JUVENILE JUSTICE ACCOUNTABILITY AND 

IMPROVEMENT ACT OF 2009 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

ON

H.R. 2289 

JUNE 9, 2009 

Serial No. 111–47 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

JUVENILE JUSTICE ACCOUNTABILITY AND IMPROVEMENT ACT OF 2009 

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

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50–141 PDF 2010

JUVENILE JUSTICE ACCOUNTABILITY AND 

IMPROVEMENT ACT OF 2009 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

ON

H.R. 2289 

JUNE 9, 2009 

Serial No. 111–47 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia, Chairman 

PEDRO PIERLUISI, Puerto Rico 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

ANTHONY D. WEINER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida 

MIKE QUIGLEY, Illinois 

LOUIE GOHMERT, Texas 

TED POE, Texas 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TOM ROONEY, Florida 

BOBBY VASSAR, Chief Counsel 

CAROLINE LYNCH, Minority Counsel 

(III) 

C O N T E N T S 

JUNE 9, 2009 

Page 

THE BILL 

H.R. 2289, the ‘‘Juvenile Justice Accountability and Improvement Act of 

2009’’ ..................................................................................................................... 4 

OPENING STATEMENTS 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 1 

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Ranking Member, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 12 

WITNESSES 

Mr. Mark William Osler, Professor of Law, Baylor Law School, Waco, TX 

Oral Testimony ..................................................................................................... 15 

Prepared Statement ............................................................................................. 18 

Ms. Linda L. White, former Board Member, Murder Victims’ Families for 

Reconciliation, Magnolia, TX 

Oral Testimony ..................................................................................................... 26 

Prepared Statement ............................................................................................. 27 

Ms. Jennifer Bishop-Jenkins, Co-Founder, National Organization of Victims 

of Juvenile Lifers, Northfield, IL 

Oral Testimony ..................................................................................................... 29 

Prepared Statement ............................................................................................. 32 

Ms. Anita D. Colo ́n, Pennsylvania State Coordinator, National Campaign 

for Fair Sentencing for Children, Springfield, PA 

Oral Testimony ..................................................................................................... 78 

Prepared Statement ............................................................................................. 80 

Mr. James P. Fox, District Attorney, San Mateo County, CA 

Oral Testimony ..................................................................................................... 82 

Prepared Statement ............................................................................................. 83 

Mr. Marc Mauer, Executive Director, The Sentencing Project, Washington, 

DC 

Oral Testimony ..................................................................................................... 85 

Prepared Statement ............................................................................................. 88 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Robert C. ‘‘Bobby’’ Scott ........................... 102 

Additional Material submitted by the Honorable Robert C. ‘‘Bobby’’ Scott ........ 127 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 177 

(1) 

JUVENILE JUSTICE ACCOUNTABILITY AND 

IMPROVEMENT ACT OF 2009 

TUESDAY, JUNE 9, 2009 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 3:07 p.m., in room 

2141, Rayburn House Office Building, the Honorable Robert C. 

‘‘Bobby’’ Scott (Chairman of the Subcommittee) presiding. 

Present: Representatives Scott, Lofgren, Quigley, Gohmert, Poe, 

Goodlatte, and Lungren. 

Staff Present: (Majority) Bobby Vassar, Subcommittee Chief 

Counsel; Jesselyn McCurdy, Counsel; Karen Wilkinson, Federal 

Public Defender Office Detailee; Veronica Eligan, Professional Staff 

Member; (Minority) Kimani Little, Counsel; and Kelsey Whitlock, 

Staff Assistant. 

Mr. SCOTT. The Subcommittee will now come to order. 

I am pleased to welcome you today to the hearing before the Subcommittee on Crime, Terrorism, and Homeland Security on H.R. 

2289, the ‘‘Juvenile Justice Accountability and Improvement Act of 

2009.’’ 

The United States is the only country on Earth that sentences 

children to die in prison. While other countries have abolished this 

practice, we continue to impose this sentence at alarming rates, 

and in 14 States children as young as 8 years old can be sentenced 

to life without parole. 

Currently, the United States has over 2,500 people in prison 

serving life sentences without parole for crimes they committed as 

children. For the majority of these juveniles, it was their first offense. 

What is alarming is that over 2,000 of the 2,500-plus juvenile 

life-without-parole sentences resulted from mandatory minimum 

sentencing guidelines that required the court to impose the life sentence. In 29 States, once a youth is convicted of certain crimes, the 

court must impose life and cannot give consideration at sentencing 

to either the child’s age or life history. 

Whether or not these mandatory minimum sentences were intentionally designed to penalize such a large number of juvenile offenders is not clear. A recent case, In re Nunez, seems to indicate 

that the sentencing of some juveniles to life without parole is an 

2 

unintended consequence of harsh mandatory sentencing schemes 

originally designed for adult offenders. 

In Nunez, the court compared California State sentences for 

first-degree murder and for kidnapping for ransom that does not 

result in injury. Under current laws, a 14-year-old convicted of kidnapping for ransom that involved a substantial risk of death, but 

no death or even injury occurred, they would receive a mandatory 

life-without-parole sentence. Had the offender murdered the victim 

and been convicted, the harshest sentence he could have received 

would be life with parole. 

The inconsistency between these two sentencing schemes implies 

that at least some juvenile life-without-parole sentences have resulted because of legislative oversight as opposed to any deliberate 

legislative intent. 

Also of concern is that over a quarter of youth offenders serving 

life-without-parole sentences were convicted of felony murder. 

Under felony murder laws, a teen who commits a non-homicide felony, such as robbery, is held responsible for a codefendant’s act of 

murder that occurs during the course of the felony. State laws do 

not require the child offender to have intended or even known that 

murder would take place, or that he even participated, or even that 

the other participant was armed—he might not have even known 

that. 

These felony murder convictions are problematic when we consider that many of the juveniles serving these sentences committed 

their crimes with adult codefendants. In California, for example, 70 

percent of the juvenile life-without-parole cases in which a teen 

was acting with codefendants, at least one of the codefendants was 

an adult. In over 50 percent of these cases, the adult received a 

more lenient sentence than the teen, even though the children generally were neither the ringleaders, sometimes not even directly involved. 

For example, if a 13-year-old juvenile joins a 25-year-old brother 

in stealing a car and going on a joy ride, while the 13-year-old juvenile waits in the stolen vehicle his older brother stops at a drug 

house and murders someone, because the 13-year-old juvenile 

helped steal the vehicle that was used to drive to the drug house, 

under the felony murder rule, he will be held accountable for the 

murder that his brother committed even if the juvenile did not 

know of the plan. 

Now, scientists have revealed that children’s brains are underdeveloped in areas dealing with impulse control, regulation of emotions, risk assessment, and moral reasoning. During adolescence, 

neurological structures most critical to making good judgments, as 

well as moral and ethical decisions, are still being developed. Additionally, because of their low social status in relation to adults and 

their dependency on adults, juveniles are uniquely susceptible to 

coercion and intimidation by adults. 

For these reasons, the United States Supreme Court has found 

that sentencing children to death violates the eighth amendment’s 

prohibition against cruel and unusual punishment. The California 

Senate recognized this fact and recently passed legislation allowing 

courts to review juvenile parole cases after 10 years and, if appropriate, resentence the offender to a new sentence of 25 years to life. 

3 

While juvenile life without parole is often imposed on children offenders who have been convicted of crimes of homicide, life without 

parole is also imposed on a variety of other crimes, including assault, carjacking, robbery, molestation, burglary, drugs, and grand 

larceny. In many of these instances, the crime resulted in no death. 

In the case of Sullivan v. Florida before the Supreme Court this 

coming term, a 13-year-old was sentenced to life without parole in 

Florida after being convicted of sexual battery. In a second case to 

be heard by the Supreme Court this term, Graham v. Florida, a 

17-year-old on parole was sentenced to life without parole for taking part in an armed home invasion which also did not result in 

a murder. The issue before the Supreme Court is whether, in either 

of these cases, whether or not there is a violation of the eighth 

amendment’s prohibition of cruel and unusual sentences. 

There also appears to be a discriminatory impact in life-withoutparole sentences. African American youth, on average, receive juvenile life-without-parole sentences 10 times more often than White 

youth. In Connecticut, Pennsylvania, and California, this disparity 

is even greater, with Black youth being sentenced 18 to 28 times 

more often than White youth. 

In the bill before us, we are not seeking to prohibit the incarceration of juveniles from life sentences or mandating their release. 

The bill simply provides that, for a juvenile sentence to life or the 

equivalent, a meaningful opportunity for a review and possible parole must take place. Only after serving 15 years of incarceration 

and then only at intervals of 3 years thereafter will juveniles be 

allowed a chance to show that they are worthy of parole. 

Now, we recognize the pain and suffering of victims of child offenders and the need for closure in these cases. For this reason, the 

bill provides for victim notification requirements in an effort to protect these victims’ rights and understandable sentiments. However, 

there are several States that do not sentence juveniles to sentences 

of life without parole which manage this need against the need for 

society to recognize that there are irrefutable scientific differences 

between juveniles and adults in their ability to make responsible 

decisions. 

We recognize these differences in many ways: Juveniles can’t 

vote; juveniles can’t serve on juries; can’t drink, smoke, or serve in 

the military; can’t sign contracts, play the lottery, and so forth, because they are not viewed as having the mental capacity or maturity to responsibly do these things. Yet, we toss aside all science 

and reason regarding the mental capacity of juveniles when it 

comes to crime. 

We addressed this issue in a reasonable manner over 100 years 

ago through the establishment of a juvenile court system. However, 

we have allowed the emotions and politics of crime to roll back the 

provisions of that system to substitute the harsher adult system in 

not just serious violent crimes but in a whole host of other areas. 

We continue to do this in spite of the fact that every credible study 

now reveals that treating juveniles as adults generally results in 

them committing more serious crimes, and sooner, than similarly 

situated children sentenced as juveniles. 

So we look forward to hearing from the panel on how we can address the issue of why we are the only country in the world to senVerDate Aug 31 2005 15:12 Jan 25, 2010 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\060909\50141.000 HJUD1 PsN: 50141
4 

tence children to die in prison, sometimes for relatively minor involvement in crime. 

[The bill, H.R. 2289, follows:] 


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HR2289-2.eps
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HR2289-3.eps
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HR2289-4.eps
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HR2289-5.eps
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HR2289-8.eps
12 

Mr. SCOTT. It is my pleasure to recognize the esteemed Ranking 

Member of the Subcommittee, the gentleman from Texas, Judge 

Gohmert. 

Mr. GOHMERT. Thank you, Chairman Scott. 

Today the Crime Subcommittee will review H.R. 2289, the ‘‘Juvenile Justice Accountability and Improvement Act.’’ This bill requires States to give parole reviews to juvenile offenders who are 

sentenced to life without parole. 

This bill seeks to regulate prerogative sentencing of convicted 

criminals. That is exclusively a State issue. As most law professors 

and lawyers know but some forget, States have exclusive control 

over the prosecution and sentencing of defendants within their jurisdiction unless their laws violate a constitutional right. 

In the 1990’s, the overwhelming majority of State legislatures 

adopted sweeping changes to their juvenile criminal codes to properly address what the juvenile justice system had overlooked: that 

protection of public safety is of paramount concern whether the offender is juvenile or adult. 

These State legislatures revised their codes to allow juveniles 

charged with serious violent crimes to be tried as adults to ensure 

that a juvenile offender was not sentenced less seriously for their 

criminal behavior solely because of their age and perceived immaturity. They also reasoned that juveniles who pause to consider the 

consequences of their conduct before committing crimes will be deterred if they face harsh sentences such as life in prison without 

parole. 

Presently, 39 States allow for juveniles to be tried as adults and 

sentenced to imprisonment for life without parole if they are convicted of violent crimes such as murder. In some States, a sentence 

of life without parole is mandatory if a juvenile is convicted of certain crimes. In other States, the sentencing judge has discretion as 

to the sentence. 

