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June 21, 2018

Split Michigan Supreme Court rejects Sixth Amendment challenge to state's new juve LWOP statute

Ruling 4-2, the Michigan Supreme Court issued a lengthy opinion yesterday upholding the procedures of its new juvenile sentencing statute.  The majority opinion in Michigan v. Skinner, No. 152448 (Mich. June 20, 2018) (available here), gets started this way:

At issue here is whether MCL 769.25 violates the Sixth Amendment because it allows the decision whether to impose a sentence of life without parole to be made by a judge, rather than by a jury beyond a reasonable doubt.  We hold that MCL 769.25 does not violate the Sixth Amendment because neither the statute nor the Eighth Amendment requires a judge to find any particular fact before imposing life without parole; instead, life without parole is authorized by the jury’s verdict alone.  Therefore, we reverse the judgment of the Court of Appeals in Skinner and affirm the part of Hyatt that held that “[a] judge, not a jury, must determine whether to impose a life-without-parole sentence or a term-of-years sentence under MCL 769.25.”  People v Hyatt, 316 Mich App 368, 415; 891 NW2d 549 (2016).  However, we reverse the part of Hyatt that adopted a heightened standard of review for life-without-parole sentences imposed under MCL 769.25 and that remanded this case to the trial court for it to “decide whether defendant Hyatt is the truly rare juvenile mentioned in [Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012)] who is incorrigible and incapable of reform.” Hyatt, 316 Mich App at 429. No such explicit finding is required.  Finally, we remand both of these cases to the Court of Appeals for it to review defendants’ sentences under the traditional abuse-of-discretion standard of review.

The dissenting opinion gets started this way:

There is much in the majority opinion with which I agree.  For example, I agree that if MCL 769.25 can reasonably be construed in a constitutional manner, we should so construe it.  And I generally agree with the majority’s discussion of the applicable legal principles.  But I respectfully dissent from the majority’s conclusion that there are two reasonable ways of interpreting MCL 769.25, one of which is constitutional.  Reading the statute as “murder-plus” would violate the Sixth Amendment under Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), and its progeny.  And I disagree with the majority that reading the statute as “murder-minus” cures all its constitutional deficiencies. In my view, reading the statute as murder-minus renders it unconstitutional under the Eighth Amendment as interpreted by the United States Supreme Court in Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), and Montgomery v Louisiana, 577 US ___; 136 S Ct 718; 193 L Ed 2d 599 (2016). Read either way, MCL 769.25 suffers from a constitutional deficiency.

June 21, 2018 at 09:18 AM | Permalink


You have to wonder how far this Apprendi stuff will go. Presumably, any "factor" that a judge could consider in determining a sentence is a fact.

Posted by: justme | Jun 21, 2018 11:52:11 AM


The important question is whether that fact authorizes a punishment greater than the jury's verdict alone. If the answer is no then Apprendi doesn't come into play.

Posted by: Soronel Haetir | Jun 21, 2018 12:38:17 PM

Soronel, I get that. So logically all sentencing factors that result in a greater sentence then are facts that must be proven BRD by the jury. So sentencing only allows for mitigation/downward departures findings of fact. Is that not a unique manner of sentencing in American history?

Posted by: justme | Jun 21, 2018 1:43:46 PM


Except that if the jury's verdict allows (but does not require) a sentence of say 10 years then that finding alone is enough for the judge to then take other facts at a preponderance level in order to select the actual sentence. Your statement would only make sense if sentences always started out at the top of the (statutory) range and then worked down but that isn't really the case.

Posted by: Soronel Haetir | Jun 21, 2018 3:42:37 PM

The issue -- and I almost wish the Supremes would take Clark v. Louisiana to clear it up -- is whether a specific fact must be found to increase the penalty or if the sentencer balances multiple potential facts to determine the appropriate penalty with no one fact being controlling.

Apprendi clearly controls the first. Thus, if the state law has statutory aggravators that must be found to trigger the higher punishment, then Apprendi requires a jury finding.

On the other hand, if the state law merely requires that the sentencer find that -- after considering all of the evidence, including any statutory factors -- the balance of the evidence supports a particular sentence, then, at least according to some opinons, like Kansas v. Carr, no jury finding is required. However, there are other opinions like Hurst v. Florida include language suggesting that a jury finding is required if the statute (or in this case, the Supreme Court caselaw on juvenile lwop) mandates some type of finding that the highest sentence is appropriate (as opposed to the typical judge can pick anything in the range without making any express finding as to why that sentence is more appropriate than a different sentence).

Posted by: tmm | Jun 24, 2018 11:05:51 AM

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