How young is too young for life in prison?

Ever look at your teenage children and wonder what’s wrong with them? I do. I look at my teenage son and wonder, “Good grief, was I EVER like that?” I probably was. But my adult self is a very different person with (mostly) better judgment and (definitely) a deeper sense of empathy for others and understanding of consequences of my actions.

Can any child or teenager really understand those consequences? The American Civil Liberties Union of Michigan says no. Yesterday, the ACLU of Michigan and Second Chances 4 Youth released a report documenting the systemic disadvantages facing young people in the adult criminal justice system.

When I was my son’s age, 10 years was a long time. Twenty years was forever. And I had no idea what forever really meant.

Most of us recognize that child and teenage brains just aren’t fully grown, so we as a society, as parents, and as a culture offer our kids greater protection from their own actions until they are old enough to live with the consequences.

Unless of course, that teenager commits a crime. Then all bets are off.

The ACLU reports that there have been 371 young offenders sentenced to life without the possibility of parole in Michigan (only one other state has more than 371). About one-third of those were present or committed a felony when the homicide was actually committed by someone else.

The ACLU notes:

  • Race affects the plea bargaining process for adolescents. Young people accused of homicide where the victim was white were 22 percent less likely to receive a plea offer than in cases where the victim was a person of color. There are clear geographic disparities as well; Oakland, Calhoun, Saginaw and Kent counties offer lessor sentences to young people far less often than the rest of the state.
  • Juveniles reject plea offers far more often than adults. They are less equipped to negotiate pleas because of their immaturity, and inexperience. (Remember when you were young and 10 years seemed like a long time, and 20 years seemed like forever, but you had no idea what “forever” really meant?) Many of them said that they didn’t understand the nature of the charges theywere facing or the meaning of parole.
  • Lawyers who have represented young people who were convicted and sentenced to life have a much higher rate of attorney discipline. Some 5 percent of all attorneys have been reprimanded, compared to 38 percent of those who represented young people who later were sentenced to life in prison.

Michigan requires that defendants as young as 14 be tried as adults if they are charged with certain crimes. The U.S. Supreme Court heard arguments in March in two cases that test the constitutionality of sentencing juvenile offenders to life-without-parole sentences.

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Part of funeral protest law too vague to enforce, fed court rules

A federal judge’s decision to strike part of Michigan’s funeral protest law as unconstitutional has both sides declaring victory. [Detroit Free Press]

Judge Thomas Ludington struck subsection (c) of MCL 750.167d, which states:

(c) Engage in any other conduct that the person knows or should reasonably know will disturb, disrupt, or adversely affect the funeral, memorial service, viewing of the deceased person, funeral procession, or burial

Ludington said the subsection was unconstitutional because it was too vague for police to enforce. He left the remainder of the statute intact.

In the case, police pulled an Army vet and his wife from a 2007 funeral procession for having an anti-war sign on their vehicle.  The Freep’s David Ashenfelter talked to both the ACLU and Michigan Attorney General’s office, with both declaring victory.

“It’s a complete vindication of Lewis and Jean Lowden,” said Detroit attorney Hugh (Buck) Davis, who represented the family with the American Civil Liberties Union of Michigan.

He said they were humiliated for simply trying to attend a funeral. Lowden could not be reached for comment.

The Michigan Attorney General’s Office, which had tried to get the suit dismissed, also declared victory.

“This is a victory for protecting the sanctity of funerals and the privacy of families who have suffered a tragic loss,” said spokesman John Sellek, saying Ludington’s decision struck two words — “adversely affect” — from the statute. “The law essentially remains in place.”

U-M practice of banning citizens from campus faces scrutiny

When the hullabaloo erupted over Andrew Shirvell essentially stalked University of Michigan student president Chris Armstrong last year, one of the punishments Shirvell faced for his conduct was banishment from the campus.

