Detroit Free Press Editorial: Repeal Michigan’s juvenile lifer law

Today’s Detroit Free Press (3/1/2010) featured an editorial in favor of repealing Michigan’s law requiring judges to impose the maximum adult sentence to juveniles as young as 14.  The editorial is based on the fact that juveniles are less culpable for their crimes than adults. The article points out that “teenagers are more impulsive and unstable than adults, even without the abuse and neglect many young offenders have experienced.” You can view the editorial here (Repeal Michigan’s juvenile lifer law).

Detroit Free Press Covers Juvenile Mandatory Life Sentences for Murder

The Detroit Free Press published a couple of excellent articles regarding mandatory life sentences for crimes committed by juveniles in Sunday’s (2/28/2010) paper.  One article addresses whether children who commit murders should be subjected to mandatory life sentences.  You can find the article here (2nd chance for killer kids?).  The Free Press also wrote an excellent summary regarding how these laws came into being, the various public policies behind them and events that prompted them.  You can find that article here ( State got tough on juvenile trouble-makers in ’80s, ’90s ).

Sexting

Yesterday, I moderated the Juvenile Brown Bag lecture on the topic of  ’sexting.’  I have been working on a blog entry on this subject since December, but yesterday’s lecture inspired me to finish and post it.

With the increased incidents of “sexting” among teens, it seems appropriate to address the issue and the juvenile delinquency ramifications of this activity.  Wikipedia includes a definition of “sexting” (a combination of sex and texting) as the act of sending sexually explicit messages or photos electronically, primarily between cell phones.  Roughly 20 percent of teens admit to participating in “sexting,” according to a nationwide survey (pdf) by the National Campaign to Support Teen and Unplanned Pregnancy.

There have been several incidents of adults and juveniles being charged with felonies for sexting over the past year. Last year, a 14-year-old girl in Michigan was charged with felonies for sending nude images of herself to classmates.

Michelle Simonson, 28, of Oxford was to go on trial, charged with distributing sexually explicit material to a minor and enticing a minor for immoral purposes and had faced up to four years in prison. But in a plea agreement reached 10/30/2009, she agreed to enter guilty pleas in exchange for three months in the Oakland County jail. (You can read the Detroit Free Press Article here).  Police allege Simonson, a teacher at Sashabaw Middle School, sent the 14-year-old boy, a student at the school, a semi-nude picture of herself and about 50 texts over the course of the year.  His foster parents discovered the texts and turned them over to police.

Brandon Figurski, a 20 year old assistant swim coach at Oxford High School, was charged with child sexually abusive activity, using a computer to commit a crime and communicating with another to commit a crime for sending sexually explicit texts to two 15-year-old girls. (You can read the full story on MLive here).

This month, a man accused of sending sexually explicit messages to a 14-year-old girl after visiting her home to set up her laptop computer was charged with one count of using a computer to communicate with another person to commit a crime, a 4-year felony, and one count of attempting to distribute sexually explicit material to children, a 2-year misdemeanor.

Clearly, sexting is pervasive in youth culture in America and law enforcement has taken notice.  So, what are the legal ramifications to children caught sending and receiving these messages?

The law

Under Michigan law, sexting can be a violation of MCL 750.145c, which prohibits the production (a 20 year felony), distribution (a 7 year felony) or possession (a 4 year felony) of child sexually abusive material.  “Child sexually abusive material” is defined as “any depiction, whether made or produced by electronic, mechanical, or other means . . . of a child (a person less than 18 year old) or appears to include a child engaging in [sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity]. ” See MCL 750.145c(b),(h), (m).  The statute includes detailed definitions of each of the prohibited sex acts.

A person that sends a sexting message may also be charged with use of the computer or internet in the commission a sex offense under MCL 750.145d.  Most cell phones today are so called smart phones, which contain computer processors and are wirelessly connected to the internet through the cell provider’s network.  These phones fall within the broad definition of a computer under the statute.

Who can be charged?

To illustrate who can be charged in a sexting case, consider the following scenario: A 15 year old girl takes a nude photograph of herself with her cell phone and sends it to her boyfriend.  He then sends it to three of his friends, who each send it to 10 of their closest friends (for those keeping track, this photograph is now in the hands of 35 people – potentially within minutes of taking the picture).  Who can be charged?  The answer:  everyone.

• The 15 year old girl can be charged with production and distribution of child sexually abusive material;
• Her boyfriend can be charged with distribution and posession;
• His friends can be charged with distribution and possession; and
• Their friends can be charged with possession.

