PEOPLE v PARKS
Docket No. 162086
Michigan Supreme Court
July 28, 2022
Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice:
Bridget M. McCormack
Justices:
Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions:
Kathryn L. Loomis
PEOPLE v PARKS
Docket No. 162086. Argued on application for leave to appeal March 2, 2022. Decided July 28, 2022.
Kemo K. Parks was convicted by a jury in the Genesee Circuit Court, Celeste D. Bell, J., of first-degree premeditated murder,
life without parole under the Eighth Amendment of the United States Constitution or
In an opinion by Justice WELCH, joined by Chief Justice MCCORMACK and Justices BERNSTEIN and CAVANAGH, the Supreme Court, in lieu of granting leave to appeal, held:
Mandatorily subjecting 18-year-old defendants convicted of first-degree murder to a sentence of life imprisonment without the possibility of parole violates the principle of proportionality derived from the Michigan Constitution and thus constitutes unconstitutionally cruel punishment under
1. The Eighth Amendment of the United States Constitution provides that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Article 1, § 16 of the 1963 Michigan Constitution prohibits cruel or unusual punishment; therefore, Michigan’s provision is broader than the federal Eighth Amendment. The United States Supreme Court in Miller held that mandatory life without parole for a juvenile convicted of a homicide offense was unconstitutional because it precludes consideration of the juvenile’s chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. While there was no legal support for extending Miller’s protections under the Eighth Amendment, Miller and Montgomery were persuasive to the extent they held that juveniles are constitutionally different from adults for purposes of imposing a life-without-parole sentence, and that general proposition was adopted under the Michigan Constitution. However, United States Supreme Court jurisprudence was not followed to the extent that it drew the line for defining the class of defendants who are entitled to individualized sentencing to those under the age of 18. To determine where to draw the new line under Michigan’s constitutional provision, scientific and social-science research regarding the characteristics of the late-adolescent 18-year-old brain was considered. In the punishment context, science has always informed what constitutes “cruel” or “unusual” punishment in regards to certain classes of defendants. Late adolescence—including the age of 18—is a key stage of development characterized by significant brain, behavioral, and psychological change. The key characteristic of the adolescent brain is exceptional neuroplasticity, which is a critical period of cognitive development for young adults that has significant consequences on their behavior. Late adolescents are hampered in their ability to make decisions, exercise self-control, appreciate risks or consequences, feel fear, and plan ahead. Thus, this period of late adolescence is characterized by impulsivity, recklessness, and risk-taking. This period of development also explains why late adolescents are more susceptible to negative outside influences, including peer pressure. Finally, these hallmark features of the developing brain render late adolescents less fixed in their characteristics and more susceptible to change as they age. This evolving understanding of a juvenile’s neurological and psychological development is reflected generally in Michigan statutory provisions that treat 18-year-olds differently than other adults.
2. Michigan’s Constitution requires that sentencing decisions be proportional. People v Bullock, 440 Mich 15 (1992), citing People v Lorentzen, 387 Mich 167 (1972), held that courts, in evaluating the proportionality of sentences under the “cruel or unusual punishment” clause, are
required to consider (1) the severity of the sentence relative to the gravity of the offense, (2) sentences imposed in the same jurisdiction for other offenses, (3) sentences imposed in other jurisdictions for the same offense, and (4) the goal of rehabilitation, which is a criterion specifically rooted in Michigan’s legal traditions. Determining whether the Legislature’s chosen sentence runs afoul of the Michigan Constitution’s protections is well within the purview of this Court. Under this test, mandatorily subjecting 18-year-old defendants to life in prison, without first considering the attributes of youth, is unusually excessive imprisonment; thus, automatic life without parole for this class of defendants is a disproportionate sentence that constitutes “cruel or unusual punishment” under
3. Parks had to be resentenced given that he was automatically sentenced to spend the rest of his life in prison under
to any of the attributes of youth that Parks shared with juvenile defendants. The attributes of youth must be considered to ensure that the sentencing of 18-year-old defendants found guilty of first-degree murder passes constitutional muster. Nor was he given the same benefit of an individualized sentencing procedure that exists pursuant to either
4. The prosecution’s request to revisit Lorentzen and Bullock was declined because there was no basis for overturning the well-established precedent that the Michigan Constitution provides broader protection to criminal defendants from disproportionate punishments than that offered under the federal Constitution. There is an unambiguous, meaningful textual difference between the federal constitutional provision and Michigan’s constitutional provision. The original meaning of a constitutional provision is not easily definable and should not be used to overturn 50 years of precedent.
Part II(B)(4) of the Court of Appeals opinion was reversed, Parks’s sentence for first-degree murder was vacated, and the case was remanded to the Genesee Circuit Court for Parks to be resentenced under
Justice BERNSTEIN, concurring, agreed with the majority’s analysis of the proportionality test outlined in People v Bullock, 440 Mich 15 (1992), and with the majority’s conclusion that the imposition of mandatory sentences of life imprisonment without the possibility of parole on 18-year-old offenders violates this proportionality principle, but he wrote separately to highlight additional reasons that support this position. The majority’s decision shifted more control over difficult sentencing decisions to local actors, which Justice BERNSTEIN believed would only help when making difficult choices on an individualized basis. Additionally, evolving standards of decency have changed enough to both redefine what type of punishment is viewed as cruel and unusual and the breadth of the class afforded protection from such punishment; accordingly, Justice BERNSTEIN believed that it was problematic to draw a bright line under which age is the only criterion in determining whether a mandatory sentence of life without the possibility of parole is cruel or unusual. He believed that a better approach would be to institute a shifting age-based presumption through which offenders could move to seek additional process based on other, non-age-based qualities of diminished culpability, which could entitle some offenders over the age of 18 to the same protections as youthful offenders.
Justice ZAHRA, joined by Justice VIVIANO, dissenting, joined Justice CLEMENT’s dissenting opinion in full and would accept the prosecution’s invitation to revisit caselaw interpreting
Justice CLEMENT, joined by Justices ZAHRA and VIVIANO, dissenting, would not have extended Miller’s rule to offenders who were 18 years old at the commission of their crime because imposing mandatory sentences of life without parole on 18-year-old offenders is not unconstitutional under either the Eighth Amendment of the United States Constitution or
as opposed to the severity of the punishment, weighed in favor of finding the penalty constitutional. First-degree murder is a very serious offense, arguably the most serious offense one can commit; accordingly, a very severe sentence is proportionate. Moreover, even given young adults’ ongoing neurological development, 18-year-olds are generally more than able to comprehend the gravity of the offense of first-degree murder. The second factor, the penalty imposed for the offense compared to penalties imposed on other offenders in Michigan, also weighed in favor of finding the penalty constitutional because mandatory life without parole for first-degree murder is not out of place when considered alongside other punishments that also require the imposition of a mandatory sentence of life without parole, including first-degree criminal sexual conduct, adulteration of drugs with intent to kill, and possession with intent to unlawfully use an explosive device causing death, among other offenses. The third factor, the penalty imposed for the offense in Michigan compared to the penalty imposed for the same offense in other states, weighed in favor of finding the penalty constitutional. Seventeen other states and the federal government also have mandatory sentences of life without parole for 18-year-old offenders, and the existence of one opinion by a sister state’s supreme court did not shed much light on whether the third factor weighed in favor of the penalty’s unconstitutionality. Finally, although the fourth factor, whether the penalty imposed advances the penological goal of rehabilitation, does not weigh in favor of the penalty’s constitutionality given that a defendant sentenced to mandatory life without parole has little realistic chance for parole, there are other valid penological goals, such as retribution, deterrence, and incapacitation. Accordingly, the first three factors weighed strongly in favor of the punishment’s constitutionality, and to the extent that the fourth factor weighed against the punishment’s constitutionality, this factor alone was insufficient to support a determination that mandatory sentences of life without parole are unconstitutional. Furthermore, the majority’s reliance on neuroscience demonstrated that its decision was based in large part on policy, and policy decisions should be left to the Legislature.
