Three and a half years after the Supreme Court ruled that juvenile lifers should have the opportunity to be re-sentenced and come home, more than half in Michigan are still waiting to go before a judge to learn their fate, according to a Detroit Free Press analysis.
That means nearly 200 inmates are waiting for a judicial review.
“We are not resolving cases at the rate that you would hope, given that the United States Supreme Court said these sentences should be rare,” said Tina Olson, an attorney with the Michigan State Appellate Defender Office (SADO), whose office represents roughly two-thirds of the state’s cases.
In 2012, the court ruled in Miller v. Alabama that juveniles should no longer be sentenced to mandatory life terms, citing developmental differences in the teenage brain, as well as the ability for rehabilitation. The high court doubled down on the decision in January 2016, ruling in Montgomery v. Louisiana that the Miller opinion should be applied retroactively.
While the 2016 Montgomery decision should have resulted in a clear-cut path for juvenile lifers, the system remains speckled with question marks. And since the opinion left the application of the ruling up to each state, there is little agreement on what this process should look like.
Take, for example, Philadelphia County in Pennsylvania, which had almost as many juvenile lifers as the entire state of Michigan. It is expected to complete all but 10 of its re-sentencing cases by the end of the summer.
Not a single juvenile lifer in the county has been given a new life sentence so far.
By and large, prosecutors in Michigan defend the slower process, contending they are thoughtfully weighing each case.
“We tried to take a serious look at the criteria set forth in Miller, and put those factors into play when making those decisions on each case,” said Kent County Prosecutor Christopher Becker, whose office was responsible for making sentencing recommendations for 23 defendants.
Thirteen were originally recommended for continued life sentences — one was subsequently re-evaluated and changed to a term of years.
“I don’t think there is anything wrong with the pace,” he said, explaining that a good number of the state’s juvenile lifers have not yet served 25-years — the minimum requirement for re-sentencing — and therefore getting them before a judge is not as paramount.
Only four of the 23 juvenile lifers in Becker’s county, for example, have served 25 years so far.
While the state has made progress around re-sentencing — as of July 1, 86 of the state’s 354 juvenile lifers had been released, a 300 percent increase since fall 2017 — defense attorneys and a new crop of progressive prosecutorial candidates are raising questions.
Olson, and others like her, point to the fact that in July 2016, when Michigan prosecutors had to submit their re-sentencing recommendations, they, as a whole, requested continued life sentences for 66 percent of the state’s juvenile lifers — a figure that appears incongruous with the Supreme Court’s ruling that the sentence should just be reserved for “the rare juvenile offender whose crime reflects irreparable corruption.”
While prosecutors have been able to walk back and change recommendations for continued life, and judges can rule against a prosecutor’s recommendation, the original sentences more or less placed defendants on a slower track, as those originally recommended for a re-sentencing (known as a term of years) were prioritized in the process.
The 66 percent that were slotted for continued life were, therefore, de-prioritized.
Eli Savit, an Ann Arbor, MI-based lawyer who is currently running for Washtenaw County Prosecutor, is unable to separate the current state of affairs from those original recommendations.
“When we’re talking about two-thirds of the population being recommended at least for continued life without parole, that’s a pretty extreme outlier, in terms of how states as a whole are dealing with this,” said Savit, who is part of a growing trend of reformist prosecutors.
“I think we’re on the far end of the spectrum in terms of not being very forgiving,” he continued. “And you know, I’d say, frankly running up against what was said in Miller and Montgomery.”
Reassessing the “Super Predators”
Over the last 15 years, the sentencing of youths has taken on new importance and attention within the criminal justice arena. While the so-called “juvenile super predators” of the 1980s and 1990s sparked punitive “get tough” on crime legislation, there has been a slow reassessment of these policies in the last two decades.
In 2005, the high court ruled that executing a teenager was unconstitutional because of differences in brain development between adolescents and adults. Five years later, the justices reiterated this distinction, ruling that juveniles could not be sentenced to life without parole for crimes that did not involve murder.
Homicide was addressed in June 2012 with the Miller decision, which held that the mandatory sentencing of anyone under 18 to life without parole amounted to cruel and unusual punishment and therefore was unconstitutional.
