Episode 62: Felony Murder & Juvenile Justice

 

Jessa: Hey everybody. I’m Jessa.

 

Nick: I’m Nick.

 

Jessa: And this is Getting Off.

 

Nick: We are here to talk about two things in the episodes that are coming here, whether that’s one episode or two episodes or three episodes.

 

Jessa: Hard to say. We don’t know yet. We’ll just see where we end up.

 

Nick: One is a policy discussion of the notion of this thing called felony murder, and then secondarily, to discuss the case of the Elkhart Four

 

Jessa: Which is a case out of Indiana. So new state for us. New state. New jury instructions. New weird appeals rules. So we’ll get into all of that probably in the next episode. But this one, we’re going to dial it back and talk about a, perhaps, curious legal quirk. It’s something that I think that people don’t necessarily know about. At least some people don’t. Probably the people listening to this podcast do and in fact, this was a request from some of our Patreon Capital Offenders. More than one person asked us to talk about felony murder, and so..

 

Nick: Here we is.

 

Jessa: So here we is. Before that, I have a little bit of housekeeping.

 

Nick: Always.

 

Jessa: Alright. So first of all, the Patreon website continues to get more and more support which I just want to thank everyone for. That’s really cool. It’s a lot of fun. We posted our Q&A for the month of February, which people who are both Felons and Capital Offenders under the Patreon scheme set up can check that out. It was fun to do, so if you have additional questions for Q&As for us, send them our way cause we liked doing it. So that was cool. Second of all, I would like to tell you a story about my dad because he has been sort of interested. He’s like “So. You know. What’s up with podcasts?” cause he’s not real into, you know. He doesn’t know about the listenings. So I’ve kind of explained to him what this is and he’s like “Okay. You know. Well I’m gonna listen to it. Which one should I listen to?” And I was like “Well, I don’t know. You like stories about athletic departments. Why don’t you listen to Duke Lacrosse?” We just did, those are good episodes. So he calls me after listening to the first one and he’s like “Hey. So this is stupid.” I was like “Okay.”

 

Nick: Like, “Dad. What does that mean?”

 

Jessa: And I was like “Say more about that.” And he’s like “Yeah. I mean. You guys are pretty chatty. Why don’t you just shutup and tell us about the case? The case is interesting. You’re not interesting at all. I hear that all the time.” And I was like “Okay.”

 

Nick: Probably true. Well, the last part is probably true.

 

Jessa: And I was like “You do understand that the whole concept of podcasts is just people talking, right?” He’s like “Yeah. I don’t know why people like that.”

 

Nick: Sounds like podcasts might not be the medium for your dad.

 

Jessa: It made me laugh. He’s like “You guys talk a lot.” I’m like “Yeah, we do. That’s accurate.” So I just thought that was funny and made me want to thank everyone again for their ongoing interest in listening to us talk cause I think we enjoy talking to them. At least, I do.

 

Nick: Yup.

 

Jessa: Yup. That was articulate. That was well thought out.

 

Nick: Thank you. Well, sometimes, I like to think of myself, what was the uncle’s name in S-Town, while we’re speaking of podcasts?

 

Jessa: Oh. Yeah yeah yeah.

 

Nick: I think he had had some kind of traumatic brain injury. But as a result, he sort of sits in the background during periods of S-Town and is just sort of like this wonderful affirmation person. You know. He’s like “Yuuuuup.” I love that. We have a friend who, she and I were talking about S-Town back whenever it was we both listened to it. And she was like, cause it was like Uncle Jimmy or something, and she’s like “I just wish I had an Uncle Jimmy in my life, who would just be in the background, and like, when I said things, would just offer these wonderfully enthusiastic affirmations of things I said.”

 

Jessa: I know which friend that was.

 

Nick: Yes, you do.

 

Jessa: I can hear her. I can just perfectly see it.

 

Nick: You’re like “You don’t need that”.

 

Jessa: You know what, I kind of think of this podcast as that for us.

 

Nick: Well. Yeah! Kind of.

 

Jessa: A little bit. So that’s kind of fun. Okay. So felony murder. Let’s talk about that.

 

Nick: Sure.

 

Jessa: Why don’t you start? You start us off. I feel like I do too much talking. I feel like that woman needs to stop away from the microphone and really let Nick Gansner shine.

 

Nick: Oh boy. Alright. Let’s talk about what felony murder is. Typically, the idea, and just about every state that I’m aware of has some version of a felony murder statute.

