PEOPLE v TAYLOR
Docket No. 154994
Michigan Supreme Court
July 28, 2022
Argued on application for leave to appeal March 3, 2022. Decided July 28, 2022. Chief Justice: Bridget M. McCormack. Justices: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh, Elizabeth M. Welch. Reporter of Decisions: Kathryn L. Loomis.
Syllabus
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.
Robert Taylor was convicted following a jury trial in the Macomb Circuit Court of first-degree felony murder,
In an opinion by Justice CAVANAGH, joined by Chief Justice MCCORMACK and Justices BERNSTEIN and WELCH, the Supreme Court, in lieu of granting leave to appeal, held:
When a prosecutor seeks to impose LWOP under
- The Eighth Amendment of the United States Constitution prohibits cruel and unusual punishments, guaranteeing individuals the right not to be subjected to excessive sanctions. Further, a basic precept of justice requires that punishment be proportionate to both the offense and the offender. The United States Supreme Court has thus held that juvenile offenders are constitutionally different from adult offenders for purposes of sentencing—they are less deserving of the most severe punishments because of their diminished culpability and increased prospects for reform. In Miller, therefore, the United States Supreme Court held that the Eighth Amendment prohibits mandatory LWOP sentences for crimes committed when the offender was under 18 years old. Miller also set forth factors that a trial court should consider before concluding that it is appropriate to sentence a juvenile offender to die in prison for a homicide offense. Those factors are: (1) the juvenile‘s chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile‘s family and home environment; (3) the circumstances of the homicide offense, including the extent of the juvenile‘s participation in the conduct and the way familial and peer pressures may have affected the juvenile; (4) the incompetencies of youth, which affect whether the juvenile might have been charged with and convicted of a lesser crime, for example, because the juvenile did not have the capacity to assist their attorney in their own defense; and (5) the juvenile‘s possibility of rehabilitation. These factors have been expressly incorporated into this state‘s discretionary juvenile LWOP sentencing scheme under
MCL 769.25 . - Under
MCL 769.25 , if a defendant who was less than 18 years old at the time of their crime is convicted of certain enumerated offenses, including first-degree murder, the prosecutor may file a motion seeking to have the defendant sentenced to LWOP. The motion must specify the grounds on which the prosecutor is requesting that sentence, and the defendant has 14 days to respond. After that, the court must conduct a hearing on the motion during which it must consider the Miller factors and may consider any other relevant criteria. Next, the court must specify on the record the aggravating and mitigating circumstances that it considered and the reasons supporting the sentence imposed. If the court decides not to sentence the defendant to LWOP, it must sentence the defendant to a statutory term of years. AlthoughMCL 769.25 does not specify the standard of proof, the burden of proof is generally assigned to the party who seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion. UnderMCL 769.25 , a sentence of LWOP can be imposed only if the prosecutor files a motion. This motion requirement is meaningful. UnderMCL 769.25 , the status quo is that a juvenile defendant will be sentenced to a term of years. If the prosecution seeks to change the status quo by filing a motion to impose LWOP, it becomes the moving party and must bear the burden and risk of nonpersuasion at the Miller hearing. - If the prosecutor seeks to have a juvenile offender sentenced to LWOP pursuant to
MCL 769.25 , it is the prosecutor‘s burden to overcome the presumption that LWOP is disproportionate. The most important consideration in the creation of presumptions is probability. A steady line of precedent from the United States Supreme Court could not be clearer—persons under 18, as a group, are less culpable than adults, more prone to outside influence, more likely to be rehabilitated, and less deserving of the most severe punishments. As a procedural mechanism, therefore, it makes sense for sentencing courts to start from the premise that the juvenile defendant before them, like most juveniles, has engaged in criminality because of transient immaturity, not irreparable corruption. In other words, it is probable that the juvenile offender standing before the court possesses those attributes of youth that diminish the penological justifications for imposing the harshest sentences available under Michigan law. - The standard of proof serves to allocate the risk of error between litigants and reflects the relative importance attached to a decision. When the Legislature is silent on the standard of proof, the courts must prescribe one. The United States Supreme Court has explained that proof by clear and convincing evidence is appropriate when particularly important individual interests or rights are at stake. Considering the important Eighth Amendment right at stake in comparison to the fact that juvenile LWOP is not categorically barred in Michigan, the prosecutor must prove facts and circumstances that rebut the presumption against LWOP by clear and convincing evidence.
- The trial court must consider all the evidence before it and determine whether the presumption has been rebutted by clear and convincing evidence in order to impose LWOP. This is an exercise in discretion, not a fact-finding mission.