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KEMO KNICOMBI PARKS, Defendant-Appellant.
No. 162086
Michigan Supreme Court
FILED July 28, 2022
BEFORE THE ENTIRE
WELCH, J.
This is the direct appeal of the mandatory life-without-parole sentence imposed on defendant, Kemo Knicombi Parks, for his first-degree premeditated-murder conviction under
sentence of mandatory life without parole violates the Michigan Constitution’s ban on “cruel or unusual” punishment.
I. BACKGROUND
A. FACTUAL AND PROCEDURAL HISTORY
On October 5, 2016, Parks’s older cousin, Dequavion Harris, shot and killed the victim in the parking lot of a convenience store. According to a witness, prior to the murder, Parks and Harris spoke to each other in low voices and whispers in the back seat of a car parked outside the convenience store. Parks then gave a gun to Harris. Both men entered the store, and Harris exited to the parking lot a short time later. Parks remained inside the store. Thereafter, the victim, who was sitting in his car in the parking lot, was shot and killed. Witnesses heard gunshots and observed Harris flee the parking lot. Parks was 18 years old at the time of the shooting.
At trial, the prosecution’s theory was that Harris and Parks planned to kill the victim in retaliation for the prior murder of Harris’s cousin. The prosecution never alleged that Parks shot the victim; instead, the prosecution charged Parks with first-degree premeditated murder under an aiding-and-abetting theory. Both Harris and Parks were found guilty of first-degree premeditated murder,
firearm),
With the aid of counsel, both defendants appealed in the Court of Appeals, and the Court of Appeals consolidated the cases.1 In an unpublished per curiam opinion, the Court of Appeals affirmed Harris’s and Parks’s convictions and sentences, with the exception of ordering a limited remand in Parks’s appeal to redetermine a portion of Parks’s restitution order. People v Harris, unpublished per curiam opinion of the Court of Appeals, issued August 13, 2020 (Docket Nos. 346586 and 346587), p 14. The Court of Appeals specifically rejected Parks’s challenge to his sentence as cruel and unusual punishment under the federal and state Constitutions. Id. at 11-12.
Parks sought leave to appeal in this Court, and we ordered additional briefing to address
whether the United States Supreme Court’s decisions in Miller v Alabama, 567 US 460 (2012), and Montgomery v Louisiana, 577 US 190 (2016), should be applied to defendants who are over 17 years old at the time they commit a crime and who are convicted of murder and sentenced to mandatory life without parole, under the Eighth Amendment to
the United States Constitution or Const 1963, art 1, § 16 , or both.[2]
B. THE EIGHTH AMENDMENT DICTATES THAT YOUTH MATTERS IN SENTENCING
The Eighth Amendment of the United States Constitution reads in full: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, Am VIII (emphasis added). “[T]he Eighth Amendment guarantees individuals the right not to be subjected to excessive sanctions. The right flows from the basic precept of justice that punishment for crime should be graduated and proportioned to the offense.” Roper v Simmons, 543 US 551, 560 (2005) (quotation marks, citation, and brackets omitted). To that end, the United States Supreme Court has stated that to determine if a punishment is disproportionate, courts must look to the “evolving standards of decency that mark the progress of a maturing society . . . .” Id. at 561 (quotation marks and citation omitted). “By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.” Id. at 560. “The Cruel and Unusual Punishments Clause prohibits the imposition of inherently barbaric punishments under all circumstances.” Graham v Florida, 560 US 48, 59 (2010).
The Supreme Court has long recognized that children are constitutionally different from adults for sentencing purposes. See Miller v Alabama, 567 US 460, 471 (2012). Overall, juveniles have diminished culpability and greater prospects for reform, thereby making them “less deserving of the most severe punishments.” Id. (quotation marks and citation omitted). “Youth is more than a
Court of Appeals for consideration of defendant Poole’s case in light of this opinion. People v Poole, ___ Mich ___ (2022) (Docket No. 161529).
chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage.” Roper, 543 US at 569 (quotation marks, citation, and brackets omitted).
The United States Supreme Court has succinctly summarized the three significant differences between juveniles and adults. “First, children have a ‘lack of maturity and an underdeveloped sense of responsibility,’ leading to recklessness, impulsivity, and heedless risk-taking.” Miller, 567 US at 471 (quotation marks and citation omitted). “Second, children ‘are more vulnerable . . . to negative influences and outside pressures,’ including from their family and peers; they have limited ‘contro[l] over their own environment’ and lack the ability to extricate themselves from horrific, crime-producing settings.” Id. (citation omitted). “And third, a child’s character is not as ‘well formed’ as an adult’s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of irretrievabl[e] deprav[ity].’ ” Id. (citation omitted). “Deciding that a ‘juvenile offender forever will be a danger to society’ would require ‘mak[ing] a judgment that [he] is incorrigible’—but ‘incorrigibility is inconsistent with youth.’ ” Id. at 472-473 (quotation marks and citation omitted). This basic overall principle—that youthful characteristics render defendants less culpable—has shaped Eighth Amendment jurisprudence for the last two decades.
juveniles.3 See id. at 569. In making this bright-line prohibition of the death penalty for those under 18 years old, the Court explained why it drew the line at 18:
Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach. For the reasons we have discussed, however, a line must be drawn. . . . The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest. [Id. at 574 (emphasis added).]
Five years later, in Graham, 560 US at 74, the Court concluded that “penological theory is not adequate to justify life without parole for juvenile nonhomicide offenders,” and thus the penalty was deemed cruel and unusual under the Eighth Amendment. “This clear line is necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit that punishment.” Id. Thus, defendants in this situation should be given “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 75. Notably, in its holding the Court cited Roper’s reasoning about why it drew the line
between adulthood and childhood at age 18, concluding that the same line applied to the categorical ban of life-without-parole sentences for nonhomicide offenses. Id. at 74-75.4
In Miller, 567 US at 477, the United States Supreme Court held that mandatory life without parole for a juvenile convicted of a homicide offense was unconstitutional because it “precludes consideration of [the juvenile’s] chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences.” Miller therefore established
We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Cf. Graham, 560 U.S., at 75 (“A State is not required to guarantee eventual freedom,” but must provide “some
meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation”). By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. . . . But given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Roper, 543 U.S., at 573; Graham, 560 U.S., at 68. Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison. [Miller, 567 US at 479-480 (emphasis added).]
Following Miller, the United States Supreme Court was presented with the question whether Miller’s ban on mandatory sentencing schemes applies retroactively. Montgomery v Louisiana, 577 US 190, 193-194 (2016). In Montgomery, the Court clarified:
Because Miller determined that sentencing a child to life without parole is excessive for all but the rare juvenile offender whose crime reflects irreparable corruption, it rendered life without parole an unconstitutional penalty for a class of defendants because of their status—that is, juvenile offenders whose crimes reflect the transient immaturity of youth. As a result, Miller announced a substantive rule of constitutional law. Like other substantive rules, Miller is retroactive because it necessarily carries a significant risk that a defendant—here, the vast majority of juvenile offenders—faces a punishment that the law cannot impose upon him. [Montgomery, 577 US at 208-209 (quotation marks, citations, and brackets omitted; emphasis added).]
