In 2012, the U.S. Supreme Court ruled that mandatory life without parole (LWOP) sentences for juveniles violated the Eighth Amendment's prohibition of cruel and unusual punishment. This decision recognized that mandatory sentences ignored the possibility of maturity, as well as the changeable qualities of recklessness and irresponsibility associated with youth. Nearly two years later, though, there's been no change in the sentences of the fifty inmates currently serving LWOP sentences for juvenile offenses. This hearing, held on Tuesday, was designed to consider possible changes.
Mary Ellen Johnson, executive director of the Pendulum Foundation, an organization that advocates on behalf of juvenile lifers, notes that the Tuesday hearing was a long time coming. Over the last two years, she says, Pendulum sought to submit a bill to get the inmates resentenced. The proposal lost its Republican sponsor in 2013, however -- and when the foundation tried to resubmit the bill this year, the governor backed out, Johnson says, reportedly because he didn't want any controversy over the issue after the murder of Tom Clements, head of the Colorado Department of Corrections."People do not seem to be concerned that they are serving unconstitutional sentences," Johnson says. "They are putting politics above what is right."
For Johnson, the Colorado Supreme Court's decision to finally hold the hearing felt like a form of vindication after a long fight for the juvenile lifers, she says. The three cases presented Tuesday were those of Michael Tate, Tenarro Banks and Erik Jensen, all represented by different defense attorneys pushing for alternate forms of resentencing.
Michael Tate was sixteen when he murdered Steven Fitzgerald during a house burglary gone wrong in 2004. Fitzgerald's son was Tate's accomplice in the robbery. Fifteen-year-old Banks murdered Byris Williams, a teenage boy, for wearing a red sports jersey to a party -- the color, steeped in gang symbolism, reportedly offended Banks. Both Tate and Banks have been incarcerated for close to ten years.
Jensen's case is even more complex, as detailed in Luke Turf's piece "Headed for Trouble." It is still up for debate if Jensen was actually involved in the murder of Julie Ybanez, or whether he was just part of the cleanup operation for Nate, the victim's son and his close friend. Either way, his complicity got him convicted of first-degree murder in 2005 at the age of seventeen. He is now 32.
Continue for more about this week's Colorado Supreme Court hearing about juvenile life sentences. During the hearing, a representative for the state attorney general's office argued for a new maximum penalty: life sentences with the possibility of parole after forty years, a policy that would revive 1985 statues.
All three defense attorneys responded that a mandatory "life with forty" sentence, condemning juveniles to spend their most productive years in prison, was cruel and unusual punishment, and thus also unconstitutional. Although the attorney general's representative maintained that at just over fifty, she was still looking forward to a wealth of productive years, Johnson countered that the quality of life of a juvenile offender exiting prison with a felony record and no job experience would be pretty unfavorable.
"Permanent decisions about a juvenile's life should not be made at the time of sentencing," argued Eric Samler, defense attorney for Tenarro Banks.
Instead of the blanket sentencing option offered by the attorney general, the defense attorneys proposed different resentencing guidelines. Samler advocated life sentences with parole options left up to the judge depending on the peculiarities of the case. Jensen's attorney alternatively recommended reclassifying her client's crime as a class 2 felony due to his age at the time of the murder; that would result in a prison sentence ranging from four-to-48 years.Jensen's attorney also contended that the constitutional revival of the "life with forty" sentence proposed by the attorney general might allow a loophole for adult offenders to petition for similar resentencing under the 1985 statues. And Johnson agrees, citing the amount of litigation that would result from a mandatory forty-year parole option, a road that the state Supreme Court seemed unwilling to take.
In their questions to the attorneys, the justices attempted to unravel the tangle at this intersection of Colorado law and the U.S. Supreme Court. Justices pushed the attorney general's representative to clarify her arguments on the "cut-and-paste" tactics involved with reviving the 1985 statutes. They also pointed out that parole options left to presiding case judges may cause the same irregularity in sentencing that the court is now seeking to eliminate.
The justices did not set a date to deliver their decision.
In the meantime, Johnson will continue to push for change. She notes that no parole-board system currently exists for juvenile offenders, and argues that they cannot be treated as adults in the parole process because they came into the system while underage. Right now, she says, the most viable option would be individual retrials of the offenders as class 2 felons, the same option put forth by Jensen's defense attorney.
Despite the complexity of the arguments offered at Tuesday's hearing, Johnson detected that one thing that had been present in all previous conversations about Colorado's juvenile offenders was missing this time. "Nobody talked about the heinousness of the crimes committed," she says. "Unfortunately or fortunately now, that's irrelevant."
From our archives: "Jacob Ind, 40 others in Colorado could get new sentences due to Supreme Court juvie ruling."
