Juvenile injustice 

The Wayne County judge presiding over the murder trial of Damion Todd wanted to send a message.

The year was 1986, and the problem of violence among Detroit teens had reached panic-inducing proportions. That year alone 365 kids 16 and younger were shot; 43 of them died.

Melody Rucker was one of them. Just 16, she was attending an end-of-summer party at a friend's house on the city's northwest side the August night that Damion Todd, riding in a white Mercury Cougar with three friends, leaned out the window and fired off four rounds from a shotgun. Rucker died and a second girl was seriously injured. A reporter from the Detroit Free Press covering Rucker's funeral wrote: "Melody Deshawn Rucker, the sunshine child, was buried Thursday. In life, she was the joy of her family, 'Poochie' to her friends, a cheerleader, a basketball player, a member of the Angelic Choir at her church. In death, she was just another homicide victim in a city that has so many homicide victims that the police apparently can't keep up with the count. ...

"Her teenage pallbearers talked about the everyday violence that this time touched too close to home. 'What can you do about it?' someone asked them. Nobody seemed to know."

But something desperately needed to be done to stanch the bloodshed in the city that had come to be known as the murder capital of America. As the epidemic of crack cocaine took hold, and the violent drug gangs that peddled the poison grew more audacious, the community reacted with a combination of fear and outrage.

Things were spinning out of control.

And Recorder's Court Judge Michael Talbot used the high-profile case of 17-year-old Damion Todd to drive home the point that teenagers convicted of murder in Detroit would be subjected to the harshest penalties possible.

So it was that Todd — who had never before been charged with a crime, who had no connection to the drug trade, who had been active in his church, who'd been a captain of his football team at Henry Ford High School and was looking ahead to his senior year before going on to college — found himself being sentenced to life in prison without the possibility of parole. In addition, Talbot decreed that Todd's life behind bars should be spent in solitary confinement and performing "hard labor." It didn't matter that, as Talbot himself later pointed, although technically still on the books, the state Department of Corrections no longer "honored" sentences of hard labor and solitary.

"If the state ever changes its mind about invoking that part of the statute, my customers will be ready," Talbot explained from the bench.

One of Detroit's daily papers reported at the time that "... the sentence, virtually unprecedented for a 17-year-old, was not imposed lightly. 'The case was clean,' the judge said. 'You've got to start to win the war (against youth violence and murder) someplace.' Mr. Todd had the monumental misfortune to become the example Judge Talbot wished to set in an effort to help Detroit gain control over its youth crime epidemic."

That was 20 years ago. Twenty years in which this nation's attitude toward juvenile justice took a hard swing to the right, with states across the country clamping down on youthful offenders by passing laws to treat more young criminals as adults. Twenty years in which Damion Todd has made the transition from adolescent to adult while being locked away.

Now, at the age of 37, he'd like to again be seen as an example — an example of why it's wrong to throw teenagers behind bars and then toss away the key, an example that proves rehabilitation is possible and that one-time criminals, even those who have killed, can be reformed and returned to the outside world without posing a threat to society.

He's far from alone in the desire to see those views accepted. If attitudes toward the criminal justice system can be seen as a pendulum, then the swing to the hard right that was under way in 1986 appears to have started moving in the other direction.

Supreme decision

In March of last year, the U.S. Supreme Court ruled 5-4 that it is unconstitutional to apply the death penalty to anyone who committed their crime while younger than 18.

"From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed," Justice Anthony M. Kennedy wrote.

Opponents of sentencing minors to life without possibility of parole say that same logic should apply to their cause.

Reports issued last year by such groups as Human Rights Watch, Amnesty International and the Michigan ACLU have also helped pave the way toward potential reform, making the case that America's draconian juvenile justice system is wildly out of sync with the approach taken by nearly every other country in the world. Treating these "children" as adults, it's argued, is a violation of international law.

It's also unnecessarily cruel, say critics. If minors lack the emotional and intellectual maturity to be treated as adults in every other way — they're not allowed to vote, serve on juries, enter into contracts or consume alcohol — how can justice possibly be served by treating them as adults when they break the law?

