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.