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Maureen Cain

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Cain is a criminal defense attorney in private practice and legislative liaison for the Colorado Criminal Defense Bar, where she tracks state legislation regarding criminal justice. Here she discusses the history of juvenile justice in Colorado, the changes that took place during the 1990s and the 2006 state law ending the practice of sentencing juveniles to life without parole. This is an edited transcript of an interview conducted Nov. 3, 2006.

Tell me a little bit of the history of juvenile justice in Colorado.

Colorado was always considered advanced in terms of its juvenile justice system. We had in the city and county of Denver one of the few juvenile courts, a court that was designated that it only involved juvenile justice. ... We developed a youth correctional system to serve the state that was known nationally, if not internationally, for its treatment of youth offenders, particularly violent youth offenders.

There was a program that was -- the name of the program was the Closed Adolescent Treatment Center, affectionately known as the CAT house, where a woman by the name of Dr. Vicki Agee ran a very intense, very secure, treatment-oriented program to treat juveniles who committed violent offenses.

What happened to this system of treatment for juveniles?

Well, over time Dr. Agee left the program, and over time the state decided not to keep funding that kind of a program. It was an expensive program at the time; probably now it would be viewed as less expensive than some of the other things we're doing. But ... the politics changed, and more children were direct filed on and looking at sentences to the [adult] Department of Corrections, and that program kind of disappeared.

Why did it change? Why did people become less interested in rehabilitation?

During the late '80s and early '90s -- and maybe even it started in the early '80s -- we started seeing a change away from rehabilitation to eventually a view of incapacitation, which is what we need to do is to incapacitate the offender so that they, the offender, does not reoffend, and that would be done by incarceration. I don't think it only happened in Colorado; certainly what I've read shows that it happened nationwide. ...

I'm not sure we really even knew what we were doing when we decided that juveniles should be direct filed on and should start serving life without parole. That was very reactive. The whole identity of children got lost.

In about a decade, I know we in Colorado, not only did we change our approach to juvenile justice, but we also quadrupled our sentencing ranges and increased by 500 percent the number of people incarcerated over about a 25-to-30-year period.

But it did affect juveniles quite a bit, didn't it?

Oh, absolutely. They changed the [Colorado] Children's Code. The purpose of the Children's Code and the purpose of the Division of Youth Services, which was the youth correctional agency, was to treat and to rehabilitate. There were statutory changes made so that the primary purpose then became public safety. ... As part of that we started treating more juveniles as adults, not only for homicide cases but for all cases. That's what happened.

How did it change?

Well, I sometimes call it the perfect storm ... in the early '90s, because we were in the midst of a ... mandatory-sentencing approach to crime, and we had the money to pay for it, so we could build prisons. We were in the midst of some gang violence -- and probably more gang violence than we had experienced before -- coming to Colorado. ...

What do you remember about the [1993] "summer of violence?"

Well, my recollection is that in the early '90s there was an increase in gang warfare. I've been a lawyer long enough to know that gang warfare and violence went in cycles: We had an increase in the early '80s, and then there was one in the early '90s. But it was particularly violent, with a lot of random shootings, and children were victims, so there was a lot of publicity about it.

Many of the crimes still were never solved, but the community had great fear. And being someone who lived in the neighborhood where there were some of the shootings, I think that people had some valid concerns about it. The fear which drove this ... snowballed and built into this law enforcement decision to increase the ability to punish these kids.

I read that the media had a field day [at the time]. ...

I remember that to be true, and I have also since looked back at some of the articles during that time, and the media covered these stories over and over and over again. I think that's what drove the governor to ask for a special session to address these issues. It was the media coverage. ...

The media portrayal of these kids was these were ugly, horrible kids that needed to be locked up, when in fact I think that a lot of this gang activity were kids like that who got pulled along. Just like the community got pulled along by the media, these kids get dragged into it. ...

And could have been rehabilitated?

And very much could have been rehabilitated. I've had a lot of clients who do really well. They say, "I'm not a gangster any longer." They've grown up. But the gangs are ... substitute families, so the loyalties that they give to gang members sometimes are just the loyalties that they never had within their family environment.

