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Tuesday, December 27, 2011

Juveniles Sentenced to LWOP -- December 15, 2011

Some people may think there is nothing worse than death. However, they could not be more mistaken. These people who fear dying do not know what true misery and suffering is. They have lived soft lives in Plato's allegorical cave of misconstrued perceptions. It is not death they should fear, but life--a life of continuous meaningless torment and anguish. Death is finite, however, misery can be drawn out for years upon years. Many seek the abolishment of capital punishment, especially amongst the political left who seek a utopian and illusionary world. However, if any sentence is so cruel that it should be abolished, it is natural life without the possibility of parole (LWOP).

This week, I noticed my cellmate holding a huge bound criminal appeal in his hands. As he was flipping through its hundreds of pages, he said that I may be interested in reading it. My initial thought was that I did not care to waste hours, if not days, of my time reading about an issue that did not apply to me. My cellmate has in the past given me legal papers thinking incorrectly that it was relevant to my case. This time would be no different, but what he told me greatly piqued my interest.

The appeal he held was an argument on behalf of a man sentenced to LWOP as a juvenile. My cellmate had the case because someone he knew outside of the prison was interested in advocating against that punishment, and he wanted to give her the names of organizations that were lobbying for its abolishment. However, he said it may be useful to me because I also was a juvenile when sentenced to LWOP. My cellmate mistakenly thought I was 17 at the time of the murder, and not 28 days past my 18th birthday. Although the issue did not apply to me, I have always had a hatred for the punishment smitten upon myself and numerous prisoners with LWOP that I have met or heard about over the years, especially those who were teenagers. For the last several days, I have spent the vast amount of my time reading and contemplating about the exhaustively comprehensive appeal.

The 4" thick legal document was a successive post conviction petition filed by a conglomerate of different groups, but mostly written by Amnesty International and the Human Rights Watch. The book my cellmate had in his hands was actually only Volume 5, and just an appendix to the appeal. However, most of it centers on one issue: juveniles should never be sentenced to LWOP. From every conceivable angle, the lawyers demonstrate how a protracted death sentence is an incredibly cruel and preposterous penalty for juvenile defenders, regardless of their crime. I was amazed by how well-written, researched, and comprehensive the appeal was. It was apparent this case was chosen to make a broad political and social statement, and not to simply support the individual defendant named on the front page.

Typically, copies of an appeal are only sent to the court and prosecutor's office. However, this appendix was sent to President Barack Obama and numerous governors across the United States. It was also sent to the Federal and State Congress, as well as the attorney generals of both levels of government. The material, furthermore, was addressed to judges and prosecutors throughout the country. All of these political offices were implored to change the law, commute the sentences of juveniles with LWOP, or do whatever they could in their capacity to stop adolescents from being tried as adults and punished with a sentence that leaves them with no hope. Although I was 18, I would have liked my trial judge to see this appeal before he told me he was giving me the same hope I gave the victim, Dean Fawcett. And that was none.

The appeal is written for Adolfo Davis, who was 14 years old when he was arrested for a double homicide in 1990. According to what I read, Davis was a lackey in Chicago's Gangster Disciples gang. Two older adult gang members brought him along to rob a rival gang, which was selling drugs out of an apartment. They used a buyer to gain entry to the residence, whereupon the older G.D.'s shot two men to death and tried to kill two others. They all then fled the scene of the crime together. Police soon thereafter arrested the trio. Davis confessed to being the guardian for the robbery, which turned into an assassination. Although he was armed with a gun, he did not intend for anyone to be killed, and he never fired a shot.

Davis was subsequently charged with two counts of 1st degree murder, two counts of attempted murder, and one count of home invasion. Although today all children 13 and older are automatically transferred to adult jurisprudence in Illinois, in 1990, the case was first heard by a juvenile court. This judge, however, quickly decided to have Davis tried as an adult. He did not apparently base his decision on the severity of the charges, as I would assume, but because of his belief that Davis acted aggressively and in a premeditated manner. He is also officially on the record as transferring the case due to Davis' significant delinquent behavior.

Other than arguing Adolfo Davis' sentence of LWOP is unconstitutional, the appeal sets forth new evidence that defense attorneys claim may have persuaded the original judge to keep his case in the juvenile court system. This evidence comes in the form of an affidavit from the man who was used to gain entry into the drug dealer's apartment. This man states that Davis seemed to be scared and was merely a "tag along." When he testified earlier that the group talked about murder, he did not mean to include the defendant. Davis did not say anything, and stayed outside the apartment in the hallway.

