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July 1, 2012

Guest post on Miller from Jennifer Bishop Jenkins, President of the National Organization of Victims of Juvenile Lifers

A few weeks ago at the US Sentencing Commission's annual conference, I had the great pleasure of meeting Jennifer Bishop Jenkins, the President of the National Organization of Victims of Juvenile Lifers (NOVJL). With the juve LWOP cases then still pending before SCOTUS, Jennifer and I had a fascination conversation about how victims of juve lifers would be impacted by a SCOTUS ruling declaring some juve LWOP sentences unconstitutional. Then, after the ruling, I asked Jennifer if she would write a guest-post for this blog, and here is what she kindly sent me for posting, reprinted in full:

Victims families' primary concern in the wake of the Miller v Alabama, Jackson v Hobbs ruling this week from the Supreme Court is for those like us who do not yet know about the case.  We have been calling on all those involved to devote themselves now to outreach to affected victims families, hopefully delivering to them all the information and support they need to cope with the new legal realities just created by the Court.  We already know that well-funded offender advocates are busily working already to assist many teen killers to file their new legal challenges.  We have long been troubled by the significant staff and funding available to help those who murdered our family members, while there has been no assistance whatsoever to the victims families left behind.

But we also are confident that very little in these offenders' prison sentences will actually change, and here's why:

While striking down all “mandatory” JLWOP sentences for teen killers, retroactive application of this ruling will be legally challenged in many killers’ sentences.  This matter will obviously be heavily litigated (see legal analysis at our website here).  Cases still under direct appeal will be re-sentenced, but state legislatures will likely weigh in first, and victims families, along with the general public, can help shape how state legislatures decide to comply with the ruling.

State legislatures can simply make the LWOP sentences optional -- then judges can still give them to the offenders.  Many will do just that.  After the legal tussles shake out, many victims’ families may only have to undergo only ONE additional proceeding with the killer -- a new sentencing hearing replacing the mandatory life sentence with what will likely be a virtually equally serious alternative.

While any encounter with the offender in a courtroom will be seriously re-traumatizing for victims families, they will have a right in all 50 states and federally to be notified of these proceedings, to be present, and to make a statement about the impact that the crime had on them before the new sentence is given.

Most offenders that get a re-sentencing opportunity will receive either an optional life without parole sentence (exact same sentence as they got before) or a lengthy term of years that constitutes a virtual life sentence, changing nothing for all intents and purposes. While we know a few will receive some relief, we are predicting that very few teen killers serving life sentences will likely ever be released early from prison.

The Supreme Court has now been asked multiple times to categorically ban JLWOP by attorneys for the offenders, and has repeatedly rejected that request.  There was not a SINGLE vote on the Supreme Court to find all life sentences for teen killers unconstitutional.  The Supreme Court has stated clearly that life without parole sentences for those rare most serious teen killers is completely constitutional as long as judges can consider the offender’s age as an optional factor in the sentencing process.

While NOVJL only exists to support and inform victims, and we take no specific stand on what sentencing should be (the purview of legislatures and courts) we did have some concerns with the majority opinion as written.

Justice Kagan in writing her majority opinion adopts the propaganda-laden word choice of offender advocates in her ruling calling these convicted murderers “children” (the correct legal term is “juvenile”) and uses the offender advocates’ propaganda line: “children sentenced to die in prison.”  We believe that Supreme Court Justices should not use advocacy language so inaccurate and so insensitive to victims.  The only people in this discussion with death sentences are our murdered loved ones.

To call a life sentence a death sentence is reminiscent of George Orwell’s futuristic warning novel 1984 in which language loses all meaning: war means peace, love means hate, and lies mean truth. A life sentence is NOT a death sentence.  It is a LIFE sentence. Only a death sentence where the offender is to be executed is a death sentence. The way Justice Kagan uses it, the words mean no more than what is true for us all: that we are living this life under a proverbial “sentence of death” -- someday.  Many victims families have complained of the insensitive lack of distinction between the offender who LIVES on, and our innocent murdered loves ones who suffered horribly and DIED.

