THOMAS LARSON

(San Diego Reader December 7, 2000)

Last March California voters approved Proposition 21, the anti-juvenile crime initiative, by a gang-busting 62 percent. San Diegans passed the measure by a full two-thirds. To date it’s been a galvanizing nine months for local prosecutors, who are using the law to charge violent teenagers with new trial mandates and prison sentences. The main thrust of Prop 21 requires that juveniles, aged 14 to 17, who commit murder, sexual offenses, and gang-related violence, be tried in adult court. The law also permits teens to be tried as adults for robbery, arson, carjacking, and kidnaping, where the degree of violence is the determining factor. To allow district attorneys to decide the venue of the prosecution means bumping a convicted defendant up from the rehabilitation guarantees of a more lenient juvenile court to the harsher incarceration penalties of adult court. You do the adult crime, you do the adult time.

In one fell voter swoop, the initiative sailed over the heads of juvenile court judges, who were unable to put violent teenage felons away for sustained periods. Indeed, before Prop 21, the venue of a juvenile’s case was assigned by a judge and always after a hearing that inquired into an adolescent’s character, record, and background. But judges, during the “get-tough” years of the 1990s, were already sending 90 percent of egregious juvenile criminal cases directly to adult court. Apparently, 90 percent was not enough for California voters.

No one is feeling the sting of this proposition more acutely than eight Rancho Peñasquitos youths, aged 14 to 17, who are charged with robbing, assaulting, abusing, and committing a hate crime against five elderly Mexican nursery workers in McGonigle Canyon last July. District Attorney Paul Pfingst decided to file this case in adult court under Prop 21’s new instructions. To try the case, Pfingst put Deputy District Attorney and lead hate-crimes prosecutor Hector Jimenez in charge. (Helping Jimenez with the case are Deputy District Attorneys Blaine Bowman and Anthony Lovett.) Even though the eight youths have been charged, they have—nearly six months later—still not been arraigned, that is, entered a plea: Their trial has been postponed because of defense challenges to Prop 21.

In September attorneys for the eight youths argued to dismiss the case on several grounds, among them that Prop 21 violated the separation of powers between the judicial and executive branches: Only judges—not district attorneys—should determine where juveniles will be tried. Superior Court Judge Geary Cortes denied the lawyers’ motion. The defense attorneys then appealed Cortes’ decision to the Fourth District Court of Appeals. Oral arguments are set to begin in January. The Fourth District Court can overrule the challenges or strike the proposition down. Whoever loses that round can appeal to the California Supreme Court. Once the courts have ruled, the eight will be arraigned, and, at a hearing, the prosecution will present evidence of the crime.

If this case is tried in adult court, it will continue the pugnacious trend of recent anti-crime legislation, in Sacramento and via statewide referendum. In 1994 California lowered the age from 16 to 14 at which minors can be tried for violent crimes in adult court; required that juveniles with felony records be tried as adults for committing violent crimes; and imposed longer sentences on juveniles convicted in adult court. Also in 1994 the “Three Strikes and You’re Out” initiative was overwhelmingly approved: The law designated a range of felonies as countable “strikes”; a third strike meant life in prison. Now Prop 21, the ribbon-and-bow atop the electorate’s package of punishment law, seems to be the final link in the lock-up chain. Since “Three Strikes” has helped reduce adult crime by keeping felons behind bars longer, Prop 21 seeks an analogous effect: To get criminal gang members and other violent juveniles off the streets and into prison.

At the heart of Prop 21 is a sobering idea. Juveniles who commit violent crimes will be held accountable, despite the fact that individually they may claim diminished responsibility because they were not mature at the time of the crime. Juveniles used to have a fitness hearing at which a lawyer might reveal, for example, an abusive home-life to show why the kid’s immaturity is relevant to the degree of his sentence. But with Prop 21 such conditions have flown out the window. If a juvenile is tried in adult court, everything changes: No more can teenagers be granted the mitigating circumstances of their youth; no more can forensic psychologists testify why the youth should be given special treatment because of personal or family problems; no more can a judge offer a lenient sentence now that mandatory prison terms are law.

The adult boys of Rancho Peñasquitos continue to overnight in purgatory while their attorneys challenge the law’s fitness for this case. But so far the kids’ have been deemed fit for the law. Before March of this year, they would have, if convicted, served their time only in the California Youth Authority—peer jail with state-required rehabilitation and education. If the teenagers are convicted as adults on all charges, including the hate crime, they would still go to the Youth Authority until they are 18 but then they’d be transferred to a state penitentiary. In all, they are facing 12 to 16 years of incarceration.

Prop 21’s trade winds have blown in a fleet of new values to the criminal justice system. Hidden between the guidelines of the initiative’s systematic language, these values refocus our society away from asking how responsible the juvenile who committed the crime is to stating that the juvenile who commits the crime (unless insane) is fully responsible. The focus now, as New York Times Magazine’s Margaret Talbot has written, is squarely on “the offense, not the offender.” Did the eight boys of Peñasquitos have any idea they would end up in adult court? Had they known it, would they have thought twice before committing this act? I’d wager “thought” about the consequences of the crime had nothing to do with it.

A review of the court documents shows that the attack was well-planned and “well”-executed, including the final strike when some of the youths returned to drag one of the men into the bushes, fearing they had killed him. Boys who could be this systematic and mob-minded in carrying out such a hate crime, despite their stature as sons of loving parents, despite their friends’ testimony that they are “fun to be around,” must be capable of forming criminal intent for what they did just as an adult is said to. Either that or we’ve lulled ourselves into thinking that adolescence remains, like a Rob Reiner movie, a time of winsome simplicity. All this is more unsettling in a culture that caters to the clannishness of adolescent boys, encourages young-male aggression in team sports, markets and sells violent video games and films to kids, and still can’t make up its mind what teenage responsibility should be.

***

According to the court transcript of July 19, 2000, published news articles, and an interview with Hector Jimenez in November, six white Rancho Peñasquitos teenagers—Steven Deboer, 17; Bradly Davidofsky, 16; Adam Ketsdever, 16; Nicholas Fileccia, 16; Morgan Manduley, 15; and Kevin Williams, 15—were driving a white Subaru station wagon through their quiet, affluent suburb on July 5^th around 4 p.m. The boys had either been out cruising or just come from a get-together in their meeting place, an abandoned trailer with “KKK” and other racial epithets spray-painted on its side, set in a dense eucalyptus grove below Peñasquitos’s western edge. On the day of the assault, the teenagers had close- or completely shaven heads. They were carrying a BB gun.

The six youths drove by a Mexican man, Andres Roman Diaz, 66, walking along Black Mountain Road. Roman had finished work at Evergreen Nursery, where he’s employed six days a week watering plants. He was carrying three gallons of drinking water and two sacks of groceries back to his encampment in McGonigle Canyon. This several mile-long canyon, parts of which contain steep ravines, runs west into Carmel Valley. Carmel Valley, according to migrant liaison officers Cesar Perea and Marty Guerra, is the seasonal home to some 200 farm workers, documented and illegal. Paralleling McGonigle Canyon is a western segment of Black Mountain Road, which was then unpaved to Evergreen Nursery. The road is flanked by freshly bulldozed tracts—new housing developments and the coming thoroughfare of Ted Williams Parkway. But McGonigle Canyon remains a throwback: Its dusty roads and foot paths crisscross the chaparral. Halfway down a long hill is Roman’s plywood box of a dwelling, a mile-and-a-half from the pan-tiled roofs of the Peñasquitos homes, whose median value is $320,000.

