Published on October 21, 2009 at 9:24am
Among Governor Bill Ritter’s hits and misses, few actions have drawn as much criticism as his proposal to release thousands of inmates months earlier than originally planned, thereby cutting millions of dollars from the state’s overstressed budget.
The announcement sent convulsions of anxiety through Colorado’s crime-control industry. Police chiefs braced for waves of thugs hitting the streets. A criminologist predicted a sharp spike in the crime rate, including an upswing in “heinous” crimes. Private prison contractors groused about lost business and possible layoffs. Last month a Denver Post article shrieked that the governor’s early-release list included a cop-killer — who was within a few weeks of mandatory release, anyway. And last week, Republican lawmakers demanded that Ritter end the “disastrous” program, even though it had scarcely begun.
Actually, Ritter’s plan barely qualifies as “early release” at all. Only a small percentage of state inmates receive discretionary parole anymore. The vast majority serve out their sentences right up to their mandatory release date, then have a mandatory period of parole to complete on top of that. Although the Colorado Department of Corrections routinely deducts “earned time” of a few days each month, violent offenders are required to serve at least 75 percent of their original sentence.
Ritter’s plan excludes sex offenders, targets inmates who are already six months or less from getting out, and would still require screening by the Colorado Board of Parole, which can — and often does — deny early release to violent offenders. The plan is a candle lit under a glacier, a slight nudge to a massive, overstuffed prison system that’s draining an ever-increasing share of state resources while lawmakers dawdle over sentencing reform proposals.
The alarm and outrage that greeted even this modest cost-cutting measure is a good indication of what the governor is up against as he tries to get a handle on the DOC’s $700 million-a-year budget, which has swelled at an average rate of 10 percent a year for the past two decades. No politician can afford to appear soft on crime — not even a former prosecutor who, in his gubernatorial campaign, vowed to control soaring prison costs by launching new programs that would lower recidivism.
Ironically, the governor has a powerful weapon in his arsenal when it comes to getting people out of prison early, one that requires no legislative approval. Properly applied, it can save money, address inequities in the justice system and transform the sentencing reform debate. But it’s politically risky, and Ritter has declined to use it to any real effect in his first three years in office.
It’s called clemency. The state constitution gives the governor “the power to grant reprieves, commutations and pardons” for all crimes except treason. It’s a tool that Ritter’s predecessors have wielded, sometimes boldly, to free particular prisoners or shorten their sentences, to correct injustices or reward people who have turned their lives around while incarcerated, or to wipe the slate clean years after youthful bad behavior. Clemency used to be a routine part of being Colorado’s governor, like cutting ribbons and wearing a cowboy hat, but in recent decades the option has been exercised less and less.
Governor John Love granted more than 200 pardons in his ten years on the job. Richard Lamm granted more than 150 in twelve years — and commuted hundreds of sentences. Roy Romer pardoned just over fifty in his three terms. In eight years, Bill Owens issued only seven pardons and six commutations.
Ritter reorganized Owens’s executive clemency advisory board and created a second one, designed to review applications from inmates serving time in adult prisons for crimes committed as juveniles. To date, he’s issued two pardons — one for a 1997 drug charge, and one for a 1995 misdemeanor theft — and not a single commutation.
The situation has frustrated prisoner advocates, especially those trying to modify life-without-parole sentences for juveniles. A 2006 law makes lifers who enter the prison system as juveniles eligible for parole after forty years, but it doesn’t apply retroactively to those already convicted; their chief hope now is Ritter’s juvenile clemency board, which has reportedly reviewed more than a dozen cases so far but has not produced one commutation.
“When we went to the legislature to get the law changed for juveniles in the adult system, they told us, ‘There’s always clemency,'” recalls Mary Ellen Johnson, director of the Pendulum Foundation, a juvenile-justice nonprofit based in Denver. “They were shocked when we told them that nobody gets clemency.”
Certainly none have among the life-without-parole cases that Pendulum has championed, several of which were featured in a 2007 Frontline documentary. Trevor Jones, who was seventeen in 1996 when he fatally shot another teen, was convicted of reckless manslaughter — but still ended up with a mandatory life sentence under the felony-murder law. Despite an exemplary record in prison and his insistence that the gun discharged accidentally, his application for clemency was recently denied.
Also turned down: Dietrick Mitchell, the sixteen-year-old driver in a 1991 fatal hit-and-run. The victim’s family and prosecutors maintain that the killing was intentional and gang-related; Mitchell’s supporters say it was accidental and that Mitchell was no gangbanger.