Even serving a life sentence, offenders can experience life, love, joy, pleasure, family, relationships, and meaning.  They can grow wise, they can educate themselves, they can be helpful to others, they can make a difference, they can be creative, they can make a legacy for their lives, and they can impact others in a positive way.  They can choose each day to make good things happen, even from their cells.  Many inmates that we admire do just that.  They can even express remorse for their crimes and try to be helpful to victims everywhere.  They can live.  Even from behind bars.  They LIVE.  The language written in the majority opinion makes no such distinction, and we believe sadly diminishes the Court’s legacy of brilliantly written opinions.

Also, there was no recognition in the majority opinion whatsoever that there were dead victims at the heart of this whole huge discussion.  Thankfully, Justices authoring the minority dissent actually mentioned the word “victim”.  But the majority opinion gave no thought, apparently, to the impact of this decision on victims families.

Finally, some of us are actually feeling sorry for the families of the offenders affected by this ruling: right now they are likely very happy -- even celebrating -- feeling hope for the first time since these offenders were convicted of these murders and sent to prison for life.  Some are likely even planning the offenders’ homecoming.  We know that this is going to end in disappointment for almost all of them.  Most of these offenders will never be released from prison, even after all the legal wrangling that this SCOTUS ruling will allow.  They committed horrific murders.  Most will not likely ever qualify for release anytime soon, even if they are re-sentenced in a way that allows release possibilities.

Juvenile life without parole remains constitutional, rare, and available as a sentence when the facts of the offense and the offender demonstrate that it is appropriate.  Our focus remains where it should be: assisting people whose lives have been destroyed by the violent choices of others, and preventing future such tragedies.

July 1, 2012 at 08:50 AM | Permalink

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Comments

Most of these juveniles have been busy violent criminals from age 3. Had 123D started the count at 14, most would have been executed before they murdered innocent people. The lawyer coddles the ultra-violent heartless predator because it is a commodity that provides countless government make work jobs. Dead victims provide noting and may rot.

I urge the families of murder victims to adopt a policy of direct action against the protectors and enablers of these ultra-violent, heartless predators. It can start with a campaign of total boycott and shunning by all product and service providers of lawyers on a list. These lawyers are a direct threat to future murder victims because LWOP is a license to kill in prison with absolute immunity, unless one counts the loss of cafeteria privileges as an adequate remedy (the consequence proposed by a warden, quoted in this left wing, biased, pro-criminal, pro-lawyer make work blog).

Posted by: Supremacy Claus | Jul 1, 2012 10:20:27 AM

"...there was no recognition in the majority opinion whatsoever that there were dead victims at the heart of this whole huge discussion."

Here is an effect I discovered. No lawyer, not even prosecutors, can say the word, victim, out loud. They cough, sputter, choke, and may need first aid from a fully equipped EMT crew if they ever do.

Try this trick at a party. Ask any lawyer to say the V word. Then enjoy the mayhem, and resuscitation operation.

Posted by: Supremacy Claus | Jul 1, 2012 10:25:54 AM

Surprise, surprise, a Democratic judge spouting pro-murderer propaganda in a legal opinion. What is it about these people?

Guess it's the same consideration Barack Obama gave to babies born alive when he waxed poetic about the stress on the abortion doc when he can't get the brain sucker in quickly enough.

Posted by: federalist | Jul 1, 2012 1:58:00 PM

Is federalist a member of the human race?

Posted by: Eric Leslie | Jul 1, 2012 5:35:32 PM

One of the main reasons that the US has the largest percent of its population imprisoned (compared to all other civilized countries) is because "Victim's" families, in their grief and anger are told to "do something to make the world a better place." The only thing some can think of, due to their anger and thirst for revenge, is to go to legislatures and "make the punishments harsher." Sentences are already too long. This does not result in "good feelings" for the victim's families as they thought it would. It does not "make the world a better place." It makes it a worse place. I have seen many victim's families state they do not want revenge. They realize this will not make them feel better. I think the laws should be made by unemotional, reasonable, people, who are not in the grips of such a tragedy. Victim's families should find another way to grieve and should not be encouraged toward REVENGE. For the victim's sake, and for the sake of the "punished" for God sake, try to convince people like Jennifer that this is not the answer.

