MICHAEL SKAKEL'S SENTENCING: An Anachronism, And Not Only Because Of The Long-ago Crime

By MARK H. ALLENBAUGH

Monday, Sep. 02, 2002

On the night before Halloween 1975, Martha Moxley was gruesomely bludgeoned to death with a six-iron golf club. On August 29 of this year, nearly 27 years later, Michael Skakel, the nephew of Robert F. Kennedy's widow Ethel, was sentenced to serve a term of from 20 years to life in prison for the murder.

The sentence was close to the maximum sentencing range available to the court. With good behavior, however, Skakel will be eligible for parole in as little as 12 years.

The Skakel sentencing is an anachronism in many respects, and not just because it has dredged up painful memories from long ago.

The Historical Approach: A Separate System For Juvenile Offenders

First and foremost, the Skakel case raises the important issue of how we should sentence violent juvenile offenders. Although Skakel is now in his forties, he was only 15 at the time of the murder. Therefore he was, at least initially, within the jurisdiction of the juvenile courts.

So, rather than "punish" juveniles with incarceration for their offenses, our criminal justice system devised an alternative system--combining special juvenile courts with alternatives to adult incarceration. By labeling juvenile offenders "delinquents" rather than "criminals," the hope was that by processing them through this alternative system, wayward youth could be morally and vocationally rehabilitated.

The Modern Trend: Sentencing Juvenile Offenders as Adults

Today, however, the picture is changing. More and more legislatures are drafting transfer laws to allow increasingly younger offenders who are convicted of serious crimes (such as murder) to be transferred out of the jurisdiction of the juvenile courts, and into regular criminal courts in order that they may be tried as adults.

In a growing number of jurisdictions, the seriousness of the offense charged results in the system's simply ignoring the reduced culpability of the juvenile offender altogether. Thus, somewhat ironically, a child charged with shoplifting receives the benefits a child charged with murder would not.

Sometimes the results can be unexpectedly harsh. A recent example was the March 7, 2001 Florida sentencing of 14-year old Lionel Tate to life imprisonment without parole, for a murder he committed when he was only 12.

How did Tate get such a long sentence for a crime committed at such a young age? The answer is twofold. First, Florida law allowed Tate to be transferred out of the juvenile system because of the seriousness of his offense. Second, because of Florida's strict sentencing guidelines for such offenses, the judge had no alternative but to impose a life term without possibility of parole.

After sentencing, even the prosecution said that it would join with the defense in asking Governor Jeb Bush to grant Tate clemency - underlining the system's ability to impose punishments that all agree far exceed the culpability of a youthful offender.

How the Supreme Court Views Juvenile Offenders

The Supreme Court's view on juvenile offenders may be in flux. In 1989, in Stanford v. Kentucky, the Court upheld the constitutionality of executing minors for capital offenses. (Justice Stevens, who is still on the Court today, dissented). But it is possible that holding may soon be overruled by the Court.

Having held in Penry v. Lynaugh that executions of the mentally retarded were constitutional, the Court changed its mind this year in Atkins v. Virginia. The reason, it said, was a change in the national consensus as to whether such executions were cruel and unusual.

Could a similar change be at work with respect to juvenile executions? The three dissenting Justices in Patterson suggested the answer could be yes. They believed that it would have been appropriate for the Court to hear the case, rather than simply denying the stay of execution, in order to at least re-address the issue.

Juvenile Courts Today Would Treat A Fifteen-Year Old Skakel Harshly

What the future will hold for juvenile offenders is uncertain. What is certain, though, is that juvenile courts in 1975, when the murder was committed, would likely have treated Skakel much more leniently than courts would today.

Skakel tried to keep his case in juvenile court in Connecticut. But it was determined that there simply was no facility available in the state to house a now 41-year old "juvenile offender." And the truth is, the only change that would really have helped him would have been being able to be transported back to the year 1975.

Even if Skakel were a 15 year old minor today, he might still face a future as bleak as Lionel Tate's. Chances are that, just like Tate, Skakel still would have been transferred out of the juvenile court's jurisdiction. (Connecticut allows for transfers of juveniles as young as 14 who commit murder.)