In its next term, the Supreme Court will consider the constitutionality of sentencing certain juveniles to sentences of life without 

parole. In making its decision, the Court will consider two cases involving offenders who committed crimes that did not result in the 

death of a victim. That is a slightly peculiar choice of cases, considering that Amnesty International tells us that almost 93 percent of 

juveniles serving life without parole were convicted of homicide. 

When making its decision in these cases, I hope the Court is 

mindful that prosecutors consider a number of factors when they 

determine whether to charge a juvenile defendant as an adult. Included in those factors are the nature and circumstances of the offense, the impact of the offense on the victim, and the juvenile offender’s criminal history. 

As a result of this deliberative process, very few juveniles are 

charged as adults. According to the National District Attorneys Association, most jurisdictions in America prosecute only 1 to 2 percent of juvenile criminal offenders as adults, and in some jurisdictions this percentage is even lower. 

These States give prosecutors that discretion because the State 

legislatures and the constituents that they represent have determined that tough sentencing is required to punish offenders that 

13 

have committed murder and other violent crimes to deter others 

from committing similar crimes in the future. 

H.R. 2289 violates the principles of federalism that are the foundation of our legal system. It is inappropriate at best and unconstitutional at worst for Congress to seek to regulate the manner in 

which States determine appropriate sentences for State crimes 

committed and prosecuted within their jurisdiction. 

I am also concerned that H.R. 2289 is an unfunded mandate that 

would impose costly financial obligations on a number of States. 

Eleven States and the District of Columbia have determined its 

sentencing systems that do not allow parole. In order to implement 

the requirement of H.R. 2289, these States would presumably have 

to create, fund, and maintain a parole board to conduct hearings 

solely for this particular class of juvenile offenders. 

The bill unreasonably threatens to withhold Byrne/JAG grants 

from the States unless they comply with its mandates. This threat 

forces the States to make the 10th-amendment-negating decision to 

substitute Congress’s judgment for its own regarding criminal sentencing or risk losing important funds that help State and local law 

enforcement officials accomplish their mission. 

Further, a Federal mandate that a State provide parole reviews 

for one class of offenders that is not available to other offenders 

could create other issues of constitutional proportions. Under this 

bill, two codefendants in a murder prosecution here in Washington, 

DC, one who is 16 years old and one who is 19 years old, could be 

tried as adults and convicted of that crime and both sentenced to 

life in prison without parole. However, this legislation would require the jurisdiction to give periodic parole reviews to the 16-yearold while the 19-year-old would face life in prison. Two individuals 

who committed the same crime would receive two different punishments. 

From a personal standpoint, I never sentenced anybody to life 

without parole. We didn’t have that when I was a judge in Texas. 

And I would find it a difficult matter to do, especially for someone 

very young because you can consider age in determining sentencing 

with regard to mitigation. 

But I also believe in the constitutional system we have, that my 

judgment, as a Member of Congress, should not be substituted and 

forced onto a State in which I don’t live and in which I am not part 

of their legislature. 

And I appreciate the Chairman’s comments and the lists about 

things children can’t do. But I would note that juveniles are allowed to legally abort or kill their unborn children. So that is still 

apparently a constitutional right, as well. 

Personally, I don’t like the idea of sentencing children to life 

without parole. It is repugnant. But that is a matter for the States, 

and I hope my State will not do that. 

But with that, I yield back and appreciate the Chairman’s indulgence. 

Mr. SCOTT. I thank the gentleman. 

I think we have switched sides on what the States ought to do 

because we have been trying—and so I agree we should not normally do this, but I think this is an exceptional situation. 

14 

But we have a distinguished panel of witnesses here to help us 

consider the important issues that are currently before us. 

I ask each of the witnesses to complete his or her statement 

within 5 minutes. And there is a lighting device before you on the 

table which will turn from green to yellow when there is 1 minute 

left and red when your time is up. 

All of the witnesses’ statements will be entered into the record 

in their entirety. 

Our first witness will be Professor Mark Osler of Baylor Law 

School. He is a former Federal prosecutor and has argued cases in 

six Federal courts of appeal and the United States Supreme Court 

most recently. As lead counsel, he won the case of Spears v. United 

States in 2009 in the Supreme Court, where the Court held that 

sentencing judges can categorically reject the 100:1 ratio between 

crack and powder cocaine in the Federal sentencing guidelines. He 

is a graduate of Yale Law School and serves as the head of the Association of Religiously Affiliated Law Schools. 

The next panelist will be Dr. Linda White. She is a former adjunct faculty member at Sam Houston State University in Huntsville, Texas, in the Department of Psychology and Philosophy. She 

holds a B.S. Degree in psychology and an M.A. In clinical psychology from Sam Houston State University and earned her Ph.D. 

from Texas A&M. 

Ms. White’s 26-year-old daughter was abducted, raped, and murdered in 1986. She is a volunteer mediator with the Victim Offender Mediation/Dialogue Program in the Texas Department of 

Criminal Justice and was appointed in 2003 by Governor Rick 

Perry of Texas to represent victims issues in the Texas State Council for Adult Offender Supervision. She is a former member of the 

Murder Victims’ Families for Reconciliation and a board member of 

the Texas Coalition to Abolish the Death Penalty. 

Our next panelist is Jennifer Bishop-Jenkins. She is the sister of 

Nancy Bishop Langert, who was brutally killed, along with her 

husband and unborn child, in a highly politicized killing in Illinois. 

In 2007, she cofounded the National Organization for Victims of 

Juvenile Lifers to protect victims’ rights. After a 25-year high 

school teaching career, she has been working as a national program 

director for victims and survivors of gun violence and serves as a 

member of the advisory board to the nonpartisan United States 

Congressional Victims’ Rights Caucus. 

Our next panelist is Anita Colo ́n. In addition to her day job in 

human services, she is a human rights and juvenile justice advocate. Her brother, Robert Holbrook, was sentenced to a life sentence when he was 16 years old after a neighborhood drug dealer 

asked him to serve as a lookout during a drug deal that turned into 

a robbery and a murder. She serves as the Pennsylvania State coordinator for the National Campaign for Fair Sentencing for Children in Springfield, Pennsylvania. She is also a member of the 

Pennsylvania Prison Society’s subcommittee focused on juvenile life 

without parole and Chair of the Juvenile Life Without Parole 

Steering Committee of Reconstruction, Incorporated. She attended 

Villanova University, where she majored in criminal justice and obtained a master’s degree in human services from Lincoln University. 

15 

Our next panelist is James Fox, district attorney in San Mateo 

County, California, and a board member of the National District 

Attorneys Association. He attended the University of San Francisco 

School of Law and has a degree in psychology. He is a board member of the Mercy High School and Junipero Serra High School and 

is also a member of the Criminal Law Advisory Committee of the 

Judicial Council of California. He will be testifying on behalf of the 

National District Attorneys Association. 

And last but not least is Marc Mauer, the executive director of 

The Sentencing Project. He is one of the country’s leading experts 

on sentencing policy, race, and the criminal justice system. He has 

directed programs in criminal justice policy reform for 30 years and 

is the author of some of the most widely cited reports and publications in the field, including ‘‘Young Black Men and the Criminal 

Justice System’’ and the ‘‘Americans Behind Bars’’ series comparing international rates of incarceration. He is a graduate of 

Stony Brook University and earned a master’s in social work from 

the University of Michigan. 

So we will begin with Professor Osler. 

TESTIMONY OF MARK WILLIAM OSLER, PROFESSOR OF LAW, 

BAYLOR LAW SCHOOL, WACO, TX 

Mr. OSLER. Mr. Chairman, Members of the Committee, good 

afternoon. My name is Mark Osler. I am a former Federal prosecutor, and I currently have the honor of serving as a professor of 

law at Baylor Law School. My teaching and my study concentrate 

on sentencing and questions of faith related to criminal law. And 

I welcome this chance to address the issue of life without parole for 

juveniles. 

My testimony is going to focus on placing this bill in context, 

both the larger context of broad changes in sentencing and the idea 

that this bill is consistent with a principle that is part of the faith 

of many Americans. 

I believe in punishment, and I believe that the incarceration of 

the violent and the dangerous in our society is necessary to an ordered society. I am proud of my work as a prosecutor in the city 

of Detroit and the Eastern District of Michigan. 

Things changed in that city in 1978 when a drug gang called 

‘‘Young Boys Incorporated’’ took over much of the heroin trade in 

that city and pioneered the use of children as runners, drug sellers, 

and killers. The template was copied by others, leading to a disheartening rise in the number of children accused of very serious 

crimes, the type of crimes which result in the penalty of life without the possibility of parole. 

As an academic, I study sentencing, and I recognize where this 

bill fits into some of the larger trends we see right now. The 

changes being proposed are not sweeping. Rather, this bill is consistent with the general movement to right-size the relationship between retribution, rehabilitation, and relative culpability. In short, 

this bill does not seek drastic change but, rather, an incremental 

adjustment that would affect a relatively small number of cases. 

This is consistent in what we see in other parts of sentencing 

right now. For example, instead of wiping out the sentencing guidelines or mandatory minimums across the board, Members of this 

16 

Committee have proposed correcting the Federal sentencing element that is most unfairly retributive, the sentencing ratio between powder and crack cocaine. And we have seen similar movement in the Sentencing Commission itself. 

Capital punishment has also seen incremental changes, not abolition. The 2005 case of Roper v. Simmons, already mentioned, 

barred execution for juvenile crimes. And that is significant, but it 

only affected a relatively few cases. 

As State criminal justice systems adjust to new budget realities 

right now, they consistently are considering incremental changes 

rather than broad or across-the-board and drastic changes. 

In contrast, the year 1984 was a time of drastic change. In 1984, 

Congress got rid of parole, began the process of formulating strict 

and mandatory sentencing guidelines, and passed the Bail Reform 

Act, which, for the first time, created presumptions against release 

pending trial, even in relatively minor drug cases. Federal sentencing was transformed in a single year. 

This is not 1984. Rather, the present project, which includes this 

bill, seems to me to find a balance between retribution and some 

kind of human element in the system. This search for balance 

draws from our deepest principles. 

Famously, Micah 6:8 advises, ‘‘What does the Lord require of 

you? To act justly, to love mercy, and to walk humbly with your 

God.’’ That passage reflects two values. Retributive justice is one 

of them, and mercy is the other. And those two are in tension with 

one another. It is difficult to resolve that tension other than to recognize that our system of justice should not be all retribution or 

all mercy but must have some elements of both. 

This bill seeks exactly that balance. A sentence of life without 

the possibility of parole allows no room for mercy or redemption, 

an imbalance which is particularly untenable when we are talking 

about children as offenders. 

I can’t pretend that this is an easy issue. As a small child, our 

family was close with our next-door neighbors on Harvard Road in 

Detroit. We children would play outside as the parents sat on the 

porches and watched. We remained close as those families moved 

and the children grew up. 

In 1990, the father in that family was shot and killed by a group 

of 15- and 16-year-old children who were trying to steal his car. 

Two of the defendants received life-without-parole sentences for 

killing this man that I often ran to with skinned knees or exciting 

news. I saw directly the righteous anger and pain of his widow and 

his children. 

And though this issue is difficult for those of us who have known 

or been victims, we should not look away. I fear that part of what 

we do when we lock up a child forever is absolve ourselves, the 

adults. Yet, an examination of the lives of child offenders reveals 

something different. What we would like to see as pure evil in that 

child is too often a product of what we have tolerated in our community of adults. 

The shocking thing about Young Boys Incorporated was not just 

that children committed murders and sold drugs on the command 

of adults, but they were made to do that for the 8 years that that 

organization thrived in plain sight on street corners. For 8 years, 

17 

we tolerated an organization that did such incredible harm and addressed it largely by arresting the children who were involved. 

The easy answer is to ignore those questions and push all of the 

evil on to the child, but to do so is wrong. To lock up a child forever 

is against our good and present impulse to back away from the 

most severe retributive sentences. And it is also against a faith imperative, the balance between justice and mercy, which informs 

Americans when we are at our best. 

