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March 17, 2013

Comments on Steubenville outcomes: "Juvenile Court is supposed to be better than this"

Steubenville-rape-case-wide-landovMy Ohio State College of Law colleague Kimberly Jordan, who helps runs OSU's Justice for Children Project, sent me the following interesting (sentencing-related) comments following today's verdicts and sentences in the (surprisingly?) high-profile juvenile sex offense case in Steubenville, Ohio:

The intersection of social media, teen drinking, small town football, and sex led to two young men, Trent Mays and Ma’lik Richmond, being adjudicated delinquent in juvenile court this weekend -- the equivalent of a guilty finding if the boys had been adults at the time of the incident.  Their being found guilty is not a huge surprise; the prosecution did a tremendous job pulling thousands of text messages and social media posts to make their case.  The surprise is that the court failed to adequately address their disposition, or imposition of the sentence.  From all appearances, no investigative work was done by the court post-adjudication.  That means no pre-sentence investigation, social history, or risk assessment tool was utilized to determine what punishment was appropriate for these boys.  Their attorneys, in prior hearings, had presented letters and documents to the court to argue for their pre-trial release, but did not have the opportunity today to present any witness testimony or other information before Judge Lipps ordered them remanded to juvenile prison.

This is one unique function of juvenile court; judges are given wide latitude in fashioning a disposition that serves to meet the needs of the child and hold him accountable for his offense.  As an attorney, though, I am shocked at the serious deprivation Trent and Ma’lik are now facing, without any attention paid to their mental health, possible intervening life circumstances, prior participation (or not) in rehabilitative services, and individual strengths and weaknesses.  Yes, they did the crime, but juveniles are not subject to mandatory sentences.  Trent and Ma’Lik were not tried as adults.  They could have been, having been charged with the serious crime of rape.  The prosecutor handling the case for the State of Ohio has the discretion whether to ask the juvenile court to bind over, or transfer the juvenile’s case to adult court.  Certain categories of offense are automatically transferred, but rape is not one of them (the legislature could certainly include it, but has wisely left transfer for the murder categories of crime).  In order for the juvenile court to exercise discretion to transfer a case to the adult criminal court, it must make a finding that the particular juvenile is not amenable to juvenile court treatment.  Given that Trent and Ma’lik had never been in trouble with the juvenile court before, this likely would have been an uphill battle for the prosecution.

Since the case stayed in juvenile court, only juvenile court sentences -- called dispositions -- were available if the boys were found guilty.  Here, Judge Lipps utilized the most severe punishment possible for Trent and Malik -- commitment to The Department of Youth Services (DYS), or juvenile prison.  Both boys will be assessed for their treatment needs once at the facility, including undergoing assessments to determine their level of risk for re-offending in a sexual manner.  They will be treated like inmates, but they will also go to school and receive counseling, likely both in groups and as individuals.  Their stay at DYS will be determined by the amount of progress they make in meeting their treatment goals. Trent, however, will serve a minimum of two years in DYS, while Ma’lik will serve a minimum of one year.  They can both be held until they are 21 years old.

Some might wonder whether a 4-5 year juvenile sentence is enough punishment for these boys’ actions.  In Ohio, juveniles can be sentenced to both juvenile and adult time if they are deemed “Serious Youthful Offenders.”  Again, the individual prosecutor handling the case has the decision making power; the ultimate determination is made by the juvenile court.  The court has to decide that, “given the nature and circumstances of the violation and the history of the child, the length of time, level of security, and types of programming and resources available in the juvenile system alone are not adequate to provide the juvenile court with a reasonable expectation” that the purposes of the juvenile court will not be met. O.R.C. 2152.13(D)(2)(a)(i).  This boils down to a judge believing that the juvenile court’s punishment will not be enough to either rehabilitate the child, or is not adequate to hold the child accountable for his actions, or both.

Regardless of whether the boys serve anywhere close to the maximum sentence, there will be a determination, at the end of their prison stay, about whether they will have to register as sex offenders.  That determination is rightly made after the provision of rehabilitative services at DYS.  At the time of their release, the court will hold a hearing to determine the effectiveness of their treatment, and determine whether registration is necessary to protect the public.

Juvenile court was the right place for Trent and Ma’lik.  Regardless of the circumstances surrounding them in Steubenville football and politics, their actions were ones of teenagers.  Criminal, hurtful, and horrid acts, but ones that they can learn from.  They are not hardened criminals and their lives are not over.  Hopefully, their future interactions with the court, in addressing their treatment and possible registration issues, will be more focused on their individual rehabilitative efforts, so that all is not lost for these young men.

