By Steve Thorpe
Legal News
The Michigan Court of Appeals has ruled that a U.S. Supreme Court decision that said juveniles convicted of murder can be eligible for parole should not be applied retroactively for most youths sentenced in Michigan.
The ruling came in the case of Raymond Carp, a man convicted of a murder committed when he was 15.
Michigan has several hundred prisoners serving mandatory no-parole sentences for murders committed when they were under 18 and has one of the highest totals in the U.S.
The Supreme Court “decision is procedural and not substantive in nature and does not compromise a watershed ruling,” the three-judge panel said in an opinion dated late last year.
Professor Kim Thomas is one of the founders of the Juvenile Justice Clinic at the University of Michigan Law School and a graduate of Harvard Law School, where she was editor-in-chief of the “Civil Rights-Civil Liberties Law Review.”
Thorpe: The U.S. Supreme Court said mandatory life sentences for minors 17 and younger are unconstitutionally cruel. Mitigating factors such as immature mental development must be considered, the court said. Can you give us one case that illustrates that issue?
Thomas: One example is the case of Kuntrell Jackson, which was one of the two cases before the U.S. Supreme Court.
In Miller v. Alabama, the U.S. Supreme Court found that a mandatory life without parole sentence is unconstitutional when imposed on someone for an offense committed under 18 years old. Jackson, who was 14 years old at the time of the offense, went with two other boys to rob a video store. Jackson found out on the way to the store that one of the other boys had a sawed-off shotgun in his coat. Jackson stayed outside, while the two others went in the store. The co-defendant with the gun demanded money, the cashier refused. Jackson went in, saw what was happening, and when the cashier threatened to call the police, the co-defendant shot and killed her. Jackson and the other two fled.
This case exemplifies what the court is discussing when it talks about the effects of adolescence. This case was a felony murder, which in many jurisdictions, such as ours, requires the offender to think through and anticipate the consequences of his actions; something the court says young people are particularly bad at doing. Jackson committed this offense with peers, which leads to even worse decision making among youth. The court also pointed to the violence in Jackson’s family and background, in which both his mother and grandmother had shot individuals, as relevant to Jackson’s culpability.
The court now requires sentencing judges or juries to consider “the mitigating qualities of youth” if a sentence of life without parole is possible. As far as what sentences will be imposed, the court did not prohibit sentencing authorities from imposing life without parole in the worst cases. The court did say, however, that the “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”
Thorpe: The high court cited seven factors that must be considered before sentencing a juvenile to life. Can you tell us about those factors?
Thomas: The court stated that “imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children” and that mandatory life without parole improperly “precludes consideration of [the youth’s] chronological age and its hallmark features.” The court then goes on to list these factors: immaturity, impetuosity, failure to appreciate risks and consequences, and family and home environment from which youth cannot escape. Additional factors are the circumstances of the offense, including the youth’s role in the offense, and the way family or peer pressure may have affected the youth. These factors also include consideration “that he might not have been charged and convicted of a lesser offense if not for incompetencies associated with youth,” such as “inability to deal with police officers or prosecutors . . . or his incapacity to assist his own attorneys.”
These factors are based in the U.S. Supreme Court’s prior cases on juveniles, especially Graham v. Florida and Roper v. Simmons, which examined recent developments in our scientific understanding of adolescent brain development. Neuroscientists have been able to map the development and maturation of brains through the use of modern scanning techniques, such as MRIs. These scans show, among other things, that the part of the brain that seeks sensation and takes risk develops early and peaks during mid-adolescence, while the part of the brain that helps control impulses and regulate risky behavior does not fully develop until years later. The implications of this science, according to the court, are that youth is a time of immaturity, irresponsibility and recklessness and a time when an individual is particularly susceptible to influence, peer pressure and “psychological damage.”
Further, these characteristics are transient in youth, meaning that offenses by young people are less likely to reflect “irretrievable depravity” and do not foreclose the potential for maturity and rehabilitation.
