By Jo Mathis & Tom Gantert
Judge Joe Burke says there are many things he misses about being a prosecutor.
But deciding whether to charge juveniles as adults is not one of them.
''It was terribly difficult, for all the reasons you might imagine,'' said Burke, who was an assistant prosecutor in Washtenaw County before he was appointed to the 15th District Court in Ann Arbor several months ago.
An ACLU-Michigan 2012 report released this month on juvenile sentencing is highlighting the law that requires sentencing people between the ages of 14 and 17 convicted of an offense involving a first-degree homicide to life in prison without the opportunity for parole.
Jackson County Prosecutor Mark Blumer said prosecutors don't have to charge juveniles as adults, but believes they should retain the right to do so.
"And I think it is appropriate," he said. "We make the initial determination on primarily two factors--the criminal history of the individual at the time of the new crime and also the circumstances of the crime itself."
Blumer believes that some juveniles as young as 15 should be charged as adults in heinous crimes.
"I'm one of those people who believes there is such a thing as a hopelessly vicious juvenile who can only be treated appropriately by the adult court system," Blumer said.
Blumer recalled a 15 year-old rapist whom he considered "hopelessly vicious" and certain to remain so.
"That doesn't mean that all juveniles that commit these crimes are that way," he said. "Just because these kids are 15 and 16 years old, doesn't mean they can't have an adult viciousness already established and it has to be treated as so by the court system."
The 38-page ACLU report noted the fiscal and human costs of juvenile life without parole sentences, and noted that Michigan incarcerates the second highest number of people serving life sentences without parole for crimes committed when they were 17 or younger.
"As parents, teachers and older siblings, we inherently understand that kids are fundamentally different than adults," said Deborah LaBelle, the principal author of the ACLU report, in a statement. "They are impulsive, inexperienced, vulnerable to mistreatment, and are not able to easily escape or cope with abuse and other trauma. While there is no denying that youth must be held accountable for actions, as a state, we can do better than sentencing them to die in prison."
But the National Organization of Victims of Juvenile Lifers (NOVJL), with a Michigan branch in Davisburg, criticized the ACLU report.
"Advocates for the offenders have misrepresented the brain science, the number of offenders serving this sentence, and worst of all, often the very facts of these horrific crimes," said NOVJL President Jennifer Bishop Jenkins, in a statement. "Victims' families have been re-traumatized by the offender's versions of these crimes in their crusade across the nation. They use phrases like 'children sentenced to die in prison'--nothing could be further from the truth. The fact is--the only people in this scenario with the death sentence were our murdered loved ones."
In a telephone interview with The Legal News from her Chicago office, Jenkins said the Michigan ACLU has a habit of interviewing criminals and simply believing their stories, no questions asked.
"This is why we went after this report--I've never done this in any other state," said Jenkins, whose sister, sister's husband and their baby were murdered by a teenager in suburban Chicago 22 years ago.
Jenkins said natural life sentences for murder should always be rare, but that an offender of any age deserves a natural life sentence if they show profound culpability and heinousness in an aggravated homicide or multiple homicides, and are not likely to ever be deemed safe for release.
Ann Arbor criminal defense attorney Steve Tramontin says the harshest results seem to occur when a juvenile is charged and convicted as an adult with first-degree felony murder, which is when a homicide occurs during the commission of a felony.
"The defendant need not be the principal actor, or in some cases even physically present during the killing, to be held criminally liable under an aiding and abetting theory," said Tramontin. "The offense carries a mandatory life sentence. Advising any defendant that they can be held responsible for a murder that they did not plan, or physically commit, is difficult. The challenge is even greater when representing juveniles who often lack the maturity and life experience to accept a plea offer carrying far less dire consequences."
David Lady, a prosecutor for 30 years before becoming a defense attorney seven years ago, said he doesn't have a problem with charging some juveniles as adults.
In one crime in Jackson County, Lady said a juvenile stabbed and killed a neighbor girl until the knife broke off in her body. Then the juvenile went and got another knife. The killer was convicted of second-degree murder and given life in prison and will be eligible for parole.
"There are unfortunately some very hardened young people in that bracket that the juvenile system cannot handle," Lady said. "There are also some in that age range that commit such brutal and horrible crimes that they simply must be segregated from society."
Washtenaw District Court Judge Chris Easthope, who doesn't sentence juveniles in any capacity, said that judges use discretion when available and appropriate.
"While I'm sure there are many Circuit Court Judges that may or may not agree with the practice, those judges understand that charging a juvenile as an adult is completely within the discretion of the executive branch, and the sentencing guidelines are a function of the legislative branch," he said.
The issue is a difficult one, said Jackson attorney Brad Brelinski.
"I don't know what the answer is," he said. "My concerns are you are dealing with a child. And every child is different. So when there is discretion available on how a child is treated, it seems like there is room for error. When you are talking about someone's liberty for the rest of their life ... that is an extreme responsibility."
Published: Mon, May 28, 2012
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