Articles Posted in Juvenile Law Offenses

In my previous post on Christmas Day, I wrote briefly about the Massachusetts Supreme Judicial Court’s (SJC) decision earlier this week barring life sentences for juveniles convicted of murder. The SJC’s concerned the case of Gregory Diatchenko, who was 17 in 1981 when he murdered a man in Kenmore Square. He has served thirty years of a life sentence, and the court ruled that he can be considered for parole immediately.

The legal and news media are all abuzz about this decision, primarily because the decision is retroactive, meaning that juveniles previously sentenced to life in prison, can now be eligible for parole. It may also be possible to have their sentences reviewed entirely.

Is this a wise decision, based on sound medical science regarding juvenile brain development being incomplete, or is it “junk science,” ignoring the voluntary choices that these youths made to commit horrific acts of murderous violence? As with so many things in life, it depends on who you ask. Ask a doctor who leans toward a law-and-order attitude, and he or she will tell you that these youthful murderers didn’t commit the crimes they did because they were under a certain age of “development,” but rather because they are simply violent and morally depraved. Ask a liberal doctor the same question, and you’ll get an opposite answer. Ask a criminal defense lawyer, and you’ll hear that the court’s decision is a fair and just one; ask a prosecutor and you’ll hear how it strains reasoning, and how it handcuffs police and prosecutors in punishing and incarcerating dangerously violent criminals from the public.

The Massachusetts Supreme Judicial Court (SJC) has delivered a Christmas present to about 63 convicts who were sentenced to prison for life when they were juveniles – which, prior to earlier this year, meant age 17 and under. The court barred life sentences without parole for juveniles yesterday (Tuesday, December 24,) ruling that scientific research demonstrates that juvenile brains are “not fully developed,” and therefore that sentences of life in prison with no possibility of parole constitutes “cruel and unusual punishment”, in violation of the U.S. Constitution.

As a Boston, Massachusetts criminal defense lawyer, I have some thoughts about this. I’ll have more to say about this tomorrow, but for now, what I want to say to my readers is this: May the sentiment of goodwill toward man and peace toward others sink into people’s hearts long after this day and this season passes. Too much suffering abides this world.

When it comes to violence within a relationship, or after a breakup, the word that does not come to most people’s minds is “teenagers.” We instead think of high school sweethearts, first crushes, first dates, dances and prom nights. Those are all very nice, but another reality exists in the shadows. A reality of physical and emotional abuse, assault & battery, rape and even murder.

It isn’t a pretty picture. And one major reason people (read: parents) shove it out of their realities, is that they can’t conceive that their kid could possibly engage in this kind of behavior. It’s the same reason that most parents don’t address bullying or admit to their kid doing what he or she is accused of. “Not my little Johnny”; “My little Janie would never do that” is the denial that controls. And for the historically or geographically challenged, denial is not a river in Egypt.

Violence in teenage relationships transcends communities, and socioeconomic strata. It can also happen in both heterosexual as well as homosexual relationships. For the same reasons that it occurs in adult relationships, it also occurs in adolescent relationships: Jealousy, ego, rejection, insecurity, control – as well as the more malignant reasons of mental illness and psychosis. Alcohol and drug use can be factors as well, just as they can when violence punctures adult relationships.

A major change took place in Massachusetts criminal law yesterday, and fairly quietly at that.

For years, 17 year-old criminal defendants have been charged and tried as adults in Massachusetts. This law was enacted several years ago in the wake of several extremely violent and disturbing crimes committed by teenagers between the age of 16 and 18. At 18 years of age, all criminal defendants are treated as adults. At 16 years of age or younger, it’s fairly arguable that such offenders belong in the juvenile court system. But there was always a nagging question of how to treat 17 year-old defendants. Law-and-order advocates wanted to take a tough stance, and they were able to do just that for several years under this law in Massachusetts.

