[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
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                       COMMITTEE ON THE JUDICIARY

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

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

        Subcommittee on Crime, Terrorism, and Homeland Security

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

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

                      Bobby Vassar, Chief Counsel

                    Caroline Lynch, Minority Counsel












                            C O N T E N T S

                              ----------                              

                              JUNE 9, 2009

                                                                   Page

                                THE BILL

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

                           OPENING STATEMENTS

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

                               WITNESSES

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

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

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

                                APPENDIX

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

 
      JUVENILE JUSTICE ACCOUNTABILITY AND IMPROVEMENT ACT OF 2009

                              ----------                              


                         TUESDAY, JUNE 9, 2009

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

    The Subcommittee met, pursuant to notice, at 3:07 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Robert 
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
    Present: Representatives Scott, Lofgren, Quigley, Gohmert, 
Poe, Goodlatte, and Lungren.
    Staff Present: (Majority) Bobby Vassar, Subcommittee Chief 
Counsel; Jesselyn McCurdy, Counsel; Karen Wilkinson, Federal 
Public Defender Office Detailee; Veronica Eligan, Professional 
Staff Member; (Minority) Kimani Little, Counsel; and Kelsey 
Whitlock, Staff Assistant.
    Mr. Scott. The Subcommittee will now come to order.
    I am pleased to welcome you today to the hearing before the 
Subcommittee on Crime, Terrorism, and Homeland Security on H.R. 
2289, the ``Juvenile Justice Accountability and Improvement Act 
of 2009.''
    The United States is the only country on Earth that 
sentences children to die in prison. While other countries have 
abolished this practice, we continue to impose this sentence at 
alarming rates, and in 14 States children as young as 8 years 
old can be sentenced to life without parole.
    Currently, the United States has over 2,500 people in 
prison serving life sentences without parole for crimes they 
committed as children. For the majority of these juveniles, it 
was their first offense.
    What is alarming is that over 2,000 of the 2,500-plus 
juvenile life-without-parole sentences resulted from mandatory 
minimum sentencing guidelines that required the court to impose 
the life sentence. In 29 States, once a youth is convicted of 
certain crimes, the court must impose life and cannot give 
consideration at sentencing to either the child's age or life 
history.
    Whether or not these mandatory minimum sentences were 
intentionally designed to penalize such a large number of 
juvenile offenders is not clear. A recent case, In re Nunez, 
seems to indicate that the sentencing of some juveniles to life 
without parole is an unintended consequence of harsh mandatory 
sentencing schemes originally designed for adult offenders.
    In Nunez, the court compared California State sentences for 
first-degree murder and for kidnapping for ransom that does not 
result in injury. Under current laws, a 14-year-old convicted 
of kidnapping for ransom that involved a substantial risk of 
death, but no death or even injury occurred, they would receive 
a mandatory life-without-parole sentence. Had the offender 
murdered the victim and been convicted, the harshest sentence 
he could have received would be life with parole.
    The inconsistency between these two sentencing schemes 
implies that at least some juvenile life-without-parole 
sentences have resulted because of legislative oversight as 
opposed to any deliberate legislative intent.
    Also of concern is that over a quarter of youth offenders 
serving life-without-parole sentences were convicted of felony 
murder. Under felony murder laws, a teen who commits a non-
homicide felony, such as robbery, is held responsible for a 
codefendant's act of murder that occurs during the course of 
the felony. State laws do not require the child offender to 
have intended or even known that murder would take place, or 
that he even participated, or even that the other participant 
was armed--he might not have even known that.
    These felony murder convictions are problematic when we 
consider that many of the juveniles serving these sentences 
committed their crimes with adult codefendants. In California, 
for example, 70 percent of the juvenile life-without-parole 
cases in which a teen was acting with codefendants, at least 
one of the codefendants was an adult. In over 50 percent of 