 

Jessa: 45 states have it. So almost everybody.

 

Nick: Right. So like 9 out of 10 states. 90%.

 

Jessa: Don’t ask me which five don’t cause I don’t know that. That’s not a fun fact I possess.

 

Nick: Right. The Wisconsin version reads as follows: “Whoever causes the death of another human being while committing or attempting to commit a crime specified in” and then it rattles off a whole bunch of different crimes, all of which are felonies, and quite serious ones, “may be imprisoned” blah blah blah, but so. That’s the idea. If you are in the act of committing a felony, obviously, it’s called felony murder, so it has to be a felony. And typically quite serious felonies.

 

Jessa: Kidnapping. Burglary. Rape. Armed robbery. The most common felony murder charge that I ever see comes to us in the course of an armed robbery.

 

Nick: Right. And the Indiana statute, which of course is the one that is at issue here, talks about arson, burglary, child molesting, consumer product tampering, which..

 

Jessa: Yeah. That’s right.

 

Nick: I mean. Are we envisioning the Chicago Tylenol thing?

 

Jessa: That was exactly what I was gonna say is, like, you’re sneaking in to put arsenic in the Tylenol..

 

Nick: Cause that’s like the only super hardcore serious..

 

Jessa: Product tampering..

 

Nick: That I’ve ever known about.

 

Jessa: Well, maybe if you were slashing somebody’s tires. Is that..

 

Nick: That’s not a product tampering. That’s like a..

 

Jessa: I don’t know. I’m just making shit up now.

 

Nick: Kidnapping, rape, robbery, human trafficking, promotion of human trafficking, sexual trafficking of a minor or car jacking. So if you are in the process of doing or attempting to do one of those things and you kill another human being, which, that language becomes important in this case.

 

Jessa: When we get to the Elkhart Four. Let’s stick to our general stuff now.

 

Nick: So the idea is if you’re committing a super serious and inherently dangerous felony, and someone winds up dead, you can be charged with felony murder. And I just did that a little loosey-goosey cause the law actually says “A person who kills another human being while doing one of those things can be charged with felony murder” and that’s not quite right. Or that is a little misleading, I think, cause what I always think of as felony murder is like, somebody goes in and holds up a 

 

Jessa: Culver’s, for example.

 

Nick: Yeah.

 

Jessa: You know which case I’m talking about, right? That’s not one of our cases. 

 

Nick: Culver’s, by the way folks, is a mostly midwestern, really delicious frozen custard and fast food chain that is headquartered here in Wisconsin, so some people will know what you’re talking about when you say Culver’s. Most won’t.

 

Jessa: Culver’s also makes custard for dogs.

 

Nick: True story.

 

Jessa: It’s very cute. So while Culver’s is not sponsoring us, we’re telling you that, anyway. That if you are a dog owner who is also a fan of custard and you live in the midwest, then that may be a place for you to visit.

 

Nick: I also predict that we’re gonna get messages from people being like “What the hell is frozen custard?” because frozen custard is a particularly Wisconsin phenomenon.

 

Jessa: Yeah. For sure. That, and cheese curds.

 

Nick: And I say this as I, for all of our Australian friends, I say that as I am wearing my Wallabies rugby jersey right now as I promised I would.

 

Jessa: Which I referred to on the Patreon episode as the “Qantas soccer jersey”. 

 

Nick: Right. It is not a soccer jersey, nor is Qantas a team. Qantas is an Australian airline that is a sponsor.

 

Jessa: I’m an idiot.

 

Nick: We all learn things. But I bring that up because the reason I have this jersey is because I have Australian friends who have come to Wisconsin for visits and have been mystified and ultimately delighted..

 

Jessa: Stupefied. Mystified.

 

Nick: By the invention known as frozen custard. It’s like ice cream, but, arguably, even better. So.

 

Jessa: That is also a place that makes something called a Butter Burger.

 

Nick: True story. It’s real Wisconsin.

 

Jessa: Yeah, it’s Sconnie AF.

 

Nick: Yeah. It is Sconnie AF. So anywho. What we usually think of as, or what I usually think of as a felony murder is somebody goes in and, sure, holds up a Culver’s or holds up a convenience store. Or somebody goes in to do a drug rip. They go to rip off a drug dealer in an effort to steal drugs and somebody winds up getting killed in the process.

