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Lawmakers may consider sentencing options for children waived to adult court

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Within a six-month period, one Indiana county prosecutor faced two situations where he had to make one of the toughest types of decisions – whether a child should be tried in juvenile or adult court based on the brutality of a crime and age of the offender.

Neither child was old enough to drive, but their crimes both involved fatal or near-deadly use of a weapon with apparent premeditation. One was 15, the other was 11.

sonnega-steve-mug Sonnega

Both cases that occurred in Morgan County Prosecutor Steve Sonnega’s jurisdiction were headed toward adult court at one point, but were diverted to different routes based on prosecutorial discretion and state statutes governing crimes committed by juveniles that can be waived to adult court. The high-profile cases brought to light an issue more attorneys and judges are facing throughout Indiana and one that is calling for legislative attention in upcoming sentencing debates.

Prosecutors and judges are facing the choice between trying young offenders in juvenile or adult court more often today than they did three decades ago. The number of statutes criminalizing what was once considered minor behavior has increased, and judicial decision-making power on placements and rehabilitation is more limited now.

“They’re taking more crimes and jurisdiction away from us,” said Lake Superior Judge Mary Beth Bonaventura, who presides over the county’s juvenile court. “We’ve taken a middle of the road path compared to other states, but we’re being given less discretion to decide what the best options are for the kids and families and instead are just being told more often to just dump them into the adult system. We can do better.”

Lawmakers have given juvenile courts no jurisdiction over 17 offenses ranging from attempted murder to dealing in certain drugs when the defendant is age 16 or older. That is up from approximately four offenses since the mid-1980s, according to Indiana Judicial Center attorney Jeff Bercovitz. That leads to younger offenders, some even charged with their first crimes, being put into the adult system where they will remain and face becoming repeat offenders without the rehabilitative possibilities of the juvenile courts.

Critics say rehabilitation offered through juvenile courts may be more expensive because of extended placements or services through third-party vendors, but the juvenile judges who see these youths say it’s worth the cost and that often that is what’s best for that family and community.

The Indiana Supreme Court’s Division of State Court Administration does not track figures on how many waivers into adult court occur each year, but juvenile judges statewide say anecdotally that the number is going up. How visible that trend is, or whether a rise is happening at all, depends largely on the location.

MaryBeth Bonaventura Bonaventura

While some prosecutors may find it easy to get a waiver into adult court, in some jurisdictions, such as Marion County, judges have allowed several children as old as 15 to stay in juvenile court to face murder charges.

In St. Joseph County, Juvenile Judge Peter Nemeth said he hasn’t noticed any significant spike in waivers since he took the bench in 1993. But he knows his colleagues are facing that more frequently, he said.

“Our hands are tied more today than they ever have been,” Judge Nemeth said about juvenile court jurisdiction and authority, particularly on placements. “So much of it now is about the budget and how much it’s going to cost that we’re not focusing on what we should be: placing kids where they have the most opportunity to be rehabilitated, not where it costs the least or looks like the best budgetary decision on paper.”

Judge Bonaventura and others statewide point to data from the National Institutes of Health, which shows advanced functions of the brain do not fully mature until well into early adulthood. That study came up in the 2005 U.S. Supreme Court decision prohibiting the death penalty for those younger than 18, something Indiana lawmakers had mandated years before and the late Sen. Anita Bowser championed.

To Judge Bonaventura, the research supports the creation of a youthful offender law in Indiana that could offer the rehabilitative benefits of juvenile court into early adulthood, perhaps even until age 25 when brain function fully matures.

Indiana law allows children as young as 10 to be waived to adult court if the child is charged with murder. But the statutory and discretionary aspects of deciding which path a juvenile should take can be confusing. For example: A 10-year-old can be charged with murder in adult court, and a 14-year-old charged with repeat felonies can be sent to the adult system as well, but a 16-year-old charged with attempted murder might be allowed to remain in juvenile jurisdiction.

nemeth-peter-mug Nemeth

No blended sentence law – as can be found in other states – exists in Indiana to allow adult-court judges to refer youths back to juvenile jurisdiction if the circumstances warrant it. Discussion has occurred about the Indiana General Assembly exploring that topic during its next session. Rep. Ralph Foley, R-Martinsville, said some of those juvenile jurisdiction questions may come up as the Legislature tackles sentencing and criminal code evaluations in the next session.

In Morgan County, one of the recent cases involved a 15-year-old school shooter charged with attempted murder of a classmate, and the other involved an 11-year-old boy charged with murder for the shooting of his 6-year-old brother with a rifle.

Ironically, Sonnega said it was easier to obtain a move into adult court on the older school shooter, Michael Phelps, for attempted murder because he was older and had intent, than it was for the 11-year-old charged with murder. That case proved to be more complicated because of the boy’s younger age.

“The Legislature has to draw the line somewhere, and as you can see it doesn’t have to make sense,” he said.

Citing the 11-year-old’s age, cognitive development, and maturity level, Sonnega said he wasn’t seeking to have the case moved into adult court. If that happened, he would have been the youngest in the state to have been waived into adult court since the 1920s, and he would have faced 45 to 65 years in adult prison if convicted. But Sonnega said he was hard-pressed to say the boy was beyond rehabilitation in the juvenile system.

Meanwhile, in adult court, Phelps was convicted of attempted murder in the Martinsville West Middle School shooting in March. Phelps was older, plotted his attack, and had a juvenile record, Sonnega said. Phelps faces 20 to 50 years in an adult prison.

“It’s not an easy decision and you don’t have a crystal ball to know what will happen, but you’re not throwing a dart at a board blindfolded,” he said. “You make the decision based on the practice of a court and your own experiences to know when you might be able to push that presumption boulder far enough up the hill to get a waiver. But in the end, you have to determine whether rehabilitation will work and if that’s the best option to protect a community.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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