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July 10, 2014

Split Michigan Supreme Court rejects retroactivity of Miller for hundreds of juve lifers

MichThough I am on the road and behind on a number of blogging fronts, a number of helpful readers made sure I did not miss an important state Miller application from Michigan.  This local article, headlined "Michigan Supreme Court denies parole hearings to juvenile lifers," provides these basics:

The Michigan Supreme Court ruled 4-3 Tuesday that juveniles given automatic life-without-parole sentences aren’t eligible for parole — even though the U.S. Supreme Court decided in 2012 that such sentences were unconstitutional. The ruling involved three of what some estimates say are at least 350 Michigan “juvenile lifers” — the highest number in any state — who are seeking parole hearings....

A four-justice majority, in a decision written by Justice Stephen Markman, said the 2012 U.S. Supreme Court ruling does not apply retroactively to these Michigan inmates, under either federal or state court precedents.

Attorney General Bill Schuette, who has argued that parole for any of the juvenile lifers would be disrespectful to murder victims and heart-wrenching to their families, hailed the decision. “Today the Michigan Supreme Court upheld the rights of crime victims and their families,” he said....

Kary Moss, executive director of the American Civil Liberties Union of Michigan, called the decision “heartbreaking.”

“Here we have a practice that the U.S. Supreme Court has said violates the Eighth Amendment as cruel and unusual punishment ... yet the Michigan Supreme Court is unwilling ever to give the 350 juvenile lifers currently in Michigan’s prisons a parole hearing in their lifetime,” Moss said. She said the ACLU is reviewing its options for a further federal legal challenge. “We are not letting this issue drop,” Moss said....

Neither the Eighth Amendment nor the state Constitution “categorically bars the imposition of a sentence of life without parole on a juvenile homicide offender,” the court’s majority said.

Justices Mary Beth Kelly, Bridget Mary McCormack and Michael Cavanagh dissented and said the court should have ruled in favor of parole hearings. They noted that state lawmakers this year passed a juvenile sentencing law that “significantly altered Michigan’s sentencing scheme for juvenile offenders convicted of crimes that had previously carried a sentence of life without parole.”

Under the new law, judges can impose 40- to 60-year sentences in cases where prosecutors don’t ask for life-without-parole for murder and other heinous crimes....

The Michigan Catholic Conference said the decision is disappointing. “We call upon the Legislature to pass a measure that will allow for juveniles sentenced to a life term before the (2012 U.S. Supreme Court) decision to have the opportunity for a parole hearing at some point during their sentence,” said a statement issued by spokesman David Maluchnik....

State Rep. Joe Haveman called the Michigan Supreme Court’s ruling disappointing and said individuals incarcerated as juveniles “deserve a hearing to re-evaluate their case.”

“It is baffling how this can be considered equal treatment under the law,”said the Holland Republican. “I said before, and I still believe, that the Supreme Court of the United States needs to revisit this issue and clarify whether the intent was for their original ruling to apply retroactively. .... If a juvenile sentence without the opportunity for parole is cruel and unusual punishment going forward, it is also cruel and unusual punishment for those who entered prison as children, who don’t have even the faintest glimmer of hope that even if they completely change who they are, they will ever walk free. It is further cruel and unusual punishment for the judge who didn’t want to hand down a mandatory life sentence, and wanted to consider mitigating factors, but wasn’t allowed to, and now must live with the guilt of sending a child to prison for their entire adult life.”

The fully lengthy Michigan Supreme Court ruling in this matter runs 120+ pages and covers more ground than just Miller retroactivity.  The full ruling is available at this link, and I hope to have a chance to blog about the substance of both the lengthy majority and dissenting opinions in the days and weeks ahead.  

For now, I will simply assert that the Supreme Court no long has any good reason or justification for continuing to refuse to take up the issue of Miller retroactivity that has split state courts nationwide.  Now that just about every state with a large number of mandatory juve LWOPers has ruled on this issue, this matter has plainly "percolated" more than sufficiently and the resulting jurisprudential split has profound consequences for many hundreds of juve lifers in many states.    

A few (of many) prior posts on Miller retroactivity:


July 10, 2014 at 10:51 AM | Permalink


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One reason for not taking up this issue based on a state split, is that the U.S. Supreme Court has previously ruled that states can have their own rules on retroactivity on state collateral review. While some states may use a state version of Teague analysis and try to guess whether the Supreme Court will find that Teague authorizes federal habeas relief, there is no federal constitutional right to state collateral review and the types of claims that can be raised in various state collateral proceedings is mostly a matter of state law. If six justices believe that federal law does not require state courts to permit Miller claims on state collateral review, it's up to the states to decide if Miller is retroactive under their own version of retroactivity.

Now if there was a split at the federal courts on Teague analysis, then the Supreme Court should grant cert to decide if Miller applies retroactively to cases on federal habeas review. (And the failure of a state to permit Miller claims in state court would permit de novo review of any such claims in federal habeas if federal habeas is available.)

Posted by: tmm | Jul 10, 2014 11:16:06 AM

Interesting. I'm not sure this is right, though, for several reasons. First, my understanding of Danforth was that States could be *more* generous than Teague, but not less generous (i.e., Teague sets a constitutional floor for retroactive application). It's one thing to say you don't have a postconviction process. Or that only certain kinds of claims can be raised in postconviction. It's another to say that prisoners can raise this constitutional claim and assert retroactivity, but the state gets to adjudicate that claim under a substantive standard that is less protective than the federal constitutional standard. It seems to me that mostly it's been the latte that has been happening, and it's not clear to me at all that states applying non-Teague retroactivity tests are insulated from SCOTUS review.

Second, and more important, none of that really matters because by now there is definitely a split among states *purporting to apply the federal Teague standard*. Those cases (especially the denials of retroactivity) undoubtedly involve an application of federal constitutional law which SCOTUS can review. Indeed, addressing the issue on review from a state court is not only possible but much preferable because it will allow the Court to rule directly on the retroactivity issue without getting tangled up in the problem of AEDPA deference that is likely to accompany any case arising out of federal habeas corpus.

Posted by: Anon | Oct 14, 2014 3:40:44 PM

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