"Kids who commit serious crimes shouldn't go scot-free," contends Alison Parker, a researcher for nonprofit group Human Rights Watch and author of The Rest of Their Lives report issued last year. "But if they are too young to vote or buy cigarettes, they are too young to spend the rest of their lives behind bars."

The issue is particularly pertinent in Michigan, one of 19 states with no lower limit on the age at which a child can be prosecuted and punished as an adult. Currently, 314 prisoners in Michigan are serving sentences of life without possibility of parole for crimes committed when they were 17 or younger. When The Rest of Their Lives report was compiled last year, only Pennsylvania (with 332) and Louisiana (with 317) had more people serving such sentences for crimes committed while they were juveniles.

(Michigan is among a handful of states where 17-year-olds are considered adults when it comes to criminal matters. Most everywhere else though — a majority of states and nearly all the countries of the world — the accepted age is 18. Likewise, when the U.S. Supreme Court ruled that juveniles couldn't be executed, it included 17-year-olds.Which is why the advocates studying the issue counted Michigan's 17-year-olds as juveniles.)

Nationwide, there are more than 2,200 such prisoners. According to Parker of Human Rights Watch, only three other countries — Israel, Tanzania and South Africa — have sentenced juveniles to prison for life without the chance of parole. Those three countries combined have a total of 12 such inmates.

"Child offenders should be given the possibility of freedom one day, when they have matured and demonstrated their remorse and capacity for rehabilitation," wrote Parker.

Last year bills were introduced into both houses of the Michigan Legislature that, if signed into law, would prevent offenders under 18 from being sentenced to life in prison without the possibility of parole. Until now, those bills have remained tied up in committee, unable to get a hearing. But with Democrats gaining control of the House, there's renewed hope among supporters that the first steps toward change will be taken.

But there's certain to be stiff opposition. Oakland County Prosecutor David Gorcyca, for one, argues that the issue of cognitive brain development is a "hollow argument." By the time someone's a teen they certainly know the difference between right and wrong, and fully have the capacity to realize that if you point a loaded gun at someone and pull the trigger, there will be bloodshed.

He's far from alone in decrying the proposed changes. A statewide group of fellow prosecutors is already on record as opposing any amendments to the juvenile lifer law, he says.

"There's a number of brutal killings and capital cases where it is appropriate to sentence juveniles to life without parole," he says.

Damion Todd, now 37, is praying such opposition won't be enough to stop the legislation. After 20 years behind bars, more than half his life, he contends that he's paid a sufficient price for the tragic mistake that cost Melody Rucker her life.

Dead-wrong decision

The end-of-summer party on Sunderland Road was already breaking up by the time Todd and two of his friends showed up the night of Aug. 16, 1986. There are conflicting accounts of what happened that night, but according to court records some witnesses said there were already problems before Todd and his friends arrived. A fight had broken out, according to some accounts, and a .45-caliber pistol had been brandished.

As people milled around in front of the house waiting for rides home, Todd and his friends stayed for a short time then got back in the white Cougar being driven by Vernard Carter and drove off. Two students — including the one who'd allegedly pulled out the pistol — jumped in a red Cavalier and followed.

Todd and his friends claim that the Cavalier pulled up behind them flashing its lights. They slowed down and the Cavalier passed, then pulled over. The two guys in the Cavalier hopped out, and one of them fired two shots at the car Todd and his pals were in.

Todd's group drove to a friend's house nearby and retrieved a shotgun, which they called a "gauge." The gun's owner joined them. Todd sat in the front passenger seat as the four returned to the party.

What happened next was hotly disputed during the trial. Most witnesses said Todd leaned out the window and, without provocation, started firing into the crowd.

Todd claimed that the same person who had fired at them earlier again shot at their car. He maintains that he then fired back, pointing the shotgun in the air as he fired, never intending to hit anyone, only wanting to "scare" off the other shooter.

A neighbor who lived next door to the party testified that he heard a shot come from the street before Todd opened fire with the shotgun. He also testified that the gun was pointing in the air at a 45-degree angle.

