a public defender

I’m a little late in “reporting” on this, but it’s worth pointing out. The esteemed Heritage Foundation has issued a new report/study/propaganda piece/Robert Ludlum laugh-a-thon titled “Adult Times for Adult Crimes: Life Without Parole for Juvenile Killers and Violent Teens”. That title is just as long and unwieldy as some of my titles, which tells you much about the substance (hint: it’s useless).

There’s so much rhetoric in this report that misses the point of not sentencing kids to life in prison that it makes my head spin (and as a by-product, makes the report very difficult to take seriously).

Here’s a sample:

It was a longshot, but by definition, it means that it was worth a shot. The CT Supreme Court recently held in State v. Carrasquillo that mandatory-minimum sentences for juvenile offenders don’t violate the Eight Amendment to the Constitution. This properly should be considered a companion case to the “Life without parole is not cruel and unusual” decision from a few months ago (my post on that decision here).

Like the previous case, the defendant in this case relies heavily on Roper v. Simmons. The defendant argued that juvenile possess characteristics different from adults that make the application of a mandatory-minimum sentence unconstitutional. The defendant did not argue that juveniles cannot be sentenced to 30, 40 or even 50 years in prison, but that a sentencing scheme that deprives a judge the ability to take into consideration the mental development of a teen and sentence less than 25 years is cruel and unusual punishment.

Once again, the court relies on a tested phrase to justify its decision: death is different. Roper spoke only to death, not to any other punishment and thus is inapplicable.

This, in my opinion, is too literal a reading of Roper. While Roper may have dealt only with the death penalty, the studies cited in Roper should have some applicability in the general field of juvenile punishment.

Alternate title: You need an ACLU study to tell you this?

So yes, there’s this ACLU study that I mentioned two weeks ago, basically confirming what anyone with two eyes and half a brain and a somewhat peripheral involvement with either the criminal justice system, local politics or the news could tell you: minority kids are arrested at a far higher rate than white kids in Hartford schools. And not just Hartford schools, but West Hartford and East Hartford.

It’s true. How do I know it’s true?

The Apache County Attorney’s Office has released 12 minutes of the video of the interrogation of the 8-year old charged with murdering his father and his father’s friend.

It’s absolutely disgusting. There are two cops talking to this child, without the presence of a parent, guardian or lawyer.

They repeatedly ask him if he’s lying and whether he was home before he says he was. He steadfastly maintains his version of events and denies being involved. He even describes with some detail a car he saw driving away from the house.

Obviously, this is not the part of the video where he “confesses”. Just listen to the voice of the 8 year old boy. It’s disgusting that they’re doing this.

I am quite curious about the prosecutor’s motive in releasing this truncated video. Any thoughts on that? It seems like a PR ploy, but I can’t quite figure out their angle. Are they bowing to media pressure? Are they trying to show the public that this was a conniving young boy? Portray him as a liar?

Whatever their motives may be, the bottom line is that the police should not have interrogated him for hours without the presence of an adult.

Sometimes cops are too eager to “solve” a crime and do so at the expense of Constitutional rights. This also strikes me as a situation where they have blinders on and are now committed to their theory that the boy did it, while other legitimate avenues of investigation are going cold.

I would be rather surprised if a judge admits this confession at a trial – and if by some miracle it is admitted – I would be even more shocked if an appellate court permitted the conviction to stand.

A shame, really, that this kind of shit still goes on.

An AP report with some clips of the video is below; the full raw feed is at this link.

[youtube]http://www.youtube.com/watch?v=OuZ0AkqSILM[/youtube]

Right on the heels of my post about juvenile offenders comes this decision from CT’s Supreme Court today. In State v. Anthony Allen, a 5-0 majority, in a decision authored by Justice Katz, held that C.G.S. 53a-35a(1), which mandates Life Without Parole (LWOP) for juveniles convicted of a capital felony, does not violate the Eight Amendment to the US Constitution.

The defendant, in making his argument, relied heavily on Roper v. Simmons:

The defendant contends that the sociological and physiological evidence on which Roper relied, which demonstrates that persons under the age of eighteen differ from adults in terms of their culpability and moral responsibility, necessarily dictates a similar result because a life sentence without the possibility of release excludes the possibility of rehabilitation, the main objective for juvenile offenders.

The Court, however, reads Roper as narrowly as it was written: for death cases only. But the court doesn’t dismiss the claim outright – in fact, it seems as though the judges on the panel may agree that LWOP is not appropriate for juvenile defendants.