The teenagers shot at Roman from the Subaru with the BB gun during three or four passes. They took turns shooting at him as they drove by, but they missed him. On a fourth or fifth pass, Roman was struck, and his back was punctured with BBs. The youths then stopped the car and three of them pursued Roman on foot. Dropping the water containers, Roman ran toward the canyon. But, as he later told reporters, “they got back in the car and headed me off at the pass.” He was hit in the back another seven times. His back bleeding, Roman still managed to hurtle rocks at his assailants. The teenagers answered by tossing rocks at his head. They shouted “Pendejo!” They also threatened him: “We’re gonna sic immigration on you!” “Mexican, go back to Mexico!” Roman took cover in some bushes and waited. Eventually he made his way to Evergreen Nursery and waited there, also. But he never called the cops. (Later, when asked why he didn’t call for help, especially since he was bleeding, he said, “I didn’t want to bother anybody.”) Nearly two hours later, he left the nursery and returned to warn others at camp, where he lives with his son, Juan, 36. They usually spend evenings and nights undisturbed in their shack. Two single mattresses, candles for light, a propane tank and grill for cooking food, and a radio for entertainment are all they have.

During the time Roman was hiding, the six boys drove home and picked up two friends, Michael Rose, 15, and Jason Beever, 14. They also brought along a pellet pistol, powered by CO2 cartridges. Before returning, the eight schemed and bragged about what they’d do. At their arrest, some of the adolescents told detectives they talked of how it would be “cool to shoot beaners.” Some also confessed to a more detailed plan: They would play as if they were immigration officers and demand documentation from the Mexicans. If the men couldn’t produce papers showing they were in the United States legally, the teenagers would attack, rob, and shoot them. In addition, one of youths told detectives that he believed the Mexicans wouldn’t call the police because the men were undocumented. His assumption was, if the boys beat up men thought to be working here illegally, the victims would, afraid of deportation, tell no one. On the way to the workers’ camps, the eight teenagers stopped at a construction site and armed themselves with rebar and wood implements.

Andres Roman Diaz returned to his shack, terrified. Seeing his son Juan, Andres didn’t mention the assault; he was fearful Juan would retaliate. Andres rested awhile, tried to eat some tortillas, but had no appetite. It was 6 p.m. now, the time by which his fellow workers were returning to their dwellings. He told his friend, Anastacio Irigoyen Najera, 69, what had happened. When Andres saw the six teenagers who shot him parking their car, he then showed his son his bloodied, BB-ridden back. Andres and Juan ran up a nearby hill and saw the teenagers, hotfooting their way into the canyon. The gang had grown by two and all were toting weapons.

The youths first came upon the encampment of Atanacio Fierros Juarez and Juan Miguel Ramos, both 66. The two men were asked if they had either money or documentation and, speaking limited English, apparently they didn’t know how to respond. When Fierros didn’t produce anything, he was dragged out of his shack, beaten, and shot in the foot. Both men were robbed. Next, the teenagers came to Alfredo Ayala Sanchez, 64. He was at his dwelling, wedged into a ravine and covered by laurel sumac. He was cooking dinner on a propane skillet. Seeing the teenagers coming toward him, he took cover in his shack and, in a corner, rolled himself into a ball. With Ayala pinned, the teenagers shot him repeatedly in the face with the pellet gun. One shot to the face left a deep bruise. The youths then broke his skillet and tried to set Ayala’s dwelling on fire. The fire fizzled out.

For deputy district attorney Jimenez the incident between Ayala and the teenagers was one of the “darkest moments of this crime” when Ayala was being “tortured and humiliated and terrorized.” At one point, after Ayala had been shot at, was bleeding in the face and in the back, whoever was shooting at him ran out of CO2 cartridges. Morgan Manduley ran to the Subaru to get more ammo for the CO2 gun and brought it back, after which the new ammo was used in shooting the next victim. It has been alleged that sometime during this altercation Manduley offered a rag to Ayala to help him wipe the blood off his face.

Irigoyen, the oldest, tried to help Ayala fight back but, apparently in the fury of the assault, he ran to his nearby shack and locked himself in. The teenagers shouted “dinero, dinero,” but Irigoyen didn’t answer. So the youths began ripping at and, eventually, smashing a hole in his dwelling. Irigoyen then came out with a pitchfork to drive the assailants back. He was hit with rocks and shot at again. He fought back and was then tackled by one of the boys. On the ground (he had dropped the pitchfork in the melee), Irigoyen was pummeled with rocks once more. According to an affidavit by a San Diego police detective, Davidofsky struck Irigoyen with a rock in the head, which may have stunned the old man. (Davidofsky also admitted to shooting several of the other victims.) After this attack, the youths fled. But one of them thought they had killed Irigoyen, and he convinced several others that they needed to go back and hide the body. So four or five returned and dragged Irigoyen’s body into some bushes. Finally, the teenagers left for good.

Irigoyen suffered the most severe wound and returned to his home in Baja California to recover. The four other men were bruised and bloodied from rock attacks and pellet strikes. These men eventually healed and returned to work at Evergreen Nursery. It turned out that all five men are laborers, who on occasion travel between the United States and Mexico and who send most of their wages to relatives south of the border. But contrary to what the teenagers thought, they are not here illegally. They are documented workers, legal residents.

A $30,000 reward, a televised re-enactment by Crime Stoppers, and eyewitness accounts led to the capture and arrest of the eight juveniles. From them, the police say they confiscated three BB guns and a rapid-fire air pellet pistol. Other weapons were also discovered: a two-foot metal pipe, a steel bar (rebar), a pitchfork, a wooden stake, a wooden dowel, and rocks. They found blood on a pitchfork, on rocks, on twigs, and on the hat of one of the Mexicans. Prosecutors have charged the teenagers with eight counts, among them, assault with a deadly weapon (against Ayala, Fierros and Irigoyen) by all eight; robbery (of Miguel and Fierros) by all eight; and willful cruelty against Irigoyen to inflict “great bodily injury or death” by all eight. Deboer, Davidofsky, Ketsdever, Fileccia, Manduley, and Williams are charged with assault with a deadly weapon against Roman. Davidofsky, Rose, and Ketsdever are charged with “personally inflict[ing] great bodily injury” on Irigoyen. All eight are charged with a hate crime, which punishes them by adding on four years to any prison sentence they receive.

Outside the courtroom, Hector Jimenez described the attack to reporters as “methodical and gleefully violent,” committed in “predatory fashion.” He told the judge that the youths were “somewhat nonchalant about this whole incident” during questioning. “There certainly wasn’t anyone broken down with sorrow and regret.” Jimenez told me that he believed the crime was “not motivated or committed by a hate group in the traditional way hate groups are described.” He has not I.D.’d the eight as a gang. But it is clear from court documents that they attacked the Mexican men with gang-like terror—in the orderly nature of their plan and in the ravenous swarm of their rampage. Perhaps most unsettling was Jimenez’s portrayal of the criminal hatred the youths brandished. He said they attacked “defenseless elderly people because of their ethnicity” and because the eight wanted “to humiliate [the Mexicans] and toy with them.”

To some observers, such prejudice is startling: Who would have thought that white, upper-middle class kids, with no records and from “good” families, could have been this prejudicial in mind and deed. The case’s greatest irony may be this: According to the Registrar of Voters the precinct along the 14000 block of Black Mountain Road, an area in Rancho Peñasquitos where some of the defendants live, reports that its voters favored Prop 21 at an even higher percentage than San Diego County: 70 percent. The sons of one rich San Diego suburb that supported the Gang Violence and Juvenile Crime Prevention Act are now likely to be nailed to their parents’ political cross.