Jeanne Smith, director of the Colorado Division of Criminal Justice and chair of the juvenile clemency board, won’t disclose how many cases the board has actually reviewed, what recommendations were made to Ritter, or what was involved in each decision. The process is confidential and not subject to open-records laws. But she acknowledges that the board has met more frequently than the two times a year required by Ritter’s order, just to deal with the volume of applications.
“We’re trying to look at these cases with a more focused eye toward the age of the person when they committed the crime, what the influences were, what their efforts toward rehabilitation have been,” Smith explains. “Most of the time, there is input from victims as well. You have to look at the whole package.”
Members of the adult and juvenile clemency advisory boards are appointed by Ritter. Both boards are dominated by people with law enforcement, prosecution and corrections backgrounds, though the juvenile board also features two psychologists, who weigh in on matters such as adolescent brain development. (The adult board, which has an even greater volume of applicants than Smith’s board, currently has two vacancies.) Only inmates who’ve already served ten years or a third of their sentence are eligible, and the board is supposed to consider not simply a clean prison record, but catastrophic illnesses and “acts of heroism” behind bars. They’re also expected to “serve the interests of justice” by weighing sentencing disparities and other inequities.
It’s a tall and quite broad order, and no one has measured up to Ritter’s criteria yet. “The juvenile board says it’s a secret, but we think they’ve turned down eighteen so far,” says Johnson. “I think we’re going to be destroyed by our own cruelty. We don’t want to help anybody, yet this prison spending is destroying us. It’s eating up a lot of other services.”
Cutting prison costs isn’t among the specific objectives for Ritter’s advisory boards. But prudent use of commutation powers can save money and reshape public policy at the same time.
The six candidates for commutation suggested below aren’t necessarily the most deserving or heroic. Some are in the process of applying for clemency; some aren’t eligible yet. All of them (with one possible exception) have done terrible things. But each one is representative of a different, fixable problem in the current prison system: drug offenders doing hefty sentences; illegal immigrants targeted for deportation but taking up cell space for petty crimes instead; prisoners paying for juvenile tragedies the rest of their adult lives; and more.
The cost savings projected for each inmate are based on the average current annual cost of housing a state inmate ($28,759) times the number of years until their probable release date — or life expectancy. This is a conservative figure, since many long-timers are housed in more expensive, high-security settings. Yet cutting the six loose tomorrow would save the state at least $4 million.
And it might, just might, serve the interests of justice.
Convicted of: Burglary, attempted robbery, drugs
Sentence: 81 years
Sentence Discharge Date: January 17, 2066
Donnie Andrews is living a nightmare version of the “broken window” theory of crime control. Break a window — Andrews insists he didn’t even do that — and end up in prison for decades.
“As far as I know, I am the only person in the United States with a 30-year sentence for a broken window,” Andrews recently wrote in a letter to a state legislative committee. “There was a broken window, no crime of theft, nothing stolen or taken, no other damage seen, just a broken window that I did not break.”
In 1989, Andrews was a twenty-year-old cokehead on a thieving binge that resulted in a stack of charges in Denver and three suburban counties. Although he allegedly flashed a gun in one attempted robbery, no one was injured in any of his heists, and Andrews describes himself as a non-violent offender.
But his crimes couldn’t have come at a worse time. The War on Drugs was at its hysterical peak, and it probably didn’t help that Andrews’s ex-partner in burglary, Eugene Thompson, went on to infamy in a cocaine-fueled rampage of his own, killing two female hostages before taking his own life. Because Andrews was on bond for a drug case in Jefferson County when he committed other thefts, prosecutors pushed to “aggravate” the sentences and run them consecutively rather than concurrently.
The harsh sentencing scheme turned Andrews’s handful of minor felonies into major time, culminating in the residential burglary case he took to trial in Arapahoe County. His attorney stipulated that evidence of a break-in would be sufficient to prove intent to burgle — a strategy to keep out other evidence, but one a criminal defense expert would later blast as “tantamount to a confession of guilt.” Although nothing was taken in the break-in, Andrews got thirty years for a busted window, on top of the half-century from other cases.
A new charge followed Andrews behind bars in 1990: sneaking marijuana into the Denver County Jail. But he maintains that he’s been clean for the last two decades. “The only drug treatment I got was a three-month drug and alcohol class, but I haven’t used drugs in many years,” he says. “I know I would never commit another crime. I got no habit to support.”
