Plaintiff,

File No. 97 63787 FC

NATHANIEL ABRAHAM,

Defendant/Respondent

SENTENCING OPINION

At a session of said Court held in the

Courtroom in the City of Pontiac, County

of Oakland and State of Michigan on January 13, 2000

1.

HISTORY

The Trial is over and now we face an equally important decision. What should the sentence or disposition be for Nathaniel Abraham. The decision will have an enormous effect on both Nathaniel and society.

In 1999 we celebrated the 100th anniversary of the founding of the Juvenile Court in America. It started in 1899 in Cook County, Chicago. Its roots were in England during the Industrial Revolution. During the Industrial Revolution, two groups of people joined hands to fight the abuse of children. One group opposed the criminal system treating children the same as adults when punishing those convicted of a crime. Adults and children were punished alike. The second group was concerned about using children as chattels as a form of very cheap labor. Little food - no school - large dormitories, and working 18 hours a day was a common abuse of children.

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The protection of children from these abuses brought about the Cook County (Chicago) Juvenile Court in America.

In Michigan in the early 1900's, the legislature decided to punish girls convicted of crimes differently than women and built the Girl's Training School at Adrian. Boy's Training School in Lansing followed shortly. This also meant punishing boys differently than men. Gradually there developed the Parents Patria Doctrine where the Juvenile Judge became the "substitute parent" for the child. A Juvenile Code was adopted separate from the Criminal Code. The first paragraph of the Juvenile Code mandated Juvenile Court Judges to provide for the children that come before them, "the care, custody and control that the child should have received in his own home".

To this end, the legislature created a new separate Juvenile Court - separate from the Criminal Court to insure that the child was properly cared for. Each child was to receive"individualized treatment" necessary to change his or her behavior so the child would grow up to be a successful adult. Society was less concerned about guilt because the "court supposedly had a better world for the child than the child got in his own home".

Juvenile Court advocates recognized that children were different from adults. They were still young, immature and not fully developed. Thus character and behavior could still be molded and they could be rehabilitated.

Rehabilitation became the byword of the Juvenile Court. Few wanted to lock up children for life. There was a recognition that if we were going to protect society from future criminal behavior by the child we had better do something to rehabilitate the child so that when released by the Juvenile Court, the child was changed. Only by doing this would and you and I be protected from further criminal activity by the child.

Unfortunately, often because of inadequate resources, our Juvenile Courts failed in changing many delinquent's behavior. As a result, many people began to advocate that our Juvenile Court not "try to change a child" unless we were even more certain that the child was "guilty". Only if clearly guilty could the courts impose incarceration and even probation on a child.

Thus, in the 1960's and 1970's with the landmark cases of Kent and Gault, we found the U.S. Supreme Court insuring that children had attorneys, the right to remain silent, guilt beyond a reasonable doubt, and many of the safeguards afforded to adults accused of a crime.

The 1980's saw a rise in juvenile crime and especially of crimes of an adult nature committed by juveniles. In response the legislature enacted tougher and tougher laws aimed at treating children more like adults and subjecting them to adult penalties. The motivation was that society expects even children to be accountable for their actions. The way to stop juvenile delinquency and criminal activity is to hold offenders accountable. This works on the theory that individuals will be deterred from future criminal behavior if they are held accountable for their actions and know that consequences will follow. Likewise, it is thought that others in society will be dissuaded from illegal actions because they see what has happened to people convicted of crimes.

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1,

Certainly, holding individuals accountable for their actions is one of the cornerstones of molding human behavior. However, at the same time, we must take a clear look at how well the adult criminal system works. The adult system does accomplish two goals.

- First it punishes criminals. When convicted, an adult criminal is held accountable for his actions. Often he is punished by probation or some term of incarceration in the jail or prison system.

- Second it keeps society safe for a period of time. While that criminal is housed, society is safe from further criminal activity by that individual. But we must look clearly and fully at the effects of incarceration.

1. Is the criminal rehabilitated? - The answer to this question often seems to be a clearly resounding "NO". Our adult penal system often does not rehabilitate the way it should.

2. Does the criminal re-offend when released? - The answer to this question is often "YES". Our penal system has an alarmingly high recidivism rate.