 

Jessa: Basically, everything Omar on The Wire ever did was felony murder.

 

Nick: I mean, he also just straight up committed murder.

 

Jessa: Well, yes. That, too. But at a minimum, it was felony murder.

 

Nick: Yeah. Like, I used to, as a prosecutor, I think I more often used this phrase as a prosecutor than I do now, but I would occasionally refer to people as “DC Machines”.

 

Jessa: Yes!

 

Nick: And what that means is, DC in Wisconsin stands for ‘Disorderly Conduct’, which is, like, a low level misdemeanor criminal offence, basically like criminal assholetry. Sometimes. Other times, it’s more than that.

 

Jessa: Point of order.

 

Nick: Yeah.

 

Jessa: Is it assholetry or assholery?

 

Nick: Um. I just said assholetry. I think it could go either way.

 

Jessa: Alright. So there’s more than one form of that. Good.

 

Nick: And so I would occasionally come across defendants when I was a prosecutor who had been charged with like, criminal disorderly conduct like, 20 times in their life.

 

Jessa: I’ve represented many of those.

 

Nick: Yes. Exactly. So. How did we get there? Take over for a minute because I’m trying to remember how did I get on to DC Machines?

 

Jessa: I don’t actually, I can’t tie that room together. I’m really sorry. I don’t know. That was a sidebar and I missed where it was going.

 

Nick: I lost the bridge in the rearview mirror.

 

Jessa: We’ll move on from that. So felony murder, I think. Probably to talk about that, we also have to talk about ‘party to a crime liability’ cause i think that those two things often go together. Here’s the deal with felony murder. You can actually not have killed anyone and still be convicted of felony murder. And using our Culver’s robbery example, there was a case that got some press recently here in Wisconsin, where three guys went in with guns to rob a Culver’s and one of the patrons of the Culver’s dropped dead of a heart attack because of the fright of seeing the guns. And those people were charged with felony murder.

 

Nick: And well, the stress for being, 20 minutes or half an hour, in this incredibly dangerous, scary situation.

 

Jessa: I wasn’t actually intending to be flip about that. I was just trying to summarize.

 

Nick: No no no. I didn’t think you were. I was just saying like, he didn’t like, it wasn’t like these perps walked into the Culver’s and he espied the gun and like, keeled over on the spot. They were like “Dude. Open the safe. Do it now.” And so it was this incredibly fraught terrifying situation that played out over the course however much time, and he wound up, while trying to do whatever they wanted him to do, he wound up having a heart attack.

 

Jessa: Right. So in that particular circumstance, nobody actually pulled a trigger to kill this person. But the idea is, you are engaging in felonious, dangerous, violent behaviour. Meaning you are busting doors to a restaurant with guns and stealing shit. And when you do that, when you engage in felonious, dangerous, violent behaviour, it is oftentimes reasonably foreseeable that a death could happen. Because when you point a gun in somebody’s face, it’s possible that that gun could go off. That’s not a crazy thing to expect. When you are in the middle of sexually assaulting someone, and they fight back, and you stab them because you’re sexually assaulting them at knifepoint, it’s pretty predictable that that could kill them. So this is sort of the groundwork of felony murder. It gets a little more attenuated when you’ve got multiple co-defendants who play different roles in the underlying felony offence. So let’s take our armed robbery example again. What can happen is you’ll have one person who is a getaway driver. One person who is a lookout. And one or two people who are the triggermen. So the two triggermen will go in with the guns, demand the money from the register. The lookout is looking out. The getaway driver is sitting in the car, waiting for the people to run out with the spoils of their armed robbery. Let’s suppose that one of those two fellows, the two triggermen, shoot somebody in the process of doing that. As parties to the crime, because they were all intending to commit the armed robbery, and they were all aiding and abetting one another in the commission of this armed robbery, the getaway driver had a purpose. The lookout guy has a purpose. The two triggermen have purposes. All of those share the goal or the aim or the conspiracy to commit the crime of armed robbery. There are different ways that you can be liable as a party to a crime, but, the three most common and the three in Wisconsin are: 1) you’re actually the principle actor in the crime itself, so you’re the trigger guy that pulls the trigger; 2: you aided and abetted the commission of that crime, which would be the lookout guy and the getaway driver; or 3) you were part of the conspiracy to commit that crime, which would be everybody involved. And so you can actually charge all of those people with the same crime. The crime of felony murder because this death has happened as a result of this conduct. Fair?