The Court reiterated that “[a]lthough Miller did not foreclose a sentencer’s ability
‘ “irreparable corruption.” ’ ” Id. at 195, quoting Miller, 567 US at 479, in turn quoting Roper, 543 US at 573. Ultimately, Montgomery clarified that Miller “required that sentencing courts consider a child’s diminished culpability and heightened capacity for change before condemning him or her to die in prison.” Montgomery, 577 US at 195 (quotation marks and citation omitted).
Most recently, in Jones v Mississippi, 593 US ___, ___ (2021), the Supreme Court held that “Miller required a discretionary sentencing procedure.” The Court explained: “The key assumption of both Miller and Montgomery was that discretionary sentencing allows the sentencer to consider the defendant’s youth, and thereby helps ensure that life-without-parole sentences are imposed only in cases where that sentence is appropriate in light of the defendant’s age.” Id. at ___; 141 S Ct at 1318.
Post-Miller, and in anticipation of Montgomery, Michigan’s Legislature established juvenile resentencing procedures that are consistent with these cases.
prosecution, as the moving party, must overcome this presumption by clear and convincing evidence.
C. THE MICHIGAN CONSTITUTION FORBIDS EXCESSIVE IMPRISONMENT
Michigan’s Constitution has its own punishment provision, but it is broader than the federal Eighth Amendment counterpart. The provision reads in full: “Excessive bail shall not be required; excessive fines shall not be imposed; cruel or unusual punishment shall not be inflicted; nor shall witnesses be unreasonably detained.”
Further, we have held that our Constitution requires that sentencing decisions be proportional. Our seminal opinion on the principle of proportionality is People v Bullock, 440 Mich 15 (1992). In that case, we held that a life-without-parole sentence for possession of 650 grams or more of a mixture containing cocaine was unconstitutional under the state Constitution because of a lack of proportionality. Id. at 27, 30. We set forth three compelling reasons that the state Constitution’s ban on “cruel or unusual” punishment offers broader protection than its federal counterpart. Id. at 30. First,
there are textual differences between the state and federal Constitutions; a bar on punishments that are either cruel or unusual is necessarily broader than a bar on punishments that are both cruel and unusual. Id. at 30 n 11. Second, by 1963, the words “cruel” and “unusual” had been understood “for more than half a century to include a prohibition on grossly disproportionate sentences,” indicating that the framers and adopters of the 1963 Constitution had intended a broader view of the state constitutional protection. Id. at 32. Lastly, we recognized that there is longstanding Michigan precedent to support this broader view of Michigan’s constitutional provision. Id. at 33.
In particular, we noted that Michigan courts, in evaluating the proportionality of sentences under the “cruel or unusual punishment” clause, are required to consider: (1) the severity of the sentence relative to the gravity of the offense; (2) sentences imposed in the same jurisdiction for other offenses; (3) sentences imposed in other jurisdictions for the same offense; and (4) the goal of rehabilitation, which is a criterion specifically “rooted in Michigan’s legal traditions . . . .” Id. at 33-34, citing Lorentzen, 387 Mich at 176-181. The Court in Bullock concluded that the Lorentzen analysis was “firmly and sufficiently rooted in
The proportionality principle inherent in
Const 1963, art 1, § 16 , is not a simple, “bright-line” test, and the application of that test may, concededly, be analytically difficult and politically unpopular, especially where application of that principle requires us to override a democratically expressed judgment of the Legislature. The fact is, however, the people of Michigan, speaking through their constitution, have forbidden the imposition of cruel or unusual punishments, and we are duty-bound to devise a principled test by which to enforce that prohibition, and to apply that test to the cases that are brought before us. The very purpose of a constitution is to subject the passing judgments of temporary legislative or political majorities
to the deeper, more profound judgment of the people reflected in the constitution, the enforcement of which is entrusted to our judgment. [Id. at 40-41 (emphasis added).]
Therefore, in addition to those protections guaranteed to every citizen of this country under the Eighth Amendment of the federal Constitution, our state Constitution has historically afforded greater bulwarks against barbaric and inhumane punishments. It is through this heightened protective standard that we must consider the issue before us today.5
After reviewing the arguments of the parties as well as the amici, we are left with the inescapable conclusion that mandatorily condemning 18-year-olds to die in prison,
without consideration of the attributes of youth that 18-year-olds and juveniles share, no longer comports with the “evolving standards of decency that mark the progress of a maturing society.” Lorentzen, 387 Mich at 179 (quotation marks and citation omitted). Therefore, we conclude that the Michigan Constitution requires that 18-year-olds convicted of first-degree murder receive the same individualized sentencing procedure under
We acknowledge that some of the mitigating characteristics in the scientific research submitted by amici and defense counsel apply to young adults, in some form, up to the age of 25. We also do not dispute the dissent’s point that any line-drawing will, at times, lead to arbitrary results. The United States Supreme Court grappled with this same issue in Roper, 543 US at 574, noting, “Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules.” While line-drawing is difficult, our Constitution compels us to make these difficult decisions. Given that Parks and Poole (the defendant in the companion case) were both 18 at the time they committed their crimes, our opinion only applies to 18-year-olds. We need not address the Michigan constitutional requirements for sentencing offenders who were over 18 years old at the time of the offense.
A. STANDARD OF REVIEW
We review questions of constitutional law de novo. People v Kennedy, 502 Mich 206, 213 (2018). Moreover, we alone are “the ultimate authority with regard to the meaning and application of Michigan law.” Bullock, 440 Mich at 27.
B. THE FEDERAL COURTS HAVE DRAWN A CLEAR LINE BETWEEN JUVENILES AND ADULTS FOR SENTENCING PURPOSES UNDER THE EIGHTH AMENDMENT
The parties in this case were asked to address whether the United States and/or
The United States Supreme Court has, for the better part of this century, reshaped how juveniles convicted of first-degree murder must be sentenced in this country. Undoubtedly, condemning children to die in the custody of the state, either through execution or behind prison walls, without any specialized consideration of their brain’s neuroplasticity and the attendant characteristic of their capacity
The Court has indeed drawn
citing the same logic from Roper. Graham, 560 US at 74-75. The subsequent decisions of Miller, Montgomery, and Jones did not question or reform the bright line drawn in Roper.6
Therefore, in light of current federal precedent, we find no support in the Eighth Amendment for extending Miller’s protections under the Eighth Amendment beyond the bright line originally set in Roper. But the fact that the United States Supreme Court has decided to draw the line at 17 does not preclude us from drawing a
In other words, we may draw our own line, and we do so today.
legislatively mandate life without parole for every perpetrator of first-degree murder above the age of 17.
While this increased leniency in other states is persuasive to us, we would be remiss if we did not note that, excluding Michigan, 17 states17 and the federal government18 do still mandate
Nonetheless, we are persuaded that our Constitution mandates that 18-year-olds be treated in the same manner as juveniles in these cases. We examine today an irrevocable sentence, offering no hope of release, for a group of defendants that are neurologically less culpable than others serving the same or, oftentimes, less-severe sentences for the same crimes. Like Washington, which has a similarly broad constitutional provision as our Const 1963, art 1, § 16, we find that our sentencing scheme does not comport with our
Constitution’s mandate forbidding
4. THE GOAL OF REHABILITATION
As to the fourth and final Lorentzen proportionality factor, it cannot be disputed that the goal of rehabilitation is not accomplished by mandatorily sentencing an individual to life behind prison walls without any hope of release. This is a long-established principle. See Graham v. Florida, 560 U.S. 48, 74 (2010) (“A sentence of life imprisonment without parole, however, cannot be justified by the goal of rehabilitation.”). Without hope of release,
Rehabilitation is a specific goal of our criminal-punishment system. Bullock, 440 Mich 15, 34 (1992). Indeed, it is the only penological goal enshrined in our proportionality test as a “criterion rooted in Michigan’s legal traditions,” id. at 34, despite the Lorentzen Court’s clear awareness of those other penological goals cited and relied on by the dissent, id. at 34-35; Lorentzen, 387 Mich 167, 180-181 (1972). However, the current system of punishment of 18-year-old first-degree murderers to life without the possibility of parole “ ‘forswears altogether the rehabilitative ideal.’ ” Miller v. Alabama, 567 U.S. 460, 473 (2012), quoting Graham, 560 U.S. at 74. And because an 18-year-old defendant has a “child’s capacity for change,”
as articulated in Miller, 567 U.S. at 473, it is particularly antithetical to our Constitution’s professed goal of rehabilitative sentences to uniformly deny this group of defendants the chance to demonstrate their ability to rehabilitate themselves. Bullock, 440 Mich 15, 34 (1992).