***

In the immediate wake of many juvenile crimes, families and friends rush to tell anyone who’ll listen about the “goodness” of the perpetrator in hopes of getting a more lenient sentence. Daily press coverage in August just after the teenagers’ arrests zeroed in on such reactions from neighbors and friends. (Needless to say, none of the eight adolescents or their family members has spoken about the charges, on advice of counsel. When I asked Marc Geller, attorney for Fileccia, for an interview, he produced the most trenchant rebuff: “There’s absolutely nothing that you could ask that I could be assured could not be used against my client in court.”) Those who know the families and the teenagers were “shocked” and “perplexed,” “saddened” and “torn.” From the cliché-box sprung such phrases as “some of these kids just happened to be in the wrong place at the wrong time.” Others emphasized the students’ solid records in athletics (Feliccia was a member of the Mt. Carmel High School swim and cross-country teams; Williams and Davidofsky were members of the football team) and academics (Fileccia had a “B” average; Beever was, according to his attorney, an “outstanding student”).

After Morgan Manduley was arrested, people heard of his Latino heritage, and the breast-beating grew louder. “Morgan Manduley is anything—anything!—but race-motivated,” declared his attorney Kerry Steigerwalt, adding that the youth was the “least culpable” of the eight. Steigerwalt then began a sort of “innocence project” on the boy’s behalf, soliciting letters from relatives, psychologists, teachers, and peers to attest to Manduley’s virtue. Reading the 31 letters, comb-bound in a plastic-covered booklet, one feels less suspicious of their putative rectitude and more uncomfortable with their accommodating predictability. Almost all follow a content-exacting five-paragraph format. Some letters assert that Manduley may not have been involved in the crime, though the writer acknowledges his presence. One wonders how they know. Several letters draw out specific past events as proof of his decency. Most merely report that the boy has a well-adjusted home-life, possesses athletic prowess, is nice. Many writers claim that the kid has never uttered a insensitive remark about any person’s race in his life. Again, one wonders how they know. Can there be credible witnesses, whose veracity has not been strained by these charges and who can say how Morgan Manduley has behaved with his buddies or in his heart?

A former teacher writes, “I believe Morgan embroiled himself in a situation unaware of the magnitude, feeling trapped and ignorant to take himself out of it and all the feelings that teenagers have when they find themselves helpless, not knowing how to turn a difficult situation around.” An adult neighbor friend says, “I’m aware Morgan was the least involved in these crimes. I believe it is a case of going to the wrong place with the wrong people. I can’t imagine that this 15-year-old boy could be tried as an adult. When I see him play with my daughter, I see that he is still a child himself. I feel it would be a tragedy to see such a young boy with a bright future go to jail. . . . Morgan should not be treated or categorized with the boys who actually perpetrated these crimes.” Morgan’s grandparents, who fled Cuba in 1960, wrote that they were “dumbfounded by the charges.” They believe that Morgan’s parents, Navy Commander Octavio and wife, “are guilty of giving them [Morgan and his older brother] too much.” They also state that “he has shamed himself, his family, and his Latino heritage,” after which they plead for a “community-service” punishment.

Morgan’s great uncle is Frank Almaguer, the United States Ambassador to Honduras. His letter declares that his family is “the product of immigration” and he supports those “who have lost their hope elsewhere and who find in America a way to rebuild their lives.” As a penalty, the great uncle suggests that “his loving parents and extended family” should be a “central part of his rehabilitation.” John Lee Evans, a clinical psychologist who has worked with Morgan in the past and today, glows about him as a “polite and respectful young man.” As to the crime, he writes that Morgan has shown “sincere remorse for his participation . . . he has been deeply affected by his memory of some of the incidents he observed and feels compassion for the victims.” A surprising admission comes from a maternal aunt: “This is a tragedy for all involved, but it would be a greater one if this young man were to be convicted and incarcerated.” Italics added to highlight the moral relativism of family bias. No one writes that the court should decide the penalty based on the evidence. Instead, everyone recommends probation or community service. But there’s a problem. Those avenues are history for a juvenile tried in adult court.

Finally there is a long, articulate letter from Beatrice Jones, Morgan’s paternal aunt, an elementary school principal in North Carolina. She states that Morgan “does not fit [the] pattern” of the juvenile delinquent: “There is no brooding, no attitude, no malice, no dark clothing, school is good , lots of sports involvement, lots of friends who visit the home, a loving family circle, parents who communicate with the school,” and more. One question I continue to ask anyone associated with this case who will speak to me (and from whom issues that blank, weary stare of the guileless adult) is this: If the kid is so perfect, why did he help instigate, participate in, and commit this hate crime? Wouldn’t a kid this good be closer to an adult in nature and therefore have enough reasoning by which he could control himself? Are these letter writers aware of how “grown-up” they’re making Morgan Manduley appear?

One assumption behind these stagy testimonials is that his dutiful relatives as well as his anti-Castro heritage must be a factor in Morgan Manduley’s character. Because he was raised in such a loving family, he’s got to be repairable; because he’s a child of immigrant relatives, he’s sensitive to the plight of all immigrants. Add in, also, the assertion that because his studies and athletics are a priority in his life, he’s able to make the right decisions. All these things are true—despite his action. Look at the whole, dear judge. Soften the charge, dear prosecutor.

But this litany of support misses entirely another drama, very different from the letter-writing panoply to the boy’s character. The hate crime was probably not motivated by right-wing madness, anti-family sentiment, or self-hatred. This crime may have come about as a sort of young-guns theater in which rampage mixed with racism added depth and purpose to the crime, gave the action a thematic richness, inflamed a suburban legend. Indeed, it may have been this element of play, which neither his nurturing, accomplished family nor his high-school buddies understand, that lies undiscovered in all of our analyses of the crime—since it surfaces only in the peer-roused explosiveness of a wild adolescent moment. Perhaps Morgan Manduley and his buddies committed this hate crime due to characters and personalities that their parents, their teachers, their community can neither know nor see.

University of San Diego sociology professor George Bryjak recently shared his thoughts with me about juveniles and criminal behavior. He had up to the point of our interview only a TV-news sketch of what happened on July Fifth: middle-class kids assault Mexican farm workers and everyone asks why. This was fortuitous: His views wouldn’t be directed at the specifics of this assault but might impartially describe the mechanics of a violent teenage attack. Bryjak offered intriguing ideas as to how juvenile crime happens spontaneously, how it is unstoppable, how the perpetrators (with the aid of families and defense attorneys) learn to spin and deny the crime’s severity in its aftermath and thus, in part, turn the perpetrators into victims.

Bryjak is a rangy man, who, 54 and grey-haired, is comfortable in shorts and a T-shirt in his USD office. On sabbatical, he is co-writing a third textbook on criminology. This book succeeds two popular freshman texts on sociology. A seasoned explainer, Bryjak has labored in the teaching trenches for 22 years. He develops highly adumbrated arguments, with geometric hand gestures, to shape a multi-layered analysis of juvenile crime. Most people just wing it in an interview. Bryjak had typed up two pages of numbered points with which he detailed several theories.

He begins with a common supposition that people give for juvenile crime committed by “good kids”: the family’s status must have something to do with it. “These kids,” Bryjak says, “often come from upper-middle-class, well-heeled, affluent families. They’ve got everything they want, why would they do this? Maybe that’s one of the reasons why they’re doing it. They have everything they want, so it’s crime as recreation, crime as a relief from boredom, crime as risk-taking to put some fun back in life. I think in some instances with kids of this background, they have succeeded. They’ve succeeded through their families.”

Bryjak cites a book by Jack Katz, The Seductions of Crime, in which the play and the thrill-seeking motives of juvenile crime are laid out in a new way. He says Katz gets people to think differently about teenagers who may be committing “the crime because they like to commit the crime. They find it fun, in some cases, erotic. We haven’t looked at that before, especially with gangs.”

They like to commit crime? How so?

“Young males in our society are the most status conscious individuals in America, even more so than females. Females will often go into little cliques of two or three or four, best friends. But males want to be accepted in a larger peer group. For some this can be an academic peer group, for others this can be sports. There’s been a lot of studies about high schools and in any one high school there are [anywhere from] five to 12 major peer groups, often oriented about a particular activity. What’s important is that you fit into one of them—so you belong.