[What was one of the things that changed, in terms of prosecuting juveniles, as a result of this summer of violence?]

One of the things that happened as a result of the summer of violence is that prosecutors got increased ability to direct file.

Which means?

Which means that judges are no longer involved in the decision whether a child is treated as a juvenile or as an adult. Basically what the prosecutors communicated to the Legislature and to the community is that you cannot trust judges. Judges should not be given the power to look at both sides, the circumstances of the juvenile as well as the public safety, and to weigh that and make a decision whether the case should be in juvenile court or adult court. The prosecutors said, "We are the only people that should have that power, and we want that power almost universally," because over the years, after the summer of violence, they kept adding on more and more crimes that they could direct file for.

Judges then were removed from this whole decision-making process. So Denver, [which] would have maybe 20 transfer hearings in the course of a year, ... now there are no transfer hearings anymore, because all that power is with the prosecutor, and it minimizes the judiciary. The judges are there to make decisions that are fair. The prosecutor isn't always there to make the decision that's fair. The prosecutor has to represent the victims' issues; the prosecutor does not have to take into consideration the circumstances of the defendant in making a decision. And by getting all that power in one place, our system got out of balance. ...

And judges resent that they have been taken out of the system. One of the judges that sentenced one of these juveniles to life cried as it was done. That judge said, "I have no ability to do anything about this except give you life without parole." ... And that's not a good system. ...

There was another thing that came in, too, that I think is really important, and that was the victims' rights movement. ... The victims' rights movement started saying, "What about us?," which is a legitimate question, but also started saying, "We need mandatory sentences." ...

No parole?

Well, mandatory sentences for any kind of crime with a weapon, whether the weapon be a broken beer bottle or a revolver. So we started seeing those mandatory sentences happen at the same time. ...

I'm not sure we really even knew what we were doing when we decided that juveniles should be direct filed on and should start serving life without parole. That was very reactive. The whole identity of children got lost. And we started seeing prosecutors say things like, "These aren't children; these are murderers," and starting to tell the Legislature, "What we did before didn't work," when in fact it did work; the recidivism rate from the CAT house for violent juvenile offenders was very low. There were many children in there for homicides, serious violent offenses, who were paroled and became successful. We were actually doing a lot of very good things to treat and to get people on the right side of the law, to get juveniles back on the right side of the law.

But it was just very sexy, very powerful to say: "You do the crime, you do the time. These aren't kids, these are murderers." And that was the wave in the early '90s.

... Explain what felony murder is. ...

Felony murder always existed, and felony murder in Colorado was always a Class 1 felony that carried life. ...

But the point that there's life without parole at the other end changes the equation. So what changed?

Well, life became life without parole in the early '90s, and a Class 1 felony now meant the person had no opportunity to do anything expect die in prison. So when ... the increased direct file decision making occurred after the summer of violence in the early 1990s, now we were looking at ... children, 14-, 15-, 16-, 17-year-olds who commit offenses serving the rest of their life in prison with no opportunity for parole. That never existed before. That was something that I'm not sure was totally thought through. ...

The felony murder doctrine says if you were involved in one of the requisite felonies, it doesn't matter whether you were the shooter or not, or the person who committed the murder; you are responsible as if you were the principal, even if you didn't know the principal had a gun or intended to kill anybody, even if the person was killed accidentally in the course of the felony. That was a felony murder and was the same as a premeditated murder, which carried life without the possibility of parole as a sentence.

It doesn't make sense [to me].

Well, it doesn't make sense, and it also particularly doesn't make sense for juveniles, because their ability to think things through is very limited. ... The law kind of imputes it to them by nature of being involved in the felony, and it doesn't seem like it's fair when it's somebody whose brain is not developed as an adult brain would be.

And doesn't society and the community see that? ...

I actually do believe that society and the community probably understand that better than our Legislature gives them credit for. I think that our legislators and some of our district attorneys have lost their focus in terms of representing their communities. Certainly when I speak to laypeople about this issue, they understand it. They assume the law distinguishes, and to tell them that the law does not -- to tell them that the law does not allow for a judge to distinguish between what a juvenile did ... and what a 40-year-old adult person did as a Class 1 felony, that the judge has no power to make any distinction -- I think people are shocked that that happens. I don't think some of our DAs are shocked, and that's very sad for me. It's very sad.