Adolfo Davis is in the same position I am in regard to seeking legal relief. All of his regular set of appeals have been lost or dismissed. The only option he has, other than a clemency petition to the governor, is a successive post conviction petition. These appeals, however, are incredibly difficult to succeed in just getting a court to review, let alone win. A defendant must either show actual innocence with new evidence not available at trial, or meet "cause" and "prejudice" requirements. "Cause" is defined legally as a reason why the issue was not able to be brought to the court's attention previously in a regular appeal. "Prejudice" is defined as an issue which likely would have altered the verdict or sentence. In Davis' case, the affidavit demonstrates cause because it was just obtained recently and could not have been presented earlier. His attorneys also argue it meets the prejudice requirement because, although it would not have altered the verdict, it possibly could have altered the sentence because, if left in the juvenile court, Davis would not currently be in prison. This is his 5th post conviction appeal, and all former petitions failed to be heard by the court.

By chance, yesterday, I had the opportunity to meet Adolfo Davis who is known in prison as Spooncake. While I was listening to talk radio, as usual trying to block out my cellmate's incessant chatter, he tapped me on the shoulder. I did not notice who he was talking to in the holding cage across from my cell, but there was the person I was reading about. I was not aware he even lived in the same cell house before Ely told me that was him. Once again, my cellmate mistakenly told Davis that I was also a juvenile who was given LWOP as an accountable party. Davis asked me if I was one of the numerous people interviewed by Amnesty International or the other groups which helped create the report. I told him no, but did not bother to explain my cellmate's error. Davis was a somewhat short, black man who was clearly in his mid-30's now. The 14-year-old child I had read about was in the past.

After my cellmate finished talking to Spooncake, he began to address me. I had already put my headphones back on, and had to take them off to follow what he was saying. He told me that Davis wanted to distinguish his case amongst the thousands of other juveniles sentenced to LWOP in the United States by making a point that he was found guilty of 1st degree murder via a theory of accountability, and not as the actual killer. Amnesty International and the Human Rights Watch were, however, only lobbying on behalf of all juveniles regardless of their crime or culpability, if they had no possibility of release. I told Ely this may be a wise strategy, but I understood that these organizations were not interested in individual people, but greater causes. No adolescent should receive LWOP, regardless of what they did.

Volume 5 of Davis' appeal was full of many statistics and charts. According to one of them, there were 2,300 men in the U.S. prisons serving LWOP who were 17 or younger at the time of the crime. Other than Israel, the U.S. was alone in the world with such draconian punishments. Most countries, in fact, have laws explicitly forbidding LWOP for minors, and some forbid it for adults as well, including Canada. It was interesting looking at a global map with dots representing all the juveniles who will never be let out of prison clustered in America, except for a handful on the eastern coast of the Mediterranean. The U.S. had so many dots that it was nearly a solid color, while the rest of the world's nations were clear.

I have known for quite some time how different the U.S. justice system is compared to other countries. Many years ago, when I placed personal ads on the Internet, I often met and wrote girls overseas. They were always incredulous that I had LWOP. Many could not even comprehend how I was even prosecuted for lending my vehicle, especially when the man who supposedly borrowed it was acquitted. Many women told me my case would not have been allowed to proceed to trial in their countries. I was also told how the maximum penalty in many of their countries was 20 years, or less, and life was always parolable. I never asked about their juvenile systems, but I assume they are also nothing like what exists in America.

The vast majority of juveniles with LWOP in the U.S. have been convicted of murder. However, I learned one-quarter of these are based on the charge of felony-murder. The felony-murder law does not require the defendant to kill anyone. It only requires the defendant to be proven of committing a felony where a person was killed. The prosecutor uses felony-murder laws to convict people who never had the intent to commit murder, and who did not. Unfortunately, statistics of how many minors were convicted of murder via a theory of accountability could not be ascertained. Prosecutors do not indict defendants of accessory to murder, but just argue it to obtain murder convictions. Like myself, Adolfo Davis was charged and convicted of 1st degree murder although it was a co-defendant who actually committed the crime. According to the charts I reviewed, a little over 90% of all juveniles with LWOP have been convicted of murder, but I am willing to wager less than half of them actually killed someone.