In sum, after considering all four factors of the proportionality test from Lorentzen and Bullock, we conclude that our Constitution prohibits imposing sentences of mandatory life without parole for 18-year-old defendants convicted of first-degree murder, given that their neurological characteristics are identical to those of juveniles, as articulated in Miller, 567 U.S. at 471-479. We hold that Michigan’s sentencing scheme mandating that 18-year-old defendants convicted of first-degree murder receive a sentence of life imprisonment without the possibility of parole is cruel or unusual punishment under Const 1963, art 1, § 16.
E. PARKS’S MANDATORY LIFE-WITHOUT-PAROLE SENTENCE IS UNCONSTITUTIONAL
After committing his crimes at age 18, Parks was automatically sentenced to spend the rest of his life in prison under the first-degree murder statute,
While Parks argues that the sentence he received is unconstitutional as applied to him because of the mitigating circumstances of his offense and his person, our inquiry today does not require us to examine anything specific to Parks at this juncture. Instead,
we hold that it is the application of mandatory life without parole to those 18-year-olds—some of whom will inevitably share the same mitigating characteristics of youth as juveniles—that offends our Constitution, not the application of this sentencing scheme to Parks specifically. In other words, we agree with the Washington Supreme Court that “no meaningful neurological bright line exists between age 17 and age 18”; to treat those two classes of defendants differently in our sentencing scheme is disproportionate to the point of being cruel under our Constitution. See In re Monschke, 197 Wash 2d 305, 326 (2021); Bullock, 440 Mich 15, 33-34 (1992). Because Parks was not given the benefit of the post-Miller
The attributes of youth must be considered to ensure that the sentencing of 18-year-old defendants found guilty of first-degree murder passes constitutional muster. To facilitate this requirement, the same protections provided to juveniles pursuant to
defendants.19 Because Parks was sentenced without consideration of the attributes of youth, his sentence is unconstitutional, and he must be resentenced.
III. CONCLUSION
We hold that mandatorily subjecting 18-year-old defendants convicted of first-degree murder to a sentence of life without parole violates the principle of proportionality derived from the Michigan Constitution, Lorentzen, 387 Mich 167, 176-181 (1972); Bullock, 440 Mich 15, 33-34 (1992), and thus constitutes unconstitutionally cruel punishment under Const 1963, art 1, § 16. This renders Parks’s automatic sentence of life without parole unconstitutional. Parks and other 18-year-old defendants convicted of first-degree murder are entitled to the full protections of
resentenced to a term of years, pursuant to MCL 769.25(9). In all other respects, we deny leave to appeal for failure to persuade the Court of the need for review. On remand, the Genesee Circuit Court shall also redetermine a portion of defendant’s restitution order pursuant to the decision of the Court of Appeals.
Elizabeth M. Welch
Bridget M. McCormack
Richard H. Bernstein
Megan K. Cavanagh
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KEMO KNICOMBI PARKS, Defendant-Appellant.
No. 162086
Supreme Court of Michigan
BERNSTEIN, J. (
The United States Supreme Court has held that imposing a sentence of mandatory life imprisonment without the possibility of parole on individuals who were under 18 years old when they committed a crime violates the Eighth Amendment’s prohibition on cruel and unusual punishment. See Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012); Montgomery v Louisiana, 577 US 190; 136 S Ct 718; 193 L Ed 2d 599 (2016). Before Miller, all offenders in Michigan who were convicted of first-degree murder were sentenced to mandatory life imprisonment without the possibility of parole, regardless of their age. In accordance with United States Supreme Court precedent, the Michigan Legislature has since codified protections for juvenile offenders and enacted a scheme through which juvenile offenders are instead sentenced to a term of years in prison unless the prosecution moves for a sentence of life imprisonment without the possibility of parole and demonstrates that such a sentence is proportional. See
___ Mich ___, ___; ___ NW2d ___ (2022) (Docket No. 157738); slip op at 3-4 (explaining how Miller effected
This case asks us to consider whether defendant, who was 18 at the time he committed a crime that resulted in a first-degree murder conviction, is entitled to these same protections. I agree with the majority’s thorough analysis of the test outlined in People v Bullock, 440 Mich 15; 485 NW2d 866 (1992). Extending the protections offered by
I. MORE LOCAL AND INDIVIDUALIZED CONTROL OVER SENTENCING DECISIONS
Under the new sentencing scheme enacted after Miller, when a juvenile offender commits a crime for which a life sentence without the possibility of parole is possible, it is the local prosecutor who must decide whether to pursue such a sentence.
Once the local prosecutor makes the decision to pursue a sentence of life imprisonment without the possibility of parole, the authority to make the sentencing decision remains local, because the trial court must then, after hearing and considering all the evidence presented by the prosecution and defendant, decide whether that is a proportionate sentence. If the trial court determines that the local prosecutor has not proven the sentence to be proportionate, the trial court shall impose an appropriate term-of-years sentence.
Understanding how these statutes work is important for understanding what the majority’s holding means. It does not mean that we are punishing the most severe crime of first-degree murder less severely. Instead, it means that 18-year-old offenders convicted of the most serious crimes may not be automatically sentenced to the harshest sentences without first being afforded an additional layer of process. Local prosecutors may still advocate for youthful offenders to be sentenced to life imprisonment without the possibility of parole, and local trial courts may still agree. This decision merely underscores one of the foundations of a functioning criminal-justice system—that procedure matters for all criminal defendants, even those who commit the most serious crimes. See, e.g., People v Peeler, ___ Mich ___, ___; ___ NW2d ___ (2022) (Docket No. 163667) (BERNSTEIN, J., concurring); slip op at 4.
Sentencing youthful offenders who have committed the most serious crimes is an exceptionally daunting task. The Legislature has concluded that the local prosecutor and local trial court should be responsible for making these difficult decisions, and it is these local actors who will be able to make the most informed decisions about individual defendants. Having now decided that there is no meaningful difference between a 17- and 18-year-old offender, this opinion merely requires these local actors to engage in an additional layer of process before sentencing 18-year-old offenders to life imprisonment without the possibility of parole.
II. PROPORTIONALITY TO THE OFFENSE AND THE OFFENDER
The United States Supreme Court has consistently recognized that “youth matters in sentencing.” Jones v Mississippi, 593 US at ___, ___; 141 S Ct 1307, 1314; 209 L Ed
2d 390 (2021). In several opinions, the Supreme Court has articulated factors, which have colloquially become known as the “Miller factors,” that sentencing courts must consider before sentencing youthful offenders to life imprisonment without the possibility of parole. As the majority notes, the Supreme Court has grounded these factors in “ ‘developments in psychology and brain science [that] continue to show fundamental differences between juvenile and adult minds’—for example, in ‘parts of the brain involved in behavior control.’ ” Miller, 567 US at 471-472, quoting Graham v Florida, 560 US 48, 68; 130 S Ct 2011; 176 L Ed 2d 825 (2010). In other words,
To provide guidance, the Supreme Court has tried to draw a bright line at age 18 to demarcate the age of maturity, at which point a youthful offender is no longer eligible for these constitutional protections. The Supreme Court first drew this bright line in Roper v Simmons, 543 US 551; 125 S Ct 1183; 161 L Ed 2d 1 (2005), holding that the death penalty is prohibited for all offenders under age 18 who are convicted of capital crimes. Roper and its progeny show the difficulties and flaws associated with such a bright-line cutoff, and I am concerned that applying a bright line in this way might not be the best approach to resolve the difficult question of how to sentence offenders who commit the most serious offenses.