They cite, favorably, all the studies cited in Roper about the development of the juvenile mind and disfavorably compares the rates of juvenile incarceration in the US to that of other countries:

We recognize that the overwhelming majority of countries around the world do not permit the imposition of a mandatory life sentence on a person under the age of eighteen; see Amnesty International, Human  Rights Watch, The Rest of Their Lives: Life Without Parole for Child Offenders in the United States (2005) p. 106 available at http://www.amnestyusa.org/countries/usa/clwop/report.pdf (only fourteen countries permit life sentences for juveniles, either with or without possibility of release); and that the Supreme Court indicated in Roper that international practices are relevant to this constitutional question. Roper v. Simmons, supra, 543 U.S. 578. Moreover, we agree that the large number of juveniles serving life sentences in the United States as compared to those few other countries that permit such a sentence raises deeply troubling questions. See Amnesty International, supra, pp. 1, 106 (estimating that there are 2225 juveniles serving life sentences in United States, but only twelve in rest of world).

However, Justice Katz follows several other state and federal courts that have dealt with this question in deciding that this is an issue left to the legislature:

The delineation between juveniles and adults for purposes of prosecution and punishment is a public policy determination reserved to the legislative branch of government, except where constitutional principles apply. The eighth amendment affords heightened significance to the ‘‘diminished culpability’’ of juveniles, but the reasoning of Roper does not extend to the present case. Accordingly, in the absence of a constitutional prohibition against the imposition of a life sentence without the possibility of release, the wisdom of this sentencing scheme remains with the legislature.

As advances are made in the study of brain functioning of adolescents [see, for example, this amicus brief in Roper], challenges such as these will continue to grow. Hopefully the legislature can cut this off by carefully and honestly considering the continued viability of LWOP for juvenile offenders. After all, they are the ones with the most hope of rehabilitation.

Far too many young children are spending time in our correctional facilities. Most states have laws for dealing with juveniles, placing them in a separate category. Every single one of those statutes has an exception for serious crimes, I bet, where children are treated as adults.

But what is the age at which one says, no, no child of these many years can or should be prosecuted at all? Arizona, apparently, sets the bar at 8. Because police in AZ just arrested an 8 year old and charged him with the murder of his father and a friend of the father.

Eight. The boy is eight. He probably knows what has happened, but has no idea why or what the consequences are. Can children of eight form the necessary intent to commit a crime?

But that’s not all from this story. There doesn’t seem to be a requirement of having a parent present during an interrogation, because the cops got a confession. From an eight year old boy. Eight.

police got a confession, but the boy’s attorney, Benjamin Brewer, said police overreached in questioning the boy without representation from a parent or attorney and did not advise him of his rights.

“They became very accusing early on in the interview,” Brewer said. “Two officers with guns at their side, it’s very scary for anybody, for sure an 8-year-old kid.”

False confessions are sought and obtained with adults – I can only imagine how easy it must have been to get a confession from a highly suggestible eight year old child.

The last thing we need is to start putting eight year olds in prison. There has to be a resolution that does not involve prosecution.

The death of the father and father’s friend is certainly a sad event, but it does not need to compounded by prosecution an eight year old who likely has no clue why what he did was wrong, regardless of whether he meant it or not.

Do the right thing, Arizona. Don’t compound one tragedy with another.

On a side note, what’s the byline from this story? Guns don’t kill people, children kill people?

The Kwame Wells-Jordan trial in New Haven has had it all: false confessions, recanting co-defendants, a near-fight between the state’s star witness and the prosecutor, a cop who has since retired amidst scandal and expert testimony on false confessions.

In the end, it looks like the system worked. A jury returned not guilty verdicts yesterday on all counts. Wells-Jordan was charged with being an accessory to assault, robbery in the first degree and conspiracy to commit robbery. The victim, Herbert Fields, was shot dead during this robbery by another man, who plead guilty to murder.

The recantation and coercion:

But when Johnson [the co-d] testified during the Wells-Jordan trial, he recanted his police statement. Michael Holmes, who police believed was the third person involved in the robbery but was not charged, also contradicted his taped statement.

Wells-Jordan did not testify on his own behalf, but his aunt and legal guardian, Julia Sykes, testified she and her nephew underwent lengthy, high-pressure interrogations in September 2006 and two months later, the day he was arrested.

Skyes, Johnson and Holmes said [now retired, but still embroiled in scandal police officer] Willoughby told the three teenagers a lie in an effort to get them to confess: that their handprints were on Fields’ car. That handprint really belonged to [someone else].

