In Douglas County District Court this morning, a judge is presently hearing from attorneys and witnesses as to why Erik Jensen should be released from prison (you can learn more about the history of this case through this morning's Westword report).
As I listen, sitting right next to Erik's parents, it's surreal to hear about all of Erik's incredible achievements as an inmate. He's done more good and achieved more academically, professionally, and socially, than most people outside of prison walls could ever possibly dare to accomplish.
Thus far, we've heard that in the twenty years since he was flushed by society and forfeited to prison (where he could likely still die) he has earned a college degree, written fiction books, started the nation's first inmate crossfire program within a maximum security prison. The list goes on and on. Now nearly 40-years-old, Erik has proven to be a trusted mentor to younger inmates. He is devoted to facilitating alternatives to prison gang affiliation. He has personally committed himself to reversing the scourge of suicides and drug overdoses that too often consume inmates existing without hope of release.
Regardless, the Court believes it cannot release Erik from prison today, or even ever for that matter. He was still a child when he was sentenced to a mandatory life sentence without parole and the Court believes it has no discretion to deviate from a newer Colorado law that insists he be issued one, and only one, outcome. Forty years-to-life, with his ultimate release determined not by a judge, but instead by a parole board.
The law in question was the inadequate legislative response to a decade-old U.S. Supreme Court ruling banning mandatory life sentences for children. To sentence kids to die in prison, we have become un-American. Such sentences, the Justices indicated, constitute gross violations of the Eighth Amendment's prohibition against cruel and unusual punishment.
America is a land of common sense. We don't throw adult children to adult prisons for life. We understand that kids lack the decision making acumen and neurological capacity to make adult-identical decisions. We believe in second chances and due process. Or do we?
A full decade after the Supreme Court insisted states change their ways, we, the people of Colorado, should still be embarrassed and dismayed at the lack of proper resolution of unconstitutional language to our juvenile sentencing rules. By replacing juvenile life sentences without parole with a mandatory minimum of 40 years-to-life, lawmakers have chosen, once again, a mandatory minimum term that judges the right to do what they are supposed to do when considering sentencing questions: to make fact-specific considerations.
Between the early 1990's, when lawmakers and politicians championed extreme sentences for children with the hope it would help defer shockingly violent behavior by young people, and 2009, when our nation's highest court soundly condemned juvenile life sentences, approximately fifty Colorado children were given juvenile life sentences.
We call them the "Forgotten Fifty". Too many of them still have no reason to believe they'll ever again see the light of day outside of prison walls.
Before today, Erik remained sentenced to life without parole. A decade after our nation's highest court demanded an immediate, unequivocal change to state sentencing laws.
This fact alone is indefensible.
In 1999, Erik was still a juvenile when he was sent to an adult prison for his involvement in his friend's murder of the friend's abusive mother. Erik never caused the death, nor was he accused of such. Instead, he was convicted of "complicity" to murder. In layman's terms, this basically means that he was involved in certain aspects of the homicide, including an admittedly failed attempt to help the friend conceal evidence and the corpse.
What would most teenagers do when confronted with a friend who'd snapped after years of documented abuse at the hands of his own parents? How would the majority of kids respond when asked what the right response is here? What would my kids do?
Without dispute, Erik panicked. He helped Nathan with the hope that he could avoid the consequences for strangling his own mother.
It was 1999.
Now, two decades later, today's Court had advised the parties in advance of this hearing that the legislature has afforded it no discretion to deviate from a statutory mandate of 40 years to life as Erik's new sentence.
Based on basic math, and due to variables too complex to detail here, Erik faces a future under this revised sentence where it is more likely than not that he will die behind bars.
By contrast, the friend (Nathan Ybanez), will be released in 2020. The actual murderer is up for parole in mere months but Erik is not. He must serve, at minimum, two more decades. Without exception, Nathan has always insisted he acted alone to cause his mother's death.
The cause of this bizarre contrast in outcomes between Erik and Nathan was as follows: In the waning days of his gubernatorial administration in early January this year, Gov. Hickenlooper granted Nathan's plea for clemency. Erik's, by contrast, was denied.
It just doesn't make sense. Hickenlooper never gave a reason for why he chose as he did.
Erik's efforts to get a second chance at life outside of prison won't stop today, regardless of what the court orders.
