Criminal Justice Magazine
Spring 2000
Vol. 15, Issue 1
Sentencing a Child for Murder in a "Get Tough"
Era
By Robert E. Shepherd, Jr.
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.
* * *
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.
* * *
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.
* * *
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.
* * *
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.
* * *
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.
* * *
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.
* * *
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.
* * *
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.
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.