« Issue-spotting the mess sure to follow Miller's narrow (procedural?) ruling | Main | Basic mandatory juve LWOP head-count in light of Miller »

June 25, 2012

Guest-post from Professor Mark Osler: "Miller on the ground in Michigan"

I am pleased to be able to provide the first what I hope might become a series of guest-posts from various folks on what the Supreme Court's work today in Miller v. Alabama  (opinion here, basics here, questions here) might mean in various jurisdictions in various setting. Kudos to Professor Mark Osler for getting me the first entry with a first-take on this big new Eighth Amendment ruling, which he titled "Miller on the ground in Michigan":

There was a bit of a mess after the Supreme Court announced its decision in Miller v. Alabama today.  AP reporter Jesse Holland initially sent out a story simply stating that the court had ruled that life without parole sentences were unconstitutional for juvenile offenders.  The truth was more complex: The Court more narrowly held that what is unconstitutional is a sentencing scheme where the only sentence available to a convicted juvenile offender is life without parole.  Not all states have this kind of mandatory sentencing scheme for murder, but many do.

Still, the Miller decision creates some fascinating outcomes.  For example, Michigan has mandatory sentencing in this kind of case, and the second largest number of juvenile offenders serving LWOP sentences (after Pennsylvania).  That means that over 300 sentences may now be in jeopardy, and the state will have to amend its procedure to allow for a parole eligible sentence in the case of juvenile offenders.  Intriguingly, left untouched is Michigan’s rule of automatic transfer to adult status in murder cases — the second part of that state’s legal mechanism which led to so many juvenile LWOP cases.

Aside from the continuing battle before the Court on the constitutionality of Juvenile LWOP, which now moves to discretionary sentences, tough questions face the states affected by Miller.  Perhaps most importantly, a state like Michigan has hundreds of inmates serving sentences obtained by an unconstitutional process.  If they succeed in getting those sentences overturned, what happens next?  Michigan law does not allow for a sentence other than LWOP.  Presumably, they could be dumped into the regular parole system, or the state could create a special process for these prisoners already deemed to be different than other murderers by fact of their age at the time of the crime.

There is an opportunity in this — an opportunity to create a new kind of meaningful review that takes into account the views of experts in adolescent development and brain science, victims’ family members, prison officials, and those who support the convicted juvenile. I’m hoping that at least some jurisdictions take a fresh look at the process as whole and not only get rid of mandatory transfers, but inject more meaning into the kind of second look that these offenders might receive.

June 25, 2012 at 04:12 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Guest-post from Professor Mark Osler: "Miller on the ground in Michigan":


Prof. Osler is a certified citizen of the lawyer upside down world of the Twilight Zone. He is not above crass, offensive propaganda such as retrying Jesus Christ. He is a left wing extremist, totally biased in favor of the criminal for the rent.

The adolescent brain is superior to the adult brain in performance on tests. It is also more morally superior in that adolescents have a lower rate of crime than adults. That means they are morally superior and better self-restrained. The same is true for substance abuse and all other psychiatric or social pathology you care to name. The exception, ADHD, is not a cause of serious crime. So why is this superior group getting an unearned mitigating factor?

Look a the posts of Prof. Berman in the recent decisions. Massive litigation and lawyer make work jobs is headed our way, with massive costs to the tax payer. The decision is a massive taxpayer rip off, a rent seeking scheme.

Posted by: Supremacy Claus | Jun 26, 2012 5:11:48 AM

There's a mischievous pleasure in watching lawmakers trip over themselves and spend their states into financial trouble in their perpetual quest to get tougher than tough on crime...and pander to the cheap seats in the process.

States such as Michigan, Pennsylvania and Florida SHOULD have to revisit -- hopefully at considerable cost and inconvenience -- the hundreds of cases queered by Miller. To deter, as SC likes to day.

Posted by: John K | Jun 26, 2012 9:43:49 AM

as SC likes to say

Posted by: John K | Jun 26, 2012 9:44:39 AM

"States such as Michigan, Pennsylvania and Florida SHOULD have to revisit -- hopefully at considerable cost and inconvenience -- the hundreds of cases queered by Miller. To deter, as SC likes to day."

Yes, because victims' families, who had no choice in the matter, should be sentenced to dealing with the horrible crimes that took their loved ones again.

What a repulsive comment.

Posted by: federalist | Jun 26, 2012 10:17:11 AM

If people are interested in solving the problem, the easiest solution in Michigan is to vacate the convictios and let the defendant plead to second-degree murder. It carries a mandatory prison sentence, and the maximum is either any term of years, or life. That is, no "20-to-life" type of sentence is possible, it must either be something like "20-to-40" or "life." These life sentences are parolable, with first parole review coming after 10 or 15 years, depending on the date of the offense. In the old days, when parolable life sentences were routine, with a 10-year wait before first review,and with further reviews at five-year intervals, the release rate was about 4% over one's lifetime, and that never until at least 23 years had been served. With newer requirements imposing a 15-year wait before first review, and a "life-means-life" attitude by the parole board, paroles for offenders serving parolable life sentences are almost non-existent. A second alternative is for the governor to commute the conviction to second-degree murder. However, for all the reasons that make pardons almost non-existent, no governor is likely to want to take the polictial heat to do that, even though the result would be the same.

Posted by: Greg Jones | Jun 26, 2012 12:07:20 PM

I thought about the second degree life solution. Michigan did something similar in People v Bullock, 440 Mich 15; 485 NW2d 866 (1992). My concern is the lifer law veto powers the trial judge enjoys and the complete lack of due process in the procedure. The inmate isn't given notice when the Board contacts the judge, the judge doesn't give the inmate an opportunity to respond, and because of the times involved, I've seen cases where the successor judge was the person who originally prosecuted the case.

I'm not completely sure that a LWOP is authorized for juveniles post-Miller. I think the answer is "probably" based on the concurrence. Such a sentence, however, should be the exception, not the rule. Query: if a judge continuously vetoes the parole based on the "heinousness of the crime," or the crime victim "will never see their loved one again," does this eventually cross a hidden line in the sand?

Bullock, however, gives the blueprint for how the courts could reduce these sentences without individualized resentencing.

Posted by: Stuart Friedman | Jun 28, 2012 8:34:30 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB