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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 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

New Hampshire perhaps poised to become twentieth US jurisdiction to legalize medical marijuana

As reported in this new AP article, headlined "House to vote on medical marijuana bill," there is reason to believe New Hampshire could soom become the next state to legalize medical marijuana. Here are the details:

New Hampshire may take a step closer to legalizing medical marijuana this week, with a House vote scheduled on a proposal that would sanction five dispensaries and allow patients or caregivers to grow up to three adult plants.

An amended version of the bill restricting out-of-state patients from purchasing or growing marijuana in New Hampshire and tightening other language was overwhelmingly approved by a House committee.

The New Hampshire Legislature has previously passed three medical marijuana bills, all vetoed by former Gov. John Lynch. Gov. Maggie Hassan has endorsed a tightly regulated medical marijuana law, but raised concerns about this bill’s home-grow option.

Because eighteen states and DC already have already legalized medical marijuana, the next state to legalize marijuana will be the 20th jurisdiction to do so. This even-number milestone may not be that significant, but I do think it will be especially (and constitutionally?) important if (when?) more than half of all US jurisdictions have legalized marijuana in some manner.

March 17, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack