Judge or jury: Who should resentence juvenile lifers?
The 2012 Supreme Court decision in Miller v. Alabama held that mandatory sentences of life without parole for juveniles were unconstitutional.
The court’s 2016 decision in Montgomery v. Louisiana said the Miller decision was retroactive, meaning that everyone sentenced to life without parole as a juvenile is entitled to have their sentences reconsidered.
The next legal question for juvenile lifers that could potentially come from the United States Supreme Court is whether a jury or judge should be the one to consider and impose the new sentences.
Attorney General Bill Schuette has been a national leader in fighting changes to the status quo when it comes to juvenile lifers. He declined our interview request for this series and referred us to Genesee County Prosecutor David Leyton as a representative of his views.
Prosecutor Leyton said it should be a judge who decides:
“I think you have to re-try the case if you’re going to get a jury of lay people to understand why it is we’re here today asking for juvenile life without parole. You can’t do it just based upon new evidence, you have to be able to show everything that transpired, and it would require a retrial of that case.”
Kimberly Thomas is a clinical professor of law at the University of Michigan and the co-founder of the school’s Juvenile Justice Clinic. Thomas argues that it should be a jury who decides whether a juvenile should receive life without parole, which the Supreme Court has ruled must be imposed on in the “rarest” of cases.
(This story is part of our series Michigan's Juvenile Lifers: Who Gets a Second Chance?)
Thomas argued before the Michigan Court of Appeals that a jury should decide a life without parole punishment for a juvenile offender.
“The Sixth Amendment says that if there are facts that increase someone’s punishment from just the verdict in their case, then those facts should be found by a jury,” she said.
The appeals panel agreed with her argument, but other judges on the Appeals Court disagreed with their colleagues’ ruling and called for what’s known as a conflict panel.
“A conflict panel is when there is a decision of the Court of Appeals that goes one way and another panel that says, 'Well, if we weren’t bound by that prior decision then we’d go another way,' and they ask the court to resolve that conflict between the groups of individual Court of Appeals judges,” Thomas explained.
She told us it’s pretty rare to see a conflict panel in criminal cases.
Thomas said the death penalty can provide some context and guidance for the sort of legal procedure she’s arguing for:
“What the court has told us in Miller and Montgomery is that the question for sentencing focuses on the individual, not on the crime. The crime has occurred, everyone agrees the crime happened and the person is guilty of that crime. The question is what that shows about this offender. Does the crime show that this person is irreparably corrupt? Has this person shown that they've made efforts to rehabilitate themselves? What does that look like?”
"The conviction in these cases isn't an issue. All of these people stand duly convicted of homicide. The question is only what the sentence should be."
According to Thomas, the Supreme Court rulings have caused a “big change” in how prosecutors in Michigan have been used to handling juvenile cases. In Michigan, she explains, if a person 14 years old or older is charged with a homicide, the prosecutor could choose to prosecute in adult criminal court. She told us there was no judicial check on that process.
Trying someone of that age in adult criminal court would be the prosecutor’s choice, “but it is the default by the statute,” Thomas said. “The statute says unless they choose to prosecute that in juvenile court, then it can go to adult criminal court. Once there was the conviction, our statute made it a mandatory life without parole sentence, which is of course what Miller found unconstitutional.”
In Michigan it’s always been the judges who determine sentences like this. Here's Kalamazoo County Prosecutor Jeffrey Getting:
"Normally when we think about the criminal justice system and the person who has the authority to make that decision regarding the consequence to be imposed, we're talking about the court, and we're talking about making a decision after being provided with all of the information from both sides, advocating as I do for the people of the state of Michigan and for the victims of the crime, and on the other side advocating for the defendant, the person who was convicted of murder."
He’s arguing that both sides, prosecution and defense, should present their arguments before a judge as to whether a sentence of life without parole is warranted. In response, Thomas comes back to the Sixth Amendment.
“What really I believe that the Sixth Amendment requires is that initial finding of fact that would subject someone to a life without parole sentence and the United States Supreme Court has said we can only give a life without parole sentence, there is only someone eligible for life without parole if they've shown to be irreparably corrupt.” she said.
“And so once a jury determines someone is irreparably corrupt, I don't disagree with Mr. Getting that a judge could make a determination of the appropriate sentence within that range. It's just the jury has to find that fact that allows the sentence of life without parole.
"The United States Supreme Court has said ... there is only someone eligible for life without parole if they've shown to be irreparably corrupt."
Thomas said the Supreme Court hasn’t laid out any hard and fast guidelines as to what “irreparably corrupt” means or how you determine the “rare case” that calls for a sentence of life without parole.
Thomas thinks the Montgomery and Miller decisions will force a fundamental change to the way prosecutors in Michigan operate.
“We’ve gone from what used to be the status quo in Michigan where life without parole for a young person was not considered to be unusual, was not considered to be something that we would have to think carefully about or examine the details of that person’s life – in fact it wasn’t even permitted by statute – to a situation where the U.S. Supreme Court has told us that as a matter of constitutional law we have to do that, and we have to only impose life without parole under rare circumstances,” she said. “That is the change.”
The prosecutors with whom we’ve spoken all say their priority lies with the victims and their families. Yes, they have discretion to decide the charges, but if families want to re-impose a sentence of life without parole, most have said they would go with what the family wants.
“The prosecutor has an independent duty as a matter of their position to represent the people, and so I think that obviously they’re going to listen to the victim’s families and that’s an important part of their role.” Thomas told us. “It’s also important for them to have a system-wide, county-wide view of the situation.”
The Supreme Court offered a constitutional approach to changing the way states makes these decisions, including changing all the language to “parolable life sentence” and shifting the authority for release to the Michigan Parole Board.
The Board would then have the ability to release or not release an individual based on whether they believe that person is demonstrably rehabilitated and would be safe to be released to the community, Thomas explained.
Some states use this system, Thomas told us, but others have tried a variety of different things, including eliminating the sentence of life without parole entirely.
Thomas couldn’t say whether the Michigan Supreme Court will take up this judge or jury question, and that they “might decide they want to see how other cases play out before they hear it.”
She said question may get some attention at from the U.S. Supreme Court, though.
“The U.S. Supreme Court has been relatively active on this question in the past 15 years or so,” Thomas said. “It’s been a pretty robust area of constitutional law, in the criminal law area. Justice Scalia was very interested in this question. He’s passed, but there are other members of the Court who have focused on this in the past.”
As it stands, Thomas told us that cases for which a prosecutor is seeking life without parole are largely on hold right now, waiting to see whether or not the Michigan Supreme Court is interested in weighing in on the question of judge vs. jury.
If the court doesn’t get involved, she said it’s entirely up to prosecutors to decide how to move forward.
Michigan has gotten attention as a national outlier in this. A New York Times piece calls out Michigan for being very, very slow to respond to what’s been set down in Miller and Montgomery.
“Michigan had a very large number of juveniles serving life without parole at the time of the Miller verdict,” she said. “I think just the sheer numbers has drawn attention to Michigan to wonder why Michigan is different in that way.”
There are more than 350 prisoners in Michigan sentenced to life in prison without parole for crimes they committed as juveniles. Michigan's Juvenile Lifers: Who Gets a Second Chance?is Michigan Radio's week-long series looking at juvenile lifers in Michigan, and the efforts to re-sentence many of them.