I have also submitted written testimony today. And I thank you 

for the opportunity to address these important issues. 

[The prepared statement of Mr. Osler follows:] 

18 

PREPARED STATEMENT OF MARK WILLIAM OSLER


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Mr. SCOTT. Dr. White? 

TESTIMONY OF LINDA L. WHITE, FORMER BOARD MEMBER, 

MURDER VICTIMS’ FAMILIES FOR RECONCILIATION, MAGNOLIA, TX 

Ms. WHITE. Mr. Chairman and Members, thank you very much 

for the opportunity to discuss the issue of life without parole and 

specifically this bill, H.R. 2289. 

Until November 1986, I was not very knowledgeable or very interested, to be quite frank, in criminal justice matters in general 

and certainly not juvenile justice matters. That changed quite suddenly and dramatically late that November when our 26-year-old 

daughter, Cathy, went missing late that November and was then 

found dead following sexual assault by two 15-year-old boys. I 

spent the better part of a year in limbo awaiting their trials, as 

they had both certified to stand trial as adults. 

During that time, the only information I had on either of them 

was that they had long juvenile records. There was never any 

doubt about their guilt, as they had confessed to the rape and murder and led the police to her body after they had been detained by 

the police in another city in Texas. 

The court-appointed attorneys for both pled them out, and they 

were sentenced to long prison terms with no chance at parole for 

at least 18 years. They came up for parole in 2004, were both given 

5-year set-offs, so they remain in prison at this time. I assume they 

will come up again later on this year. 

You have heard in my bio that I taught at Sam Houston State 

University. During the time that I taught at the university level, 

I taught upper-level college courses for 81⁄2 years in prison, the 

most rewarding work I have ever done and the most healing for me 

as the mother of a murder victim. 

In addition to the formal schooling that I have had, I have also 

educated myself in the area of criminal justice. I heard a lot of information when I attended victims’ groups, and I wanted to know 

for myself if it was accurate. I have found out, for the most part, 

it was not. 

One notable example is that Texas prisons are about as far as 

you can get from country clubs. Many of our citizens, and certainly 

victims of crime, want men and women who are convicted of criminal activity to suffer as much as possible in prison, believing that 

this is the way they will turn from a life of crime. I no longer believe this to be true and have become a devout believer in restorative justice. 

It doesn’t mean that I think incarceration is always wrong, but 

neither do I believe that it should be our first inclination for juveniles or for adults. As a psychology student and teacher, I have 

learned that while it may be necessary to remove offenders from 

our midst for a time, punishment is often the least effective means 

to change behavior and often has negative side effects. 

I have to admit to you that my journey to healing after my 

daughter’s murder was different than what I often see in victims 

and survivors, for I concentrated on healing for my family and me 

and because I focused on education over the years. At first it was 

education about grief and loss, and later on it was about psyVerDate Aug 31 2005 15:12 Jan 25, 2010 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\060909\50141.000 HJUD1 PsN: 50141
27 

chology and death and dying. Eventually, it became concentrated 

in criminal justice because of so much that I saw in our system was 

violent, perhaps necessarily so at times, but still, nevertheless, it 

seemed to me that we returned violence for violence. 

As I said previously, for many years I only knew that the boys 

who killed my daughter were juveniles with long criminal records. 

In 2000, I found out that one of them, Gary Brown, was willing to 

meet with me in a mediated dialogue as part of a program that we 

have in our Texas Department of Criminal Justice Victim Services 

Division. He was apparently very remorseful by that time and had 

prayed for a chance to tell us just that. 

With our mediator, we did a lot of reflective work getting ready 

for our meeting. And during that time, most importantly, I found 

out from Gary’s records that his long juvenile record began at the 

age of 8 with his running away from abusive situations, both at 

home and in foster care eventually. If I were being abused emotionally, physically, and sexually, I think I would run away too. It 

seems quite rational to me. 

I also found out that his first suicide attempt was at the age of 

8, the first of 10 attempts. I have a grandson just about that age 

right now, and it breaks my heart to think of a child like that trying to take his own life because it is so miserable. 

Seeing how little time I have left, I just want to say that I have 

been deeply blessed by the work that I have done in prison and out 

of it in the field of restorative justice. And all the years of education that I have had have pointed me in the direction that young 

people are just qualitatively different from the adults that we hope 

they will eventually become. And I think that my experience with 

Gary has shown me that we have a responsibility to protect our 

youth from the kind of childhood that he had and from treatment 

that recklessly disregards their inherent vulnerability as children. 

Sentencing youth to life without parole strips our young people 

of hope and the opportunity for rehabilitation. And it ignores what 

science tells us, that youth are fundamentally different from 

adults, both physically and emotionally. Even given what my family suffered, our incredible loss, and believing that young people 

need to be held accountable, I believe that they need to be held accountable in a way that reflects their age and their ability to grow 

and change. 

Thank you. 

[The prepared statement of Ms. White follows:] 

PREPARED STATEMENT OF LINDA L. WHITE

Mr. Chairman and members: Thank you for inviting me to discuss the issue of 

juvenile life without possibility of parole, and specifically H.R. 2289, the Juvenile 

Justice Accountability and Improvement Act of 2009. My name is Linda White and, 

as stated above, I am a member of Murder Victims’ Families for Reconciliation. I 

live near Houston, Texas, where I have resided for 35 years. I am here to support 

the bill before you because it allows for periodic reviews of life without parole sentences given to juveniles. 

Until November of 1986, I was not very knowledgeable or very interested, to be 

quite frank, in criminal justice matters in general, and certainly not juvenile justice 

matters. That changed quite suddenly and dramatically late that November when 

our 26-year-old daughter Cathy went missing for five days and was then found dead 

following a sexual assault by two 15-year-old boys. I spent the better part of a year 

in limbo awaiting their trials, as they had both been certified to stand trial as 

adults. 

28 

During that time, the only information I had on either of them was that they both 

had long juvenile records. There was never any doubt about their guilt, as they had 

confessed to the rape and murder and lead the police to her body after they had 

been detained by the police in another city in Texas. The court-appointed attorneys 

for both pled them out and they were sentenced to long prison terms with no chance 

at parole for at least eighteen years. They came up for parole in 2004 and were both 

given five year set-offs, so they remain in prison at this time. I assume they will 

come up again later on this year. 

The year after my daughter was murdered, I returned to college to become a 

death educator and grief counselor. Since that time, I have received a bachelor’s degree in psychology, a master’s degree in clinical psychology, and a doctorate in educational human resource development with a focus in adult education. I fell in love 

with teaching along the way and never got my professional counseling credentials, 

but I have counseled informally through church and my teaching. During the time 

I taught at the university level, I taught upper level college courses for eight and 

a half years in prison, the most rewarding work I have ever done, and the most 

healing for me as the mother of a murder victim. 

In addition to the formal schooling I’ve had, I have also educated myself in the 

area of criminal justice. I heard a lot of information when I attended victims’ groups 

and I wanted to know if it was accurate. I have found out that, for the most part, 

it was not. One notable example: Texas prisons are about as far as you can get from 

country clubs. Many of our citizens, and certainly victims of crime, want the men 

and women who are convicted of criminal activity to suffer as much as possible in 

prison, believing that this is the way they will turn from a life of crime. I no longer 

believe this to be true, and I have become a devout believer in restorative justice 

as opposed to retributive justice. It does not mean that I think incarceration is always wrong, but neither do I believe that it should be our first inclination, for juveniles or for adults. And neither am I a great believer in long sentences, for most 

offenders. As a psychology student and teacher, I have learned that punishment is 

the least effective means to change behavior, and that it often has negative sideeffects as well. 

My journey to healing after my daughter’s murder was different than what I often 

see in victim/survivors, for I had concentrated on healing for my family and me, and 

because I focused on education over the years. At first it was education about grief 

and how to help my young granddaughter with hers, and then, when I returned to 

college, it became about psychology and issues related to death and dying. Eventually, it became concentrated in criminal justice. Early on I saw much that was violent in our system—perhaps necessarily so at times—but still, it seemed to me that 

we returned violence for violence in so many ways. I kept my mind and heart open 

to another means of doing justice, one that would be based on non-violent ideals and 

means. Restorative justice is that paradigm and I have become one of its greatest 

proponents. That is what actually led me to seek a mediated conversation with either of the young men who killed my Cathy. 

As I said previously, for many years, I only knew that the boys who killed my 

daughter were juveniles with long criminal records. In 2000, I found out that one 

of them, Gary Brown, was willing to meet with me in a mediated dialogue as part 

of a program that we have in our Texas Department of Criminal Justice’s Victims’ 

Services Division. He was apparently very remorseful by that time and had prayed 

for a chance to tell us that. During the next year, Gary, with the help of our mediator Ellen Halbert, and my daughter Ami (Cathy’s daughter whom we had raised 

and adopted) and I did a great deal of reflective work to prepare for our meeting. 

During that time I found out from Gary’s records that his long juvenile record began 

at the age of eight with his running away from abusive situations, both at home 

and in foster care eventually. If I were being abused emotionally, physically, and 

sexually, I think I’d run away, too; it seems quite rational to me. I also found out 

that his first suicide attempt was at the age of eight, the first of ten attempts. I 

have a grandson just about that age right now, and it breaks my heart to think of 

a child like that trying to take his own life because it is so miserable. 

Until the time that I met with Gary, I had never laid eyes on him and had, over 

the years, gradually come to ignore his existence. Both the offenders became nonpersons to me, in effect. Once I knew that Gary wanted to meet me, that nonpersonhood totally changed for me; he became as human to me as the men I had 

taught in prison. That in and of itself was a relief, I think, since part of me revolted 

at the idea of forgetting him in any way at all. As the time approached for us to 

meet, I know that my daughter and Gary both became more and more apprehensive, 

but not me. I couldn’t wait to see him and tell him how much I believed in his remorse and was grateful for it. I know that this unusual response to the killer of 

one’s beloved child was only possible through my discovery of restorative justice 

29 

and, of course, by the grace of God. I strongly believe that most of my journey over 

the last 22 years had been through grace. Otherwise, I have no explanation for it. 

My meeting with him was everything I expected and more. Since it was made into 

a documentary, I have been privileged to have it shown around the world for training and educational purposes, and I have heard from many who have seen it and 

felt blessed by the experience. I am sometimes invited to go with the film to answer 

questions and reflect on my experience. I also go into prison, especially with a victim/offender encounter program we have in Texas called Bridges to Life, a faithbased restorative justice curriculum, where my film is used to educate offenders related to victim empathy. I have been deeply blessed by this work and I feel Cathy’s 

presence in it every time I stand before a group either in or out of prison and reflect 

on my journey. 

My education and years of teaching developmental psychology have taught me 

that young people are just different qualitatively from the adults we hope they become. And my experience with Gary has taught me that we have a responsibility 

to protect our youth from the kind of childhood that he had, and from treatment 

that recklessly disregards their inherent vulnerability as children. Sentencing youth 

to life without parole strips our young people of hope and the opportunity for rehabilitation. It ignores what science tells us: that youth are fundamentally different 

from adults both physically and emotionally. Even given the trauma, and incredible 

loss my family experienced, I still believe that young people need to be held accountable in a way that reflects their ability to grow and change. Gary is proof that young 

people, even those who have done horrible things, can be reformed. 

Mr. SCOTT. Ms. Bishop? 

TESTIMONY OF JENNIFER BISHOP-JENKINS, CO-FOUNDER, 

NATIONAL ORGANIZATION OF VICTIMS OF JUVENILE 

LIFERS, NORTHFIELD, IL 

Ms. BISHOP-JENKINS. Thank you, Mr. Chairman and Members of 

the Committee. My name is Jennifer Bishop-Jenkins, and I am one 

of the founders of the National Organization of Victims of Juvenile 

Lifers. 

