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Life without life 

Should kids be punished as adults in Colorados justice system?

click to enlarge e349_cover-18090.gif

By Kathryn Eastburn

At 16, Dietrick Mitchell was a troubled boy. His aunt Linda says Dietrick was troubled from age 8, when she called his school to report that his mother -- her sister -- was a drug abuser who neglected and abused her children.

As a young teenager, Dietrick got in trouble for theft, alcohol use and some other minor offenses. Then on August 9, 1991, he made a terrible mistake.

After drinking all day with an 18-year-old girl and a 14-year-old boy, Dietrick, who didn't have a driver's license, got behind the wheel of a car and drove across Denver. Trying to evade a policeman who was following him, he turned a corner. He took his eyes off the road momentarily and hit a pedestrian, 16-year-old Danny Goetsch. Dietrick fled the scene. A day later, Danny was dead.

When Dietrick confessed to his aunt what he had done, she took him to the police station, telling him what happened was an accident and that he should face the consequences.

"We didn't get an attorney," Linda Mitchell said. "The next thing I knew, he was on television being tried as an adult for murder."

At 17, after spending a year awaiting trial in the county jail, Dietrick Mitchell was convicted of first degree murder with extreme indifference. He refused a 40-year plea bargain agreement from the District Attorney's Office because he and his aunt did not believe he would be convicted of murder.

Prosecutors painted him as a gang member, a characterization Mitchell and his aunt both denied. An expert on gangs testified at the trial that no colors were involved and that though there were drive-by shootings among gangs at the time, nobody had used a car as a weapon and considered it a gang hit. The coroner testified that based on the injuries sustained by Goetsch, it appeared Dietrick was driving at about 30 miles per hour.

Dietrick Mitchell was sentenced to life in prison without the possibility of parole in an adult penitentiary. That was 13 years ago. Dietrick now is 30. If he lives to be 70, Colorado taxpayers will pay another $2 million, on top of an estimated $650,000 already spent, to jail him until he dies.

"He was in maximum security, behind glass, for six years," said Linda Mitchell. "For our lawmakers to allow these kids' lives to be thrown away is a crime.

"You've already lost one life, then you throw away another one."

A second chance

click to enlarge Dietrick Mitchell at age 11 (left)...
  • Dietrick Mitchell at age 11 (left)...

That's what Mitchell testified on Feb. 9, 2005 before the House Judiciary Committee at the state legislature. She was one of 11 people who spoke in favor of a proposal designed to give youths convicted as adults in Colorado courts the possibility of alternative sentencing.

The bill, sponsored by Colorado Springs Representative Lynn Hefley, also would have changed existing sentencing structures that require juveniles convicted of Felony 1 murder to be sentenced to life without parole in adult prison.

Additionally, HB 1109 would have required that all juvenile offenders serving life without parole in adult prison be made eligible for resentencing with consideration for time served. The bill provided for restorative justice programs, including the union of victims with offenders and requirements that parolees speak publicly about their offenses and imprisonment with community organizations, schools and church groups.

In essence, Hefley was proposing the possibility of a second chance for all juvenile criminals, even those who have committed serious violent crimes.

In opposition were some members of victims' families and a large contingent of district attorneys, including El Paso County's top prosecutor, John Newsome, and Colorado District Attorneys' Council Executive Director Bob Grant, who testified eight times against the bill.

Hefley did not respond to requests for an interview for this story, but state Senator Steve Johnson, a Republican from Loveland and the co-sponsor of the bill, described Grant's demeanor.

"I don't mind going on record saying that we actually complained to the DAs' Council about working with Mr. Grant," Johnson said. "He was belligerent and rude, to Rep. Hefley especially. It seemed like he had something really personal, a burr under his saddle, about this issue, to the detriment of his judgment. Mr. Grant was an impediment to good policy."

The DAs argued that Colorado's system for trying juveniles as adults was not broken, and therefore didn't need to be fixed.

The bill eventually was gutted and, in a compromise measure, turned into a proposal for a task force to meet for a year and study Colorado's system. The final version of HB 1109 handily passed both the House and Senate and was signed in May.