March 17, 2013 at 07:56 PM | Permalink


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So which copypasta rant from 'Supremacy Claus' will be posted on this article? The one about how these football players are obviously guilty of a bunch of unreported crimes and should have been executed years ago? The one about how they're completely innocent but the "evil feminist lawyer" broadened the definition of rape in order to destroy families? The one about how the defense attorney should have made an overbroad discovery request against the prosecutor and the judge to turn it into a trial of their motives? Or something else entirely?

Posted by: predictive anon | Mar 17, 2013 10:39:54 PM

The most shocking, disturbing aspect of this case? The bystanders. The overwhelming majority did nothing or encouraged the crime, and degraded the victim in tweets and facebook entries.

I would like to see all law abiding citizens get weapons training, and have a duty to kill. If they witness a violent crime without pulling out a weapon, and threatening to shoot, or actually shooting the criminal, there should be a $100 fine. The American male has been pussified by the feminist lawyer. The rent seeker will deter all anti-crime self help to preserve do nothing, worthless government jobs, dependent on not scaring the criminal.

Posted by: Supremacy Claus | Mar 18, 2013 4:01:21 AM

Anon: Please be fair to me, and recognize that I have proposed innovative concepts for both defense and prosecution. I advocate a busy death penalty, but also argue that general deterrence, if it exists, is a violation of procedural due process right to a fair trial.

I advocate for empiricism, a zero crime rate, accuracy and effectiveness of enforcement, tort liability for self immunized government rent seekers to prevent justifiable violence against them. If the public is oppressed by the lawyer hierarchy, the lawyer is doubly oppressed, and the regular judge triply oppressed. So the eradication of this criminal cult enterprise syndicate will be good for lawyer and judge.

Posted by: Supremacy Claus | Mar 18, 2013 5:41:07 AM

I was wondering if you could advise about the sex offender registry in Ohio. Will these minor-offenders have to register? CNN is reporting they will, but a friend pointed out that seems inconsistent with many juvenile adjudication schemes.

Posted by: Sarah Jessica Farber | Mar 18, 2013 10:11:26 AM

Professor Jordan's commentary raises, among other things, interesting issues about the quality of the boys' representation at disposition/sentencing. Fortunately, Barbara Fedders of UNC recently published a new article about this very topic: "Defining the Role of Counsel in the Sentencing Phase of a Juvenile Delinquency Case," 32 Child. Legal Rts. J. 25. (Full disclosure: I helped research this article while in law school.) Folks interested in this case, or in delinquency sentencing more broadly, might find this interesting reading.

Posted by: Drew Kukorowski | Mar 18, 2013 10:37:41 AM

predictive anon --

1. SC's view of the world is a bit odd, certainly as I see things. Still, it might be best to rememhber that neither SC nor any other commenter is the subject of this blog. Taking shots at other commenters doesn't really advance the ball. I might add that SC, for whatever his oddities may be, never goes ad hominem.

2. As to these juvenile rapists, at least they're guilty. This differentiates them from the Duke lacrosse rape defendants, who were utterly innocent. They were indicted by a corrupt prosecutor, Mike Nifong, so that Nifong (a white) could curry favor in his primary campaign among his largely black, race-huckstering Democratic constituency.

Posted by: Bill Otis | Mar 18, 2013 1:01:23 PM

sorry anon but i have to give SC this one!

"I would like to see all law abiding citizens get weapons training, and have a duty to kill. If they witness a violent crime without pulling out a weapon, and threatening to shoot, or actually shooting the criminal, there should be a $100 fine."

just think how many school shootings or other mass attacks could have been stopped almost immediatley if each addult in the area not only had a weapon but the training and ability to use it.

Posted by: rodsmith | Mar 18, 2013 3:07:13 PM

Good news:

People of various stripes have criticised Good Morning America and CNN's Poppy Harlow & Candy Crowley
for their displaced affection for the rapists, e.g.

"Incredibly difficult, even for an outsider like me, to watch what happened as these two young men
that had such promising futures, star football players, very good students, literally watched as they
believed their lives fell apart,” said HARLOW.
CROWLEY turned to legal expert Paul Callan, who sounded almost apologetic when explaining how
the rape conviction will mean that the Steubenville rapists will now be registered sex offenders
and how that “will haunt them for the rest of their lives.”

At times, basic human decency still prevails, just not over the CNN airwaves, but in this case: The Atlantic, The Blaze, Gawker, & the Ohio AG.

o 3.19.13 UPDATE: Police Arrest Two Teens for Making Death Threats Over Steubenville Rape Case… Against the 16-Year-Old Victim

So the rapists have plenty of support, including Coach Hubbard, who falsely accused the victim {http://www.theatlanticwire.com/national/2013/01/steubenville-high-football-rape-crew/60554/}.

Posted by: Adamakis | Mar 19, 2013 10:04:49 AM

Great content, I'm waiting for more usefull informations.

Posted by: Projekty domów jednorodzinnych | Mar 19, 2013 3:48:08 PM

these little angels get 1 year for a group rape and someone is complaining that they are being treated too harshly??? and they might not even have to register as sex offenders despite being way psat the age where they should be expected to know that a forcible group rape of an intoxicated girl is not acceptable and could send you to prison. i see the fact that these little angels only got a year for rape and maybe not even having to register as sex offenders as yet another example of young men privileged due to playing football getting a break.

one such little angel who was a football star at my high school repaid society for those repeated "boys will be boys" breaks he got because he was a football star by murdering someone. he had about 5 juvenile arrests before the murder, but he made the all district team so it was okay. and his parents and coaches said that he was a good kid.

Posted by: Erika | Mar 19, 2013 5:22:52 PM

If they are on the registry for life, that will be worse than if they had to spend the next 20 years apiece behind bars and not be required to register following that release. They can start lives in their late thirties with only their guilt of the past crime, but with the registry, they will never have any job that allows for promotion or interaction with the public at large.

This is not a complaint; rather, it is a stark assessment of the punitive, non-regulatory aspect of the registry itself. Truly a sticky wicket, agreed.

Posted by: Eric Knight | Mar 19, 2013 7:34:07 PM

Eric, i'm pretty sure what the answer would be if you asked them if they would prefer a 20 year prison sentence and no sex offender registration or a 1 year prison sentence and sex offender registration for life. if life on the sex offender registry was really so intolerable and worse than prison there would be lines of sex offenders clammoring to get back into prison. Considering that a person on the sex offender registry can be sent back to prison merely for failing to register it would be very easy for them to do so without even having to resort to robbing a bank with a squirt gun or something. Yet you claim that the reoffense rate of registered sex offenders is low which if true would mean that there obviously aren't lines of registered sex offenders trying to get back into prison

Posted by: Erika | Mar 20, 2013 9:47:02 AM

Amen x 2

Posted by: Adamakis | Mar 20, 2013 12:11:44 PM

Eric Knight (Mar 19, 2013 7:34:07 PM):

I found your post rather interesting and it made me think quite a bit about how much prison time I would exchange in return for getting off the hit list (I actually felt surprised that I had never really thought about that before). I spent just a little bit of time in jail but I would trade multiples of that in prison time in exchange for getting off the hit list. The hit list is certainly more punishment than a considerable amount of time in prison. I think all people on the hit list would exchange some amount of time to get off of it, the only question is how much.

As far as what you said about these guys who were convicted, they very likely could be better off by spending 20 years in prison, followed by no hit listing. I think it is very hard to say. I am absolutely certain that some people react very, very poorly to being unemployed and homeless, even to the extent that they murder people. So who is to say that these guys would not do that? And that would likely not end as well for them as 20 years in prison would. So, no one knows.

I haven't read your background very carefully but I feel that you are in contact with a large number of people on the hit list. People on the hit list must resolve to have normal, happy, and successful lives and to crush anyone who stands in their way.

They should not rely on the scumbags who support the hit list to give them jobs, housing, or anything else. They need to become the people who supply that to other people. Then they can harm the people who support the hit lists and that is the fun part. And just like every other persecuted group in history has done, people who are on the hit list need to band together and wage war. People on the hit list should only help people who are on the hit list and no one else; in every aspect of life. If you need something done, find people on the hit list that will do it and hire them. Why hire un-Americans?

Every time and in every way imaginable that I feel the hit list interferes with my life, I retaliate for it. Even a simple, brief phone call will cost the criminal government over $150. I have a good life and I am quite capable of legally retaliating for all the harassment that the hit list gives me. If the hit list had me unemployed and homeless, I think there would be huge problems. I can easily see a person in that situation murdering many people and moving to a better country. Perhaps the people who support the hit lists think it is worth the deaths of many people in order to move one "sex offender" out of the U.S.? Maybe. I truly believe only naive or hateful people support the hit lists. Few smart people do.

Posted by: FRegistryTerrorists | Mar 21, 2013 9:15:31 AM

how true. Just look at the new lindsay lohan mess. She has been dealing with low lvl charges via probation now for what 3 years and it's never going to end. now looking at another 2 years of it minimum.

Think wherer she'd be now if back then she had told them to take their probation and community service and get fucked!

Send me to prison!

no matter what she'd have gotten considering calif's fucked up prison system she would have done 10% maybe and been free and clear!

At the very least you would have figured she'd have done that this last time. No way i'd have agreed to MORE probation/community service after the last mess.

Posted by: rodsmith | Mar 21, 2013 11:35:05 AM

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