Pros & Cons: Juvenile Lifer Law

Yesterday’s Detroit Free Press featured two opinion columns regarding Michigan’s juvenile lifer law.  State Senator Liz Brater(D-Ann Arbor) has introduced a package of bills in the Michigan Senate (a similar, pared-down package has received hearings in the House) that would prohibit sentencing a juvenile to life without parole and allow those juveniles who were already sentenced to life in prison without parole to go before the Parole Board to have their case reviewed after 10 years.  She writes a very well researched opinion piece for the Free Press in support of her bills.

She takes the position that when dealing with juvenile delinquents, courts should focus on rehabilitating minors. She writes, “According to National Institute of Mental Health studies, the brain of an adolescent continues to develop through age 25. The area governing reasoning, advanced thought and impulse control matures last, often causing youths to make decisions based on impulse and emotion, rather than logic. The acknowledgement of this difference in maturity, understanding and logic is what led us to have a juvenile justice system to begin with.”

She argues that elected prosecutors, who typically run on “tough on crime” platforms, are not in the best position to determine whether a child should be charged as an adult or as a minor because of the political considerations involved.  She believes that this determination should be in the hands of the judge, a different elected official.  There is some appeal to this argument.  I have never seen a prosecutor use the words “soft” or “compassionate” in their campaign literature.  However, they are elected (just like judges) by a constituency.  Being tough on juvenile offenders may not be a reflection on the personal motivations of the prosecutor, but rather the will of the people.

Finally, Senator Brater argues that rehabilitation of minor offenders would be less costly than incarceration.  The “saving taxpayer dollars” argument is rare for a Democrat.  However, it is not entirely surprising.  Democrats will raise the cost-savings banner when talking about releasing prisoners, cutting military spending or in opposition to the death penalty; but that is about it.

Wayne County Prosecutor Kym Worthy presents the counter-point argument.  She argues that the ability to sentence juveniles to life in prison is necessary to protect society and for the victims of these violent criminals.  She also argues that parole boards are inappropriate to determine whether a juvenile offender should be released because they are unelected and therefore unaccountable to the people.  Kym Worthy’s argument is not surprising.  What is surprising is that it lacks the research of Sen. Brater’s piece.

All in all, I think the purpose of juvenile delinquency is to rehabilitate a minor.  The statute even says so.  Minors are not fully culpable for their actions.  They are still growing, developing and learning.  Kym Worthy is right: incarceration is about protecting the public from dangerous individuals.  However, the public does not need protection from a juvenile offender who is rehabilitated into a fully productive citizen.  Further, incarcerating minors along side seriously dangerous adult offenders will corrupt them into further criminal behavior.  If we incarcerate minors, we will be simply creating a better class of criminal.

Make no mistake, I have represented hundreds of juvenile delinquents and consider some of them more dangerous than many adult offenders.  However, I have to believe that children that are still maturing and developing reasoning, impuse control and decision-making ability should be rehabilitated, rather simply removed from society.

You can read Sen. Brater’s article here.

You can read Kym Worthy’s article here.

Sen. Brater’s bills are  SB 173, SB 174, SB 175 and SB 176.  You can view the bills and their status by clicking on the links.

I should also point out that there is a bill in the U.S. House of Representatives (HR 2289 – Juvenile Justice Accountability and Improvement Act of 2009), which would require states to grant parole hearings for juvenile offenders who are serving a life sentence during their first 15 years of incarceration and every three years thereafter. Any state that did not comply would be denied some federal anti-crime funding.  That bill is currently in hearings in committee.

Brooks v. Starr Commonwealth, et al.

This case deals with the liability of a private juvenile delinquent placement.  The basic facts are as follows: A juvenile delinquent was placed in Starr Commonwealth by Bridgeway Services.  The juvenile escaped and Starr did not notify law enforcement for 100 minutes although bed checks were done every 15 minutes.  MCL 803.306a requires a facility in which a juvenile delinquent is placed to immediately notify law enforcement.

Upon his escape, the juvenile stole a vehicle and caused an accidental death. The estate of the decedent initiated a wrongful death action against Starr and Bridgeway,  Trial court granted Starr’s motion for summary judgment, dismissing the case.  COA reversed and held it was a jury issue whether Starr’s late notification made Starr liable.

