ONE-SIZE-FITS-ALL JUSTICE

Tightening The Screws Turns Back The Clock

For nearly two centuries, American law embodied many of the tried-and-true
definitions and mechanisms of English common law on homicide. Overall,
these ancient principles worked rather well.

But in recent decades, some particularly heinous or well-publicized
killings have brought subtle changes in statute law, setting the parameters
for different categories of homicide. In Colorado, for example,
first-degree murder has been broadened to include slayings that previously
might have been categorized as second-degree murder or even manslaughter.

Concurrent with the ratcheting up the severity of homicides, often in
response to what they and/or the public have perceived as serious
miscarriages of justice, Colorado's lawmakers - and those of other states -
also have enacted tougher penalties, such as mandatory minimums not only
for homicide but for other crimes as well.

American law once had the leeway to deal with criminals in a less formulaic
- - and more compassionate - manner. Justice by the numbers may not be
justice at all.

Over the centuries, English common law produced a system of justice that
allowed juries to offset prosecutors' often scathing views of a particular
crime with human understanding and compassion. But it would be a mistake to
wrap common law in soft-focus myth and ascribe to it qualities of mercy
that are of more recent vintage: Consider that in 1808, a 7-year-old boy
named Michael Hammond was convicted of a felony and hanged in England.

Critics see the changes in American law as a more Draconian, less
compassionate approach to criminal justice, but prosecutors don't view the
changes as much of a departure from the laws that existed when Colorado
achieved statehood.

Previous homicide statutes weren't perfect. As U.S. District Judge John
Kane noted, under the old laws in the 1950s and '60s, there was "murder in
the first degree and murder in the second degree, and it was nearly
impossible to tell the difference between the two. So an effort was made to
clarify that." Below murder were voluntary manslaughter and involuntary
manslaughter.

"There were a great many cases of people being found guilty of something
less than first-degree murder," Kane said, "and also quite a few people
found not guilty by reason of insanity."

Prosecutors "hated that," said Kane, a former public defender and defense
attorney.

Colorado law changed after 1967 with the introduction of classes of
felonies, which helped distinguish first-degree from second-degree murder,
while at the same time making manslaughter more severe.

Lawmakers "made things much more serious than they were in the past, and
now you have a whole bunch of kinds of murder specifically identified as
being murder in the first degree," Kane said.

Some other states, like Pennsylvania, haven't done that. Asked about the
difference, Denver Chief Deputy District Attorney Lamar Sims observed that
"most state prosecutors don't spend a lot of time studying the laws of
other states."

The categories of homicide haven't changed appreciably from the legal
principles of territorial days, according to Sims, except shifting from
"premeditation" to "deliberation" in first-degree murder.

Sims listed several ways that first-degree murder can be committed,
including acting after deliberation to intentionally cause the death of
another; felony murder (a killing that occurs as a result of another
felony); committing perjury to cause the execution of an innocent person;
killing with extreme indifference to human life; and a person in a position
of trust knowingly causing the death of a child under 12.

"There are a number of different theories that the law defines as murder in
the first degree," Sims said. "And there are a number of different ways
that murder in the second degree can be committed. So the task for the
prosecutor is to look at the facts and make a determination whether the
elements that state law has provided for in different kinds of homicide
have been proven."

The difference between first- and second-degree murder often is just a
question of state of mind, according to Sims. Second-degree murder in
Colorado requires that the defendant acted knowingly, i.e., had intended to
kill the victim.

Whether an intentional killing is classified as first-degree murder can
hinge on whether the accused acted after deliberation. "There's no fixed
time period for what deliberation consists of," Sims said. Colorado law
defines "deliberation" as a decision to act after the exercise of judgment,
so the crime is not committed in a hasty or impulsive manner. It's up to a
jury to decide if there was deliberation, Sims said.

First-degree murder is a Class 1 felony and a capital offense in Colorado,
carrying a possible death penalty or life imprisonment without possibility
of parole.

"Heat-of-passion" slayings can be charged as second-degree murder, either
as a Class 2 or 3 felony, Sims said, and sentences can range from 12 to 48
years in prison.

In manslaughter, too, "state of mind" is a key consideration, Sims said. A
defendant may not knowingly intend to cause the death of someone but does
so through recklessness or criminal negligence, he noted. "The challenge is
for the judges, prosecutors and defense attorneys to help the jury go
through and reach an understanding of some of these concepts, because they
are a little more arcane and recondite than some people think coming in."
In contrast to Colorado, Pennsylvania hasn't upgraded the classifications
of homicide, according to Pennsylvania Supreme Court Justice Ralph Cappy.
"Murder in the first degree is limited to an intentional killing with
malice aforethought, which distinguishes it from other kinds of murder,"
Cappy said. "It's the kind of homicide that carries a death penalty with it."

Second-degree murder is reserved for felony murders in Pennsylvania, and
manslaughter is either voluntary or involuntary.

What's changed, according to Cappy, is that "within the last decade,
they've upgraded the sentences to mandatory life."

"The general reaction in Pennsylvania is probably similar to the reaction
in Colorado - where the more violence there is in a society, the more
legislators and the legislature react to put more laws in the books," said
Cappy. "The reaction in the legislature has been more and more mandatory
sentencing, and less and less discretion by the trial courts and appellate
courts."

The broader definitions of murder give prosecutors a powerful weapon in
persuading defendants to accept plea bargains to lesser charges: More than
90 percent of criminal cases involve plea bargains, not trials. "When
people don't accept plea bargains, they roll the dice and can walk away or
pay the consequences," Kane said.

Even in medieval England, juries tended to make the law less harsh, Kane
said. "It's always been the historic role of the jury to ameliorate and
humanize the imposition of the law," he said.

The debate over the trend continues throughout the legal profession and the
judiciary, Cappy said. "If the trend continues, it will reduce judges to
computers where they just press a button and the sentence comes out," he
said. "I'm not certain that is consistent with American jurisprudence.
Historically, we've looked to judges to strike a balance and be sensitive
to the particular defendant as opposed to a particular class of defendant."

Heinous, aberrant crimes "set the bar," said Cappy. "They're so bad that
the natural, visceral reaction from other branches of government is to have
tougher penalties and more jail cells. The counter-argument is, "How much
can we afford as a people?' We have over 300 people on death row in
Pennsylvania."

It has been "a suspicion of the defense bar from time immemorial" that
prosecutors overcharge, Cappy said. "The thought being that if they levy a
lot of charges, there's some likelihood that a plea bargain will result
where one of the more serious charges will stick rather than narrowly
charge and risk having an acquittal."

Colorado's homicide statutes have become "Draconian and ridiculous in terms
of felony murder," observed Denver defense attorney Harvey Steinberg, who
says that Colorado prosecutors often overcharge defendants.

He cited one recent case in which the jury acquitted on first- and
second-degree murder, manslaughter and aggravated robbery but convicted on
felony murder. "It's not clear if they believed (the defendant) was even at
the scene at the time the alleged drug dealers were killed," Steinberg said.

Steinberg blames the trend toward sterner laws on "political one- upsmanship."

"Every politician that runs for office takes the stand that "I'm going to
make it tougher and tougher on criminals,' " Steinberg said. "The statutes
become so Draconian and so backward that every time they run, they take
another step backward. Fairness is no longer the touchstone." A jury may
take a different view than a prosecutor in a case like that of a Park
County homeowner who has been charged with first-degree murder in the
shooting a 19-year-old man who had broken into a car to steal a stereo,
Kane speculated. Even at that, the charges have become so strict that "they
remove that opportunity for compassion by juries."

Kane also addressed the concept of felony murder under Colorado law, which
can result in a first-degree murder conviction for a participant in another
felony (such as burglary or robbery) that results in a death. He cited the
public outcry about Lisl Auman, who was convicted of felony murder in the
1997 slaying of Denver police officer Bruce VanderJagt, even though she was
in police custody by the time the killing occurred. She was sentenced to
life without possibility of parole.

And then there are cases like that of Manuela Garcia, who reportedly
suffered horrendous mental, physical and sexual abuse at the hands of her
husband, a former soldier, and finally killed him in July 1996 with an ax.
The Edgewater woman had been convicted of second-degree murder and
sentenced to 28 years, but the conviction was overturned because of faulty
jury instructions: Juror were not told that Garcia had no legal obligation
to retreat from her assailant and that she justifiably could use deadly
force to prevent a sexual assault.

After the Colorado Court of Appeals overturned the conviction, Garcia
pleaded guilty to second-degree murder and was resentenced in June to 16
years in prison. She will be eligible for parole in January.

To a dispassionate observer, it's clear that Garcia killed her husband and
deserved some time behind bars. But given her brutalized and dehumanized
existence, one has to ask: Did she have the requisite state of mind to be
held culpable for murder? And, too, it seems unlikely that Garcia ever will
kill again.

Granted, Garcia's case is an exception, but that's precisely the point: It
illustrates the fallacy of administering justice by an inflexible formula.
American law once could accommodate special circumstances. That latitude
has been lost in a precipitous shift toward unbridled vengeance. In the
end, there's not much money left for rehabilitation, Cappy said, noting
that the American criminal- justice system was supposed to be
rehabilitative rather than retributive. Although Pennsylvania has a parole
system, over time it's become "virtually impossible to be paroled," the
Pennsylvania jurist said.

So crowded are prisons there that those with less serious offenses are
released unrehabilitated. "They're going out and committing more serious
crimes, and it's a vicious cycle," Cappy said.

It's doubtful, though, that Colorado legislators - who just rushed through
a special session to make sure the state had a viable death- penalty law -
are going to take an unemotional look at the state's homicide statutes to
determine if they've moved into the 21st century or retreated into a
darker, less-enlightened era.

Nor is the Colorado General Assembly likely to remedy defects in the
statutes that have led to some clearly unjust outcomes in a few well-
publicized cases - the Western tradition of "gettin' a rope" is still too
deeply embedded in the state's psyche for that to happen.