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?

Proposed Court Rule Re: Consent Calendar

The Michigan Supreme Court has proposed amendments to MCR 3.932, the rule governing the consent calendar.  The proposal gives two alternatives.  Alternative A would eliminate the Consent Calendar completely by striking sub-paragraph C.  Alternative B would require a prosecutor’s consent to the use of the consent calendar and would prohibit the court from placing a case for an assaultive crime as
defined in the Juvenile Diversion Act on the consent calendar.  The proposal is in the comment phase at the moment.

It appears supporters and the detractors have lined up on both sides of the issue.  Prosecutors generally are in favor of both options, but would prefer Alternative B.  Defense attorneys and judges have lined up against both alternatives.

Naturally, I am against either proposal.  The consent calendar, as applied, is very similar to the Holmes Youthful Trainee Act (HYTA).  The Holmes Youthful Trainee Act is a diversionary program for defendants between 17 and 21. At the discretion of the judge an offender may be placed on probation for a period of time and if the offender completes probation the case will be dismissed without a conviction. This program has been successful in the adult court.

Similarly, the consent calendar is a type of diversion.  A juvenile offender may be placed on the consent calendar at the discretion of the judge.  A juvenile on the consent calendar is ordered to probation for a period of time and the case is a removed from the adjudicative process.  If the offender completes the probation, the matter is dismissed and it is as if the juvenile was never charged.  The records of the matter are kept private and no report or abstract may be made to any other agency.  If the juvenile does not complete the probation, he or she may be placed back on the formal calendar and adjudicated for the offense.

Prosecutors are purportedly in favor of these amendments because, as at least one prosecutor put it, “The current court rule completely ignores the rights of the victims. The current consent docket also prevents the victim from having their day in court to redress the wrongs committed against them.”  While this is a direct quote from one prosecutor’s comment on the proposal, it accurately summarizes the position of most prosecutors that commented on the proposal.  This argument seems disingenuous to me because MCR 3.932(C)(3) clearly allows the victim to be present at the consent conference and I have not seen any evidence of victims being denied the right to speak at these hearings.

The second argument set forth by the prosecutors is that “the consent docket does nothing but send the message to juvenile offenders that there will be no meaningful consequences for criminal wrongdoing.”  To this argument, I would simply point out that the purpose of delinquency petitions under the juvenile code is not to punish, but to rehabilitate the juvenile.  Currently, Michigan law reflects in part this emphasis. MCR 3.902(B)(1)–(2) state as follows:

The rules must be interpreted and applied in keeping with the philosophy expressed in the Juvenile Code. The court shall ensure that each minor coming within the jurisdiction of the court shall:

(1) receive the care, guidance, and control, preferably in the minor’s own home, that is conducive to the minor’s welfare and the best interests of the public; and

(2) when removed from parental control, be placed in care as nearly as possible equivalent to the care that the minor’s parents should have given the minor.”

MCL 712A.1(3) contains similar language.  I think the prosecutors have either missed the mark or they are not telling the real reason they are pushing for this proposal.  If I had to guess, I would think the prosecutors are not happy with juveniles facing sex offenses being placed on the consent calendar to avoid the requirements of the sex offender registry.   Perhaps it was easier to simply do away with the consent calendar than to ask the legislature amend the Sex Offender Registry Act to include children placed on the consent calendar.

On the flip side of the debate, defense attorneys and judges wish to keep the consent calendar because it provides sentencing flexibility and recognizes that juveniles are less culpable for their actions than adults.

I am opposed to the proposal for three simple reasons:

1) Just as HYTA has been successful for many young adult offenders, I have seen the consent calendar successfully used as a tool to straighten out some kids that were starting on a bad path.

2) If a juvenile does not straighten out and complete the consent calendar probation requirements, they can be placed back on the formal calendar and adjudicated.  Thus, there is no downside to the consent calendar: either the juvenile is rehabilitated on consent or he or she is adjudicated and you try stronger measures.

3) Judges of the family division are elected by the people to make dispositional decisions with respect to juvenile offenders.  Taking one of those tools away from them or putting judges at the mercy of prosecutors creates unnecessary barriers to the rehabilitation of minors.   Further, it seems like a violation of the separation of powers to give the prosecutor a trump card over the judge by requiring the prosecutor’s consent to place a juvenile on the consent calendar.

You can follow the progress of this amendment here:  Michigan Supreme Court Proposed Court Rule Amendments

The Juvenile Lifer Law: The Debate Continues

The Detroit News printed an article regarding the juvenile lifer law today.  The byline reads, “Mich. ranks second in number of young killers behind bars.”  The report cites a study from the University of Texas that says Michigan has the second most such inmates in the country. The report also says Michigan is among the harshest in the way it treats teens accused of major crimes.