MCL 769.25 does not require the sentencing court to find any particular fact before it can impose LWOP. It is true that in People v Skinner, 502 Mich 89 (2018), the Court wrote that neither Miller nor Montgomery imposes a presumption against LWOP for those juveniles convicted of first-degree murder on either the trial court or the appellate court. But the central holding in Skinner was that Miller does not require trial courts to make a finding of fact regarding a child‘s incorrigibility. Whether a presumption against LWOP for juvenile offenders exists was irrelevant to the outcome of the case, so this statement was nonbinding dictum. Moreover, Skinner was interpreting what the federal Constitution requires while this case concerned what the statute requires and how sentencing courts should implement the statute. The decision in this case does not foreclose a sentencing court‘s ability to sentence a juvenile offender to LWOP if the sentencing court determines that, considering all the information before it, LWOP is a constitutionally proportionate sentence. In this case, defendant was entitled to resentencing because the trial court was not operating within the correct framework for implementingMCL 769.25 when it resentenced defendant. - In his Court of Appeals brief, defendant argued that his sentence violated the Eighth Amendment and Article art 1, § 16 of Michigan‘s Constitution, which prohibits cruel or unusual punishment, because he was convicted of felony murder as an aider and abettor. The Court of Appeals failed to address this issue, so the case had to be remanded to that Court for consideration of that potentially dispositive issue before any resentencing.
Reversed and remanded.
Chief Justice MCCORMACK, joined by Justices BERNSTEIN and CAVANAGH, concurring, wrote separately to explain why she believed the trial court abused its discretion in applying the Miller factors when sentencing defendant. The first Miller factor requires considering the juvenile offender‘s chronological age and its hallmark features. These hallmark features include immaturity, impetuosity, and failure to appreciate risks and consequences. Defendant was 16 years and 10 months old at the time of the offense. The trial court noted that the juvenile offenders in Miller were roughly two years younger and that defendant‘s underdeveloped prefrontal cortex would not be much more underdeveloped than that of an 18 year old. But a juvenile offender need not be the same age as those in Miller to receive the benefit of the Miller decision. Proximity to age 18 can affect the extent of the mitigation, but proximity to age 18 is emphatically not an aggravating factor. The trial court also concluded that because an 18 year old could not benefit from the brain science presented at the resentencing hearing, neither should a 16-year-old defendant. This was also error. Miller requires that juveniles under 18 are to be treated, categorically, as having diminished culpability. That the Eighth Amendment might not require the same for similarly situated 18-year-olds is not constitutionally relevant. The next Miller factor is the juvenile‘s family and home environment. Juveniles subjected to trauma, abuse, and neglect are more vulnerable to outside influences than ordinary teenagers and suffer from cognitive underdevelopment, lack of maturity, and decreased ability to restrain impulses. The trial court here concluded from the evidence that defendant‘s family environment was “far from optimal” but determined only that this factor “could arguably favor some leniency or lessening of culpability for defendant.” Justice MCCORMACK agreed with the trial court that defendant‘s home environment was “far from optimal” but disagreed that it only arguably favored leniency; juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their environment. The third Miller factor is the circumstances of the homicide offense, including the extent of the juvenile‘s participation and the way familial and peer pressures may have affected the juvenile. The trial court found that this factor weighed in favor of LWOP. The court noted that there was no evidence that defendant did not expect the murder to occur, that he attempted to remove himself from the situation, or that he tried to dissuade his codefendant. As much as the trial court believed that defendant‘s failure to stop his codefendant‘s conduct, or at least to walk away from it, was evidence against mitigation, Miller says otherwise. Juveniles make rash decisions, cannot assess consequences, and are often unable to extricate themselves once criminal situations are set in motion. Finally, the trial court did not address the fact that defendant was convicted of felony murder, not premeditated murder, and as an aider and abettor, not as the principal offender; nor did it address that defendant did not pull the trigger and may not have even been present when the victim was killed. The trial court did not reconcile how both defendant and his older codefendant—who killed the victim—could each be the truly rare juvenile offender deserving of LWOP given their differing conduct. Regarding the next Miller factor, the trial court found that there was no evidence that the incapacities of youth hurt defendant‘s ability to participate in preparing his defense or led him to implicate himself to the authorities. Thus, it found that “this factor favors sentencing defendant to life without the possibility of parole.” That is, this factor was aggravating, not mitigating. The trial court‘s finding was clearly erroneous. Miller did not suggest that a juvenile offender is more deserving of LWOP if the offender is better able to participate in their defense. If a defendant‘s youth hindered their ability to successfully navigate the criminal justice system, that fact is mitigating. If a defendant‘s youth did not hinder their ability, this factor is neutral. The final Miller factor is the possibility of rehabilitation. The trial court found that defendant‘s “far from optimal” home environment—the only factor that the court found weighed against a sentence of LWOP—also showed that defendant‘s prospects for rehabilitation were minimal, supporting LWOP. The court‘s analysis was backward. Because there was no evidence that defendant could not be rehabilitated, there was no reason to conclude that defendant, like the great majority of youths, lacked the capacity to change and mature. Requiring a defendant to prove that they fall into the general category of adolescents would turn Miller upside down. The trial court erred by finding that defendant‘s family environment was mitigating under one Miller factor but that the same finding discounted the mitigation of another Miller factor. Childhood trauma, neglect, and abuse will always pose a challenge for a juvenile‘s rehabilitation. But the Supreme Court views a difficult upbringing as a mitigating factor, not as evidence of impossible rehabilitation. The trial court‘s contrary assessment was error.