In 1990, my sister Nancy, her husband Richard, and their unborn child were brutally murdered in Winnetka, Illinois, by a 

young man 4 weeks shy of his legal adulthood. He planned the 

murders alone and reportedly did it for the thrill of it. He shot 

Richard in the back of his head and then turned the gun on my 

beautiful young sister, who begged him not to kill her baby. He 

fired directly at her abdomen, exploding the baby, leaving Nancy 

bleeding to death. And Nancy’s last act of life was to draw a heart 

and a ‘‘U’’ in her own blood. 

I have devoted the relative peace and legal finality that his three 

natural life sentences brought us to the prevention of violence and 

advancing human rights. And I have come here to tell you that the 

bill before us actually deeply flawed. It is the antithesis of due 

process and it is a violation of fundamental victims’ rights to even 

consider retroactively changing life-without-parole sentences, certainly not without informing and involving the victims. 

Our family’s experience illustrates the rank unfairness. We were 

promised life without parole by a judge who chose to exercise a discretionary life sentence for such a heinous crime because of his 

privileged upbringing and complete lack of remorse. And relying on 

that promise, we believed this part of our ordeal was over. 

So we don’t have transcripts of the sentencing. The court reporter, with his stenographic tapes, cannot be found. We can’t contact the jurors. My father, the best witness to the carnage of the 

crime scene, has died. We can’t get statements from prosecutors, 

30 

evidence technicians, and police, who had direct contact with the 

case. Witnesses cannot now be found, such as Nancy’s next-door 

neighbor who heard her terrified pleas for help, and the friend of 

the killer to whom he confided details of the awful crime. 

All that we could have gathered to arm ourselves for a parole 

hearing someday is lost, lost because we were promised that parole 

or early release for this killer was not possible. And this is a sickening bait and switch. 

I have used my own limited resources to notify a few other victims of this well-funded national effort to free these killers. All 

were told the same thing: ‘‘Don’t worry, this guy can’t ever get out.’’ 

This new uncertainty renders our situation entirely different 

from victims like Linda White, because, though she and I have 

worked together a long time as murder victims’ family members devoted to restorative justice and human rights, as she herself told 

you, I am sad to say she literally has no standing in this specific 

discussion because the offenders in her case did not receive this 

sentence. 

The temerity of anyone to propose anything that so profoundly 

affects us without notifying us is appalling. If you haven’t gone 

through it, you cannot understand the impact of this proposal before us. Parole hearings are incredibly re-traumatizing. They deprive victims of legal finality. To reopen this pain every 3 years for 

the rest of our lives and perhaps those of my children is quite literally torture. Proponents of this legislation will be hard-pressed to 

produce one victim’s family like ours where the offender had no relation to the victim who actually wants to endure this lifetime of 

parole hearings. 

They will no doubt give you some rare legitimate stories of injustice that, like all problems in the criminal justice system, can and 

should be addressed. But we can easily outmatch them with horror 

stories, such as 12-year-old Victoria Larson, whose killer dug her 

grave 3 days before raping and killing her. He had already been 

given his second chance; he was already out on juvenile parole, a 

parole that he used to rape and murder her. And the 16-year-old 

who took the 5-year-old girl into the abandoned housing project in 

Chicago and raped her and then threw her out a 14-story window. 

As she clung with fingertips to the windowsill, screaming for her 

mother, he went to the window and lifted off her hands, sending 

her to her death—5 years old. 

This is not impulse. This is callous disregard for human life with 

cool, advanced planning by people old enough to know that killing 

is wrong. 

I note that this room is not filled with victims’ families of these 

crimes. I promise you it is not because they do not care. It is because no one has bothered to tell them that you are doing this, despite our pleas to this Committee for victim notification in advance 

of legislation and our pleas to the advocates of these offenders, who 

have spent millions supporting them, that they devote a small, 

nominal proportion to outreach to victims’ families of these crimes. 

My written testimony will detail other important issues pertaining to this legislation, such as how the brain development research is actually being misapplied; how a one-size-fits-all parole 

mandate cannot work in a Nation where each State has a different 

31 

sentencing scheme, including half of them with determinant sentencing and many of them, like my State, with no parole structures 

at all; and ways that juvenile life sentence can actually be reformed, as I believe it can, without any negative impact on victims, 

using different ideas. 

We all need a real conversation about reforming this process before the filing of any more such legislation and with all stakeholders at the table. And in the meantime, as this bill stands now, 

it only transfers the life sentences from the guilty offenders to the 

innocent victims’ families left behind. 

Thank you. 

[The prepared statement of Ms. Bishop-Jenkins follows:] 

32 

PREPARED STATEMENT OF JENNIFER BISHOP-JENKINS


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78 

Mr. SCOTT. Thank you. 

Ms. Colo ́n? 

TESTIMONY OF ANITA D. COLO ́ N, PENNSYLVANIA STATE COORDINATOR, NATIONAL CAMPAIGN FOR FAIR SENTENCING 

FOR CHILDREN, SPRINGFIELD, PA 

Ms. COLO ́ N. Good afternoon, Chairman Scott and Committee 

Members. 

First, I would like to thank you, Chairman Scott, for introducing 

H.R. 2289 and for holding this hearing. I commend you for your 

concern over the issue of sentencing juveniles to life without parole, 

as well as your willingness to step forward to address it. 

My name is Anita Colo ́n, and I am the sister of Robert Holbrook, 

a man convicted, currently serving a life sentence in Pennsylvania 

for a crime he was convicted of at the age of 16, a crime that occurred on his 16th birthday. 

That day, lured by the promise of $500 made by a drug dealer, 

Robert agreed to serve as a lookout for four adult males for what 

he thought was going to be a simple drug deal. My brother soon 

found himself in the midst of a robbery of a drug dealer’s wife inside her home. Although he desperately wanted to run once he realized what was happening, he was terrified of the drug dealer that 

had ordered him to stay and oblivious to the consequences that 

would await him if he remained. 

As a result of that terrible night, tragically a young woman lost 

her life. Because of the terribly misguided decision my brother 

made, his freedom was taken away forever. Having no prior experience with the court system, my brother accepted his attorney’s advice and pled guilty to murder generally. The attorney told us that 

if he did not do this the DA would seek the death penalty. 

Despite the fact that Robert was a juvenile, had no prior criminal 

record, and did not participate in the actual murder of the victim, 

the judge imposed a sentence of first-degree murder for aiding and 

abetting in the crime. Because of mandatory sentencing in Pennsylvania, he was sentenced to life without the possibility of parole. At 

his sentencing, the judge stated that my brother had certainly been 

the least culpable of the offenders but that the law did not permit 

him to use discretion in his sentencing. 

That was over 19 years ago, and my brother is now 35 years old. 

While his friends continued high school, got their driver’s licenses, 

went on to college, got married, my brother spent the majority of 

his most defining years in prison. Most of his early years were 

spent in isolation, separated from the adult offenders because of his 

age. Here he was locked up for up to 23 hours a day in a cell the 

size of a small bathroom. 

My brother’s conviction and incarceration was devastating to my 

family, especially my mother. My mother wrote to her son in prison 

each and every day right up until the end of her life 4 years ago. 

At that time, she had been diagnosed with cancer, and within 

months she passed away. My brother was not allowed to attend her 

funeral because the Department of Corrections no longer permits 

the transporting of lifers to attend funerals, even when a parent 

dies. 

79 

Despite being told that there is no hope for him, my brother has 

refused to give up on his life. While in prison, he obtained his GED, 

participated in many college and paralegal courses, and became an 

avid reader and writer. He has had several articles published and 

works closely with many human rights organizations. 

My brother deeply regrets his participation in the crime and the 

horrible loss suffered by the victim’s family but does not believe 

that his entire life and hope for the future should be taken away 

from him. Whereas I also believe that my brother’s actions that day 

did warrant punishment, I am confident that he does not deserve 

to spend the rest of his life, what could turn out to be 60, 70, even 

80 years, in prison for one horrible choice he made while barely 16. 

Although my initial concern over juveniles sentenced to life without possibility of parole came as a result of my brother’s conviction, 

after truly researching this issue I became an advocate for juvenile 

justice reform. And I am speaking to you today on behalf of the approximately 2,500 juveniles currently sentenced to die in prison 

throughout the United States. 

Our laws do not allow juveniles to assume the same responsibilities as adults such as driving, voting, drinking, joining the military, because we know that they are not mature or mentally developed enough to make these decisions or control these actions. Yet 

we hold these same children as accountable as adults when it 

comes to crime. Juvenile offenders should not be held to the same 

level of accountability as adults, because they are not adults. These 

youth are not beyond redemption, but currently they are without 

hope. 

In my home State of Pennsylvania, we have the distinction of 

having the highest number of juvenile lifers of anywhere else in the 

world, with approximately 450 prisoners serving life sentences for 

crimes they committed or participated in as juveniles. 

The district attorney’s office claims that only the worst child offenders are sentenced to life without parole and only in exceptional 

circumstances, but that is simply not true. While I acknowledge 

that those fighting crime throughout this country face daunting 

challenges, the answer is not to throw away the lives of our children forever. The fact that a child commits a crime does not negate 

the fact that they are still a child. 

Please understand that I am in no way suggesting that you open 

the prison gates and free everyone that was incarcerated as a juvenile. This legislation would provide these offenders the prospect, 

not guarantee, of parole after a reasonable period of incarceration. 

I find it incomprehensible that heinous mass murderers, such as 

Charles Manson, are given the chance for parole, yet thousands of 

children, whose crimes were committed while they were still mentally and emotionally developing, are denied this same opportunity. 

Juvenile offenders should be given a second chance, a chance to 

prove that an extremely poor decision made during adolescence 

does not have to define who they can become as an adult within 

society. 

Chairman Scott, Committee Members, I implore you to do just 

that. Again, thank you for allowing me to testify before you today. 

I urge you to enact this bill and restore hope to the thousands of 

80 

individuals currently serving juvenile life without the possibility of 

parole in this country. 

[The prepared statement of Ms. Colo ́n follows:] 

PREPARED STATEMENT OF ANITA D. COLO ́ N

First, I would like to thank you, Congressman Scott, for introducing HB2289 and 

for holding this hearing. I commend you for both your concern over the issue of sentencing juveniles to life without the possibility of parole. as well as your willingness 

to step forward to address it. 

My name is Anita Colo ́n. I am the sister of Robert Holbrook, a man currently 

serving a life sentence in Pennsylvania for a crime he was convicted of participating 

in at the age of 16, a crime that occurred on his sixteenth birthday. That day, lured 

by the promise of $500 made by a neighborhood drug dealer, Robert agreed to serve 

as a lookout for four men for what he thought was going to be a simple drug deal. 

My brother soon found himself in the midst of a robbery of a young woman inside 

her home. Although he desperately wanted to run once he realized what was happening, he was terrified of the drug dealer that had ordered him to stay, and oblivious to the consequences that would await him if he remained. 

As a result of that terrible night, an innocent young woman lost her life and my 

brother’s freedom was taken away forever. Having no prior experience with the 

court system, my brother accepted his attorney’s advice and pled guilty to murder 

generally. The attorney told us that if he did not do this, the D.A. would seek the 

death penalty. 

Despite the fact that Robert was a juvenile and did not participate in the actual 

murder of this woman, the judge sentenced him to first degree murder for aiding 

and abetting in the crime. Because of mandatory sentencing in Pennsylvania, he 

was sentenced to life without the possibility of parole. At sentencing, the judge stated that my brother had most certainly been the least culpable of the offenders, but 

that the law did not permit him to use discretion in his sentencing. That was over 

19 years ago and my brother is now 35 years old. While his friends continued high 

school, got their drivers licenses, went on to college, got married and now have children, he sits confined to a cell. Most of his early years were spent in isolation, separated from the adult offenders. 

My brother’s conviction and incarceration was devastating to my family, especially 

my mother. My mother wrote to her son in prison each and every day right up until 

the end of her life four years ago. At that time she was diagnosed with Cancer and 

within months she passed away. Robert was not even able to attend her funeral because the Department of Corrections no longer allows the transporting of lifers to 

attend funerals, even when a parent dies. 