“Children simply aren’t as culpable as adults because their brains aren’t fully developed yet, and they are much more capable of rehabilitation,” said Michele Deitch, an adjunct professor at the University of Texas and principal investigator of the study.

The option to sentence juveniles as adults is “harsh” treatment, the study’s authors said. Michigan’s guidelines — unlike most states’ — require a child who is convicted as an adult of first-degree murder to receive the same sentence as an adult: mandatory life in prison without parole.

The report, released this summer, gave Michigan the dubious distinction, along with three other states — Pennsylvania, Florida and South Carolina — of having children most likely to end up in adult prisons, because of mandatory sentencing laws and the ease of transferring juveniles into the adult system or imposing adult sentences.

If you read this blog often you know that I believe Michigan has a duplicitous view of juvenile delinquency.  The statute indicates that the purpose is rehabilitation, but in practice, the law functions more to punish.  Michigan should decide what the public policy is in addressing juvenile delinquency.

You can view the article here: Teen lifers a burden for state’s prisons.

In re Hale – Discovery Violations

I am reviewing some of the past E-Journals from the summer.  With twins, it is sometimes difficult to be diligent in reviewing the E-Journal daily.  This opinion was issued July 23rd and I thought it was worth posting.

Respondent was 11 years old during the incidents at issue and was charged with two counts of CSC I (engaging in penetration with a person under the age of 13).  He was alleged to have penetrated the victim’s anus with his penis.  Respondent filed a motion to dismiss and attached the expert affidavits of five physicians and/or psychologists who opined the prosecution was not in the best interests of respondent or the public.  They opined respondent’s genital measurements were such he was incapable of sexually penetrating the victim and causing the alleged anal trauma, his sexual-acting-out behaviors were normal prepubescent sexual experimentation, and he did not have the capacity to understand what he was doing was wrong.  The referee denied the motion without prejudice.

Later a show-cause hearing was held to decide if the prosecutor should be held in contempt for failing to turn over discoverable evidence. At the hearing, respondent reinvoked his earlier motion to dismiss.  The trial court dismissed the juvenile petition on the basis of the prosecutor’s multiple discovery violations and the expert affidavits attached to respondent’s earlier motion to dismiss.

The CoA held the prosecution’s various claims were without merit and analyzed respondent’s six issues related to the discovery violations.  The court held the prosecutor engaged in repeated discovery violations as to the discoverable items in her possession, notwithstanding court orders to turn them over.  Holding the prosecutor’s “repeated and willful discovery violations” constituted a legitimate basis in and of themselves to dismiss the petition charging the respondent-juvenile with CSC I arising out of his contact with a 10-year old acquaintance/friend, the court affirmed the trial court’s dismissal of the delinquency proceedings.  The court also found a police detective engaged in, at a minimum, inexcusable neglect as to discovery.

The lesson here is that there are serious consequences when the prosecutor decides to play games with discovery.  Make sure you are diligent in getting your discovery requests out and following up with the prosecutor and the court by motion when you are not receiving answers.  Most of my practice is in Oakland County and the prosecutors are very good about getting you discovery, but I am sure there are issues with discovery here and elsewhere.

You can download or view the case here: In re Hale

In Re Gunther – Custody During while under Court Jurisdiction – Unpublished

This case involves a child custody matter and the court’s authority to place a child while under its jurisdiction.  Pursuant to a divorce judgment, mother and father shared legal custody of their two children, with the mother having physical custody.  The children came within the Court’s jurisdiction due to a school truancy petition filed by the school district, alleging both children had missed a considerable number of school days, many of which were unexcused.

After taking jurisdiction, the trial court placed the children with father.  Mother moved for immediate return of the minor children, arguing that the trial court erred in failing to consider the established custodial environment of the children or the best interest factors under the Child Custody Act (CCA).  The motion was denied by the trial court.

On appeal, mother argued that the court should have treated the matter like a change of custody under the CCA.  The Court of Appeals engaged in a discussion of its recent opinion In re AP & BJ regarding the interplay between child custody matters and child protection proceedings.  The CoA held that while the trial court continues to exercise jurisdiction over the children through the juvenile proceedings it is charged with a duty to take measures with respect to children and adults properly within its jurisdiction, including placing the children in the home of a related adult.  If at the time the juvenile court dismisses its jurisdiction over the child it concurrently orders a change of custody, the juvenile court must abide by the procedural and substantive requirements of the CCA, including a more formal determination of the child’s best interests.

