Opinion: Michigan should be more judicious about separating men from boys

It will likely be months before a judge or jury begins weighing 15-year-old Ethan Crumbley's culpability for the deadly Nov. 30 shootings at Oxford High School.

But the teenager's legal destiny may have been sealed — and any opportunity to correct his young life's tragic trajectory foreclosed — just a day after his arrest, when Oakland County Prosecutor Karen McDonald decreed that Crumbley would be charged as an adult.

McDonald's decision was swift, unilateral and irrevocable. Under Michigan law, no judge or jury can second-guess her determination that Crumbley should be prosecuted — and, if convicted, sentenced — under the same rules that would apply to a defendant twice his age.

After watching four grieving families bury their own children, few have tears to spare for the teenager accused in the shooting. The magnitude of the crimes has exempted Crumbley, at least for the moment, from the public sympathy flowing to victims and witnesses.

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Even so, McDonald's decision to charge Crumbley as an adult should occasion a fresh look at the way Michigan deals with young people — almost always teenage boys — accused of terrible crimes.

Mixed messages

The law and judicial precedents governing juvenile offenders are in constant flux.

Just two months ago, Michigan joined the vast majority of states that have raised the age at which criminal defendants are presumed to be adults from 17 to 18.

Federal law increasingly reflects the scientific evidence that young offenders lack the cognitive tools — or the criminal culpability — of older criminals. The U.S. Supreme Court has barred states from executing minors since 2005, and more recently justices have insisted that juveniles killers sentenced to life without parole be given the opportunity to make a case for parole.

In Michigan and most other states, adults convicted of first-degree murder face a mandatory sentence of life without parole. But if the convicted killer was under 18 when the murder occurred, the sentencing judge is required, per a 2012 Supreme Court ruling, to hold a special hearing in which prosecutors seeking a mandatory life term must prove the teenager in question is "the rare juvenile offender whose crime reflects irreparable corruption.”

Who decides?

Statutes adopted by the state Legislature and court rules adopted by the Michigan Supreme Court establish some basic ground rules for dealing with juvenile offenders, but in practice prosecutors and trial court judges enjoy broad discretion to decide where a particular teenager falls on the continuum from reckless immaturity to adult culpability.

No one keeps reliable statewide data — more about that in a minute — but in Wayne County, whose criminal courts are among the busiest in the United States, prosecutors charge between 4,000 and 6,000 offenders under 18 each year. Michigan's next-most-populous counties — Oakland, Macomb, Kent and Genesee — make perhaps another 8,000 juvenile arrests annually.

The vast majority of those young offenders are handled exclusively in delinquency proceedings overseen by a family court judge. Teens adjudicated as juveniles can be remanded to one of a dozen or so specialized facilities across the state, but most are released to the custody of parents or relatives. In either case, the juvenile court typically relinquishes jurisdiction when an offender reaches his or her 18th birthday. In no case does the offender sentenced as a juvenile remain under the court's supervision past the age of 21.

In most instances, prosecutors must obtain a judge's permission to try a first-time juvenile offender as an adult. The juvenile court may waive its jurisdiction only after a hearing to consider evidence that adult prosecution is in the best interests of both the public and the offender.

But in rare cases such as the Oxford School shooting, where a defendant between 14 and 18 years old is accused of first-degree murder (or one of two dozen other serious felonies specified by the state Legislature, such as kidnapping or armed robbery), a prosecutor can decide unilaterally that a teenage defendant should be tried and sentenced as an adult.

It's up to a judge or jury to decide whether a teenager tried in adult court is guilty, but no one can appeal or second-guess the prosecutor's threshold charging decision. And once a juvenile is convicted on adult charges, the sentencing judge has no option but to impose the same punishment the law prescribes for older felons.

Throwing away the key

In a phone conversation after the Oxford shooting, McDonald, who served more than seven years as a family court judge, reminded me that she campaigned for the prosecutor's job on a pledge to treat young offenders sensibly and compassionately. She said she had decided to charge Crumbley as an adult only after concluding it was the only way she could guarantee he couldn't be freed on his 21st birthday.

That's technically true. But there's no reason to believe prosecutors are uniquely qualified to make such critical decisions in the immediate aftermath of a shocking crime. And in opting for an automatic waiver, McDonald chose to forgo an option that gives judges more discretion in sentencing teenagers convicted of heinous crimes.

Michigan lawmakers historically have been wary of giving judges such latitude, favoring laws that mandate minimum penalties regardless of the circumstances surrounding a particular crime. It's an arrangement that effectively gives prosecutors the power to dictate outcomes by levying charges that come with inflexible penalties. Unlike a judge's rulings, a prosecutor's charging decisions are largely exempt from appellate review.

But Michigan law gives prosecutors worried about a juvenile offender's prospects for rehabilitation the option of requesting a blended sentence that acknowledges both the offender's youthful potential and continuing menace.

Judges who grant such petitions typically prescribe a juvenile sentence while holding the threat of harsher adult punishment in reserve. It's a way to preserve the court's options, and its jurisdiction, over a teenager whose potential for rehabilitation is too difficult or too risky to predict in the immediate aftermath of a crime.

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A blended sentence isn't a panacea. But it buys time for adults deciding whether to scrap a teenager's life for eternity or preserve the possibility of redeeming it 15, 25, or 40 years down the road. And it recognizes that adults with the benefit of prolonged observation and reflection have a better chance of getting that critical call right.

A dearth of data

A Michigan public still reeling from the trauma of this month's massacre is in no mood to think about the accused shooter's prospects for rehabilitation. But if we're going to exempt a select minority of teenagers from the protection of a justice system designed specifically to address their circumstances, we need to thoughtful about how we do it.

It would be useful, for instance, to know how many Michigan teenagers are tried as adults, and whether the criteria used to cull them from the larger herd of juvenile offenders are applied consistently or fairly from one prosecutor's office to the next.

But right now, no one does.

Kimberly Thomas, a professor-practitioner who co-directs the University of Michigan's Juvenile Law Clinic, says the state doesn't keep records documenting how juveniles are prosecuted or punished.

"We have no idea how many kids are automatically waived to adult court each year," Thomas said. "We don't know if the way they're treated varies by county, by race, or by sex."

Policymakers also ought to collect data that will tell them whether teenagers tried as juveniles — or given blended sentences after being convicted as adults — are more successful in avoiding further criminal behavior.

Researchers know that most young offenders grow out of criminal behavior after reaching adulthood, but some don't. Wouldn't it be useful to know which prosecutorial strategies beget the best outcomes?

Warehousing juvenile offenders until they're lame or dead is grotesquely expensive, whether we measure the cost in lives or dollars. That may be the only way to protect the public from some sociopaths. But until we get a lot better at predicting who can and can't be saved, we ought to make the process of separating the men from the boys as judicious as possible.

Brian Dickerson is the Editorial Page Editor of the Free Press. Contact him at bdickerson@freepress.com.

This article originally appeared on Detroit Free Press: Opinion: Michigan needs to be more judicious charging teens as adults