First, because the federal constitutional protection against cruel and unusual punishments requires analyzing “ ‘the evolving standards of decency that mark the progress of a maturing society,’ ” any conclusions that might be drawn could change in a
short amount of time. Id. at 561, quoting Trop v Dulles, 356 US 86, 101; 78 S Ct 590; 2 L Ed 2d 630 (1958). Roper, which was decided in 2005, offered a time line for how the Supreme Court arrived at its holding. This history showed that, in 1988, a plurality of the Supreme Court determined that the constitutional standards of decency did not permit the execution of anyone under the age of 16 at the time of a crime. Roper, 543 US at 561, citing Thompson v Oklahoma, 487 US 815; 108 S Ct 2687; 101 L Ed 2d 702 (1988). The next year, the Supreme Court held that the standards of decency allowed for the imposition of the death penalty for those over 16. Roper, 543 US at 562, citing Stanford v Kentucky, 492 US 361; 109 S Ct 2969; 106 L Ed 2d 306 (1989). The result of Thompson and Stanford meant that, by 1989, the bright-line cutoff was established at age 16 for death-penalty cases. On the same day that Stanford was decided, the Supreme Court held that the Constitution did not mandate an exemption from the death penalty for offenders with intellectual disabilities. Roper, 543 US at 562, citing Penry v Lynaugh, 492 US 302; 109 S Ct 2934; 106 L Ed 2d 256 (1989). But by 2002, the same standards of decency had evolved even further, resulting in the holding that the death penalty was cruel and unusual for offenders with intellectual disabilities. Roper, 543 US at 563, citing Atkins v Virginia, 536 US 304; 122 S Ct 2242; 153 L Ed 2d 335 (2002). Likewise, this evolution of the standards of decency led to the holding that the death penalty was cruel and unusual for all juvenile offenders, not just those under the age of 16. Roper, 543 US at 564, 578.
Over a period of just 16 years, the bright-line cutoff for death-penalty eligibility jumped from age 16 to age 18, and over a period of less than 25 years, the Supreme Court went from allowing the death penalty for 17-year-old offenders to holding that mandatory sentences of life imprisonment without the possibility of parole are unconstitutionally cruel
and unusual for all juvenile offenders. In other words, evolving standards of decency have changed enough to both redefine what type of punishment is viewed as cruel and unusual and the breadth of the class afforded protection from such punishment. These changes show the Supreme Court’s continued commitment to reexamine the
Second, Roper showed the very flaws associated with drawing a bright line when it noted that
[d]rawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach. For the reasons we have discussed, however, a line must be drawn. The plurality opinion in Thompson drew the line at 16. In the intervening years the Thompson plurality’s conclusion that offenders under 16 may not be executed has not been challenged. The logic of Thompson extends to those who are under 18. The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest. [Id. at 574.]
The Supreme Court thus acknowledged that drawing the line at 18 was both overinclusive and underinclusive.
I agree with Roper that it was necessary, although difficult, to draw some line as the only way to ensure that a class of youthful offenders would receive constitutional protections against cruel and unusual punishment. However, having a line in place does not mean that such a line should represent both the floor and ceiling of constitutional protections, especially when we already understand that such a line might not be sufficiently protective. There might be a way to both ensure constitutional protections for
an entire class of offenders while also mitigating the underinclusiveness problem associated with drawing a line.
Consider, again, the fact that Roper believed that the standards of decency for juvenile offenders had evolved because of a parallel evolution of the standards of decency for offenders with intellectual disabilities from Penry to Atkins. See Roper, 543 US at 562-563. Atkins, which held that the death penalty was constitutionally impermissible for offenders with intellectual disabilities, contained language that was eventually used in Miller to support the holding that mandatory sentences of life imprisonment without the possibility of parole are constitutionally impermissible for juvenile offenders. Again, Miller stressed that several factors associated with the underdeveloped brains of juveniles made juvenile offenders less culpable and more capable of rehabilitation than adult offenders. Atkins similarly outlined several reasons why offenders with intellectual disabilities were less culpable for their crimes and capable of rehabilitation. Atkins, 536 US at 306-307 (explaining that “[b]ecause of their disabilities in areas of reasoning, judgment, and control of their impulses, however, [these offenders] do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against [them]”). Still, although Miller and Atkins use similar language and reasoning, the bright line that Miller establishes for juveniles means that under Miller, a nonjuvenile offender with an intellectual disability could receive a mandatory sentence of life imprisonment without the possibility of parole and would not have the benefit of a hearing to demonstrate that such a sentence was not proportionate to the offense and the offender.
To avoid these downfalls, we could instead consider that all offenders ages 18 and younger have an irrebuttable presumption of youth and diminished capacity, as recognized by the majority opinion. Because the presumption is irrebuttable, all offenders within this class must be afforded the processes outlined in
In sum, adopting a bright-line rule is likely to leave out some individuals who need additional protections. This effect is consequential, as this cutoff would determine whether a defendant may be mandatorily sentenced to life without the possibility of parole and without the opportunity to show that they had diminished culpability. It should be incumbent on us to find a way to ensure that those individuals who are the most vulnerable are able to access sufficient process before they are automatically sentenced to serve their lives in prison. Accordingly, I believe that a better approach to these difficult sentencing decisions would be through a shifting presumption that accounts for relevant individual attributes, rather than a bright-line rule.
III. CONCLUSION
I concur fully with the majority opinion. This result will shift more control over difficult sentencing decisions to local actors, which I believe can only help when making difficult choices on an individualized basis. However, there are problems associated with drawing a bright line under which age is the only criterion in determining whether a mandatory sentence of life without the possibility of parole is cruel or unusual. Accordingly, I believe that a better approach would be to institute a shifting age-based presumption through which offenders could move to seek additional process based on other, non-age-based qualities of diminished culpability, which could entitle some offenders over the age of 18 to the same protections as youthful offenders. Because this case does not present the opportunity for us to reach this issue, I concur with the majority’s analysis and conclusion.
Richard H. Bernstein
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KEMO
No. 162086
Supreme Court of Michigan
ZAHRA, J. (dissenting).
I join Justice CLEMENT’s dissenting opinion in full. For the reasons stated in People v Stovall, ___ Mich ___, ___ n 24, ___ n 25; ___ NW2d ___ (2022) (Docket No. 162425) (ZAHRA, J., dissenting); slip op at 6 n 24, 10 n 25, I would accept the prosecution’s invitation to revisit our caselaw interpreting Const 1963, art 1, § 16—specifically whether Article 1, § 16 provides greater protection than the Eighth Amendment of the United States Constitution and whether Article 1, § 16 contains a proportionality guarantee.
Brian K. Zahra
David F. Viviano
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KEMO KNICOMBI PARKS, Defendant-Appellant.
No. 162086
Supreme Court of Michigan
CLEMENT, J. (dissenting).