My two cents: This was a pretty straight forward decision.  While a child is within the jurisdiction of the Court as a result of a child protection proceeding or juvenile delinquency, the ordinary custodial orders are suspended and the court is vested with those powers ordinarily left to the custodial parent(s), including the authority to place the child.  The public policy behind this is sound because in an ordinary custody case, maintaining the child’s established custodial environment is favored.  When there jurisdiction under delinquency or a child protection proceeding, there has been some failure of the established custodial environment to protect the child or the public and the state must intervene.  Thus, the status quo is not favored and the approach under the CCA does not apply.

You can view or download the case here: In re Gunther

In re Abdullah – Delinquncy – CSC

Respondent, a 16 year old juvenile, appealed from an adjudication of CSC 3rd degree and placed in a juvenile facility.  The only charge against the respondent was one count of first-degree criminal sexual conduct, MCL 750.520b(1)(g) (CSC I). The complainant, who was six days shy of her twenty-first birthday on the date of the incident, testified that she passed out in the basement of respondent’s family’s apartment following a night of heavy drinking, and awoke in the morning to find respondent sexually penetrating her.  She could not recall the events between 3 a.m. and 10 a.m. and had only minor abrasions and bruising.  No medical testimony was presented regarding the injuries.  Respondent’s testimony was simply that the two  drank heavily and had sex.

During closing arguments the prosecutor asked the Court (it does not appear the matter was tried by a jury) to also consider, in the alternative, CSC III.  Respondent did not object.  The trial court found the complainant was drunk and unable to give consent.  The trial court did not find CSC I for injury to an incapacitated victim because there was no medical testimony to support a finding that an injury occurred.  The trial court did find the respondent guilty of CSC III for engaging in sexual penetration accomplished by force or coercion.

On appeal, respondent did not argue that CSC III is not a necessary lesser included offense of CSC I.  On its own motion, the Court of Appeals held that in this case CSC III was a cognate lesser offense, rather than a necessarily included lesser offense.   They ruled that the the trial court erred by considering the lesser cognate offense of CSC III because it violated the respondent’s due process right to notice that he faced a charge of CSC III.  Consequently, the Court vacated the adjudication and remanded for an order of discharge.

Please note that neither the trial attorney or the appellate attorney (they may have been the same person) raised the issue of the lesser included offense.  The lesson here: know your lesser included offenses.

You can read the CSC I and CSC III statutes here: CSC I, CSC III

You can view or download the opinion here: In re Abdullah

New Link: Calhoun County Juvenile Review

I added a new link to the Links page today.  The Calhoun County Juvenile Review is a review and summary of recently decided juvenile cases which have significant impact on the law.  The reviews are provided by Berrien County Probate Judge Thomas E. Nelson and Cass County Probate Judge Susan L. Dobrich.  They are very well-done and a very useful resource.  Ryan uses them as a reference for his state of the law seminar each year.

From detnews.com: Young sex offenders strain Berrien County budget

I found this little article on detnews.com off the AP wire today.  Apparently, treatment for juvenile sex offenders may not even be spared from the budget axe.

Officials say the cost of treating juvenile sex offenders could push Berrien County Trial Court’s 2010 budget over the targeted amount by $677,000.

Total court spending is estimated at $22.2 million, while the budget target is $21.54 million. A hearing before the county board’s finance committee is scheduled for Sept. 8.

Elvin Gonzalez, administrator of the trial court’s Family Division, says the county currently has 33 juveniles requiring costly out-of-home placement. He says that includes 12 sex offenders needing placement in specialized treatment programs at a cost of $100,000 per year, the average stay required for an effective outcome.

Asked by Commissioner Gloria Gillespie whether the county could provide expanded, less expensive foster care for young sex offenders, Gonzalez said such youths often can’t live in the community.

Juvenile sex offenses have always been difficult for me.  On the one hand, a child who commits a sex offense is in serious need of treatment.  On the other hand , the application of SORA and other aspects of an adjudication, make the impact of an adjudication draconian for the minor.  I believe there must be a public policy decision made regarding whether a juvenile who commits a sex offense can be rehabilitated.  If so, he or she should not be forced to register as a sex offender once successfully released from the Court’s jurisdiction.  It does not serve the public good or the minor to make him or her register as a sex offender if they are not a risk to the community.  If it is not possible to rehabilitate a juvenile sex offender, alter the system to treat juvenile sex offenses in the same manner as adults, where the goal is to protect society from these dangerous individuals and eliminate the pretext of attempting to help them.

Wayne County Juvenile Defenders Contract Cut!