these cases, the adult received a more lenient sentence than 
the teen, even though the children generally were neither the 
ringleaders, sometimes not even directly involved.
    For example, if a 13-year-old juvenile joins a 25-year-old 
brother in stealing a car and going on a joy ride, while the 
13-year-old juvenile waits in the stolen vehicle his older 
brother stops at a drug house and murders someone, because the 
13-year-old juvenile helped steal the vehicle that was used to 
drive to the drug house, under the felony murder rule, he will 
be held accountable for the murder that his brother committed 
even if the juvenile did not know of the plan.
    Now, scientists have revealed that children's brains are 
underdeveloped in areas dealing with impulse control, 
regulation of emotions, risk assessment, and moral reasoning. 
During adolescence, neurological structures most critical to 
making good judgments, as well as moral and ethical decisions, 
are still being developed. Additionally, because of their low 
social status in relation to adults and their dependency on 
adults, juveniles are uniquely susceptible to coercion and 
intimidation by adults.
    For these reasons, the United States Supreme Court has 
found that sentencing children to death violates the eighth 
amendment's prohibition against cruel and unusual punishment. 
The California Senate recognized this fact and recently passed 
legislation allowing courts to review juvenile parole cases 
after 10 years and, if appropriate, resentence the offender to 
a new sentence of 25 years to life.
    While juvenile life without parole is often imposed on 
children offenders who have been convicted of crimes of 
homicide, life without parole is also imposed on a variety of 
other crimes, including assault, carjacking, robbery, 
molestation, burglary, drugs, and grand larceny. In many of 
these instances, the crime resulted in no death.
    In the case of Sullivan v. Florida before the Supreme Court 
this coming term, a 13-year-old was sentenced to life without 
parole in Florida after being convicted of sexual battery. In a 
second case to be heard by the Supreme Court this term, Graham 
v. Florida, a 17-year-old on parole was sentenced to life 
without parole for taking part in an armed home invasion which 
also did not result in a murder. The issue before the Supreme 
Court is whether, in either of these cases, whether or not 
there is a violation of the eighth amendment's prohibition of 
cruel and unusual sentences.
    There also appears to be a discriminatory impact in life-
without-parole sentences. African American youth, on average, 
receive juvenile life-without-parole sentences 10 times more 
often than White youth. In Connecticut, Pennsylvania, and 
California, this disparity is even greater, with Black youth 
being sentenced 18 to 28 times more often than White youth.
    In the bill before us, we are not seeking to prohibit the 
incarceration of juveniles from life sentences or mandating 
their release. The bill simply provides that, for a juvenile 
sentence to life or the equivalent, a meaningful opportunity 
for a review and possible parole must take place. Only after 
serving 15 years of incarceration and then only at intervals of 
3 years thereafter will juveniles be allowed a chance to show 
that they are worthy of parole.
    Now, we recognize the pain and suffering of victims of 
child offenders and the need for closure in these cases. For 
this reason, the bill provides for victim notification 
requirements in an effort to protect these victims' rights and 
understandable sentiments. However, there are several States 
that do not sentence juveniles to sentences of life without 
parole which manage this need against the need for society to 
recognize that there are irrefutable scientific differences 
between juveniles and adults in their ability to make 
responsible decisions.
    We recognize these differences in many ways: Juveniles 
can't vote; juveniles can't serve on juries; can't drink, 
smoke, or serve in the military; can't sign contracts, play the 
lottery, and so forth, because they are not viewed as having 
the mental capacity or maturity to responsibly do these things. 
Yet, we toss aside all science and reason regarding the mental 
capacity of juveniles when it comes to crime.
    We addressed this issue in a reasonable manner over 100 
years ago through the establishment of a juvenile court system. 
However, we have allowed the emotions and politics of crime to 
roll back the provisions of that system to substitute the 
harsher adult system in not just serious violent crimes but in 
a whole host of other areas. We continue to do this in spite of 
the fact that every credible study now reveals that treating 
juveniles as adults generally results in them committing more 
serious crimes, and sooner, than similarly situated children 
sentenced as juveniles.
    So we look forward to hearing from the panel on how we can 
address the issue of why we are the only country in the world 
to sentence children to die in prison, sometimes for relatively 
minor involvement in crime.
    [The bill, H.R. 2289, follows:]
    