 

Nick: Fair.

 

Jessa: So this is like, felony murder, have you ever handled a felony murder case?

 

Nick: No.

 

Jessa: I’ve had two.

 

Nick: I have represented people on, later in their career.

 

Jessa: In their felony careers?

 

Nick: So to speak. Who have been,I have represented people who have been convicted of felony murder. I can’t remember a client who I actually represented on a felony murder charge. I don’t think.

 

Jessa: So I don’t think it’s that common here. But I’ve had two of them in my career. And in each of those cases, the person played a different role. In neither of the two cases that I have defended was the person that I represented the one that pulled the trigger. So I’ve represented getaway drivers and co-conspirators, but I’ve never had the trigger person. The trigger person oftentimes can also be charged with first degree intentional homicide, depending on how intentionally they shot somebody. And you know. It doesn’t have to be firearm-related. It can be any type of death. Like we said, there’s this case right now that it was a heart attack. And that was good enough. So. You know. I think felony murder is, like, the law school exam statute because when you’re taking introduction to substantive crim law in law school, one of the things you have to do is identify all of the different charges that could come from a fact pattern. And I remember my crim law exam. And like, I’m digging deep on this. This was 15 years ago. But one of the things that they did on my crim law exam was this felony murder analysis, and it was also, can somebody be a party to a crime of their own kidnapping? And you know. This can lead to some pretty creative charging decisions, statutes that attenuate, sort of different criminal acts like that and tie things together. And it can be some really, I would say, creative charging decision. It, to me, really demonstrates prosecutorial discretion being a necessary part of the job because I think you have to make decisions about what is just in this charging decision. It shouldn’t necessarily, is there a theoretical way that I can prove this? But to me, the question is, does this make sense?

 

Nick: It shouldn’t only be the latter. It should include both the former and the latter. And there’s also, felony murder is tailor made for law school exams because it also implicates other snazzy words you learn early in law school, like ‘culpability’ and ‘mens rea’.

 

Jessa: Mens rea. State of mine.

 

Nick: Yes. All of which we’re really talking about there is it goes back to what you were saying. How attenuated is the death? And that’s the entire issue when we get to the Elkhart Four. You know. It really, the idea is that it has to, or at least in theory, should be foreseeable in some way.

 

Jessa: And that the actions in the felony have at least some proximate cause to the death. So what does that mean? There’s actually a lot of debate about what proximate cause means, exactly, legally. But the idea being but for causation. So I would not be dead but for someone pulling the trigger to a gun. That’s a homicide. But expanding that, somebody commits an armed robbery and shoots me in the process of that, but for their decision to commit that armed robbery, I would never, as the decedent, have been in a position to be killed.

 

Nick: Right. This stuff is so fact-dependent.

 

Jessa: It’s incredibly fact-dependent.

 

Nick: This case we’ve been talking about here, like. If we talk about somebody going into a Culver’s, and if you go in with firearms, that obviously increased the foreseeability that someone could die from a firearm related death.

 

Jessa: I feel like having a gun with you to commit any felony offence just radically raises the likelihood that someone could die.

 

Nick: I don’t think there can be any dispute about that.

 

Jessa: I think that that’s just true.

 

Nick: Right. And the same.. So if they go on a drug rip. They’re gonna rip off a drug dealer. Well, if you go in with a gun, and then someone winds up getting shot, whether you intended to shoot anyone or not, well, that was pretty stinking foreseeable.

 

Jessa: Pretty stinking foreseeable.

 

Nick: That was hokey. And we’re supposed to be using Australian today, not lame ass midwestern, Wisconsin, American slang. That is stinking foreseeable.

 

Jessa: Is that Australian?

 

Nick: Stinking?

 

Jessa: Yeah.

 

Nick: Not to the best of my knowledge.

 

Jessa: Okay.

 

Nick: We were supposed to be, contrasting to what I just did.

 

Jessa: I think that’s Nick Gansner slang. I don’t think that’s anybody’s slang.

 

Nick: I rebuke that because I was just about to make the observation, you and I say a lot of ridiculous shit in our conversations in real life. We see even weirder stuff on the podcast. We wind up using on this podcast. I mean, a lot of which we do actually use day to day. But sometimes, and more frequently than I think I have an explanation for. Stuff comes out of our mouth that we don’t actually say. When was the last time I’ve said “stinking”?