While the majority of states took the Miller ruling to be retroactive, a review by Mother Jones found more than a dozen pushed back. Michigan, which has the second highest number of juvenile lifers in the nation after Pennsylvania, was one of them.
At the forefront of the fight against retroactivity was then-Michigan Attorney General Bill Schuette.
“They committed the gravest crime — murder. And they have been incarcerated for virtually their entire adult lives,” Schuette wrote in a 2015 amicus brief on why Miller shouldn’t be applied retroactively.
“Requiring the States to re-sentence hundreds of offenders, many of whose crimes were committed decades ago, would undermine the community’s safety and would offend principles of finality,” he continued.
While the high court ultimately ruled in favor of retroactivity in January 2016 with Montgomery, how this played out was up to each state, and in Michigan, the state Legislature, in anticipation of such a ruling, passed a number of stringent laws.
Under the 2013 bills, if a judge was to dole out a “term of years” they would have to give a minimum of 25 years and a maximum of 60 years. Additionally, prosecutors would have 180 days, after any retroactive ruling, to make their recommendations.
Because of this, when the U.S. Supreme Court did eventually rule in January 2016 that the decision should apply to those already in prison, prosecutors had until the end of July 2016 to assess who they would recommend for continued life without parole sentences, and who they’d recommend for a term of years.
Under the state law, a term-of-years recommendation could not be undone, but a recommendation of continued life could be revisited and changed down the line — facts that made it, for many prosecutors, appealing to make a harsher — but malleable — original sentence.
Many Michigan prosecutors, wanting more time to review cases, ended up recommending defendants to continued life — nearly 70 percent of lifers in the state received this recommendation.
How this ultimately played out, however, was contingent on the size of the county.
This mindset was reiterated by Tom Dawson, who was brought on by Wayne County Prosecutor Kym Worthy in fall 2016 — after recommendations were made — to focus on the county’s juvenile lifer cases.
“If you want to change your mind you can then change your mind from life without parole to term of years but you can never go back from term of years to life without parole” said Dawson.
Of the county’s 144 juvenile lifer cases, 43 percent were originally recommended for continued life.
Complicating this was the fact that up until last summer defense attorneys and prosecutors were in a stalemate over how to proceed with cases where an individual was recommended for continued life. Should a judge or a jury hear these cases?
For two and half years, as this debate made its way through the courts, many lifers were left in limbo as several prosecutors decided to hold off on the cases until a decision had been made. In June 2018, the Michigan Supreme Court ultimately ruled that it would be up to a judge.
“It was just delaying it,” said Deb LaBelle, an Ann Arbor-based defense lawyer who has taken on a number of the lifer cases.
Dawson, however, contends that any delays are so that all information — from both sides — can be fairly brought forward.
“We also want to make sure that the defense has every opportunity to present evidence,” said Dawson, explaining that his office wouldn’t set arbitrary deadlines like getting all 60 of its remaining cases done by the end of the summer if it would hurt the defense’s ability to get it information.
“We want to do this in a deliberate and fair manner where the defense gets to present everything they have, the people get to present everything we have,” he said. “If we need more time to find something, we want the courts to give us that time. It’s the process that we’re trying to have.”
Beyond conflicting views on what is delaying the process — or even if the process is being delayed — is the fact that there is no official database tracking the whole affair. This adds a whole new layer to an already complicated, and uncharted, procedure.
“There was not a centralized database, no one predicted that this would happen, that Miller would come out,” said Olson, explaining that because the idea of juvenile lifers coming home seemed, for so long, so out of the realm of possibility, their status within the criminal justice system was not tracked.
Without a centralized database, pinpointing the exact number of juvenile lifers is challenging.
Those working in the field typically say there are between 350 and 380 juvenile lifers in the state.
This discrepancy stems, according to Olson, from a mix-up with the Michigan Department of Corrections.
Olson contends that when the department of corrections sent out data originally, it included some defendants who were 18 at the time that their crimes were committed, and therefore were not actually juveniles.