Justice VIVIANO, joined by Justices ZAHRA and CLEMENT, dissenting, stated that the majority was using this brutal kidnapping and murder case as an opportunity to drastically limit the discretion sentencing courts have traditionally held to impose a sentence on a defendant convicted of one of our state‘s most serious crimes. The majority announced a presumption against imposing LWOP on juveniles who commit the crime of murder, ignoring Skinner, in which the Court declined to recognize such a presumption only a few years ago. The requirement that the prosecution must file a motion requesting an LWOP sentence is only a condition precedent, not evidence of a presumption. The majority then announced that the prosecution bears the burden of rebutting this presumption, despite the fact that no such burden exists in
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ROBERT TAYLOR, Defendant-Appellant.
No. 154994
STATE OF MICHIGAN SUPREME COURT
FILED July 28, 2022
CAVANAGH, J.
BEFORE THE ENTIRE BENCH
CAVANAGH, J.
This case presents us with a vehicle to provide much-needed guidance to criminal defendants, prosecutors, and trial courts on the proper procedure for conducting
I. FACTS AND PROCEDURAL HISTORY
Defendant and Masalmani were arrested and tried before separate juries in connection with these criminal actions.3
As will be discussed in greater detail, in response to Miller, the Michigan Legislature enacted
On January 6, 2015, the trial court issued an order and opinion sentencing defendant to LWOP. In its opinion, the trial court went through each Miller factor and determined that LWOP was an appropriate sentence, characterizing defendant as a ” ‘rare juvenile offender whose crime reflects irreparable corruption.’ ” (Citation omitted.) Defendant again sought leave to appeal, and the Court of Appeals again affirmed in an unpublished per curiam opinion. People v Taylor, unpublished per curiam opinion of the Court of Appeals, issued September 22, 2016 (Docket No. 325834) (hereinafter, ”Taylor, unpub op“). Defendant sought leave to appeal in this Court, and the application was held in abeyance multiple
whether, in exercising its discretion to impose a sentence of life without parole (LWOP), the trial court properly considered the “factors listed in Miller v Alabama, [567 US 460] (2012)” as potentially mitigating circumstances.
MCL 769.25(6) . See also People v Skinner, 502 Mich 89, 113-116 (2018). In particular, the parties shall address: (1) which party, if any, bears the burden of proof of showing that a Miller factor does or does not suggest a LWOP sentence; (2) whether the sentencing court gave proper
consideration to the defendant‘s “chronological age and its hallmark features,” Miller, 567 US at 477-478, by focusing on his proximity to the bright line age of 18 rather than his individual characteristics; and (3) whether the court properly considered the defendant‘s family and home environment, which the court characterized as “far from optimal,” as weighing against his potential for rehabilitation. [People v Taylor, 508 Mich 938 (2021) (alteration in original).]
II. LEGAL LANDSCAPE
The Eighth Amendment of the United States Constitution prohibits “cruel and unusual punishments.”
“[C]hildren are constitutionally different from adults for purposes of sentencing.” Id. at 471. In general, juveniles are less deserving of the most severe punishments because of their diminished culpability and increased prospects for
Roper, 543 US at 578, that the Eighth Amendment bars capital punishment for offenders who were under the age of 18 when they committed their crimes and held in Graham v Florida, 560 US 48, 82; 130 S Ct 2011; 176 L Ed 2d 825 (2010), that the Eighth Amendment prohibits the sentence of LWOP for juveniles who commit nonhomicide offenses. The Supreme Court later summarized:
Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes. Because the heart of the retribution rationale relates to an offender‘s blameworthiness, the case for retribution is not as strong with a minor as with an adult. Nor can deterrence do the work in this context, because the same characteristics that render juveniles less culpable than adults—their immaturity, recklessness, and impetuosity—make them less likely to consider potential punishment. Similarly, incapacitation could not support the life-without-parole sentence in Graham [because] [d]eciding that a juvenile offender forever will be a danger to society would require making a judgment that he is incorrigible—but incorrigibility is inconsistent with youth. And for the same reason, rehabilitation could not justify that sentence. Life without parole forswears altogether the rehabilitative ideal. It reflects an irrevocable judgment about an offender‘s value and place in society, at odds with a child‘s capacity for change. [Miller, 567 US at 472-473 (quotation marks, citations, and brackets omitted).]