“When you have crimes of violence where there are three, four, five or more offenders, the assault is likely to be more serious than if you have only one or two offenders—and not for the obvious reasons that there are more fists to smash somebody. Basically, when one kid is hitting a singular victim, he’s playing to an audience of his peers. What you want is that positive reinforcement: ‘Hit that son-of-a-bitch again! You can hit him harder than that!’ You may not want to but you’re getting reinforcement for it.”

I interrupt: So that means in the midst of an assault, there’s an element of doing it better, a value as to how well you’re committing the crime, correct?

“Sure,” Bryjak says. “There’s seven or eight of us—and this is what happens in gang rapes, too—and we need to be taking our turns with this woman or this guy. So I smack this guy around for a couple, three minutes, now it’s your turn: You’ve got to be at least as good as I am or else you lose status. And everybody’s watching. In one of Shakespeare’s plays [is the line] ‘all the world’s a stage and all the men and women merely players.’ We are constantly going back and forth as actor and audience to each other. We are always looking to do what is going to maximize our performance in terms of elevating our status. So I think what happens is this—and I don’t know the details of this [assault], if it was methodically planned or it was spontaneous—but when [the attack] tends to be more spontaneous, they start slapping these people around and it can escalate, get out of hand, maybe not even in minutes, maybe in seconds. Nobody had intended to beat the shit of these people. But it’s the whole thing of the peer group, playing to the audience. One guy slaps somebody around, the next guy does it harder, the next guy does it harder, the third guy doesn’t wait for the second to finish, and he jumps in, and before you know it, it’s like a flash”—Bryjak snaps his finger—“all of sudden: ‘What the hell did we do?’”

He pauses and continues. “Thrill-seeking and entertainment are not necessarily incompatible. This whole crime takes place within the context of the peer group and it functions like theater.” Bryjak is confirming something we all know, namely, that in groups adolescent males are the most malleable to performance-based presentation of self. This is why young men orient themselves to team approaches—soldiers, sports’ groups both on the field and in the stands, policemen, fraternities, hunting parties, and, inevitably, corporate players. His loyalty is one of the central means by which the young male can be favorably judged.

Bryjak likes to speculate how the “nice middle-class kids” go about committing such a crime. “If this happened in an inner city, if there were gang members,” he says, it would be easier for people to understand. Gang members often require violent initiation in return for status and protection. If you want to join us, go rob that old lady, right now! “But why,” he asks, “did these kids [from Rancho Peñasquitos] reject the values that they had internalized during the socialization process,” most of which were testified to in the 31 letters written on Morgan Manduley’s behalf? To answer that question Bryjak offers the work of David Matza and Gresham Sykes, sociologists from the late 1960s. They contend, Bryjak says, that “teenagers do not have a value structure that is the antithesis of middle-class American values. They don’t reject everything; it’s not just about rebellious behavior. That’s not the case at all. They may admire their teachers, they may admire their parents, and have other adult role models. If they admire these people and they’ve internalized these values, then how can they do something like this? What Matza and Sykes argue is that kids utilize techniques of neutralization, and these techniques neutralize why a particular value, that’s expressed in a law, doesn’t apply to them in a particular circumstance.

“Let me give you an example. You go to a prison and talk to some of these guys who are locked up for robbery or burglary. They may brag about committing 67 burglaries and there may be people who are hardcore drug abusers who have literally committed hundreds of burglaries. You might say to them, ‘You’ve committed all these burglaries and crimes, and I imagine if you had anything to do about it, burglary and robbery would not be crimes. You’d just decriminalize it so that anybody could do that.’ And they’d look at you like, ‘What are you, nuts? Then I’d be getting ripped off and you’d be getting ripped off. There’d be chaos.’ ‘But wait a minute, you’re telling me we shouldn’t decriminalize this. But you’re committing all these crimes.’ And they’ll say to you, ‘Oh, but I’m different.’ So the technique of neutralization allows you to have your cake and eat it too. You can be committed to a particular law, but then you can easily flip things around and say why it’s O.K. for me to commit this crime, under this circumstance, against these people. ‘The law is good, and we should have it, but not in my case.’”

To neutralize is to rationalize, “before, during, and after the event.” According to Matza and Sykes, there are five methods by which a person neutralizes the intent, action, and consequence of a crime.

Denial of responsibility is used by those who, in Bryjak’s words, say, “‘We aren’t responsible for what we did. I come from a screwed up family. I have abusive parents. My friends made me do it. I would have never done it on my own. I was drinking, I was high, and I didn’t know what I was doing.’”

Denial of injury: “‘O.K. these people got messed up a bit, a few broken noses, some kicks in the ribs. But nobody’s dead. These people will heal.’ When it comes to property crime, ‘So I stole a couple of CDS from Wal-Mart. They make millions of dollars. They’ll never miss it.’ It’s the denial of a physical injury or a monetary loss.”

Denial of the victim: “This one makes a lot of sense for this case. ‘What’s the big deal about beating up a bunch of Mexicans? They don’t belong here in the first place.’ My guess is, there are a lot of adults who would go so far as to say [someone] should beat them up. Some of the kids may have heard this over and over again from their parents, and their teachers as well. If you define people as less than your equals, then you can exploit them, victimize them with a clear conscience.”

Condemnation of the condemners: “Here, the perpetrators question the motives and integrity of the people who are disciplining them. ‘How can you condemn me? Look at what these cops in Los Angeles have been doing. They ruffed up Mexicans. For years nobody cared. My father told me that when he was my age, he kicked butt, smoked marijuana, stole stuff. If those people can get away with this, why can’t I?’”

The final neutralizer is an appeal to a higher loyalty. “In this case, the attack can be turned into a patriotic act. ‘These Mexicans take our jobs, steal our stuff, live off the welfare system, don’t pay taxes, send their kids to our schools. What we did was a good thing for America.’”

Is there a tape, I wonder aloud, that’s playing in many of these eight kids’ minds “before, during, and after the event?” Hey, my dad and mom will forgive me because they want me to learn my lesson, so I can succeed and go to college; and sure enough, they have forgiven me. My relatives believe I’m a good kid who hasn’t made any mistakes to speak of, and they don’t want to see me punished that hard, so they’ve written those letters to the judge. My friends will accept me back into the fold. And they have. But how can it be, if all that’s true of my family and friends, that I’m still going to be tried in adult court and sent to prison maybe until I’m 30?

“My guess is,” Bryjak says, “that when these kids first started to think about this crime, they may not have necessarily believed all these rationalizations whole-heartedly. But if you say something to yourself enough times, after a while you start believing it. Especially afterwards, because then you’re in a bind. You’re basically this good person from a good family, but [you ask yourself] how did I do this? Then you start constructing things: Why it was O.K. for me to deny injury, deny the victim, deny my responsibility. If you do something and you don’t get caught and you use these [denials], it makes it that much easier the next time. It’s like putting on a different pair of glasses from which you can re-interpret everything.”

Bryjak says this theory usually supports a more conscious model for how individuals get into trouble and then rationalize their way out of it. But the theory becomes more potent when the community in which the perpetrators reside is the same place where the crime occurred. The people who rally around those who commit such “uncharacteristic” crimes may also take part in neutralizing their own values. What’s more, the perpetrator might expect such home-town support. Neutralization sets up a bond in the community that begins to tighten once someone is arrested and accused of a crime, especially a crime that is wholly unexpected. “What I’m suggesting,” Bryjak says, “is that through these techniques of neutralization, it’s a way to circumvent criminal intent.” In other words, to plan, to be arrested, to be tried for crimes is one thing. But when it comes to taking individual and community responsibility, well, it certainly wasn’t that big of a deal.

