Written Testimony Regarding Killers Under 18 Sentenced as Adults to Life (JLWOP)
From the National Organization of Victims of Juvenile Lifers
NOVJL

September 24, 2008

I. WHO WE ARE

Approximately 2,400 convicted murderers in the USA have been sentenced to Life Without the Possibility of Parole for crimes committed before they turned 18. Most have been incarcerated for committing unimaginably horrific and aggravated murders or multiple murders. Most of them are the actual killers, and some of them are the more controversial "accomplices" convicted of felony murder. The acronym often used for that sentence is JLWOP - Juvenile Life Without Parole.

We are a national organization made up of the victims' families of those killings who have begun to find each other in order to protect our voices in the discussion about the sentence. We have no staff, no funding, no offices, and only a website and email with which to communicate. We are not yet a year old and already through our own efforts have dozens of members in 6 states.

II. WHY WE ARE HERE

There is a growing discussion among criminal justice and human rights reform movements about the appropriateness of the Life Without Parole sentence for any offender, and there should be - it is an extremely serious punishment.

But it is especially of interest for younger offenders since the United States Supreme Court in Simmons v Roeper recently found that the juvenile death penalty is unconstitutional. Now a few advocates argue that same ruling ought to call into question whether those under 18 ought to be sentenced to LWOP. A vast majority of the nation however, knows that “death is different” and continue to support LWOP for all aggravated murders.

We know this is a very difficult question. We know it better than most people do, actually.

We know that this powerful public policy debate will likely be as complicated as the crimes, criminals, and victims that gave rise to the discussion. There is one thing we are very sure of -- victims have an absolute right to be at the table in any discussion about the sentence of the offenders in their cases.

And yet everywhere we have turned we see advocates investing significant resources into reporting the injustice of the sentence without any serious attempt to empower the voices of the victims of these crimes.

And without even taking time to try to notify them that they want to change the prison sentence duly given to the person who murdered their loved ones.

To be concerned for the offenders without first addressing the needs of the victims themselves is to not come close to understanding the problem.

III. A PUBLIC POLICY DEBATE

There is always the need for thorough public policy discussion nationally around sentencing prisoners and the appropriateness of the criminal justice system, including the JLWOP issue. Our entire criminal justice system, like all other human institutions, is often in need of reform.

We are victim to many of its flaws ourselves.

But JLWOP is not a "black and white" issue. It is incredibly complicated and like so many matters of public policy is ultimately a balancing act. The law often has to draw some "bright lines" that don’t make objective sense, but have to be drawn somewhere, for functionality’s sake. We try to make them work as best as we can.

These and other serious questions arise with such a debate:

Is LWOP really comparable to the death penalty as a human rights violation as some prisoner advocates argue?
What is the right thing to do when the human rights of one person are in direct conflict with the human rights of another person? Does it make even more of a difference if one of those people is guilty and once is innocent?
Are there other reasons for the LWOP sentence that balance out its severity?
Is there something magic about the age of 18 that changes legal and moral culpability for horrific actions?
Is someone who is, say, 17 not as culpable for choosing to do something that someone just a few months older is fully culpable for?
Can the law possibly draw meaningful "bright lines" like this when it comes to crimes of this nature or should they be judged on a case-by-case basis? Is chronological age the only determinate? Can and should courts declare some younger offenders, after study of their cases, to be legally adults?
What role should the victims of these crimes play in this discussion?
If it can be absolutely reasonably determined that a killer will never qualify for release under a parole system, why must the victims families be literally tortured with the regular review process? Whose "Human Rights" matter the most if they are in conflict?

In the national debate generated by advocates for these younger killers, we are here primarily for one reason only - to assert our right to be included in the discussion - something, surprisingly, that generally is not happening.

In the several states where there are proposals to abolish JLWOP, frankly that are going nowhere politically, victims families of those crimes have not been found and informed and supported to be part of the discussions. In fact, they have often been even deliberately ignored, excluded, or in some cases outright demonized.

In any significant public policy discussions, especially ones that touch on such issues of life and death no key stakeholders should be kept away from the table.

