvenile defendant as an
    adult. Included in those factors are the nature and
    circumstances of the offense, the impact of the offense on the
    victim, and the juvenile offender's criminal history.
        As a result of this deliberative process, very few
    juveniles are charged as adults. According to the National
    District Attorneys Association, most jurisdictions in America
    prosecute only 1 to 2 percent of juvenile criminal offenders as
    adults, and in some jurisdictions this percentage is even
    lower.
        These States give prosecutors that discretion because the
    State legislatures and the constituents that they represent
    have determined that tough sentencing is required to punish
    offenders that have committed murder and other violent crimes
    to deter others from committing similar crimes in the future.
        H.R. 2289 violates the principles of federalism that are
    the foundation of our legal system. It is inappropriate at best
    and unconstitutional at worst for Congress to seek to regulate
    the manner in which States determine appropriate sentences for
    State crimes committed and prosecuted within their
    jurisdiction.
        I am also concerned that H.R. 2289 is an unfunded mandate
    that would impose costly financial obligations on a number of
    States. Eleven States and the District of Columbia have
    determined its sentencing systems that do not allow parole. In
    order to implement the requirement of H.R. 2289, these States
    would presumably have to create, fund, and maintain a parole
    board to conduct hearings solely for this particular class of
    juvenile offenders.
        The bill unreasonably threatens to withhold Byrne/JAG
    grants from the States unless they comply with its mandates.
    This threat forces the States to make the 10th-amendment-
    negating decision to substitute Congress's judgment for its own
    regarding criminal sentencing or risk losing important funds
    that help State and local law enforcement officials accomplish
    their mission.
        Further, a Federal mandate that a State provide parole
    reviews for one class of offenders that is not available to
    other offenders could create other issues of constitutional
    proportions. Under this bill, two codefendants in a murder
    prosecution here in Washington, DC, one who is 16 years old and
    one who is 19 years old, could be tried as adults and convicted
    of that crime and both sentenced to life in prison without
    parole. However, this legislation would require the
    jurisdiction to give periodic parole reviews to the 16-year-old
    while the 19-year-old would face life in prison. Two
    individuals who committed the same crime would receive two
    different punishments.
        From a personal standpoint, I never sentenced anybody to
    life without parole. We didn't have that when I was a judge in
    Texas. And I would find it a difficult matter to do, especially
    for someone very young because you can consider age in
    determining sentencing with regard to mitigation.
        But I also believe in the constitutional system we have,
    that my judgment, as a Member of Congress, should not be
    substituted and forced onto a State in which I don't live and
    in which I am not part of their legislature.
        And I appreciate the Chairman's comments and the lists
    about things children can't do. But I would note that juveniles
    are allowed to legally abort or kill their unborn children. So
    that is still apparently a constitutional right, as well.
        Personally, I don't like the idea of sentencing children to
    life without parole. It is repugnant. But that is a matter for
    the States, and I hope my State will not do that.
        But with that, I yield back and appreciate the Chairman's
    indulgence.
        Mr. Scott. I thank the gentleman.
        I think we have switched sides on what the States ought to
    do because we have been trying--and so I agree we should not
    normally do this, but I think this is an exceptional situation.
        But we have a distinguished panel of witnesses here to help
    us consider the important issues that are currently before us.
        I ask each of the witnesses to complete his or her
    statement within 5 minutes. And there is a lighting device
    before you on the table which will turn from green to yellow
    when there is 1 minute left and red when your time is up.
        All of the witnesses' statements will be entered into the
    record in their entirety.
        Our first witness will be Professor Mark Osler of Baylor
    Law School. He is a former Federal prosecutor and has argued
    cases in six Federal courts of appeal and the United States
    Supreme Court most recently. As lead counsel, he won the case
    of Spears v. United States in 2009 in the Supreme Court, where
    the Court held that sentencing judges can categorically reject
    the 100:1 ratio between crack and powder cocaine in the Federal
    sentencing guidelines. He is a graduate of Yale Law School and
    serves as the head of the Association of Religiously Affiliated
    Law Schools.
        The next panelist will be Dr. Linda White. She is a former
    adjunct faculty member at Sam Houston State University in
    Huntsville, Texas, in the Department of Psychology and
    Philosophy. She holds a B.S. Degree in psychology and an M.A.
    In clinical psychology from Sam Houston State University and
    earned her Ph.D. from Texas A&M.
        Ms. White's 26-year-old daughter was abducted, raped, and
    murdered in 1986. She is a volunteer mediator with the Victim
    Offender Mediation/Dialogue Program in the Texas Department of
    Criminal Justice and was appointed in 2003 by Governor Rick
    Perry of Texas to represent victims issues in the Texas State
    Council for Adult Offender Supervision. She is a former member
    of the Murder Victims' Families for Reconciliation and a board
    member of the Texas Coalition to Abolish the Death Penalty.
        Our next panelist is Jennifer Bishop-Jenkins. She is the
    sister of Nancy Bishop Langert, who was brutally killed, along
    with her husband and unborn child, in a highly politicized
    killing in Illinois. In 2007, she cofounded the National
    Organization for Victims of Juvenile Lifers to protect victims'
    rights. After a 25-year high school teaching career, she has
    been working as a national program director for victims and
    survivors of gun violence and serves as a member of the
    advisory board to the nonpartisan United States Congressional
    Victims' Rights Caucus.
        Our next panelist is Anita Colon. In addition to her day
    job in human services, she is a human rights and juvenile
    justice advocate. Her brother, Robert Holbrook, was sentenced
    to a life sentence when he was 16 years old after a
    neighborhood drug dealer asked him to serve as a lookout during
    a drug deal that turned into a robbery and a murder. She serves
    as the Pennsylvania State coordinator for the National Campaign
    for Fair Sentencing for Children in Springfield, Pennsylvania.
    She is also a member of the Pennsylvania Prison Society's
    subcommittee focused on juvenile life without parole and Chair
    of the Juvenile Life Without Parole Steering Committee of
    Reconstruction, Incorporated. She attended Villanova
    University, where she majored in criminal justice and obtained
    a master's degree in human services from Lincoln University.
        Our next panelist is James Fox, district attorney in San
    Mateo County, California, and a board member of the National
    District Attorneys Association. He attended the University of
    San Francisco School of Law and has a degree in psychology. He
    is a board member of the Mercy High School and Junipero Serra
    High School and is also a member of the Criminal Law Advisory
    Committee of the Judicial Council of California. He will be
    testifying on behalf of the National District Attorneys
    Association.
        And last but not least is Marc Mauer, the executive
    director of The Sentencing Project. He is one of the country's
    leading experts on sentencing policy, race, and the criminal
    justice system. He has directed programs in criminal justice
    policy reform for 30 years and is the author of some of the
    most widely cited reports and publications in the field,
    including ``Young Black Men and the Criminal Justice System''
    and the ``Americans Behind Bars'' series comparing
    international rates of incarceration. He is a graduate of Stony
    Brook University and earned a master's in social work from the
    University of Michigan.
        So we will begin with Professor Osler.

     TESTIMONY OF MARK WILLIAM OSLER, PROFESSOR OF LAW, BAYLOR LAW
                            SCHOOL, WACO, TX

        Mr. Osler. Mr. Chairman, Members of the Committee, good
    afternoon. My name is Mark Osler. I am a former Federal
    prosecutor, and I currently have the honor of serving as a
    professor of law at Baylor Law School. My teaching and my study
    concentrate on sentencing and questions of faith related to
    criminal law. And I welcome this chance to address the issue of
    life without parole for juveniles.
        My testimony is going to focus on placing this bill in
    context, both the larger context of broad changes in sentencing
    and the idea that this bill is consistent with a principle that
    is part of the faith of many Americans.
        I believe in punishment, and I believe that the
    incarceration of the violent and the dangerous in our society
    is necessary to an ordered society. I am proud of my work as a
    prosecutor in the city of Detroit and the Eastern District of
    Michigan.
        Things changed in that city in 1978 when a drug gang called
    ``Young Boys Incorporated'' took over much of the heroin trade
    in that city and pioneered the use of children as runners, drug
    sellers, and killers. The template was copied by others,
    leading to a disheartening rise in the number of children
    accused of very serious crimes, the type of crimes which result
    in the penalty of life without the possibility of parole.
        As an academic, I study sentencing, and I recognize where
    this bill fits into some of the larger trends we see right now.
    The changes being proposed are not sweeping. Rather, this bill
    is consistent with the general movement to right-size the
    relationship between retribution, rehabilitation, and relative
    culpability. In short, this bill does not seek drastic change
    but, rather, an incremental adjustment that would affect a
    relatively small number of cases.
        This is consistent in what we see in other parts of
    sentencing right now. For example, instead of wiping out the
    sentencing guidelines or mandatory minimums across the board,
    Members of this Committee have proposed correcting the Federal
    sentencing element that is most unfairly retributive, the
    sentencing ratio between powder and crack cocaine. And we have
    seen similar movement in the Sentencing Commission itself.
        Capital punishment has also seen incremental changes, not
    abolition. The 2005 case of Roper v. Simmons, already
    mentioned, barred execution for juvenile crimes. And that is
    significant, but it only affected a relatively few cases.
        As State criminal justice systems adjust to new budget
    realities right now, they consistently are considering
    incremental changes rather than broad or across-the-board and
    drastic changes.
        In contrast, the year 1984 was a time of drastic change. In
    1984, Congress got rid of parole, began the process of
    formulating strict and mandatory sentencing guidelines, and
    passed the Bail Reform Act, which, for the first time, created
    presumptions against release pending trial, even in relatively
    minor drug cases. Federal sentencing was transformed in a
    single year.
        This is not 1984. Rather, the present project, which
    includes this bill, seems to me to find a balance between
    retribution and some kind of human element in the system. This
    search for balance draws from our deepest principles.
        Famously, Micah 6:8 advises, ``What does the Lord require
    of you? To act justly, to love mercy, and to walk humbly with
    your God.'' That passage reflects two values. Retributive
    justice is one of them, and mercy is the other. And those two
    are in tension with one another. It is difficult to resolve
    that tension other than to recognize that our system of justice
    should not be all retribution or all mercy but must have some
    elements of both.
        This bill seeks exactly that balance. A sentence of life
    without the possibility of parole allows no room for mercy or
    redemption, an imbalance which is particularly untenable when
    we are talking about children as offenders.
        I can't pretend that this is an easy issue. As a small
    child, our family was close with our next-door neighbors on
    Harvard Road in Detroit. We children would play outside as the
    parents sat on the porches and watched. We remained close as
    those families moved and the children grew up.
        In 1990, the father in that family was shot and killed by a
    group of 15- and 16-year-old children who were trying to steal
    his car. Two of the defendants received life-without-parole
    sentences for killing this man that I often ran to with skinned
    knees or exciting news. I saw directly the righteous anger and
    pain of his widow and his children.
        And though this issue is difficult for those of us who have
    known or been victims, we should not look away. I fear that
    part of what we do when we lock up a child forever is absolve
    ourselves, the adults. Yet, an examination of the lives of
    child offenders reveals something different. What we would like
    to see as pure evil in that child is too often a product of
    what we have tolerated in our community of adults.
        The shocking thing about Young Boys Incorporated was not
    just that children committed murders and sold drugs on the
    command of adults, but they were made to do that for the 8
    years that that organization thrived in plain sight on street
    corners. For 8 years, we tolerated an organization that did
    such incredible harm and addressed it largely by arresting the
    children who were involved.
        The easy answer is to ignore those questions and push all
    of the evil on to the child, but to do so is wrong. To lock up
    a child forever is against our good and present impulse to back
    away from the most severe retributive sentences. And it is also
    against a faith imperative, the balance between justice and
    mercy, which informs Americans when we are at our best.
        I have also submitted written testimony today. And I thank
    you for the opportunity to address these important issues.
        [The prepared statement of Mr. Osler follows:]
                    Prepared Statement of Mark William Osler