Plaintiff brought a common law negligence action against Starr and Bridgeway based on the Restatement of Torts, 2d, § 319. Under a common law tort action, the plaintiff must prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages. Henry v Dow Chem Co, 473 Mich 63, 71-72; 701 NW2d 684 (2005). [Remember duty, breach, causation and damages from law school?] The Court of Appeals held that the common law tort action was properly dismissed in light of the fact that there is no general duty to prevent the criminal acts of third parties. Brown v Brown, 478 Mich 545, 553-554; 739 NW2d 313 (2007).

Plaintiff also brought a statutory negligence claim based a violation of MCL 803.306a, that provides:

(1) If a public ward described in subjection (2) escapes from a facility or residence in which he or she has been placed, other than his or her own home or the home of his or her parent or guardian, the individual at that facility or residence responsible for maintaining custody of the public ward at the time of the escape shall immediately notify 1 of the following of the escape or cause 1 of the following to be immediately notified of the escape:

(a) If the escape occurs in a city, village, or township that has a police department, that police department.

(b) If subdivision (a) does not apply, 1 of the following:

(i) The sheriff department of the county in which the escape occurs.

(ii) The department of state police post having jurisdiction over the area in which the escape occurs.

***

(3) A police agency that receives notification of an escape under subsection (1) shall enter that notification into the law enforcement information network without undue delay.

(4) As used in this section, “escape” means to leave without lawful authority or to fail to return to custody when required.

The use of a statutory violation to establish negligence is a matter of judicial discretion, and evidence of a violation of a penal statute creates a rebuttable presumption of negligence.  Klanseck v Anderson Sales & Service, Inc, 426 Mich 78, 86-87; 393 NW2d 356 (1986). The same rules apply when a party is alleged to have violated a safety statute. Id. That is, the trial court must examine the statute to determine if it was intended to protect against the result of the violation, if the plaintiff was within the class intended to be protected, and if the evidence would support a finding that the violation was a proximate contributing cause of the event. Id. at 87.

The mere fact that a defendant’s conduct may have violated a statute does not demonstrate that a plaintiff owed a duty of care. Cipri v Bellingham Frozen Foods, Inc, 235 Mich App 1, 16; 596 NW2d 620 (1999).  Rather, once a duty is found, the violation of the statute may demonstrate prima facie evidence of negligence. Thus, the plaintiff’s use of a statute to impose a duty of care upon the defendant is contingent upon the statute’s purpose and the class of persons it was designed to protect. Id.

Once evidence of a statutory violation is presented, this presumption of negligence may be rebutted by evidence of a legally sufficient excuse for the statutory violation. Klanseck, supra at 86. In the absence of evidence to support such an excuse, the jury may infer negligence on the basis of the violation. Id. “It is then for the jury to determine whether violation of the statute was a proximate cause.” Id.

The Court of Appeals found that the juvenile had a history of repeated escapes from the Starr facility and a history of assaultive behavior.  Prior to his adjudication, he was involved in gang activity.  Despite this history, Starr housed the juvenile in an unlocked cottage.  Starr violated the statute’s requirement that they immediately report an escape to law enforcement by not reporting the escape for 100 minutes, despite 15 minute bed checks.   The immediacy requirement was designed to prevent harm to the public from an escaped juvenile and plaintiff was within the class of people the statute was enacted to protect.  Thus, there existed a rebuttable presumption of negligence on the part of Starr, which should have been heard by the jury.

Bridgeway has a contract with Wayne County for the “clinical treatment and risk management” of adjudicated juveniles under the county’s supervision. Starr and Bridgeway have a contract under which Starr agrees to accept offenders assigned by Bridgeway for participation in its program, which is a program in compliance with the Bridgeway-Wayne County contract.  Bridgeway sought indemnification from Starr, based on an indemnification provision in the contract between Starr and Bridgeway.  Plaintiff alleged that Bridgeway owed a duty separate from Starr and breached that duty.  The Court of Appeals held that plaintiff’s claims involved active negligence and were independent from those alleged against Starr and that the indemnification provision did not cover acts of Bridgeway’s own negligence.  Bridgeway was required to defend against these claims regardless of Starr’s liability.

Ultimately, a case like this is going to increase the costs of housing juvenile defenders because it has increased the liability and costs to the placement and treatment providers.

Click here to view or download the file: Brooks v. Starr Commonwealth, et al.