In spite of the lack of hope afforded him, my brother has refused to give up on 

his life. While in prison, he obtained his GED, participated in a paralegal course, 

and became an avid reader and writer. He has had several articles published and 

works closely with many human rights organizations fighting against racism and 

unfair sentencing such as his. My brother deeply regrets his participation in the 

crime and the horrible loss suffered by the victim’s family, but does not believe that 

his entire life and hope for the future should have been taken away from him. 

Whereas I do believe that my brother’s actions that day did warrant punishment, 

I am confident that he does not deserve to spend the rest of his life (what could 

turn out to be 60, 70, even 80 years) in prison for one horrible choice he made while 

barely 16. 

Although my initial concern over juveniles sentenced to Life without the Possibility of Parole came as a result of my brother’s conviction, after truly researching 

this issue I became an advocate for juvenile justice, dedicated to this cause, and I 

am speaking to you today on behalf of the approximate 2,500 juveniles currently 

sentenced to die in prison throughout the United States. Please allow me to share 

some background on this serious human rights issue we are addressing. Much of 

this may have been said already, but I feel it is important to highlight. 

The United States is currently the only country in the world known to have children sentenced to and serving life without the possibility of parole. This alone tells 

me that there is something wrong with this policy. Sentencing juveniles to life without the possibility of parole violates customary international law and it is expressly 

prohibited under any circumstances by Article 37 (a) of the United Nations Convention on the Rights of a Child (CRC). The United States and Somalia are currently 

the only countries that have refused to ratify this treaty. 

As you are aware, The U.S. Supreme Court made the distinction between the culpability of juvenile offenders and adult offenders when it abolished the death penVerDate Aug 31 2005 15:12 Jan 25, 2010 Jkt 000000 PO 00000 Frm 00086 Fmt 6633 Sfmt 6621 H:\WORK\CRIME\060909\50141.000 HJUD1 PsN: 50141
81 

alty for juvenile offenders in 2005 (Roper vs Simmons). Citing both clinical and academic research, the Court acknowledged that adolescents are immature, incapable 

of clear adult decision making, and prone to peer pressure. Using this same logic, 

it is time that the United States acknowledges and addressing the fact that this 

same logic applies to sentencing our children to die in prison. 

Throughout the country, states are re-examining the affect of automatic transferring of juveniles to adult court in combination with mandatory sentencing laws resulting in life without parole sentences for juveniles, and I believe it is the perfect 

time for the Federal Judiciary System to address this problem. 

Nationally, almost 60 percent of the prisoners serving life without parole for 

crimes they committed as juveniles were first time offenders, never having been convicted of a previous crime. In addition, one third of those juveniles convicted of life 

without parole were convicted of felony murder, because they participated in a crime 

that resulted in a homicide, but they did not themselves kill anyone. In most of the 

cases, these sentences were a result of mandatory sentencing currently in place for 

adults convicted of murder, leaving judges with no discretion in sentencing. 

Also, there are a significant disproportionate number of minorities serving 

JLWOP throughout the United States. In California and Pennsylvania, an African 

American youth is 20 times more likely to receive a sentence of life without the possibility of parole than a white youth even though African Americans make up less 

than 15% of these states’ youth population. These statistics are similar throughout 

the country. 

Finally, JLWOP, like most forms of unusually harsh punishment, does not serve 

as a deterrent. FBI Statistics show that from 1994–2004 the number of juveniles 

arrested for murder rose by over 24%. Research studies have shown that juvenile 

offenders are more susceptible to rehabilitation and treatment than adult offenders. 

These children are not beyond redemption, but currently they are without hope. We 

imprison children for the rest of their lives, without any hope of rehabilitation or 

re-entry into society and call it justice. Well, I call it inhumane. 

Our laws do not allow juveniles to assume the same responsibilities as adults 

(such as driving, voting, drinking, or joining the military) because we know that 

they are not mature or mentally developed enough to make these decisions about 

or control these actions. Yet, we hold these same children as accountable as adults 

when it comes to crime. Juvenile offenders should not be held to the same level of 

accountability as adults because they are not adults. 

In my home state of Pennsylvania, we have the distinction of having the highest 

number of juvenile lifers of any state in the country, with approximately 450 prisoners serving life sentences for crimes they committed or participated in as juveniles. The Pennsylvania District Attorney’s Office claims that only the worst child 

offenders are sentenced to life without parole, and only in exceptional circumstances, but that is simply not true. 

While I acknowledge that those fighting crime throughout this country face 

daunting challenges, the answer is not to throw away the lives of our children forever. The fact that a child commits a crime does not negate the fact that they are 

still a child. Please understand that I am in no way suggesting that you open the 

prison gates and free everyone that was incarcerated as a juvenile. The legislation 

proposed in HR2289 does not ignore the fact that some juveniles commit horrible 

crimes and cause tremendous grief to victims’ families, and deserve to be punished 

for their actions. Nor does the bill ignore the fact that there are some juvenile offenders that may never be able to develop into reasoning members of society and 

should therefore not be released. What this legislation does is provide these offenders the prospect, not guarantee, of parole after a reasonable period of incarceration. 

I find it incomprehensible that heinous mass murderers such as Charles Manson 

are given the chance for parole, yet thousands of children whose crimes could never 

begin to compare to his are not. 

Juvenile offenders should be given a second chance, a chance to prove that an extremely poor choice made during adolescence does not have to define who they can 

become as an adult within society. Congressman Scott, committee members, I implore you to do just that. Again, thank you for allowing me to testify before you 

today. I urge you to enact this bill and restore hope to the thousands of individuals 

currently serving juvenile life without the possibility of parole in this country. 

Mr. SCOTT. Thank you. 

Mr. Fox? 

82 

TESTIMONY OF JAMES P. FOX, DISTRICT ATTORNEY, 

SAN MATEO COUNTY, CA 

Mr. FOX. Chairman Scott, Ranking Member Gohmert, and Members of the Committee, my name is Jim Fox. I am the district attorney of San Mateo County in California and the chairman of the 

board of directors of the National District Attorneys Association. 

Some of us are old enough to remember Father Flanagan, the 

founder of Boys Town. He was famous for having said, ‘‘There is 

no such thing as a bad boy.’’ I started in the criminal justice system in 1966, 43 years ago, when I graduated from law school, 

working in the juvenile hall. And I am here to tell you today that, 

as wonderful as Father Flanagan was, he was not correct in saying 

there is no such thing as a bad boy. There are. 

And, you know, what we are talking about today is changing the 

laws in a number of States, which is going to significantly impact 

the whole criminal justice system, without any real guidelines. I 

couldn’t agree more with Ranking Member Gohmert, that this is 

not a Federal issue; this is a State issue. 

Unfortunately, by attempting to put the money as a hook, what 

you are also ultimately going to do is to penalize those States 

which have utilized Byrne/JAG funding for prevention programs. 

So I would suggest that this is not the best way to go. 

In looking at the issue, I see in the bill a reference to the fact 

that 16 percent of juveniles doing life sentences are determined to 

have been 15 or younger. I am not familiar on a national basis, but 

I can tell what you the number is in California: 1.2 percent of juveniles doing life sentences were 15 and younger. 

So I would suggest that either—and I do not know what goes on 

in Pennsylvania, but I would suggest that the Congress is not the 

correct mechanism to correct what may very well be an injustice 

in an individual State and to adversely impact all of the States. 

We talk about the seriousness of the crime. In California, juveniles cannot get life without the possibility of parole, tried as 

adults, unless they are convicted of first-degree murder and special 

circumstances are found true. At that point, the court has discretion; it is not automatic. 

And so, I would suggest there is no need for this legislation, because who better to consider the appropriateness of a sentence 

than the judge who heard the trial, who heard the evidence? 

It has been said that if—and, frankly, I would also like to point 

out that this bill goes further than just life without the possibility 

of parole. As I read it, it mandates parole hearings within the first 

15 years and then every 3 years thereafter, whether the sentence 

was life without the possibility of parole or not. In California, the 

sentence for first-degree murder is 25 years to life. Whether if you 

are a juvenile prosecuted as an adult or if you are an adult, you 

are going to do 25 years before your first eligibility for a parole 

hearing. So you are completely changing the structure of the law. 

But what I think really needs to be emphasized is you are creating a re-victimization. Those family members of people who have 

been murdered, who have been told that the sentence was life without the possibility of parole, that does bring finality. Frankly, it 

brings a greater finality than if somebody in California were to be 

sentenced to the death penalty, because they are going to serve at 

83 

1 ‘‘Blended sentencing’’ models currently exist in 15 states in America and represent a combination of both juvenile and adult criminal sanctions for serious, violent or habitual juvenile 

offenders whose crimes have been determined by either a prosecutor or judge to not warrant 

immediate prosecution or transfer to adult criminal court. 

least 25 years before that is carried out, with the possibility of reversal. 

Life without the possibility of parole means just that, absent 

commutation. So there are mechanisms available to remedy what 

is perceived to be a miscarriage of justice, and it is through the 

State’s executive branch. The Governor of every State has the ability to commute a sentence which the Governor believes, based upon 

the evidence and based upon changes of circumstances, would be 

appropriately modified. 

So I do not support this bill. I believe that it does adversely impact the whole concept of federalism and the States’ rights. Sentencing and criminal prosecution is a matter for the States. And especially for those States that I believe have done it right, it would 

be inappropriate to enact this measure. 

Thank you very much for the opportunity to testify today. 

[The prepared statement of Mr. Fox follows:] 

PREPARED STATEMENT OF JAMES P. FOX

Chairman Scott, Ranking Member Gohmert, members of the Subcommittee, thank 

you for inviting me to testify today on behalf of the National District Attorneys Association (NDAA), the oldest and largest organization representing over 39,000 district attorneys, state’s attorneys, attorneys general and county and city prosecutors 

with responsibility for prosecuting criminal violations in every state and territory 

of the United States. 

NDAA has taken the opportunity to review H.R. 2289, the Juvenile Justice Accountability and Improvement Act of 2009 and strongly objects to what we consider 

to be an overly broad and one-sided attempt to require state legislatures to revise 

juvenile codes across America to make it more difficult to prosecute juvenile offenders as adults for egregious crimes and to punish juvenile offenders less seriously for 

their criminal behavior solely because of their perceived immaturity. 

The overwhelming majority of state legislatures appropriately adopted sweeping 

changes to their juvenile codes during the 1990’s to properly address what the juvenile justice system had far too long overlooked, i.e., that protection of the public 

safety is of paramount concern whether the offender is a juvenile or an adult. 

Not only does this legislation fail to recognize the importance of this paramount 

concern of protecting the public safety, it also ignores other important concerns 

which should rightfully be part of the decision-making process in reference to crimes 

committed by juvenile offenders, such as the nature and circumstance of the offense, 

the impact upon the victim, and the juvenile offender’s criminal history. This bill 

instead focuses solely upon offender-based criteria as being the factors which should 

control the decision-making process, be it the decision to directly file or transfer a 

juvenile offender to adult court for prosecution or the decision as to what sanction 

should ultimately be imposed if a juvenile offender is convicted. 

The NDAA supports a balanced approach to juvenile justice which properly takes 

into consideration all relevant factors in deciding what criminal charge should be 

filed against a juvenile offender and whether the case should be disposed of in juvenile or adult court, or handled under a ‘‘blended sentencing’’ model 1 in those states 

incorporating this middle-ground approach of addressing juvenile crime. These factors should include the threat to public safety, the seriousness of the crime, the offender’s criminal history, the certainty of appropriate punishment, and the age and 

maturity of the offender. This proposed legislation considers only the age and maturity of a juvenile offender, which is clearly inappropriate. In fact, while age and maturity is an appropriate consideration in not only the sentencing but the charging 

of a juvenile offender (a factor, by the way, which is always taken into consideration 

by America’s prosecutors), all of the aforementioned factors should be considered in 

the decision-making process as to juvenile offenders, with the greatest weight being 

given to protection of the public safety. 