3. Is the public safe? The answer to this question seems to be twofold. The public is safe from the individual criminal for the period of incarceration. While the criminal is removed from society and placed in prison, that individual is unable to further harm society. But when this person is released what is the danger to society? The criminal, as stated, is likely to re-offend, and there is a good chance that the next crime this person commits will be more serious than the first. In essence the long term effect of incarceration in our adult criminal system seems to be that we mold more hardened criminals.

In deciding whether to impose tougher sentences on juveniles, we must also look at what are the causes of juvenile crime? This question should be debated and analyzed by everyone interested in helping children and reducing crime. It is a community problem with community solutions. No court system, in isolation, can solve this problem. Only when the community comes together and recognizes the problems and factors which contribute to crime will we be able to tackle the problem. There are many factors that contribute to criminal behavior.

We have an increasing number of children born to very young single parents who simply aren't equipped emotionally or financially to rear children. We have a generation of youth who are being bombarded by images and messages of violence. Movies, TV, music and especially video games are teaching our children violence. Kids are exposed to violence without attaching any sort of ethical or moral value to it. The message of many popular video games is that it is desirable to brutally maim, shoot and kill people. Conflicts are to be resolved with violence. And to further confuse the sponge like minds of our youth, there is certainly no message of permanence or gravity. With a flick of the re-start button all the characters are alive again and the carnage can start all over. There are no lessons about

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compassion, compromise, empathy. No exposure to the grief of the families that are affected. Violence is made neat and clean and detached. When kids are bored they use violent games, music, and shows to occupy their time. There must be better experiences and messages for our children.

We live in one of the wealthiest counties in the entire nation. We have some of the finest juvenile programs in the country. But we must do more. Individually, and collectively many enjoy great wealth and prosperity. Why, then, can't we boast of having the best services for children in the country? Somehow we have lost our sense of social responsibility. We can't afford to live in isolation, closing our eyes to the plight of many of our youth. Children like Nathaniel can't reach out for help and be placed on a waiting list for 6 months. To a child, six months is a lifetime. Just as immediate consequences for one's actions are necessary, so is immediate intervention at signs of trouble. If we want to be safe from the kind of crime that Nathaniel committed we must be prepared with our efforts and wallets to help create and fund programs to stop this tragic waste. Children, and the potential each possesses, are our most precious resource. We must collectively guard, protect, and nurture them. We need better trained parents. We need mentors. We need big brothers and sisters. We need more recreational programs and youth groups. We need more counselors for children and families. We need more foster care homes and more support for these generous families. We need better schools. Any effort that touches the life of one of our children in a positive way is a vital and indispensable piece to the puzzle in stopping juvenile delinquency and criminality. We must enlist the financial support of our privileged individuals and local corporations, as well as the individual efforts of many, to help create and fund effective programming for kids. It is only by intervening now and helping to develop mature, responsible, caring, empathic children, that we can assure a safer society. What we sow today, we will reap in the future.

Most agree that our laws were originally connected to social norms with ethical and moral justification and rationale. Within society behaviors were not randomly assigned legal values of right and wrong. Instead, we collectively believed in the moral and ethical reasons for those laws. Children must be taught the fundamental reasons for laws and rules. Learning to live in society is something that develops over an entire childhood. Children are explorers and discoverers. They have an inherent need to know why. Why is often the most repeated word a parent hears from his child. When children learn about the rules and laws of society they need real reasons to follow them. These reasons are essential for the child to feel connected to and part of society. To really understand the reason one should not kill, a child has to develop social abilities such as empathy and compassion. These are the building blocks of a cohesive society. It is only by internalizing society's norms that children, and eventually adults, will truly be guided by them and abide by them. We can't cure the problem from the outside in, we must work from the inside out.

Who are heroes for our kids? When you ask children today what they want to be in the future, do they respond - a fireman - a policeman - a doctor - a teacher. Or do we hear - a wrestler -or a sports figure - or do we hear anything at all?