It was the first time Todd had ever fired a gun. He didn't know how to operate the shotgun, and had to be told to pump it before pulling the trigger. He fired off four shots. Pellets hit Melody Rucker in the eye, neck and shoulder, killing her. Another girl was wounded in the chest, but survived.

Todd and the three others in the car were taken into custody the next day. One of the four was never charged, receiving immunity from prosecution in return for his testimony. Todd claims that's because the boy had an uncle working in the homicide unit of the Police Department, and that the investigation was skewed because of that.

He does not, however, deny being the one who fired the shotgun out the window of the car as it rolled past the party that night.

"I made a very immature decision in the heat of the moment," Todd tells the Metro Times during one of three recent phone interviews. He's calling from the Mound Road Correctional Facility in Detroit, where he's currently locked up. "We went to get the gun to scare the guys who shot at us. We wanted to show these guys we weren't afraid of them, to scare them like they scared us."

"I felt like I had to defend myself," he explains, saying that growing up in a community "where a lot of young people have access to guns, if you don't, word spreads."

And at 17, no guy wants to look like a coward in front of his buddies.

"But back then," he says, "I hadn't lived on this earth long enough to understand the full impact of my decisions."

Brain scans

In the report The Rest of Their Lives, a joint effort by the nonprofits Amnesty International and Human Rights Watch, it's pointed out that proponents of treating juveniles as adults are correct when they say that even a 6-year-old can tell you that it's wrong to kill someone.

But there's a difference between being able to "parrot" the phrase and understanding the full consequences of a particular action.

"Psychological research confirms what every parent knows: Children, including teenagers, act more irrationally and immaturely than adults," the report states. "According to many psychologists, adolescents are less able than adults to perceive and understand the long-term consequences of their acts, to think autonomously instead of bending to peer pressure or the influence of older friends and acquaintances, and to control their emotions and act rationally instead of impulsively."

"Psychological research," according to the heavily footnoted report, "also consistently demonstrates that children have a greater tendency than adults to make decisions based on emotions, such as anger and fear, rather than logic and reason."

Using MRIs, neuroscientists are now able to provide a physiological explanation for all this. Although the rate at which teenagers acquire adult capabilities varies from person to person, researchers have found key differences between the frontal lobes of adolescents and adults. This is the part of the brain that's linked to "regulating aggression, long-range planning, mental flexibility, abstract thinking, the capacity to hold in mind related pieces of information, and perhaps moral judgment," according to researchers cited in the report.

"Most brain development specialists say the brain's frontal lobe isn't fully developed at least until the age of 18," says Rosemary Sarri, a professor at the University of Michigan's Institute for Social Research.

Sarri, who's been studying juvenile justice issues for 40 years, sums up the research that's taken place over the past decade this way: "We now know why kids do the crazy things they do. They are fundamentally different than adults."

And that fact needs to be taken into account when juveniles commit crimes, argue opponents of the current system.

"Culpability for offenses is measured, and should be punished, in proportion to a person's ability to appreciate the wrongfulness of their actions or control their behavior to conform with the law," is the argument put forth by the ACLU of Michigan in its 2005 report titled Second Chances. "Altogether, the body of research on adolescence supports the conclusion that juveniles are not as culpable for offences as adults, because they lack the same maturity necessary to control their actions and understand the consequences of those actions."

There's another factor that's important in all this, says Ann Arbor attorney Deborah LaBelle, director of the Juvenile Life Without Parole Initiative and the primary author of the Second Chances report.

LaBelle and others contend that the same lack of maturity and rational decision-making processes that can lead to criminal behavior by juveniles can also severely hamper their ability to fully participate in their own defense.

Circus court

"From the time I was arrested, it was a whole new experience for me," recalls Todd. "I didn't understand the court proceedings that were going on. It was almost like being put in a foreign land."

Todd says that he met with his lawyer only once before his trial began, and that meeting only lasted about an hour. Unlike most juvenile offenders, his attorney wasn't appointed by the court but rather paid for by his family.

Had he known what he does now, says Todd, "I would have fired my attorney and obtained another one. But I didn't know anything about what rights I had back then. I just listened to what my family and others said."