However, Governor Deval Patrick just changed all that, by signing into law a bill that will place all 17 year-old criminal defendants under the jurisdiction of the Massachusetts Juvenile Court Department, not the “regular” courts. What does this mean? It means that the maximum penalties for juvenile offenders are far less than if they were charged as adults – regardless of the particular offense, and regardless of the severity of the crime. This is true even if the underlying crimes were violent and terrible harm resulted. Supporters of the new law argue that thirty-nine other states as well as federal prosecutors use the age of 18 to determine adult criminal jurisdiction.

Here’s another example of “creative sentencing,” a judicial approach to punishing criminal defendants that doesn’t rely on the “traditional” penalties of fines and incarceration. Alternative, or creative, sentencing is growing in popularity across the country, and here in Massachusetts, also.

And it isn’t limited to just adult defendants. Here in Massachusetts, the Massachusetts Appeals Court handed down a ruling this past week that many in the media have paid some interesting notice to. The case involves an 11-year-old boy, who it seems had too much time on his hands, and too little regard or respect for the property or the property rights of others. The boy, through an attorney, had admitted to intentionally vandalizing neighbors’ homes by spray painting the sides of their houses. A judge put the boy on one year’s probation and ordered him to pay restitution to the victims of approximately $1,000 as damages in that time frame. The boy never paid a cent. So, what is a concerned judge to mete out for punishment to such a kid? Dismiss the charge? Place the boy on some form of minor probation? Order him to just apologize to the victims? A wise judge doesn’t want to stain such a child’s future with a criminal conviction at this young age, but neither should a judge send a message to the juvenile defendant, and in the process to other young people, that vandalism or breaking the law is somehow “not that important.”

So, once informed of the boy’s failure to obey the order, the District Court judge in this case took a different turn: He ordered the boy to get a job to pay off the approximately $1,000 in property damage he was previously ordered to pay. His court-appointed defense attorney objected, claiming that the judge’s order that the boy get a job was somehow “contrary to juvenile law.” His attorney claimed that “The state itself limits what they [12-year-olds] can do …Where does a 12-year-old find work to pay this off? It’s not going to happen.” His attorney appealed the District Court sentence to the state Appeals Court, making all these arguments.

It made headlines today in The Boston Globe and countless other newspapers across the U.S.: The United States Supreme Court, in a divided decision, struck down mandatory life-without-parole sentences for juveniles who are, or were, convicted of murder. The court ruled that such sentencing statutes violate the ban against “Cruel and Unusual Punishment” imposed by the Eighth Amendment to the United States Constitution.

This decision nullifies Massachusetts law regarding juveniles convicted of murder, and throws the doors wide open as to sentences of 61 Massachusetts prisoners, who, over the past four decades, were juveniles ordered to spend the rest of their lives in jail. There will, no doubt, be a bevy of appeals now that the Supreme Court justices have made this ruling, and courts may have to hold new sentencing hearings.

As a Norfolk County criminal defense lawyer, I applaud this decision. I firmly believe that the law, as it stood, was much too severe and harsh on juvenile defendants, who not only are not adults, and are not mature in their decisions and actions, but who arguably have greater prospects for reform. I’m glad that the court recognized the juvenile offenders should be treated differently than adults, in terms of possible sentencing for life without parole following a conviction of first degree murder.

Yesterday I had the pleasure of again making an appearance as a Legal Analyst on Fox-25 TV News/Boston. Here is the link to that media appearance: http://bit.ly/whyW4W The news team called me because I often serve as a Legal Analyst for them as a Boston, Massachusetts Criminal Defense Attorney.

I discussed the recent arrests of two students at Attleboro High School, for their public comments on Facebook where they exchanged comments describing planning for a Columbine-type shooting at the school. This was not, as I pointed out, two students talking to each other on the way home from school, about their dislike of a particular teacher. This projected the appearance of a conspiracy to commit Massachusetts crimes, involving possibly murder, assault and battery and mayhem. for all the world to see on Facebook. Under Massachusetts law, these statements constitute probable cause, and that is all that is needed to arrest these students, or anyone in Massachusetts.

