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August 29, 2016

Detailing efforts by Michigan prosecutors to have LWOP juveniles resentenced to LWOP

This lengthy local article, headlined "Michigan prosecutors defying U.S. Supreme Court on ‘juvenile lifers’," details some of the remarkable efforts of Michigan's local prosecutors in response to the Supreme Court's Miller and Montgomery rulngs requiring the resentencing of juvenile murderers preiously given mandatory LWOP sentences.  Here are some extended excerpts:

Prosecutors across Michigan are fighting to uphold sentences for most of the 350-plus prison inmates now serving mandatory life terms for crimes they committed as juveniles.  Their stance is in apparent defiance of a U.S. Supreme Court directive this year that courts across the nation are supposed to reduce life sentences for young offenders except in only “rare” cases.

According to data, which Bridge obtained from a network of Michigan lawyers, at least nine county prosecutors are asking judges to uphold life sentences for every so-called “juvenile lifer” convicted in their courts.  They argue that these inmates, including some who have behind bars for decades, can never be safely returned to society.

“I think what the prosecutors are doing is appalling,” said Ann Arbor lawyer Deborah LaBelle, a prisoner rights advocate who is organizing free legal representation for about 100 juvenile lifers.  “The Supreme Court says the vast majority have to have the chance at being paroled,” LaBelle said.  “You can’t just lock them up and throw away the key for things they did as a child.”

Among the most resistant to the Supreme Court’s ruling: Saginaw County Prosecutor John McColgan Jr., who wants to uphold 21 of 21 sentences in which life terms were given to juvenile defendants.  It’s nine of nine in Kalamazoo County. And seven of seven in Muskegon County.  

Meanwhile, Oakland County Prosecutor Jessica Cooper has asked judges to uphold mandatory life sentences for 44 of 49 inmates who committed crimes as juveniles.  In Genesee County, Prosecutor David Leyton is asking the same in 23 of 27 cases.

More broadly, four large Michigan counties — Genesee, Oakland, Saginaw and Wayne — account for 150 of the 218 cases for which prosecutors are seeking to uphold life without parole. In Wayne County, which includes Detroit, Prosecutor Kym Worthy is seeking life without parole in 61 of 153 cases – hardly rare at 40 percent, but lower than Oakland County’s request to uphold 90 percent of juvenile life sentences.

Oakland County Sheriff Michael Bouchard put an incendiary exclamation mark on the position of prosecutors when he held a press conference in July in which he compared juvenile lifers to a famous fictional serial killer. “I looked at a sample of these individuals and they are Hannibal Lecters who committed very heinous murders — often, multiple murders — and then they’ve continued to display very assaultive behavior in prison and show no remorse,” Bouchard said.

Overall, according to the data, prosecutors are seeking to uphold life-without-parole sentences for 218 of the 363 men and women in state prisons for crimes committed as minors.  Most were convicted of first-degree murder or of abetting first-degree murder. Some were as young as 14.  The oldest is now 71.  The effort to keep juvenile lifers permanently behind bars faces pushback from legal advocates, as well as some federal prosecutors....

Prosecutors in Michigan were given a July deadline to name juvenile lifers within their jurisdictions who they contend remain too dangerous to ever walk free.  Those named will face an eventual mini-trial in which prosecutors have to prove they were among the irretrievably depraved.  The facts of the original crime, statements by friends or relatives of the victim and each inmate’s background and behavior in prison are to be weighed.  For those lifers not targeted by prosecutors, legislation signed by Gov. Snyder in 2014 spells out a default minimum sentence of 25 years in prison to maximum of 60 years....

In an interview with Bridge, Oakland County prosecutor Cooper called the 44 cases that she challenged for parole some of the most “heinous” crimes she has seen.  She said her decision on those cases was reached only after months of exhaustive review. “We are talking about victims who were stabbed, drowned, bludgeoned and decapitated,” Cooper said. “We are not talking about people who took Dad’s car and drove over somebody’s lawn.  Many of these crimes were totally random. They walked up to a car and decided to shoot in it. On and on and on and on. We are really talking about awful cases.”...