Next came Miller, 567 US 460, in which the Supreme Court held that the Eighth Amendment prohibits mandatory LWOP sentences for crimes committed when the offender was under 18 years old. Mandatory LWOP penalty schemes “preclude a sentencer from taking account of an offender‘s age and the wealth of characteristics and circumstances attendant to it.” Id. at 476. This “poses too great a risk of disproportionate punishment.” Id. at 479. “[I]n imposing a State‘s harshest penalties, a sentencer misses too much if he treats every child as an adult.” Id. at 477.
The Supreme Court set forth circumstances that a trial court should consider before concluding that it is appropriate to sentence a juvenile offender to die in prison. Id. at 477-478. Those ”Miller factors” are: (1) the juvenile‘s “chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences“; (2) the juvenile‘s family and home environment—“from which he cannot usually extricate himself—no matter how brutal or dysfunctional“; (3) “the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him“; (4) “the incompetencies of youth,” which affect whether the juvenile might have been charged with and convicted of a lesser crime, for example, because the juvenile was unable to deal with law enforcement or prosecutors or because the juvenile did not have the capacity to assist their attorney in their own defense; and (5) the juvenile‘s “possibility of rehabilitation.” Id. These factors have been expressly incorporated
While the Supreme Court declined to categorically ban juvenile LWOP sentences for homicide convictions, it reasoned that the “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Miller, 567 US at 479. “That is especially so because of the great difficulty . . . of distinguishing at this early stage between the ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’ ” Id. at 479-480, quoting Roper, 543 US at 773, and citing Graham, 560 US at 68.
A few years later, the Supreme Court held that Miller would be applied retroactively. Montgomery v Louisiana, 577 US 190; 136 S Ct 718; 193 L Ed 2d 599 (2016). In that case, the Supreme Court reiterated that, while Miller did not foreclose a sentencer‘s ability to sentence a juvenile to LWOP, “a lifetime in prison is a disproportionate sentence for all but the rarest of children” and is reserved for those “whose crimes reflect irreparable corruption.” Id. at 195 (quotation marks and citations omitted). Most recently, in Jones v Mississippi, 593 US ___; 141 S Ct 1307; 209 L Ed 2d 390 (2021), the Supreme Court concluded that a factual finding of permanent incorrigibility was not constitutionally required before imposing an LWOP sentence on a juvenile offender. Id. at ___, ___; 141 S Ct at 1314, 1319. Even so, that decision “carefully follow[ed] both Miller and Montgomery” and reconfirmed that juvenile LWOP should be “relatively rare.” Id. at ___, ___; 141 S Ct at 1318, 1321.
As for this Court‘s relevant precedent, in People v Skinner, 502 Mich 89; 917 NW2d 292 (2018), we considered whether
III. ANALYSIS
This Court reviews de novo questions of constitutional law. People v Hughes, 506 Mich 512, 522; 958 NW2d 98 (2020). A trial court‘s decision to sentence a juvenile to LWOP is reviewed for an abuse of discretion. Skinner, 502 Mich at 131-132. A sentencing court‘s underlying factual findings in support of a sentence are reviewed for clear error. Id. at 137 n 27.
Miller‘s substantive holding is that LWOP is an excessive sentence for children whose crimes reflect transient immaturity. Montgomery, 577 US at 210. In Montgomery, the Supreme Court acknowledged that the procedures necessary to implement that substantive guarantee are left to the states. Id. at 211 (“[T]his Court is careful to limit the scope of any attendant procedural requirement to avoid intruding
the proper sentence in individual cases in light of the facts and circumstances of the offense,” Jones, 593 US at ___; 141 S Ct at 1322.11 With these principles in mind, today we clarify the procedural mechanisms necessary for applying
It is helpful to start with an overview of
The question of who bears the burden at a Miller hearing is relatively straightforward.13
Pursuant to the statutory scheme created by the Legislature, if the prosecutor does not seek LWOP for a juvenile defendant convicted of one of the enumerated offenses in
A few additional points are worth making. First, a Miller hearing is not comparable to an ordinary sentencing hearing in which neither the prosecutor nor the defendant generally bears any particular burden.18 A Miller hearing has unique constitutional implications beyond those present at other sentencing hearings because it necessarily involves defendants who commit crimes when they are juveniles—individuals who are “constitutionally different” from their adult counterparts for purposes of sentencing.