    
    
    
    Mr. Scott. It is my pleasure to recognize the esteemed 
Ranking Member of the Subcommittee, the gentleman from Texas, 
Judge Gohmert.
    Mr. Gohmert. Thank you, Chairman Scott.
    Today the Crime Subcommittee will review H.R. 2289, the 
``Juvenile Justice Accountability and Improvement Act.'' This 
bill requires States to give parole reviews to juvenile 
offenders who are sentenced to life without parole.
    This bill seeks to regulate prerogative sentencing of 
convicted criminals. That is exclusively a State issue. As most 
law professors and lawyers know but some forget, States have 
exclusive control over the prosecution and sentencing of 
defendants within their jurisdiction unless their laws violate 
a constitutional right.
    In the 1990's, the overwhelming majority of State 
legislatures adopted sweeping changes to their juvenile 
criminal codes to properly address what the juvenile justice 
system had overlooked: that protection of public safety is of 
paramount concern whether the offender is juvenile or adult.
    These State legislatures revised their codes to allow 
juveniles charged with serious violent crimes to be tried as 
adults to ensure that a juvenile offender was not sentenced 
less seriously for their criminal behavior solely because of 
their age and perceived immaturity. They also reasoned that 
juveniles who pause to consider the consequences of their 
conduct before committing crimes will be deterred if they face 
harsh sentences such as life in prison without parole.
    Presently, 39 States allow for juveniles to be tried as 
adults and sentenced to imprisonment for life without parole if 
they are convicted of violent crimes such as murder. In some 
States, a sentence of life without parole is mandatory if a 
juvenile is convicted of certain crimes. In other States, the 
sentencing judge has discretion as to the sentence.
    In its next term, the Supreme Court will consider the 
constitutionality of sentencing certain juveniles to sentences 
of life without parole. In making its decision, the Court will 
consider two cases involving offenders who committed crimes 
that did not result in the death of a victim. That is a 
slightly peculiar choice of cases, considering that Amnesty 
International tells us that almost 93 percent of juveniles 
serving life without parole were convicted of homicide.
    When making its decision in these cases, I hope the Court 
is mindful that prosecutors consider a number of factors when 
they determine whether to charge a juvenile defendant as an 
adult. Included in those factors are the nature and 
circumstances of the offense, the impact of the offense on the 
victim, and the juvenile offender's criminal history.
    As a result of this deliberative process, very few 
juveniles are charged as adults. According to the National 
District Attorneys Association, most jurisdictions in America 
prosecute only 1 to 2 percent of juvenile criminal offenders as 
adults, and in some jurisdictions this percentage is even 
lower.
    These States give prosecutors that discretion because the 
State legislatures and the constituents that they represent 
have determined that tough sentencing is required to punish 
offenders that have committed murder and other violent crimes 
to deter others from committing similar crimes in the future.
    H.R. 2289 violates the principles of federalism that are 
the foundation of our legal system. It is inappropriate at best 
and unconstitutional at worst for Congress to seek to regulate 
the manner in which States determine appropriate sentences for 
State crimes committed and prosecuted within their 
jurisdiction.
    I am also concerned that H.R. 2289 is an unfunded mandate 
that would impose costly financial obligations on a number of 
States. Eleven States and the District of Columbia have 
determined its sentencing systems that do not allow parole. In 
order to implement the requirement of H.R. 2289, these States 
would presumably have to create, fund, and maintain a parole 
board to conduct hearings solely for this particular class of 
juvenile offenders.
    The bill unreasonably threatens to withhold Byrne/JAG 
grants from the States unless they comply with its mandates. 
This threat forces the States to make the 10th-amendment-
negating decision to substitute Congress's judgment for its own 
regarding criminal sentencing or risk losing important funds 
that help State and local law enforcement officials accomplish 
their mission.
    Further, a Federal mandate that a State provide parole 
reviews for one class of offenders that is not available to 
other offenders could create other issues of constitutional 
proportions. Under this bill, two codefendants in a murder 
prosecution here in Washington, DC, one who is 16 years old and 
one who is 19 years old, could be tried as adults and convicted 
of that crime and both sentenced to life in prison without 
parole. However, this legislation would require the 
jurisdiction to give periodic parole reviews to the 16-year-old 
while the 19-year-old would face life in prison. Two 
individuals who committed the same crime would receive two 
different punishments.
    From a personal standpoint, I never sentenced anybody to 
life without parole. We didn't have that when I was a judge in 
Texas. And I would find it a difficult matter to do, especially 
for someone very young because you can consider age in 
