Criminal Justice Section  

    Criminal Justice Magazine

Criminal Justice Magazine
Spring 2000
Vol. 15, Issue 1

Juvenile Justice

Robert E.Shepherd, Jr.

Sentencing a Child for Murder in a "Get Tough" Era

On January 13, 2000, Judge Eugene Arthur Moore of the Oakland County Family Court in Pontiac, Michigan, sentenced 13-year-old Nathaniel Abraham for the second degree murder of another young man that had taken place two years earlier, when Abraham was 11 years old. Judge Moore decided to utilize a juvenile disposition in spite of Abraham's trial and jury conviction as an adult because of his view of the relative merits of the two systems for a child just entering adolescence. Although it has been edited to fit the space in this column, the judge's eloquent opinion speaks volumes about the Solomon-like dilemmas presented to many judges by the "get tough" legislative enactments of the past decade. What follows is excerpted from the opinion of a jurist who has been honored by his peers in the past with election as president of the National Council of Juvenile and Family Court Judges, among other honors.

Sentencing opinion in People v. Abraham

The 1980s saw a rise in juvenile crime and especially in crimes of an adult nature committed by juveniles. In response the legislature enacted tougher and tougher laws aimed at treating children more like adults and subjecting them to adult penalties. The motivation was that society expects even children to be accountable for their actions. The way to stop juvenile delinquency and criminal activity is to hold offenders accountable. This works on the theory that individuals will be deterred from future criminal behavior if they are held accountable for their actions and know that consequences will follow. Likewise, it is thought that others in society will be dissuaded from illegal actions because they see what has happened to people convicted of crimes.

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In deciding whether to impose tougher sentences on juveniles, we must also look at what are the causes of juvenile crime. This question should be debated and analyzed by everyone interested in helping children and reducing crime. It is a community problem with community solutions. No court system, in isolation, can solve this problem. Only when the community comes together and recognizes the problems and factors that contribute to crime will we be able to tackle the problem.

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We have an increasing number of children born to very young single parents who simply aren't equipped emotionally or financially to rear children. We have a generation of youth who are being bombarded by images and messages of violence. Movies, TV, music, and especially video games are teaching our children violence. Kids are exposed to violence without attaching any sort of ethical or moral value to it. The message of many popular video games is that it is desirable to brutally maim, shoot, and kill people. Conflicts are to be resolved with violence. And to further confuse the sponge-like minds of our youth, there is certainly no message of permanence or gravity. With a flick of the restart button all the characters are alive again and the carnage can start all over. There are no lessons about compassion, compromise, empathy; no exposure to the grief of the families that are affected. Violence is made neat and clean and detached. When kids are bored they use violent games, music, and shows to occupy their time. There must be better experiences and messages for our children.

We live in one of the wealthiest counties in the entire nation. We have some of the finest juvenile programs in the country. But we must do more. Individually and collectively many enjoy great wealth and prosperity. Why, then, can't we boast of having the best services for children in the country? Somehow we have lost our sense of social responsibility. We can't afford to live in isolation, closing our eyes to the plight of many of our youth. Children like Nathaniel can't reach out for help and be placed on a waiting list for six months. To a child, six months is a lifetime. Just as immediate consequences for one's actions are necessary, so is immediate intervention at signs of trouble. If we want to be safe from the kind of crime that Nathaniel committed we must be prepared with our efforts and wallets to help create and fund programs to stop this tragic waste. Children, and the potential each possesses, are our most precious resource. We must collectively guard, protect, and nurture them. We need better-trained parents. We need mentors. We need big brothers and sisters. We need more recreational programs and youth groups. We need more counselors for children and families. We need more foster care homes and more support for these generous families. We need better schools. Any effort that touches the life of one of our children in a positive way is a vital and indispensable piece to the puzzle in stopping juvenile delinquency and criminality. We must enlist the financial support of our privileged individuals and local corporations, as well as the individual efforts of many, to help create and fund effective programming for kids. It is only by intervening now and helping to develop mature, responsible, caring, empathic children, that we can assure a safer society. What we sow today, we will reap in the future.

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Instead of increasing support for prevention programs, many said "get tough." As a result of the "get tough on kids" policy we saw changes in our "waiver" statutes. The waiver age was reduced in Michigan from 15 to 14. In addition, prosecutors were given the discretion to bypass the juvenile court waiver process in which the juvenile court judge had a full hearing, taking testimony to measure against certain standards, in order to decide where the child should be tried. At these waiver hearings the court looked at the child's past record, the seriousness of the crime, the child's pattern of living, and the programs available in the adult system versus the programs available in the juvenile system. Instead, for certain serious crimes, prosecutors alone, without a hearing, could make the decision of where to try the accused child, in the criminal court or the juvenile court. Even more recently, the legislature determined that, if the prosecutor chose a trial in the adult criminal court, the child, if convicted, would have to be sentenced as an adult. No discretion was given to the sentencing judge to decide to use the juvenile system. "Get tough" continued to be the cry of many!

This is not to say that the adult system of incarceration is not vital to our society. We need immediate protection from dangerous individuals. But the message is that we need to look also for more long- term, systemic answers to crime in our society. The legislature's response to juvenile crime is a very shortsighted solution. If we put more kids into a failed adult system, although we may house them where they cannot do any damage for a period of time, we should not be surprised when they emerge, upon their inevitable release, as more dangerous and hardened criminals. Instead of spending money building more prisons, we should be spending money preventing crime and rehabilitating youthful criminals.

Prevention and rehabilitation are the foundational elements of the juvenile system. The juvenile system recognizes that children are our most precious commodity. They are our hope for the future. If we prevent the criminal mindset from taking hold of our youth, then we, in turn, prevent adult criminals from coming into existence. If we rehabilitate those youths who have committed criminal acts, we are making ourselves safe both now and in the future.