 

Jessa: I’ve literally never heard you say that word before.

 

Nick: I’m sending myself to the House of Shame for that.

 

Jessa: House of Shame.

 

Nick: I’m gonna spend the next five minutes of this podcast..

 

Jessa: You are in a linguistic House of Shame.

 

Nick: Exactly. Now that, I like.

 

Jessa: The linguistic House of Shame?

 

Nick: The use of “stinking” should not be part of the behavioural repertoire of me.

 

Jessa: I agree with that. I didn’t like it. I didn’t think it was a good color on you.

 

Nick: I don’t like it.

 

Jessa: Yeah. It was bad.

 

Nick: Okay. Also, if you go into a situation with a knife and then someone winds up getting stabbed, well, that’s pretty foreseeable.

 

Jessa: Right.

 

Nick: The case we’re gonna talk about where it winds up getting pretty attenuated is if you go in unarmed, how is it foreseeable? It is certainly less foreseeable that someone would wind up getting shot when you went in unarmed.

 

Jessa: Right. So the purpose of this statute, I would suggest, is rooted in really good intentions. Because I think what the states that have this statute are trying to do, Wisconsin included, is to say, like, when you engage in conduct that is so dangerous..

 

Nick: Inherently dangerous.

 

Jessa: That it is likely to cause a death or at least, anyone could watch that and go “Yeah, I see how that happened.”

 

Nick: It’s really kind of connected to tort law, in a way.

 

Jessa: A little bit. Yeah.

 

Nick: When you go with the issue of foreseeability.

 

Jessa: Right. You know. That there should be some additional crime beyond an armed robbery to charge people with if somebody dies. And you can’t always charge a first degree intentional homicide. You know. Sometimes somebody shoots in the air, and the bullet ricochets and hits someone. That would probably be reckless homicide. And the getaway driver agreed to participate in this really dangerous conduct, and knew that the triggermen were armed and knew that there were bullets in the gun, and that was something that he or she decides to do. And that there should be some additional culpability or responsibility placed upon people that choose that type of behaviour and it results in a death. So it’s both about intent and it’s about like, bad choices. This is like, don’t make bad choices statute. This is the “I’m not mad. I’m just disappointed” murder statute. So yeah. So that’s felony murder. It can be really, really, really, really, as we’re about to see, misapplied. And part of that goes to, again, prosecutorial discretion. And when we do the actual case deep dive, we’ll talk about that. But I think that, you know, that’s kind of that in a nutshell. I do think there’s something else we should include in this policy episode, though.

 

Nick: Hit it.

 

Jessa: Because when we talk about the Elkhart Four, we’re talking about kids. And there’s been some discussion on the Facebook group about, why do we call young people who are actually technically adults ‘kids’?

 

Nick: Yeah. And I thought you gave a really good answer to that on the Facebook group page. Yet another plug. Join the Facebook group page. You will love it. You and I do use the word ‘kid’ pretty loosely. Now, we have, we know what we mean by that. But so. Look. The definition of ‘child’ or ‘adult’ or ‘juvenile’ or ‘adult’ is all over the place.

 

Jessa: It’s 17 in Wisconsin. It’s 18 in Indiana, which we’re gonna talk about.

 

Nick: But that’s for criminality. But I mean. Like. In different contexts, it’s wildly different. In Wisconsin, the age of majority is 18. Meaning, as a general proposition, in Wisconsin, you’re not an adult until you hit 18. But for the purposes of charging someone with a crime..

 

Jessa: You’re 17.

 

Nick: It’s 17. You can drive a car when you’re 16. You can be charged with a crime as an adult when you’re 17, unless it’s super serious, and we’ll talk about that in a minute. You can’t drink til you’re 21 in the United States of America. So in different contexts, I mean, some of it is explicit. Like, you are, in fact, not an adult til you are 18. But you can be charged with a crime as an adult when you are 16 or 17, depending on the state. But what we’re talking about is people who are setting, all those legalisms aside, still a youth or youthful, and who are still not in a sort of anatomical, neurological, scientific, medical sense what we would consider to be adults.

 

Jessa: And that’s why I use it and that is what I ultimately said. When I say kid, it’s somebody who, to me, is under the age of 25 because all of science that I have read suggests that our frontal lobes are finally done at about that age.

 

Nick: It’s somewhere in your mid to late 20s. So I think that what we’re getting at really there is we use the term ‘kid’ loosely to define somebody who’s not yet a fully formed adult.