***

At some point, after the appellate decision on Prop 21 and after the juvenile- or adult-court trial, the penalty phase of this case will commence. In the meantime I offer the views of two people who differ about the efficacy of rehabilitation and punishment for juveniles. One continues to argue against Prop 21 in court, the other worked to see it pass. One believes in rehabilitation, the other believes that rehabilitation is often neither effective nor just. Though these two—juvenile court defense attorney and crime victim—have been involved with juvenile murderers, their testimony here is meant to spotlight the issue of whether to try violent juveniles as adults. The hate crimes, charged against the Rancho Peñasquitos youths, are not as serious as murder. We may, however, be able to understand more clearly in these extreme stories the near unbridgeable span between salvation for juvenile felons and justice for their victims.

At 32, attorney William La Fond looks preternaturally young, one outward hint why he’s drawn to defend adolescents charged with felonies. A former runner and crew member, a Princeton University graduate who later received his J.D. from the University of San Diego Law School, La Fond is on the bird-like end of lean with a sharp-cut nose, large brown eyes, delicate mouth, and gelled-back black hair. His seventeenth floor office overlooking San Diego Bay is decorated with framed pictures and pleadings from his two high-profile cases. Such aggrandizement is not excessive, though the news stories and photos of his arguing for leniency in court are a tad prepossessing. Yet one photo shows La Fond’s face flushed with as much dignity as hopelessness for his client. La Fond believes unequivocally that most youthful offenders can be rehabilitated, even some who may be genetically mis-wired. Otherwise they will become brutalized and lost if, as juveniles, they go to adult prison. Because many juveniles can be changed, La Fond says, “on the moral level, it [is] very easy to represent them.”

“Think of it this way,” he tells me in September, after I read his anti-Prop 21 motion on behalf of his client, Morgan Manduley, who is also represented by Kerry Steigerwalt. (La Fond’s hour-long argument on the unconstitutionality of Prop 21, as wide-ranging and brilliant as it was, was dismissed by Cortes’ ruling.) Kids, La Fond says, are often “victims” of their upbringing or their parents’ bad decisions. To point this out, he details his two famous juvenile murder trials, those of Joshua Jenkins, who murdered his parents, his grandparents, and his 10-year-old sister, in 1996, and Tony Hicks, who killed Tariq Khamisa, the pizza-delivery man in 1995. Hicks was the first 14-year-old in California history to be tried as an adult for murder.

Hicks, La Fond says, was a “classic example of why we have juvenile court. He came from a very terrible upbringing. His mother was 14 when he was born; his father was 15 and in jail. The mother abandoned him when he was 10 and he began living with his maternal grandfather. When he was living with his mother he had three traumatic events in his life. One, he was sexually molested by the son of one of his mother’s girlfriends. Second, he witnessed the shooting death of one of his cousins in a drive-by shooting. The third and most traumatic event was his mother leaving the picture and his granddad taking over the rearing. His grandfather was a person who loved him very much and took a very disciplined approach to raising Tony: He required that he do well in school. But when the murder of Tariq Khamisa occurred, Tony had just run away from home that day. It was well documented in the juvenile court hearings that the reason why he had run away from home was two-fold. One, he was frustrated in that he was working hard in school and his grades weren’t as high as his grandfather would have liked, and he received some physical discipline in the home unrelated to that. Unbeknownst to the grandfather, Tony Hicks suffered from learning disabilities. And so he was becoming frustrated in school, frustrated being away from his mother, and he had some emotional issues he needed to act out on. So he decided to run away from home and be reunited with his mother. On the way to the Greyhound station he met up with a friend of his, one of the co-defendants, a 14-year-old. That 14-year-old invited him to a party that night, and at that party Tony was introduced to 18- and 19-year-old sophisticated gang members who planned this pizza robbery that went very badly awry. So he was a case where essentially he received no parenting. His first entry into the juvenile court system was for murder. The question became for the court: Was the juvenile court system equipped to rehabilitate him and would the law allow the court to do that?

“Joshua Jenkins, on the other hand, was adopted at birth. He grew up in affluence; they were upper-middle-class. But as he grew up he started having difficulty in school; the parents believed it was a learning disability; they felt he had dyslexia. The school officials, eventually in Los Angeles and later in Las Vegas, concluded otherwise. They felt he was having the onset of mental illness, in particular, paranoid schizophrenia. Eventually, a school psychologist in Las Vegas recommended that the parents be counseled about this, and asked to allow Josh to be medicated with a psychotropic medication. The parents threatened to sue the school; they weren’t in agreement with the psychological evaluation. They requested a second evaluation. The school did one with a psychologist who concluded that he was not mentally ill and that he was suffering from learning disabilities. Our view in the case was that the psychologist was a hired gun, that he produced this result in order to prevent the lawsuit that the parents were threatening. It was terrible, terrible science to make these conclusions. That was proved out because Joshua eventually had a pushing incident with his father and his father said, ‘That’s it. We’re sending him away.’ They sent him to a treatment center in Los Angeles, called Vista Del Mar. While there, the same approach—there were school teachers and on-staff psychiatrists who noticed that he had mental illness. They became convinced that he was suffering from schizophrenia, and they again called the parents in, confronted them with this information. The parents were again totally reluctant to accept that diagnosis. The school eventually decided that with or without the parental permission, they were going to establish a consultation with a psychiatrist in Beverly Hills for medication. They were going to go through whatever legal loopholes they needed. If that meant getting a court order, they were prepared to do that. An appointment was set up for a Tuesday—which happened to be the Tuesday after the murders. The parents picked Joshua up on Friday and they were killed that weekend.

“So the juvenile court there was presented with a separate issue: Does a young person who has severe mental illness, childhood schizophrenia, can the juvenile court system rehabilitate or provide services for this person? That case went to trial and there were two court-appointed experts who testified and concluded that [Jenkins] was legally insane. They weren’t paid for by the prosecution, not paid for by the defense; they were hired by the court. They reached their independent conclusions that he should be diverted into the mental health system.” In the end, Jenkins was found to be sane in four of the five killings and sentenced to 112 years in prison.

La Fond believes that the juvenile court system—which includes the gamut of fitness hearings and trials, acquittals and convictions, incarceration and rehabilitation—is there to help kids, who “are not entirely responsible for their actions. Their parents are responsible. We as a society are responsible for what they do.” Adult court presumes all adults are, unless shown to be insane, responsible for their actions. The problem is, for La Fond, that “we’ve started to treat juveniles as miniature adults. They should be fully responsible for all of their actions as if they had the judgment in maturity that an adult person has. We know that’s ridiculous.” With adults, even if they act like teenagers or have had terrible childhoods and have reached 18, La Fond says, “I don’t think anybody has a moral problem with saying, ‘If you’re an adult and you commit an act, we’re going to hold you fully responsible for that action.’ But I don’t think anybody would ever argue to leave an 8-year-old at home alone or say a 12-year-old can drive a car or to say a 14-year-old can make decisions to have sex or not.”

We as a society, La Fond says, allow “ourselves to get distracted by the end result. This is terrible: Someone’s been killed or someone’s been raped, and we say, ‘we must go back and pretend that these are adults and that we’re going to deter future criminal behavior by treating these kids in a particular way.’

“The way I see it, the public is frustrated that if a 14-year-old kills someone, they’re going to be released from prison when they’re 25. No questions asked. It seems to me that can be rectified. If the issue is rehabilitation and someone’s a juvenile, they’re 14 and they kill somebody, we ought to try and change this person because a 14-year-old we can change. A 28-, a 38-year-old, we may not be able to, in theory.” La Fond contends this is not an idle wish; he’s witnessed such changes. He says he knows of numerous examples (although he won’t name them because of the juveniles’ ages). “People who have committed murder for no reason other than someone was walking down the street wearing the wrong gang colors have been rehabilitated. Even in a place like the California Youth Authority. Because for the first time these kids have adults who are interested in them, motivated to try to see them change. That doesn’t mean all of them get rehabilitated. In some instances, some of these kids end up being worse by going to the Youth Authority. But if there is any hope, my point is, the younger the person, the more hope you have to change [him].”