Shirvell, a Michigan undergraduate alum, eventually was reinstated under the condition that he leave Armstrong alone after the American Civil Liberties Union (ACLU) threatened a lawsuit.

The banishment should have been more controversial in the news, and might have been if Shirvell’s conduct left any room for him to be even the slightest sympathetic figure. After all, aside from circumstantial evidence suggesting that he may have used his position at the Attorney General’s office to illegally review the criminal records of Armstrong and his associates, Shirvell didn’t do anything illegal. And last time I checked, U-M was a public university (Not for long if the Mackinac Center has anything to say about it!) banning citizens from public property without review.

The Detroit Free Press reported that over 2,000 people have been banned from Michigan’s Ann Arbor campus over the last 10 years – far more than any public university in the state. Apparently, all that is required to be banned is a “trespass notice” by Department of Public Safety i.e. campus police. The officers issue the bans before any review is taken, so it’s up to the discretion of the department, rather than a judge or impartial authority. The DPS director does say bans can be reviewed by “the department’s civilian oversight committee, or up to the university president.”

The conduct of what receives a trespass notice is pretty broad. According to the story, a ban can be issued for “committing or being suspected of committing a crime on campus, refusing or failing to comply with university rules, disrupting the operation of the university or demonstrating a risk of physical harm or injury.”

For example, the Freep story said, if you are the chief operating officer of a company that makes “bioengineered medical devices” looking to meet up with one of your researchers, you’d better make an appointment first:

It was after hours on Oct. 14 when Deborah Buffington tried to enter an off-campus building leased by the University of Michigan to speak with a technician her company was working with on a study. She banged on the locked door.

The technician let her in, but the director of the program didn’t know her or the work she was doing there, according to Buffington. He asked her to leave. The next day, a University of Michigan police officer came to her office to discuss the incident and give her a trespass warning.

That’s how Buffington, chief operating officer of Innovative Biotherapies, an Ann Arbor company that develops bioengineered medical devices, became one of about 2,000 people issued trespass warnings since 2001, effectively banning her from the campus.

Buffington said she has no quibbles with U-M. She said the university has to look out for the safety of its community, and she believes it was miscommunication that led to the warning. “I completely understand why they did what they did,” said Buffington, who immediately appealed and on Oct. 29, the ban was modified to allow her on campus as long as she’s invited.

What crime Buffington was “being suspected of” is unclear. The employee let her in, the director said she couldn’t stay. She left. There’s no indication of misbehavior in the story.

This could simply be anecdotal. Later in the story, the Director of Public Safety said most bans are the result of criminal activity. But not all. In fact, in at least one instance, it was used against a former employee virtually moments after he was fired.

One of the more high-profile trespass warnings was issued in 2008 to Dr. Andrei Borisov, a 15-year employee of U-M who had been raising questions about how some grant money was being used in the pediatrics/cardiology department.

Following a meeting in which his superiors asked for his resignation, Borisov said he was escorted to his office by police officers who read a trespass warning to him and then arrested him when he attempted to take his briefcase. Borisov was acquitted of the charges he faced as a result of the incident, said his attorney, Deborah Gordon of Bloomfield Hills. He has subsequently filed a wrongful termination lawsuit against U-M, he said.

The ban from campus has since been modified, allowing Borisov back on campus, but not at the medical school.

Borisov described the trespass warning as “nonsense.”

“I was at my office legally as a faculty member and an employee of the University of Michigan,” Borisov said.

U-M officials declined to comment about Borisov’s case because of the lawsuit.

The story doesn’t say much about how the policy is being reviewed other than to say that is. Maybe the policy will change. Or maybe it’s the type of review that gets the ACLU off your case until it focuses on something else and nothing ever changes.

AP: State House seeks funding for indigent defense

DETROIT (AP) — Michigan was a 19th century pioneer in providing legal aid to poor criminal suspects.

