Dear Rep. Molaro:
While browsing the Internet, I came across an educational site developed by 5th and 6th graders at a Canadian elementary school. They were studying the concept of “heroes” in our lives and started out their project by defining the qualities that make a hero today. The following eight characteristics perfectly encapsulate what is to be a hero:
1. Is humanitarian - Cares for and respects people, generous, fights injustice, wants to make the world a better place.
2. Persistent - might make mistakes but keeps trying, Focuses on the job.
3. Responsible, honest, trustworthy.
4. Courageous and Brave - Is willing to take risks, Stands up for his/her beliefs.
5. Intelligent - logical, sees the big picture, Identifies the problem and plans a solution.
6. Selfless and humble - puts others first, doesn't seek rewards or praises.
7. Has a sense of humor.
8. Mentally Strong and self confident - fear, mistakes, problems don't stop him/her.
Representative Molaro, based on your continued fight to end juvenile LWOP in Illinois and the fact that you are willing to take on such a controversial issue despite opposition from victims and a mostly uninformed public, you are a hero in my book. You meet every one of the above criteria, and though these qualities defining what it is to be a hero were written by children, they are an unusually astute assessment.
Juvenile LWOP should be a simple matter of ethics: citizens of any country or state should not give up on their children, should not adultify adolescents in the name of community protection.
You already know what the data reveals regarding adolescent brain development. There really can be no dispute about this. There is no argument in the medical fields regarding the role a developing brain plays in a child’s ability to make rational decisions and to control their behaviors when confronted with emotionally charged situations. The connection between juvenile brain development and juvenile justice continues to evolve, but the position of researchers has only been strengthened by ongoing studies.
I would also suggest that this research should be used within our communities to reach at-risk youths before they become problems of the justice system. It would be an enormous investment in time, money, and resources; but in the end, the benefits would be even bigger.
Opponents of making HB4384 retroactive have several concerns. Opposition has been raised mostly by victims’ family members who have expressed a fear of their loved one's murderer being released from a “promised” life sentence. I understand their fear and their reluctance. But sentence reductions do happen across the board in our judicial system. Death sentences are reduced to life sentences, life sentences are reduced to a determinate number of years. Family members are rarely involved in such decisions by the courts.
It is a sensitive issue to talk about the needs of the victims’ family members. The sad and unfortunate fact is that a crime creates many victims and the impact on those victims is life-long. In a very real sense, victims serve a life sentence regardless of the sentence given to the offender. Crimes alter lives. The list of victims is long and includes not only the family members of the actual victim(s), but the family members of the offender as well. The parents of a murderer receive little or no community support or sympathy, and worse, are often blamed for their child’s actions. Can their pain be compared with losing a loved one to a brutal homicide? Yes, I believe it can. I know it can. I have spoken with a woman who is in the unfortunate position of having lost a daughter to domestic violence, and having lost her son to the DOC. She put her feelings into these words: “I miss my daughter so much that it hurts, but it hurts less with each passing day. At least I know she’s at peace. My son will never be at peace until the day he dies. He will never again be free, not even if he is somehow, someday released from prison, his heart will never be free. And neither will mine. I miss him, too, so much that it hurts and every time I see him again or talk to him on the phone, it hurts a little more." (To read more of her story, I refer you to the website
http://www.illinoisprisontalk.org/index.php/topic,5839.0.html).
There are other, legitimate concerns that are not mentioned in the highly emotional discourse the retroactivity issue has fostered. While opponents generally agree with the idea of HB 4384 prospectively, they adamantly oppose applying it to offenders already serving LWOP. There are many problems with a prospective application.
Some of the offenders now serving LWOP could find relief in Apprendi and its progeny. However, it has not been made retroactive by the courts! Therefore, though their sixth and fourteenth amendment rights may have been violated, if their direct appeal process was concluded before the Apprendi decision in 2000, they cannot now use Apprendi as a basis to appeal their enhanced sentences. The Supreme Court held that due process requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi v. New Jersey, 530 U.S. 466, 469 (2000).) Juvenile offenders now entering the system benefit from that ruling. However, juvenile offenders who were given LWOP based on facts not tried before a jury prior to the Apprendi ruling in 2000 – even if sentenced one day before the ruling – cannot use Apprendi to appeal their sentence.