Volume 5 of Davis' appeal cites racial statistics of juveniles sentenced to LWOP, and finds black adolescents receive the punishment 10 times more often than Caucasians, and concludes from this that the system is racially prejudiced. Time and time again, I hear liberal groups make this claim, not only with regard to punishments within the justice system, but in regards to employment, education, housing, and so forth. However, I disagree with the associative deductions made. For example, just because there are more African and Mexican juveniles with LWOP does not necessarily mean they were not treated equally. The statistics do not take into consideration the types of crimes, the backgrounds of the convicts, including criminal records, or most importantly, the obvious fact that Caucasians commit fewer crimes to begin with. These social statistics are often used to promote a political agenda, and one I do not share.

Adolfo Davis is not actually the "poster boy" for the cause to cease the punishment of LWOP to juveniles. Davis readily admits to being a member of the Gangster Disciples since the age of 10. In fact, he states the criminal organization became his true and only family. From the age of 9, Davis had been in and out, but mostly in, Audy homes. He was arrested for numerous crimes, including armed robbery, as a child. According to his own words, he sold drugs for his older adult co-defendant from an early age and regularly robbed people with him or by himself. He thought nothing of the crimes he committed, and believed it was just a part of life. Many of the juveniles interviewed admitted openly their ceaseless criminality. I tend to believe the majority of these children came from the inner city ghettos, and were not Caucasian.

Apparently, the terrible background of juveniles with LWOP is used to support, rather than detract, from the argument that they should never receive the punishment. For example, lawyers for Davis greatly describe his abysmal home life, education, and intelligence. His mother is repeatedly reported to be an alcoholic and drug addict. He does not know who his father was and his primary caregiver was a grandmother who did not seemingly give much care or guidance. Davis' probation officer and the DCFS regularly noted the squalor and unsanitary conditions of the apartment he lived in, and that he had few clothes or food to eat. Davis regularly did not go to school, and after his arrest he was found to have the educational equivalent of a child in 2nd grade. His intelligence quotient was also found to be 82, well under average. All these details of Davis and other juveniles are provided to create sympathy and mitigate their behavior. However, I find that an adolescent who comes from a solid family, a good home, and has a high intelligence is less likely to recidivate. I also believe that those juveniles have a better chance to become productive members of society and their prospects are exceedingly higher.

The other arguments made by Amnesty International and others are profoundly more compelling, and I am glad that these are elaborated on at much length. It is obvious to me, and I assume others, that juveniles have considerably less maturity, and their culpability thus should be less than that of an adult. Most minors have an underdeveloped sense of responsibility, and are unable to foresee the long term consequences of their actions. Decision making is based on far less experience and wisdom, and the decisions made are often made precipitously. The impulse control of adolescents is far inferior to their adult counterparts. I also think most people will agree the susceptibility of teenagers to negative influences of peer groups are exceedingly higher. However, in my opinion, the greatest argument not to end a child's life is that their character and in fact their entire being has yet to be developed. This can be seen, not only physically and by behaviors, but by recent studies of the brain. The mind is not fully developed for many people until the age of 20. Because of this, it is absurd to believe that a crime of an adolescent is indicative of incorrigible depraved character. For most minors, criminal behavior is fleeting, and as adults, delinquents can become model citizens. Juveniles are enormously more able to change and be successfully rehabilitated.

In 2005, the U.S. Supreme Court ruled in Roger v. Simmons, that the execution of juveniles was unconstitutional. The appeal of Davis I believe correctly seeks to demonstrate LWOP is also unconstitutional. What is life in prison but a protracted death sentence? The punishment is infinitely worse because misery and pain continue decades rather than a few minutes, if there is any pain at all with modern execution methods. Instead of slipping away into darkness, a juvenile has a lifetime of punishment. If I live until I am 78, I will have endured over a half century of torment in maximum-security penitentiaries. It is grossly ironic the court believes a quick death is cruel and unusual punishment for a juvenile, but not a slow one.

Last year, the U.S. Supreme Court became a little more reasonable, ruling in Graham v. Florida that LWOP for adolescents not convicted of murder is also unconstitutional. I do not know why, however, the crime of murder makes the punishment valid, nor how this ruling does not distinguish those convicted via accountability or felony-murder. It is also interesting how this ruling has not apparently been made retroactive to all the juveniles sentenced before 2010. There are over 200 people currently with no chance of parole still in U.S. prisons, although they were minors at the time of their crime and their crime was not murder. The Illinois Supreme Court has also made a ruling prohibiting LWOP for juveniles, however, it is also not retroactive to the over 100 people sentenced before the ruling. Adolfo Davis tried in his 4th successive post conviction petition to receive relief under it, but was denied.