Now, it has one of the nation’s stingiest and most fragmented systems for representing the 80 percent of defendants who can’t afford a lawyer, a wide range of critics say.

The system often leads to people’s convictions being reversed because of mistakes an adequate legal defense should have caught. And it adds millions of dollars to prison costs for sentences that exceed state guidelines.

"Michigan’s neglect of many years generates large downstream costs," said Dawn Van Hoek, chief deputy director of the State Appellate Defender Office. "We need to connect the dots and adequately fund the system."

The office estimates Michigan would save $132 million a year in prison costs if it eliminated the excessive penalties judges impose because of improper application of state sentencing guidelines.

Of all the filings the State Appellate Defender Office made in 2008, 48 percent cited ineffective assistance of counsel, up from 14 percent in 1981.

With a class-action challenge to the system set for oral arguments next month before the Michigan Supreme Court, the state House Judiciary Committee is drafting a bipartisan proposal to overhaul Michigan’s 153-year-old indigent defense system.

The U.S. Supreme Court established the right to a free public defense in 1963, when it ruled for Florida convict Clarence Gideon that the Sixth Amendment required states to appoint lawyers for felony defendants who can’t afford them.

Michigan was ahead of the game then, having created its own county-level indigent defense system in 1857. Michigan even filed a brief in support of Gideon’s successful plea to the U.S. Supreme Court.

Today, Michigan’s indigent defense system is "failing in nearly every way," former Michigan Supreme Court Justice Dennis Archer told a U.S. House Justice Committee hearing last year. Archer, a former president of the American Bar Association and two-term Detroit mayor, said the state now has "a patchwork of underfunded, unaccountable systems."

Michigan’s annual indigent defense spending of $74.4 million, or $7.35 per capita, is 38 percent below the national average and less than all but six states, the National Legal Aid & Defender Association said in "A Race to the Bottom," a report commissioned by Michigan lawmakers.

Courts in each of Michigan’s 83 counties set their own pay rates and hiring systems, deciding what portion of their state-set budgets to spend on indigent defense.

"The level of justice a poor person receives is dependent entirely on which side of a county line one’s crime is alleged to have been committed," the 115-page report said.

Lawmakers from both parties in the state Legislature recognize the need to act, said Kent County Republican state Rep. Justin Amash, a member of the House Judiciary Committee.

However, bill sponsor Bob Constan, D-Dearborn Heights, acknowledged the measure will be a tough sell at a time when Michigan faces hundreds of millions of dollars of cuts to K-12 schools, universities and health care.

"It’s just the lowest thing people want to fund," Constan said Thursday. He said implementation may have to be spread out over four years.

In place of the current system, House Bill 5675 would create a statewide public defense system to fund and supervise the work of lawyers who represent the poor.

An appointed Public Defense Commission would oversee separate offices for trial and appellate defenders. Appointments would have to be based on experience and skill, case loads would be limited and pay brought in line with that of prosecutors.

The bill also would create statewide standards for deciding who is poor enough to need legal aid and allow for some defendants to pay part of the cost. Regional offices would manage services, which would use a mix of private lawyers and salaried public defenders.

Speaking for the Michigan District Judges Association, Ingham County Judge Tom Boyd acknowledged problems with today’s system but told a Judiciary Committee hearing Tuesday he fears "unintended consequences" from a wasteful bureaucracy.

Should the Michigan Legislature fail to act on its own, the courts may force a change.

In 2007, the American Civil Liberties Union filed a class action lawsuit against the state on behalf of poor defendants in Berrien, Genesee and Muskegon counties. The complaint said court-appointed lawyers in those counties were either too rushed or fear they won’t get more work if they slow down the docket with motions or requests for expert assistance.

National ACLU staff lawyer Robin Dahlberg told the Michigan House committee the passage of House Bill 5676 would go a long way toward fixing the problems.

"Until and unless the state does act, Michigan’s citizens will continue to be wrongfully deprived of their liberty," she testified.