The Wayne County Circuit Court has cut its contract with the Legal Aid and Defender Association of Detroit (LADA), the association that provides legal representation to indigent children in juvenile court proceedings.  The association has represented juveniles in Wayne County for over 30 years.  The contract was worth $2.4 million.  The court had demanded a 20% reduction in the contract and the addition of three lawyers in the program to counteract a $55 million budget deficit for circuit court.  The association offered a 12.5% reduction and no new lawyers, prompting the court to terminate the contract.  The juvenile court plans to appoint individual lawyers to handle LADA’s 3,800 cases.  LADA had requested that the Supreme Court intervene, but the court declined to take up the matter.

It is truly a sad day for juvenile representation in Michigan.  I have long advocated public defender offices for indigent juvenile respondents.  This move puts Wayne County three steps back.  These types of cuts to indigent representation will bring Michigan back to the days before In re Gault, [387 U.S. 1 (1967)] the landmark U.S. Supreme Court decision which established that under the Fourteenth Amendment, juveniles accused of crimes in a delinquency proceeding must be accorded many of the same due process rights as adults such as the right to timely notification of charges, the right to confront witnesses, the right against self-incrimination, and the right to counsel.

As court budgets throughout the state are increasingly strained due to the current economic climate, watch for more cuts to indigent representation, including GALs for incapacitated adults, representation for parents and children in child abuse and neglect matters and criminal defense.  Cutting indigent representation is a much easier way for a court to meet its budget task than laying off court staff.  It is much more difficult to look at someone you have worked with for years and tell them not to come into work tomorrow than to simply cut a contract.  While I understand how difficult these choices can be, these children have a right under the United States Constitution to competent legal counsel and that costs money.  If courts continue in this direction, I smell a lawsuit brewing similar to the case recently settled by Michigan DHS brought on behalf of foster children.

ACLU Report: Reclaiming Michigan’s Throwaway Kids: Students Trapped in the School-to-Prison Pipeline

Last week, the American Civil Liberties Union (ACLU) of Michigan released a report entitled “Reclaiming Michigan’s Throwaway Kids: Students Trapped in the School-to-Prison Pipeline,” which argues that there is trend among school districts to enforce disciplinary policies and practices that expel students from schools without regard for the long-term impact.  The report defines the “the school-to-prison pipeline” as a statistical correlation between students who are expelled or suspended from school and the likelihood they will be incarcerated as adults.

The ACLU argues that race also plays a factor in the findings.  Mark P. Fancher, ACLU of Michigan Racial Justice Project staff attorney and principal author of the report, said “we found that black kids are consistently suspended in numbers that are considerably disproportionate to their representation in the various student populations.”

The study found that one significant contributor in Michigan’s school-to-prison pipeline is a lack of “due process.”  Suspension and expulsion policies and procedures to remove students from Michigan’s public schools vary from district to district.  The ACLU argues that a uniform policy should be adopted for all school districts to follow statewide.

The study also blames Michigan’s zero tolerance expulsion law as contributing to the school-to-prison pipeline.  Michigan law  requires the expulsion of students who possess a “dangerous weapon.”  In many instances, well behaved, unsuspecting students have faced serious consequences for carrying items that do not necessarily reflect this definition.

Information within the report was obtained through Freedom of Information Act requests to school districts across the state, interviews with students, parents, and educators; information obtained while providing advocacy work to students facing discipline; scholarly reports and studies; legal analyses; and information collected while providing aggrieved students with legal representation.

The ACLU recommends amending Michigan’s expulsion law to conform more strictly to the scope of federal requirements by making only firearm offenses subject to mandatory automatic expulsions. In addition, school administrators should explore alternatives to suspension and expulsion, including restorative practices to correct the problem rather than punish the deed. Other ACLU recommendations address alternative education and offer guidelines on when to involve the criminal justice system with disciplinary matters.

While I am sympathetic to the points made by the ACLU, I think they go too far.  While I understand the notion that students who present discipline problems are entitled to an education, I would also argue that all students have a right to an education.  This education should be free from distraction, harassment and violence caused by other students.  The ACLU’s recommendation that only firearm offenses should be subject to automatic expulsions is absurd.  Under the ACLU’s position, students in school should feel safe from gun violence, but expulsion for a good old fashioned knife fight (ala West Side Story) is going too far.  The simple truth is students who are disruptive and violent should be removed from the classroom to give an opportunity for the rest of the students to have a quality education.  We should not hinder the entire student body’s education because of a few bad apples.

Further, many of these students would be removed by the juvenile justice system and not because of any action by the school district.  I feel compelled to point out that the prosecutor has the authority to prosecute juvenile offenses.  Thus, the school district has very little to say about whether the criminal justice system becomes involved.

If you would like to download and view the report, click here: Reclaiming Michigan’s Throwaway Kids: Students Trapped in the School-to-Prison Pipeline