"The scariest moment in my life up to that time was when I stepped into the courtroom after my arrest," wrote Todd in an affidavit included in a petition alleging human rights violations the Michigan ACLU submitted to the Inter-American Commission on Human Rights earlier this year. "I was placed in front of a judge whose demeanor and unfair representations were openly expressed in front of my jury every day of my trial. My trial attorney neglected his duty, and I did not know or understand enough to make things stop. In no way do I sit here today and try to minimize my crime, but at the age of 17 I was involuntarily ignorant about most life decisions in general. It seems my way of thinking at that age was a mixture of fantasy and reality."

Describing his trial as a "circus," Todd says he did as he was told, quietly listening as he was portrayed as "this really bad person."

"I was being advised to keep quiet and stay strong," he says. "At my trial, it was like I had to put on a mask. I was trying to stay strong for my mother and my family. And I was trying to be strong for myself, because you hear the stories about what will happen to you if you go to prison and appear to be soft. But when I'd go back to my cell at night I would break down."

Among the more astounding aspects of the trial is something that didn't happen: The two youths in that red Cavalier who allegedly started the violence that night were never charged with any crime or subpoenaed to testify at the trial. Testifying at a hearing a year later, former Recorders Court Judge Justin Ravitz declared the courtroom absence of those key players in the tragedy "mind-boggling."

A jury found Todd guilty of first-degree murder, assault with attempt to commit murder (for shooting the second girl) and possession of a firearm during commission of a felony. His two co-defendants, who opted to put their fate in the hands of Judge Talbot instead of a jury were also found guilty.

Last month attorney Mark Kriger filed an appeal on Todd's behalf with the Michigan Supreme Court seeking a new trial on the basis that Todd's original attorney mishandled a key aspect of the case.

In 1998, one of Todd's co-defendants (who had a different attorney during the original trial) won the right to a new trial after winning a similar appeal. He ended up pleading guilty to second-degree murder and was released shortly after that.

While the appeals process drags on — this is Todd's fourth attempt to gain a new trial — he continues doing what he has for the past 20 years: working to show that he doesn't deserve to spend the rest of his life in prison.

A psychological profile

In 1987, shortly after entering the state's prison system, Todd was given a battery of psychological tests and extensively interviewed by a clinical psychologist.

The psychologist reported that Todd made a conscious attempt to portray himself in the "best possible light" and attributed "his 'mistakes' to the devil, normal human frailty and accidents that just happen."

"From reading the photo copies of newspaper articles ... it appears that there is strong community pressure in Detroit to end the epidemic of inner-city youths killing each other," the psychologist, Robert Beseda, reported. "The severity of the judge reflected in his alleged statement of life without parole, in solitary confinement with hard labor and a supplemental 100-year sentence appears motivated by the severity of the general problem in inner-city Detroit, more than any gross psychopathology in Mr. Todd. There is no evidence that Mr. Todd is suffering from psychosis, major affective disorders, suicidal ideation, or significant organic intellectual impairment."

Although he reported suspicions that Todd was putting on an act, Beseda noted that prisoners with similar psychological profiles "tend to be persons with very good institutional and post-release adjustment. Many people with Mr. Todd's profile pattern could have been dealt with just as efficiently and less expensively through probation in the community if the community's demand for justice and retribution were not major considerations. It is reasonable to expect that by the time Mr. Todd reaches his early 30s, he would have matured out of a youthful exuberance and indiscretions which resulted in the needless and tragic death of an innocent female bystander."

Using a standardized evaluation formula that took into account the severity of Todd's crime and past history, Beseda reported that Todd could be ready for release in just nine years.

It appears that the profile proved to be accurate after all, with Todd going on to become a model prisoner. But unless he wins a new trial or the law is changed, he'll remain locked up for the rest of his life. To survive, he refuses to stop believing it's not his fate to die behind bars.

"I fight every day to keep myself from becoming institutionalized," Todd says.

It's not easy.

"All those stereotypes you see in prison movies — stabbings, homosexuality, getting preyed upon for money, sex — those things are all real," he says. And teenagers coming into the system are especially vulnerable.