 

Jessa: Right. And if you are interested in what happens when you don’t have a fully functioning frontal lobe, I would suggest and go back, and if you haven’t listened to our stuff on Aaron Hernandez and Andy Steele, we talk a lot about why you need a fully functioning frontal lobe in those episodes.

 

Nick: We sure do talk about that. And if you want to research this, if you type this into the Google machine, you’ll find lots. There is also plenty of books that talk about this kind of stuff.

 

Jessa: So many.

 

Nick: One that I’m looking at on the shelf in our office right now is called ‘The Brain Defence’ by an author named Kevin Davis. And in that book, he talks about the application of neurological, neurology, and neuroscience and that kind of stuff in a legal context and discusses that among other related topics. So that’s what we’re getting at. So I think the relevance is that if you already take this notion of felony murder, that can, when it’s stretched, involve a pretty attenuated situation in terms of culpability, mens rea. And then you heap on top of that, youthful offenders, you wind up with a situation like the Elkhart Four that generates international attention.

 

Jessa: Right. And one of the things that is difficult is part of, so why do these two things go hand in hand? Why don’t I articulate that a little better than we have?

 

Nick: Please do.

 

Jessa: These things go hand in hand because one thing we know about people who don’t have fully developed frontal lobes is that they are more risk-tolerant, that they are more impulsive, that they are quicker to anger, that they have less executive function than adults, so they make decisions differently than adults make decisions, using logic, using flawed logic.

 

Nick: Well, and they have less ability to consider and envision the consequences of their actions, which goes to foreseeability.

 

Jessa: Exactly. There it is. Room tied together. So it becomes quite challenging to apply this statute in a way that I would suggest is just or fair when you’re talking about people who have a different capacity to understand the potential consequences of their actions than you or I do.

 

Nick: And that may be true on a scientific or medical basis. The law does not necessarily draw that distinction.

 

Jessa: The law is not interested at all in that decision.

 

Nick: The law, as it currently stands.

 

Jessa: Particularly in many states where, if you are charged with a homicide of any type, felony murder included, when you are 16 or 17, you can and sometimes are automatically waived into adult court. So I do think I need to sidebar to talk about waiver.

 

Nick: I was just about to suggest the exact same thing. Please do.

 

Jessa: Alright. And I’m gonna take this one cause Nick doesn’t really do juvenile law. I do.

 

Nick: You know more about this than I do.

 

Jessa: So. Okay. So here’s how this works in Wisconsin, at least. If you are under the age of 17 when you commit an offence, you are subject to the jurisdiction of a juvenile court. That is very different than being subject to the jurisdiction of the adult court. For lots of reasons. I’m gonna give you some of the biggies here in Wisconsin. In juvenile court in Wisconsin, you have no right to a jury trial. You only get a trial to a judge. And they still have to, the state still has to prove you guilty beyond a reasonable doubt. But you don’t get the benefit of a jury of your peers evaluating your conduct. It has to be tried to the court. Two, juvenile justice, as defined in our Wisconsin statutes, the primary goal of that is the rehabilitation of the juvenile. So if you are adjudicated delinquent, which is the juvenile equivalent to being convicted of a crime, in juvenile court, the number one goal is to rehabilitate you to make you be able to be a productive member of society. That is not the number one goal of the adult criminal justice system. And punishments, therefore, are much, I cannot say the word ‘much’ enough times to really stress this, much worse in adult court than they are in juvenile court for very similar offences. So the difference between being tried in juvenile court and being tried in adult court can be the difference between being released from a facility when you’re 18 or 19 to serving life in prison.

 

Nick: And talk about what is the absolute worst case scenario when you are punished in the juvenile system, is you get released when you are what age?

 

Jessa: Depending on the state, there are some states that say 18. There are some that say 19. There are some provisions that will allow them to hold you in a juvenile-type facility until you’re 21. It depends on the state. And that is radically different than if you are just six months older when you commit this same offence and you are charged in adult court. Now, waiver into adult court can happen usually at the request of the prosecution. And there are a number of things that they have to do to prove that waiver is appropriate. And part of that looks at the gravity of the offence, and you know, prior violent conduct. There are all sorts of considerations, particularly if you’re going from state to state. But typically, that is at the discretion of the juvenile court judge. In murder cases, if you are age 16 or older in many states, there is an automatic waiver into adult court. And the principle behind that is that if you were capable of committing a serious crime. Now, keep in mind that this determination is made prior to there being any fact finding about whether or not you did commit that crime. But if you are charged with such a serious crime as homicide, then we should hold you to a higher standard of accountability than the juvenile justice system does. And both would require proof beyond a reasonable doubt, but it’s that rehabilitation versus the more draconian punishment, public protection stuff that we see in adult court. So it is very common that young people, really young people charged with homicide end up in adult court even when they are still under the age of majority. And that causes problems in my view.