84 

2Sam Vincent Meddis, Poll: Treat Juveniles the Same as Adult Offenders, USA Today, Oct. 

29, 1993, at 1A. 

The unwritten, but clear implication of this proposed legislation is that too many 

juvenile offenders are prosecuted and sentenced as adults in our country. The reality is, in fact, quite the opposite. Very few juveniles are prosecuted and sentenced 

as adults in America, contrary to the unwritten implication of this proposed legislation and a public misperception driven in large part by sensationalistic media coverage of certain high profile cases. Few jurisdictions in America prosecute more than 

1 to 2% of juvenile criminal offenders as adults, and in some jurisdictions this percentage is even lower. In those cases where adult court prosecution does occur, the 

simple fact of the matter is that adult court prosecution is clearly warranted in 

these instances. 

In a poll conducted in 1993, 73% of those surveyed across the U.S. said that ‘‘violent juveniles should be treated as adults rather than as defendants in lenient juvenile courts.’’ 2 While more information about human brain development is available 

today than existed in the mid-1990’s, there are few juvenile offenders committing 

murders or crimes of violence who do not realize that their actions are wrong and 

most fully understand the gravity of the crimes they have committed. As noted 

above, the age and maturity of these juvenile offenders are factors properly considered both as to where the proper venue of the case should rest and as to the sentence to be handed down upon conviction. These are not, however, the only factors 

that must be considered in these important decisions. 

Another aspect of this bill that needs to be addressed is the aggressive, violent 

nature of juvenile membership in gangs across America. Gangs actively recruit 

membership in their early-to-mid teens to carry out violent and heinous crimes as 

a way to prove themselves to gang leaders and to increase their individual standing 

within the gang’s hierarchy. Because many states mandate lesser penalties for violent juvenile offenders than adults, gang leadership often have juvenile gang members perform violent crimes towards others because there is less of an ability to 

prosecute them. 

While we do believe treatment, rehabilitation, youth gang prevention initiatives 

and after-school programs are important tools in addressing America’s gang problem, the ability to provide swift enforcement of violent juvenile offenders is necessary to keep our nation’s communities safe. It is our belief that this bill will not 

only weaken America’s gang enforcement capabilities, but will give many violent offenders who have no desire to be rehabilitated a free pass back onto the streets of 

our communities to commit more violent crime against the innocent. 

We believe the vast majority of citizens in our country would support the prosecution of these heinous offenders as adults, as well as the appropriate prison terms 

handed down upon conviction for these egregious crimes. To argue that these violent 

offenders, after being convicted of crimes warranting a life sentence without the possibility of parole should be considered for parole solely because of the criminal’s age 

is something America’s prosecutors will never support and is contrary to the interests of justice and protecting the citizens we proudly serve. 

H.R. 2289 also fails to recognize in its findings that 13 states in America have 

set an age of majority for criminal prosecution of less than 18 years of age. The 

NDAA does not agree with the ABA that the age of majority for adult criminal prosecution of offenders should be 18 years of age in every state in this country. To the 

contrary, this is a decision rightfully left to local control and the deliberate and 

thoughtful decisions of state legislatures on this important issue should be respected. 

Even more importantly, this legislation fails to acknowledge the most fundamental aspect of juvenile codes across America, namely that a juvenile offender’s 

age and maturity are always taken into consideration in the disposition of a case. 

In fact, that is the reason why we have a juvenile court system in the first place— 

a system, by the way, which is supported by America’s prosecutors. It is also important to keep in mind that age and maturity are also considered in cases involving 

juvenile offenders transferred and convicted as adults for their crimes, with the exception of the imposition upon conviction of certain mandatory sentences required 

by law (and in those instances, it is once again state legislatures that have properly 

concluded after thoughtful deliberation that certain crimes are so egregious that society should rightfully demand a mandatory minimum sentence for offenders convicted of them). 

The NDAA also supports consideration of blended sentencing options in appropriate cases where serious, violent or habitual offenders are not transferred or 

waived to adult court. These laws, which are sometimes referred to as a ‘‘middleground approach’’ or a ‘‘one last chance option’’ for juvenile offenders, are designed 

85 

for those youth who have committed a serious offense which does not initially warrant adult prosecution, but which requires greater sanctions and/or longer supervision by the juvenile court than is provided in the traditional juvenile court system. 

Blended sentencing laws combine some juvenile and adult sanctions, provide for 

stayed adult sanctions to be imposed at a later date should the offender not conform 

to the conditions of the juvenile court disposition, provide incentives for the youth 

to remain law abiding in the future and lengthen the period of supervision over the 

youth by the juvenile court. Blended sentencing models are appropriate and necessary in the continuum of sanctions available for more serious, violent or habitual 

offenders, especially for younger youth committing very serious crimes. 

Something that cannot be overlooked is how repeated parole hearings would adversely affect the victims of these heinous crimes. By requiring a parole hearing 

every three years after 15 years of incarceration, this bill would unintentionally 

harm the victim and the victim’s family by subjecting them to the ordeal of repeated 

court visits when all they want to do is move on with their lives. Re-victimizing a 

family with these mandated court proceedings is unfair and unjust. 

The manner in which this legislation is to be enforced would penalize all aspects 

of America’s criminal justice system. Consequences outlined in this legislation for 

states who do not comply would not receive 10 percent of the funds obligated to 

them through the Byrne Justice Assistance Grant (JAG) program for each fiscal 

year of noncompliance. The Byrne Justice Assistance Grant program—not to be confused with the Byrne Discretionary program, which is entirely earmarked—is distributed to states and local areas on a formula basis. The formula combines population and crime data, and the funding is used to address the most pressing criminal 

justice problems in a given area. States and localities have the flexibility to leverage 

the small amount of funding they get through JAG with their own resources tackle 

crime challenges in innovative ways, including funding allocations to cold case units, 

identity theft investigation, school violence prevention, hate crime programs, services for threatened jurors, victims and witnesses, and a variety of other efforts. 

Hypothetically speaking, if this bill were signed into law and a state did not comply in a timely manner, this law would not only punish state and local prosecutors, 

but thousands of public servants in law enforcement, substance abuse prevention 

and treatment, drug courts, corrections, state and local government, victim assistance and juvenile justice personnel. In tough economic times, this is the wrong way 

to enforce legislation when state budgets are currently more strapped than ever. 

It appears to us that Juvenile Justice Accountability and Improvement Act of 

2009 is both ill-advised and unnecessary, and we strongly urge the United States 

Congress not to support it. By its terms, it is a wholesale attack upon the juvenile 

codes of states throughout America and upon the prosecutors and judges who 

thoughtfully and professionally enforce those codes with fairness and impartiality 

every day. Not only are mitigating factors, such as a juvenile offender’s age and maturity and amenability to treatment and probation properly considered in the decision-making process at every stage of the handling of a juvenile crime, so too must 

aggravating factors be considered, such as the severity of the crime, the threat to 

public safety, the impact upon the victims and the offender’s criminal history. Only 

when all these factors are properly weighed in the decision-making process will our 

system of justice be in proper balance and public confidence exist in the outcomes 

of the critical decisions made in connection with these cases. 

I’d like to thank Chairman Scott, Ranking Member Gohmert and the other members of the Subcommittee for giving me the opportunity to speak on behalf of America’s prosecutors. I am happy to answer any questions you may have for me at this 

time. 

Mr. SCOTT. Thank you. 

Mr. Mauer? 

TESTIMONY OF MARC MAUER, EXECUTIVE DIRECTOR, 

THE SENTENCING PROJECT, WASHINGTON, DC 

Mr. MAUER. Mr. Chairman, thank you for the opportunity to be 

here. 

Let me just say that I think, while there are differences among 

us on the panel most likely, that I would like to think we all share 

a concern for the problems of juvenile violence and how to respond 

to that, and the needs of victims of juvenile violence and other 

86 

crimes. And I would like to think we could come up with policies 

that could address these in a comprehensive way, that do justice, 

that invest well in public safety. I think that should be our goal. 

I have submitted testimony. Let me make three main points from 

that to summarize what I think are the issues we want to look at 

in regard to this policy. 

The first is that, as we have said, children are, in fact, different 

from adults. And I think here this is not something that has come 

up recently; these are longstanding traditions, if you will, in our society and, indeed, in most other societies as well. The fact that we 

have a very broad consensus that children cannot buy alcohol or tobacco, cannot join the military, cannot vote, this is a recognition 

about their maturity level. And there is no reason why this 

wouldn’t carry over into other areas of behavior. Little debate 

about these policies. 

The second way in which children are different is that I think 

we have a longstanding understanding and tradition that children 

are capable of change. This was the premise behind the founding 

of the juvenile court more than 100 years ago as an arena of rehabilitation, to acknowledge that, to create opportunities, not that it 

has been without controversy, but that is a longstanding tradition 

as well. 

Indeed, in the work that I have done over many years in criminal 

justice, I have spent a good deal of time in prison, in many cases 

meeting with people serving life sentences, not necessarily all juvenile life sentences. And I have seen over my years that the people 

I see in prison who are 35, 40, and 50 years old are very different 

from the teenagers who committed some horrendous crimes some 

years before. 

That doesn’t suggest that we should release all of them tomorrow, but it seems to me it does suggest that we all grow up in different phases of our lives, and we need to recognize that in the justice system as well as on the outside. There are some very important issues here. 

The second issue is in terms of public safety. And here I think 

we know that there is no additional benefit that we as a society 

get from juvenile life without parole than from sentences of life 

with the possibility of parole. 

If we think of the goals of sentencing and what we want to accomplish, two elements are key here. The first is that of incapacitation. If measures like this were adopted, we would have a parole 

board making a determination about whether a person is a reasonable risk to be released into the community or not. The goal of incapacitating a dangerous person would still be paramount, and we 

would have a professional parole board making that kind of decision. The people in parole I have worked with over many years all 

take that very seriously. I don’t know any parole boards that are 

looking forward to releasing thousands of people in the streets who 

could be potentially committing violent crimes. They take these 

things seriously and use risk assessments. 

The second area of public safety has to do with deterrence. Here, 

too, there is no evidence that tells us that a sentence of life without 

parole somehow has more of a deterrent effect than life with the 

possibility of parole. If a juvenile or anyone else is considering enVerDate Aug 31 2005 15:12 Jan 25, 2010 Jkt 000000 PO 00000 Frm 00092 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\060909\50141.000 HJUD1 PsN: 50141
87 

gaging in a serious crime and knows that the possibility may be 

of a life sentence with or without parole, either that is a deterrent 

or not. But the additional part of life without parole is no additional benefit. 

Unfortunately, when it comes to juveniles, we know many of 

them don’t have much of a long-term time horizon. They are not 

very rational. Many of their crimes are impulsive. And so to think 

that they will somehow be deterred by harsher penalties I think is 

fooling ourselves in many ways. 

The third part is the international situation that we know, where 

we do have this very strong contrast between the 2,500 people serving juvenile life-without-parole sentences in the U.S. and none in 

the rest of the world. And let me just say, this is not because there 

are not problems of violence in other countries among juveniles. It 

is not because they don’t have gangs in other countries. It is not 

because they don’t have access to weapons. Other countries, every 

other nation, varied as they are, has determined that they need to 

make distinctions in this regard, and those are the policies that 

they have adopted. 

In closing, let me just say that, what legislation like this would 

do, we are merely talking about eligibility for parole. It would not 

change one person’s situation tomorrow. It merely means that a 

professional parole board would have the opportunity to consider 

all the relevant elements in the case and make a determination 

that way, similar to what we do in most States most of the time. 

And it seems to me that is a very reasonable approach. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Mauer follows:] 

88 

PREPARED STATEMENT OF MARC MAUER


Mauer-1.eps
89 


Mauer-2.eps
90 


Mauer-3.eps
91 


Mauer-4.eps
92 

Mr. SCOTT. Thank you. 