This is a perfectly plausible and all too typical scenario.

The Sex Offender Registry

Another consideration in any sexting case is the requirements under the Sex Offender Registry Act.  MCL 28.721 et seq.  An adjudication  triggers the registration requirements for the non-public registry for 25 years.  A juvenile may also be required to disclose the adjudication on any college or financial aid applications.  As always, if the juvenile is placed on the consent calendar, there is no adjudication and the file is not abstractable to any law enforcement or other agency.

Here are links to the statutes found in this article:

Child Sexually abusive activity: MCL 750.145c

Use of a computer in the commission of a sexual offense: MCL 750.145d

Sex Offender Registry Act: MCL 28.721

People v. Perreault – Searching a vehicle on school grounds

This is a published opinion that was issued last month (January 19, 2010).  I did not report on it earlier because it was classified as a criminal case on the e-journal, so I missed it.  The young defendant in this case was charged as an adult, but the issue in the case dealt with a search on school grounds, which makes it appropriate for this blog.

This case arose out of the search of a student’s vehicle in the school parking lot based on an tip received from an anonymous tip hotline.  The defendant was simply described as a male Caucasian junior who sells marijuana “from school, his truck, and East Bade [sic] Park in Traverse city.”  A week after receiving the tip, the school’s assistant principal searched the vehicle, while being observed by the school’s liaison officer and some other school officials.  The defendant was present for the search, but did not consent to it.  The assistant principal discovered a bag of marijuana behind a seat in the vehicle and the defendant was arrested.

Prior to trial, the defendant filed a motion to suppress the evidence as fruit of an unconstitutional search.  The trial court denied the motion, finding that the anonymous tip alone was sufficient to constitute reasonable suspicion, given the level of detail in the tip.

It is important to note the difference between a search by a school official and a police officer.  The police may search a motor vehicle without a warrant if they have probable cause to believe that evidence of a crime may be found therein. People v Kazmierczak, 461 Mich 411, 418-419; 605 NW2d 667 (2000). However, school officials may search a student’s person or property on school premises on the lesser standard of reasonable suspicion. See New Jersey v TLO, 469 US 325, 341-342; 105 S Ct 733; 83 L Ed 2d 720 (1985).

The Court analyzed the search under the lower “reasonable suspicion” standard and did not express an opinion regarding whether the presence of the officer raised the standard.  Reasonable suspicion requires “articulable reasons” and “a particularized and objective basis for suspecting the particular person . . . of criminal activity.” United States v Cortez, 449 US 411, 417-418; 101 S Ct 690; 66 L Ed 2d 621 (1981).  In “a case involving an anonymous tipster,” whether reasonable suspicion exists “must be tested under the totality of the circumstances with a view to the question whether the tip carries with it sufficient indicia of reliability to support a reasonable suspicion of criminal activity.” People v Faucett, 442 Mich 153, 169; 499 NW2d 764 (1993) (emphasis in original), citing Alabama v White, 496 US 325;110 S Ct 2412; 110 L Ed 2d 301 (1990). An anonymous tip can provide reasonable suspicion if it is considered along with a “totality of circumstances” that show the tip to be reliable. But alone, without any “‘indicia of reliability’” or “‘means to test the informant’s knowledge or credibility’” an anonymous tip is generally insufficient. People v Horton, 283 Mich App 105, 113-114; 767 NW2d 672 (2009), citing and quoting Florida v J L, 529 US 266, 271-272, 274; 120 S Ct 1375; 146 L Ed 2d 254 (2000).

In this case, the anonymous tip was the only basis for the search.  The Court held the tip alone could not be viewed under the totality of the circumstances because there were no other circumstances outside the tip.  The Court also held that the tip itself was vague.  Thus, the anonymous tip alone was insufficient to support a reasonable suspicion.  The Court reversed and ordered the evidence suppressed.

Judge O’Connell dissented indicating that the tip, considered in its entirety, was sufficiently detailed to provide indicia of reliability. He did not share the majority’s view that “corroborating circumstances” outside of the tip must be present for an anonymous tip to be considered reliable.

This case is instructive for any search on school premises.

You can view or download the case here:

• People v. Perreault (majority)
• People v. Perreault (Dissent)

Legislative Update

Below are some of the bills impacting Children’s Law we are following in the legislature along with links to the bills and bill summaries:

• HB 4118 - Gives special consideration for relatives in foster care placement.
• HB 4314 – Requires appointment of attorney in juvenile delinquency cases under (2)(a) and (d).
• HB 4518, HB 4596 – Repeal of Juvenile Lifer Law.
• HB 5174, HB 5175, HB 5482, HB 5483, HB 5484, HB 5485, HB 5486, HB 5487, HB 5488, HB 5489 – Juvenile competency procedures (Note: HB 5174 is not connected to the other bills).
• HB 5676 – Michigan Public Defense Act would create a statewide system of public defense.

I will do my best to continue to update you on these bills as information becomes available to me.

Weapons Charges Against 10 year old Boy

A 10 year old Detroit boy accused of bringing an unloaded handgun to school was charged with a number of weapons violations in Wyane County Family Court.  The incident occurred on January 20, 2010, when another student saw the boy with the gun in a bathroom at Brewer Elementary/Middle School and told a teacher. The teacher took the gun.

The juvenile pleaded guilty last week to possession of a weapon in a weapons-free school zone.   The Wayne County Prosecutor issued a release today that a concealed weapons charge and a charge of minor in possession of a firearm in public have been dropped.

This is a little more than a case of “boys will be boys.”

USDOJ Report on Sexual Assaults in Youth Detention Centers

Earlier this month, the U.S. Department of Justice released survey results regarding sexual assaults in youth detention centers in Michigan.  The data is based on anonymous surveys issued to children in youth detention centers.  The survey revealed that nearly one in four kids said they had been sexually assaulted.  All of the assaults reported were perpetrated by other inmates.  No staff members were implicated in the assaults.  I have excerpted the data from Michigan in the table below:

These results are very alarming.  The offenders in these facilities are there for very serious offenses, which increases the likelihood of these incidents.  However, these facilities must do a better job protecting these children.

You can view the full report here: U.S. Dept. of Justice Survey

Oakland Press Editorial – Oakland County Prosecutor needs to take lead on fighting juvenile crime

Last week (Thursday, January 14, 2010), the Oakland Press published an editorial criticizing Oakland County Prosecutor Jessica Cooper for not being tougher on juvenile offenses.   Ms. Cooper states that there has been an increase in serious juvenile crimes in the county “mainly because of gang activity in Pontiac and in the southern part of the county.”  She adds that the increased serious crimes, budget problems and staffing shortages result in other juvenile cases not getting turned around as quickly.

The article reports that the prosecutor did not follow through on an assault complaint in Waterford Township in which a female teen hockey player struck another player on December 5, 2010.  The father of the victim in the matter is apparently upset because the other player is permitted to continue participating in sports.  The school district has denied the father’s request that the school take immediate disciplinary action, suspend the player and remove her from all sports teams and athletic events.  There was no report that the victim was injured.  Yet, the Oakland Press feels the need to “question why Cooper seems to be taking such a casual approach to an apparently serious incident.”  The report then goes on to criticize the prosecutor for not communicating her actions on juvenile offenses to the public.

Am I wrong here or is this report overly harsh on the prosecutor?  First, I think it would be hard to argue that the prosecutor should give the same  priority to a simple assault as she does a more serious crimes like Armed Robbery.  A good prosecutor should direct her resources to the most serious crimes first.  Second, I am not sure how much she should communicate the rationale behind the use of her prosecutorial discretion.  There are ethical rules that  prohibit her from making public communications that would have a “substantial likelihood of materially prejudicing an adjudicative proceeding .” MRPC 3.6.   Finally, perhaps this issue was better left to the local school board, who did not find the offense serious enough to take action, to discipline the child, rather than as a juvenile delinquency matter.

You can read the Oakland Press Editorial here.

HB 5676 – Michigan Public Defense Act

This week Michigan State Representatives Constan and Amash introduced HB 5676, which would create the Michigan Public Defense Act.  The bill has been referred to the Judiciary Committee in the State House.  It would create a statewide public defense system that includes representation for juvenile delinquents.

Here is a summary of the highlights of the bill with an emphasis on juvenile defenders:

• A state-wide public defender service would be created to provide public defense throughout the state.
  • The state service would provide defense for indigent criminal defendants and juvenile respondents.
  • The bill would allow for contract public defense services.
  • Indigence would be defined as having an income not more than 133% of the federal poverty level.
  • Juvenile indigence would be determined by whether the parents would be eligible for public defense services or if they are unwilling to retain counsel to represent the juvenile.
• A public defense commission would be established to create policy for the state system.
  • The commission would consist of 9 members appointed by the governor.
  • At least one member would have experience representing juveniles in delinquency proceedings.
• A state office of public defense would be created within the judicial branch to administer the system.
  • The state public defender would be appointed by the commission to head the office of public defense.
  • All state public defender employees would be considered employees of the judicial branch.
  • Compensation for full-time public defenders and staff would not be less than the compensation of assistant prosecutors and staff with comparable duties in the region.
• Regional offices would be created under the supervision of a regional public defender.
  • The state public defender would establish regional offices headed by regional public defenders.
  • The bill would allow for contract public defense offices also.
• The bill would create an appellate bureau, headed by a chief appellate defender, to oversee appellate defense.