Posted by: Dana | Jul 1, 2012 6:03:58 PM

Dana, we lock violent offenders to age them out. People who do some of these awful crimes need to be put away. Why? Because we know that a lot of them will re-offend when let go. Tell you what--if you have family, if these people should be let out, let the preventable victimization be visited on your family. My guess is that your solicitude would dry up pretty quickly.

As for me being a member of the human race? Well, who knows? But "sentenced to die in prison" is BS propaganda. And Kagan swallowed it. Either she buys it or she was too dumb to realize it. And what's up with calling 17 yos "children"?

Funny how, once again, no one can defend Kagan.

Posted by: federalist | Jul 1, 2012 6:24:46 PM

Dana: 123D starting at 14, with no violent criminal reaching 18 is not revenge. It is incapacitation, and public safety. Crime should be 1% of what it is. One would add a public duty to kill. All law abiding citizens must be armed and try to kill all criminals at the scene of a violent crime or face a $100 fine.

You need to disclose whether you derive your income from keeping criminals alive. If that is so, you are just defending your job, and have no credibility. If you are a lawyer of any specialty, you have no credibility, anyway. You believe the law school indoctrination into supernatural core doctrines plagiarized from Church texts. You may have started with an IQ of 200. After 1L you subscribe to rules mentally retarded special class students know to be wrong and to not exist in nature. You are a mental cripple, stupider than special ed students with Mental Retardation.

I apologize in advance to all special ed students with Mental Retardation for this unfair comparison.

Posted by: Supremacy Claus | Jul 1, 2012 6:34:39 PM

I thought that was a well-written guest blog-post Doug and I am glad you shared it with your readers.

Posted by: Daniel | Jul 1, 2012 8:41:27 PM

A far more potent, relevant, intelligent, and persuasive piece of writing than anything Bill Otis or federalist ever came up with. Thank you for sharing.

Posted by: Jay | Jul 1, 2012 11:02:18 PM

I'll remember that one Jay. can't wait to tangle with you.

Posted by: federalist | Jul 1, 2012 11:37:24 PM

A criminal sentencing shold not be about making a victim whole. Nothing can make them whole. I get the hurt and the frustration, but I have a real problem with giving a victim party style rights but declaring them non-parties when the accused wants to fight for their rights. Their detrimental reliance on the original sentence should not be the basis for refusing to reopen a flawed sentence.

Many of the sentences we are talking about were based on flawed assumptions or even express testimony about how fifteen years olds were adults. "If you can do the crime, then you do the time." A careful parsing of victim rhetoric shows that they don't accept science that the American Medical Association and American Psychological Assocation fully accept.

As I go through their various blogs, I see that they honestly believe that because of the horrible things that happened to them, this chapter should be permanently closed based on a promise of finality often given by a courtroom prosecutor in a hallway.

The takeaway from Graham, Roper, and now Miller, is that juveniels more than others can change. I truly get the harm they caused is the permanent loss of a human life, but giving a former juvenile (who was a "child") at the time the offense was committed a second chance is not diminishing the loss that the victim suffered..

The indiviuals who committed these offenses are not now going to get away with it it under Miller. On average, they are going to do twenty or thirty years behind bars. Granting them a parole will not diminish or cheapen the life that was lost.

Posted by: Stuart Friedman | Jul 2, 2012 9:28:48 AM

I forgot to add in my original response. I am a criminal defense lawyer and am past Chair of the Prison & Corrections Section of the State Bar.

I also forgot to note the legal analysis posted by Bishop-Jenkins addressed why they don't accept Miller's premise, but I didn't see anything on the retroactivity issue.

Posted by: Stuart Friedman | Jul 2, 2012 9:39:02 AM

"A criminal sentencing shold not be about making a victim whole. Nothing can make them whole. I get the hurt and the frustration, but I have a real problem with giving a victim party style rights but declaring them non-parties when the accused wants to fight for their rights. Their detrimental reliance on the original sentence should not be the basis for refusing to reopen a flawed sentence."