On May 29, it was vetoed by Governor Bill Owens.

Can't execute kids

Despite the veto, HB 1109 brought to the public's attention Colorado's harsh sentencing laws for violent juvenile offenders, which now stand to be more widely discussed.

A recent Supreme Court decision banning the execution of juveniles in the United States for any criminal offense discussed the differences between juvenile offenders, even those guilty of the most serious crimes, and adult offenders. The court ruling concluded that by nature, juveniles are less culpable than adults.

click to enlarge ...and post-incarceration at 17...
  • ...and post-incarceration at 17...

"The winds are shifting," said Paul Rosenthal, legislative affairs director for the Pendulum Foundation, a Colorado-based nonprofit that supported Hefley's efforts in the legislature. "How can [juveniles] be prosecuted as adults, in some cases given harsher punishment than adults?

"[The decision] is monumental. The message that got across is, 'We don't let them drive, drink, smoke or vote. They are not adults, and yet they are an adult when a District Attorney says they are.' This rings through the whole structure of how juveniles can be tried as adults.

"Yes, they must be held accountable, and punishment is appropriate. But ultimately, they cannot be treated as adults. They're kids. The rest is details. That's what Sen. Johnson and Rep. Hefley were trying to do -- provide the details."

The Supreme Court decision referenced immaturity and evolving brain development to explain juveniles' diminished culpability. And a recent study by the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice found that many juveniles are not technically competent to stand trial by the standards set forth in American law.

While the competence of 16- and 17-year-olds as a group didn't differ significantly from that of young adults (18 and up), the MacArthur study showed an alarming degree of incompetence in juveniles 15 and younger. The study concluded that many juveniles are "as impaired in capacities relevant to adjudicative competence as are seriously mentally ill adults who would likely be considered incompetent to stand trial by clinicians who perform evaluations for courts."

That diminished competency might affect a youth's confession to the police, his ability to understand risks involved in the choices he has to make as a criminal defendant, his understanding of a plea bargain and his ability to consider the long-term consequences of legal decisions.

"The U.S. Supreme Court," said the MacArthur study, "has held that it is fundamentally unfair and in violation of the U.S. Constitution to try defendants who do not have these basic capacities."

Perhaps most damning of the existing Colorado system is a recent report by Human Rights Watch, an international watchdog group, which examined the cases of children who committed crimes under the age of 18 and were sentenced to life without parole in adult prison. At least 46 such youth offenders currently are incarcerated in Colorado.

"In Colorado's system of criminal justice ... the commission of a serious crime instantly changes young teens of fourteen, and in some cases even twelve-year-olds, into adults for purposes of trial and sentencing ... Indeed, Colorado law requires judges to impose life without parole on children as young as twelve if they commit first degree murder."

Offenders who enter Colorado prisons as children "face the same conditions in prison as the much older adults with whom they are incarcerated: gangs, sexual predators, and other forms of violence," the report concluded.

"Summer of Violence" fallout

Until the early 1990s, Colorado sentenced violent youth offenders, including those who murdered, to juvenile facilities where the goal was rehabilitation and eventual parole. Of those few dozen who served time for violent offenses at the Lookout Mountain facility west of Denver, there was almost no recidivism, according to most sources.

Then came 1993 and Colorado's "Summer of Violence," when media began to draw attention to several egregious violent crimes by juveniles and to gang activity, especially in the Denver area.

click to enlarge ...and 28.
  • ...and 28.

Then-governor Roy Romer called a special session of the legislature that culminated in a three-year study of delivery services to youth and finally resulted in HB 961005, which brought about changes in the administration of juvenile justice in the state. The declaration read:

The General Assembly hereby finds that the intent of this article is to protect and improve the public safety by creating a system of juvenile justice that will appropriately sanction juveniles who violate the law. The General Assembly further finds that, while holding paramount the public safety, the juvenile justice system shall take into consideration the best interests of the juvenile in providing appropriate treatment to reduce the rate of recidivism in the juvenile justice system and to assist the juvenile in becoming a productive member of society.