On the slim chance Skakel had indeed been able to remain in the jurisdiction of the juvenile court, he might have fared better, however - even today. He would have been "committed" to a Connecticut juvenile facility for at most four years, rather than facing the long sentence he must serve now.

The Rehabilitative Model of Indeterminate Sentencing

Skakel's sentencing also is an anachronism in a second respect, as well. It involves an indeterminate sentencing scheme: rather than specify an exact duration for Skakel's sentence, the court sentenced him to a broad range, defined by a minimum and a maximum term. (In Skakel's case, 20 years to life).

Indeterminate sentencing, therefore, is focused mainly on rehabilitating the offender, rather than punishing him. For this reason, it has often been referred to as the "medical model" of sentencing.

During Skakel's sentencing hearing, the judge - Judge John F. Kavanewsky, Jr. - remarked that although the maximum term Skakel could receive was life imprisonment, "[t]he Court's discretion extends only to the minimum term to be imposed." But that is not quite accurate - for the 20 year minimum the judge imposed is not a true minimum. Rather, as mentioned above, with good behavior, Skakel could be released on parole in as little as 12 years.

In states that still follow the rehabilitative model of indeterminate sentencing, therefore, judges actually have very little to do with the sentence ultimately served. They set neither the sentence's actual length, nor even an enforceable minimum length. The parole board, in contrast, has great power and control over sentencing.

Why the Modern Trend Has Moved Away From Indeterminate Sentencing

Under the rehabilitative model, similarly situated offenders who commit similar offenses often can receive widely disparate sentences. This occurs for the obvious reasons that their sentences are not determined ahead of time by set criteria, and are subject to different parole boards' discretion, personalities, and preferences.

Furthermore, in indeterminate sentencing jurisdictions, judges sometimes artificially inflate an offender's sentence in order to ensure that the offender serves at least some minimum amount of time. This is both disingenuous and dangerous: the parole board may take the judge's inflation as a mark of the offender's special dangerousness, when it is really only a sign of the judge's wanting to have greater sentencing control.

Perceiving the inequity inherent in such results, many states have abolished indeterminate sentencing models in favor of "truth-in-sentencing" schemes. And all federal crimes are sentenced according to such a system

Under "truth-in-sentencing" approaches, sentences are specifically determined by the judge; parole has been abolished; and judges must impose sentences in accordance with sentencing guidelines or mandatory minimums. In addition, pursuant to these models, the focus is on the seriousness of the offense and the culpability of the offender rather than the offender's potential for rehabilitation.

Thus, had Skakel been sentenced under such a regime, even as a minor tried as an adult, he - like Tate - probably would have received a mandatory life term without the possibility of parole. The difference, obviously, is dramatic.

Sentencing Skakel

The world of criminal and juvenile justice has changed considerably since 1975. The sentencing of Michael Skakel illustrates just how much.

For some, the possibility that he may be released in as little as 12 years may seem unjust, but that is because they view punishment, not rehabilitation, as the overriding purpose of sentencing - following the more modern trend. For others, assuming good behavior, 12 years may be appropriate, especially because Skakel was a juvenile when he committed his offense and in light of his troubled childhood.

In all events, while it is hard to agree on the correct sentence, it is easier to concede that, as Judge Kavanewsky stated, "[s]entencing in a case like this is one of the most difficult tasks that a judge has to carry out," especially given the case's many anachronisms.


Mr. Allenbaugh is an Associate at Montedonico, Belcuore & Tazzara, P.C. in Washington, D.C., and is an Adjunct Professor in the Philosophy Department at the George Washington University. Prior to entering private practice, he served as a Staff Attorney for the United States Sentencing Commission. Mr. Allenbaugh has published numerous articles on sentencing and criminal justice, and is a co-editor of Sentencing, Sanctions, and Corrections: Law, Policy, and Practice (2d ed., Foundation Press, 2002). He can be reached at Mark.Allenbaugh@mbt-legal.com

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