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April 6, 2016

Examining how Michigan, thanks to Montgomery, is struggling through Miller retroactivity

Me_lifers_juvenile_040516A couple of month ago I flagged here a press report on the legal and practical challenges unfolding in Pennsylvania after the Supreme Court's ruling in Montgomery v. Louisana forced the state to start dealing with all its now-unconstitutional mandatory juve LWOP sentences.  Now I see this similar story from Michigan headlined " Hundreds of Mich. juvenile lifer cases to be reviewed."  The lengthy and details article gets started this way:

Hundreds of killers sentenced to mandatory life without parole while in their teens could be resentenced this year, but a debate over how to process the cases has left prosecutors and lawyers in limbo. The Michigan Court of Appeals has been asked to decide whether a judge or jury should consider whether to give offenders new sentences. A hearing is anticipated, but a date to make arguments hasn’t been set.

The U.S. Supreme Court ruled in 2012 that sentencing a person under 18 to life in prison without parole constitutes “cruel and unusual punishment.” The decision potentially affects 363 cases in Michigan dating to 1962.

Prosecutors have been required to provide a list to the chief judge in every county of the cases that may require resentencing. Wayne County has the most, at 152. Oakland is second with 49, followed by Genesee with 26 and Kent with 24. Macomb has 12 cases to be reconsidered for sentencing. Prosecutors will have to make legal motions to resentence those they feel still deserve life without parole. Other defendants will get a minimum of 25-40 years and a maximum of 60 years to serve before automatically being considered for parole.

Critics, including families of victims, argue mandatory resentencing may be unjust and open old wounds for victims who thought their cases were settled. Local law enforcement officials and prosecutors predict the process will be lengthy, costly and could further traumatize families.

Gov. Rick Snyder has recommended adding $1.1 million to the state budget to fund 11 full-time employees at the State Appellate Defenders Office for compliance with the Supreme Court ruling. But prosecutors, struggling with smaller staffs and tighter budgets, say they need more money too. Defense and appellate attorneys agree it’ll cost money to process the cases, but they argue it’s the right thing to do.

Many young offenders are immature, act impulsively and often are under the direction of older defendants, advocates say. Some juvenile lifers already have served beyond the minimum sentences that would have otherwise taken effect under resentencing, but for the pending hearing in the Michigan Court of Appeals.

“The bottom line is we’re not opening the doors and letting them all out — there will be a process and a hearing and some will be determined unfit for release,” said Valerie Newman, an assistant defender in the State Appellate Defenders Office. “And there will still be parole hearings.”

County prosecutors in Michigan say the process will take time, money and care to ensure that people who should be in prison stay there. St. Clair County Prosecutor Michael Wendling, who recently testified before a state Senate subcommittee on potential problems with resentencing, said: “It will tie up my staff and also challenge our resources — and I have only four cases; some counties have more than a hundred.” Wendling said after it is determined a case will be resentenced, it will mean locating victims, witnesses and experts and diverting assistant prosecutors from new cases.

Among Wendling’s old cases is one from 2010 in which Tia Skinner, then 17, plotted with a boyfriend to kill her parents after they took away her cellphone. Skinner has been resentenced twice, Wendling said. Another involves James Porter, then 17, of Yale who on one morning in 1982, balanced a .22 rifle on the handlebars of his bicycle, pedaled to the house of a friend with whom he had a dispute and fatally shot the teen and four family members. “I suspect we will be seeking the same sentences on all four of our juvenile lifers — these aren’t shoplifting cases,” Wendling said.

April 6, 2016 at 11:21 AM | Permalink


God, Montgomery was such a joke. I mean really, a substantive element that the juvenile's crime wasn't the result of impulse associated with youth? To call this hooey is to insult real hooey. That such a thing could be the result of judicial is just sad. That law professors cheer this drivel is an indictment of the academy.

And no, there shouldn't be any extra money going to public defenders. Montgomery should be resisted as much as possible--by everyone involved.

Posted by: federalist | Apr 6, 2016 1:01:05 PM

Denying money to indigent defense doesn't resist it, it just creates more reversals for ineffective assistance of counsel. Same result after even more costly litigation.

Posted by: Erik M | Apr 6, 2016 4:17:00 PM

"Denying money to indigent defense doesn't resist it, it just creates more reversals for ineffective assistance of counsel. Same result after even more costly litigation."

As they sit in prison. And it forces the left to pony up the resources since IAC requires investigation and a proffer. The fact is that the SCOTUS decision basically, on its terms, eviscerates the ability to do LWOP for these creatures. How does one prove BRD that something wasn't the result of youthful impetuosity? Take a look at the quintuple murderer described here--he got mad and killed five people. That's impetuous, almost by definition, so what's the case for LWOP--other than the sheer awfulness of the crime?

Best to let the defense bar work these cases on their own dime.

This is an illegitimate decision, and states have every right (and in my view, the obligation) to do what they can to obstruct its reach. If that means not funding defense counsel, so be it. If that means fighting release tooth and nail, so be it. If that means forcing these cases to habeas (where not-unreasonable decisions should be respected) so be it. Tooth and nail, with every legal means at the state's disposal.

Posted by: federalist | Apr 6, 2016 4:27:18 PM

Part of the problem with Montgomery is its simplistic view of the differences between the state law in the various states. While it sounds easy to say that states should just schedule parole hearings for these killers, state courts have to work through -- as a matter of state law -- what it means to hold that a punishment statute is unconstitutional as applied. A state court might not have the power under state law to simply order a parole hearing.

In my state, the initial prospective response to Miller was to hold that (because our state has jury sentencing) that a jury had to decide (not necessarily beyond a reasonable doubt) whether a life without sentence was appropriate. If it was not, then there was no valid punishment for the offense of conviction, and the jury had to decide the appropriate punishment for the lesser-included offense.

The post-Montgomery response for the retroactive cases was simply to order that those people would be eligible for parole after twenty-five years. Almost every one of the petitioners is seeking rehearing on that decision, claiming that they should get the same type of sentencing trial that applies in the prospective cases.

Meanwhile, our legislature continues to struggle to reach a consensus on the appropriate penalty for juvenile killers (struggling over the appropriate period of time that a juvenile should serve on a life sentence before getting a parole hearing0.

Posted by: tmm | Apr 7, 2016 10:59:53 AM

"Part of the problem with Montgomery is its simplistic view of the differences between the state law in the various states."

No. The majority in Montgomery understood that--it just didn't care--after all, all those sentences were just "wrong." That our judiciary can upset the applecart like that (in cases involving heinous crimes) and then sneer that everyone had gotten it wrong is surpassing arrogance.

It's the same sort of arrogance that can take a bedrock guarantee (i.e., that political speech is untouchable by the government), apply some balancing test and, after a Doug-approved Justice is confirmed, allow some political speech to be criminalized.

Posted by: federalist | Apr 7, 2016 11:15:03 AM

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