And now the panel, we have been joined by Mr. Lungren from 

California and my colleague from Virginia, Mr. Goodlatte. I will 

begin asking questions under the—oh, excuse me, Mr. Quigley from 

Illinois. 

We will begin with 5-minute questioning from the Members of 

the panel. And I will begin with Mr. Mauer. 

Can you speak of the deterrent effect of life without parole rather 

than life? 

Mr. MAUER. Well, I don’t think there is any evidence whatsoever 

that tells us that there is more of a deterrent effect. 


Mauer-5.eps
93 

First of all, many crimes of violence are committed under the influence of drugs or alcohol. These are not necessarily people who 

are thinking about any kind of deterrence regardless of what the 

penalty is. 

Secondly, just common sense would tell us, if I was thinking 

about committing a serious violent crime and I knew the penalty 

was life with the possibility of parole, you know, if that is not sufficient to deter me, it is hard to imagine why life without parole is 

going to be any greater of a deterrent. If it means serving 15, 20, 

30 years, there are not very many people who are willing to give 

that up to commit a crime. 

So there is no research evidence to support that. 

Mr. SCOTT. Does the research show that the deterrence is a calculation of whether you are going to get caught and not the length 

of the sentence? 

Mr. MAUER. The research in deterrence generally shows that the 

certainty of punishment is much more important than severity of 

punishment. If we can do something to increase the prospects 

someone will be apprehended, Some people will think twice, but 

merely enhancing the sentence that they will receive if they are 

caught, for people who by and large are not thinking about getting 

caught, doesn’t buy us very much. 

Mr. SCOTT. Can you say something about the proportionality 

compared to other sentences for people who are caught up as lookouts and just involved on a tangent in a crime? 

Mr. MAUER. Well, we have, you know, through felony murder 

rules and similar policies, yes, those people are engaging in criminal activity and, yes, there needs to be some sort of appropriate 

punishment for them. But the scale of what we are looking at in 

this case, because these penalties are so severe, you know, compared to other kinds of criminal behaviors, well beyond the proportionality differences we normally see in the court system. 

Mr. SCOTT. Mr. Fox, Virginia passed a—just relatively recently 

passed legislation allowing review of cases, some cases, after I 

think it’s 20 days or just a matter of weeks. Isn’t it sometimes the 

case that persons are determined to be factually innocent of the 

charge way after the finality of the sentence? 

Mr. FOX. I am certainly aware that that has occurred, primarily 

through the development of DNA, that people who have been convicted have been determined to be factually innocent, yes. 

Mr. SCOTT. Are there any cases for which people are serving life 

without parole where parole would be appropriate? There are, obviously, some where they would not be appropriate, but are there 

some where it would be appropriate? 

Mr. FOX. Well, as I said, I am not in a position to comment upon 

the laws of other States, such as Pennsylvania or Michigan. 

I do not believe, having as much experience as I do in the State 

of California, that people are doing life without parole inappropriately. As I said, in the juvenile cases, the court exercises discretion. 

It has the discretion and only in rare cases will the court ultimately impose what is the ultimate penalty for a juvenile, which 

is life without the possibility of parole. 

94 

Mr. SCOTT. In California, it’s discretionary, but in a lot of States 

it’s mandatory. Is a mandatory life without parole an appropriate 

sentence for a lookout? 

Mr. FOX. It may be. It depends upon the background of the lookout. If the lookout had a prior murder and is now committing a 

robbery, yes. 

Mr. SCOTT. And I think it may be or it may not be. 

Mr. FOX. That is something, though, for the individual States to 

pass judgment on. 

Mr. SCOTT. And what is it about American children, Mr. Fox, 

that makes life without parole appropriate only in the United 

States and nowhere else in the world? 

Mr. FOX. Well, I don’t know, as, again, I am talking primarily 

about California. But, in the United States, we have a system of 

justice that is unlike most others, especially in terms of the due 

process that is afforded; and so our system of justice is not the 

same as in most other countries. That doesn’t necessarily make it 

bad. 

Mr. SCOTT. Thank you. 

Mr. Gohmert. 

Mr. GOHMERT. Thank you, Chairman Scott. 

I do appreciate everybody’s testimony here today, but I am intrigued. Some of the arguments—well, actually, most of the arguments I am hearing presented against life without parole are similar and may be at least akin to arguments that have been made 

against the death penalty. And, in fact, I know in Texas, as the 

issue of life without parole was debated, the big push to adopt it 

was so that we could have this option and maybe we don’t even 

need the death penalty. Because if we could just force everybody 

to only do a maximum of life without parole, then you can be assured that this is the end-all/be-all. It’s not going to get reversed 

once you know that it’s been appealed. There won’t be any parole. 

And so you can be comfortable that this monster that killed, 

harmed, this antisocial personality who knew right from wrong, 

who chose to do wrong, unlike people who may be guilty of hate 

crimes who, through mediation and whatnot, have been found to be 

rehabilitatable, often, unless they are an antisocial personality. 

But here, after hearing States like mine promise, look, let’s go 

to life without parole instead of the death penalty, because that is 

such a permanent situation. You won’t have to ever—and now I am 

hearing, okay, those who bought into the life without parole, now 

let’s talk about the problems with life without parole and bring 

that down. 

And it seems like it would be more genuine just to do—I know 

Dr. White is a proponent, as she has said, talking about punishment not being all that much helpful. Just say, look, we don’t think 

punishment is that helpful. Don’t even let’s have it. Let’s all try to 

be nice to each other. 

But I also have been curious—and I don’t know if any of all 

know, through any of your own research—do you happen to know 

how many people in this country have been sentenced to death and 

executed summarily by a juvenile conducting his own court? Does 

anybody know how many people have been sentenced and executed 

by juveniles in this country? 

95 

Because, as Ms. Bishop-Jenkins is pointing out, I am afraid we 

haven’t let some of those victims’ families know that this is ongoing 

and that if we are going to involve ourselves in substituting our 

judgment for the judgment of each State, those people that have 

testified repeatedly before State legislatures ought to know that we 

are about to usurp that power and you need to come let your voices 

be heard here. It sounds like nobody is aware. 

My big concern particularly, though, is the automatic sentencing 

of a juvenile to life without parole. Even in the death penalty in 

Texas when I handled those cases, I mean, it was hard to get the 

death penalty. You had to prove that they either committed the 

murder or knew that there was a murder going to be committed 

or a future danger and there was no evidence mitigating against 

the death penalty. 

So, depending on the State, I would certainly want to go testify 

if somebody wasn’t going to—if they were going to try to make it 

automatic. This is not a good idea. You have got to have some discretion. 

But I am also—and I see my time is running out. 

You have each given wonderful perspectives, but I would hope 

that you are all aware, there are gangs—I have heard testimony 

about this. There are gangs who know in certain States that juveniles are treated better. Therefore, they get the juveniles to do the 

murdering, because they know there’s no way they can be treated 

as harshly as the guys a couple of years older. And so I think we 

need to step back and maybe, as Ms. Bishop-Jenkins said, hear 

from all the people, all the stakeholders, before we jump in and 

usurp the power of the States. 

And I appreciate you letting me get that in. Thank you. 

Mr. SCOTT. Mr. Lungren. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

I do note the absence of any representatives of the victims’ rights 

organizations in California. And I, along with Mr. Fox and others, 

have worked very hard in the State of California on criminal justice reform and always, always, we had the voices of the victims 

of crime or their families to comment on it. And if this Congress 

is going to change the law such that it changes the law in my 

State, I would hope that we would have the opportunity to do that. 

And I know this is not a mandatory law but it’s, once again, the 

Federal Government deciding that the States don’t matter. You 

don’t mandate it, but what you do is you give them money for a 

specific purpose, and now you are going to penalize them if they 

don’t follow this. Talk about a shell game. 

But I guess we don’t need governors anymore now. Governors 

can’t even say they don’t want stimulus money, because courts say 

they have to take it. We don’t need CEOs anymore, because the 

President of the United States is now CEO of the largest automobile company in the United States. Everybody here now happens 

to be stockholders in American companies, and now we are going 

to extend that to the area of criminal justice? 

Professor, also, you mentioned 1984. I happened to be in 1984, 

because it was my legislation that made the changes you obviously 

don’t think are very good. We got rid of the Parole Commission on 

96 

the Federal level because of the inequities on the system as it impacted on victims. 

And while I respect very much, Dr. White, your testimony, I 

would have to say your testimony is probably minority testimony 

among victims and victims’ family members that I know. 

And reference was made here to those who are in prison under 

LWOP, as we call it in California, life without possibility of parole, 

said that they all—we all grow up in different phases of our lives 

and no long-term life horizon. 

At least in California you have got to commit first-degree murder 

with special circumstances to get this kind of a sentence. The victims don’t have any long-term life horizon. They are not growing 

up in different phases of their lives. It’s the whole reason that the 

ones who did the injustice to them are no longer there. 

So I have some real problems with the premises of this bill that 

somehow we, the Federal Government, know so much better than 

the States as to what they ought to do with their system. We 

worked very hard in California to create our system. You may not 

like it, but it’s the one that we have come up with, both through 

the vote of the people and through the legislature. And we have 

made changes over time, and we have lower crime rates than we 

had before when we had these other systems. 

I will never forget, when I became attorney general, I started 

working on the indeterminate sentence program that we had in 

California, victims coming to go me, saying it was a joke on them. 

They were the only ones who didn’t know what really was happening in the system. They heard a sentence. They heard with 

their ears what the sentence was, but it didn’t mean anything. 

Now we are going to tell people who have sat in those rooms listening to the crucial and horrific descriptions of the murder of their 

loved ones and heard a judge authoritatively say, under these circumstances, you don’t have to worry. This person will never see the 

outside again. They are going to be life without possibility of parole. We are not going to talk about death penalty, life without possibility of parole. You can understand that. 

Now we are going to tell those families we lied to you? I guess 

that’s what we are going to do. 

I mean, I appreciate the fact that families of those incarcerated 

suffer, but I have also seen the people who suffer on the other side, 

the anguish they go through with every parole hearing. The fact 

that witnesses are no longer available. The fact that the father and 

the mother no longer can come and see that. 

I mean, this idea that now you are going to say to them every 

3 years they are going to go through this after a period of time? 

Maybe there are some changes that need to be made in different 

States, but I would just have to say that this is overwhelmingly 

over the top. 

Ms. Bishop-Jenkins, what was your state of mind? What’s the 

state of mind of your family with respect to the fact that the person 

who did this, those who did the murder against your family were 

going to be put away for the rest of their lives? 

Ms. BISHOP-JENKINS. Thank you so much, Congressman. 

I have to tell you that it was everything. It made all the difference. Because the most difficult part of losing Nancy and RichVerDate Aug 31 2005 15:12 Jan 25, 2010 Jkt 000000 PO 00000 Frm 00102 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\060909\50141.000 HJUD1 PsN: 50141
97 

ard and the baby was having to go through the trial then for 18 

months of a trial and one appeal. And to have to go into court and 

to be in that adversarial process and to face him and to hear the 

other side argument and to see him, have to be in the same room 

and be very close to him physically, to have to face the prospect, 

as we know—— 

And I now work with victims all across the United States, and 

I know what it’s like in States that do have parole. Illinois does not 

have parole, and we haven’t had it for 30 years. There is no bureaucracy in place whatsoever. 

We have determinate sentencing where offenders can earn time 

off based on their own good behavior. It’s a better system. It’s a 

system supported by offenders, because it allows them not to be the 

subject of a politically appointed parole board but to actually earn 

their time off with their own good behavior. 

And yet, because of determinant sentencing, that one sentence of 

life, that one most serious sentence, which is only reserved in Illinois to the very, very, few, you have to have either killed multiple 

people, as in our case, or you have to have killed a police officer 

or you have to have killed a child during a sex offense. That’s it. 

Those are the only people that can get that. 