But juvenile sentences, at least for Felony 1 and Felony 2 crimes, increasingly became more punitive and less inclined toward rehabilitation as the cases were tried in adult court and yielded sentences in adult prison. And legislative measures increased district attorneys' ability to "direct file" juvenile felony cases in adult court.

The juvenile code remained relatively undisturbed from 1996 until Hefley introduced measures to change sentencing of juveniles as adults. Hefley looked to the Texas system, reformed in 1994 under the watch of then-governor George W. Bush, which significantly reduced the number of juveniles tried as adults and decreased recidivism.

"I got involved with the bill because Rep. Hefley talked to me about her experiences in Texas," said Sen. Johnson. "Those efforts in Texas made that whole state aware of the opportunity to give kids a second chance."

It's in the DA's hands

Some of the harshest criticism from the recent Human Rights Watch report was aimed at Colorado district attorneys' unrestricted and largely unmonitored right to "direct file." This practice of filing charges against juveniles directly in adult court, without a hearing before a judge to determine competency and explore mitigating factors, would have been explored had HB 1109 been upheld.

DA Newsome defends his office and the 4th Judicial District, which, he says, has a very good record. He disagrees with Human Rights Watch criticism that prosecutors don't take into consideration all aspects of a juvenile's mental state and maturity.

"To say that [direct file] is being used haphazardly, I think, is actually incorrect," he said. "It's very rare that we direct file. We typically look for individuals who have exhausted the juvenile system, have taken a human life, or kids that pose an extraordinary risk to society. Other than that, we typically give kids a chance through other means than criminal court.

"When we do direct file, we often reach dispositions short of life in prison. We take into account the juvenile's age and mental abilities. We factor those things in, and I think DAs should. 'What's going on with this kid? Is he redeemable? Can he be rehabilitated, which is the goal of the juvenile justice system? Is this a kid that can be turned around? Is he a danger to the public?' These are all questions DAs should be asking themselves."

Many critics of the current system say that the degree to which prosecutors take those factors into consideration varies widely from district to district. Indeed, Bob Grant says the criteria cited by Human Rights Watch, and mentioned by DA Newsome, are not required by law.

"Direct file law does not require any of that," he said. "There are specific requirements with regard to age, the nature of the crime and past criminal history, those kinds of things, but that list is from [Human Rights Watch's] agenda, not from anywhere else."

Grant noted that the primary consideration should be whether the juvenile "had the ability to be rehabilitated in the juvenile justice system," and added that "many, many more cases are rejected than are direct filed."

click to enlarge Colorado Springs Representative Lynn Hefley would like - to give juvenile offenders a second chance.
  • Colorado Springs Representative Lynn Hefley would like to give juvenile offenders a second chance.

When asked if the CDAC keeps records of the number of juveniles direct filed, he replied that there is no statutory requirement that such statistics be kept.

Different charges

The Pendulum Foundation's Rosenthal questions why the state DAs' Council doesn't keep records of direct files, since it has one of the most sophisticated computer tracking systems in the state. And he recounts an example of the subjectivity of direct file against juveniles.

In a recent case in Douglas County, a juvenile named Todd Stansfield was tried as an adult on four counts of vehicular homicide as a result of a traffic accident. Another juvenile who ran a stop light and also was in an accident that resulted in the deaths of others, at around the same time, was charged with negligence and other charges in juvenile court. The second juvenile received a little more than a year in jail in a juvenile facility and several fines.

"These cases were very much the same -- traffic accidents involving juveniles," said Rosenthal. "And yet one is being tried as an adult and faces time in an adult facility.

"The DAs say, 'We measure it out.' What we say is that decision [of whether to be tried as an adult or a juvenile] is best decided by a court. The [DAs] have 72 hours to decide. You cannot possibly include some of the mitigating circumstances that may not have been uncovered by then or witnesses that might come forward."

