Four dozen state inmates who are serving sentences of life without parole (LWOP) for crimes they committed when they were teens got a jolt of hope three years ago, when the U.S. Supreme Court ruled that such mandatory sentencing schemes for juveniles were unconstitutional. Those hopes got crushed this month when the Colorado Supreme Court decided, in a series of related challenges to LWOP sentences, that the illegal sentences could simply be tweaked, in many instances, into forty-year-to-life sentences — and that life without parole can still be imposed on juveniles convicted of first-degree murder as long as it's not automatic in all cases.
The convoluted decisions, complete with an array of dissenting minority opinions, have been criticized by sentencing reform advocates as irresponsible, in conflict with the federal case, and muddled. And Boulder District Attorney Stan Garnett has broken with many of his fellow prosecutors to denounce the rulings as "embarrassing" and a "a big disappointment." But Garnett says there's plenty of blame to go around.
"The fault is not really with the Colorado Supreme Court, which did the best it could," Garnett says. "The fault is with the Colorado legislature. The legislature, not the courts, is best suited to weight the pros and cons of various sentencing schemes and implement appropriate ranges. The legislature had plenty of time to do so after Colorado's LWOP scheme was ruled unconstitutional, but it didn't step forward and act. Its failure dumped the issue in the lap of the Colorado Supreme Court."
In 2012, the U.S. Supreme Court ruled in Miller v. Alabama that a mandatory sentence of life without parole for juveniles violates the Eighth Amendment — the one against cruel and unusual punishment. The 5-4 decision didn't preclude the possibility that a teen killer could receive a life sentence, but it required that the sentence be based on individual circumstances, since a one-size-fits-all sentencing arrangement (like Colorado's) fails to take into account an offender's age and other mitigating factors.
The decision set off a scramble in several states to revise sentencing laws for juvenile LWOP cases. But in Colorado, efforts to pass legislation to address the federal ruling stalled out year after year, in an impasse between the Colorado District Attorneys Council (which simply wanted to resentence the LWOP cases to forty-to-life, the scheme in place for juveniles since 2006) and the defense bar and reformers (who wanted to see a wider range of sentencing options).
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In the absence of any legislative directive, the Colorado Supremes decided that the pre-2006 cases could be given life with possibility of parole after forty years "if the resentencing court determines LWOP is not warranted." The change has little practical effect on the prospects of the 48 LWOP cases, whose subjects must serve forty calendar years before parole is even a consideration — and could still end up serving what amounts to a life sentence anyway.
The CSC also ruled that the Miller decision isn't retroactive; in other words, it doesn't apply to defendants who have already exhausted their direct appeals. That decision came in response to a petition for review from Erik Jensen, who's serving life without parole for helping a friend cover up the murder of his mother in 1998, when Jensen was seventeen. Yet as a dissent by Justice William Hood points out, nine of the fifteen state supreme courts that have considered the issue have decided that Miller should be applied retroactively.
Critics of the state court's rulings say that they effectively ignored the fundamental intent of the Miller decision — to judge crimes committed by juveniles, no matter how heinous, according to individual circumstances. And rejecting Jensen's appeal, they say, denies an opportunity for individual resentencing for dozens of others. "The decisions were written with so much dissent as to constitute a non-ruling, and with full knowledge that the rulings will overturned as unconstitutional," predicted Michele Whitmore, chair of the Pendulum Foundation, which advocates for juvenile LWOP cases.
Garnett says the rulings "mean that some young people will die in prison after decades of confinement — denied an education, denied an opportunity to grow and completely denied the opportunity to rehabilitate even after decades in prison.... Coloradoans should expect our legislature to have the moral courage not to abdicate on tough issues such as how our state treats young people who commit crimes. Nothing is more important."