In Miller v Alabama, 567 US 460, 465; 132 S Ct 2455; 183 L Ed 2d 407 (2012), the United States Supreme Court prohibited mandatory life-without-parole (LWOP) sentences for offenders who were under 18 years old at the commission of their crime. Defendant asks this Court to extend that rule to offenders who were 18 years old at the commission of their crime. Because I do not believe mandatory LWOP as it pertains to 18-year-old offenders is unconstitutional under either the Eighth Amendment or Const 1963, art 1, § 16, I would not do so.
I. FACTUAL AND LEGAL BACKGROUND
I agree with the majority’s recitation of the facts. In short, defendant was 18 years old when he aided and abetted his cousin in committing first-degree murder. The trial court imposed an LWOP sentence, which is mandatory under
age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” See also Montgomery v Louisiana, 577 US 190, 212; 136 S Ct 718; 193 L Ed 2d 599 (2016) (holding that Miller was a substantive rule of law that applied retroactively).
Defendant now argues that this Court should extend Miller’s prohibition on mandatory LWOP to defendants who were 18 years old when they committed their crimes. He points to two possible bases on which this Court could do so—the first is the Eighth Amendment of the United States Constitution, which prohibits “cruel and unusual punishments,”1 and the second is Article 1, § 16 of our state Constitution, which prohibits “cruel or
II. ANALYSIS
Whereas the Eighth Amendment prohibits “cruel and unusual punishments,” Const 1963, art 1, § 16 prohibits “cruel or unusual punishment.” This difference in language has led this Court to interpret our constitutional provision as providing broader protection. People v Bullock, 440 Mich 15, 30-35; 485 NW2d 866 (1992).
We presume a statute is constitutional “unless the contrary clearly appears[.]” Cady v Detroit, 289 Mich 499, 505; 286 NW 805 (1939). “[I]n case of doubt every possible presumption not clearly inconsistent with the language and the subject matter is to be made in favor of the constitutionality of legislation.” Id. Specific to the mandatory LWOP sentence at issue here, “[l]egislatively mandated sentences are presumptively proportional and presumptively valid.” People v Brown, 294 Mich App 377, 390; 811 NW2d 531 (2011).
A. THE APPLICATION OF BULLOCK’S FOUR-FACTOR TEST
In People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972), and Bullock, our Court set forth a four-part test to determine whether a sentence violates Const 1963, art 1, § 16. Under that test, we must consider: (1) “the severity of the sentence imposed compared to the gravity of the offense,” (2) “the penalty imposed for the offense compared to penalties imposed on other offenders” in Michigan, (3) “the penalty imposed for the offense in Michigan compared to the penalty imposed for the same offense in other states,” and (4) “whether the penalty imposed advances the penological goal of rehabilitation.”
(“[W]e conclude that the district court erred when it held that the Eighth Amendment forbids a mandatory life sentence for a defendant who was eighteen at the time of his offense.”).
People v Carp, 496 Mich 440, 520; 852 NW2d 801 (2014), cert gtd and opinion vacated sub nom on other grounds Carp v Michigan, 577 US 1186 (2016), citing Bullock, 440 Mich at 33-34, and Lorentzen, 387 Mich at 176-181.
1. THE GRAVITY OF THE OFFENSE VERSUS THE SEVERITY OF THE PUNISHMENT
To apply that test, we first consider the gravity of the offense as opposed to the severity of the punishment. First-degree murder is undoubtedly a very serious offense, arguably the most serious offense one can commit. Accordingly, a very severe sentence is proportionate. Mandatory LWOP is, undoubtedly, just that. It is, as the majority notes, the most severe penalty in Michigan. The punishment fits the crime. As this Court stated in Carp, 496 Mich at 514-515:
[F]irst-degree murder is almost certainly the gravest and most serious offense that an individual can commit under the laws of Michigan—the premeditated taking of an innocent human life. It is, therefore, unsurprising that the people of this state, through the Legislature, would have chosen to impose the most severe punishment authorized by the laws of Michigan for this offense.4
See also People v Hall, 396 Mich 650, 657-658; 242 NW2d 377 (1976) (stating that “the punishment exacted [i.e., mandatory LWOP] is proportionate to the crime [of felony murder]”). While I do not take the mandatory imposition of LWOP lightly, it is commensurate with the gravity of the offense in this case.
The majority contends that the penalty is more severe for defendant than it is for older adults because those who committed crimes at his age are more likely to act recklessly and to be susceptible to peer pressure, as they are still developing neurologically. They are
also more likely to mature and rehabilitate. I do not argue
We are not the first court to consider that young adults are still developing neurologically and still have some juvenile traits. The United States Supreme Court recognized young adults’ ongoing neurological development in 2005 in Roper v Simmons, 543 US 551; 125 S Ct 1183; 161 L Ed 2d 1 (2005), in which it found that the execution of juvenile offenders was unconstitutional. Tellingly, the Court commented:
Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach. For the reasons we have discussed, however, a line must be drawn. [Id. at 574.]
I find that reasoning persuasive. A line must be drawn, and that line will always lead to some arbitrary results, as there will be no appreciable difference between a person one day before his 18th birthday versus on his 18th birthday—or now, under the majority’s holding, one day before his 19th birthday versus on his 19th birthday. Though the age at which society considers a person an adult has changed and is not consistent across every activity, it is still true that 18 is the general age at which society considers someone an adult. Roper, 543 US at 574 (“The age of 18 is the point where society draws the line for many purposes between childhood and adulthood.”).5 Even if 18-year-olds are not so well-developed
neurologically as 27-year-olds, they are sufficiently neurologically developed to make major decisions about their lives.
Moreover, first-degree murder, in particular, is an obviously serious offense, the gravity of which I believe 18-year-olds are generally more than able to comprehend. Consequently, even given young adults’ ongoing neurological development, I still believe that the severity of the punishment fits the gravity of the offense for this class of defendants. This factor weighs in favor of finding the penalty constitutional.
Also, I note that the majority’s holding is overbroad when compared to some of the facts it appears to find relevant in regard to the first factor. First, the majority notes that 18-year-olds are uniquely susceptible to peer pressure. However, its holding eliminates mandatory LWOP even in cases in which there is no evidence that a defendant acted as a result of peer pressure. Additionally, the majority emphasizes that defendant was not found guilty as a principal actor but rather as an aider and abettor, noting that defendant’s conviction is “based on a theory of aiding and abetting” and that “Parks was not the principal actor in this particular murder . . . .” However, in this context there is no legal difference.
whatsoever, and shall have the same duties, liabilities, responsibilities, rights, and legal capacity as persons heretofore acquired at 21 years of age.”).
legal culpability or to the majority’s holding, as the holding is applicable to 18-year-olds who are found guilty as principals.6
2. SENTENCES IMPOSED IN MICHIGAN FOR OTHER OFFENSES
Second, we consider the sentences we impose for other offenses. I believe this factor also weighs in favor of finding the penalty constitutional. All adults 18 and older who commit first-degree murder face mandatory LWOP. Adults who commit arguably less-serious offenses can also still face mandatory LWOP. As the majority notes, mandatory LWOP is the penalty imposed on adult defendants guilty of first-degree murder, first-degree criminal sexual conduct, and various other offenses committed with an intent to kill or resulting in death. See, e.g.,
of a harmful biological, chemical, radioactive, or electronic device resulting in death). Mandatory LWOP for first-degree murder is not out of place when considered alongside the other punishments our state imposes for other offenses.