Thorpe: The appeals court said that the high court’s decision earlier this year can’t be applied retroactively to inmates who have exhausted their appeals. What does that mean for the state’s “juvenile lifers?”
Thomas: The Michigan Court of Appeals said that Miller should not be applied retroactively, under either the federal test or the Michigan test for retroactive application. This means that Miller will apply to juveniles who are going to trial now or who were going through their direct appeal process when Miller was decided this past June. So, a relatively small number of persons convicted as juveniles would have their cases go back to the trial court to have a new sentencing hearing to decide an appropriate sentence with the Miller mitigation factors being considered. Under the court of appeals decision, Miller will not apply to the vast majority of juvenile lifers in Michigan, those whose cases had completed the direct appeal process before June 25, 2012. These persons will serve life without the possibility of parole and will not have a resentencing.
Thorpe: How does this compare to the Michigan Supreme Court actions in 1992 on mandatory life sentences for possession of large amounts of cocaine?
Thomas: In 1992, in People v. Bullock, the Michigan Supreme Court found that a mandatory life without parole sentence for possession of 650 grams or more of cocaine was “cruel or unusual” punishment under our state constitution. The U.S. Supreme Court had previously found that the Michigan statute did not violate the Eighth Amendment of the federal constitution. The Bullock court found that the penalty was unconstitutionally disproportionate to the offense and that the punishment was not constitutionally permissible for the crime for any offender. As a remedy, the Michigan Supreme Court did not order resentencings but instead struck down the portion of the statute that barred the Parole Board from considering offenders sentenced under this law. This had the effect of making all of those lifers eligible for parole under the usual parole process — including those whose cases had already completed the direct appeal process.
Thorpe: The judges recommended that lawmakers modify state statutes to comply with the ruling. Is that going to happen?
Thomas: Bills have been introduced in both the House and the Senate that address mandatory juvenile life without parole. Some of these bills would give an opportunity for a sentence of life with eligibility for parole for all juvenile offenders serving mandatory life; others do not. That said, I think it is unlikely that there will be much movement on these during the “lame duck” session. Next year, the state legislature could take up one or more of these bills. At a minimum, legislation will likely redefine the Parole Board’s jurisdiction, because at present the Board is barred from considering all juveniles convicted of first-degree murder, which runs directly contrary to Miller’s holding.
The Carp panel of the Michigan Court of Appeals also expressed concern that, if given a paroleable life sentence, juveniles serving this sentence should be given meaningful consideration by the Parole Board. Right now, when reviewing someone sentenced to a parolable life sentence, the Parole Board can impose a “life means life” policy on offenders sentenced to life with parole, effectively denying them any opportunity for release. Carp invited legislators to examine Parole Board procedure to determine if it should be modified in light of Miller so that juveniles who receive parolable life sentences are given “meaningful determination and review” by the Board.
Thorpe: There may be an additional appeal to the Michigan Supreme Court and there is a case before a federal judge in Ann Arbor overseeing a lawsuit about Michigan’s mandatory no-parole sentences for juveniles. What’s the future of this issue?
Thomas: It is unlikely that Carp is the last word, even in the short term. As you mentioned, there is likely to be an application for leave to appeal. Given the significance and importance of this issue nationally, but especially here in Michigan, it certainly seems possible that the Michigan Supreme Court will want to hear the case. Nationally, there are other state courts that have found Miller retroactive, so this may also increase our Supreme Court’s interest.
The case in federal district court, Hill v. Snyder, was filed before Miller was issued. Hill v. Snyder alleges that the statute that divests the parole board of jurisdiction over all first-degree murder defendants violates the constitution with respect to juveniles. (In addressing Michigan’s statutory scheme for mandatory sentencing of juveniles in Carp, the Michigan Court of Appeals specifically identified this statute as unconstitutional). The federal district judge has pending summary judgment motions in that case, and may address the retroactive application of Miller.
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