There were two interviews between Wells-Jordan, his aunt and the police, the latter resulting in the false confession. The circumstances surrounding the confessions involved the usual “we know what’s best for you, so if you tell us you did it, you won’t be a defendant” spiel.

The expert:

It’s that time again! The docket has been released, so it’s time to preview the upcoming cases at the Connecticut Supreme Court. It’s no wonder that they sent me a notice saying: “Attorney Trumpet [yes, that's my last name], we regret to inform you that yours was one of the many qualified petitions for certification we received and we have only so many openings, so we will be unable to extend you an invitation to speak before us.”

Anyway, on to the good stuff – and believe you me, there is LOTS of that! There are Constitutional challenges to the validity of statutes and the big Courchesne death penalty appeal.

March 12 @ 10:00am – State v. Fernando A: The certified issue is whether the defendant was entitled to an evidentiary hearing on a protective order. Section 54-63c, as amended, provides that such a protective order will remain in effect until the arrested person is presented to the Superior Court for arraignment and that, at the arraignment, “the court shall conduct a hearing pursuant to section 46b-38c at which the defendant is entitled to be heard with respect to the issuance of a protective order.” On day one, the defendant requested this hearing. The court said it was too busy, so the hearing would be held four days later and issued a protective order. Four days later, another judge said that he had been heard for the purposes of this section and no evidentiary hearing would be held. The defendant also claims that the protective order deprived him of fundamental rights, including the right to occupy his home and the right to the custody and companionship of his children, constitutional guarantees of due process demand that he be afforded an evidentiary hearing concerning the protective order.

March 13 @ 11:00am – State v. Carrasquillo: This is an Eight Amendment challenge to the application of the murder statute to juveniles. The defendant argues that § 46b-127 (a) and General Statutes § 53a-35a (2) violate the cruel and unusual punishment clause because they automatically subject all fourteen and fifteen year old children charged with murder to the mandatory minimum sentence of twenty-five years of incarceration without any consideration of mitigating factors regarding their juvenile status. Relying on Roper v. Simmons, 543 U.S. 551 (2005), he argues that even juveniles who commit serious crimes cannot with reliability be classified among the worst offenders because (1) a lack of maturity and an underdeveloped sense of responsibility are found in juveniles more often than in adults; (2) juveniles are more vulnerable or susceptible to negative influences and outside pressures than adults; and (3) the character of a juvenile is not as well formed as that of an adult. Further, the prosecutor referenced during closing argument, over objection, “evidence” of the defendant’s motive that was not adduced at trial.

March 18 @ all day – State v. Courchesne: Oh boy. Lots and lots of stuff. Whether an unborn child is a “person”. Whether the defendant intended to murder the unborn child. During the trial stage, the trial court ruled that the aggravating factor – killing in an especially depraved, heinous, cruel manner – had to be proven as to both victims. State took an interlocutory appeal. Supreme Court held that it had to prove that as to only one. It also discussed its approach to statutory construction and stated that it would ordinarily consider all relevant sources of meaning of a statute without first having to determine whether the language at issue is ambiguous. As a direct result of that decision, the legislature passed Section 1-2z, stating that you have to look at the plain meaning of the language first.

The dp claims are: (1) Should the trial court have dismissed the counts alleging murder of an unborn child because an unborn fetus is not legally a “person” and, even if the unborn fetus was a person, the defendant lacked the requisite intent to kill her? (2) If the trial court correctly ruled that someone who injures an unborn fetus can be prosecuted for murder if the fetus is subsequently born alive and then dies, was there sufficient evidence presented to show that the child was alive when the cesarean section was performed? (3) Should the trial court have granted the defendant’s motion to impose a life sentence without release where the defendant argues that Connecticut’s capital punishment scheme gives prosecutors unfettered and standardless discretion to seek a sentence of death, that such discretion is unconstitutional under both the federal and state constitutions, and that such discretion violates General Statutes § 53a-46b (b) (1), which states that a death sentence shall be affirmed unless it was “the product of passion, prejudice or any other arbitrary factor”? and (4) Should the trial court have instructed the jury that for the death penalty to be imposed for the capital felony of murder of two or more persons in the course of a single transaction and where the state has alleged the aggravating factor of the offense’s being “especially heinous, cruel or depraved” under General Statutes § 53a-46a (i) (4), the state must prove that factor as to both victims?

That should be a fun hearing.