Hogwash. First off, a legislature has every right to decide that certain victims just aren't going to have to go through parole hearings etc. Accordingly, this isn't really about victims' rights--it's about a policy decision that the legislature (until now) had every right to make. Second, these people (unlike the convict) did not choose to be in their situation. That clearly is relevant to the moral calculus and is a justification for the legislature to decide that certain crimes simply mean that the criminal will never have the opportunity for parole. This is not about third-party rights--this is about policy choices that benefit victims' families. Policy choices that were heretofore respected.

"The indiviuals who committed these offenses are not now going to get away with it it under Miller. On average, they are going to do twenty or thirty years behind bars. Granting them a parole will not diminish or cheapen the life that was lost."

20 years for a murder. Yeah, that's enough. It's so funny--you guys just can't help yourselves.

"The takeaway from Graham, Roper, and now Miller, is that juveniels more than others can change. I truly get the harm they caused is the permanent loss of a human life, but giving a former juvenile (who was a "child") at the time the offense was committed a second chance is not diminishing the loss that the victim suffered."

Well, the other "takeaway" is that five SCOTUS justices think they're more moral than the republican governments of various states. But putting aside that issue--yes, criminals can change--but if the possibility of change is really the issue, then why isn't LWOP unconstitutional? So now what you're left to argue is that the delta between juveniles' possibility of change and adults' possibility of change is of constitutional moment. But, the issue is more than that--there is risk allocation. If we know that there will be false positives, i.e., a "diagnosis" of change that really isn't change, then parole will be a danger to the public. So why can't the legislature protect against that risk by simply throwing away the key? Why does the constitution allocate the risk here against the innocent public? Moreover, what of the retribution rationale? The killing of another human being is a horrible crime--and the fact that the juvenile supposedly has some quantum of ability to change higher than an adult overrides that rationale?

This decision may not have much real world effect--I am less than optimistic about that. But as a matter of judicial interpretation it stinks.

Posted by: federalist | Jul 2, 2012 11:34:12 AM

A Miller compliance bill was discussed at the North Carolina General Assembly today. It's available here http://www.ncleg.net/Sessions/2011/Bills/Senate/PDF/S635v3.pdf.

Posted by: Jamie Markham | Jul 2, 2012 1:29:00 PM

"Justice Kagan in writing her majority opinion adopts the propaganda-laden word choice of offender advocates in her ruling calling these convicted murderers “children” (the correct legal term is “juvenile”) and uses the offender advocates’ propaganda line: “children sentenced to die in prison.” We believe that Supreme Court Justices should not use advocacy language so inaccurate and so insensitive to victims."

Will these same people who wish to call these particular offenders "juveniles" be quick to correct themselves when a "sex offender" gets the label "child molester" when the crime involves teens? Doubt it.

Posted by: Sonny Day | Jul 2, 2012 3:28:58 PM

of course, propaganda in favor of murderers vs. propaganda against sex offenders has a different moral calculus, and clearly, Supreme Court opinions are held to a higher standard

But your point is well taken. There is a clear difference between the rape of an 8 year old and sex with a 14 year old. I don't think I've lumped the two together in here.

Posted by: federalist | Jul 2, 2012 4:00:37 PM

Commentators like Federalist and others never explain why the need for American exceptionalism in the realm of punishment. Most other industrialized societies manage to do without LWOP, even for adults, and have much lower crime rates than our country. Is the lack of capital punishment and LWOP some sort of weakness of the UK and Canadian systems, for example. The notion that murderers or other serious perpetrators somehow obviously can never redeem themselves enough to even get a chance at parole constantly goes largely unexamined in these discussions and in US policy, whereas it seems to receive due consideration in most other countries we would consider peers for most purposes. It may be in this country, non-experts and victimshave too much influence in the criminal justice system, and that prevents rational outcomes. Federalist and his ilk never, ever explain themselves in well-reasoned, logical terms, rather than bald hyperbole. It is about time they did.