Over the past twenty years, he’s seen violent gangbangers and sex offenders come and go in the system while he’s doing his mountain of time. He’s seen the mandatory sentence schemes of the 1980s modified or repealed. If he makes it to his discharge date, he’ll be 98 years old. But he still has hope.
“Many guys like me are broken down and tired of serving time,” he says. “Start a program to give guys like me a second chance. I want to give back to society instead of costing taxpayers more money for me to sit around in a cell wasting space.”
Estimated savings if released: $776,493
Convicted of: Child abuse resulting in death
Sentence: 32 years
Mandatory Release Date: July 26, 2027
Tami Richards describes her younger self as a “naive, selfish, judgmental girl.” The selfishness was on overdrive one winter night in 1998, when the 24-year-old mother left her two children alone in a Westminster apartment while she went drinking at a bar for three hours — her response to receiving divorce papers from her husband that day.
She’d heated some leftover spaghetti for the kids’ dinner, but three-year-old Brian wanted pigs in a blanket. He started a fire in a pile of clothes, apparently in an effort to cook a package of crescent rolls. Richards arrived home to find the apartment full of smoke. Brian was in her bedroom; eighteen-month-old Cheyenne was on the floor of her own room, where she’d covered herself with stuffed animals. Both children died of smoke inhalation.
At first Richards told police she’d been gone only a few minutes. After flunking two polygraphs, she confessed and pleaded guilty to child abuse resulting in death.
Now ten years into her 32-year sentence, Richards recently prepared a letter to Governor Ritter as part of a clemency application. “Because of my stupidity and selfishness my beautiful babies lost their lives,” she wrote. “I have to live with that knowledge for the rest of my life. Every day that goes by without them in my life and in my arms is torture.”
Richards has no prior criminal record. In prison she’s taken a wide range of programs and classes, dealing with everything from parenting to digital photography. Working with dogs in the Department of Corrections’ K-9 Training Program prompted her to complete a veterinary-assistant correspondent course. She’s been free of disciplinary write-ups for years and doesn’t appear to pose a risk to public safety.
Richards showed off her computer skills in her letter to the governor, a colorful, homey, Photoshopped brochure. The letter was intercepted by prison staff because they believed it gave her an unfair advantage over other inmates’ clemency applications. A more conventional letter has since been submitted and is awaiting action by the adult clemency board.
Estimated savings if released: $517,662
Convicted of: Child abuse resulting in death
Sentence: 20 years
Mandatory Release Date: March 1, 2023
Like Tami Richards, Krystal Voss has already served close to a third of her sentence for causing the death of her own offspring. But in Voss’s case, there are troubling questions about the justice process and whether an innocent, grieving mother was convicted of a crime she didn’t commit.
In 2003, Voss took her nineteen-month-old son, Kyran, to an Alamosa emergency room. The boy had multiple bruises and a subdural hematoma, often found in cases of shaken babies. Suspicion initially fell on Patrick Ramirez, Krystal’s ex-lover, who claimed that Kyran fell and hit his head while Ramirez was babysitting.
But the boy’s injuries didn’t match the story. Ramirez changed his account in subsequent interviews, finally claiming that Voss had shaken the toddler and persuaded Ramirez to say that he fell. Police then obtained an untaped “confession” from a sleep-deprived Voss, admitting that she’d briefly shaken a fussy Kyran the night before. Voss was arrested, and Ramirez became the key witness against her after Kyran died from his head injury.
Yet both Kyran’s father and grandfather say the child was behaving normally hours after Voss supposedly shook him — and shortly before he was left in the care of Ramirez. Their accounts clash with the testimony of the prosecution’s “shaken baby syndrome” expert, who insisted that the symptoms of Kyran’s injury would have been immediate and alarming. At the close of the trial, the prosecution abruptly changed its theory of the crime in an attempt to reconcile the conflicting evidence. Voss was convicted of child abuse. A Westword interview with one juror suggests that the panel may have misunderstood the expert testimony (“Shades of Guilt,” November 25, 2004).
In 2007 the Colorado Court of Appeals found that Voss’s trial was marred by judicial errors and improper conduct by the prosecution, but declined to order a new trial. The Colorado Supreme Court refused to review that decision. Despite growing controversy over the science behind shaken-baby prosecutions, Voss continues to serve time for a crime that her family and friends say she couldn’t have committed, a crime so puzzling and motiveless that even the prosecutor can’t credibly explain it. She’s now seeking post-conviction relief, claiming that her own attorney was ineffective.