Instead of increasing support for prevention programs, many said "ciet tough". As a result of the "get tough on kids" policy we saw changes in our "waiver" statutes. The waiver age was reduced in Michigan from 15 to 14. In addition, Prosecutors were given the discretion to bypass the Juvenile Court waiver process in which the Juvenile Court Judge had a full hearing, taking testimony to measure against

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certain standards, in order to decide where the child should be tried. At these waiver hearings the Court looked at the child's past record, the seriousness of the crime, the child's pattern of living, and the programs available in the adult system versus the programs available in the Juvenile system. Instead, for certain serious crimes, Prosecutors alone, without a hearing, could make the decision of where to try the accused child, in the Criminal Court or the Juvenile Court. Even more recently, the legislature determined that, if the Prosecutor chose a trial in the Adult Criminal Court, the child, if convicted, would have to be sentenced as an adult. No discretion was given to the sentencing Judge to decide to use the Juvenile System. "Get tough" continued to be the cry of many!

This is not to say that the adult system of incarceration is not vital to our society. We need immediate protection from dangerous individuals. But the message is that we need to look also for more long term, systemic answers to crime in our society. The legislature's response to juvenile crime is a very short-sighted solution. If we put more kids into a failed adult system, although we may house them where they cannot do any damage for a period of time, we should not be surprised when they emerge, upon their inevitable release, as more dangerous and hardened criminals. Instead of spending money building more prisons, we should be spending money preventing crime and rehabilitating youthful criminals.

Prevention and rehabilitation are the foundational elements of the juvenile system. The juvenile system recognizes that children are our most precious commodity. They are our hope for the future. If we prevent the criminal mind set from taking hold of our youth then we, in turn, prevent adult criminals from coming into existence. If we rehabilitate those youths who have committed criminal acts, we are making ourselves safe both now and in the future.

Not satisfied that we were tough enough, in the 1990's the legislature went one step further and enacted P.A. 244 of 1996. (the basic statute in the case at hand). Under this statute, the Prosecutor can elect to have the child tried in the Juvenile Court as an adult and if convicted, sentenced in one of the following three ways at the discretion of the Judge:

1 . First, as a Juvenile, with release at the latest at age 21.

2. Second, as an adult subject solely to adult penalties and punishment.

3. A blended sentence - Initially sentence as an adult but delay the adult sentence,

first placing the child in the Juvenile system. If, at age 21, the child is not rehabilitated,

carry out an adult sentence. There shall be yearly reviews. The adult sentence can be

imposed at any time up to age 21 if there is a violation of the Juvenile sentence. Or the

child can be released before age 21 if rehabilitated. If neither has occurred before age 21,

there shall be a hearing. At that time the defendant may be released, if rehabilitated, or

the adult sentence imposed, if not rehabilitated.

To many, this is a reasonable statute. Don't ask the Judge to look into a crystal ball today and predict 5 years down the road. Give the Juvenile system a chance to rehabilitate. Don't predict today, at sentencing, whether the child will or will not be rehabilitated, but keep the options open. At 21, have a hearing and see if the person (at 21, now an adult) has changed for the better. If yes, release - ; if not -

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if still a danger - impose an adult sentence.

The stickler is that while the legislature placed a minimum age of 14 for Judicial Waiver and also set a minimum age of 14 for prosecutorial automatic waiver, there was no minimum set for the statute under which Nathaniel was charged. Thus, we try a child, 11 at the time of the crime, as an adult in the Juvenile Court (now called the Family Court). We subject him to the three dispositional alternatives I listed above, including a possible sentence today of up to life in prison.

THE CASE AT HAND, NATHANIEL ABRAHAM:

I have reviewed all the psychological reports, the recommendation of Mr. Hamilton the Juvenile Court Caseworker, the report of the Out of Home Screening Committee of the Juvenile Court, the report of Kathy Milliken of F.I.A., and the report of Susan Peters of Adult Corrections. I have also reviewed all the psychologicals and reports from the Prosecutor and the Defense. I have considered the testimony as part of the sentencing process. I have heard the arguments of the Prosecutor and Defense. I have heard the statements of the Ronnie Green family.

Obviously, we must deal with the law that we have. We have a child convicted of 2nd degree murder committed when he was 11 years old. The legislature has told the sentencing Judge what criteria must be weighed in making a decision about which of the three options should be used in today's sentencing:

The statute [Sec. 71 2A. 18(1 )(n)] says we must look at the "best interest" of the public in making this sentencing decision.

The best interest of the public is to protect the public from further criminal behavior by the Defendant.

In making the decision, the statute says the sentencing Judge must look at:

(1)

The seriousness of the offense in terms of community protection, including, but not limited to, the existence of any aggravating factors recognized by the sentencing guidelines, the use of a firearm or other dangerous weapon, and the impact on any victim.