The real problem, says Rosenthal, is that filing directly in adult court is often a hot political issue. DAs, who are elected officials, don't want to look soft on crime.

"The decision of how to file comes almost immediately after the crime. There's an outcry in the community, the juvenile's name is out there, the media is reporting the details. There's a lot of pressure on the DA to say this doesn't look like the result of a series of events in the child's life -- to be tough."

"You can't change the law"

The Colorado District Attorneys Council's response to HB 1109 was swift and negative.

At the top of its list of criticisms was the bill's provision for retroactive consideration of existing sentences of kids serving time in adult prison, which Grant says isn't practical.

"Those cases were all done ... all settled," he said. "They were either tried or reached a plea bargain disposition. We couldn't go to those families, the families of victims and say, 'We have to reconsider the sentence.'

"You can't change the law and make something a crime after someone has committed a particular act ... You can't change the nature of the sentencing options after the sentence has been handed down."

click to enlarge El Paso County Prosecutor John Newsome opposed HB - 1109.
  • El Paso County Prosecutor John Newsome opposed HB 1109.

Sen. Johnson doesn't buy that logic.

"You don't want to retry or reopen, I guess, but it's almost saying that if we made mistakes in the past, we're not going to correct them," he said. "I just don't buy this argument that, 'We're going to look at this juvenile sentencing to see if it's appropriate, but we're not going to go back and correct any mistakes we might have made in the past.'"

Another criticism by the DAs' Council, Newsome notes, was of the proposed changes in sentencing structure, which would have resulted in different standards for juveniles and adults.

Linda Mitchell argues that many incarcerated kids, some of whom had no money to hire lawyers and didn't understand how to manage their cases or function as defendants, deserve reconsideration, particularly given the time they have already served in adult prison.

"The [DAs] should have enough decency and humanity in their hearts and take a look at the 46 currently serving life without parole, take a look at the representation they had -- don't just say, 'Tough,' and close the books," she said.

System doesn't need fixing

One of Bob Grant's criticisms of HB 1109 in its final form is that the makeup of the task force was too cumbersome as proposed.

"It started with 40 and ended up with over 20 members," he said.

Sen. Johnson says both he and Rep. Hefley decreased the number of members on the proposed task force specifically to meet that criticism.

Rosenthal says Grant is blowing smoke. He cites a legislative appointment two years ago of a 27-member task force, plus several legislators, to study how people with mental illnesses are treated in the criminal justice system.

"This task force is no different in size or scope than that one," Rosenthal said. "[The CDAC] fully participated in that task force, yet they're saying that this one is too big."

Newsome, the El Paso County District Attorney, emphasizes that though he opposed Hefley's original proposal, he did not oppose the revised version.

"I really wasn't opposed to the task force," he said. "Talking about these issues is a good thing, and the way the task force was structured, pulling together different elements with victim groups included, was good. The idea of studying the issue and making recommendations is a healthy one."

click to enlarge State Senator Steve Johnson, co-sponsor of HB 1109, - referenced the possible burr in D.A. Council Executive - Director Bob Grants saddle.
  • State Senator Steve Johnson, co-sponsor of HB 1109, referenced the possible burr in D.A. Council Executive Director Bob Grants saddle.

In the letter explaining his rationale behind the veto of HB 1109, Gov. Owens did not cite the size or makeup of the task force as a problem. But he echoed many of Grant's and the DA Council's criticisms.

First, Owens asserted that HB 1109 "does not set forth a specific problem to be solved or demonstrate that the juvenile justice system is broken," and indicated that juveniles being sentenced as adults is not "a matter of statewide concern."

Grant says the legislation set in place after the "Summer of Violence" is adequate and is working well.

Second, Owens questioned the timeframe set up by the task force to report back to the legislature as "unrealistic and unworkable."

Grant calls it "a ridiculously low reporting time."

Most importantly, the governor cited "a bias, before the task force has even been formed, that certain sentencing practices, which have demonstrably reduced crime in this state, are not working."

Grant, too, cites bias, even in the form of HB 1109 that would establish a task force to explore the issues.

