High Crimes

Daniel Otto and his girlfriend just wanted to get loaded one summer night. Neither of them imagined that she would wind up dead and he would be charged with murder.

Assistant Hennepin County Attorney Elizabeth Stofferahn listed multiple reasons that the state believed Otto should be found criminally liable in providing methadone to Thompson: He said his mom became "droopy" when she used it; he told police he hadn't wanted to get the methadone for Thompson; he gave Thompson the drug despite his belief that she could be pregnant; and he admitted to police that he lied to his mother about stealing the methadone from her because he knew the drug could kill someone.

Cathryn Crawford, clinical associate professor at the Children and Family Justice Center of Northwestern University School of Law, says that in the not-too-distant past, the Minnesota juvenile justice system treated cases like Otto's differently—by trying to target and rehabilitate the behaviors that led to an offender's crime in the first place, without the specter of hard time in an adult prison. "It used to address the transitory nature of adolescence," Crawford says, "which is consistent with research of adolescent development that [shows] kids outgrow the behavior."

Nationwide, the proportion of juvenile offenders certified for trial as adults escalated through the 1990s, culminating in Congress's 1999 passage of the Violent and Repeat Juvenile Offender Accountability and Rehabilitation Act, which increased penalties for juveniles based on a growing sentiment that rehabilitative sentencing was inadequate for hardened repeat juvie offenders. The act allows minors who are convicted of a violent crime to be prosecuted as adults in federal court beginning at the age of 14. Essentially the same standard applies in Minnesota state courts, where 14 is likewise the threshold for trying teens charged with violent crimes as adults.

In 1994, in an attempt to respond to the supposed increase in youth violence while still addressing the needs of adolescents, the Minnesota legislature established Extended Jurisdiction Juvenile prosecutions, or EJJ. The law allowed juvenile courts to impose a hybrid juvenile/adult sentence as a "last chance" at reform for juveniles. Initially, those on the task force that created EJJ, including U of M professor Barry Feld, intended it to be a system that would help juveniles who would otherwise be ushered into adult court. But it hasn't always worked out as planned.

In Otto's case, the EJJ mechanism gave prosecutors the leverage to drive a hard plea bargain: He could plead guilty to third-degree murder and receive an EJJ sentence, or he could be certified as an adult and go to trial facing the prospect of 12 years in an adult prison.

On October 17 Otto's attorney, Stephen O'Brien, took the plea agreement. His client would plead guilty to the first count of third-degree murder as an extended jurisdiction juvenile, and the manslaughter and theft charges would be dismissed. Under EJJ guidelines, Otto would receive a "blended" juvenile and adult sentence of 86 months for the third-degree murder of Thompson.

Otto appeared before the court that day in a slate-green jail jumpsuit. The skin under his eyes appeared dark and swollen under the yellow fluorescent lights. When he looked up and saw a relative who had flown in from New York that day to attend his hearing, he smiled and timidly waved.

According to Sands, Otto told her later that it made him "queasy" to answer the questions posed to him as he allocuted to the charge in court. But he had no other choice, he realized: It was either say out loud that he knew the methadone could kill Thompson, or land in prison and become a punching bag for 12 years.

Otto will spend the next 43 months, until he turns 21, under EJJ probation at the Griffith Center for Children (formerly Emily Griffith Center) in Larkpsur, Colorado, a high-security treatment facility for emotionally troubled boys and young men. In directing Otto there, Judge Denise Reilly noted that Minnesota had no comparable program to meet Otto's needs, and said that "public safety" and the best interests of Otto would be best served at the Griffith Center.

If Otto keeps his nose clean—no drugs, no fights, and no missed meetings with his probation officers—he will be released on his 21st birthday. If he violates probation, he will be transferred to the Minnesota Correctional Facility in St. Cloud to serve out the remainder of his 86-month sentence. In a recent study of Minnesota's EJJ system, Barry Feld found that one-third of the juveniles sentenced under EJJ violate the terms of their probation and wind up serving adult sentences.

Most of the violations cited in the study "were technical violations," notes Feld, "like testing positive for drugs or not showing up for meetings." Feld, a law professor and juvenile justice expert who helped develop the EJJ system passed by the Minnesota legislature in 1994, notes that EJJ has had some unintended consequences—chief among them its use as a plea-bargaining tool, and its function for many young offenders as a back door into adult prisons.

A 2004 report by the National Mental Health Association found that the rate of mental disorders for youth in the juvenile justice system is as high as 60 percent, and that two-thirds of those suffering from mental problems have substance abuse issues as well. Otto entered the system with diagnoses of depression, EBD, and substance abuse.

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