Miller, 567 US at 471. Second, unlike a typical sentencing, a Miller hearing is not a natural progression of a criminal proceeding because the prosecutor must file a motion to change the status quo posttrial. Third, to conclude that neither party bears the burden, as the prosecution argues, would allow LWOP to be the default sentence, which would run contrary to Supreme Court precedent19 and the framework adopted by our Legislature under
Because the prosecution bears the burden of proof as to the imposition of LWOP, the question becomes what does the prosecution need to prove or demonstrate in its role as the movant at a Miller hearing? Skinner and Jones make clear that, for Eighth Amendment purposes,
which the prosecutor is the moving party, and as the bearer of the burden, the prosecutor must prove something.
In this regard, we hold that if the prosecutor seeks to have a juvenile offender sentenced to LWOP pursuant to
Again,
These procedural mechanisms do not run afoul of Skinner or Jones. It is true that in Skinner this Court wrote that “neither Miller nor Montgomery imposes a presumption against life without parole for those juveniles who have been convicted of first-degree murder on either the trial court or the appellate court.” Skinner, 502 Mich at 131.23 But the central holding in Skinner was that ”Miller does not require trial courts to make a finding of fact regarding a child‘s incorrigibility.” Id. at 122. Whether a presumption against LWOP for juvenile offenders exists was irrelevant to the outcome of the case, and so this statement was nonbinding dictum. See People v Peltola, 489 Mich 174, 190 n 32; 803 NW2d 140 (2011) (“Obiter dicta are not binding precedent. Instead, they are statements that are unnecessary to determine the case at hand and, thus, lack the force of an adjudication.“) (quotation marks and citation omitted). Moreover, Skinner was interpreting what the federal Constitution requires while our decision today is about what the statute requires and how this Court can help guide trial courts in implementing the statute. In addition, the fact that Miller and Montgomery did not patently provide a presumption against LWOP is not dispositive. As the Supreme Court remarked in Montgomery, when a new substantive rule of constitutional law is established, the Supreme Court is “careful to limit the scope of any attendant procedural requirement to avoid intruding more than necessary upon the State‘s sovereign administration of their criminal justice systems.” Montgomery, 577 US at 211.24 Finally, while the Jones Court rejected that a separate factual finding of incorrigibility was a constitutionally required means to implement Miller, it in no way walked back the primary essence of that decision—that a juvenile LWOP sentence should remain “relatively rare.” Jones, 593 US at ___, ___; 141 S Ct at 1318, 1321 (“The Court‘s decision today carefully follows both Miller and Montgomery.“).
As in Miller, our decision today does not foreclose a sentencing court‘s ability to
IV. CONCLUSION
Our decision today seeks to provide guidance and ensure uniformity in the procedures used by sentencing courts when facing the monumental responsibility of balancing the lessened culpability of juveniles and their capacity for change and rehabilitation with their often abhorrent criminal actions. It also intends to ensure that a juvenile defendant‘s substantive Eighth Amendment right against receiving an excessive sentence remains safeguarded by our Legislature‘s statutory scheme. Accordingly, we hold that
Before the trial court can implement these procedures, however, the Court of Appeals must address an issue raised by defendant in his appeal of right. In his Court of Appeals brief, defendant argued that his LWOP sentence violates the Eighth Amendment and
Megan K. Cavanagh
Bridget M. McCormack
Richard H. Bernstein
Elizabeth M. Welch
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ROBERT TAYLOR, Defendant-Appellant.
No. 154994
STATE OF MICHIGAN SUPREME COURT
MCCORMACK, C.J. (concurring).
I concur fully with the majority opinion. I write separately to explain, as I did in People v Masalmani, 505 Mich 1090 (2020) (MCCORMACK, C.J., dissenting), why I believe the trial court abused its discretion in applying the factors from Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), when sentencing the defendant, Robert Taylor. As the majority explains, those factors are (1) the juvenile‘s chronological age and its hallmark features, including immaturity, impetuosity, and failure to appreciate risks and consequences, (2) the juvenile‘s family and home environment, (3) the circumstances of the homicide offense, including the extent of his participation
I. CHRONOLOGICAL AGE AND ITS HALLMARK FEATURES
The first Miller factor requires considering the juvenile defendant‘s “chronological age and its hallmark features . . . .” Id. at 477. These hallmark features include “immaturity, impetuosity, and failure to appreciate risks and consequences.” Id. Most juveniles possess these characteristics. Id. at 471 (noting that it was “common sense” and that ” ‘any parent knows’ ” that children possess these characteristics) (citation omitted); Eddings v Oklahoma, 455 US 104, 116; 102 S Ct 869; 71 L Ed 2d 1 (1982) (“Even the normal 16-year-old customarily lacks the maturity of an adult.“).
