Court Authorizes Mercy For Juveniles

Colorado’s Supreme Court narrowly construed the power of a prosecutor to insist upon adult punishments for certain juvenile crimes today in a unanimous 6-0 opinion.  (Justice Eid could not participate due to her previous involvement in the case while in the attorney-general’s office).

While the decision does not eliminate the authority of judges to impose adult sentences for crimes committed by juveniles, it does give judges more freedom to impose juvenile sentences when a jury finds that the more serious charges were not supported by the facts.  It was not previously clear that the judge had this authority under the highly technical sentencing laws involved.In 1997, in the version of the story that the jury believed, sixteen year old Gary Flakes went with his buddy, seventeen year old Jeron Grant with an intent to scare a couple of other kids.  Things got out of hand, the buddy killed the two other kids, 13 year old Andrew Michael Westbay and 15 year old Scott Paul Hawrysiak, with a shotgun, and Gary Flakes drove himself and his buddy away from the scene. 

The El Paso County prosecutor had charged Flakes as an adult with first degree murder and being an accessory after the fact to murder.  The jury found him guilty as an accessory after the fact to murder (i.e. for helping the murderer escape from the scene) and of criminally negligent homicide (i.e. for gross carelessness that helped create a situation that caused someone to die) .

Colorado’s direct file statute allows prosecutors to try juveniles as adults for certain serious crimes, like first degree murder, without obtaining the court permission required in many states to do so.  This makes the juvenile eligible for adult sentences that are frequently much more severe than those for juveniles. 

Flakes was sentenced to sixteen years in prison.  If he had been sentenced as a juvenile the maximum sentence would probably have been not more than five years and the offense would not go on his adult record.  (Jeron Grant, the gunman, was convicted as an accessory to murder and accessory to manslaughter, after confessing to police, a piece of evidence which was disputed all the way up to the Colorado Supreme Court which ruled against Grant in a 4-3 decision).

But, what happens when a juveniles case goes to trial in adult court, but the jury acquits the juvenile of the more serious crimes, convicting him only of crimes that wouldn’t authorize prosecutors to file in adult court without court permission?  Does the prosecutor still get benefit of adult sentences on the lesser offenses, just because the case was overcharged in the first place?

Colorado’s Supreme Court ruled that prosecutors don’t get this advantage from overcharging a case.

Juveniles found guilty only of crimes not eligible for direct file prosecutions at trial in Colorado, may be sentenced as adults only if the judge finds that the judge would have permitted an adult trial if those were the charges made in the first place.

Notably, this case only made it to the Colorado Supreme Court after the boy raised the issue with a court, after his conviction and appeal, initially without the assistance of a lawyer.

The post-convinction argument he made was finessed on appeal with legal assistance.  The Colorado Supreme Court chose to not bar his argument procedurally, even though it could easily have done so without raising eyebrows, particularly if the case had not attracted the attention of a wide variety of juvenile justice watchdog organizations. 

The National Center for Youth Law, Center for Children’s Law and Policy, the Northeast Regional Juvenile Defender Center, Pendulum Juvenile Justice, the Southern Juvenile Defender Center, the Center on Children and Families, the National Juvenile Defender Center, and the Southern Poverty Law Center all urged the Colorado Supreme Court to take this case. 

Gary Flakes remains at the mercy of a court resentencing him.  If the new review finds that he should have been sentenced as a juvenile, he could be released immediately (at age 26) and have his criminal record wiped clean.  The judge could also choose to still impose a tough adult sentence, and may very well do just that.  It is not entirely clear from the Supreme Court opinion if the judge who imposed the original sentence is still on the bench.

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Andrew Oh-Willeke

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