Keeping to a small group of like-minded prisoners, he obtained a GED and took college classes. He also took vocational classes.

He exercises a couple of hours a day, and spends a lot of time reading self-help books. The last such book that made a big impression on him, he says, was The Road Less Traveled by M. Scott Peck.

"One of the things he wrote in that book is that the things that hurt us are what we learn from as we navigate through life," Todd says. "That statement is so true. When things get hard for me, I say that over in my mind."

It also helps him to have the continued support of family and friends, who continue to stick by him and work on his behalf. People like Tracy Williams.

'Couldn't be our Damion'

"Damion and I were like this," says Williams, holding up her index and middle fingers and twining them together. "We were always really, really good friends."

Their junior year at Henry Ford High School, "he was voted the most spirited boy and I was voted the most spirited girl," she recalls. After Melody Rucker was gunned down, and the school refused to put Damion's picture in the yearbook to go along with that title, she insisted that her picture not be shown either.

The day of Todd's arrest she heard his name announced on the television news and froze in her tracks. She recalls thinking, "'No. That couldn't be our Damion.' Damion would never hurt a girl. I could not wrap my mind around it. It was an impassivity."

And when she found out that it was indeed her friend being charged with the crime, she completely "fell apart." She couldn't bring herself to attend his trial.

"I was just too emotional," she recalls.

"Damion was always Mr. Personality," she says. "He was always the life of the party. Captain of the football team. Student council. He played ice hockey. Do you know how many black kids play hockey?"

As the years passed, the two lost touch. Williams went to college in Chicago, eventually got a job as a flight attendant, married, moved to Dallas.

While in prison Damion also married and fathered a child. Questions about that marriage are the only ones he declines to answer when talking with Metro Times, saying it's an issue he doesn't want to discuss over the phone. He's now divorced. So is Williams.

He wrote her about two years ago in an attempt to reconnect. They corresponded, then began talking by phone. She returned home to Detroit to help care for her ailing father. And then, a little more than a year ago, Williams went to visit her high school friend.

"I tell him all the time that he's my hero," Williams says. "The way he has maintained his integrity and his level of character makes me so proud. "

During her visits to the prison she can see the empty eyes of some of the other prisoners, men content to sit around "playing cards and smoking weed (yes, there are drugs in prison). Their zest for life is gone."

That's not Damion. When he's not exercising or on work detail or reading, she says, he's working on his appeal or contacting officials in an attempt to gain their support for the legislation that would ban the life without possibility of parole sentence for juveniles.

"Me and some of the others here who are part of the Second Chance project talk about how we'd like to one day start a nonprofit organization to help troubled teens," Todd says. "I want to move on with my life and be a responsible citizen, to give back to my community and my family and everyone who has supported me."

Damion was always a leader when they were in school, says Williams, and that hasn't changed. What has changed since those days is her determination to help her friend.

"As a kid at 17, you feel helpless," she explains. "But now, as an adult, as a taxpayer, as a productive citizen, I have the power, ability and resources to take care of something that I couldn't 20 years ago. I feel I can make a difference, and I want to see something done. I don't want just lip service."

"I'm not the same person I was 20 years ago," she adds.

Pushing for changes

On a cold, sunny afternoon in early December, a small group of people involved in the Second Chances project are meeting in the upscale Bloomfield Hills home of Ysabel Benejam.

Everyone here has a relative who was convicted of a crime while in their teens. And it's telling that most of the people here are African-Americans. According to the report The Rest of Their Lives, the rate for young blacks serving life without parole in Michigan is 12 times higher than for whites.

Nationwide, black juveniles are 10 times more likely to be sent away for life without parole than their white counterparts.

There's a lot of excitement. Prisoners have sent a box of small scrub brushes decorated with photos cut from magazines — movie stars, pop singers, athletes. The brushes will be sold to raise money for the effort.

Tracy Williams is here. So is Karl Clark, an automotive engineer and a cousin of Damion Todd's. The group is in contact with about 800 people who are supporting the effort to make the laws governing juvenile offenders more humane.