Aside from one scolding over a messy desk, Voss has the spotless record of a model prisoner. Guilty or not, women in her situation are among the least likely to commit more crimes. She has tutored other inmates in their GED studies and writes letters frequently to supporters denouncing the wastefulness of the prison system.
“How about actually investigating a case (such as my own) prior to trying to slap a lifetime of incarceration on someone?” she asks in a recent missive. “The state has paid for all my legal proceedings, as well as [those of] thousands of other litigants who refuse to give up.”
Estimated savings if released: $373,867
Convicted of: Murder
Sentence: Life without parole
Shortly after his fifteenth birthday, Jacob Ind hired an older teen with reputed ninja skills to kill his mother and stepfather, Pamela and Kermode Jordan. When the ninja bungled his early-morning attack on the couple in the master bedroom of their 4,000-square-foot mountain home, Ind had to finish the job himself, shooting both parents in the head.
Then he went to Woodland Park High School, told friends what he’d done and announced that he was planning to kill himself. He was promptly arrested.
Parricide cases can have wildly different outcomes, but almost all of them involve a tangled history of family violence — or, at the very least, murky allegations of physical and sexual abuse. A few weeks ago in Cortez, 22-year-old Jeremiah Berry was allowed to plead guilty to a reduced charge of manslaughter in the shooting death of his sexually abusive father; Berry had chopped up the corpse and fed pieces of it to coyotes. He received a three-year prison sentence.
At Ind’s 1994 trial, Jacob’s older brother testified that their stepfather sodomized both boys during bath time when they were young. There was other evidence that Pamela Jordan had molested her son for years, that school officials knew something about beatings in the Ind household and Jacob’s desire to harm his parents — and did nothing. But many of the claims were never presented to the jury, and his lawyers refused to let Ind testify in his own defense. He was convicted of two counts of first-degree murder, an automatic sentence of life without parole (“The Killer and Mrs. Johnson,” March 19, 1998).
If Ind had testified, it’s not clear that he would have helped his cause; he was reluctant to discuss the abuse he’d endured or portray himself as a victim. “Sure, my childhood sucked,” he wrote years later. “Being raped and forced to perform oral sex on my mom and Kermode sucked. Being beaten sucked. But what does wallowing in grief and self-pity accomplish?”
He also failed to express any remorse for the killings. “I always saw it as the right thing to do,” he told Westword in a 1998 interview at the Colorado State Penitentiary, where he spent much of the first few years of his sentence in lockdown for various infractions. “I’m better off.”
Prisoners like Ind, serving life without parole for crimes committed as juveniles, may have a tougher road to clemency than almost anyone else. Many adolescents have trouble adjusting to the adult prison system and end up with disciplinary records that all but exclude them from consideration. Because they’re never getting out, they’re not eligible for education and treatment programs that could make them better candidates.
Ind’s crime may be considered far too horrific by the clemency board to merit any action. But the severity of his sentence compared to those in other parricide cases may be an argument in his favor.
Pendulum director Johnson, who served on Ind’s defense team and wrote a book about the case, believes Ind may actually have a strong case for clemency, despite write-ups in the system that have moved him from the Limon prison back to CSP, the state supermax.
“Jacob is someone who doesn’t bow down too well to authority, but I actually think he would be a good candidate,” she says. “He has strong family support. He’s got a degree in theology. There is very little victim opposition to him, he’s intelligent, and I think he would have little trouble getting work.”
Estimated savings if released: $1,236,637
Convicted of: Kidnapping, attempted murder, robbery, assault, menacing
Sentence: 68 years, later reduced to 40 years
Mandatory Release Date: May 22, 2035
Tara Perry turned sweet sixteen in the closing week of 1998. She was on the speech team at Aurora Central High School, active in her church youth group and carried a Christian Daily Planner to map out her activities.
Five months later, she still had the planner when police pulled her out of a crashed Ford Explorer after a high-speed chase through western Kansas. It was the end of a terrifying four-day crime spree that had involved a crew of badass young thugs — and one conspicuous girl — who pulled home invasions in Cheyenne and Denver, jacked the Explorer in Cherry Creek and stuck its driver in a storage compartment, robbed a suburban hotel and shot up a King Soopers on Smoky Hill Road.