Posted by: Alex | Jul 2, 2012 5:41:49 PM

"It may be in this country, non-experts and victimshave too much influence in the criminal justice system, and that prevents rational outcomes."

Incarceration has reduced crime in the US. That's undeniable. And I love how letting people go is somehow an "expert" opinion. The elitism of the quote is jaw-dropping. Expert opinion is ok--agenda-driven expert opinion is not.

Posted by: federalist | Jul 2, 2012 6:14:46 PM

I appreciate hearing different viewpoints.

Justice Kagan in writing her majority opinion adopts the propaganda-laden word choice of offender advocates in her ruling calling these convicted murderers “children” (the correct legal term is “juvenile”) and uses the offender advocates’ propaganda line: “children sentenced to die in prison.” We believe that Supreme Court Justices should not use advocacy language so inaccurate and so insensitive to victims. The only people in this discussion with death sentences are our murdered loved ones.

As pointed above, we don't say "juvenile pornography," so the "propaganda" appears to be applied in other cases as well. I don't really know how much difference this amounts to. The word "juvenile" has a meaning. It is a fancy way of saying "young." Those under eighteen are "children" -- this is an ordinary use of the term. I don't think we just latch on to such things.

Also, murdered people weren't given "sentences." They were murdered. Answering alleged misuse of words with more misuse of words is not advisable. "Sentences" if we are concerned with "correct legal terms" is a formal word applied to authorized things. And, it is not "advocacy language" to label it that way. The person is being sentenced to die in prison. The dissent thinks this is perfectly acceptable for constitutionally for heinous crimes.

What is "inaccurate" about this? Why is it "insensitive"? The use of "in prison" clarifies it ... the death penalty means sentencing people to die in an execution chamber, not in a prison or hospital cell.

Plain application of normal words to require individual treatment before sentencing those under 18, including 14 year olds guilty of felony murder not specifically killing the person involved, to yes die in prison unless perhaps they get their sentence commuted is not an insult to victims. Many of whom if polled would not reject this ruling.

Posted by: Joe | Jul 2, 2012 7:14:58 PM

Thanks for taking the time to solicit this perspective, Doug, and for posting it. I've included it on my blog roundup of media coverage of Miller. Another perspective by a victim's rights advocate (and father of a son who was murdered) may be found here: http://www.bet.com/news/national/2012/06/29/commentary-lifting-mandatory-life-terms-for-juveniles-is-right-decision.html

Posted by: Tamar Birckhead | Jul 2, 2012 7:20:12 PM

"Plain application of normal words to require individual treatment before sentencing those under 18, including 14 year olds guilty of felony murder not specifically killing the person involved, to yes die in prison unless perhaps they get their sentence commuted is not an insult to victims."

"Plain application of normal words . . . ." what normal words require individual treatment?

This is typical Joe, a post that really says not a lot. He defends Kagan's use of the loaded language of advocates by saying, well, this stuff is accurate. Perhaps, but so what? Why is Kagan breaking out the arsenal of puffery for killers, but utterly blowing off the other side of the moral calculus, namely the certainty for victims' families (to say nothing of retribution etc.)? That's the issue. "Sentenced to die in prison" evokes the death penalty too. It's cheap and beneath the dignity of the Court.

Of course, Joe talks about the 14 yo murderer who didn't specifically kill. That obfuscates the reality that the murderer knowingly participated in an armed robbery. The victim is dead, yet society can't sentence this guy to spending the rest of his life in prison without some made up "individualized determination?" To state the proposition is to refute it. This is the law of judges. Nothing more.

Posted by: federalist | Jul 3, 2012 8:23:31 AM

Federalist again is annoyed that I say something that is apparently vanilla but the dispute underlines it isn't actually vanilla at all.

It is striking that Kagan using accurate words gets a 'so what?' One can't win here. Actually using accurate words -- like "children" (which is used just that way by prosecutors, so again why is it "advocacy" here?) -- isn't enough.