                                   __________
        Mr. Scott. Dr. White?

       TESTIMONY OF LINDA L. WHITE, FORMER BOARD MEMBER, MURDER
           VICTIMS' FAMILIES FOR RECONCILIATION, MAGNOLIA, TX

        Ms. White. Mr. Chairman and Members, thank you very much
    for the opportunity to discuss the issue of life without parole
    and specifically this bill, H.R. 2289.
        Until November 1986, I was not very knowledgeable or very
    interested, to be quite frank, in criminal justice matters in
    general and certainly not juvenile justice matters. That
    changed quite suddenly and dramatically late that November when
    our 26-year-old daughter, Cathy, went missing late that
    November and was then found dead following sexual assault by
    two 15-year-old boys. I spent the better part of a year in
    limbo awaiting their trials, as they had both certified to
    stand trial as adults.
        During that time, the only information I had on either of
    them was that they had long juvenile records. There was never
    any doubt about their guilt, as they had confessed to the rape
    and murder and led the police to her body after they had been
    detained by the police in another city in Texas.
        The court-appointed attorneys for both pled them out, and
    they were sentenced to long prison terms with no chance at
    parole for at least 18 years. They came up for parole in 2004,
    were both given 5-year set-offs, so they remain in prison at
    this time. I assume they will come up again later on this year.
        You have heard in my bio that I taught at Sam Houston State
    University. During the time that I taught at the university
    level, I taught upper-level college courses for 8\1/2\ years in
    prison, the most rewarding work I have ever done and the most
    healing for me as the mother of a murder victim.
        In addition to the formal schooling that I have had, I have
    also educated myself in the area of criminal justice. I heard a
    lot of information when I attended victims' groups, and I
    wanted to know for myself if it was accurate. I have found out,
    for the most part, it was not.
        One notable example is that Texas prisons are about as far
    as you can get from country clubs. Many of our citizens, and
    certainly victims of crime, want men and women who are
    convicted of criminal activity to suffer as much as possible in
    prison, believing that this is the way they will turn from a
    life of crime. I no longer believe this to be true and have
    become a devout believer in restorative justice.
        It doesn't mean that I think incarceration is always wrong,
    but neither do I believe that it should be our first
    inclination for juveniles or for adults. As a psychology
    student and teacher, I have learned that while it may be
    necessary to remove offenders from our midst for a time,
    punishment is often the least effective means to change
    behavior and often has negative side effects.
        I have to admit to you that my journey to healing after my
    daughter's murder was different than what I often see in
    victims and survivors, for I concentrated on healing for my
    family and me and because I focused on education over the
    years. At first it was education about grief and loss, and
    later on it was about psychology and death and dying.
    Eventually, it became concentrated in criminal justice because
    of so much that I saw in our system was violent, perhaps
    necessarily so at times, but still, nevertheless, it seemed to
    me that we returned violence for violence.
        As I said previously, for many years I only knew that the
    boys who killed my daughter were juveniles with long criminal
    records. In 2000, I found out that one of them, Gary Brown, was
    willing to meet with me in a mediated dialogue as part of a
    program that we have in our Texas Department of Criminal
    Justice Victim Services Division. He was apparently very
    remorseful by that time and had prayed for a chance to tell us
    just that.
        With our mediator, we did a lot of reflective work getting
    ready for our meeting. And during that time, most importantly,
    I found out from Gary's records that his long juvenile record
    began at the age of 8 with his running away from abusive
    situations, both at home and in foster care eventually. If I
    were being abused emotionally, physically, and sexually, I
    think I would run away too. It seems quite rational to me.
        I also found out that his first suicide attempt was at the
    age of 8, the first of 10 attempts. I have a grandson just
    about that age right now, and it breaks my heart to think of a
    child like that trying to take his own life because it is so
    miserable.
        Seeing how little time I have left, I just want to say that
    I have been deeply blessed by the work that I have done in
    prison and out of it in the field of restorative justice. And
    all the years of education that I have had have pointed me in
    the direction that young people are just qualitatively
    different from the adults that we hope they will eventually
    become. And I think that my experience with Gary has shown me
    that we have a responsibility to protect our youth from the
    kind of childhood that he had and from treatment that
    recklessly disregards their inherent vulnerability as children.
        Sentencing youth to life without parole strips our young
    people of hope and the opportunity for rehabilitation. And it
    ignores what science tells us, that youth are fundamentally
    different from adults, both physically and emotionally. Even
    given what my family suffered, our incredible loss, and
    believing that young people need to be held accountable, I
    believe that they need to be held accountable in a way that
    reflects their age and their ability to grow and change.
        Thank you.
        [The prepared statement of Ms. White follows:]
                      Prepared Statement of Linda L. White
        Mr. Chairman and members: Thank you for inviting me to discuss the
    issue of juvenile life without possibility of parole, and specifically
    H.R. 2289, the Juvenile Justice Accountability and Improvement Act of
    2009. My name is Linda White and, as stated above, I am a member of
    Murder Victims' Families for Reconciliation. I live near Houston,
    Texas, where I have resided for 35 years. I am here to support the bill
    before you because it allows for periodic reviews of life without
    parole sentences given to juveniles.
        Until November of 1986, I was not very knowledgeable or very
    interested, to be quite frank, in criminal justice matters in general,
    and certainly not juvenile justice matters. That changed quite suddenly
    and dramatically late that November when our 26-year-old daughter Cathy
    went missing for five days and was then found dead following a sexual
    assault by two 15-year-old boys. I spent the better part of a year in
    limbo awaiting their trials, as they had both been certified to stand
    trial as adults.
        During that time, the only information I had on either of them was
    that they both had long juvenile records. There was never any doubt
    about their guilt, as they had confessed to the rape and murder and
    lead the police to her body after they had been detained by the police
    in another city in Texas. The court-appointed attorneys for both pled
    them out and they were sentenced to long prison terms with no chance at
    parole for at least eighteen years. They came up for parole in 2004 and
    were both given five year set-offs, so they remain in prison at this
    time. I assume they will come up again later on this year.
        The year after my daughter was murdered, I returned to college to
    become a death educator and grief counselor. Since that time, I have
    received a bachelor's degree in psychology, a master's degree in
    clinical psychology, and a doctorate in educational human resource
    development with a focus in adult education. I fell in love with
    teaching along the way and never got my professional counseling
    credentials, but I have counseled informally through church and my
    teaching. During the time I taught at the university level, I taught
    upper level college courses for eight and a half years in prison, the
    most rewarding work I have ever done, and the most healing for me as
    the mother of a murder victim.
        In addition to the formal schooling I've had, I have also educated
    myself in the area of criminal justice. I heard a lot of information
    when I attended victims' groups and I wanted to know if it was
    accurate. I have found out that, for the most part, it was not. One
    notable example: Texas prisons are about as far as you can get from
    country clubs. Many of our citizens, and certainly victims of crime,
    want the men and women who are convicted of criminal activity to suffer
    as much as possible in prison, believing that this is the way they will
    turn from a life of crime. I no longer believe this to be true, and I
    have become a devout believer in restorative justice as opposed to
    retributive justice. It does not mean that I think incarceration is
    always wrong, but neither do I believe that it should be our first
    inclination, for juveniles or for adults. And neither am I a great
    believer in long sentences, for most offenders. As a psychology student
    and teacher, I have learned that punishment is the least effective
    means to change behavior, and that it often has negative side-effects
    as well.
        My journey to healing after my daughter's murder was different than
    what I often see in victim/survivors, for I had concentrated on healing
    for my family and me, and because I focused on education over the
    years. At first it was education about grief and how to help my young
    granddaughter with hers, and then, when I returned to college, it
    became about psychology and issues related to death and dying.
    Eventually, it became concentrated in criminal justice. Early on I saw
    much that was violent in our system--perhaps necessarily so at times--
    but still, it seemed to me that we returned violence for violence in so
    many ways. I kept my mind and heart open to another means of doing
    justice, one that would be based on non-violent ideals and means.
    Restorative justice is that paradigm and I have become one of its
    greatest proponents. That is what actually led me to seek a mediated
    conversation with either of the young men who killed my Cathy.
        As I said previously, for many years, I only knew that the boys who
    killed my daughter were juveniles with long criminal records. In 2000,
    I found out that one of them, Gary Brown, was willing to meet with me
    in a mediated dialogue as part of a program that we have in our Texas
    Department of Criminal Justice's Victims' Services Division. He was
    apparently very remorseful by that time and had prayed for a chance to
    tell us that. During the next year, Gary, with the help of our mediator
    Ellen Halbert, and my daughter Ami (Cathy's daughter whom we had raised
    and adopted) and I did a great deal of reflective work to prepare for
    our meeting. During that time I found out from Gary's records that his
    long juvenile record began at the age of eight with his running away
    from abusive situations, both at home and in foster care eventually. If
    I were being abused emotionally, physically, and sexually, I think I'd
    run away, too; it seems quite rational to me. I also found out that his
    first suicide attempt was at the age of eight, the first of ten
    attempts. I have a grandson just about that age right now, and it
    breaks my heart to think of a child like that trying to take his own
    life because it is so miserable.
        Until the time that I met with Gary, I had never laid eyes on him
    and had, over the years, gradually come to ignore his existence. Both
    the offenders became non-persons to me, in effect. Once I knew that
    Gary wanted to meet me, that non-personhood totally changed for me; he
    became as human to me as the men I had taught in prison. That in and of
    itself was a relief, I think, since part of me revolted at the idea of
    forgetting him in any way at all. As the time approached for us to
    meet, I know that my daughter and Gary both became more and more
    apprehensive, but not me. I couldn't wait to see him and tell him how
    much I believed in his remorse and was grateful for it. I know that
    this unusual response to the killer of one's beloved child was only
    possible through my discovery of restorative justice and, of course, by
    the grace of God. I strongly believe that most of my journey over the
    last 22 years had been through grace. Otherwise, I have no explanation
    for it.
        My meeting with him was everything I expected and more. Since it
    was made into a documentary, I have been privileged to have it shown
    around the world for training and educational purposes, and I have
    heard from many who have seen it and felt blessed by the experience. I
    am sometimes invited to go with the film to answer questions and
    reflect on my experience. I also go into prison, especially with a
    victim/offender encounter program we have in Texas called Bridges to
    Life, a faith-based restorative justice curriculum, where my film is
    used to educate offenders related to victim empathy. I have been deeply
    blessed by this work and I feel Cathy's presence in it every time I
    stand before a group either in or out of prison and reflect on my
    journey.
        My education and years of teaching developmental psychology have
    taught me that young people are just different qualitatively from the
    adults we hope they become. And my experience with Gary has taught me
    that we have a responsibility to protect our youth from the kind of
    childhood that he had, and from treatment that recklessly disregards
    their inherent vulnerability as children. Sentencing youth to life
    without parole strips our young people of hope and the opportunity for
    rehabilitation. It ignores what science tells us: that youth are
    fundamentally different from adults both physically and emotionally.
    Even given the trauma, and incredible loss my family experienced, I
    still believe that young people need to be held accountable in a way
    that reflects their ability to grow and change. Gary is proof that
    young people, even those who have done horrible things, can be
    reformed.
                                   __________
        Mr. Scott. Ms. Bishop?