La Fond describes a system that employs multiple methods to help insure rehabilitation. (These methods include residential treatment facilities, among other things.) “In juvenile court we call sentences ‘dispositions’ and there are five dispositions: at home with your parent; juvenile hall commitment of varying degree, ranging in the ‘Breaking Cycles’ program from 90 days to 240; ranch facility, similar to a boot camp; youth correctional center for 17- and 18-year-olds, which actually is a boot camp; and, ultimately, there’s the California Youth Authority, which is prison for kids. Those are all ‘loss of liberty’ dispositions. There are others considered to be non-custodial, and those include residential treatment in a drug rehab or a mental health group home. By law, all of these facilities are required to educate these kids. If they have learning disabilities, they are entitled to receive special education.”

The most pertinent question La Fond poses for me: “Do you think a younger person is more likely to be rehabilitated than an older person? Flip it over. Who would you be more afraid of? A young kid that’s grown up in prison or a young kid that’s been rehabilitated? If someone grows up in prison”—at those words La Fond sends me a look of infinite worry—“talk about creating a monster. Prison environment is a gang environment. You’re first role as an inmate is to find who the white representative is in the tank, who the black representative is, who the Mexican representative is. It’s all racially divided whether you like it or not. If you have any problems, you have to talk with your representative first, then he meets with the other representatives, and people get beat up for not doing things like not going to the yard to work out when they’re supposed to or flipping the TV channel when they shouldn’t. It’s a jungle. It’s really not a place to be sending people, if we don’t have to. Certain people, it’s a reality. Maybe I’m a true believer, but I don’t know too many juveniles where the starting place [for their punishment] should be prison.”

Juvenile defense attorneys like La Fond prefer the old pre-Prop 21 guarantee of a fitness hearing, which allowed the juvenile to present a defense to a judge. This La Fond believes—although he would not comment on the case of Morgan Manduley—is the main problem with the new law. His client will, under Prop 21’s stringent guidelines, have no right to a hearing where La Fond can demonstrate that the particulars of his client’s background mean Manduley is not fit for an adult venue.

There’s more inequity, he says, with Prop 21. “Prosecutors are advocates for the crime victims and, in theory, for the general population. They’re supposed to seek justice. But the reality is, we’re in an adversarial system and for political reasons, most of the time, [district attorneys] take very strong positions on cases such as this. I can’t imagine an elected official, a prosecutor saying, ‘Oh, we agree, someone who shot and killed a pizza-delivery man, should remain in juvenile court. It would be political suicide for them. So, in effect, giving the prosecutors the discretion to do that, what we’re saying is, ‘There’s not going to be any discretion that’s exercised at all. All these cases are going to be tried in adult court.’ Whereas a judge, on the other hand, even though they are elected, they’re viewed as impartial players in the role. I think the public is more willing to abide by a judge’s ruling than they are by the [prosecution’s decision].”

La Fond returns again to the stricture of Prop 21 that states a prosecutor will bypass a fitness hearing when he or she decides to send a juvenile case to adult court. Fitness hearings can still occur, but only if the prosecutor lets the judge determine the venue. In this event, the probation department reports to the judge whether the juvenile is fit or unfit for juvenile court based on five factors: Can the minor be rehabilitated? How successful were previous attempts at rehabilitation? Is there a prior criminal history? What is the degree of criminal sophistication of this crime? How serious is this offense? These factors center on the juvenile being “amenable to the care, treatment, and training of the juvenile court.” Negating a fitness hearing puts La Fond in mind of the gravity of a death-penalty trial. “There’s no way for the judge to remand it to juvenile court, if he saw fit, and there’s no way when the judge comes to the time of sentencing to choose a juvenile-court sentence rather than an adult-court sentence. The decision to send a kid to adult court is just as dramatic a decision as whether you put somebody to death or not. We’re saying, ‘We’re giving up on you, we can’t change you, and we’re going to treat you like a miniature adult criminal and you’re going to be punished and goodbye.’ A decision that fundamental, rather than streamlining it, should be given more protections, not less.

“Really what we’ve done is, we’re taking victims and we’re making them defendants. These kids are crime victims. So when we talk about let’s protect the crime victims, in a way, that’s what we’re doing here. We’re taking the people who have been the victims of crimes and we’re saying, ‘We’re going to treat you differently, to help you because you have been taken advantage of.”

Who are you referring to? I ask.

“Just about any kid in juvenile court. Tony Hicks, crime victim. Molested, beaten, neglected. In the classic sense, they are victims.”

La Fond is quick to say he understands that such an attribution makes no sense to families who have lost loved ones. “I really believe that by and large victims feel certain ways about criminal justice matters because it’s just a way for them psychologically to cope with the tragedy that’s occurred in their lives. In the Jenkins case, those surviving family members, the twin sister of the mother and a great aunt, absolutely reviled and hated Joshua Jenkins. They thought he was the worst human being on the face of the earth. Of course they did; this was a boy who killed their entire family. And for them to believe that proper medical treatment or a simple prescription from a psychiatrist [might have] prevented [the crime] would have been unbearable. It’s much easier to say, ‘Some big bad evil person did this, and I’m going to hate this person for the rest of my life.’ Those are really normal emotional feelings for people to have.”

Finally La Fond summarizes how the law has traditionally dealt with an adolescent who is termed a “good kid.” He cites a ruling by California Supreme Court Justice Stanley Mosk. Mosk said, in a case involving two kids who committed a murder and had no record of personal or family difficulties, that with juvenile felons “you need to identify a problem that the juvenile court can fix. What he implied is that if you’re a good kid and you come from a good family and you don’t have any problems, and you commit something bad, that’s adult behavior. You should know better and, therefore, you should suffer the adult consequences. Whereas if you’re a Tony Hicks, who hasn’t the ability to create the emotional fund, if you will, to make rational decisions, then that is the person the court can try to fix. So really, what I took it to mean, the more broken you are, the higher the chances that you’re going to remain in juvenile court, whereas the less broken you are the higher the chances that you’re going to go to adult court. Now, query whether that’s a good, real solution. Because the more broken you are, in terms of public safety, may mean the more dangerous you are. And the better fund of emotional maturity that you have, coming from, let’s say, a middle-class family, probably [means] the chances you are going to be rehabilitated are much greater.”

***

Currently the Director of Education and Research at Crime Victims United of California, Maggie Elvey has worked with victims’ groups ever since her husband was murdered in 1993. Ross Elvey, the owner of a gun shop in Vista, was bludgeoned to death with a steel pipe by two boys, 15 and 16, who also stole semi-automatic pistols with which they intended to commit other crimes. During the robbery, he was beaten behind a glass counter, beaten down to the ground until his skull was fractured, beaten into unconsciousness, where he remained in a coma for six weeks, until he died. The two trials took 18 months, but these were only the beginning of Maggie Elvey’s long march into the bureaucratic banalities and low-key torment of the juvenile justice system. Today she is still keeping track of one of the two murderers, Damion Miller, who, she says, “pretends” he’s being rehabilitated at a correctional facility in Chino. Although Kristopher Kirchner, 16 at the time of the killing, was given life imprisonment (without the possibility of parole), Miller was convicted in juvenile court and sentenced to the California Youth Authority. The killing occurred a year before the age of accountability for murder was lowered from 16 to 14. Miller was 15.

