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October 6, 2010

Young killer in Michigan making Graham-inspired constitutional argument against LWOP sentence

This local story from Michigan, which is headlined "Life in prison for Eliason: ‘cruel and unusual?’," has me thinking a lot of (deep?) thoughts about the interplay between federal constitutional jurisprudence and state punishment practices.  Lets begin with the basics:

In an unexpected turn of events, sentencing planned for Monday morning for 15-year-old Dakotah Eliason — found guilty of first degree murder in August — was postponed until the end of the month. An adjournment came after the defense argued the sentence of life without parole could be considered cruel and unusual punishment under the Eighth Amendment of the Constitution.

“The court is imparted to impose a mandatory sentence in this case of life without parole,” defense attorney Lanny Fisher told the court. “It is my duty as Mr. Eliason’s advocate to present a constitutional argument, particularly the Eighth Amendment of cruel and unusual punishment.”

Eliason was convicted in August of the killing his grandfather, Jesse Miles in March. Fisher is expected to file his brief with the court within the next week.  Following, Berrien County Chief Prosecutor Art Cotter would file a response.

Cotter said he could not address the court on the issue, as he had not seen Fisher’s argument. Schofield said he was “disappointed this argument is being made on the day of sentencing. But this is a serious case.” He added he felt there was a need for research on behalf of both the prosecution and the defense on the argument being presented by Fisher.

“I”m glad that the judge is giving it a second chance for Lanny to argue the cruel and unusual punishment side of it,” Eliason’s mother, Mary Apfel, said Monday. “I do agree with the judge’s decision today. I’m very happy with it.”

Eliason recently celebrated his 15th birthday while in incarceration....

Schofield reiterated his disappointment in being unable to move forward with sentencing, “but under the circumstances I feel I have no alternative.” He rescheduled Eliason’s next appearance for Oct. 25.  Following the adjournment, Cotter told reporters he was disappointed.

“I think this has been very, very difficult for this family and I had hoped, at least with respect to the legal part of it, this would put an end to it. Obviously, it’s going to go on for another three weeks,” Cotter said.

Fisher said it was imperative he introduce the issue of cruel and unusual punishment for his client, as he plans to appeal the ruling handed over by the jury in this case. He is unable to do so until the official sentencing.

“I believe it is cruel and unusual punishment giving a youth life without parole,” Fisher said. “In May of 2010 the Supreme Court of the United States said the Eighth Amendment does not permit a youth to be sentenced to life without parole in a non-homicidal crime,” he said. Though his client has been convicted of homicide, he said, “it’s starting to trend” toward looking at the amendment’s clause and its application to youth offenders’ crimes as violent as murder.

He also referenced Article 37 of the Office of the United Nations High Commissioner for Human Rights Convention on the Rights of the Child, which he said has been signed by 180 countries — but not the U.S.

Eliason’s father Steven said the fact that the sentence has been deemed unconstitutional for juveniles committed of non-homicidal offenses sets a precedent. “It should be the same,” Steven said. “It should be abolished by our country.” He added he is happy that the judge allowed Fisher’s argument to be made.

Introducing the brief, Fisher said, allows him to “preserve the issue” and it “opens the door to go up to our Supreme Court of Appeals and the Supreme Court. “It’s my job as his advocate to preserve the issue,” Fisher said.

Under Michigan law, Schofield is mandated to sentence Eliason to life without parole.

Here is a brief account of some of the (deep?) thoughts/questions being triggered by this case:

1.  The Michigan Constitution states: "Excessive bail shall not be required; excessive fines shall not be imposed; cruel ORunusual punishment shall not be inflicted; nor shall witnesses be unreasonably detained." Article Six, Section 31 (empahsis added).  Whatever the reach of the US Constitution (which only prohibits cruel AND unusual punishments) in the wake of Graham v. Florida and Roper v. Missouri, might not Eliason have a viable state constitutional claim that a mandatory LWOP sentence is problematic for a 14-year-old killer?

2. Given that Michigan law does not include capital punishment for any kind of murder by any kind of defendant, might Eliason's claim based on the US Constitution (as interpreted in Roper and Graham) be a bit stronger than if he was subject to an LWOP sentence in, say, Missouri where adult killers can be subject to the harsher sentence of death?   After all, were Eliason prosecuted for murder in Missouri, the US Constitution would take the harshest possible state sentence off the table because of his status as a juvenile at the time of the crime.  But in Michigan, the harshest possible state sentence (LWOP) is on the table for Eliason (and apparently is still mandatory) despite his status as a juvenile at the time of the crime.

3.  Is it constitutionally significant that Michigan law allows Eliason to be subject to an LWOP sentence for a crime committed at the "tender" age of 14?  Is it constitutionally significant that Michigan law (unlike the law under which Terrance Graham got an LWOP sentence) mandatorily requires the sentencing judge to impose an LWOP sentence based on the nature of his crime?

October 6, 2010 at 12:50 PM | Permalink


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Can't blame the lawyer for making the argument, though I would have expected procedural rules to require that it be made in filings before the actual hearing. Even so the argument should get laugghed out of court when it is finally heard.

Posted by: Soronel Haetir | Oct 6, 2010 12:28:01 PM

A quick overview of Michigan law suggests the Michigan Supreme Court will look at two issues: (1) Is the punishment proportionate to the offense? As LWOP is the only penalty for first-degree murder in Michigan, and is in line with death-penalty states, and with life maximums in non-death penalty states, and because second-degree murder carries a penalty of life, or any term of years, I think LWOP probably is proportionate in a case of premeditated murder. (2) Does the penalty comply with evolving standards? Here, I think the defense has a much better argument. For example, about 20 years ago, the Michigan Supreme Court invalidated a mandatory penalty of LWOP for sale of over 650 grams (about a pound-and-a-half) of cocaine, using the "cruel OR unusual" clause of the Michigan constitution.

Posted by: Greg Jones | Oct 6, 2010 4:46:47 PM

From the snippet in the story, it doesn't sound like defense attorney Fisher articulated the argument very well, but I believe that it is conceptually sound to take the position that, as applied to the facts of this particular case and this particular defendant, there is an inference of gross disproportionality for a sentence of life without parole to be imposed.

I think the model for Mr. Fisher's argument should be Chief Justice Roberts' concurring opinion in Graham. In my opinion, there are two remarkable things about Graham. The plurality employed, over Roberts' protests, a categorical approach that all lwop sentences of juveniles in all nonhomicide cases violate the Eighth Amendment. As Justice Kennedy acknowledges, that is a leap into new and uncharted territory. I was actually expecting the court's opinion to read a lot like Roberts' position that Graham should be analyzed like Ewing was, by employing Justice Kennedy's three step test in Harmelin v Michigan. If an inference of gross disproportionality arises, then the court makes the required intrajurisdictional and interjurisdictional comparisons.

The second remarkable thing about Graham is that, as I read the opinions, everyone, even Thomas and Scalia albeit begrudgingly, acknowledge that the Harmelin test is the law. Alito says there is a procedural problem and although Thomas and Scalia make their usual complaint that the Eighth amendment doesn't apply to excessively long punishments, they say there is no inference of gross disproportionality.

So, I don't think that the old standard argument that a sentence within the range allowed by the legislature is constitutional per se holds water any more.


Posted by: bruce cunningham | Oct 6, 2010 9:12:12 PM

Although it is a year or so old at this point, I might offer my paper on this subject: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1003449

Posted by: Brian Gallini | Oct 7, 2010 4:23:28 PM

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