      TESTIMONY OF JENNIFER BISHOP-JENKINS, CO-FOUNDER, NATIONAL
       ORGANIZATION OF VICTIMS OF JUVENILE LIFERS, NORTHFIELD, IL

        Ms. Bishop-Jenkins. Thank you, Mr. Chairman and Members of
    the Committee. 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 4 weeks shy of 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. And Nancy's last act of 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 actually deeply flawed. It is
    the antithesis of due process and it is a violation of
    fundamental victims' rights to even consider retroactively
    changing life-without-parole sentences, certainly not 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. And relying on that promise, we believed this part of
    our ordeal was over.
        So 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.
    And 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't ever get out.''
        This new uncertainty renders our situation entirely
    different from victims like Linda White, because, though she
    and I have worked together a long time as murder victims'
    family members devoted to restorative justice and human rights,
    as she herself told you, I am sad to say she literally has no
    standing in this specific discussion because the offenders in
    her case did not receive this sentence.
        The temerity of anyone to propose anything that so
    profoundly affects us without notifying us is appalling. If you
    haven't gone through it, you cannot understand the impact of
    this proposal before us. Parole hearings are incredibly re-
    traumatizing. They deprive victims of legal finality. To reopen
    this pain every 3 years for the rest of our lives and perhaps
    those of my children is quite literally torture. Proponents of
    this legislation will be hard-pressed to produce one victim's
    family like ours where the offender had no relation to the
    victim who actually wants to endure this 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 and should be addressed. But we can easily outmatch
    them with horror stories, such as 12-year-old Victoria Larson,
    whose killer dug her grave 3 days before raping and killing
    her. He had already been given his second chance; he was
    already out on juvenile parole, a parole that he used to rape
    and murder her. And the 16-year-old who took the 5-year-old
    girl into the abandoned housing project in Chicago and raped
    her and 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--5 years old.
        This is not impulse. This is callous disregard for human
    life with cool, advanced planning by people old enough to know
    that killing is wrong.
        I note that this room is not filled with victims' families
    of these crimes. I promise you it is not because they do not
    care. It is because no one has bothered to tell them that you
    are doing this, despite our pleas to this Committee for victim
    notification in advance of legislation and our pleas to the
    advocates of these offenders, who have spent millions
    supporting them, that they devote a small, nominal proportion
    to outreach to victims' families of these crimes.
        My written testimony will detail other important issues
    pertaining to this legislation, such as how the brain
    development research is actually being misapplied; how a one-
    size-fits-all parole mandate cannot work in a Nation where each
    State has a different sentencing scheme, including half of them
    with determinant sentencing and many of them, like my State,
    with no parole structures at all; and ways that juvenile life
    sentence can actually be reformed, as I believe it can, without
    any negative impact on victims, using different ideas.
        We all need a real conversation about reforming this
    process before the filing of any more such legislation and with
    all stakeholders at the table. And in the meantime, as this
    bill stands now, it only transfers the life sentences from the
    guilty offenders to the innocent victims' families left behind.
        Thank you.
        [The prepared statement of Ms. Bishop-Jenkins follows:]
                 Prepared Statement of Jennifer Bishop-Jenkins

                                   __________
        Mr. Scott. Thank you.
        Ms. Colon?

     TESTIMONY OF ANITA D. COLON, PENNSYLVANIA STATE COORDINATOR,
          NATIONAL CAMPAIGN FOR FAIR SENTENCING FOR CHILDREN,
                            SPRINGFIELD, PA