If you are going to lead with emotions -- though federalist's side tended to reject empathy in judging as I recall -- sure, accuracy isn't good enough. You can't say what actually occurs -- people are sentenced to die in prison. That is what life imprisonment means. Why actually spelling it out (you personally think they deserve it, after all) is a problem is strange to me.

States now w/o that ruling repeatedly use individualized determination because the people of the state have determined it is warranted. The principle is out there. Federalist might not like it, but not only judges support it. Likewise, not only judges think that there are various shades of liability and 14 year olds with that share of it often is seen as less liable. Ditto adults too.

Oh, btw, the case doesn't even stop sentencing even a 14 year old to life there. Individualized determination, the basic idea of trying each person as an individual, including for sentencing, is so horrible. The average person believes in individualized moral judgment. Not just one mandatory rule for each person -- the specific nature of each person is weighed.

Posted by: Joe | Jul 3, 2012 7:07:34 PM

Thanks to Doug for posting a victims' family member perspective from one of us most affected by the Supreme Court ruling in Miller v Alabama, Jackson v Hobbs. For much more on our group, our thoughts, and to help us information share, please visit our site www.teenkillers.org.

To specifically respond to two of the above posts:

1. To Eric Leslie - where in the world did you get the idea that I, or any other member of NOVJL is "vengeful"? You don't know me at all and nothing in this blog post indicated that I could be characterized as such. In fact I expressed compassion for offenders and their families who will have their hopes up from this ruling only likely to not see a real difference in the number of days in prison that most of them serve. I am not a "vengeful victim" and your characterization shows stereotypical, narrow and unkind thinking. Just a lesson in basic manners: if you ever encounter a murder victims family member, its best to just say that you are so sorry for what has happened to them. (If that is in fact what you feel for them). Victims families often have important information to contribute to the sentencing decision or process. They don't get to decide. They do get to have a say. They are key stakeholders, and deserve your respect as much as any other participant in the criminal justice system. More so because none of us ASKED to be here. We did not create or enforce the criminal consequences of the crime. That is the domain of courts and legislatures. But in all 50 states and federally we have a right to participate in this process and to be treated with due dignity and respect.

2. To Federalist: I won't comment on your entire thread but to answer your specific questions: Why is it inaccurate and insensitive for Justice Kagan to adopt the language of advocacy groups working against JLWOP?

1. She should as a Supreme Court Justice use scholarly legal language only.
2. The word children is not the legal term.
3. The word children evokes an image of mostly younger age persons, generally pre-pubescent, when put before the general reader. Almost all of the JLWOPs in the nation are 16 and 17. I have offspring that age - they do not want to be called children at 17.
4. Offender advocates have been publishing glossy "reports" with photos of child model/actors ages 6,7,8 etc, with titles "Children Sentenced to Die in Prison" - for links to these actual reports see our website www.teenkillers.org under "Offenders" - these manipulative and factually challenged publications should not be parroted in the US Supreme Court.
5. It is painful to victims families who know the truth of the horrible crimes and the offenders to see such sympathetic treatment of the offender when their loved ones receive no such sympathy.
6. It is inaccurate to say they are sentenced to die because they did not receive the death penalty. They can still live naturally long lives.
7. When I say that our loved ones were the only ones "sentenced to die" I speak metaphorically of course.

Finally I close by repeating our request to continue sending us information about how to find affected victims families and proceedings in states that victims should know about so we can share it with them. You can email us at [email protected] or go to our website www.teenkillers.org for phone information.

Thank you,

Jennifer Bishop Jenkins
President, NOVJL
www.teenkillers.org

Posted by: Jennifer Bishop Jenkins | Jul 6, 2012 3:15:06 PM

Also wanted to answer Stuart Friedman's question as to where the discussion about retroactivity was on our website. On this below page scroll down to find the legal analysis by Kent Scheidegger - he discusses how offenders at various stages of their various types of appeals might have strong challenges as to the retroactivity of this ruling.

http://www.teenkillers.org/index.php/courts-2/miller-alabama-jackson-hobbs/

Posted by: Jennifer Bishop Jenkins | Jul 7, 2012 11:40:19 PM

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