determining sentencing with regard to mitigation.
    But I also believe in the constitutional system we have, 
that my judgment, as a Member of Congress, should not be 
substituted and forced onto a State in which I don't live and 
in which I am not part of their legislature.
    And I appreciate the Chairman's comments and the lists 
about things children can't do. But I would note that juveniles 
are allowed to legally abort or kill their unborn children. So 
that is still apparently a constitutional right, as well.
    Personally, I don't like the idea of sentencing children to 
life without parole. It is repugnant. But that is a matter for 
the States, and I hope my State will not do that.
    But with that, I yield back and appreciate the Chairman's 
indulgence.
    Mr. Scott. I thank the gentleman.
    I think we have switched sides on what the States ought to 
do because we have been trying--and so I agree we should not 
normally do this, but I think this is an exceptional situation.
    But we have a distinguished panel of witnesses here to help 
us consider the important issues that are currently before us.
    I ask each of the witnesses to complete his or her 
statement within 5 minutes. And there is a lighting device 
before you on the table which will turn from green to yellow 
when there is 1 minute left and red when your time is up.
    All of the witnesses' statements will be entered into the 
record in their entirety.
    Our first witness will be Professor Mark Osler of Baylor 
Law School. He is a former Federal prosecutor and has argued 
cases in six Federal courts of appeal and the United States 
Supreme Court most recently. As lead counsel, he won the case 
of Spears v. United States in 2009 in the Supreme Court, where 
the Court held that sentencing judges can categorically reject 
the 100:1 ratio between crack and powder cocaine in the Federal 
sentencing guidelines. He is a graduate of Yale Law School and 
serves as the head of the Association of Religiously Affiliated 
Law Schools.
    The next panelist will be Dr. Linda White. She is a former 
adjunct faculty member at Sam Houston State University in 
Huntsville, Texas, in the Department of Psychology and 
Philosophy. She holds a B.S. Degree in psychology and an M.A. 
In clinical psychology from Sam Houston State University and 
earned her Ph.D. from Texas A&M.
    Ms. White's 26-year-old daughter was abducted, raped, and 
murdered in 1986. She is a volunteer mediator with the Victim 
Offender Mediation/Dialogue Program in the Texas Department of 
Criminal Justice and was appointed in 2003 by Governor Rick 
Perry of Texas to represent victims issues in the Texas State 
Council for Adult Offender Supervision. She is a former member 
of the Murder Victims' Families for Reconciliation and a board 
member of the Texas Coalition to Abolish the Death Penalty.
    Our next panelist is Jennifer Bishop-Jenkins. She is the 
sister of Nancy Bishop Langert, who was brutally killed, along 
with her husband and unborn child, in a highly politicized 
killing in Illinois. In 2007, she cofounded the National 
Organization for Victims of Juvenile Lifers to protect victims' 
rights. After a 25-year high school teaching career, she has 
been working as a national program director for victims and 
survivors of gun violence and serves as a member of the 
advisory board to the nonpartisan United States Congressional 
Victims' Rights Caucus.
    Our next panelist is Anita Colon. In addition to her day 
job in human services, she is a human rights and juvenile 
justice advocate. Her brother, Robert Holbrook, was sentenced 
to a life sentence when he was 16 years old after a 
neighborhood drug dealer asked him to serve as a lookout during 
a drug deal that turned into a robbery and a murder. She serves 
as the Pennsylvania State coordinator for the National Campaign 
for Fair Sentencing for Children in Springfield, Pennsylvania. 
She is also a member of the Pennsylvania Prison Society's 
subcommittee focused on juvenile life without parole and Chair 
of the Juvenile Life Without Parole Steering Committee of 
Reconstruction, Incorporated. She attended Villanova 
University, where she majored in criminal justice and obtained 
a master's degree in human services from Lincoln University.
    Our next panelist is James Fox, district attorney in San 
Mateo County, California, and a board member of the National 
District Attorneys Association. He attended the University of 
San Francisco School of Law and has a degree in psychology. He 
is a board member of the Mercy High School and Junipero Serra 
High School and is also a member of the Criminal Law Advisory 
Committee of the Judicial Council of California. He will be 
testifying on behalf of the National District Attorneys 
Association.
    And last but not least is Marc Mauer, the executive 
director of The Sentencing Project. He is one of the country's 
leading experts on sentencing policy, race, and the criminal 
justice system. He has directed programs in criminal justice 
policy reform for 30 years and is the author of some of the 
most widely cited reports and publications in the field, 
including ``Young Black Men and the Criminal Justice System'' 
and the ``Americans Behind Bars'' series comparing 
international rates of incarceration. He is a graduate of Stony 
Brook University and earned a master's in social work from the 
University of Michigan.
    So we will begin with Professor Osler.