The U.S. Supreme Court looked at three factors that are the basis of punishment: deterrence, retribution, and incapacitation. The Court found that none of these applied to juveniles who had not committed a murder. The sentence of life in prison does not deter minors because they do not consider the ramifications of their actions. Even adults, furthermore, may be ignorant of the law, especially when it applies to obscure and vague statutes. Although I never lent my vehicle as falsely reported, I had never heard of murder via a theory of accountability, and I am sure the vast majority of people who read this blog never heard of the felony-murder laws either. To incapacitate a child by taking away any possibility of freedom, the Supreme Court stated it must be assumed the offender will forever be a danger to society. A child who has not yet formed an identity can never be said to be unrehabilitatable: LWOP "makes no reasonable contribution to acceptable goals of punishment" and is "nothing more than purposeless and needless imposition of pain and suffering." The Constitution of Illinois also says: "All penalties shall be determined both according to the seriousness of offense and with the objective of restoring the offender to useful citizenship," however, these wise words are not followed.

The groups that oppose life in prison for juveniles advocate an alternative sentencing scheme. Instead of a protracted death sentence, they want the minors to be eligible for parole according to their age, plus one year. For example, a 14-year-old such as Adolfo Davis, would be able to see the parole board after he served 15 years. Why the extra year, I do not understand, nor is it explained. I find this sentencing proposal, although better than LWOP, still absurd. A teenager under this system could continue to be denied parole indefinately. Furthermore, I do not believe adult offenders should ever do more than 20 years, and cannot justify a minimum 15 year sentence for a 14-year-old. Rather, I would suggest a sentencing range from half the minor's age to the age he or she was at the time of the offense. Illinois had indeterminate sentencing ranges for adults before 1980, and I believe the state should return to this for juveniles.

In today's Wall Street Journal, I read an article entitled "New Death Sentences Fall to Lowest Level in 35 Years" by Ashby Jones. The article gave credence to the decline to a number of factors. Violent crime, despite its attention in the media, has sharply dropped in the last 20 years, and is actually less than levels in the 1950's on a per capita basis. There are thus fewer occasions for prosecutors to seek the death penalty. The reporter also noted a shift in support of capital punishment and a change in state laws. Even the Governor of Illinois Pat Quinn, was quoted saying the death penalty system in the state was seriously broken. Other governors also concurred. Another reason for the reduction of executions is the expense. The average cost to prosecute a death penalty case in Maryland was $3 million, and I will estimate it is not much lower in Illinois. This was in fact a major reason for the legislature's abolishment in my state, despite what the governor said. Finally, the article noted how in 1970 there was no LWOP, but now it is an option.

This article was incredibly infuriating. If the justice system is broken, why is it not fixed? Why is not money used to give defendants more protections? Why is LWOP thought of as a substitute for execution? It is apparent that politicians do not want to fix the system. They would rather just let injustice continue and let thousands rot away in prison. Capital punishment opponents should not applaud the decreased use of the death penalty. It would be far better to fix the judicial system, increase executions, and abolish LWOP. State executions are not an abomination, but the draconian sentencing and criminal statutes are. Any day I would take death rather than a lifetime of suffering.


  1. You are what amounts to a "political prisoner" at this point, Paul. Prisoner to a (peculiarly American) politics of "tough on crime", etc, which has led to excess and draconian punishments. The US, contrary to what many of its fans will say, contrary to the propaganda, is actually NOT the "land of the free". It is the land that has more people currently incarcerated or in some phase of the CJ system than any other major industrialized modern nation in the world, including both Russia and China (neither of which is known for being soft on crime). It also has one of the highest recidivism rates.

    The prison-industrial complex, the age we are in now of the prisons that are actually for-profit and owned by corporate interests, needs inmates, period. This is why things like the "war on drugs" will continue. The "war on terror" has led to the National Defense Authorization Act HR 1540, which was recently signed by the President, and can lead the gov't to incarcerating indefinitely without lawyers or even charges American-born people who are even *suspected* of being involved in anything labeled as "terrorism".

    That could theoretically mean an all-American, American-born person who is an activist with the Animal or Environmental Liberation Fronts, could be randomly picked up and incarcerated in a secret location without being charged if suspected of involvement in anything labeled a "terrorist act".

    As you live on the inside, gradually, especially since 9/11, the police state (like your Orange Crush Tactical Unit) encroaches on the outside. Look at how hard the "Occupy Wall Street" protesters were often supressed by the NYPD, and the other "Occupy" rallies at various places around the country such as Oakland. Police heavy-handedness is way out of hand, and is totally accepted and tolerated by most.