Erik's impressive trial counsel is ready to make this a test case on the legislature's unconstitutional mandate of sentences that, by default, too often will result in life without parole.
Moving forward, this could be a test case for the entire nation to watch.
The material case question, from the personal perspective of the lawyer writing this blog, is as follows:
When the Supreme Court said "No" to life sentences for all kids, was it giving an instruction limited to a very specific kind of sentencing (i.e. was the Court saying "no" to life without parole sentences only, but not going so far as to ban sentencing schemes that, as a practical matter, mean most juvenile inmates will likely die before they could ever be successfully paroled) OR instead, did the Court intend a broader mandate, banning all life sentences for kids, including those that prohibit parole specifically AND those that, while allowing for a prospect of parole, such opportunity is so narrowly restricted that most juvenile inmates, as a practical conclusion and matter of probabilities, can expect to die before being paroled?
I believe in an America that doesn't rest legal outcomes on top of illogical technicalities.
Fortunately, after today's hearing, courageous lawmakers can unilaterally resolve this without further litigation. Further statutory modifications are critical to the state sentencing law, as applied to Erik. Nothing presently prevents any legislator from seeking to answer this question once and for all, to the benefit of our state and without the intrusion of federal courts.
Colorado truly has an incredible opportunity to lead the nation here.
Alternatively, we might also see Erik find justice if Colorado's new governor, Jared Polis, will agree to remedy Hickenlooper's massive clemency misstep. Polis could right Hickenlooper's wrong by granting Erik's much deserved clemency. Thus far into his administration, Polis has proven to have an open mind on criminal justice issues and we can only hope that he decides in Erik's favor. Full disclosure: I was an advisor the Polis's successful 2018 campaign.
Time will certainly tell how all of this evolves.
For Pat and Curt Jensen, together with their impressive array of diverse supporters, today must be viewed as just another day in a battle they've devoted their lives to winning. This is not a sprint and wasted emotional energy could mean certain defeat. They are determined to know life again with Erik free to rejoin society. They do so not just for Erik, but for all of the other would-be "Eriks" disadvantaged by the absence of devoted families like the one Erik has.
The Jensens spent years and years devoting every dollar they had to funding a team of lawyers on Erik's behalf. Their piggy bank is now too empty to foot the bill. Without any request for praise or recognition, Erik's lawyers are acting pro bono, meaning they are not getting paid a penny to continue Erik's legal campaign.
As an attorney specifically supporting Erik's parents (but not Erik, as he already has a great team), I'm honored to be part of a collaborative network that continues to fight not just for Erik personally, but also with the broader goal of freeing any of Colorado's Forgotten Fifty still in our prisons for life without the benefit of devoted family and friends walking this road at their side.
As a mother myself, I can't be complacent when I envision my own children's future in a society that thinks nothing of discarding troubled juveniles and/or other kids who must pay for their mistakes without any prospect whatsoever of getting a second chance in life.
The Jensens have been on this battle field for twenty years. I joined this cause a painfully long twelve years ago. Erik is certainly not family to me. Before today we'd never actually met, and yet, I previously wrote about his journey in Denver Post editorials featured over the last decade. I mark the length of my relationship with this family simply by my younger daughter's birthdate.
by my daughter's birthdate. I met them right before my second daughter was born eleven years ago. I met them in my third trimester with her and now she is preparing to enter middle school this fall.
With each passing year, I imagine the Jensens mourning the grandchildren Erik may never be able to give them. They'll never get the gift of incredible kids (like mine) to spoil to no end like every good grandparent deserves. By continuing my efforts here, I'm constantly reminded of how lucky I am to have my own children. I refuse to take our happiness and freedom for granted. This is the gift the Jensens continuously give me.
Erik and his family learned long ago not to get their hopes up. I'm amazingly still too green to not hold tight to the wish that relief is just around the corner. Every corner.
After today, Erik will have three viable paths from which he could gain his freedom. We'll all keep marching forward until, at last, Erik comes home.
Update: this original blog was published before testimony concluded and both sides rested. As expected, the judge did exactly as she pledged to do. She complied with the legislative mandate she believes denies her the right to sentence Erik to anything other than 40-years-to-life
A note to readers: If you are interested in donating resources to Erik's campaign (or any of the still-incarcerated Forgotten Fifty) for freedom, please feel free to email me at Jessica@PeckLawColorado.com.