"It was obviously drafted toward the positions and opinions that those people, the Pendulum Foundation and Human Rights Watch, came up with in the first place," Grant said.

The governor defended the existing system of direct file by district attorneys and concluded: "I remain open to discussions of how to enhance Colorado's juvenile justice system. Regrettably, HB 1109 is so flawed that it would not have realistically or meaningfully advanced our efforts to enhance public safety through systematic reforms."

Rosenthal says the governor was off base on most of his main points, especially citing bias in the bill and attributing the decline of crime in the state to existing sentencing practices.

"If you talk to sociologists, they will tell you that the greatest factor affecting rising crime is the economy," he said. "When the economy goes bad, crime rises.

"I think the governor might be better informed to look at studies from people who understand these issues, people who've actually looked at them and identified what really caused the decline in crimes."

As for claims of bias, Rosenthal is perplexed.

click to enlarge Bob Grant aggressively opposed giving teen criminals - lesser sentences.
  • Bob Grant aggressively opposed giving teen criminals lesser sentences.

"Task forces are set up for a purpose. To look into an issue that needs looking into," he said. "From [Rep. Hefley's] perspective, I don't believe there was a bias in it. In fact, the governor had some input.

"I find it remarkable that they would say this is biased. You can't tell me that a group like this -- 24 task force members plus eight legislators -- wouldn't be able to come up with a good bill or fair legislation."

The size of a small bathroom

Had Hefley's idea been implemented, the task force also would have explored the conditions in which juveniles are incarcerated across the state.

A woman who wishes only to be known as Betty, of Aurora, knows the situation all too well. On Halloween of 2001, her son was arrested for four carjackings at gunpoint across two counties -- offenses she admits were serious enough to warrant adult charges and which were committed by a seriously messed-up kid.

But what happened next didn't help the situation in any way.

"My son spent 200-and-some days in Denver County Jail and 60 days in Arapahoe County. He spent almost two years awaiting sentencing," said Betty.

At Denver County, he was in 24-hour lockdown in a cell "about the size of a small bathroom. No education, no medication, no treatment."

Eventually her son was sentenced to six years in Youth Offender Services, a rehabilitation program run by the state for serious youth offenders. Betty counts herself and her son lucky that he ended up there instead of in adult prison, and says his time there has turned his life around.

His time in Denver County, however, was a nightmare no child should have to endure.

"It's so inhumane," said Betty. "It's so inhumane to strip a kid and put him in lockdown with no food and water for 72 hours because he wanted to do chin-ups in his room." That, she claims, is what happened to her son, adding that he was slapped around and "put in 'the hole.'"

Rosenthal sees it as one aspect of a much larger, more pervasive problem.

"It's not just about life without parole," he said. "It's about juveniles who are tried as adults and put in adult jail in general. It's a pressure cooker now in our Department of Prisons. DAs understand this and are trying to put their fingers in holes in the dike, but it's springing leaks quicker than they can plug them. Juveniles tried and incarcerated as adults can be seen as just a microcosm of the huge problem."

Crippling the system

Both Grant and Sen. Johnson say they expect the issue to be resurrected at next year's legislative session. Both expect a lively discussion.

At the Pendulum Foundation, Rosenthal has turned his attention to educating the public on gubernatorial candidates' positions on what he sees as "crippled" criminal and juvenile justice systems. (Gov. Owens will be term-limited out of office in 2006.)

As for Linda Mitchell, she'll keep fighting for her nephew, Dietrick, and others like him.

"Dietrick's a pretty upbeat guy," she said. "He admits he messed up, drinking and driving without a license, and not a day goes by that he doesn't think of what he did and what happened to Danny."

But Mitchell can't stop looking at all the other comparable cases where similar offenses received significantly lesser punishment. A 16-year-old girl who killed three and injured nine: six years in YOS. A 46-year-old man who killed a 16-year-old kid in a hit-and-run: six years.

"It's not a day passes now that I don't hear on the news of a hit-and-run," she said. "Dietrick being put away for life hasn't changed anything."

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