The Kickham Comment - Boston Criminal Attorney Blog
In my previous post on this subject, I reported on a brutal murder which took place in Hyannis, Massachusetts last December 15 2008. Aside from the savagery that marked this particular murder, what distinguished it from most murders was the fact that two of the three defendants charged with this murder are 13 years old, and are prevented by Massachusetts’ Juvenile Offender Law from both being tried as adults under the law, and shielded from a public trial. However, what many observers consider to be far worse, is these two defendants, if found guilty, can be held in state custody only until age 18. After the age of 18, the state can petition a court to continue to incarcerate that convict until he reaches the age of 21, but that is the maximum: After reaching the age of 21, that convict must, under the Juvenile Offender statute, be released from custody. Given the shocking allegations in this case, this potential outcome has been met with understandable outrage from a number of corners.
As I explained briefly in my previous post, were either of these two 13 year old defendants just one year older – age 14 – they could be tried as adults under the Juvenile Offender Law, and if found guilty, punished as adults. That would mean life in prison without the possibility of parole, if convicted of first degree murder, and a typically a minimum of twenty years if convicted of a lesser offense involving murder. The Juvenile Offender Law protecting these 13 year-olds was designed to shield very young offenders from the punishment meted out to adult offenders. But while a laudable idea in theory, is this law ill-advised in the real world we live in? Conservatives would brand this type of law the product of “bleeding heart liberals.” While I don’t count myself among conservatives, looking at this case, it’s hard to presently disagree with that assessment.
In my capacity as an experienced Massachusetts criminal defense attorney, I have been involved with many violent cases: From Assault and Battery with a Dangerous Weapon, to Rape, to Drug Offenses, to Murder. In my opinion, rather than choose an arbitrary age (such as 13), and declare that “No one of this age or younger can be tried under the same laws as an adult,” it would be a far more just approach to gauge each case on its own facts, in deciding whether or not to subject a youthful offender to the same laws that would apply to an adult in that case. Instead of a “blanket” approach, the set of facts and allegations that independently comprise each case should determine whether or not a youthful offender should be shielded from the laws that normally apply to adults.
I believe a wise approach would be as follows: Instead of statutorily tying a judge’s hands in an unspeakably heinous crime such as this, and forcing that judge to shield a defendant from the normal laws and punishments that would apply to an “adult” defendant in the same case (i.e., potentially anyone aged 14 or older,) an alternative mechanism should be created that would involve a legal maxim known as a “rebuttable presumption.” Under such a system, a “rebuttable presumption” would exist that a criminal defendant under the age of 14 should be shielded from the normal laws and criminal sentencing that apply to defendants over the age of 14. However, judges would be allowed to hear arguments by prosecutors that could, if the evidence presented were persuasive enough, rebut that presumption, and allow the judge to try such a defendant as an adult. While I am a defense attorney, I believe this approach to be quite prudent, and fair. It is quite true that courts should indeed recognize that very youthful offenders often merit protections that adult defendants do not enjoy, and such an overall approach is justified. But an absolute prohibition against exposing defendants under the age of 14 to adult sentencing, is overly-broad, and can produce decidedly unjust criminal law results. There is a sociological or theoretical presumption in the present Juvenile Offender Statute, which presumes a 13 year-old cannot know or understand that nature of his acts; that such an individual cannot be evil. I do not believe this statutory presumption to be true in all cases. Tragically, several cases, including apparently the present one written of here, illustrate the fallacy of this presumption.
At this point, these defendants must be presumed legally innocent, and they should each receive a vigorous legal defense from competent legal counsel. However, a close look at the evidence in this case, may make clear that our justice system should not shield someone accused of a heinous crime, on the basis of his age alone. Savagery and depravity can exist inside any human being, regardless of age. While some of my defense bar colleagues might disagree with my suggestions here, I believe our common goal in such cases should be justice, not loopholes. In my opinion as a Massachusetts criminal defense attorney, to do otherwise is to invite the crude jokes and criticism far too often heaped upon the criminal defense bar.