Here the offense is of the most serious nature. A person was murdered. The impact upon the victim and is family is devastating. A firearm was used in the commission of the offense. Community protection dictates that a long-term program is necessary.

(ii) The juvenile's culpability ... in committing the offense, including, but not limited to, the level of the juvenile's participation in planning and carrying out the offense and the existence of any aggravating or mitigating factors recognized by the sentencing guidelines.

Nathaniel is fully responsible, having been the person who pulled the trigger. However,

his

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teacher, Elva Rosario, at Lincoln Middle School, is reported to have stated that Nathaniel at the time, did not understand the difference between fantasy and reality. Additionally, he was determined to be functioning between the six and eight year old level in terms of emotional maturity. internalized norms for appropriate behavior, and the acceptance of responsibility for his behavior. Youngsters at this developmental age often judge their behavior strictly in terms of the immediate impact it has on them. Further, Nathaniel was tested at below average intelligence. He is also very impulsive.

The juvenile's prior record of delinquency including, but not limited to, any record of detention, any police record, any school record, or any other evidence indicating prior delinquent behavior.

This offense is not part of a repetitive conviction pattern. It is Nathaniels' first offense. It is, however, part of a pattern of anti-social behavior. Nathaniel had been noted to be engaging in delinquent behavior for about two years prior to the offense, but there was no formal intervention. While in Children's Village, his behavior has been a problem at times but has improved to some degree according to official reports, he is unlikely to disrupt the treatment of other juveniles in a treatment facility.

(iv) The juvenile's programming history, including, but not limited to, the juvenile's past willingness to participate meaningfully in available programming.

There was no effort to provide a treatment program for Nathaniel until he entered Children's Village two years ago. His mother did seek treatment for him through community mental health. He was placed on a waiting list for six months prior to the initiation of treatment. He did attend three sessions after the initial assessment. The mother indicated that a different therapist might have been more helpful as the reason she discontinued treatment. Since he has been at Children's Village Nathaniel has been seeing a therapist and has made some improvement. He needs a therapist he can trust who will help him develop self-esteem and social controls.

The adequacy of the punishment or programming available in the juvenile justice system.

The juvenile system is designed to provide treatment for youngsters such as Nathaniel. Programming is available to meet his psychiatric, behavioral, educational, vocational, and recreational needs. The juvenile system is also is designed to provide treatment for the family. Nathaniel needs to learn that he is accountable for his behavior. He needs to be far less impulsive and more concerned for the needs of others. The programming is much more extensive and comprehensive in the Juvenile System than in the Adult System.

(vi) The dispositional options available for the juvenile.

The dispositional options have been identified above.

WE MUST LOOK AT THE THREE SENTENCING OPTIONS IN LIGHT OF THESE CRITERIA

FIRST, SENTENCE ONLY AS AN ADUL

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Should Nathaniel be sentenced today as an adult? If we say "Ygs", even for this heinous crime, we have given up on the Juvenile Justice System. Can we be certain that between now and the time he turns 21 that we can't change his behavior? Must we say today that Nathaniel, at age 13, must be put into an adult prison system? No, the testimony and/or reports are clear that the adult prison system is not designed for youth. It is only a last resort if the Juvenile system has failed. Testimony and the psychological examination demonstrate that in the last two years, while awaiting trial, Nathaniel has made progress in the Juvenile system. It is also clear that the adult system has very few treatment alternatives for a 13 year old. In addition, at 13, Nathaniel may be subject to brutalization in prison that could destroy any hope of rehabilitation.

As I have indicated, the legislature has responded to juvenile criminal activity not by helping to prevent and rehabilitate, but rather by treating juveniles more like adults. Is this a good option? Is our adult system successfully rehabilitating people? Do our jails release productive, reformed citizens? We all know the answers to these questions. The real solution is to prevent an adult criminal population ever coming into existence. This can only be accomplished by taking advantage of the hope and promise of our youth and nurturing healthy adults.

I think the law Nathaniel has been charged under is fundamentally flawed. It is not my place to make law. I must work with the law the legislature has enacted. However, I urge the legislature to reassess this law. I urge the legislature to lean toward improving the resources and programs within the juvenile justice system rather than diverting more youth into an already failed adult system. I admonish the juvenile Court to make sure our courts are not turning away parents who may come to us for help. In sentencing Nathaniel I have to consider the protection of our community now and in the future.