Additionally, there is confusion over definitions — what officials believe should be tracked.
Miller v Montgomery Defendants
Within the world of juvenile lifers there are “Miller Defendants” — individuals who were on direct appeal or had pending cases when Miller came out, or committed their crimes after the Miller decision — and “Montgomery Defendants” — those who were incarcerated at the time Miller was decided and their cases were final.
Many defense attorneys include both in their internal tracking of the re-sentencing process. Prosecutors tend to just focus on Montgomery Defendants.
The Free Press, for this report, focused on Montgomery, counting a total of 354 individuals who were, at the time of their sentencing, mandatorily sentenced to life.
Digging deeper into the re-sentencing process, other discrepancies arise.
One that defense attorneys, such as LaBelle and Olson, pinpoint deals with what they call “geographical justice” — a person’s fate is tied to the location where their crime was committed and the views of the prosecutors or judges in that region.
In Ingham County, for example, there are two juvenile lifer defendants. Both, in 2016, were recommended for continued life without parole. However, a new prosecutor, Carol Siemon was elected that fall, and when she came into office the following year and reviewed the cases she decided to change the recommendations to a term of years. Both defendants have gone before a judge. One is home today. The other will be eligible for parole in 2021.
“So, if you happened to do your crime in Ingham County, you know, and had the new prosecutor, you got a reasonable look,” said LaBelle. “But if you were in, you know, Muskegon, you can’t even have the opportunity to show what’s going on.”
All seven juvenile lifers in Muskegon were recommended for continued life without parole. None have gone before a judge yet.
“We preserved our right to seek judicial interpretation on whether any of our defendants should continue to serve life sentences,” Muskegon County Prosecutor DJ Hilson wrote in an email.
“We continue to review and work with the various defense counsels on all of our cases. So far all seven cases are still pending a hearing.”
Juvenile justice advocates however, push back.
“I think the U.S. Supreme Court was very clear that life without parole can only be imposed on a child in rare or uncommon cases,” said Heather Renwick, Legal Director of the D.C.-based Campaign for the Fair Sentencing of Youth.
“Just statistically, it’s clear that prosecutors were not using their discretion or following the Supreme Court mandate in majority of those cases by seeking life without parole so broadly across the board,” she said referring to the fact that 66 percent of juvenile lifers in the state were recommended for continued life originally.
These doubts were reiterated by Savit, who is hoping to be a part of a growing national trend of progressive prosecutors, like Larry Krasner, who has been in charge of the speedy process in Philadelphia County.
“Everybody in the criminal justice system has an obligation to take seriously what the highest court in the land says,” said Savit, explaining that Miller and Montgomery made very clear that when they’re talking about “rarity” they’re discussing it within the context of the juvenile lifer population and not society at large.
“It is very clear from Miller and Montgomery that what they were saying is that, of the juveniles that commit these heinous crimes, it is rare and it should be rare that any one of those should be sentenced to life without the possibility of parole.”
According to Savit, the job of prosecutor is first about keeping the community safe — but in that equation is the responsibility to assess what is best for the community.
“At some point, you also have to consider what benefit it is doing to society to keep folk locked up for crimes that they committed in some instances 50 or 60 years earlier,” he said, explaining that it costs taxpayers $47,000 a year to incarcerate just one individual.
“I think in addition to the mandatory factors that are set out by the Supreme Court, which include rehabilitation, just thinking about the societal benefit is something that the prosecutors and, frankly, also judges should be taking into account when dealing with these cases.”
Many defense attorneys were reticent to speak on the record with the Free Press, concerned their comments would affect the outcome of their client’s case, but also aware of how much pain the entire process is for the victim’s family — something they contend their rehabilitated clients get as well.
“I think we can feel reticent having an article about an unadjudicated client saying, ‘Look at this wonderful person’ when there is a grieving family on the other side of the equation who’ve kind of had the scab ripped off the wound again,” said Olson, one of the few defense attorneys who would speak on the record.
“That’s an area of great sensitivity for us and for our clients, because again, they’ve matured, they’ve grown, they know now what they did and are remorseful and think about what they did and understand how they impacted the lives of so many people. So there’s that component.”