One of the biggest problems with juvenile interrogations is coercion resulting in false confessions. In Illinois, steps have been taken in the past few years to substantially reduce this possibility. All interrogations must be videotaped, and the tape submitted to the court in evidence must not show any signs of having been tampered with or altered in any way. Additionally, SB2117 will provide more safeguards to juvenile suspects under interrogation by providing for every juvenile to be represented by counsel during the entire interrogation. Myriad studies have shown that juveniles are more likely to waive their Miranda rights, are not able to understand the difference between being in a custodial interrogation as opposed to an informal interview, and do not know that they can leave an interview. These issues, a huge problem for youths interrogated since 1978, will no longer be a factor if and when SB2117 passes.
In other words, young offenders who commit crimes today will not have the issues of coerced and/or false confessions that resulted in the convictions of numerous offenders prior to the new legislation. It is imperative that HB4384 be made retroactive in order to truly give the longer-serving inmates a second chance that cannot be corrected through the courts. It is a misconception that all inmates serving time have had the benefit of due process through numerous appeals. Juvenile offenders are often largely unfamiliar with the criminal justice system and once incarcerated, have no idea where to go from there. Often they have had public defenders or court-appointed attorneys who were disadvantaged with a lesser amount of resources to use in investigating the case. Money for expert witness testimony, forensics testing, etc., is usually severely limited in juvenile cases. The trials themselves are most often 3-5 days at most. Contrast that with the O.J. Simpson extravaganza lasting 8-1/2 months.
One of our fundamental rights, and part of due process is a defendant’s right to fully participate in all court proceedings. To assume that a 15-year-old, or a 16-year-old, or a 17-year-old has the ability to understand the legal process and to make competent decisions that will affect his life is patently ludicrous. They are children and their decisions reflect their youth. One inmate now serving LWOP for a crime committed before he was 18 refused to allow his attorney to bring up the abuse he suffered throughout his childhood. His reasoning? He did not want his classmates to know about it, and he did not want his mother’s reputation to be tarnished.
Then there is the question of innocence. How many young offenders have been wrongfully convicted? It is estimated that overall, 4-8% of all inmates are factually innocent. One of the most notorious juvenile offenders, whose name has become synonymous with the issue and is used as an example in nearly all oppositional discussions of retroactivity, has maintained his innocence since the time of his trial. Indeed, no physical evidence ties him to the crime. No DNA, no fingerprints, no forensic evidence of any kind, but lots of circumstantial evidence for which he has explanations that could be considered plausible. Is he really innocent? I am not qualified to make that judgment. I am inclined to believe he is guilty as convicted, but I offer this cautionary tale. I worked on a case in Pennsylvania of a death row inmate incarcerated since 1981 for a brutal kidnapping, rape, and murder that he claimed he did not commit. He was the first inmate in the United States to request DNA testing, though he was not the first to have his request granted. In fact, it took many frustrating years to get that first test, the results of which were inconclusive. Truthfully, I did not really believe he was innocent. His story seemed contrived, made up to fit the facts of the crime. But, I maintained an open mind. In 2003, after 23 years of incarceration on Death Row, he finally was exonerated of the crimes. Noted California forensic scientist, Dr. Edward Blake, performed DNA tests on skin cells found inside a leather glove left at the crime scene. The results excluded Yarris as the perpetrator of the crime. That experience has taught me to always keep an open mind and to accept the possibility that an offender may be innocent, despite all evidence seemingly to the contrary.
Representative Molaro, please keep up your fight to abolish LWOP for children under the age of 18, and to make this new law retroactive. It does not guarantee any offender his freedom. It only provides an avenue for those offenders who deserve a second chance to earn it. Thank you for all your efforts.
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