        Ms. Colon. Good afternoon, Chairman Scott and Committee
    Members.
        First, I would like to thank you, Chairman Scott, for
    introducing H.R. 2289 and for holding this hearing. I commend
    you for your concern over the issue of sentencing juveniles to
    life without parole, as well as your willingness to step
    forward to address it.
        My name is Anita Colon, and I am the sister of Robert
    Holbrook, a man convicted, currently serving a life sentence in
    Pennsylvania for a crime he was convicted of at the age of 16,
    a crime that occurred on his 16th birthday.
        That day, lured by the promise of $500 made by a drug
    dealer, Robert agreed to serve as a lookout for four adult
    males for what he thought was going to be a simple drug deal.
    My brother soon found himself in the midst of a robbery of a
    drug dealer's wife inside her home. Although he desperately
    wanted to run once he realized what was happening, he was
    terrified of the drug dealer that had ordered him to stay and
    oblivious to the consequences that would await him if he
    remained.
        As a result of that terrible night, tragically a young
    woman lost her life. Because of the terribly misguided decision
    my brother made, his freedom was taken away forever. Having no
    prior experience with the court system, my brother accepted his
    attorney's advice and pled guilty to murder generally. The
    attorney told us that if he did not do this the DA would seek
    the death penalty.
        Despite the fact that Robert was a juvenile, had no prior
    criminal record, and did not participate in the actual murder
    of the victim, the judge imposed a sentence of first-degree
    murder for aiding and abetting in the crime. Because of
    mandatory sentencing in Pennsylvania, he was sentenced to life
    without the possibility of parole. At his sentencing, the judge
    stated that my brother had certainly been the least culpable of
    the offenders but that the law did not permit him to use
    discretion in his sentencing.
        That was over 19 years ago, and my brother is now 35 years
    old. While his friends continued high school, got their
    driver's licenses, went on to college, got married, my brother
    spent the majority of his most defining years in prison. Most
    of his early years were spent in isolation, separated from the
    adult offenders because of his age. Here he was locked up for
    up to 23 hours a day in a cell the size of a small bathroom.
        My brother's conviction and incarceration was devastating
    to my family, especially my mother. My mother wrote to her son
    in prison each and every day right up until the end of her life
    4 years ago. At that time, she had been diagnosed with cancer,
    and within months she passed away. My brother was not allowed
    to attend her funeral because the Department of Corrections no
    longer permits the transporting of lifers to attend funerals,
    even when a parent dies.
        Despite being told that there is no hope for him, my
    brother has refused to give up on his life. While in prison, he
    obtained his GED, participated in many college and paralegal
    courses, and became an avid reader and writer. He has had
    several articles published and works closely with many human
    rights organizations.
        My brother deeply regrets his participation in the crime
    and the horrible loss suffered by the victim's family but does
    not believe that his entire life and hope for the future should
    be taken away from him. Whereas I also believe that my
    brother's actions that day did warrant punishment, I am
    confident that he does not deserve to spend the rest of his
    life, what could turn out to be 60, 70, even 80 years, in
    prison for one horrible choice he made while barely 16.
        Although my initial concern over juveniles sentenced to
    life without possibility of parole came as a result of my
    brother's conviction, after truly researching this issue I
    became an advocate for juvenile justice reform. And I am
    speaking to you today on behalf of the approximately 2,500
    juveniles currently sentenced to die in prison throughout the
    United States.
        Our laws do not allow juveniles to assume the same
    responsibilities as adults such as driving, voting, drinking,
    joining the military, because we know that they are not mature
    or mentally developed enough to make these decisions or control
    these actions. Yet we hold these same children as accountable
    as adults when it comes to crime. Juvenile offenders should not
    be held to the same level of accountability as adults, because
    they are not adults. These youth are not beyond redemption, but
    currently they are without hope.
        In my home State of Pennsylvania, we have the distinction
    of having the highest number of juvenile lifers of anywhere
    else in the world, with approximately 450 prisoners serving
    life sentences for crimes they committed or participated in as
    juveniles.
        The district attorney's office claims that only the worst
    child offenders are sentenced to life without parole and only
    in exceptional circumstances, but that is simply not true.
    While I acknowledge that those fighting crime throughout this
    country face daunting challenges, the answer is not to throw
    away the lives of our children forever. The fact that a child
    commits a crime does not negate the fact that they are still a
    child.
        Please understand that I am in no way suggesting that you
    open the prison gates and free everyone that was incarcerated
    as a juvenile. This legislation would provide these offenders
    the prospect, not guarantee, of parole after a reasonable
    period of incarceration.
        I find it incomprehensible that heinous mass murderers,
    such as Charles Manson, are given the chance for parole, yet
    thousands of children, whose crimes were committed while they
    were still mentally and emotionally developing, are denied this
    same opportunity. Juvenile offenders should be given a second
    chance, a chance to prove that an extremely poor decision made
    during adolescence does not have to define who they can become
    as an adult within society.
        Chairman Scott, Committee Members, I implore you to do just
    that. Again, thank you for allowing me to testify before you
    today. I urge you to enact this bill and restore hope to the
    thousands of individuals currently serving juvenile life
    without the possibility of parole in this country.
        [The prepared statement of Ms. Colon follows:]
                      Prepared Statement of Anita D. Colon
        First, I would like to thank you, Congressman Scott, for
    introducing HB2289 and for holding this hearing. I commend you for both
    your concern over the issue of sentencing juveniles to life without the
    possibility of parole. as well as your willingness to step forward to
    address it.
        My name is Anita Colon. I am the sister of Robert Holbrook, a man
    currently serving a life sentence in Pennsylvania for a crime he was
    convicted of participating in at the age of 16, a crime that occurred
    on his sixteenth birthday. That day, lured by the promise of $500 made
    by a neighborhood drug dealer, Robert agreed to serve as a lookout for
    four men for what he thought was going to be a simple drug deal. My
    brother soon found himself in the midst of a robbery of a young woman
    inside her home. Although he desperately wanted to run once he realized
    what was happening, he was terrified of the drug dealer that had
    ordered him to stay, and oblivious to the consequences that would await
    him if he remained.
        As a result of that terrible night, an innocent young woman lost
    her life and my brother's freedom was taken away forever. Having no
    prior experience with the court system, my brother accepted his
    attorney's advice and pled guilty to murder generally. The attorney
    told us that if he did not do this, the D.A. would seek the death
    penalty.
        Despite the fact that Robert was a juvenile and did not participate
    in the actual murder of this woman, the judge sentenced him to first
    degree murder for aiding and abetting in the crime. Because of
    mandatory sentencing in Pennsylvania, he was sentenced to life without
    the possibility of parole. At sentencing, the judge stated that my
    brother had most certainly been the least culpable of the offenders,
    but that the law did not permit him to use discretion in his
    sentencing. That was over 19 years ago and my brother is now 35 years
    old. While his friends continued high school, got their drivers
    licenses, went on to college, got married and now have children, he
    sits confined to a cell. Most of his early years were spent in
    isolation, separated from the adult offenders.
        My brother's conviction and incarceration was devastating to my
    family, especially my mother. My mother wrote to her son in prison each
    and every day right up until the end of her life four years ago. At
    that time she was diagnosed with Cancer and within months she passed
    away. Robert was not even able to attend her funeral because the
    Department of Corrections no longer allows the transporting of lifers
    to attend funerals, even when a parent dies.
        In spite of the lack of hope afforded him, my brother has refused
    to give up on his life. While in prison, he obtained his GED,
    participated in a paralegal course, and became an avid reader and
    writer. He has had several articles published and works closely with
    many human rights organizations fighting against racism and unfair
    sentencing such as his. My brother deeply regrets his participation in
    the crime and the horrible loss suffered by the victim's family, but
    does not believe that his entire life and hope for the future should
    have been taken away from him. Whereas I do believe that my brother's
    actions that day did warrant punishment, I am confident that he does
    not deserve to spend the rest of his life (what could turn out to be
    60, 70, even 80 years) in prison for one horrible choice he made while
    barely 16.
        Although my initial concern over juveniles sentenced to Life
    without the Possibility of Parole came as a result of my brother's
    conviction, after truly researching this issue I became an advocate for
    juvenile justice, dedicated to this cause, and I am speaking to you
    today on behalf of the approximate 2,500 juveniles currently sentenced
    to die in prison throughout the United States. Please allow me to share
    some background on this serious human rights issue we are addressing.
    Much of this may have been said already, but I feel it is important to
    highlight.
        The United States is currently the only country in the world known
    to have children sentenced to and serving life without the possibility
    of parole. This alone tells me that there is something wrong with this
    policy. Sentencing juveniles to life without the possibility of parole
    violates customary international law and it is expressly prohibited
    under any circumstances by Article 37 (a) of the United Nations
    Convention on the Rights of a Child (CRC). The United States and
    Somalia are currently the only countries that have refused to ratify
    this treaty.
        As you are aware, The U.S. Supreme Court made the distinction
    between the culpability of juvenile offenders and adult offenders when
    it abolished the death penalty for juvenile offenders in 2005 (Roper vs
    Simmons). Citing both clinical and academic research, the Court
    acknowledged that adolescents are immature, incapable of clear adult
    decision making, and prone to peer pressure. Using this same logic, it
    is time that the United States acknowledges and addressing the fact
    that this same logic applies to sentencing our children to die in
    prison.
        Throughout the country, states are re-examining the affect of
    automatic transferring of juveniles to adult court in combination with
    mandatory sentencing laws resulting in life without parole sentences
    for juveniles, and I believe it is the perfect time for the Federal
    Judiciary System to address this problem.
        Nationally, almost 60 percent of the prisoners serving life without
    parole for crimes they committed as juveniles were first time
    offenders, never having been convicted of a previous crime. In
    addition, one third of those juveniles convicted of life without parole
    were convicted of felony murder, because they participated in a crime
    that resulted in a homicide, but they did not themselves kill anyone.
    In most of the cases, these sentences were a result of mandatory
    sentencing currently in place for adults convicted of murder, leaving
    judges with no discretion in sentencing.
        Also, there are a significant disproportionate number of minorities
    serving JLWOP throughout the United States. In California and
    Pennsylvania, an African American youth is 20 times more likely to
    receive a sentence of life without the possibility of parole than a
    white youth even though African Americans make up less than 15% of
    these states' youth population. These statistics are similar throughout
    the country.
        Finally, JLWOP, like most forms of unusually harsh punishment, does
    not serve as a deterrent. FBI Statistics show that from 1994-2004 the
    number of juveniles arrested for murder rose by over 24%. Research
    studies have shown that juvenile offenders are more susceptible to
    rehabilitation and treatment than adult offenders. These children are
    not beyond redemption, but currently they are without hope. We imprison
    children for the rest of their lives, without any hope of
    rehabilitation or re-entry into society and call it justice. Well, I
    call it inhumane.
        Our laws do not allow juveniles to assume the same responsibilities
    as adults (such as driving, voting, drinking, or joining the military)
    because we know that they are not mature or mentally developed enough
    to make these decisions about or control these actions. Yet, we hold
    these same children as accountable as adults when it comes to crime.
    Juvenile offenders should not be held to the same level of
    accountability as adults because they are not adults.
        In my home state of Pennsylvania, we have the distinction of having
    the highest number of juvenile lifers of any state in the country, with
    approximately 450 prisoners serving life sentences for crimes they
    committed or participated in as juveniles. The Pennsylvania District
    Attorney's Office claims that only the worst child offenders are
    sentenced to life without parole, and only in exceptional
    circumstances, but that is simply not true.
        While I acknowledge that those fighting crime throughout this
    country face daunting challenges, the answer is not to throw away the
    lives of our children forever. The fact that a child commits a crime
    does not negate the fact that they are still a child. Please understand
    that I am in no way suggesting that you open the prison gates and free
    everyone that was incarcerated as a juvenile. The legislation proposed
    in HR2289 does not ignore the fact that some juveniles commit horrible
    crimes and cause tremendous grief to victims' families, and deserve to
    be punished for their actions. Nor does the bill ignore the fact that
    there are some juvenile offenders that may never be able to develop
    into reasoning members of society and should therefore not be released.
    What this legislation does is provide these offenders the prospect, not
    guarantee, of parole after a reasonable period of incarceration. I find
    it incomprehensible that heinous mass murderers such as Charles Manson
    are given the chance for parole, yet thousands of children whose crimes
    could never begin to compare to his are not.
        Juvenile offenders should be given a second chance, a chance to
    prove that an extremely poor choice made during adolescence does not
    have to define who they can become as an adult within society.
    Congressman Scott, committee members, I implore you to do just that.
    Again, thank you for allowing me to testify before you today. I urge
    you to enact this bill and restore hope to the thousands of individuals
    currently serving juvenile life without the possibility of parole in
    this country.
                                   __________

        Mr. Scott. Thank you.
        Mr. Fox?