Not satisfied that we were tough enough, in the 1990s the legislature went one step further and enacted . . . the basic statute in the case at hand. Under this statute, the prosecutor can elect to have the child tried in the juvenile court as an adult and if [he or she is] convicted, sentenced in one of the following three ways at the discretion of the judge: . . . as a juvenile, with release at the latest at age 21 . . . as an adult subject solely to adult penalties and punishment . . . [a] blended sentence-initially sentence as an adult but delay the adult sentence, first placing the child in the juvenile system.

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To many, this is a reasonable statute. Don't ask the judge to look into a crystal ball today and predict five years down the road. Give the juvenile system a chance to rehabilitate. Don't predict today, at sentencing, whether the child will or will not be rehabilitated, but keep the options open. At 21, have a hearing and see if the person (at 21, now an adult) has changed for the better. If yes, release; if not-if still a danger-impose an adult sentence.

The stickler is that while the legislature placed a minimum age of 14 for judicial waiver and also set a minimum age of 14 for prosecutorial automatic waiver, there was no minimum set for the statute under which Nathaniel was charged. Thus, we try a child, 11 at the time of the crime, as an adult in the juvenile court (now called the family court). We subject him to the three dispositional alternatives I listed above, including a possible sentence today of up to life in prison.

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Obviously, we must deal with the law that we have. We have a child convicted of second degree murder committed when he was 11 years old.

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Should Nathaniel be sentenced today as an adult? If we say "yea," even for this heinous crime, we have given up on the juvenile justice system. Can we be certain that between now and the time he turns 21 that we can't change his behavior? Must we say today that Nathaniel, at age 13, must be put into an adult prison system? No, the testimony and/or reports are clear that the adult prison system is not designed for youth. It is only a last resort if the juvenile system has failed. Testimony and the psychological examination demonstrate that in the last two years, while awaiting trial, Nathaniel has made progress in the juvenile system. It is also clear that the adult system has very few treatment alternatives for a 13 year old. In addition, at 13, Nathaniel may be subject to brutalization in prison that could destroy any hope of rehabilitation.

As I have indicated, the legislature has responded to juvenile criminal activity not by helping to prevent and rehabilitate, but rather by treating juveniles more like adults. Is this a good option? Is our adult system successfully rehabilitating people? Do our jails release productive, reformed citizens? We all know the answers to these questions. The real solution is to prevent an adult criminal population ever coming into existence. This can only be accomplished by taking advantage of the hope and promise of our youth and nurturing healthy adults.

I think the law Nathaniel has been charged under is fundamentally flawed. It is not my place to make law. I must work with the law the legislature has enacted. However, I urge the legislature to reassess this law. I urge the legislature to lean toward improving the resources and programs within the juvenile justice system rather than diverting more youth into an already failed adult system. I admonish the juvenile court to make sure our courts are not turning away parents who may come to us for help. In sentencing Nathaniel I have to consider the protection of our community now and in the future.

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Does Nathaniel fit the criteria that would make sense under the circumstances demanded by a blended sentence? True he did commit a heinous crime, but he is not a repeat offender. He has not failed in our juvenile programs, but rather has not been given a chance to benefit from them. Nathaniel was also an 11-year-old boy who, by much of the testimony, lacked the maturity and understanding to differentiate between reality and fantasy. He is a boy who has been neglected by his home, our community, and our justice system. He represents our collective failings. He is said to have functioned at a six- to eight-year-old mental and emotional level at the time he committed this crime. When they created this law, certainly the legislature was not saying that any child, no matter what his age, is capable of forming adult criminal intent and should be held accountable as an adult. To take it to the absurd, an infant could be tried as an adult under the current law.

However, if we were to impose a delayed sentence, we take everyone off the hook. Sentencing Nathaniel as a juvenile gives us eight more years to rehabilitate him. We as a community know that he will be back among us at age 21. If we are committed to preventing future criminal behavior, we will use our collective efforts and financial resources to rehabilitate him and all the other at-risk youth in our community. If we commit ourselves to this, we can ensure our safety now and in the future. The safety net of a delayed sentence removes too much of the urgency. We can't continue to see incarceration as a long-term solution. The danger is that we won't take rehabilitation seriously if we know we can utilize prison in the future. To sentence juveniles to adult prison is ignoring the possibility that we are creating a more dangerous criminal by housing juveniles with hardened adults. Adult incarceration is a vital immediate solution to danger, but it does nothing to address future criminality. We have eight years. Together we and Nathaniel can make the difference in his life and the lives of many other children in our community. Nathaniel will begin the next eight years of his life in a secure juvenile facility. Thus our immediate risk of harm from Nathaniel is alleviated. With the right programs and commitment from concerned individuals, Nate can develop and internalize the values that are necessary to be a responsible member of a civilized society.

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Prevention, individualized treatment, rehabilitation, the bywords of the juvenile justice system, are the best we have to offer. Why should the juvenile justice system copy a failed adult correctional system? Perhaps for a few juveniles "get tough" is the only answer. But for the majority it is not. The juvenile justice system has a much higher rate of success than the adult correctional system. In order to protect society some juveniles must be sentenced as adults. But this is a small minority. Most of these children are older and are more set in their criminal pattern. For most youngsters the juvenile justice system is a far better alternative than the adult correctional system. n

Robert E. Shepherd, Jr., is a professor of law at the University of Richmond Law School in Richmond, Virginia, and a contributing editor to Criminal Justice magazine. He is also a former chair of the Juvenile Justice Committee of the Criminal Justice Section.