Crime Victims United works to support legislation, state propositions, and political candidates who “will be good for public safety and victims rights,” Elvey tells me via phone from her home-office in Sacramento. It was the support of crime victims’ groups and Elvey’s campaigning that had much to do with passing Prop 21. “We’re not strictly ‘tough’ on crime. We’re interested in prevention. But we want to make sure the victim is treated well in the system.” One reason Elvey’s group is successful with—and feared by—politicians is that according to a survey, 60% of voters are “more likely” to vote for a candidate who’s endorsed by a crime victims’ organization. Elvey wishes she could attend more trials and help buoy victims who have to hear the “lies” the defense tells about perpetrators and, sometimes, the victims themselves. When she lived in San Diego, Elvey stood beside the aunt and great aunt of Joshua Jenkins through his insanity hearings. She often speaks to the media, bringing a steadier voice for those too distraught to open up. Another support group is Justice for Murder Victims. There’s also an annual march on the state capitol in April. These efforts, Elvey says, apply pressure on judges and politicians to keep the victims and not the perpetrators in the vanguard of public awareness.

And yet, until Prop 21, such awareness has seldom borne fruit. During the trial of her husband’s murderers Elvey remembers, “They called me a homicide survivor, but I was just as much a homicide victim as Ross was.” In 1994, Elvey had to “fight like hell” to make sure Superior Court Judge Lisa Guy-Schall gave Kirchner the maximum sentence. She knew the judge had three choices: Life without parole; 25 years to life; or a lesser sentence based on a psychological exam in which Kirchner admitted his remorse. Elvey was frightened by the latter two options but relieved when Guy-Schall dropped the full weight. Today, Elvey takes no credit for the judge’s decision, although the emotional hammer of her impact statement must have helped forge Guy-Schall’s sentence.

Elvey’s impact statement included the cost of her medical bills. Her and her husband’s health insurance had lapsed and the comatose Ross was in the hospital for six weeks before he died. How much were your medical bills? asked Superior Court Judge Runston Maino, who presided at Miller’s trial. Elvey replied, $246,000. How many of them are paid? “I think the state had paid,” Elvey tells me, “something like $7000, and he said, ‘Damion, I’m going to have to give you the restitution of this other $239,000.’ So Damion has one of the highest restitutions on him in the California Youth Authority.”

I ask if she is owed this money over the course of his life.

“Right,” she says, but so Miller has sent her “a $12 check, a $5 check, a $50-some-odd check. I’ve got copies of those that hang on my wall.” Elvey believes that when he gets out of the California Youth Authority in 2002 at age 25, she will have to hound him the rest of her life, despite a court order that will garnish some portion of his wages forever. Hounding him for the money will mean hiring a collection agency to find him and get the payment. For their service, of course, they’ll take part of that sum.

The conventional wisdom is, juveniles can be rehabilitated and crime victims do receive small doses of justice, restitution, peace of mind. Elvey’s experience with Damion Miller and the California Youth Authority escapes such wisdom. Her tale about Miller’s on-going “rehab” reads like a gangster novel, but now with a new crime piggybacked on the old one. Punctuating Elvey’s at-times wide-ranging memory of those difficult years is a laugh, a springy, pleasant sort of laugh, something to soothe the morbidity of loss. Also in her voice there’s a mix of fatalism and fierceness that has “don’t mess with me” chiseled all over it.

After his conviction as a juvenile, Damion Miller “started out in Whittier for two years, then went to Ventura for two years [both correctional facilities], where, believe this, he could have got a free college education and saved $10,000 all for murdering somebody and stealing guns. Which really ticked me off because there’s so many kids out there these days who’d love a college education. He didn’t take advantage of it. He is now over in Chino, which is one of the worst facilities for fights and gangs. I haven’t received a check since he’s been there.” Always on alert, Elvey monitors Miller’s “progress.” “I go every year,” she says. “Every February I have a hearing for him, so I’ve been to six hearings. The very first one I went to—they originally had set him to be released this year—I said, ‘Why is he getting out at 23? In California you can keep them until they’re 25.’ ‘Well,’ they said, ‘weren’t you invited to the first hearing?’ and I said, ‘No.’ ‘The most we give’—and this is the other thing most Californians don’t know: Juveniles are not sentenced to a time, they are only sentenced to a place. He was only sentenced to California Youth Authority. So when California Youth Authority gets them, the most they give is seven years. So if you’re 15, you do a heinous murder, you get out at 22 or 23. They were going to release him this year.

“When I walked in the room [the parole officer] said, ‘Number one, I want to thank you for coming because maybe out of 30 hearings a month we only have seven victims a year show up.’” Attending such hearings are at the victims’ expense; they must travel, arrive the day before, and spend the night. Worse, Elvey says, “Every December I get a letter that says it’s time for his hearing. So then I have to go into this remembering mode for two to three months, try to figure out . . .” she pauses on the phone, sounding overcome. Over the years Elvey has sent her impact statement to each of Miller’s detention centers. When one parole officer read it, “he said, ‘I’ve never seen anything like this before.’ So he lets me do my impact statement [at the parole hearing], and I have all the pictures from the hospital, but I was not allowed to show [Damion] that. I was not allowed to have Damion in the room when I gave my report. Then they bring him in and they try and tell him what I said, which is never the same,” she is emphatic, “as having a victim sitting in front of the perpetrator. It was really a discouraging time other than the fact that every time I go I always tell the crime, I always tell about Ross and the family and what it’s done to us. When I told them the crime, they [the parole board] said, ‘What? They did what?’ I found out from that day that when they walk into the room with a stack of files, all they really know is that the kid’s in there for murder. And that their parole agent says, yeah, well they’ve been good the last year, so we should take a few months off. It’s not like they’re going to release this kid but it is like they’re going to take time off.

“So when I got through with my report and they brought him in and continued to question him and he continued to tell his lies”—here I interrupt and ask, what lies? Elvey responds: “He has never really told the truth about the crime, how it happened, his part in it. He tries to say that they were on the front of the counter and Kirchner beat Ross all the way down to the ground. Well, that counter was higher than my waist, and to beat Ross all the way down to the ground, Kirchner would have had to have gorilla arms.” Elvey is certain Miller took part in the beating, probably held her husband down.  But he’s never admitted to anything. “I brought it up this time. I said, ‘O.K., Damion, you tell me how this happened.’ One other guy in there said, ‘Damion, you’re really mad at Mrs. Elvey?’ and he says, ‘Yeah. She’s making my parents’ lives miserable.’ And the guy said, ‘Well, what’s she doing?’ ‘She’s suing them, and I don’t think she should be allowed to do that.’ And he said, ‘Damion, Mrs. Elvey is not ever going to be able to do to your parents what you’ve done to her and her family, don’t you understand that?’ He just sits there like a bump on a log. Then [a parole officer] said, ‘We’re going to add six months to your time,’ the most they can add at a hearing, ‘and we’re going up to Sacramento to a full board hearing where I’m going to recommend that your release date be taken up to age 25.’ So talk about mad. ‘Do you understand what I said Damion?’ and he said, ‘Yes, sir,’ then he muttered something. I couldn’t understand it. Then [the parole officer] said, ‘That’s all I need to hear; you can be excused.’ So Damion stood up and threw his chair over and looked at my daughter and me like ‘if I could kill you I would.’” On another occasion, Elvey says Miller has “threatened that if a certain person doesn’t get off his case when he gets out on the street, he’s going to ‘smoke ’em.’”

Do you think he means you?

“I don’t know for sure. I try to find out from his parole agent but he never writes me back. I remember that comment. I don’t know if [he means] me or a parole agent. I assume it’s me because he’s so mad at me. He told Maria Shriver and Dateline”—the segment aired in 1995—“that I was out for revenge. She [Shriver] said, ‘I understand you’re upset with Mrs. Elvey,’ and he said, ‘Yeah, she messed with my family,’ and she said, ‘Well, you messed with hers.’ Then she even brought up the restitution and he said, [sarcastically], ‘Wow, that’s lots of money.’”