Specifically, I urge the legislature to reconsider the statute in question and set a minimum age at which a child can be charged as an adult. Is 8 too young? What about 6? The legislature, not the Prosecutor, not the Judge, not the Jury should decide. I urge the legislature to act now. Perhaps the minimum age should be 14 as in our two waiver statutes.

THE SECOND OPTION: SENTENCE AS A JUVENILE.

If Nathaniel is sentenced as a Juvenile, he will be released at the very latest at age 21. Will the public be best protected if Nathaniel is released at 21 ? We don't know what Nathaniel will be like 8 years from now. Eight more years is a long time. With the progress he has made in the last 2 years plus the next 8 years, the Juvenile Justice System should be able to rehabilitate Nathaniel.

The protection of the public and the rehabilitation of the respondent are the opposite sides of the same coin. If we rehabilitate the Defendant, then the public is safe. If we don't, he may kill again.

THE THIRD OPTION, A BLENDED SENTENCE.

Does Nathaniel fit the criteria that would make sense under the circumstances demanded by a blended sentence? True he did commit a heinous crime, but he is not a repeat offender. He has not failed in our Juvenile programs, but rather has not been given a chance to benefit from them. Nathaniel

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was also an eleven year old boy who, by much of the testimony, lacked the maturity and understanding to differentiate between reality and fantasy. He is a boy who has been neglected by his home, our community, and ourjustice system. He represents our collective failings. He is said to have functioned at a 6-8 year old mental and emotional level at the time he committed this crime. When they created this law, certainly the legislature was not saying that any child, no matter what his age, is capable of forming adult criminal intent and should be held accountable as an adult. To take it to the absurd, an infant could be tried as an adult under the current law.

However, if we were to impose a delayed sentence, we take everyone off the hook. Sentencing Nathaniel as a juvenile gives us 8 more years to rehabilitate him. We as a community know that he will be back among us at age 21. If we are committed to preventing future criminal behavior, we will use our collective efforts and financial resources to rehabilitate him and all the other at-risk youth in our community. If we commit ourselves to this, we can ensure our safety now and in the future. The safety net of a delayed sentence removes too much of the urgency. We can't continue to see incarceration as a long term solution. The danger is that we won't take rehabilitation seriously if we know we can utilize prison in the future. To sentence juveniles to adult prison is ignoring the possibility that we are creating a more dangerous criminal by housing juveniles with hardened adults. Adult incarceration is a vital immediate solution to danger, but it does nothing to address future criminality. We have eight years. Together we and Nathaniel can make the difference in his life and the lives of many other children in our community. Nathaniel will begin the next eight years of his life in a secure juvenile facility. Thus our immediate risk of harm from Nathaniel is alleviated. With the right programs and commitment from concerned individuals, Nate can develop and internalize the values that are necessary to be a responsible member of a civilized society.

In addition, the adult criminal sentencina auidelines provide for Nathan to be sentenced to prison from 8 to 25 years. If he were to fail in the Juvenile System and at age 21 we were to sentence him to prison, we would have to deviate from the guidelines. The statute states he must receive credit for the 10 years he was incarcerated as a Juvenile. Ten years is more than the eight year minimum in the sentencing guidelines.

Prevention, individualized treatment, rehabilitation, the bywords of the Juvenile Justice System, are the best we have to offer. Why should the Juvenile Justice System copy a failed adult correctional system? Perhaps for a few Juveniles "get tough" is the only answer. But for the majority it is not. The Juvenile Justice System has a much higher rate of success than the adult correctional system. In order to protect society some Juveniles must be sentenced as adults. But this is a small minority. Most of these children are older and are more set in their criminal pattern. For most youngsters the Juvenile Justice System is a far better alternative than the adult correctional system.

IN CONCLUSION:

The option that best meets the needs of Nathaniel and the public is the Juvenile System and only the Juvenile System. While there is no guarantee Nathaniel will be rehabilitated by age 21, when he must leave the Juvenile Justice System, it is clear that 10 years should be sufficient to accomplish this goal.

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It is my belief that blended sentencing is much better suited for older juveniles of 15 or 16 where there is not as much time to use the Juvenile System (as there is here, with an 11 year old), and a greater need to preserve the option of adult prison at age 21.