What transformed Perry from typical high-schooler to gun moll? His name was Randy Miller. Perry met him when she was thirteen and Miller was twenty. Miller was an intriguing bundle of romance and doom, a former child prostitute who’d worked Colfax at the age of ten and was frequently in trouble. Perry wrote to him when he went to prison and moved in with him when he got out.
Miller wooed her and wowed her. He also beat her, kept her away from her family and demanded to know her whereabouts at all times.
Then Miller botched his parole. Determined not to go back to a cell, he decided it was time to “breeze” — but not before he raised some cash, with the help of Perry and some other faltering parolees. They walked into people’s houses, stuck gats in their faces and helped themselves to whatever money and vehicles they could find.
Miller led his crew into the King Soopers and instructed Perry, wearing a black nylon stocking over her head, to fire three shots in the air from a .22 rifle. The failed robbery turned into a panic of shots, pistol-whipping and broken glass. Then Miller and Perry split for Kansas. When the Explorer crashed, Perry surrendered while Miller ran to a nearby house, took hostages, then shot himself in the head.
Perry cooperated with the police and agreed to testify against other defendants. She didn’t injure any of the robbery victims. But facing enough charges to put her away for several lifetimes — twenty counts in the grocery store debacle alone — she entered plea deals that got her 26 years from a Denver judge and another 40 years, plus change, from Arapahoe County judges. A 2001 sentence reconsideration allowed the sentences to be served concurrently, trimming the overall time, but her attempts to get an appointed attorney for further appeals have been denied. She’s had two minor disciplinary infractions in the decade she’s been in prison.
“Tara knows she did wrong and destroyed a big part of her life,” Perry’s mother wrote to a judge in 2000, pleading for mercy. “If not for Mr. Miller and the others involved in these crimes, Tara would still be at home, going to school, and have a life ahead of her.”
Estimated savings if released: $747,734
Convicted of: Possession of contraband in a correctional facility
Sentence: 24 years
Mandatory Release Date: November 24, 2032
In the ranks of petty thieves and small-timers, Jacinto Perez may be one of the biggest losers. His crimes aren’t remarkable or even interesting, but the resulting cost to him and to Colorado taxpayers almost defies comprehension.
In 2003, Perez, on probation for a drug charge, was caught rifling through someone else’s car in downtown Denver. A few months later, he was busted after breaking into a small store and stealing three packs of cigarettes, valued at $8.25. He got six years for the burglary. A man of many aliases and a native of Mexico who had entered the country illegally, he was also scheduled to be deported upon completion of his sentence.
But while he was serving time at the Limon prison, a shank was found in his cell. Perez, who’d been moved to that cell only a few days earlier, admitted finding the knife in his mattress and failing to report it to the guards. A bad move all around — especially since the prison is situated in the Eighteenth Judicial District, where District Attorney Carol Chambers has sought astonishingly long habitual-criminal charges against chronic low-level offenders (“The Punisher,” February 8, 2007).
Even in they’re already in prison.
Even if they’re about to be deported.
Perez was, in fact, on the verge of completing his sentence and being shipped back to Mexico by U.S. Immigration and Customs Enforcement (ICE) when Chambers’s office filed a fresh charge of contraband over the knife. The prosecution also sought to have him bitched as a three-time loser, which would require that he be given another 24 years — quadruple the usual sentence. That brought an angry protest from public defender Tom Ward.
“It just doesn’t make sense to me,” Ward said at one hearing. “How is that a good use of taxpayer money? To house someone who has three minor felony convictions, to house him for up to 24 years [at a cost of up to] $1.5 million when he simply will be deported right after that sentence?”
Judge William Sylvester thought Ward had a point. He initially sentenced Perez to eight years. The district attorney’s office objected, and Sylvester recently relented and imposed the entire 24 years. That sentence is now under appeal.
Perez isn’t eligible for clemency yet under the current rules. But he is symptomatic of a larger problem in the system. There are 1,324 offenders in the Colorado Department of Corrections who have detainers placed on them by ICE, costing the state close to $40 million a year to incarcerate them when they could be deported tomorrow. Some, of course, have committed numerous violent crimes that demand long sentences, and there’s no guarantee they would not return to the state.
“Deportation provides no protection for the public,” says District Attorney Chambers. “The only way to protect the public is to treat those who might be deported as we would anyone else.”
But to date, no serious cost-benefit study has been done to determine which non-violent immigrant felons might be good candidates for a commutation that includes immediate deportation. It’s possible that sending Perez and others like him out of the country could bring back to Colorado badly needed dollars — and sense.
Estimated savings if released: $661,457