Michael Dettmer, former U.S. Attorney for Michigan’s Western District, joined with another former Western District U.S. Attorney, James Brady, and Richard Rossman, former U.S. Attorney for the Eastern District, recently wrote an op-ed condemning the move by state prosecutors to challenge lesser sentences for juvenile lifers.  “As former U.S. Attorneys,” they wrote, “we would have expected Michigan prosecutors to understand Montgomery’s central tenet that children are uniquely capable of growth and maturation and must be able to demonstrate their rehabilitation.

“Instead, too many prosecutors are focusing on the crime committed by a troubled adolescent without exercising the judgment to recognize whether the adult before them today has rehabilitated himself.”  Dettmer said he considers state prosecutors’ push to keep so many in prison for life “a slap in the face” of the court’s instruction on rehabilitation.

But county prosecutors have a powerful ally in Michigan Attorney General Bill Schuette.  Schuette has vigorously fought reconsideration of juvenile life sentences, filing a friend of the court brief in 2015 in the Montgomery case on behalf of Michigan and 15 other states opposing any retroactive look at those sentences.  Asked to comment on the high rate of challenges by county prosecutors, a Schuette spokesperson said, “In general, Attorney General Schuette supports local prosecutors and their decisions.”

August 29, 2016 at 11:25 PM | Permalink


Maybe Michigan's prosecutors should be screened for lead poisoning.

Posted by: peter | Aug 30, 2016 5:30:11 AM

"Prosecutors across Michigan are fighting to uphold sentences for most of the 350-plus prison inmates now serving mandatory life terms for crimes they committed as juveniles. Their stance is in apparent defiance of a U.S. Supreme Court directive this year that courts across the nation are supposed to reduce life sentences for young offenders except in only 'rare' cases."

Putting aside the idiotic journalism here--the "rare" standard is for courts to sort out, this quote points up the utter stupidity (or arrogance) of the Supreme Court, and, to the extent the Supreme Court is being defied, it should be defied. The idea that judges can determine that juvenile killers will only be incorrigible in "rare" cases and that such a statement is somehow law shows the utter fetishism we have as a society for legalism and that we have some odd hero worship of judges. By definition, the idea that a phenomenon should be "rare" has a referential component. But the determination of whether someone is "incorrigible" really has no referential component--to the extent the judgment can be made, either someone is, or is not, incorrigible.

Posted by: federalist | Aug 31, 2016 9:01:34 AM

The difficult thing to tell from these numbers is the screening process used by the offices. Prosecutors do get to use judgment in determining which cases merit the use of office resources, and different offices will take different approaches to making that determination. As such, a key data point missing is the number of juvenile homicides during the relevant time period and how proscutors treated juvenile homicides during that time period.

Let's say, in a given state, that 90% of juvenile homicides were theoretical eligible for lwop (i.e. case was submissible) but juries only made the required state law finding in 50% of the cases. If an office over the past thirty years was taking a close look at juvenile homicides and only seeking lwop in a small percentage of cases (e.g. 10-20%), it would not be surprising if that office found that most of those who got lwop still deserve it under the Miller standard. If an office sought lwop in every case in which they could (say seeking it in 80-90% of juvenile homicides), it would not be surprising that the office still had a "let somebody else decide" philosophy. Both sets of offices would be likely to seek to reimpose lwop in a large percentage of cases.

Where you would expect to see a difference is in the offices that made their decisions based on expected result (or that has changed their decision making process). While Miller does not create any real "submissibility" test, it does make it less likely that the sentence (judge or jury) would decide to impose lwop. Thus, instead of getting lwop in 50% of the juvenile homicides, you might only get it in 15%. Thus, for an office that considers likely results, Miller would dictate not pursuing lwop in a significant number of cases.

Yes, prosecutor's should use a higher standard than mere submissibilty, but incomplete data does not reveal if prosecutor's are using such a low standard. (Particularly problematic is that the Supreme Court's standard mixes a qualitative rule -- incorrigibility -- with a quantitative prediction -- rare. Whether the quantitative prediction is accurate can only be determined after the rule is applied to specific cases.)

Posted by: tmm | Aug 31, 2016 11:38:41 AM

"Yes, prosecutor's should use a higher standard than mere submissibilty"

why? The victims' families deserve to have a prosecutor advocate for their interests---these people did horrific things, and given the Supreme Court's lawless BS, tooth and nail resistance isn't just a matter of justice for these killers, but a part of society's pushback against a lawless court.

Posted by: federalist | Sep 1, 2016 10:11:18 AM

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