The defendant was 16 years and 10 months old at the time of the offense. The trial court found noteworthy that although he was 10 months younger than his codefendant, Ihab Masalmani, the defendant was “still much older than the 14-year old [sic] defendants in Miller.” As to the “hallmark features” of youth, the trial court acknowledged that the defendant presented an expert, Dr. Daniel P. Keating, who testified that an adolescent‘s limbic system, “which serves as an arousal system, . . . an incentive system, and a reward system” is more active than an adult‘s. The expert also explained that the prefrontal cortex is supposed to work as a “brake on the [limbic] system but it develops much more slowly than the limbic system.” There is thus a “developmental maturity mismatch” between the two systems in adolescents. As a result, Keating explained, teenagers tend to engage in reckless behavior.
But the trial court found that the defendant‘s age and its hallmark features did not “significantly mitigate defendant‘s culpability.” The court believed that the defendant was readily distinguishable from the Miller defendants because those defendants were roughly two years younger. Although Keating stated that the prefrontal cortex remains undeveloped, the court reasoned that because it was “not free to take this developmental disconnect into consideration when a criminal is over 18,” and this defendant was only 14 months shy of 18, his developmental disconnect was “not much more pronounced than that of an 18 year old.” Ultimately, the court was “not convinced that this factor mitigates against a sentence of life without the possibility of parole” (LWOP).
The Court of Appeals agreed with the trial court‘s consideration of this first factor. People v Taylor, unpublished per curiam opinion of the Court of Appeals, issued September 22, 2016 (Docket No. 325834); slip op at 3-4. For the panel, the defendant‘s age was “in marked contrast to the 14-year-old defendants in Miller[.]” Id. And it concluded that the record refuted “any claim that the hallmark features of adolescence identified in Miller . . . played any role in defendant‘s crimes.” Id. at 4. Unlike in Miller, this case did not involve a botched robbery1 but brazen criminal action over a
I am not persuaded by either court‘s reasoning. A juvenile defendant need not be the same age as the petitioners from Miller to receive the benefit of the Miller decision. The Supreme Court drew the line at 18, not 14. Proximity to age 18 can affect the extent of the mitigation; the Supreme Court suggested as much. Miller, 567 US at 476-477 (explaining that one of the flaws of mandatory LWOP is that it mandates the same sentence for “the 17-year-old and the 14-year-old“); id. at 480 n 8 (“Our holding requires factfinders . . . to take into account the differences among defendants . . . .“). But that is the question: how does a juvenile‘s age affect the extent of mitigation? Proximity to age 18 is emphatically not an aggravating factor.
The trial court also concluded—despite the brain science presented—that because an 18 year old could not benefit from consideration of that information, neither should a 16-year-old defendant. This was also error. As I have stated, ”Miller did not suggest that 18-year-olds are, as a class, equipped with the decision-making faculties that 17-year-olds lack. Nor did Miller suggest that a sentencer should disregard the expanding body of scientific knowledge on adolescent brain development merely because an older offender who, although developmentally similar, may be subject to mandatory LWOP sentencing.” Masalmani, 505 Mich at 1093 (MCCORMACK, C.J., dissenting).
In other words, Miller requires that juveniles under 18 are to be treated, categorically, as having diminished culpability. That the Eighth Amendment might not require the same for similarly situated 18-year-olds is not constitutionally relevant. It is not a juvenile defendant‘s burden to prove that they were especially immature, impetuous, or risk-seeking. Miller requires that we start from the premise that every youthful offender possesses these characteristics. Moreover, the Court of Appeals’ view that Keating‘s testimony was only minimally relevant because he did not personally interview the defendant turns the starting presumption upside down. Rather, Keating‘s testimony reflects the starting presumption that LWOP is not appropriate.
II. FAMILY AND HOME ENVIRONMENT
The next Miller factor is the juvenile‘s home and family environment. Miller, 567 US at 477. Juveniles subjected to trauma, abuse, and neglect are more vulnerable to outside influences than ordinary teenagers and suffer from cognitive underdevelopment, lack of maturity, and decreased ability to restrain impulses. Equal Justice Initiative, Cruel and Unusual: Sentencing 13- and 14-year-old Children to Die in Prison (January 2008), p 18, available at <https://eji.org/wp-content/uploads/2019/10/cruel-and-unusual.pdf> (accessed June 8, 2022) [https://perma.cc/Z9MW-KCS2]. One of the Miller petitioners was physically abused and neglected by addict parents, in and out of foster care, and struggled with mental
The trial court here recognized the defendant‘s difficult home and family environment. He was born to a teenaged mother and grew up in an unstable and unsafe environment; there was an active child protective case open on the family from the time the defendant was 6 years old. He was neglected and subjected to violence and substance abuse. His father, who was addicted to alcohol and cocaine, was not present. More than once, the defendant and his siblings did not have adequate food and shelter.