             TESTIMONY OF JAMES P. FOX, DISTRICT ATTORNEY,
                          SAN MATEO COUNTY, CA

        Mr. Fox. Chairman Scott, Ranking Member Gohmert, and
    Members of the Committee, my name is Jim Fox. I am the district
    attorney of San Mateo County in California and the chairman of
    the board of directors of the National District Attorneys
    Association.
        Some of us are old enough to remember Father Flanagan, the
    founder of Boys Town. He was famous for having said, ``There is
    no such thing as a bad boy.'' I started in the criminal justice
    system in 1966, 43 years ago, when I graduated from law school,
    working in the juvenile hall. And I am here to tell you today
    that, as wonderful as Father Flanagan was, he was not correct
    in saying there is no such thing as a bad boy. There are.
        And, you know, what we are talking about today is changing
    the laws in a number of States, which is going to significantly
    impact the whole criminal justice system, without any real
    guidelines. I couldn't agree more with Ranking Member Gohmert,
    that this is not a Federal issue; this is a State issue.
        Unfortunately, by attempting to put the money as a hook,
    what you are also ultimately going to do is to penalize those
    States which have utilized Byrne/JAG funding for prevention
    programs. So I would suggest that this is not the best way to
    go.
        In looking at the issue, I see in the bill a reference to
    the fact that 16 percent of juveniles doing life sentences are
    determined to have been 15 or younger. I am not familiar on a
    national basis, but I can tell what you the number is in
    California: 1.2 percent of juveniles doing life sentences were
    15 and younger.
        So I would suggest that either--and I do not know what goes
    on in Pennsylvania, but I would suggest that the Congress is
    not the correct mechanism to correct what may very well be an
    injustice in an individual State and to adversely impact all of
    the States.
        We talk about the seriousness of the crime. In California,
    juveniles cannot get life without the possibility of parole,
    tried as adults, unless they are convicted of first-degree
    murder and special circumstances are found true. At that point,
    the court has discretion; it is not automatic.
        And so, I would suggest there is no need for this
    legislation, because who better to consider the appropriateness
    of a sentence than the judge who heard the trial, who heard the
    evidence?
        It has been said that if--and, frankly, I would also like
    to point out that this bill goes further than just life without
    the possibility of parole. As I read it, it mandates parole
    hearings within the first 15 years and then every 3 years
    thereafter, whether the sentence was life without the
    possibility of parole or not. In California, the sentence for
    first-degree murder is 25 years to life. Whether if you are a
    juvenile prosecuted as an adult or if you are an adult, you are
    going to do 25 years before your first eligibility for a parole
    hearing. So you are completely changing the structure of the
    law.
        But what I think really needs to be emphasized is you are
    creating a re-victimization. Those family members of people who
    have been murdered, who have been told that the sentence was
    life without the possibility of parole, that does bring
    finality. Frankly, it brings a greater finality than if
    somebody in California were to be sentenced to the death
    penalty, because they are going to serve at least 25 years
    before that is carried out, with the possibility of reversal.
        Life without the possibility of parole means just that,
    absent commutation. So there are mechanisms available to remedy
    what is perceived to be a miscarriage of justice, and it is
    through the State's executive branch. The Governor of every
    State has the ability to commute a sentence which the Governor
    believes, based upon the evidence and based upon changes of
    circumstances, would be appropriately modified.
        So I do not support this bill. I believe that it does
    adversely impact the whole concept of federalism and the
    States' rights. Sentencing and criminal prosecution is a matter
    for the States. And especially for those States that I believe
    have done it right, it would be inappropriate to enact this
    measure.
        Thank you very much for the opportunity to testify today.
        [The prepared statement of Mr. Fox follows:]
                       Prepared Statement of James P. Fox
        Chairman Scott, Ranking Member Gohmert, members of the
    Subcommittee, thank you for inviting me to testify today on behalf of
    the National District Attorneys Association (NDAA), the oldest and
    largest organization representing over 39,000 district attorneys,
    state's attorneys, attorneys general and county and city prosecutors
    with responsibility for prosecuting criminal violations in every state
    and territory of the United States.
        NDAA has taken the opportunity to review H.R. 2289, the Juvenile
    Justice Accountability and Improvement Act of 2009 and strongly objects
    to what we consider to be an overly broad and one-sided attempt to
    require state legislatures to revise juvenile codes across America to
    make it more difficult to prosecute juvenile offenders as adults for
    egregious crimes and to punish juvenile offenders less seriously for
    their criminal behavior solely because of their perceived immaturity.
        The overwhelming majority of state legislatures appropriately
    adopted sweeping changes to their juvenile codes during the 1990's to
    properly address what the juvenile justice system had far too long
    overlooked, i.e., that protection of the public safety is of paramount
    concern whether the offender is a juvenile or an adult.
        Not only does this legislation fail to recognize the importance of
    this paramount concern of protecting the public safety, it also ignores
    other important concerns which should rightfully be part of the
    decision-making process in reference to crimes committed by juvenile
    offenders, such as the nature and circumstance of the offense, the
    impact upon the victim, and the juvenile offender's criminal history.
    This bill instead focuses solely upon offender-based criteria as being
    the factors which should control the decision-making process, be it the
    decision to directly file or transfer a juvenile offender to adult
    court for prosecution or the decision as to what sanction should
    ultimately be imposed if a juvenile offender is convicted.
        The NDAA supports a balanced approach to juvenile justice which
    properly takes into consideration all relevant factors in deciding what
    criminal charge should be filed against a juvenile offender and whether
    the case should be disposed of in juvenile or adult court, or handled
    under a ``blended sentencing'' model \1\ in those states incorporating
    this middle-ground approach of addressing juvenile crime. These factors
    should include the threat to public safety, the seriousness of the
    crime, the offender's criminal history, the certainty of appropriate
    punishment, and the age and maturity of the offender. This proposed
    legislation considers only the age and maturity of a juvenile offender,
    which is clearly inappropriate. In fact, while age and maturity is an
    appropriate consideration in not only the sentencing but the charging
    of a juvenile offender (a factor, by the way, which is always taken
    into consideration by America's prosecutors), all of the aforementioned
    factors should be considered in the decision-making process as to
    juvenile offenders, with the greatest weight being given to protection
    of the public safety.
    ---------------------------------------------------------------------------
        \1\ ``Blended sentencing'' models currently exist in 15 states in
    America and represent a combination of both juvenile and adult criminal
    sanctions for serious, violent or habitual juvenile offenders whose
    crimes have been determined by either a prosecutor or judge to not
    warrant immediate prosecution or transfer to adult criminal court.
    ---------------------------------------------------------------------------
        The unwritten, but clear implication of this proposed legislation
    is that too many juvenile offenders are prosecuted and sentenced as
    adults in our country. The reality is, in fact, quite the opposite.
    Very few juveniles are prosecuted and sentenced as adults in America,
    contrary to the unwritten implication of this proposed legislation and
    a public misperception driven in large part by sensationalistic media
    coverage of certain high profile cases. Few jurisdictions in America
    prosecute more than 1 to 2% of juvenile criminal offenders as adults,
    and in some jurisdictions this percentage is even lower. In those cases
    where adult court prosecution does occur, the simple fact of the matter
    is that adult court prosecution is clearly warranted in these
    instances.
        In a poll conducted in 1993, 73% of those surveyed across the U.S.
    said that ``violent juveniles should be treated as adults rather than
    as defendants in lenient juvenile courts.'' \2\ While more information
    about human brain development is available today than existed in the
    mid-1990's, there are few juvenile offenders committing murders or
    crimes of violence who do not realize that their actions are wrong and
    most fully understand the gravity of the crimes they have committed. As
    noted above, the age and maturity of these juvenile offenders are
    factors properly considered both as to where the proper venue of the
    case should rest and as to the sentence to be handed down upon
    conviction. These are not, however, the only factors that must be
    considered in these important decisions.
    ---------------------------------------------------------------------------
        \2\ Sam Vincent Meddis, Poll: Treat Juveniles the Same as Adult
    Offenders, USA Today, Oct. 29, 1993, at 1A.
    ---------------------------------------------------------------------------
        Another aspect of this bill that needs to be addressed is the
    aggressive, violent nature of juvenile membership in gangs across
    America. Gangs actively recruit membership in their early-to-mid teens
    to carry out violent and heinous crimes as a way to prove themselves to
    gang leaders and to increase their individual standing within the
    gang's hierarchy. Because many states mandate lesser penalties for
    violent juvenile offenders than adults, gang leadership often have
    juvenile gang members perform violent crimes towards others because
    there is less of an ability to prosecute them.
        While we do believe treatment, rehabilitation, youth gang
    prevention initiatives and after-school programs are important tools in
    addressing America's gang problem, the ability to provide swift
    enforcement of violent juvenile offenders is necessary to keep our
    nation's communities safe. It is our belief that this bill will not
    only weaken America's gang enforcement capabilities, but will give many
    violent offenders who have no desire to be rehabilitated a free pass
    back onto the streets of our communities to commit more violent crime
    against the innocent.
        We believe the vast majority of citizens in our country would
    support the prosecution of these heinous offenders as adults, as well
    as the appropriate prison terms handed down upon conviction for these
    egregious crimes. To argue that these violent offenders, after being
    convicted of crimes warranting a life sentence without the possibility
    of parole should be considered for parole solely because of the
    criminal's age is something America's prosecutors will never support
    and is contrary to the interests of justice and protecting the citizens
    we proudly serve.
        H.R. 2289 also fails to recognize in its findings that 13 states in
    America have set an age of majority for criminal prosecution of less
    than 18 years of age. The NDAA does not agree with the ABA that the age
    of majority for adult criminal prosecution of offenders should be 18
    years of age in every state in this country. To the contrary, this is a
    decision rightfully left to local control and the deliberate and
    thoughtful decisions of state legislatures on this important issue
    should be respected.
        Even more importantly, this legislation fails to acknowledge the
    most fundamental aspect of juvenile codes across America, namely that a
    juvenile offender's age and maturity are always taken into
    consideration in the disposition of a case. In fact, that is the reason
    why we have a juvenile court system in the first place--a system, by
    the way, which is supported by America's prosecutors. It is also
    important to keep in mind that age and maturity are also considered in
    cases involving juvenile offenders transferred and convicted as adults
    for their crimes, with the exception of the imposition upon conviction
    of certain mandatory sentences required by law (and in those instances,
    it is once again state legislatures that have properly concluded after
    thoughtful deliberation that certain crimes are so egregious that
    society should rightfully demand a mandatory minimum sentence for
    offenders convicted of them).
        The NDAA also supports consideration of blended sentencing options
    in appropriate cases where serious, violent or habitual offenders are
    not transferred or waived to adult court. These laws, which are
    sometimes referred to as a ``middle-ground approach'' or a ``one last
    chance option'' for juvenile offenders, are designed for those youth
    who have committed a serious offense which does not initially warrant
    adult prosecution, but which requires greater sanctions and/or longer
    supervision by the juvenile court than is provided in the traditional
    juvenile court system. Blended sentencing laws combine some juvenile
    and adult sanctions, provide for stayed adult sanctions to be imposed
    at a later date should the offender not conform to the conditions of
    the juvenile court disposition, provide incentives for the youth to
    remain law abiding in the future and lengthen the period of supervision
    over the youth by the juvenile court. Blended sentencing models are
    appropriate and necessary in the continuum of sanctions available for
    more serious, violent or habitual offenders, especially for younger
    youth committing very serious crimes.
        Something that cannot be overlooked is how repeated parole hearings
    would adversely affect the victims of these heinous crimes. By
    requiring a parole hearing every three years after 15 years of
    incarceration, this bill would unintentionally harm the victim and the
    victim's family by subjecting them to the ordeal of repeated court
    visits when all they want to do is move on with their lives. Re-
    victimizing a family with these mandated court proceedings is unfair
    and unjust.
        The manner in which this legislation is to be enforced would
    penalize all aspects of America's criminal justice system. Consequences
    outlined in this legislation for states who do not comply would not
    receive 10 percent of the funds obligated to them through the Byrne
    Justice Assistance Grant (JAG) program for each fiscal year of
    noncompliance. The Byrne Justice Assistance Grant program--not to be
    confused with the Byrne Discretionary program, which is entirely
    earmarked--is distributed to states and local areas on a formula basis.
    The formula combines population and crime data, and the funding is used
    to address the most pressing criminal justice problems in a given area.
    States and localities have the flexibility to leverage the small amount
    of funding they get through JAG with their own resources tackle crime
    challenges in innovative ways, including funding allocations to cold
    case units, identity theft investigation, school violence prevention,
    hate crime programs, services for threatened jurors, victims and
    witnesses, and a variety of other efforts.
        Hypothetically speaking, if this bill were signed into law and a
    state did not comply in a timely manner, this law would not only punish
    state and local prosecutors, but thousands of public servants in law
    enforcement, substance abuse prevention and treatment, drug courts,
    corrections, state and local government, victim assistance and juvenile
    justice personnel. In tough economic times, this is the wrong way to
    enforce legislation when state budgets are currently more strapped than
    ever.
        It appears to us that Juvenile Justice Accountability and
    Improvement Act of 2009 is both ill-advised and unnecessary, and we
    strongly urge the United States Congress not to support it. By its
    terms, it is a wholesale attack upon the juvenile codes of states
    throughout America and upon the prosecutors and judges who thoughtfully
    and professionally enforce those codes with fairness and impartiality
    every day. Not only are mitigating factors, such as a juvenile
    offender's age and maturity and amenability to treatment and probation
    properly considered in the decision-making process at every stage of
    the handling of a juvenile crime, so too must aggravating factors be
    considered, such as the severity of the crime, the threat to public
    safety, the impact upon the victims and the offender's criminal
    history. Only when all these factors are properly weighed in the
    decision-making process will our system of justice be in proper balance
    and public confidence exist in the outcomes of the critical decisions
    made in connection with these cases.
        I'd like to thank Chairman Scott, Ranking Member Gohmert and the
    other members of the Subcommittee for giving me the opportunity to
    speak on behalf of America's prosecutors. I am happy to answer any
    questions you may have for me at this time.
                                   __________