IV. THE COMPLICATIONS

The list of complications is long and often without clear solutions. States and even nations differ on the definition of a "juvenile". Legal and criminal law defined ages of adulthood are not uniformly 18 – they range widely.

Doctors of both physical and psychological development cannot begin to "define" the line between adulthood and adolescence with any exactness. Culpability for a crime is a matter so incredibly complex that the profession of lawyers and the entire field of psychology had to be invented before they could begin to discuss it.

And the brain research that has been grossly misapplied by advocates for the younger offenders. They have ignored professional science that has warned them clearly that moral reasoning and culpability and responsibility for actions, especially as basic as knowing when it is right or wrong to kill, comes very early. And is not located in their much vaunted frontal lobe that continues to develop into the 20’s. If their reasoning were to be accepted, no one could be certified as adult for crimes until 25 and then only after a CT scan determined full frontal lobe formation. Mis-using neurology as the basis for arguing criminal accountability while ignoring the broad range of other factors that contribute to criminal accountability does the public a huge disservice.

Additionally, the sentencing schemes vary from state to state: some states with determinate sentencing, some with indeterminate; some with parole bureaucracies, some without; and all with widely varying standards in juvenile transfer laws into adult systems and definitions of what constitutes high level murder cases.

Finally, the murder cases among killers under age 18 are incredibly widely varied in their facts and circumstances and their individual aspects; some extremely horrific, some more sympathetic.

No single solution will address the broad complexities of all these cases and issues.

V. WHO MUST BE INCLUDED

Those who would advocate reform for the JLWOP sentence can be clear about one thing - Murder victims families of the younger killers in the United States, confident that "Life Without Parole" as a sentence meant they could walk away and, as best they could, "move on" in their lives, would want to be told of proposed retroactive changes to this sentence for the person responsible for killing their loved ones.

It is the victims’ families right to choose to be present in the debate over the JLWOP sentence, NOT the advocates for the prisoners' decision to leave them out of the discussion.

Those whose focus in the young offenders, who might perhaps often be afraid of the "opposition" that victims might represent, have been deciding not to include them in the discussion they want governments to have about the JLWOP laws.

Victims' rights, which are also fundamental Human Rights, to be informed about matters pertaining to their case are indisputable.

We are trying to be professional in our demeanor and our approach, but words simply fail us when we try to come to terms with the amount of concern over the “rights” of these young killers when none have been afforded to us from the beginning. First from the killers themselves. Now from those who would advocate for their earlier release from prison.

Advocates for these younger killers have no right to call themselves human rights advocates if they do not first care for the innocent crime victims’ rights with as least as much concern as they give to the rights of the guilty offenders.

In any state where a proposal is to be "retroactive", victims have a constitutional right to be notified of, and participate in, if they wish, these discussions. Victims rights amendments exist in all 50 states' Constitutions and the right to notification with regards to matters of their cases is usually the first and most important of those rights.

VI. "JUVENILE LIFERS"

There is no doubt that right now that with all the massive resources being devoted nationally to helping these young offenders; the advocates who wish to change this sentence are NOT doing right by the victims of these crimes.

They have made a major and fundamental error in their early strategy. Their whole message is all about "the poor kids in prison." And while we know that living people behind bars evoke more of an urgent feeling of sympathy because they are THERE in front of them, and we know that it is much harder to try to see the innocent victims of these murders that are NOT THERE, the advocates for juvenile lifers need to stop talking about "the poor children" if they really want to bring our nation to a place of actual change on this issue.

The public is too smart to ignore the crimes that put these young killers in prison in the first place. Advocates for the offenders should not do it either.

It is important to remember in these discussions that, for the most part, these killers sentenced to JLWOP are not just for "routine" killings - all of these cases had extremely serious degrees of what the law calls "aggravation" in order to achieve a sentence that serious, and in order to be legally tried as adults.
While we absolutely recognize the many and systemic flaws in the criminal justice system, especially as we are often victims of them ourselves, there is a genuine debate in general about prison sentences. The societal question of broad generally more harsh prison sentences resulting from the "tough on crime" mood of the nation for some decades, especially for non-violent crimes, is a real one.