Elvey did get some money from Kirchner’s parents’ homeowner’s insurance. She wanted a million dollars but got a “trifle,” considering her bills. Elvey continues to sue Miller’s parents, who did not own a home at the time of the murder. She recalls that the amount Miller’s parents were liable for was “really sad—$10,000 worth of damages for medical [bills] that their child caused. It’s up to $25,000 now. But I was nice. They wanted to give me $2500 and I said, ‘No way.’ The laws on the books were $10,000, which is more than fair, and I’d settle for that. Then they went up to $5000 and I said, ‘No.’ Then I said, ‘Look, I’ll settle for $7500. I want letters from both of you saying what your kid has done to our lives. And then you can give me the $2500 as a down payment and then you can pay me $100 a month. I think that’s more than fair. [Elvey writes in an e-mail update that even the $100 is no longer being paid. “I have no idea what I’m going to do when I have to retire.”] The letters that they wrote were how sorry they were, how they prayed for me. They still don’t get what they’ve done to my life.”

Could they? I ask.

“I don’t know. Every time [Damion’s mother] came she was in denial that he ever did anything. ‘Well, maybe he was there for the robbery but he didn’t help murder Mr. Elvey.’ One time after they heard my report [at a parole hearing], they got him to write me a report about the crime. So the next year I went, I didn’t realize this, but they were going to make him read it. So he made sure to call his mom and told her not to be there. She hasn’t been [at any hearing] since. This year I had all of Ross’s friends write [Damion] a letter [to tell] him what he’s done to their life. I told him, ‘I know you’re tired of hearing what you’ve done [to me], so I’m going to give you a little-impact-of-crime class here,’ because he’s not getting it in there.” He’s not being rehabilitated? I ask. “No,” she continues. “He took a Psych class and they told him he had to take it again. He had Gang Awareness class and they’ve [had to] let him out twice. The first time he didn’t want to be disrespected. Second time was, he wasn’t ready to learn. I said, ‘I’m really sorry but you know what? I wasn’t ready for my husband to be murdered either.’ You have to put these kids in those classes and they have to take them over and over until they get it. This is what part of our society is: [Juveniles] can turn around and walk away from things they don’t like and there’s things in life—but I’m sorry—that you have to learn to work through.”

Elvey keeps urging Miller to take responsibility for his actions, as part of this bizarre criminal-victim collaboration that haunts the punishment-and-rehab phase of some violent juvenile cases. “‘Damion,’” she once told him, “‘I hope before you get out of here you realize who it was that made your parents’ life miserable. It was not me. It was you.’ This year I told him, ‘My only bit of legal revenge I have is to be at your hearing each year and hope that you learn from what I am telling you, and that you can come out to be a responsible, productive adult.’”

Why do you care, I ask, that Miller should get out and be a better person?

“I don’t care if he ends up back in jail, [but] I don’t want him to come after somebody else. And I don’t want him to come after me. I’ve got to start being kind of nice to him. But”—she lets out an ominous chuckle—“I’m not nice to him. I work with him. Because I know all those in the California Youth Authority are going to get out. And who wants to have another victim. He’s not learning what he should be.” Elvey says some of the juveniles she meets in her prison visits cry and confess remorse for their crimes. They also “promise me they’re going to change and I hope so. I can’t be just strictly tough on crime, because these guys in CYA are going to get out.”

Elvey has been labeled revengeful. Timothy Kirchner, father of Kristopher, told her at his son’s trial that her pursuit of justice is “killing the youth of America.” She debated, in person and in the press, those opposed to Prop 21, including Akim Khamisa, who with his foundation is attempting to combat youth violence by advocating forgiveness of Tony Hicks, the boy who killed his son Tariq. Elvey is committed to telling young felons that they are responsible for “their choices, rather than they’re good or bad [kids]. I have people tell me that ‘You have to get over this and go on with your life and you have to forgive them.’ I feel and a lot of us feel that we are going on with our lives. As far as I’m concerned, it’s my chosen right to forgive [Miller and Kirchner] or not. Sure there’s going to be victims who can and some that can’t. My revenge is to be there in front of him every year. I’m offering him a chance to understand what he’s done.”

The personal abuse Elvey has suffered in the criminal justice system has galvanized her support of victims’ rights, the death penalty, and Proposition 21, for which she became the major victim spokeswoman. Speaking out often takes her to high schools where in colloquiums, sponsored by the ACLU, she must square off with a person much “softer” on crime than she is. Usually her views are unwelcomed by the students. In a Stockton high school, she recalls, “I got bombarded. The first question I got was, ‘If your son committed murder, what would you do?’ I said, ‘My son was taught that he has no right to take another person’s life. And if he does, he goes to prison.’”

Elvey recounts a list of excuses the kids brought up. “‘We weren’t raised in a big house like you with a white picket fence. We didn’t have anybody to teach us morals and values.’ I couldn’t believe what I was hearing. Then this one kid gets up and he says, ‘Your husband asked to be murdered: He owned a gun store.’ It’s not that I hadn’t heard that before. But this, coming out of high-school kids’ mouths? ‘This is really a sad day in America,’ I said, ‘that you can justify murder because of somebody’s occupation. I really feel sorry for you but if you don’t like the time in Prop 21, the bottom line is, don’t do the crime.’ And with that I walked off the stage. Not one teacher there tried to correct these kids. None of the ACLU people tried to correct these kids. This is what they’re allowing to happen to our society.”

Admitting both bravery and lunacy, Elvey has during National Crime Victims Week spoken three times at the correctional facility in Chino, hoping to reach felons about her plight as a victim. Each time they have booed her. “These kids,” she says, “are the older kids. They’re bad. [The wardens] got up and tried to make them shut up, and I tried to get up again, and they started in again. So they hauled off some of them. Then I gave the shortest speech I’ve ever given. But [their behavior] shows the school [Chino] what these kids have not learned. They’re showing their true colors.” People ask her why she endures the abuse of such forums in high-schools, at the University of California-Berkeley Law School, and the Chino reformatory. “Someone’s got to give them our side of the story,” she responds, which is closely followed by that springy unfunny laugh of comeuppance.

Why, I ask, is our society so insensitive to victims?

“I look at the TV shows,” she says, “and they never show what victims go through. All they show is the crime, then the search for the perpetrator, and maybe the trial. The victim’s life is never thought of once they’re out of the press. You know 99 percent of the crime doesn’t get in the press. I had a guy come to a North County candlelight vigil and ask me who the newest victim was. I said, ‘I’m not going to tell you. We’re all victims. It doesn’t matter whose blood.’ You’re old news. You’re not fresh blood.”

Elvey’s son, who is a father, calls his mother, “Grambo.” Her daughter has told Damion Miller that when he murdered her dad, he also murdered her mom. Elvey admits that the work she’s been doing for the past five years has meant “I’m not home much.” She lives in Sacramento so she can keep breathing down the necks of the legislators. She says her absence and her husband’s loss is hard on the grandkids, too, who were very young children at the time of Ross’s death. One wanted to know why they “couldn’t put Grandpa’s head back together and why we couldn’t go to heaven to visit him. There’s so much that happens to families. Our holidays are never the same. My son is the only one who makes me get a Christmas tree when I go down there [to Escondido]. Thanksgiving, Ross used to like to help work on the turkey and the stuffing and smell it cooking. I have not cooked a turkey since then.”

Asked what she’d advise the district attorney in prosecuting the eight Rancho Peñasquitos boys, she says, “Don’t give up, don’t go into plea-bargaining, don’t let these kids off. Somebody’s got to start with them.” She says interviewing the victims and getting their story “out there” is essential. But she understands that few victims are like her. “You have to be a strong victim and some victims aren’t. I knew one [in San Diego] who would just get up and go to the grave every day and go back and go to bed. For a year. It depends on the victim’s fortitude. I couldn’t just stay in bed; I had to figure out how I was going to survive.”