        Mr. Scott. Thank you.
        Mr. Mauer?

             TESTIMONY OF MARC MAUER, EXECUTIVE DIRECTOR,
                 THE SENTENCING PROJECT, WASHINGTON, DC

        Mr. Mauer. Mr. Chairman, thank you for the opportunity to
    be here.
        Let me just say that I think, while there are differences
    among us on the panel most likely, that I would like to think
    we all share a concern for the problems of juvenile violence
    and how to respond to that, and the needs of victims of
    juvenile violence and other crimes. And I would like to think
    we could come up with policies that could address these in a
    comprehensive way, that do justice, that invest well in public
    safety. I think that should be our goal.
        I have submitted testimony. Let me make three main points
    from that to summarize what I think are the issues we want to
    look at in regard to this policy.
        The first is that, as we have said, children are, in fact,
    different from adults. And I think here this is not something
    that has come up recently; these are longstanding traditions,
    if you will, in our society and, indeed, in most other
    societies as well. The fact that we have a very broad consensus
    that children cannot buy alcohol or tobacco, cannot join the
    military, cannot vote, this is a recognition about their
    maturity level. And there is no reason why this wouldn't carry
    over into other areas of behavior. Little debate about these
    policies.
        The second way in which children are different is that I
    think we have a longstanding understanding and tradition that
    children are capable of change. This was the premise behind the
    founding of the juvenile court more than 100 years ago as an
    arena of rehabilitation, to acknowledge that, to create
    opportunities, not that it has been without controversy, but
    that is a longstanding tradition as well.
        Indeed, in the work that I have done over many years in
    criminal justice, I have spent a good deal of time in prison,
    in many cases meeting with people serving life sentences, not
    necessarily all juvenile life sentences. And I have seen over
    my years that the people I see in prison who are 35, 40, and 50
    years old are very different from the teenagers who committed
    some horrendous crimes some years before.
        That doesn't suggest that we should release all of them
    tomorrow, but it seems to me it does suggest that we all grow
    up in different phases of our lives, and we need to recognize
    that in the justice system as well as on the outside. There are
    some very important issues here.
        The second issue is in terms of public safety. And here I
    think we know that there is no additional benefit that we as a
    society get from juvenile life without parole than from
    sentences of life with the possibility of parole.
        If we think of the goals of sentencing and what we want to
    accomplish, two elements are key here. The first is that of
    incapacitation. If measures like this were adopted, we would
    have a parole board making a determination about whether a
    person is a reasonable risk to be released into the community
    or not. The goal of incapacitating a dangerous person would
    still be paramount, and we would have a professional parole
    board making that kind of decision. The people in parole I have
    worked with over many years all take that very seriously. I
    don't know any parole boards that are looking forward to
    releasing thousands of people in the streets who could be
    potentially committing violent crimes. They take these things
    seriously and use risk assessments.
        The second area of public safety has to do with deterrence.
    Here, too, there is no evidence that tells us that a sentence
    of life without parole somehow has more of a deterrent effect
    than life with the possibility of parole. If a juvenile or
    anyone else is considering engaging in a serious crime and
    knows that the possibility may be of a life sentence with or
    without parole, either that is a deterrent or not. But the
    additional part of life without parole is no additional
    benefit.
        Unfortunately, when it comes to juveniles, we know many of
    them don't have much of a long-term time horizon. They are not
    very rational. Many of their crimes are impulsive. And so to
    think that they will somehow be deterred by harsher penalties I
    think is fooling ourselves in many ways.
        The third part is the international situation that we know,
    where we do have this very strong contrast between the 2,500
    people serving juvenile life-without-parole sentences in the
    U.S. and none in the rest of the world. And let me just say,
    this is not because there are not problems of violence in other
    countries among juveniles. It is not because they don't have
    gangs in other countries. It is not because they don't have
    access to weapons. Other countries, every other nation, varied
    as they are, has determined that they need to make distinctions
    in this regard, and those are the policies that they have
    adopted.
        In closing, let me just say that, what legislation like
    this would do, we are merely talking about eligibility for
    parole. It would not change one person's situation tomorrow. It
    merely means that a professional parole board would have the
    opportunity to consider all the relevant elements in the case
    and make a determination that way, similar to what we do in
    most States most of the time. And it seems to me that is a very
    reasonable approach.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Mauer follows:]
                        Prepared Statement of Marc Mauer