Under current Michigan law, which has been in place since 1996, the transfer to circuit (adult) court of juveniles 14 and older charged with crimes involving homicide, felony murder, arson or carjacking is completely at the discretion of prosecutors. LaBelle contends that prosecutors rarely send these cases to juvenile court.

In addition, juveniles of any age can be tried in juvenile court with what the ACLU describes as "adult-like proceedings" under a process called "designation." As explained in the Second Chances report, "If a designated youth is found guilty of first-degree murder, the juvenile court has three options: 1) commit the youth to a juvenile facility until age 21, 2) sentence the youth as an adult to mandatory life without parole, 3) suspend adult sentencing, send the youth to a juvenile facility and determine whether adult sentencing is appropriate at a later date." The third option is known as a blended sentence.

Reform legislation proposed by state Rep. Paul Condino (D-Southfield) and state Sen. Liz Brater (D-Ann Arbor) has been stalled in the judiciary committee of each house of the Michigan Legislature since being introduced last year. The legislation, as currently written, would be applied retroactively and cover those who committed their crimes up until the age of 18.

"These children have committed horrible crimes and must be held accountable for their actions," Brater said at the time. "No one is saying these individuals should get off with just a slap on the wrist, but locking them away forever ignores the fact that they could eventually become productive members of society."

With Democrats winning control of the House in November, Condino looks to be in line to take over chairmanship of the Judiciary Committee there.

"I am very positive we can shape something and move it through the House," Condino says. "After that, we can take the fight to the Senate."

But it won't be easy. There are politicians on both sides of the aisle who don't want to be perceived by voters as being "soft on crime." But that's not the case, Condino says. What the legislation would do is give judges some discretion.

What's interesting is that there seems to be a disconnect between those tough-on-crime politicians and most of their constituents. A survey conducted last year by the Wayne State University School of Social Work found that only 5 percent of the state's residents supported Michigan's current law regarding juveniles serving life without parole in adult facilities. "The majority believed 'blended' sentences that included both juvenile and adult sanctions were more acceptable," according to a report released by the school.

It went on to state: "Michigan residents are unequivocal in their belief that youths should be held accountable for their violent crimes, but that it should be in a manner that recognizes the physiological, psychological and emotional capabilities of youths, understanding that these capabilities differ from that of adults. These findings seem to support alternative sentencing arrangements and changes to Michigan's current policies and legislation."

"The public is much better at understanding this than the media and the legislators who want to get elected using notorious legislation," says U-M professor Rosemary Sarri.

The big questions

In his affidavit included in the ACLU petition alleging that sentencing juvenile offenders to life without parole is a violation of their human rights, Damion Todd, whose case is one of five highlighted, wrote: "At this point in my life (as well as many other juveniles that have spent most of their lives incarcerated) prison is now beyond punishment. I wasn't raised to hate, cheat, lie, misuse, bully and mistreat people like this abnormal environment encourages daily from staff members right down to prisoners. It works to break you down mentally, to make you become institutionalized. It tries to destroy your self-esteem, it tries to make you bitter at the world. ..."

After pointing out that, having spent 20 of his 37 years behind bars, he's already spent more of his life jailed than free, he states: "I have completed all of the requirements that have been recommended for me since I have been incarcerated and through self-examination and self-correction I can clearly see today as a grown man the mistakes I made as a youth. But will I never have a chance to show this or be released to be a productive citizen because I have been given a sentence of natural life with no possibility of parole for something stupid and foolish that turned out awful and tragic one night when I was a teenager? I believe I should be punished, but forever?

"I had no choice but to grow up and become a man while behind bars in prison. ..."

Having gone from youth to middle age locked up, will Damion Todd remain behind bars on into old age, with the only release awaiting him the one death brings? Or will the efforts of those pushing for a second chance alter that course?

As that's being debated, with the fate off more than 300 others hanging on the outcome, a question asked by Damion's friend Tracy Williams is likewise worth considering: "If the system we have can't rehabilitate a child, then what good is it?"

 

For more information about efforts to change Michigan's juvenile lifer law, see secondchancelegislation.org.

Curt Guyette is Metro Times news editor. Contact him at 313-202-8004 or cguyette@metrotimes.com

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