While much of the criticism of the process has been focused on systems and procedures, actual deliberations reveal how divergent interpretation of the law can become.
Reprise of a Tragedy
This shading is best exemplified in the case of David Bennett — one of 62 juvenile lifers that had been recommended for continued life without parole in Wayne County.
In October 1972, Bennett was convicted of first-degree murder and sentenced to mandatory life in prison. Five months earlier at the age of 17, Bennett killed Vivian Berry — a stranger — in Plymouth Township.
As the case is described in legal documents, Bennett had planned to commit a robbery. After failing to talk his way into three separate houses, he landed at the Berrys’ home, where he asked to borrow a phone, saying he was having car trouble. When Berry attempted to run away, Bennett chased after her and subsequently slit her throat and stabbed her dozens of times.
For the defense, the horror of the crime was real, but wasn’t reason enough to bar his return.
At trial, four doctors examined Bennett and concluded that he had undiagnosed mental illness. Two determined it was schizophrenia and two said it was anti-social personality disorder. This, combined with an abusive childhood, suggest, for his defense attorneys, that the circumstances of Bennett’s crime deserve a closer look. They also point to his good behavior and the new skills he has taken on in prison, as evidence of rehabilitation and the ability to cope with his mental illness.
“There is no doubt that Mr. Bennett’s crime was appalling. So, too, were the crimes in Miller, Montgomery, and Roper. But deserving severe punishment is not the same as deserving a penalty reserved only for juveniles whose crimes reflect irreparable corruption,” his SADO defense attorneys Erin Van Campen and Kristin Lavoy wrote in a brief.
“Mr. Bennett has served nearly 47 years for this offense but is not irreparably corrupt and does not deserve a life without parole sentence.”
The brief went on to highlight all the positive rehabilitation and changes that had occurred in the last nearly five decades: classes taken, degrees obtained, the fact that while Bennett’s first three years in prison were tough, in the last 45 years he has not been involved in a single instance of aggression or violence.
“Even though he was sentenced to die in prison, Mr. Bennett chose to better himself in every way possible,” the brief explained. “He has put extraordinary effort into developing skills to cope with his mental illness and manage the trauma of his youth. Today, Mr. Bennett’s mental health is so stable that the only medication he takes is for depression.
“Thus, Mr. Bennett has demonstrated not only that he had the capacity for rehabilitation at the time of his offense, but that he has been successfully rehabilitated through his own efforts, the aging process, and the programming he has received within the MDOC. In other words, the prosecution cannot prove that Mr. Bennett is irreparably corrupt or establish any penological justification for a life without parole sentence in this case.”
The prosecution agreed that Bennett had been rehabilitated, its brief, however, focused on the other factors. Bennett was months away from being 18 when he committed the crime; he had gone to more than one house before landing at the Berry house, which seemed to indicate premeditation; the family was traumatized by the heinous crime.
“Not the Court’s Job to Discriminate”
In the hands of the judge, there was also an acknowledgement of rehabilitation, but ultimately the heinousness of the crime, as well as Bennett’s mental health issues seemed to override any growth or remorse.
Judge Dalton Roberson, a visiting judge at Wayne County Circuit Court, heard testimony on the case in May. On June 5, he re-sentenced Bennett to continued life without parole.
“I took it very seriously,” said Roberson. “I woke up at night, I read everything three or four times to try and see if there was some way that I could rule in favor of him, but I was just worried about his mental illness, I really was.”
The judge contends that in a structured environment like prison, Bennett could be trusted to take his medicines — which today is just an antidepressant — but is fearful of what could happen if left to his own devices.
“He takes his medicine as he’s required. But it’s in a structured environment, where people make sure he’s taking the medicine. Once he gets out here, if he gets off that medication, you know he might revert back to the behaviors he experienced when he was attacking that woman. So I just thought he wasn’t the type of person that fit into the standards that the Supreme Court had set for releasing him, and that’s why I ruled as I did,” said Roberson.
“I thought the lawyers for him did an excellent job, they made an excellent presentation. But I just wasn’t persuaded that he would not revert to his other behaviors if he got back into the community and stopped taking his medication.”
