Colin McCallin March 9, 2011

On March 1, 2011 a Burlington, CO couple was shot to death. The alleged shooter is their 12 year old son. While the case is sealed, the media has reported that the boy also attacked his younger siblings with a knife. The district attorney handling the case has indicated as of the time of this writing that he has not decided whether to charge the boy as a juvenile or an adult. The case has already provoked strong feelings for and against either outcome.

There is a huge disparity in the range of penalties the boy could be exposed to depending on how the prosecutor proceeds. If the case stays in juvenile court, the boy could face minimal time in a juvenile detention facility, undergo counseling and therapy, and be reintroduced into society well before he even turns 18. He would never serve a day in an adult prison. On the other hand, should the prosecutor elect to “transfer” the case from juvenile to district court, resulting in charging the boy as an adult, he will spend the rest of his life in prison if he is convicted of first degree murder. The youngest age at which a child may be tried as an adult happens to be age 12.

The Colorado legislature has suggested that this process should generally be reserved for older juveniles, and only for the most serious of crimes. In fact, a 12 year old can be charged as an adult only if they are alleged to have committed a class 1 or 2 felony (the most serious in Colorado), or a statutory “crime of violence.” The legislature has also carved out safeguards to make sure that a transfer is appropriate; for example, if the district attorney proceeds with the transfer, a judge must determine if it would be contrary to the best interests of the juvenile or of the public to retain jurisdiction and try the juvenile in juvenile court. These safeguards make sense- the criminal justice system has a pronounced bias in favor of rehabilitation for young offenders as opposed to punishment and incarceration.

The mental health of the juvenile will also be heavily scrutinized. Even if he is charged as an adult, the district attorney will have to prove beyond a reasonable doubt that the juvenile was not insane at the time of the offense.

Another consideration that this particular case may present is whether or not any of the statements made by the juvenile to police (if any) will be admissible in court or not. Under Colorado law, if a juvenile is taken into custody and interrogated by the police, the statements he makes are admissible in court only if 1) a parent, guardian, or attorney were present during the interrogation, AND 2) the juvenile was advised of and waived his Fifth Amendment rights to remain silent. Obviously, this boy’s parents were not present during any interrogation that took place, and 99% of criminal defense attorneys would advise the juvenile to not talk at all for this type of interview. It remains to be seen whether this is an issue that presents itself in this case or not because the reports are under seal with the court.

Should a 12 year old boy spend the rest of his life in prison for a double homicide committed at his hands, assuming he is found guilty of the offense? No matter what the district attorney decides, the case is clearly a tragedy that will have no positive outcome for anyone involved, and that may further shape juvenile law not only in Colorado, but around the country.