We know that the United States prison population is at historic highs. We believe that re-entry programs and educational opportunities and health care and restorative justice programs and mentoring and a whole host of other opportunities need to be created and rebuilt in prisons to encourage and support rehabilitation.

We support criminal justice reform and we abhor human rights violations (as we are, again, victims of them ourselves - we know, asfew others do, the depth of those violations).

We also know that 2/3 of the US prison population is behind bars for non- violent drug related offenses and we question those who want to begin sentence reduction reforms with the "worst of the worst", instead of with the vast majority of non-violent offenders.

Only when the offender advocates start to publicly acknowledge the massive damage left behind by these crimes will we begin to have opportunities for restorative justice, where all stakeholders are at the table, recognizing the realities that brought us here, supporting each other in trying to heal what can be healed, transform that which is permanently and irreplaceably destroyed, and coming together about what we all do in the wake of these unmitigated tragedies.

VII. TOWARDS "SOLUTIONS"

Since we know that there are problems in the juvenile justice system, surely as in the entire criminal justice system, we know there must be dialogue about solutions. We know that there are many problems, and actually many solutions as well.

We have not, however, had demonstrated to us yet that the entirety of the life sentence for killers is itself problematic –quite the contrary – or that the entirety of the issue of juveniles being transferred to adult court to serve, in some very isolated and serious cases, adult sentences, is problematic – again, quite the contrary.

We take some comfort in the checks and balances already in the system and point out the obvious – that Executive Clemency is the remedy brilliantly crafted into the very system of our entire Government to address failings in legislative and judicial branches when it comes to crime. It can and should be used, where appropriate, to address any injustices.

One of our main concerns with the approaches advocated by those who support ending the JLWOP sentence is their often too-narrow focus. There is not one solution - there is not one problem - and there are not even clear right and wrong answers.

We also know that there are times when human rights may be in actual conflict with each other.

So, hang on - this is a somewhat complicated example of the argument:

If a prisoner is argued to have a "right" (and this is by no means established, in fact, we are sure there is NO such "right") to a periodic review for early release or parole from a long term sentence, as some prisoner advocates argue; but there is a thorough and rigorous legal case made, given full due process of law and then some, and that offender is found to be fully guilty of a horrific mass or multiplied aggravated murder, and whose life circumstances are such that he or she will highly likely never qualify for early release under any parole system; and since we know it is true that periodic re-engagement with the offender continues to re-traumatize already horribly damaged and innocent victims families, and that such damage is clearly a violation of their rights . . . well then, what does one do?

It cannot be advocated that the rights of victims should be constantly re-violated in order to advance the "right" of a prisoner found to merit a life sentence to possible periodic review for release. One cannot trade one human rights violation for another. Especially when the offender's violations of the victims’ lives and rights is what created this problem in the first place.

And no one who understands the nature of trauma and victimology would ever argue that victims can simply choose not to care about or participate in such periodic reviews for early release of the killers of their loved ones. While there may be that rare case of a victim survivor able to completely "move on" in their lives, and not give the fate of the killer a second thought, largely that is not even neurologically possible for most people, much less desirable, for a whole host of reasons. Many of us come to see our grief and our memories as a positive and vital link to those we love take violently from us.

Some of us at NOVJL are experts in the impact of trauma on the brain, and particularly in the unique ways traumatic loss and memories are stored in the brain. To place victims families in a structure that requires routine re-engagement with the offender, perhaps for life, is nothing short of sheer torture.

Torture.

Victims’ families should and must have some legal finality to their cases. To put them in the constant and sometimes lifelong uncertainty and routine re-engagement with the most traumatic events of their life, year after year after year, for the rest of their lives is cruel and unusual punishment.

Parole simply transfers the life sentence from the offender to the victims.

There has to be a better way. There is a better way to address this.

We believe that ultimately the key argument in this national debate over the JLWOP sentence may come down to a recognition that we are in fact a nation that has younger people capable of such horrors, much as we do not want to admit that about ourselves. And while we continue to make guns easily available to them, they are going to easily kill people.