The majority contends that because of his young age, defendant’s life sentence is, practically, longer than the life sentence of an older defendant. Of course it is true that defendant is likely to spend more time imprisoned than an older offender, but we do not generally consider how long a defendant will, as a practical matter, serve a sentence given his or her life expectancy. When appellants fairly frequently contend that their term-of-years sentence is a de facto life sentence because of their more advanced age, our Court and the Court of Appeals routinely reject such arguments.7 I see no reason why, in that scenario, we would refuse to consider that a term-of-years sentence is a de facto life sentence but, in the instant case, we would consider
The majority also notes that defendant will spend more time imprisoned than “most of his equally culpable juvenile offenders.” However, it is not the case that defendant is as equally culpable as other juvenile offenders. Even if there is no drastic difference between an older 17-year-old and a younger 18-year-old, surely most 18-year-old defendants are more mature than most 17-, or 16-, or 15-year-old defendants. As Roper, 543 U.S. 551 (2005) stated, a line must be drawn somewhere. Defendant is older than juvenile offenders guilty of the same crime, and therefore, he is presumably more mature and more culpable.
Related to the need for line-drawing, the majority notes the unfairness that offenders only a few days younger than defendant are sentenced more leniently “despite the two offenders’ identical neuroplasticity[.]” But the majority’s holding simply replaces that unfairness with another—that now defendants who are 18 years and 364 days old will be sentenced more leniently than defendants who are 19 years old. The majority readily admits that the science does not support that dividing line either.
3. PENALTIES IMPOSED FOR THE SAME OFFENSE IN OTHER JURISDICTIONS
For the third factor we consider the penalties that other jurisdictions impose for first-degree murder. The majority says that this factor is more neutral but weighs slightly in favor of finding the instant penalty unconstitutional. I do not see how that is the case. As the majority notes, 17 other states and the federal government allow mandatory LWOP for offenders who were 18 and older at the commission of the crime.9 Michigan is hardly an
outlier. In past cases in which we found sentences unconstitutional, there were few or no states with penalties so harsh as the one we imposed. See Bullock, 440 Mich at 40 (“[N]o other state in the nation imposes a penalty even remotely as severe as Michigan’s . . . . Of the remaining 49 States, only Alabama provides for a mandatory sentence of life imprisonment without possibility of parole for a first-time drug offender, and then only when a defendant
The majority relies on In re Monschke, 197 Wash 2d 305 (2021), in which the Washington Supreme Court extended the prohibition on mandatory LWOP to 20-year-old offenders based on Washington’s state constitution. However, the majority does not thoroughly consider the reasoning in Monschke in order to determine whether it is persuasive.10
I do not find Monschke’s reasoning persuasive. Washington has two tests under which it reviews the constitutionality of punishments. Both tests have some overlap with
Neb Rev Stat 28-303 and 29-2520; New Hampshire,
ours. But Monschke used neither. First, it has a “proportionality test,” which consists of four factors.11 Three of the four factors of that test are similar (to some extent) to our factors from Lorentzen and Bullock: “(1) the nature of the offense; (2) the legislative purpose behind the habitual criminal statute; (3) the punishment defendant would have received in other jurisdictions for the same offense; and (4) the punishment meted out for other offenses in the same jurisdiction.” State v Fain, 94 Wash 2d 387, 397 (1980) (en banc) (emphasis added). If Monschke had reached its conclusion after applying these similar factors, its reasoning would perhaps be of some persuasive value in determining whether mandatory LWOP for 18-year-olds violates our Constitution as well. However, Monschke did not apply this test.
Washington also has a “categorical bar analysis,” which it used in State v Bassett, 192 Wash 2d 67, 90 (2018), to hold that juveniles could not be sentenced to LWOP, even if it were not mandatory. That categorical-bar analysis has only two factors, one of which is similar to one of ours. Id. at 83 (setting out the categorical-bar test as “(1) whether there is objective indicia of a national consensus against the sentencing practice at issue and (2) the court’s own independent judgment based on ‘ “the standards elaborated by controlling precedents and by the [c]ourt’s own understanding and interpretation of the [cruel punishment provision]’s text, history, . . . and purpose” ’ ”) (citation omitted; emphasis added; alterations in original). Again, if Monschke had used this test, at least its analysis of its first factor might be persuasive as to our third factor. But Monschke did not
use that test either. Monschke, 197 Wash 2d at 328 (“No [proportionality test] or categorical bar analysis is necessary to reach this decision.”).
Instead, the reasons Monschke considered were (1) that United States Supreme Court jurisprudence has grown more protective of young offenders, id. at 313-317; (2) that courts do not always defer to legislative bright lines when striking down punishments, such as in Hall v Florida, 572 US 701 (2014), Monschke, 197 Wash 2d at 317-319; (3) that the age of majority is flexible, depending on context, id. at 319-321; and (4) that neurological science reveals no meaningful difference in neurological development between 17- and 18-year-olds, id.
In any case, the existence of one opinion by one sister state’s supreme court hardly sheds much light on whether the third factor—penalties imposed for the same offense in other jurisdictions—weighs in favor of finding the penalty here unconstitutional. That 17 other states and the federal government also have mandatory LWOP for 18-year-old offenders shows quite the opposite.
4. WHETHER THE PENALTY ADVANCES THE GOAL OF REHABILITATION
Finally, we consider whether the punishment helps offenders to rehabilitate. Mandatory LWOP generally does not advance the goal of rehabilitation, as defendant has little realistic chance for parole. We did remark in Hall, 396 Mich at 658, that “rehabilitation and release are still possible, since defendant still has available to him commutation of sentence by the Governor to a parolable offense or outright pardon.” That is true, though I recognize that those are avenues of relief that are unlikely to benefit most prisoners.13 Nevertheless, I do note that even if the sentence does not generally facilitate rehabilitation, there are other valid penological goals, such as retribution, deterrence, and incapacitation,14 which I believe it does facilitate.
The first three factors weigh strongly in favor of the punishment’s constitutionality. Though the fourth factor does not weigh in favor of the punishment’s constitutionality, for the reasons stated in Hall, it does not weigh strongly against its constitutionality either. And to the extent that the fourth factor weighs against the punishment’s constitutionality, this factor alone is insufficient to support a determination that mandatory LWOP is unconstitutional.15 I thus conclude that mandatory LWOP for 18-year-old offenders does
not violate our state Constitution. As such, defendant’s sentence should stand, and Miller’s protections should not be extended to 18-year-old offenders.