The trial court concluded from this evidence that the defendant‘s family environment was “far from optimal” but determined only that this factor ”could arguably favor some leniency or lessening of culpability for defendant.” (Emphasis added.) The Court of Appeals affirmed: “In light of these far from optimal circumstances, the trial court properly weighed this factor in favor of defendant and against a life without parole sentence.” Taylor, unpub op at 4.
I agree with the trial court that the defendant‘s home environment was “far from optimal” but disagree it only arguably favors leniency. As the Supreme Court has said, “vulnerability and comparative lack of control over their immediate surroundings mean[s] juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment.” Roper v Simmons, 543 US 551, 570; 125 S Ct 1183; 161 L Ed 2d 1 (2005).
III. CIRCUMSTANCES OF THE OFFENSE
The third Miller factor is the “circumstances of the homicide offense, including the extent of [the juvenile‘s] participation in the conduct and the way familial and peer pressures may have affected him.” Miller, 567 US at 477. Because one of the Miller petitioners did not fire the bullet that killed the victim, had not intended her death, and was convicted as an aider and abettor, id. at 478, these circumstances were part of the calculus of determining the defendant‘s culpability, id.
In this case, the trial court recounted the grim details of the victim‘s abduction and death and acknowledged that it was the codefendant who shot the victim. And although the defendant‘s expert, Kathleen Schaefer, testified that “peer pressure is an issue for children,” the court determined that no specific evidence or testimony tied the defendant‘s criminal activity to “direct peer or family pressure.” Thus, the trial court found that this factor “weighs in favor of finding that defendant‘s sentence of life without the possibility of parole is appropriate.” The court was persuaded that because the defendant drove the victim around for hours and “facilitated his murder in cold blood . . . his actions were still quite culpable” given that there was no evidence that he did not expect the murder to occur, that he attempted to remove himself from the situation, or that he tried to dissuade his codefendant. According to the trial court, there was therefore nothing in the facts that would warrant anything less than LWOP.
The Court of Appeals agreed. Taylor, unpub op at 4-5. The panel reasoned that there is no categorical bar on LWOP for a juvenile convicted of felony murder on an aiding-and-abetting theory. Id. And given the substantial evidence that the defendant participated in the crime, “[t]he evidence supports the conclusion that defendant was actively and extensively involved in committing the crimes, and there is no
As much as the trial court or the Court of Appeals believed that the defendant‘s failure to stop his codefendant‘s conduct, or at least to walk away from it, was evidence against mitigation, Miller says otherwise. Juveniles make rash decisions, cannot assess consequences, and are often unable to extricate themselves once criminal situations are set in motion. Id. at 478 (noting that the petitioner‘s age “could well have affected his calculation of the risk . . . , as well as his willingness to walk away at that point“).
Finally, the trial court did not address the fact that the defendant was convicted of felony murder, not premeditated murder, and as an aider and abettor, not as the principal offender; nor did it address that the defendant did not pull the trigger and may not have even been present when the victim was killed. See Graham v Florida, 560 US 48, 69; 130 S Ct 2011; 176 L Ed 2d 825 (2010) (noting that a juvenile offender who does not kill or have an intent to kill has “a twice diminished moral culpability” as “compared to an adult murderer“). The trial court did not reconcile how both the defendant and his older codefendant—who killed the victim—can each be the truly “rare juvenile offender” given their different respective conduct. Miller, 567 US at 479-480 (quotation marks and citation omitted).
IV. INCOMPETENCIES OF YOUTH
The next Miller factor instructs trial courts to consider “the incompetencies associated with youth,” id. at 477-478, because “[t]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings,” Graham, 560 US at 78. For example, juveniles might be unable to deal with police officers or prosecutors or help their attorneys mount a defense, leading to charges and convictions of greater offenses than an adult more capable of navigating the criminal justice system. Miller, 567 US at 477-478.
The trial court found that there was no evidence that the incapacities of youth hurt the defendant‘s ability to participate in preparing his defense or led him to implicate himself to the authorities. Thus, it found that “this factor favors sentencing defendant to life without the possibility of parole.” (Emphasis added.) The Court of Appeals seems to have recast the trial court‘s work: the panel held that “[t]his factor . . . did not weigh in favor of mitigation.” Taylor, unpub op at 6 (emphasis added).