                                   __________

        Mr. Scott. Thank you.
        And now the panel, we have been joined by Mr. Lungren from
    California and my colleague from Virginia, Mr. Goodlatte. I
    will begin asking questions under the--oh, excuse me, Mr.
    Quigley from Illinois.
        We will begin with 5-minute questioning from the Members of
    the panel. And I will begin with Mr. Mauer.
        Can you speak of the deterrent effect of life without
    parole rather than life?
        Mr. Mauer. Well, I don't think there is any evidence
    whatsoever that tells us that there is more of a deterrent
    effect.
        First of all, many crimes of violence are committed under
    the influence of drugs or alcohol. These are not necessarily
    people who are thinking about any kind of deterrence regardless
    of what the penalty is.
        Secondly, just common sense would tell us, if I was
    thinking about committing a serious violent crime and I knew
    the penalty was life with the possibility of parole, you know,
    if that is not sufficient to deter me, it is hard to imagine
    why life without parole is going to be any greater of a
    deterrent. If it means serving 15, 20, 30 years, there are not
    very many people who are willing to give that up to commit a
    crime.
        So there is no research evidence to support that.
        Mr. Scott. Does the research show that the deterrence is a
    calculation of whether you are going to get caught and not the
    length of the sentence?
        Mr. Mauer. The research in deterrence generally shows that
    the certainty of punishment is much more important than
    severity of punishment. If we can do something to increase the
    prospects someone will be apprehended, Some people will think
    twice, but merely enhancing the sentence that they will receive
    if they are caught, for people who by and large are not
    thinking about getting caught, doesn't buy us very much.
        Mr. Scott. Can you say something about the proportionality
    compared to other sentences for people who are caught up as
    lookouts and just involved on a tangent in a crime?
        Mr. Mauer. Well, we have, you know, through felony murder
    rules and similar policies, yes, those people are engaging in
    criminal activity and, yes, there needs to be some sort of
    appropriate punishment for them. But the scale of what we are
    looking at in this case, because these penalties are so severe,
    you know, compared to other kinds of criminal behaviors, well
    beyond the proportionality differences we normally see in the
    court system.
        Mr. Scott. Mr. Fox, Virginia passed a--just relatively
    recently passed legislation allowing review of cases, some
    cases, after I think it's 20 days or just a matter of weeks.
    Isn't it sometimes the case that persons are determined to be
    factually innocent of the charge way after the finality of the
    sentence?
        Mr. Fox. I am certainly aware that that has occurred,
    primarily through the development of DNA, that people who have
    been convicted have been determined to be factually innocent,
    yes.
        Mr. Scott. Are there any cases for which people are serving
    life without parole where parole would be appropriate? There
    are, obviously, some where they would not be appropriate, but
    are there some where it would be appropriate?
        Mr. Fox. Well, as I said, I am not in a position to comment
    upon the laws of other States, such as Pennsylvania or
    Michigan.
        I do not believe, having as much experience as I do in the
    State of California, that people are doing life without parole
    inappropriately. As I said, in the juvenile cases, the court
    exercises discretion. It has the discretion and only in rare
    cases will the court ultimately impose what is the ultimate
    penalty for a juvenile, which is life without the possibility
    of parole.
        Mr. Scott. In California, it's discretionary, but in a lot
    of States it's mandatory. Is a mandatory life without parole an
    appropriate sentence for a lookout?
        Mr. Fox. It may be. It depends upon the background of the
    lookout. If the lookout had a prior murder and is now
    committing a robbery, yes.
        Mr. Scott. And I think it may be or it may not be.
        Mr. Fox. That is something, though, for the individual
    States to pass judgment on.
        Mr. Scott. And what is it about American children, Mr. Fox,
    that makes life without parole appropriate only in the United
    States and nowhere else in the world?
        Mr. Fox. Well, I don't know, as, again, I am talking
    primarily about California. But, in the United States, we have
    a system of justice that is unlike most others, especially in
    terms of the due process that is afforded; and so our system of
    justice is not the same as in most other countries. That
    doesn't necessarily make it bad.
        Mr. Scott. Thank you.
        Mr. Gohmert.
        Mr. Gohmert. Thank you, Chairman Scott.
        I do appreciate everybody's testimony here today, but I am
    intrigued. Some of the arguments--well, actually, most of the
    arguments I am hearing presented against life without parole
    are similar and may be at least akin to arguments that have
    been made against the death penalty. And, in fact, I know in
    Texas, as the issue of life without parole was debated, the big
    push to adopt it was so that we could have this option and
    maybe we don't even need the death penalty. Because if we could
    just force everybody to only do a maximum of life without
    parole, then you can be assured that this is the end-all/be-
    all. It's not going to get reversed once you know that it's
    been appealed. There won't be any parole.
        And so you can be comfortable that this monster that
    killed, harmed, this antisocial personality who knew right from
    wrong, who chose to do wrong, unlike people who may be guilty
    of hate crimes who, through mediation and whatnot, have been
    found to be rehabilitatable, often, unless they are an
    antisocial personality.
        But here, after hearing States like mine promise, look,
    let's go to life without parole instead of the death penalty,
    because that is such a permanent situation. You won't have to
    ever--and now I am hearing, okay, those who bought into the
    life without parole, now let's talk about the problems with
    life without parole and bring that down.
        And it seems like it would be more genuine just to do--I
    know Dr. White is a proponent, as she has said, talking about
    punishment not being all that much helpful. Just say, look, we
    don't think punishment is that helpful. Don't even let's have
    it. Let's all try to be nice to each other.
        But I also have been curious--and I don't know if any of
    all know, through any of your own research--do you happen to
    know how many people in this country have been sentenced to
    death and executed summarily by a juvenile conducting his own
    court? Does anybody know how many people have been sentenced
    and executed by juveniles in this country?
        Because, as Ms. Bishop-Jenkins is pointing out, I am afraid
    we haven't let some of those victims' families know that this
    is ongoing and that if we are going to involve ourselves in
    substituting our judgment for the judgment of each State, those
    people that have testified repeatedly before State legislatures
    ought to know that we are about to usurp that power and you
    need to come let your voices be heard here. It sounds like
    nobody is aware.
        My big concern particularly, though, is the automatic
    sentencing of a juvenile to life without parole. Even in the
    death penalty in Texas when I handled those cases, I mean, it
    was hard to get the death penalty. You had to prove that they
    either committed the murder or knew that there was a murder
    going to be committed or a future danger and there was no
    evidence mitigating against the death penalty.
        So, depending on the State, I would certainly want to go
    testify if somebody wasn't going to--if they were going to try
    to make it automatic. This is not a good idea. You have got to
    have some discretion.
        But I am also--and I see my time is running out.
        You have each given wonderful perspectives, but I would
    hope that you are all aware, there are gangs--I have heard
    testimony about this. There are gangs who know in certain
    States that juveniles are treated better. Therefore, they get
    the juveniles to do the murdering, because they know there's no
    way they can be treated as harshly as the guys a couple of
    years older. And so I think we need to step back and maybe, as
    Ms. Bishop-Jenkins said, hear from all the people, all the
    stakeholders, before we jump in and usurp the power of the
    States.
        And I appreciate you letting me get that in. Thank you.
        Mr. Scott. Mr. Lungren.
        Mr. Lungren. Thank you very much, Mr. Chairman.
        I do note the absence of any representatives of the
    victims' rights organizations in California. And I, along with
    Mr. Fox and others, have worked very hard in the State of
    California on criminal justice reform and always, always, we
    had the voices of the victims of crime or their families to
    comment on it. And if this Congress is going to change the law
    such that it changes the law in my State, I would hope that we
    would have the opportunity to do that.
        And I know this is not a mandatory law but it's, once
    again, the Federal Government deciding that the States don't
    matter. You don't mandate it, but what you do is you give them
    money for a specific purpose, and now you are going to penalize
    them if they don't follow this. Talk about a shell game.
        But I guess we don't need governors anymore now. Governors
    can't even say they don't want stimulus money, because courts
    say they have to take it. We don't need CEOs anymore, because
    the President of the United States is now CEO of the largest
    automobile company in the United States. Everybody here now
    happens to be stockholders in American companies, and now we
    are going to extend that to the area of criminal justice?
        Professor, also, you mentioned 1984. I happened to be in
    1984, because it was my legislation that made the changes you
    obviously don't think are very good. We got rid of the Parole
    Commission on the Federal level because of the inequities on
    the system as it impacted on victims.
        And while I respect very much, Dr. White, your testimony, I
    would have to say your testimony is probably minority testimony
    among victims and victims' family members that I know.
        And reference was made here to those who are in prison
    under LWOP, as we call it in California, life without
    possibility of parole, said that they all--we all grow up in
    different phases of our lives and no long-term life horizon.
        At least in California you have got to commit first-degree
    murder with special circumstances to get this kind of a
    sentence. The victims don't have any long-term life horizon.
    They are not growing up in different phases of their lives.
    It's the whole reason that the ones who did the injustice to
    them are no longer there.
        So I have some real problems with the premises of this bill
    that somehow we, the Federal Government, know so much better
    than the States as to what they ought to do with their system.
    We worked very hard in California to create our system. You may
    not like it, but it's the one that we have come up with, both
    through the vote of the people and through the legislature. And
    we have made changes over time, and we have lower crime rates
    than we had before when we had these other systems.
        I will never forget, when I became attorney general, I
    started working on the indeterminate sentence program that we
    had in California, victims coming to go me, saying it was a
    joke on them. They were the only ones who didn't know what
    really was happening in the system. They heard a sentence. They
    heard with their ears what the sentence was, but it didn't mean
    anything.
        Now we are going to tell people who have sat in those rooms
    listening to the crucial and horrific descriptions of the
    murder of their loved ones and heard a judge authoritatively
    say, under these circumstances, you don't have to worry. This
    person will never see the outside again. They are going to be
    life without possibility of parole. We are not going to talk
    about death penalty, life without possibility of parole. You
    can understand that.
        Now we are going to tell those families we lied to you? I
    guess that's what we are going to do.
        I mean, I appreciate the fact that families of those
    incarcerated suffer, but I have also seen the people who suffer
    on the other side, the anguish they go through with every
    parole hearing. The fact that witnesses are no longer
    available. The fact that the father and the mother no longer
    can come and see that.
        I mean, this idea that now you are going to say to them
    every 3 years they are going to go through this after a period
    of time? Maybe there are some changes that need to be made in
    different States, but I would just have to say that this is
    overwhelmingly over the top.
        Ms. Bishop-Jenkins, what was your state of mind? What's the
    state of mind of your family with respect to the fact that the
    person who did this, those who did the murder against your
    family were going to be put away for the rest of their lives?
        Ms. Bishop-Jenkins. Thank you so much, Congressman.
        I have to tell you that it was everything. It made all the
    difference. Because the most difficult part of losing Nancy and
    Richard and the baby was having to go through the trial then
    for 18 months of a trial and one appeal. And to have to go into
    court and to be in that adversarial process and to face him and
    to hear the other side argument and to see him, have to be in
    the same room and be very close to him physically, to have to
    face the prospect, as we know----
        And I now work with victims all across the United States,
    and I know what it's like in States that do have parole.
    Illinois does not have parole, and we haven't had it for 30
    years. There is no bureaucracy in place whatsoever.
        We have determinate sentencing where offenders can earn
    time off based on their own good behavior. It's a better
    system. It's a system supported by offenders, because it allows
    them not to be the subject of a politically appointed parole
    board but to actually earn their time off with their own good
    behavior.
        And yet, because of determinant sentencing, that one
    sentence of life, that one most serious sentence, which is only
    reserved in Illinois to the very, very, few, you have to have
    either killed multiple people, as in our case, or you have to
    have killed a police officer or you have to have killed a child
    during a sex offense. That's it. Those are the only people that
    can get that.
        It's not even the, quote, unquote, routine murders, a
    single murder, one person killing another person. These are
    extremely--they would be death penalty cases if they were over
    age 17.
        And for our family to know that we really did not ever have
    to deal with that again, that agony, those years of the trials
    and the hearing, that was just unbelievably important to us.
        Mr. Lungren. Was there a sense of closure?
        Ms. Bishop-Jenkins. Closure is never a word I use. I work
    with victims every day, and I would never use that word. There
    was legal finality, and there was a peace that allowed me to do
    extraordinary things.
        The last 20 years, I have been doing work with victims
    every day. I have been working with Dr. White. I have been
    working with many organizations. I have been working for
    violence prevention. I work with troubled youth.
        I have been able to do that because I have the peace of
    mind of not having to worry that the extreme guy in our case
    could ever get out.
        Now, I realize that there's a spectrum here, and there are
    cases at this end and there are cases at this end. Clearly,
    Anita's brother is a case at this end, and my case is at this
    end. There's no question about that. And I believe, as I said
    in my testimony, that we do need to come together to talk about
    what we can do at the cases at this end.
        But to retroactively require parole hearings on families
    where, like my case, where he was only 4 weeks away from his
    adult birthday, clearly was adult in his behavior. He was not
    on drugs. He was not acting with people. He was extremely
    intelligent. He came from a very advantaged family. It's just a
    very, very different situation.
        And, by the way, the vast majority of these cases
    nationwide, the vast majority of them are more like mine than
    they are like Anita's.
        Mr. Scott. Has the gentleman concluded?
        Mr. Lungren. Yes.
        Mr. Scott. The gentleman's time has expired.
        The gentleman from Texas, Mr. Poe.
        Mr. Poe. Thank you, Mr. Chairman.
        I thank all of you for being here. I believe that all of
    you have intentions to make our system a better system, and I
    thank you for that.
        Spending most of my life in the criminal justice system as
    a prosecutor and a judge, I saw a lot of folks work their way
    to the courthouse or the palace of perjury, as I referred to it
    in those days. And trying 25,000 felony cases, I came to
    believe that our system discriminates against victims based on
    the age of the offender; and because a victim is victimized by
    someone under a certain age, that victim does not receive the
    same justice in our court of law as a person who may have been
    victimized by someone that was an adult.
        As you know, Professor, in Texas, a 17 year-old is an
    adult. And having tried two cases where a 17 year-old was
    charged with capital murder trying to murder a Houston police
    officer at the age of 14 and did not succeed because the gun
    jammed and then being successful as a 17 year-old in murdering
    a Houston peace officer, a jury sentenced him to death.
        And then the two girls, Elizabeth Pena and Jennifer Erdman,
    had the misfortune of coming across a bunch of gangsters,
    teenage gangsters who kidnapped them and sexually assaulted
    them, brutalized them, tortured them and killed them. But the
    gangsters were 17. Although they all received the death
    penalty, the Supreme Court now, using international law, for
    some reason, has said that 17 year-olds aren't quite competent
    to be executed; and now they are all supposedly serving life
    without parole in Texas penitentiaries.
        Based on what I have seen, there is no such thing as life
    without parole. People always get out of the penitentiary
    eventually.
        I have seen statistics where people spend the rest of their
    natural life in prison, but those are very rare. And when you
    bring in the concept to a victim that we are going to reexamine
    these cases again, that brings the whole case back. When we
    have had these hearings, these appellate hearings and
    sentencing hearings and writs of mandamus--or writs of habeas
    corpus, rather, heard on these cases, they relive every minute
    of the entire case. It's never over.
        My friend from California talked about closure. You are
    right, Ms. Bishop-Jenkins. There's no such thing. It's never
    over. And now we are asking them to relive the entire episode
    every 3 years so that maybe this person will be released and
    maybe they won't.
        It seems to me that punishment hearings should incorporate
    punishment. I do not believe that a punishment hearing should
    be therapy, where we try to talk through a crime with an
    individual and then, when they understand they did wrong, let
    them go. I am not of that school. I saw too much at the
    courthouse with those people who came through the courthouse.
        And before I get to specific questions, I have had a lot of
    lawyers, including many of my friends who are in the defense
    bar, agree that some of the meanest people, unfortunately, in
    our culture, are teenagers. They are as mean as some of these
    40-year-olds that have led a life of crime all their lives. And
    that is a societal problem that we have got to correct
    somewhere to prevent people from getting into the system.
    Because once they are in the system, they are going to stay in
    the system. Almost all of them do.
        Professor, since your own notice as to what question I am
    going to ask you, since it was in the paper today--by the way,
    my daughter teaches at Baylor, so I am familiar with your
    reputation, and it's excellent. Why is not this a States rights
    issue?
        Mr. Osler. Well, I think that you and I probably agree, and
    the Ranking Member as well, in terms of federalism in a broad
    sense. If I had it to do and construct government, I would have
    States taxed for the things that they do and not--and start
    with the Edward Byrne Act and not have the funding that comes
    with the mandates.
        The fact is, though, that right now what we have is a
    number of mandates that go with funding, a number of
    restrictions, in a broad array of areas. And it seems to me
    that, given that that's the reality, that if we are going to
    stop that, this bill being the stopping point would be
    unfortunate where it involves an important issue that involves
    children.
        I think that, again, in the broad sense, I certainly agree
    with you about the role of federalism and States rights. But
    the fact is that this bill has to do with and in a way amends
    what already is a gigantic body of law that is built on those
    mandates.
        In terms of juveniles and the way that that plays in,
    children are different. I agree with you. And, as a prosecutor
    and as a defense attorney, I have seen that there are children
    capable of vicious, cruel acts that would be terrible by
    someone of any age. What is different, though, is that they are
    not emotionally mature, that there is capability to change
    there, and that we have to look at that differently, as we do
    in almost every other area of the law, that children are
    different.
        Mr. Poe. And if I may have one other question, Mr.
    Chairman.
        Ms. Bishop-Jenkins, I know of your case, of course; and
    being the chairman of the Victim's Right Caucus, along with my
    friend, Mr. Costa of California, we are aware of your
    situation. If this bill doesn't help pick out those certain
    juveniles serving time that can come back into society, what
    would you suggest?
        Ms. Bishop-Jenkins. Thank you so much for asking that very
    important question, because I do think that, clearly, there is
    a need for criminal justice reform in every aspect of our
    society, not just in juvenile life sentencing but across the
    board. There are people oversentenced in our prisons. There are
    people innocent in our prisons. We need to create better
    processes for addressing those.
        But I will tell you what we have been asking everyone to
    focus on. Because remember what I said in my testimony, the key
    problem with this bill for families, most of the families
    across the country--and there's probably about 10,000 people
    like me across the country--the problem is the retroactivity
    and the retroactivity with regard to a mandate to parole.
    Because, again, many States don't have parole. So that was
    never even a possibility in our system.
        And to prepare for a parole hearing, where we would then
    have to take off work, travel, go and fight this every 3 years,
    we would have to have documents and evidence and witnesses
    available to us that are not now and never can be. So the
    retroactivity is a real problem. The parole piece is a real
    problem.
        But what we do suggest as an organization, our National
    Organization of Victims of ``Juvenile Lifers'' is suggesting
    that all legislative reform that is seen to be necessary, where
    it is necessary--and I think in some cases it may be, and in
    some cases it may not be--is to do it at the input end. That's
    where it makes sense, is to put in those layers of protection
    so that any juvenile that's going to be transferred to an adult
    court has that very specific--where it's discretionary, where
    it's case by case, where the people who know the case best can
    evaluate, yes, this guy should; no, this guy should not.
        Obviously, the problem with Anita's case was the mandatory
    nature of it, a judge saying he didn't even want to do it.
        So I think what you do is you give district attorneys, you
    give judges and the people who know the cases the best and you
    give the offenders that extra layer of protection on the input
    end, where they are able to demonstrate and argue in special
    hearings, yes, they should be transferred to adult court; no,
    they should not. And once that determination is made, you have
    to leave that stand.
        Because the problem is that you--this bill's model actually
    is not fixing the problem. It is not fixing the problem. It is
    not addressing the problem that's getting juveniles into the
    system in the first place.
        This bill is only punishing the victims. That's all it is
    doing, and it's not even guaranteed to get out the people who
    need to get out, because it is parole boards, and they don't
    always do the right thing.
        Mr. Poe. Thank you.
        Mr. Scott. Ms. Bishop-Jenkins, do I understand you would
    support the bill if it did not have the retroactivity and if
    you eliminated the mandatory minimums?
        Ms. Bishop-Jenkins. I would support the bill if it were
    prospective only and it focused on asking States in some way
    that doesn't violate--I agree with all the federalism concerns.
    But focused on requiring States to eliminate the mandatory
    transfer of juveniles to adult court, yes.
        Mr. Scott. And the mandatory sentence. Because some of them
    get mandatory sentences for involvement in a crime where their
    involvement may not have been much criminality at all.
        Ms. Bishop-Jenkins. I believe that the issues of felony
    murder, accomplices murder, is a very different question that
    has to be examined by States.
        Because, in fact, you know, there is an accomplice and
    there is an accomplice. There is the accomplice that handed the
    offender the gun. He, in my mind, is more culpable. And then
    there are, you know, lesser offenses, obviously, in terms of
    felony murder. But felony murder statutes are a whole different
    question.
        I think the question before this body is the question of
    transferring juveniles to adult court. That is the key, and I
    think that with extra protections you could solve the problems
    without doing it on the backs of the victims' families.
        Mr. Scott. Well, I will let my colleagues know that I want
    a transcript of this proceeding because of all of the
    federalism concerns. Because we will be quoting you--be quoting
    you. Because a lot of the problems we have is because of the
    violation of the concept of federalism, that the States do what
    we passed. And a lot of criminal laws where there is no real
    Federal interest, occasionally, just occasionally, the Supreme
    Court will correct us on that.
        In the school drug-free zone--I think it was the Lopez
    case--we went too far because there is no Federal interest in
    that and we have done that quite frequently.
        I would ask unanimous consent that the Nunez case be placed
    in the record of the hearing.
        Without objection.
        [The information referred to follows:]