As I said earlier, the pendulum has swung back so that much of the public wants us to get tougher with Juveniles. For some it has worked, for others it has not. Here we have dealt with the most tragic of tragedies, the killing of another human being. Fortunately murder is a very small part of what we see in Juvenile Court. In Oakland County, less than 1/10 of 1% of our Juvenile cases are killings. lfwedon't want to throw out the baby with the bathwater, treat all youngsters more harshly, and perhaps even abolish the Juvenile Court and return to the days of the Industrial Revolution where we had one criminal court for both children and adults, we must do better with the thousands of juveniles we see every day in our Juvenile Courts. This County must be willing to pay in dollars and human energy to help prevent Juvenile crime and rehabilitate our young offenders. The media, the defense bar, the Prosecutor, the Judges, Court and institutional staff, County Commissioners, volunteers and the people of our community can and must make a difference. Children are too precious to be lost because of the system's neglect and failures.

We must remind ourselves that the true victim, Mr. Ronnie Green, has been robbed of his life and has no chance of any future. In addition, we can't begin to know the kind of despair and grief that his family is going through and will continue to go through. But I believe that my decision, although it may not seem the most just to his family in terms of punishment or retribution, in the long run will give Mr. Green a legacy that will live on. Hopefully, far into the future, the Greens will be able to take some comfort in knowing that their son's death was not in vain, but rather was a wake-up call for our community and the nation that our youth are in trouble and we need to pay attention. Mr. Green's death can be the catalyst to reinvigorate help for children. His death, if our community is paying attention and commits to taking action, can affect, shape and mold the lives of countless children in the future.

Let there be no misunderstanding - Nathaniel must be accountable and responsible for his behavior. We have seen all kinds of finger pointing. Mother failed, the schools failed, the Police failed, the Courts failed. Perhaps - but Nathaniel pulled the trigger. He made the decision. Thousands of children raised under similar circumstances don't kill.

THE SENTENCE THEREFORE IS AS FOLLOWS:

This Court orders that Nathaniel Jamar Abraham be placed within the Juvenile Justice System and committed to F.I.A. for placement at Boys Training School. The Court shall continue to supervise the progress of Nathaniel Abraham and will conduct six month reviews of his progress. It is further ordered that Nathaniel may not be transferred from Boys Training School without a Court Order after a hearing, with notice to the Prosecutor and Defense. This sentence shall be effective until Nathaniel reaches age 21 when this court loses jurisdiction. This shall be a treatment program involving individual and group therapy for he and his family and shall include positive role models with positive rewards for proper behavior.

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THESE REMARKS I ADDRESS TO YOU NATHANIEL ABRAHAM:

Your shooting and killing of Ronnie Green has destroyed the lives of many people. You need to begin by imagining 10 times worse than you have ever felt in your life, and then imagine that feeling going on and on. This is the grief you have caused Mr. Green's family. Do you begin to understand what you have done? You clearly need to put yourself in the other persons shoes. You need to learn to think before you act. You need to look at the consequences of your behavior for yourself and for others. You have done probably the worst thing any one can do and that is to kill another human being. You are going to have to come to terms with this before you can begin to grow as a person and develop the potential that all children possess. You need to learn to respect yourself and demand more of yourself.

You are capable of learning to value human life and potential both in those around you and in yourself. Most children see themselves as the center of the universe. Children put their own needs first. In the long run you will best have your own needs met by concerning yourself with the needs of others. You will earn respect from others, and self-respect, by treating others the way you want them to treat you.

We as a community have failed you, but you have also failed us and yourself. I will be keeping a very close eye on you and your progress. When you are able to fully understand what I am telling you, I urge you to take advantage of the help we are trying to give you. The only thing you can do to begin to repair the damage you have caused to the Green family is succeed. Don't let Mr. Green's death be in vain. Help us help you and in turn help many other children in this community. No one can do it for you. You must do it for yourself.

Nathaniel - you have the key to much of your confinement. Your behavior will determine this. If you do well you will have more privileges. If you do poorly you will lose privileges. I hope you succeed.

I schedule the 6 month statutory review hearing for July - , 2000 at 8:30 A.M.

IT IS SO ORDERED

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Eugene Arthur Moore