[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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20402-0001
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
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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
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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