It’s not even the, quote, unquote, routine murders, a single murder, one person killing another person. These are extremely—they 

would be death penalty cases if they were over age 17. 

And for our family to know that we really did not ever have to 

deal with that again, that agony, those years of the trials and the 

hearing, that was just unbelievably important to us. 

Mr. LUNGREN. Was there a sense of closure? 

Ms. BISHOP-JENKINS. Closure is never a word I use. I work with 

victims every day, and I would never use that word. There was 

legal finality, and there was a peace that allowed me to do extraordinary things. 

The last 20 years, I have been doing work with victims every 

day. I have been working with Dr. White. I have been working with 

many organizations. I have been working for violence prevention. 

I work with troubled youth. 

I have been able to do that because I have the peace of mind of 

not having to worry that the extreme guy in our case could ever 

get out. 

Now, I realize that there’s a spectrum here, and there are cases 

at this end and there are cases at this end. Clearly, Anita’s brother 

is a case at this end, and my case is at this end. There’s no question about that. And I believe, as I said in my testimony, that we 

do need to come together to talk about what we can do at the cases 

at this end. 

But to retroactively require parole hearings on families where, 

like my case, where he was only 4 weeks away from his adult 

birthday, clearly was adult in his behavior. He was not on drugs. 

He was not acting with people. He was extremely intelligent. He 

came from a very advantaged family. It’s just a very, very different 

situation. 

And, by the way, the vast majority of these cases nationwide, the 

vast majority of them are more like mine than they are like 

Anita’s. 

98 

Mr. SCOTT. Has the gentleman concluded? 

Mr. LUNGREN. Yes. 

Mr. SCOTT. The gentleman’s time has expired. 

The gentleman from Texas, Mr. Poe. 

Mr. POE. Thank you, Mr. Chairman. 

I thank all of you for being here. I believe that all of you have 

intentions to make our system a better system, and I thank you for 

that. 

Spending most of my life in the criminal justice system as a prosecutor and a judge, I saw a lot of folks work their way to the courthouse or the palace of perjury, as I referred to it in those days. And 

trying 25,000 felony cases, I came to believe that our system discriminates against victims based on the age of the offender; and because a victim is victimized by someone under a certain age, that 

victim does not receive the same justice in our court of law as a 

person who may have been victimized by someone that was an 

adult. 

As you know, Professor, in Texas, a 17 year-old is an adult. And 

having tried two cases where a 17 year-old was charged with capital murder trying to murder a Houston police officer at the age of 

14 and did not succeed because the gun jammed and then being 

successful as a 17 year-old in murdering a Houston peace officer, 

a jury sentenced him to death. 

And then the two girls, Elizabeth Pena and Jennifer Erdman, 

had the misfortune of coming across a bunch of gangsters, teenage 

gangsters who kidnapped them and sexually assaulted them, brutalized them, tortured them and killed them. But the gangsters 

were 17. Although they all received the death penalty, the Supreme 

Court now, using international law, for some reason, has said that 

17 year-olds aren’t quite competent to be executed; and now they 

are all supposedly serving life without parole in Texas penitentiaries. 

Based on what I have seen, there is no such thing as life without 

parole. People always get out of the penitentiary eventually. 

I have seen statistics where people spend the rest of their natural life in prison, but those are very rare. And when you bring in 

the concept to a victim that we are going to reexamine these cases 

again, that brings the whole case back. When we have had these 

hearings, these appellate hearings and sentencing hearings and 

writs of mandamus—or writs of habeas corpus, rather, heard on 

these cases, they relive every minute of the entire case. It’s never 

over. 

My friend from California talked about closure. You are right, 

Ms. Bishop-Jenkins. There’s no such thing. It’s never over. And 

now we are asking them to relive the entire episode every 3 years 

so that maybe this person will be released and maybe they won’t. 

It seems to me that punishment hearings should incorporate 

punishment. I do not believe that a punishment hearing should be 

therapy, where we try to talk through a crime with an individual 

and then, when they understand they did wrong, let them go. I am 

not of that school. I saw too much at the courthouse with those people who came through the courthouse. 

And before I get to specific questions, I have had a lot of lawyers, 

including many of my friends who are in the defense bar, agree 

99 

that some of the meanest people, unfortunately, in our culture, are 

teenagers. They are as mean as some of these 40-year-olds that 

have led a life of crime all their lives. And that is a societal problem that we have got to correct somewhere to prevent people from 

getting into the system. Because once they are in the system, they 

are going to stay in the system. Almost all of them do. 

Professor, since your own notice as to what question I am going 

to ask you, since it was in the paper today—by the way, my daughter teaches at Baylor, so I am familiar with your reputation, and 

it’s excellent. Why is not this a States rights issue? 

Mr. OSLER. Well, I think that you and I probably agree, and the 

Ranking Member as well, in terms of federalism in a broad sense. 

If I had it to do and construct government, I would have States 

taxed for the things that they do and not—and start with the Edward Byrne Act and not have the funding that comes with the 

mandates. 

The fact is, though, that right now what we have is a number 

of mandates that go with funding, a number of restrictions, in a 

broad array of areas. And it seems to me that, given that that’s the 

reality, that if we are going to stop that, this bill being the stopping 

point would be unfortunate where it involves an important issue 

that involves children. 

I think that, again, in the broad sense, I certainly agree with you 

about the role of federalism and States rights. But the fact is that 

this bill has to do with and in a way amends what already is a gigantic body of law that is built on those mandates. 

In terms of juveniles and the way that that plays in, children are 

different. I agree with you. And, as a prosecutor and as a defense 

attorney, I have seen that there are children capable of vicious, 

cruel acts that would be terrible by someone of any age. What is 

different, though, is that they are not emotionally mature, that 

there is capability to change there, and that we have to look at that 

differently, as we do in almost every other area of the law, that 

children are different. 

Mr. POE. And if I may have one other question, Mr. Chairman. 

Ms. Bishop-Jenkins, I know of your case, of course; and being the 

chairman of the Victim’s Right Caucus, along with my friend, Mr. 

Costa of California, we are aware of your situation. If this bill 

doesn’t help pick out those certain juveniles serving time that can 

come back into society, what would you suggest? 

Ms. BISHOP-JENKINS. Thank you so much for asking that very 

important question, because I do think that, clearly, there is a need 

for criminal justice reform in every aspect of our society, not just 

in juvenile life sentencing but across the board. There are people 

oversentenced in our prisons. There are people innocent in our prisons. We need to create better processes for addressing those. 

But I will tell you what we have been asking everyone to focus 

on. Because remember what I said in my testimony, the key problem with this bill for families, most of the families across the country—and there’s probably about 10,000 people like me across the 

country—the problem is the retroactivity and the retroactivity with 

regard to a mandate to parole. Because, again, many States don’t 

have parole. So that was never even a possibility in our system. 

100 

And to prepare for a parole hearing, where we would then have 

to take off work, travel, go and fight this every 3 years, we would 

have to have documents and evidence and witnesses available to us 

that are not now and never can be. So the retroactivity is a real 

problem. The parole piece is a real problem. 

But what we do suggest as an organization, our National Organization of Victims of ‘‘Juvenile Lifers’’ is suggesting that all legislative reform that is seen to be necessary, where it is necessary—and 

I think in some cases it may be, and in some cases it may not be— 

is to do it at the input end. That’s where it makes sense, is to put 

in those layers of protection so that any juvenile that’s going to be 

transferred to an adult court has that very specific—where it’s discretionary, where it’s case by case, where the people who know the 

case best can evaluate, yes, this guy should; no, this guy should 

not. 

Obviously, the problem with Anita’s case was the mandatory nature of it, a judge saying he didn’t even want to do it. 

So I think what you do is you give district attorneys, you give 

judges and the people who know the cases the best and you give 

the offenders that extra layer of protection on the input end, where 

they are able to demonstrate and argue in special hearings, yes, 

they should be transferred to adult court; no, they should not. And 

once that determination is made, you have to leave that stand. 

Because the problem is that you—this bill’s model actually is not 

fixing the problem. It is not fixing the problem. It is not addressing 

the problem that’s getting juveniles into the system in the first 

place. 

This bill is only punishing the victims. That’s all it is doing, and 

it’s not even guaranteed to get out the people who need to get out, 

because it is parole boards, and they don’t always do the right 

thing. 

Mr. POE. Thank you. 

Mr. SCOTT. Ms. Bishop-Jenkins, do I understand you would support the bill if it did not have the retroactivity and if you eliminated the mandatory minimums? 

Ms. BISHOP-JENKINS. I would support the bill if it were prospective only and it focused on asking States in some way that doesn’t 

violate—I agree with all the federalism concerns. But focused on 

requiring States to eliminate the mandatory transfer of juveniles to 

adult court, yes. 

Mr. SCOTT. And the mandatory sentence. Because some of them 

get mandatory sentences for involvement in a crime where their involvement may not have been much criminality at all. 

Ms. BISHOP-JENKINS. I believe that the issues of felony murder, 

accomplices murder, is a very different question that has to be examined by States. 

Because, in fact, you know, there is an accomplice and there is 

an accomplice. There is the accomplice that handed the offender 

the gun. He, in my mind, is more culpable. And then there are, you 

know, lesser offenses, obviously, in terms of felony murder. But felony murder statutes are a whole different question. 

I think the question before this body is the question of transferring juveniles to adult court. That is the key, and I think that with 

101 

extra protections you could solve the problems without doing it on 

the backs of the victims’ families. 

Mr. SCOTT. Well, I will let my colleagues know that I want a 

transcript of this proceeding because of all of the federalism concerns. Because we will be quoting you—be quoting you. Because a 

lot of the problems we have is because of the violation of the concept of federalism, that the States do what we passed. And a lot 

of criminal laws where there is no real Federal interest, occasionally, just occasionally, the Supreme Court will correct us on that. 

In the school drug-free zone—I think it was the Lopez case—we 

went too far because there is no Federal interest in that and we 

have done that quite frequently. 

I would ask unanimous consent that the Nun ̃ ez case be placed 

in the record of the hearing. 

Without objection. 

[The information referred to follows:] 

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Mr. SCOTT. Any other comments from the Members? 

Mr. GOHMERT. Just that I would like a transcript, too, so we can 

have you nailed down on your federalism concerns as well. Thank 

you. 

Mr. SCOTT. That is fair enough. 

We have received testimony from a large number of groups. 


P-24.eps
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First, I would like to thank the witnesses for their testimony. 

Members may have additional written questions for the witnesses, 

and we would ask you to forward answers as promptly as possible 

so the answers can be made part of the record. 

We have received written testimony from a large number of 

groups, as well as private individuals, which I will ask to be made 

part of the record: 

The Council of Juvenile Correctional Administrators; the General 

Board of Church & Society of the United Methodist Church; the 

American Psychological Association; the Campaign for Fair Sentencing of Youth; the National Association of Criminal Defense 

Lawyers; the Children’s Defense Fund; the Human Rights Watch; 

the Constitution Project; the Center for Law and Global Justice, 

University of San Francisco Law School; the Louisiana Conference 

of Catholic Bishops; the Diocese of Des Moines; and Professor Jeffrey Fagan of the Columbia Law School and the Columbia Law 

School Human Rights Institute. 

Without objection, those statements will be made part of the 

record. 

[The information referred to follows:] 

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Mr. SCOTT. Without objection, the hearing record will remain 

open for 1 week for the submission of additional materials. 

And without objection—the gentleman from California. 

Mr. LUNGREN. Mr. Chairman, does that mean other organizations’ victims rights groups would have the opportunity to be able 

to present? I didn’t hear any in your list of outside groups that submitted information. Is there a way for us to contact those groups? 

Mr. SCOTT. If I could read the next sentence in my statement. 


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Without objection, the hearing record will remain open for 1 

week for the submission of additional materials. 

Without objection, the Subcommittee stands adjourned. 

[Whereupon, at 4:35 p.m., the Subcommittee was adjourned.] 

(177) 

A P P E N D I X 

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Æ 


L-10.eps