                                   __________

        Mr. Scott. Any other comments from the Members?
        Mr. Gohmert. Just that I would like a transcript, too, so
    we can have you nailed down on your federalism concerns as
    well. Thank you.
        Mr. Scott. That is fair enough.
        We have received testimony from a large number of groups.
        First, I would like to thank the witnesses for their
    testimony. Members may have additional written questions for
    the witnesses, and we would ask you to forward answers as
    promptly as possible so the answers can be made part of the
    record.
        We have received written testimony from a large number of
    groups, as well as private individuals, which I will ask to be
    made part of the record:
        The Council of Juvenile Correctional Administrators; the
    General Board of Church & Society of the United Methodist
    Church; the American Psychological Association; the Campaign
    for Fair Sentencing of Youth; the National Association of
    Criminal Defense Lawyers; the Children's Defense Fund; the
    Human Rights Watch; the Constitution Project; the Center for
    Law and Global Justice, University of San Francisco Law School;
    the Louisiana Conference of Catholic Bishops; the Diocese of
    Des Moines; and Professor Jeffrey Fagan of the Columbia Law
    School and the Columbia Law School Human Rights Institute.
        Without objection, those statements will be made part of
    the record.
        [The information referred to follows:]

                                   __________

        Mr. Scott. Without objection, the hearing record will
    remain open for 1 week for the submission of additional
    materials.
        And without objection--the gentleman from California.
        Mr. Lungren. Mr. Chairman, does that mean other
    organizations' victims rights groups would have the opportunity
    to be able to present? I didn't hear any in your list of
    outside groups that submitted information. Is there a way for
    us to contact those groups?
        Mr. Scott. If I could read the next sentence in my
    statement.
        Without objection, the hearing record will remain open for
    1 week for the submission of additional materials.
        Without objection, the Subcommittee stands adjourned.
        [Whereupon, at 4:35 p.m., the Subcommittee was adjourned.]

                                A P P E N D I X

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                   Material Submitted for the Hearing Record