There are two standby cases:

Bryant v. Commissioner: IAC claim on the grounds that trial counsel did not call 4 credible witnesses who would testify that the victim died not of a beating, which was the theory at trial, but of a gunshot wound. Habeas corpus court granted the petition and ordered a new trial. Appellate Court reversed, holding that trial counsel’s decision not to call the witnesses was a tactical decision. Supreme Court will review.

State v. Boyle: An issue that is becoming prevalent nationwide. Defendant was convicted of a DUI and sentenced to probation. Probation moved to modify conditions and wanted to include sex offender evaluation and treatment. This request was based on the probation officer’s discovery that the defendant was convicted of sexual assault in 1997, that he was on the sex offender registry and that a parole board evaluation indicated that his risk of recidivism for sexual assault was high and his level of dangerousness was severe. At the hearing on the motion to modify, the probation officer testified that it is the policy of the office of adult probation to request that a probationer abide by sex offender conditions of probation when the probationer has a prior sexual offense conviction and is still on the sex offender registry. The probation officer further testified that he believed that the added condition of probation was necessary because the use of alcohol was a factor in the sexual assault case. The trial court granted the motion. The Appellate Court reversed, holding that sex offender treatment was not rationally related to the purpose of rehabilitation for a DUI conviction. Supreme Court will reverse review.

Meet Jacob Ind. Jacob is one of 46 teens sentenced to life without parole in Colorado, pursuant to a statute that has since been repealed. The facts surrounding his conviction are pretty gruesome. He hired a fellow student to kill his mother and step-father, both of whom levied years of abuse on Jacob – emotional from the mother and sexual from the step-father. But you can do your own research on that if you’re interested.

At the age of 15, Jacob was sentenced to LWOP. He was featured in a PBS documentary and now Lisa at Compassion in Juvenile Sentencing has been corresponding with Jacob. The result is an 8-part series of posts, which feature his responses on topics ranging from how to survive inside prison, whether supermax is really for the “worst of the worst”, how the prison system isn’t designed to help teens along the right path, what he dreads most each day, what he dreams about doing if he gets out and, ofcourse, his coming to terms with his actions.

An absolute must read for those who are interested in prison culture and the impact that lengthy periods of incarceration have on teens. Jacob seems to have come around and developed into an intelligent, articulate individual, but think of the many that are not. Here’s a sampling, but for the full series (and you really should read all the posts), go to Lisa’s blog:

What is hard on the young minority kids coming into prison is that they’re expected to remain loyal to their gang and some of the older gang members are not above exploiting the youthful urge to be accepted and to fit in. Black youth seem to be better off than Mexican kids because the Nation of Islam has enough of a following in here that if a Black kid chooses to drop his gang for The Nation, he’ll mostly be left alone. The Mexican kids don’t have a group like that, so if they leave their gangs they do so without any support. Prison is a scary place and with all the other pressures on a kid, he is not likely to abandon his support group.

That’s the boat Andrew Medina was in. If it wasn’t for the new mental health program which sidestepped the draconian members of the review board, he’d still be there. [Andrew Medina was shown on the Frontline Special, “When Kids Get Life” in May of 2007. At that time he had been in Supermax for over five years. He has subsequently been moved to General Population in the Centennial facility in Colorado]. That guy took his classes and stayed out of trouble, but it didn’t matter. He was young, looks very young, and has life so he wasn’t fit to be released. DOC locks away its perceived problems instead of dealing with them. It is far easier to send kids to Supermax instead of creating programs suited for their adjustment to prison… Juvenile systems country-wide manage to deal with it without resorting to Supermax prisons, but then again, juvenile systems are designed to deal with kids, adult prison isn’t.

…

A big part of that was taking responsibility for my actions. I had felt no responsibility for killing my parents and hurting so many people as a result. It was their fault I killed them, they shouldn’t have treated me like they did. I ended up trying to convince myself that I was acting in vengeance against two absolutely evil creatures with no human worth – I glorified myself and dehumanized them. Becoming a man I could be proud of required that I be honest with myself. I acted out of weakness and fear and my parents, despite their actions, were just very hurt people trying to deal with their own demons. My actions weren’t noble and pure, they were ignorant, hurtful and wrong. Putting myself in the shoes of those I’ve hurt gave me a whole new perspective.

Lionel Tate, sentenced to life without parole at age 14 is back in prison after pleading guilty to holding up a pizza delivery man. Tate was sentenced to life for an incident that occurred when he was 12, in which a 6 year old girl was killed. Tate alleged that she died as a result of wrestling moves gone wrong. He’s just 20 now.