The judge also focused on the heinousness of the crime.
“This was not a crime that was just on the spur of the moment, two kids walking down the street, decide to rob somebody and the gun goes off and they shoot them and kill them — because that’s first-degree murder. This was a case where he decided what he wanted to do, he went to a few houses trying to get in, Mrs. Berry let him in, being a nice lady that she was. And that’s what happened to her.”
For defense attorneys, however, Roberson’s decision flies in the face of the Supreme Court’s ruling.
“It is not the judge’s job to ascertain whether someone poses a risk to re-enter society, it’s the parole board’s job,” said LaBelle, who has been following the case from the sidelines. “It is the Court’s job to determine if someone is irreparably corrupt and incapable of rehabilitation. Mr. Bennett by his record in prison, over four decades, has demonstrated his ability to be rehabilitated and in fact was.
The Court then is to determine what would be a proportional sentence for his crime, within the possible 25-40 for a minimum and 60 for the maximum.”
LaBelle was also shocked by the focus on mental health, pointing to the irony of the situation: In 1972 Bennett’s defense tried to plead insanity but the jury did not buy it and he was sent to prison. Nearly 50 years later, in 2019, mental health is being used to keep him behind bars.
“It is also not the court’s job to discriminate based on mental health or disabilities,” LaBelle continued, explaining that over two million people in the U.S. suffer from schizophrenia and manage to live perfectly lawful — and free — lives. “We don’t incarcerate people because they have this disease and we shouldn’t keep them in prison because of it.”
Bennett’s defense attorney, Van Campen, was reluctant to speak on the record, fearful that any comment would hinder the appeal process, but agreed to give a short statement.
“We’re extremely disappointed in the decision with this case, largely because everyone agrees and all the evidence shows that Mr. Bennett is rehabilitated,” she said. “That includes the expert who testified at his Miller Hearing, the prosecutor’s office in their filings. As far as the judge and his remarks, he couldn’t think of anything else Mr. Bennett could have done to rehabilitate himself.
“And even with all of that the judge still denied him the opportunity to be released. And at the heart of the Miller decision is really about juveniles’ greater capacity for change and the potential for rehabilitation, and Mr. Bennett is living proof of that potential.
He doesn’t just have the potential, he’s shown that he is rehabilitated, and so that’s what makes it especially disheartening, that in the face of Miller the judge would deny him that opportunity.”
A question raised from the sentencing ends up being: Should one of the Miller factors — rehabilitation —come before others?
Dawson, the prosecutor in the case, balks at this.
“Does Miller specify that rehabilitation, if that is found, that should override everything else? I know that’s going to be positions some defense attorneys take,” said Dawson, explaining that in People v. Skinner and People v. Hyatt — two Michigan Supreme Court cases that came after Miller — it is not made clear what must be found to sentence someone to continued life.
“It never says you must find ‘X’ before you sentence them to life without parole. Nowhere in Miller, as pointed out in Skinner, does it say that you must find an individual is irreparably corrupt before you sentence them to life without parole,” he said.
“The Skinner case specifically said that the court doesn’t have to find him a rare individual before you sentence him to life without parole,” he said, echoing a stance also taken by Oakland County prosecutor Cooper.
But advocates see it otherwise.
“I think this litany of cases from the Supreme Court is rooted in the understanding that even kids who commit terrible crimes are capable of positive change,” said Renwick, explaining that she saw it as an error — and contrary to the Supreme Court’s rulings — to hold the crime up as a dispositive factor.
“The crime itself is a static event. As traumatizing for the community and the victim’s family members as some of these events and offenses are, the defendant can’t undo that event. What they are able to do is change their lives and their conduct and their behavior while they’re incarcerated.”
Allie Gross, a community watchdog reporter at the Detroit Free Press, is a 2018-19 John Jay/Tow Juvenile Justice Reporting fellow. This is a condensed and slightly edited version of her Fellowship project. The full version and related stories are available here. Contact her at AEGross@freepress.com. Follow her on Twitter @Allie_Elisabeth. Readers’ comments are welcome.