B. THE MAJORITY’S RELIANCE ON NEUROSCIENCE DEMONSTRATES THAT ITS DECISION IS BASED IN LARGE PART ON POLICY, AND POLICY DECISIONS SHOULD BE LEFT TO THE LEGISLATURE
A striking feature of the majority opinion is its discussion of and reliance on
Our Court has long said that it is not for us to decide policy issues; those questions should be left to the Legislature.18 In 1860,
the powers conferred upon them by the Constitution, this tribunal has no authority to nullify their acts, or to restrain the free exercise of their legislative discretion.”); id. at 398 (opinion of PRATT, J.) (“As to the policy and expediency of a statute, Courts have nothing to do[.]”); People ex rel Whipple v Auditor General, 5 Mich 193, 200-201, 203 (1858) (“But any question of mere policy can throw but little light on the proper construction of this Constitution. It must be construed by its language and the changes made by it in our then existing system. All other guides must be uncertain.”); Cady v Detroit, 289 Mich 499, 509 (1939) (“Courts cannot substitute their opinions for that of the legislative body on questions of policy.”); French v Ingham Co, 342 Mich 690, 700 (1955) (“It is well settled that a court is without authority to pass on the wisdom, policy, or equity of a statute.”); Lansing v Lansing Twp, 356 Mich 641, 648 (1959) (“The mere fact a statute appears impolitic or unwise is not sufficient for judicial construction but is a matter for the legislature.”); People v McIntire, 461 Mich 147, 158 (1999) (“Thus, while the [Court of Appeals] majority makes compelling arguments that support a rational, but different, policy choice . . . , the object of judicial statutory construction is not to determine whether there are valid alternative policy choices that the Legislature may or should have chosen, but to determine from the text of the statute the policy choice the Legislature actually made.”) (quotation marks and citation omitted; alteration in original); Mayor of Lansing v Pub Serv Comm, 470 Mich 154, 161 (2004) (“We have observed many times in the past that our Legislature is free to make policy choices that, especially in controversial matters, some observers will inevitably think unwise. This dispute over the wisdom of a law, however, cannot give warrant to a court to overrule the people’s Legislature.”), superseded by statute on other grounds, as stated in South Dearborn Environmental Improvement Ass’n, Inc v Dep’t of Environmental Quality, 502 Mich 349 (2018); Devillers v Auto Club Ins Ass’n, 473 Mich 562, 589 (2005) (“The majority believes that policy decisions are properly left for the people’s elected representatives in the Legislature, not the judiciary.”); Johnson v Recca, 492 Mich 169, 187 (2012) (“This Court only has the constitutional authority to exercise the ‘judicial power.’ ‘[O]ur judicial role “precludes imposing different policy choices than those selected by the Legislature . . . .” ’ ‘Whether or not a statute is productive of injustice, inconvenience, is unnecessary, or otherwise, are questions with which courts . . . have no concern.’ ”) (citations omitted); People v Harris, 499 Mich 332, 345 (2016) (“Our role as members of the judiciary is not to second-guess those policy decisions or to change the words of a statute in order to reach a different result.”); People v Betts, 507 Mich 527, 565 (2021) (“We decline to encroach on the Legislature’s plenary authority to create law or on its role in shaping and articulating policy by choosing among the plethora of possibilities.”). See also 5 Smith & Philbin, Michigan Civil Jurisprudence (April 2022 update), Constitutional Law, § 48 (“Legislative enactments, as they bear on a matter of public policy, are conclusive; indeed, it is fundamental that courts may not substitute their judgment for that of the legislature.”) (citations omitted).
policy of the statute has nothing to do with its constitutionality[.]” Tyler v People, 8 Mich 320, 333 (1860). More recently, in People v Harris, 499 Mich 332, 356, 358 (2016), we reiterated:
[O]ur statutory analysis is controlled by principles of interpretation, not palatability of outcomes. It is not our role to rewrite the law or substitute our own policy judgment in the face of the text of the statute . . . .
* * *
[I]n our democracy, a legislature is free to make inefficacious or even unwise policy choices. The correction of these policy choices is not a judicial function as long as the legislative choices do not offend the constitution. Instead, the correction must be left to the people and the tools of democracy: the ballot box, initiative, referendum, or constitutional amendment.
[Id. (second alteration by the Harris Court), quoting People v McIntire, 461 Mich 147, 159 (1999).]
I wholeheartedly believe that to be true. We must not strike down a statute because we disagree with the Legislature’s policy choice. Indeed, leaving policy to the legislative branch is a mainstay of the country’s jurisprudence, not just that of our Court. Several of the leading national treatises contain the same instruction that courts should refrain from policymaking.19
mistaken as a matter of policy, it is for Congress to change them; the Supreme Court should not legislate for them. When reviewing for constitutional unreasonableness, the judiciary must give great deference to legislative action and should not substitute its own public policy judgments for that of the enacting body. In short, public policy is not a basis for declaring a statute unconstitutional.”) (citations omitted); 16A Am Jur 2d (May 2022 update), Constitutional Law, § 281 (“A fundamental principle of the constitutional separation of powers among the three branches of government is that the legislative branch is the ultimate arbiter of public policy. Thus, the determination of public policy lies almost exclusively with the legislature, and courts will not interfere with that determination in the absence of palpable errors. A court must interpret and apply statutes in the manner in which they are written and cannot rewrite them to comport with the court’s notions of orderliness and public policy.”) (citations omitted). See also Miller, 567 US 460, 493 (2012) (Roberts, C.J., dissenting) (“Determining the appropriate sentence for a teenager convicted of murder presents grave and challenging questions of morality and social policy. Our role, however, is to apply the law, not to answer such questions.”).
It is better able to consider scientific evidence and weigh competing interests.23 Unlike the Legislature, the judiciary resolves disputes between parties. That function does not easily translate to evaluating the strength of scientific claims.24 Despite the decades of legal experience the justices on this Court have, I do not believe we are well-suited for this foray into neuroscience.
I understand that it is the Court’s responsibility to judge whether penalties violate our Constitution’s “cruel or unusual punishment” clause and that, in the abstract, doing so and striking down a penalty as unconstitutional does not necessarily mean that the Court is impermissibly treading into the policy realm. The majority, of course, does not simply say that it finds mandatory LWOP for 18-year-old offenders unsavory and unscientific, but
presumably reflects the views of the electorate, is taking the position that the risk that these offenders will kill again outweighs any countervailing consideration, including reduced culpability due to immaturity or the possibility of rehabilitation. When the majority of this Court countermands that democratic decision, what the majority is saying is that members of society must be exposed to the risk that these convicted murderers, if released from custody, will murder again.”).
rather applies the relevant factors from Lorentzen and Bullock. For the reasons outlined in this opinion, I strongly disagree with how the majority applies those factors, especially the majority’s overreliance on neuroscience. As a result, I view the majority’s decision as replacing a constitutional
What is right, what is expedient, what is proper, what constitute the inalienable rights of individuals, and what is necessary to be inserted in their constitution of government to protect them, the people who frame it must judge, and not generally he who, under it, is vested with executive or judicial functions. [Cooley, Preface: With Some Considerations Regarding the Study of the Law, in 1 Blackstone, Commentaries on the Laws of England, x (Chicago: Callaghan & Cockcroft, 1871).]
Moreover, insofar as the majority’s holding is a policy decision, it is one for which there is no clear limiting principle. I would not be surprised if the Court extends its current line in the near future. The science defendant offers indicates that there is significant neurological development until age 25, and while the majority acknowledges this science, the majority today extends Miller’s and Montgomery’s holdings only to offenders who are 18 years old. I assume that in the coming years we will hear cases arguing that we should extend Miller’s protection to those in their early twenties as well. Relatedly, if mandatory LWOP is unconstitutional for 18-year-olds guilty of first-degree murder, surely it would be unconstitutional for 18-year-olds guilty of other offenses as well. And as our understanding of neurological development continues to evolve in the future, must we reevaluate the line between youth and adulthood every few years? Should we begin to
consider any other factors that might affect adult brain function? Young adults are, after all, not the only ones subject to factors that cloud their reasoning—indeed, we are all subject to cognitive biases to different extents.25 Other groups, such as older adults, may also have neurological factors that impair their decision-making.26
It is up to the Legislature to balance the science with society’s penological goals, i.e., “rehabilitation of the individual offender, society’s need to deter similar proscribed behavior in others, and the need to prevent the individual offender from causing further injury to society.” Lorentzen, 387 Mich at 180. But I fear that the majority’s opinion is the first step in making it the Court’s ongoing task to reconcile the Legislature’s sentencing scheme with every jot and tittle of new scientific evidence. While it’s understandable to want our law to be in line with the most recent scientific understanding, I believe it is also important for the court system and society to have stability. That stability is now thrown into question, as we face a future of frequently changing constitutional lines.
I take no issue with the scientific propositions that defendant raises. However, evaluating that scientific evidence is a task I believe is outside this Court’s wheelhouse.
Rather than playing amateur scientists, I believe that the judiciary should focus on interpreting and applying the law. Applying the relevant law here, I do not believe that the factors from Lorentzen and Bullock weigh against the constitutionality of mandatory LWOP for 18-year-old offenders. As such, I believe that we should respect the Legislature’s constitutional choice of penalty rather than impose our own.
Elizabeth T. Clement
Brian K. Zahra
David F. Viviano