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

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





                               __________
    Mr. Scott. Dr. White?

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

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

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

    Ms. Bishop-Jenkins. Thank you, Mr. Chairman and Members of 
the Committee. My name is Jennifer Bishop-Jenkins, and I am one 
of the founders of the National Organization of Victims of 
Juvenile Lifers.
    In 1990, my sister Nancy, her husband Richard, and their 
unborn child were brutally murdered in Winnetka, Illinois, by a 
young man 4 weeks shy of his legal adulthood. He planned the 
murders alone and reportedly did it for the thrill of it. He 
shot Richard in the back of his head and then turned the gun on 
my beautiful young sister, who begged him not to kill her baby. 
He fired directly at her abdomen, exploding the baby, leaving 
Nancy bleeding to death. And Nancy's last act of life was to 
draw a heart and a ``U'' in her own blood.
    I have devoted the relative peace and legal finality that 
his three natural life sentences brought us to the prevention 
of violence and advancing human rights. And I have come here to 
tell you that the bill before us actually deeply flawed. It is 
the antithesis of due process and it is a violation of 
fundamental victims' rights to even consider retroactively 
changing life-without-parole sentences, certainly not without 
informing and involving the victims.
    Our family's experience illustrates the rank unfairness. We 
were promised life without parole by a judge who chose to 
exercise a discretionary life sentence for such a heinous crime 
because of his privileged upbringing and complete lack of 
remorse. And relying on that promise, we believed this part of 
our ordeal was over.
    So we don't have transcripts of the sentencing. The court 
reporter, with his stenographic tapes, cannot be found. We 
can't contact the jurors. My father, the best witness to the 
carnage of the crime scene, has died. We can't get statements 
from prosecutors, evidence technicians, and police, who had 
direct contact with the case. Witnesses cannot now be found, 
such as Nancy's next-door neighbor who heard her terrified 
pleas for help, and the friend of the killer to whom he 
confided details of the awful crime.
    All that we could have gathered to arm ourselves for a 
parole hearing someday is lost, lost because we were promised 
that parole or early release for this killer was not possible. 
And this is a sickening bait and switch.
    I have used my own limited resources to notify a few other 
victims of this well-funded national effort to free these 
killers. All were told the same thing: ``Don't worry, this guy 
can't ever get out.''
    This new uncertainty renders our situation entirely 
different from victims like Linda White, because, though she 
and I have worked together a long time as murder victims' 
family members devoted to restorative justice and human rights, 
as she herself told you, I am sad to say she literally has no 
standing in this specific discussion because the offenders in 
her case did not receive this sentence.
    The temerity of anyone to propose anything that so 
profoundly affects us without notifying us is appalling. If you 
haven't gone through it, you cannot understand the impact of 
this proposal before us. Parole hearings are incredibly re-
traumatizing. They deprive victims of legal finality. To reopen 
this pain every 3 years for the rest of our lives and perhaps 
those of my children is quite literally torture. Proponents of 
this legislation will be hard-pressed to produce one victim's 
family like ours where the offender had no relation to the 
victim who actually wants to endure this lifetime of parole 
hearings.
    They will no doubt give you some rare legitimate stories of 
injustice that, like all problems in the criminal justice 
system, can and should be addressed. But we can easily outmatch 
them with horror stories, such as 12-year-old Victoria Larson, 
whose killer dug her grave 3 days before raping and killing 
her. He had already been given his second chance; he was 
already out on juvenile parole, a parole that he used to rape 
and murder her. And the 16-year-old who took the 5-year-old 
girl into the abandoned housing project in Chicago and raped 
her and then threw her out a 14-story window. As she clung with 
fingertips to the windowsill, screaming for her mother, he went 
to the window and lifted off her hands, sending her to her 
death--5 years old.
    This is not impulse. This is callous disregard for human 
life with cool, advanced planning by people old enough to know 
that killing is wrong.
    I note that this room is not filled with victims' families 
of these crimes. I promise you it is not because they do not 
care. It is because no one has bothered to tell them that you 
are doing this, despite our pleas to this Committee for victim 
notification in advance of legislation and our pleas to the 
advocates of these offenders, who have spent millions 
supporting them, that they devote a small, nominal proportion 
to outreach to victims' families of these crimes.
    My written testimony will detail other important issues 
pertaining to this legislation, such as how the brain 
development research is actually being misapplied; how a one-
size-fits-all parole mandate cannot work in a Nation where each 
State has a different sentencing scheme, including half of them 
with determinant sentencing and many of them, like my State, 
with no parole structures at all; and ways that juvenile life 
sentence can actually be reformed, as I believe it can, without 
any negative impact on victims, using different ideas.
    We all need a real conversation about reforming this 
process before the filing of any more such legislation and with 
all stakeholders at the table. And in the meantime, as this 
bill stands now, it only transfers the life sentences from the 
guilty offenders to the innocent victims' families left behind.
    Thank you.
    [The prepared statement of Ms. Bishop-Jenkins follows:]
             Prepared Statement of Jennifer Bishop-Jenkins




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

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

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

    Mr. Scott. Thank you.
    Mr. Fox?

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

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

    Mr. Scott. Thank you.
    Mr. Mauer?

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

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



                               __________

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

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

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

                            A P P E N D I X

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               Material Submitted for the Hearing Record





                                 
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