This bill is a step in the right direction.  I would have liked to have seen inclusion of LGALs and parent representation in child protective proceedings, but these budget times do not allow us to be greedy.

I think the political reality is that the state must adopt some sort of public defense system before the Federal government imposes one.  I doubt Lansing wants Washington to force its hand.  This may motivate the state legislature to take some action on this.  There is additional pressure because the U.S. Justice Department is considering a lawsuit over Michigan’s public defense system.  However, I would not expect the state to act too quickly on this.  The introduction of this legislation may be intended to stall the Federal government (a sub-committee of the U.S. House held hearings on Michigan’s public defense system – or lack of – earlier this year).  The legislature may play a game of kick the can with this legislation as long as it can get away with it.

MIRS, a well-respected Capitol newsletter, reports House Judiciary Chair Rep. Mark Meadows intends to have the legislation passed on the floor in February.  According to Rep. Meadows, the biggest concern is cost.  The goal is to make it expense-neutral for the state.  Currently, counties foot the bill.  Thus, funding would have to come from the counties.

Does anyone have any thoughts on the public defender model of indigent representation? Leave your comments.

You can follow the bill here: HB 5676

Graham v. Florida; Sullivan v. Florida – Life Imprisonment for Juveniles

Last month the United States Supreme Court heard oral argument on two cases addressing whether juveniles may be sentenced to life imprisonment – Graham v. Florida and Sullivan v. Florida. Joe Harris Sullivan, now 33,  was sentenced to life in prison at age 13 for raping a 72-year-old woman in Pensacola, Florida.  Terrance Jamar Graham was 16 when he robbed a restaurant in Jacksonville.  Both prisoners had long rap sheets before they received life sentences.  The issue before the court in these cases is whether the Eighth Amendment’s ban on cruel and unusual punishments prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile’s commission of a non-homicide crime.

Based on the questions and statements by the justices at oral argument, it appears the Court is divided along the typical right / left lines.  Those on the left are looking for a bright line test similar to the one established by the Supreme Court in Roper v. Simmons in 2005, whereby juveniles under the age of 18 could not be sentenced to death.   Those justices on the right, represented by Justices Alito and Scalia, simply do not believe the Eighth Amendment makes any distinctions regarding age.  Justice Roberts proposed requiring trial judges to take age into account before sentencing juvenile offenders to life without parole, a compromise stand that appeared aimed at winning over Justice Anthony Kennedy, who usually is the swing vote on this Court.

The arguments that life sentences for juveniles in non-homicide cases is based on the premise that the punishment does not fit the crime because juveniles are not as culpable for their actions as adults.  This is because of the development of the juvenile brain and life in prison denies any chance at rehabilitation.  The opposing side takes the view that punishment is not the only thing to be considered in criminal sentencing.  The Court must also consider retribution, or the public’s right to punish the juvenile severely for particularly heinous crimes. By closing the door on life imprisonment, the public is denied the opportunity to impose this severe sanction.

Aside from the punishment vs. retribution argument, there is also the issue of whether the Court should adopt bright line tests.  Chief Justice Roberts argues judges should balance the child’s age against the heinousness of the crime.  Both the left and the right see the issue as an all or nothing proposition.  For the juvenile practitioner, it is easy to jump on to Chief Justice Roberts’ totality of the circumstances approach.  We understand that each child’s rate of development is different and we are accustomed to using expert evaluations to determine what level of understanding the child had of his or her crime and what treatment methods would be most effective to rehabilitate the child.  However, we must also be aware of the fact that making case-by-case determinations result in wildly different approaches.  This undermines the predictability that is critical in our system of justice.

These cases clearly have implications on Michigan Law.  Under MCL 712A.18(m), in designated cases, the court “impose any sentence upon the juvenile that could be imposed upon an adult convicted of the offense for which the juvenile was convicted.”  This includes life imprisonment.  Because these cases would directly impact Michigan Law, I thought it was good subject matter for this web site.

What rule do you think the U.S. Supreme Court should use in these cases – a bright line test one way or another or give judges discretion to sentence to life in prison based on the age of the child and other factors?