    If you ever do get out, you will be getting out to a very different world indeed from the one you left in 1993. If I were you, upon release I'd consider taking up citizenship north of the border in Canada quite frankly.

  2. I very much appreciate the contribution of your comments. Many people wrongfully believe that I write this blog solely for my own personal interest. This is false, and I highly doubt I will ever be released despite the most appreciate support and help of readers. Although I write about myself, I do so to raise awareness of broader injustice, loss of liberty, and the ever expanding oppressive police state in the U.S. I do not identify with the OWS demonstrators because they are often misguided by socialism. President Barack Obama's signing of HR1540 is just one example of how the liberty of Americans is being pervasively crushed. Even if I am never released, I hope through my own personal suffering people will think about the reasons of the American Revolution and the degradation of this once great free Republic.

    1. Then don't quit. Keep blogging.

    2. This is exactly why we need somebody Like Bernie, or Ron Paul we need anti police state officals to run this country. Obama is actually more fucking Conservactive than Bush! He deported many immigrants for no reason! Liberal! Blah! Obama is more right wing than bush!




  3. So still a Republican? All the nations with sentencing laws that make sense are...socialist, surprise-surprise :) Here you have the filthy-rich "creators of jobs" who know there are just not enough good jobs there so to prevent revolutions and stuff, is locking-up people like crazy via "tough on crime" laws. It's all about money, about the very rich who would like the everyone else not to understand how come wealth only stays in a few families forever and having people busiy with the criminal justice system leaves no time left for thinking about the real life and why it sucks. It sucks because bastards making millions per year would like to make millions per month then per week and so on. It is the dictatorship of the rich falsely presented as "freedom, war on drugs, racial tensions, young v old, woman v man, gay v straight, etc, when in fact is filthy rich v everyone else. They vote their own politicians who pass laws enforced by their own judges and that's why you have so much crime and poverty next to mansions and 35 feet boats with nothing in them v us. And you don't count, they got you good, they got you out of the equation. %0 males, per day, get sent to state prisons in Illinois from Cook County area...50 per day, replaced by 50 illiterates from Africa or some hispanic country...people happy to have a color tv "in the land of the free." It sucks my sucks smart people like you didn't figure this out yet despite of the system's dealing with you. What proof do you need to understand consumers are actually potential inmates in today's rich people's world? How many insane laws need to be pased for you to acept your Republican party sucks, as does Democrats? You need a 3rd party, some socialist bastards like in Germany and France and then human life will be just that and not numbers to be moved around to keep the rich comfortable and with spicy 10 o'clok news delivered daily...

    1. So, former correctional still in the union? You could make a good campaigner for Barack Obama's Marxist policies. I do not believe in class warfare or envy. I believe in freedom, rugged individualism, and a meritocracy whose people are rewarded for their hard work and intelligence. I also believe in justice and it is unfortunate America has strayed from all these values. Socialist countries in Europe and elsewhere may have more reasonable justice systems, but I do not believe this is an indictment of conservatism. It is an indictment of this country.

  4. Unfortunately neither party delivers "freedom, rugged individualism, and a meritocracy whose people are rewarded for their hard work and intelligence." Thus a new party is the only hope. Both Democrats and Republicans lie to gain office, and both lie on the campaign trail. The Republican Party has been taken hostage by right-wing religion also, which has no place in government. A third party is the only hope and the Tea Party is not it. Too many religious zealots there to attract the numbers that would be needed. We need a secular conservative party.

    1. The winner-take-all political system in the U.S. does not allow a third party to establish itself. The reason countries in Europe and elsewhere have multiple parties is due to the proportional allotment of votes.

      Even when a popular candidate arises to challenge the two establishment parties' candidates, the party name he runs under will always be fleeting. You may not like all the social policies of the Republican Party, but it is far better than voting Democratic or for a third party which has no chance.

  5. I think in a number of years (25? 50?) the staggering number of prisoners requiring geriatric care will force the justice system into reform. The system already cannot sustain itself but with the costs associated with an aging prison population, I believe people will eventually start to notice and demand reform.

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  7. "From the age of 9, Davis had been in and out, but mostly in, Audy homes"

    What is Audy home?

    1. It was the old name for reform school for juveniles in illinois.

  8. I think it's terrible that Aldolfo Davis was resentenced to LWOP.


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