It should be noted here that both these students, and other students at the school who were not arrested, have insisted that their comments on Facebook were just a prank, and not at all meant seriously. At their arraignment yesterday, they pleaded Not Guilty, and it’s important to remind people that these students are presumed to be innocent until they are judged guilty in a court of law. But regardless of what ultimately happens in these cases, these two youths will have these arrests and charges on their permanent record. In the worst case, they may even do jail time.

As readers of this blog are well aware from my previous posts on the subject of the school bullying death by suicide of Phoebe Prince in January (as well as the suicide death of Carl Joseph Walker Hoover last April 2009, I feel that there should be much stronger anti-bullying laws on the books in Massachusetts – stronger than the one recently passed by the Massachusetts House of Representatives. That proposed law would require school staff members to report suspected incidents and require principals to investigate those incidents. It would also require that schools teach about the dangers of bullying – but it would not make bullying a crime.

There should be a law making bullying in schools a criminal offense- and one can only hope that on the civil side of the law, that courts in this sate and elsewhere will soon issue clear and unequivocal decisions holding school districts, teachers, and school administrators liable for failing to take reasonable measures to stop such vicious assault and battery. Teachers unions and school districts howl in protest at this idea. They and similarly-minded people say that it’s too difficult to adequately “define” bullying on a legal level – that proposed definitions of bullying are “too vague”, and a “threat to free speech.” If the tragic cases of Phoebe Prince and Carl Jospeh Walker Hoover can’t convince these Neanderthals, they should read the case of Nicholas Parsons of Tewksbury.

Finally, today, a Massachusetts District Attorney stood up and took the courageous step that a lot of people watching the cases of Phoebe Price and Carl Joseph Walker Hoover were waiting for: Yesterday, March 29 2010, Northwestern District Attorney Elizabeth D. Scheibel announced that nine separate felony indictments have been issued against nine teenagers attending South Hadley High School, all involved in the brutal bullying campaign waged against Phoebe Prince. The felony indictments range from stalking to statutory rape. The most serious of these charges carry lengthy state prison sentences, though I doubt any of these defendants will serve time in state prison. Even though as a Boston criminal defense lawyer I practice on the other side of the legal aisle than District Attorney Scheibel, I applaud her for this unequivocal action.

Striking down a city ordinance that I am sure was well-meaning and not malignant in its intent, the Massachusetts Supreme Judicial Court (SJC) yesterday ruled unconstitutional a city of Lowell ordinance making it a crime of youths under the age of 17 to be on city streets after 11:00 PM unless accompanied by an adult.

This case was a classic civil liberties challenge to government oversight of public conduct that, in itself, is benign. The municipal ordinance was passed by the city of Lowell in 1994, after that city was wracked by years of youthful violence and youth gang activity. Many such crimes involved Massachusetts drug offenses, including murder. In fact, only two months prior to passage of the ordinance, a 16-year-old was beaten to death in a gang-related slaying. The curfew banned persons under the age of 17 from being on the city’s streets unless accompanied by a parent or a guardian. The law provided several exceptions, including for youths who held night-time jobs, were on the sidewalk next to their homes, or were participating in certain recreational or religious activities. Individuals who were convicted of violating the curfew could be fined up to $300. They could also be deemed a delinquent and placed on probation. If they violated the terms of their probation, the law stated that they could be committed to the custody of the Department of Youth Services (DYS) until the age of 18.

For the years 1998 through 2002, city police arrested and arraigned an average of 60 juveniles a year for criminal violations of the curfew, according to statistics provided by the Asian American Legal Defense and Education Fund, an organization that helped support the legal challenge that overturned this law. That averages to about 12 arrests per year, or one per month. It should be noted that the Asian American Legal Defense and Education Fund became involved in this issue, due to the large concentration of Cambodian youths and families living in Lowell. Lowell Police have asserted for years that Cambodian youth gangs are numerous and dangerous in Lowell, and the facts have supported that claim. Cecilia Chen, a lawyer for the Asian American Legal Defense Fund, commented that the curfew upset Lowell’s large Cambodian community and claimed that police in that city engaged in racial profiling. “It assumes that youth are up to no good by simply being out at night,’‘ she said.