 

Nick: Yup.

 

Jessa: Yup.

 

Nick: There it is again.

 

Jessa: Yeah.

 

Nick: Uncle Jimmy.

 

Jessa: Good talk.

 

Nick: Right. So that’s the idea behind juveniles being waived into adult court.

 

Jessa: And there’s a lot of discussion about juvenile life in prison cases. There’s been a lot of litigation about that recently. There is, you know, in my view, some really good trends that are happening in terms of not thinking it is appropriate any longer to sentence juveniles to life in prison without the possibility of parole. And we, as a country, have been very slow to come around on juvenile justice. I think we were certainly the last first world nation. I think we may have been straight up the last nation that finally gave up the ghost on executing juveniles. Like, that is an embarrassing fact that happened in our lifetimes.

 

Nick: There’s a lot of embarrassing things about our criminal justice system at its extreme ends compared to the rest of the world, and that is one of them.

 

Jessa: I’m pretty ashamed of that.

 

Nick: Right. The fact that we continued to execute juveniles, at least in some places. The fact that we continued to execute people who are..

 

Jessa: Severely mentally ill.

 

Nick: Exactly. Or mentally handicapped.

 

Jessa: Or that we would medicate people to kill them.

 

Nick: Yup.

 

Jessa: So that’s fucked.

 

Nick: And now the notion of the constitutionality of sentencing juveniles to life in prison without any chance of release. I mean, that’s been more recent. The fight has gone to that stage. And we continue to punish. I mean. The shorthand way of talking about it is mass incarceration, talking about how we incarcerate more people than anywhere else in the world.

 

Jessa: Yes.

 

Nick: And which sort of explains this general issue in very simple terms. And we’re just more punitive than other countries. We are. Punishment. We punish more people and we punish more harshly than other places. Bryan Stevenson has been incredibly eloquent on this, and for people who’ve not read Bryan Stevenson’s book “Just Mercy”, please do read it. He’s a really brilliant man and he’s an incredible writer. He’s also an incredible speaker. He’s also an incredible attorney. But he talks about, you know, the notion of sentencing a child, a juvenile, to prison for the rest of their life only seems possibly just or possibly reasonable in a world where we execute people, right? Do you know what I’m saying? Only where the alternative is maybe we can kill you does the idea of sending someone with a 16 or 17 year old brain away for the rest of their lives seems, even theoretically, reasonable.

 

Jessa: And you know what? He’s what I have to say about that. I mean. It is amazing to me. I think you and I share the same opinion about that which is, it just makes me absolutely sick to my stomach to think about a 16 or 17 year old being sentenced to prison without the possibility of parole.

 

Nick: And that, I think, is the key thing, is that last phrase. Without the possibility. And I have fought this fight in cases I’ve had which is, allow for the possibility. Cause here’s why. From a criminal justice perspective, from a legal perspective, but even from a theological perspective, from any perspective. We all ought to endorse on a human level the possibility of change. That doesn’t mean people will change. That doesn’t mean people will be rehabilitated and need to be released. But at least allow for the possibility. And when you take away any possibility of release, you do not account for that. Now, allowing for the possibility does not mean the person will be released.

 

Jessa: They’d still have a parole board if you’re a parole state. Right?

 

Nick: Right? There’s a variety of different mechanisms that deal with that situation. But allow for the possibility. It also, I’ve argued that it ties the hands of victims in the future. And I don’t, I always say, I’m gonna sit here and purport to speak for the victims. That would be inappropriate and it’s not my place to do that. But even people who want a terribly punitive sentence at the time of sentencing for someone who has horribly victimized their family, should we not at least allow for the possibility that they might find grace or mercy or forgiveness in their heart many years down the road? They don’t have to, either. They can continue to advocate for someone being incarcerated for the rest of their lives. And when we do have situations, I mean. These are almost always homicides that we’re talking about.