What do they think in the Legislature? ...

Well, the Legislature is a mixed body, so there are those people like Representative Lynn Hefley, ... who has been trying to undo this decision to make juveniles eligible for life without parole. And she's a Republican from El Paso County. I think that some of them believe in rehabilitation. But those who do not [believe in rehabilitation] believe that "You do the crime, you do the time," and there are some crimes that need to be punished by the most severe penalty, and the life of that child needs to be sacrificed as payment for the act that the child committed, and there are no other choices that should be considered.

No thought of redemption? No thought of change?

No, no. There are some that do not think that. There are some that would choose the death penalty for juveniles if our United States Supreme Court hadn't said [in Roper v. Simmons] that was unconstitutional under the Eighth Amendment. Then there are those that vote for punitive measures such as life without parole because they do not want to appear soft on crime.

Do the prosecutors think that all this is working? ...

I think that many of the prosecutors think that life without parole for juvenile offenders is effective; that it is a deterrent; that gang kids won't be involved in gangs or be involved in gang violence because of this deterrence. ... But social science studies tell us that this reliance on incapacitation -- longer sentences, locking people up for the rest of their lives -- really wasn't the reason crime went down. Crime went down because of demographics; crime went down because of different policing practice; crime went down basically because of the aging of the population. ...

I just looked at a study that said maybe 10 percent of the reduction in crime can be attributed to sentencing practices. But you will hear district attorneys, prosecutors, politicians say, "Crime went down, so therefore it must be because we're locking up more people."

When we were talking to prisoners, there were a couple that were sentenced for killing their parents, and they killed the parents after very bad abuse at home. Do the prosecutors think that putting them in prison for the rest of their lives is going to influence other kids to act differently?

... I think maybe they think that life without parole then is the appropriate punishment for such a heinous crime. If you look at some of the prosecutors' testimony and statements in the press, they will refer to that as the "abuse excuse": that bringing up your abuse as a child or the treatment that you get in your trial -- or in my case, in my client's trial -- somehow is using some kind of fantasy excuse. ...

If I were a victim in any victims' group, I would be hugely offended by a prosecutor minimizing the abuse that some of these children went through. Their solution to the abuse was not a good one, obviously, and should not have been the choice, but to say that it's used as an excuse is disrespectful to the pain that these children actually did experience and that we know they experienced. I don't understand why victims' groups cannot align themselves with some of these children. ...

Talk about the meaning of not having [retroactivity] even for this 40-years law [changing the mandatory sentence for Class 1 felonies from life without parole to 40 years before parole] that passed. ...

Well, this past legislative session, a law was passed that let juveniles be eligible for parole after 40 calendar years, so there would be a parole eligibility date set when they were in their 50s at the very earliest. But the battle that we fought was whether or not that change would be retroactive or whether it would only be prospective. And the governor was very clear [that] he would only sign a prospective legislation, and the district attorneys opposed anything retroactive.

The problem with that is that you very clearly have communicated to these [45] juveniles that are serving life without parole that their life is over; it has no value; that they're not even worth taking a second look. ...

They're throwaways?

Yes, they're just throwaways. I think that it was [a] judge from Texas said, "Don't you think you ought to just take a look at these kids [who were paroled] and see where they went?," because we know -- if they went and looked at some of the kids in the '70s and '80s who committed serious crimes, murders, -- we know that some of them are quite successful. We know that some of them have not reoffended and are leading productive lives. ...

I just want on the record to say that as a defense lawyer and [in] my role at the Capitol, it's hard for us always to carry the message, because we are viewed as only mouthpieces for defendants who are not considered valued constituents. ... And it's hard, because I try to respect the job that the prosecutors do and try to respect what the victims' concerns and issues are, while I am trying to be an advocate for the humanity of the people that I represent, because I think we've lost a sense of that piece of humanity. ...

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posted may. 8, 2007

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