Tate spent three years in prison before he was released pursuant to a new plea agreement. But by then, had a troubled child been lost forever?

Certainly, a life was lost and it is probably indisputable that Tate was responsible to some degree. But what punishment does that warrant? Especially for someone that young? Is putting such a young child in prison the right thing to do in this circumstance? If found guilty, he must “pay”, certainly, but with overwhelming evidence of the slow development of adolescents (he wasn’t even a teen when this happened), should the appropriate sentence have been some form of strong rehabilitation?

We’ve all read the studies and reports that lay out the detrimental impact of housing juveniles and non-violent offenders with violent offenders – the uninitiated emerge from such situations hardened; no better than they were before they went in.

So was this new crime committed by Tate a foregone conclusion? Should we be surprised or even disappointed? Did the three years he spent in the company of older, more experienced criminals wipe away any hope of him leading a productive life? (I have been unable to discover whether he spent those three years in prison or some sort of juvenile detention facility. Let us assume he spent them in a real prison, for he is certainly not the only juvenile to be sentenced to such illustrious company.)

Tell an adult that he is a bad person often enough and he’ll start acting like it. One can only speculate with fear the impact it has on a 12-year old.

Should Tate’s case illustrate the need for more nuanced punishment schemes? Or is he undeserving of any lifeline, despite his tender age? Was the future etched in stone when he entered that prison?

I don’t know the answer, but it’s certainly worth thinking about.

 Two years ago, Connecticut’s youth prison was in a boatload of trouble. It was on the verge of closing, promised new Gov. Rell. Ah, not so fast. With CT’s new juvenile jurisdiction law set to go into effect in 2010, the prison may very well get a reprieve.

The $57 million facility, which houses all but the state’s most serious juvenile offenders, is gearing up for a likely increase of its population, and an infusion of about $40 million a year.

Some say that the youth prison’s possible revival has been the result not only of the new law, but also of the power of the unions that represent the 300 employees who staff the place. Others cite a lack of resolve among politicians to shut down a boondoggle, while some point to fiscal and political realities, saying it would cost much more to close the prison and start again elsewhere.

That’s all well and good if the prison is in the same state it was in two years ago. Click on that first link above to be directed to studies about the prison and the awful conditions it existed in. However, things seem to have changed.

The building where the teenage offenders with the worst behavior problems had been housed in drab rooms, with slits for windows, has been converted into a youth center complete with arcade games and an art therapy room. Cinderblock cells once likened to “tiger cages” by Donald E. Williams Jr., a Democrat from Brooklyn, Conn., who is president pro tempore of the Senate, now have better shelving, desks, bulletin boards and carpet.

“It used to be a hellhole,” said Fred Phillips, a longtime youth services officer at the prison. What is there today, he said, “is a great improvement.”

Jeanne M. Milstein, the child advocate, said the prison, which opened six years ago, has improved enough that in April she agreed to shift the monitor she had installed there for the previous two years to a psychiatric hospital for children nearby.

Better, but still not optimal. After all, these are still kids. There’s still a chance with some of them. Studies have shown that kids that are incarcerated in adult prisons or adult-like prisons have a greater rate of incarceration as adults. We need to rehabilitate and re-integrate. Prisons are useless for that.

Jeanne Milstein still favors closing the Middletown prison and opening smaller institutions for young offenders scattered around the state, so they can stay connected to their communities.

But, she said, “I don’t think there’s the political will right now by the legislature to close it.”

I agree. It’s disappointing, but one step at a time.

For more coverage of Connecticut’s trouble with juveniles and juvenile-related posts and legislation, see these previous posts:

• Some say Gov. Rell’s budget shortchanges juvenile system
• Connecticut’s juvenile problem
• State to close boys’ prison (same as first link above)

Remember when we rejoiced over the fact that CT passed a bill raising the age of juvenile jurisdiction to 18? Well, what slipped through the cracks is that the effective date is October 1, 2010. Yep. Three years from now.

Along with the budget, the Connecticut legislature passed a bill that raises the age for juvenile jurisdiction to 18. Prior to this bill, 16 and 17 year olds were treated as adults. Now, those very same 16 and 17 year olds will be treated as juveniles for non-violent offenses. Which is a good thing, because according to the latest data [pdf], Connecticut has the largest number of inmates under the age of 18. In Connecticut, as of mid-year 2006, there were 425 inmates under the age of 18. The next closest was Florida with 221.