 

Jessa: Yeah. They are.

 

Nick: And so, when people are given a life sentence with the possibility of release someday, that is not easily accomplished. It is not like “Well, you’re getting out next week.” I mean. At least, in Wisconsin, under the parole scheme that used to exist, well, it still does exist.

 

Jessa: It still exists for homicides. It doesn’t exist anywhere else. For us.

 

Nick: It exists in that capacity, but it also exists for people who were sentenced old law. And who are still in prison. Those people don’t get out. Well. Under our current governor, the gentleman has been a governor now for quite some time in Wisconsin, they just shut it down. They don’t release anybody on parole. So the notion that giving a person the legal possibility of release means they will get out or means that they are getting off in some way, I just think, is generally not true. But to not at least allow for that possibility, to suggest that, that means that we’re saying this 16 year old or even a 19 year old or a 22 year old, we’re saying we don’t care about whether or not you may or may not change in the future. We’re closing the door on that today, and forever.

 

Jessa: I mean. That makes me want to cry. Like, everytime we talk about this, any conversation that you and I ever have about this. I mean. I think I’ve talked about it. I think I said this in some of the Kalief Browder stuff that we did. But you know. I just think about who any of us were when we were 16 or 17, and who we grow up to be, and just the radical difference between being an adult and being a child, a teenager, an adolescent. And how deeply sad it is to me that as a society, we are able to say “No. You know what? I give up on you.” It breaks my heart. It absolutely breaks my heart. I think it’s so wrong. And I know there are a lot of people that disagree with that. I know there are people that say “If you’re adult enough to pull the trigger, then you’re adult enough to do the time.” To which I say, god, it must be nice to be that fucking self righteous.

 

Nick: Also, you’re old enough to do some time. I don’t disagree with that. We’re not saying this person gets to go home today.

 

Jessa: No! I’m not like, murder? That was cool.

 

Nick: But that. You know. Anything that rhymes, that is used as a justification, criminal law probably too simplistic.

 

Jessa: Yes.

 

Nick: Other than ‘If it does not fit, you must acquit.’ That’s the exception.

 

Jessa: That. Yeah. If it rhymes, it’s no good. So there’s that. That’s one thing. Another thing that I would say is an argument against lifetime incarceration for young people or for most people really, is do you know what doesn’t incentivize good behaviour in a prison? Telling a 17 year old that they’re never getting out.

 

Nick: And so it doesn’t matter what your behaviour is.

 

Jessa: Like. What possible incentive do you have not to just shanking everybody? You know.

 

Nick: You don’t have any additional..

 

Jessa: Maybe your own moral compass.

 

Nick: That’s where I was going with that.

 

Jessa: But. Like. You know. The little violations. Maybe that was too egregious of an example. But like, I feel like hope of a better life, hope of a different life, is something that might assist, at least some number of inmates, in walking the straight and narrow while incarcerated. And the lack of that could cause more reckless behaviour or more dangerous behaviour because what do they have to lose at that point?

 

Nick: I agree with you.

 

Jessa: So I think this is all a preface to the Elkhart Four. I think we can probably call it quits on the policy episode and we will be back next time to talk about the Elkhart Four and the facts of that case. And what happened. We are recording this on Sunday, February 25th, so everyone wish Nick ‘good luck’ in his trial next week. He picks a jury tomorrow morning. My trial settled. So I am not picking a jury, but I will be living vicariously through Nick and cheering him on and rooting for him. And I’ll be here, too. So in the meantime, follow us on Facebook, on Instagram, on Twitter. All of our handles are gettingoffpod. You can subscribe to our Patreon page. You can buy merchandise at Etsy.com/gettingoffpod. You can email us at that same thing @gmail.com. Communicate with us. I’m also going to plug my favorite new thing from the podcast, which is the book club. That is on Goodreads and it’s totally cool and I actually talked to our advertising people to ask if we can get some Audible love so that people who are in the book club would be able to use an access code, so hopefully that pans out. We’ll see. I don’t know. As some of you commented, we’re so delicate and appropriate with our advertising plugs that I’m sure everyone will be clamouring to use those.

 

Nick: Oh, for sure.

 

Jessa: Did you see those on the Facebook?

 

Nick: Sure did.

 

Jessa: Alright. So. I’m Jessa.

 

Nick: I’m Nick.

 

Jessa: And this was Getting Off.

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