But the trial court found that this factor “favor[ed] sentencing defendant to life without the possibility of parole.” That is, this factor was aggravating, not mitigating. The trial court‘s finding was clearly erroneous. ”Miller did not suggest that a juvenile offender is more deserving of LWOP if the offender is better able to participate in their defense . . . .” Masalmani, 505 Mich at 1094 (MCCORMACK, C.J., dissenting). If a defendant‘s youth hindered their ability to successfully navigate the criminal justice system, that fact is mitigating. If a defendant‘s youth did not hinder their ability, this factor is neutral.
V. POSSIBILITY OF REHABILITATION
The final Miller factor is the possibility of rehabilitation. Permanent incorrigibility “is inconsistent with youth.” Miller, 567 US at 473 (quotation marks and citations omitted). Few juveniles are truly incorrigible, and “many . . . have the capacity for change.” Graham, 560 US at 77. While a trial
The trial court found that the defendant‘s “far from optimal” home environment—the only factor the court found weighed against a sentence of LWOP—also showed that the defendant‘s prospects for rehabilitation were minimal, supporting LWOP. The court was persuaded that because no evidence showed rehabilitation, or that the defendant had accepted responsibility for his part in the offense, “that defendant‘s prospects for rehabilitation are negligible.” As a result, the court reasoned that “this factor favors a sentence of life without the possibility of parole.”
The Court of Appeals agreed with the trial court that the defendant‘s difficult upbringing “weighed in his favor” but also “[i]ndicated that he faces significant challenges in improving himself[.]” And, like the trial court, because there was no evidence that he had “accepted responsibility or shown genuine remorse for his crimes,” there was no reason “to conclude that he has made any substantial progress in rehabilitating himself . . . .” Taylor, unpub op at 6. There was also not “any discernable basis to conclude that he is likely to do so in the future.” Id.
This gets the analysis exactly backward. Because there was no evidence that the defendant could not be rehabilitated, there is no reason to conclude that the defendant, like the great majority of youths, lacks the capacity to change and mature, as the Supreme Court has consistently made plain. Miller, 567 US at 479. Requiring the defendant to prove that he falls into the general category of adolescents turns Miller upside down.
An escalating propensity for crime is relevant, to be sure. But ” ‘only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood.’ ” Roper, 543 US at 570, quoting Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am Psychologist 1009, 1014 (2003). That is, juvenile criminal behavior does not inevitably predict adult criminal behavior. A lack of remorse is also relevant. The question is not whether the defendant was rehabilitated in 2014, but whether he could be rehabilitated within a statutory term of years—which can be up to 60.
Even more to the point, the trial court erred by finding that the defendant‘s family environment is mitigating under one Miller factor but that the same finding discounts the mitigation of another Miller factor. Childhood trauma, neglect, and abuse will always pose a challenge for a juvenile‘s rehabilitation. But the Supreme Court views a difficult upbringing as a mitigating factor, not as evidence of impossible rehabilitation. The trial court‘s contrary assessment was error.
Bridget M. McCormack
Richard H. Bernstein
Megan K. Cavanagh
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ROBERT TAYLOR, Defendant-Appellant.
No. 154994
STATE OF MICHIGAN SUPREME COURT
VIVIANO, J. (concurring in part and dissenting in part).
The majority uses this brutal kidnapping and murder case as an opportunity to drastically limit the discretion sentencing courts have traditionally held to impose a sentence on a defendant convicted of one
I. FACTS AND PROCEDURAL HISTORY
On August 9, 2009, defendant, Robert Taylor, who was then nearly 17 years old, helped his 17-year-old codefendant, Ihab Masalmani, brutally assault, kidnap, and murder a 21-year-old man in a random act of violence that began as a carjacking outside a sandwich shop on a Sunday afternoon. Defendant participated in the kidnapping as a lookout and by helping his codefendant get the victim into the car. Once inside the car, Masalmani and defendant showed the victim the gun and told him “what time it was,” meaning that they intended to shoot him or beat him up. After Masalmani used the victim‘s ATM card to withdraw money, defendant and Masalmani took the victim to an abandoned house in Detroit, where Masalmani later shot the victim in the back of the head, killing him execution style. Defendant disposed of the murder weapon by selling it to someone on the street. Defendant was convicted by a jury of several offenses, the most serious of which was first-degree felony murder,
After defendant was convicted but before he had filed his direct appeal, the United States Supreme Court decided Miller v Alabama, 567 US 460, 479; 132 S Ct 2455; 183 L Ed 2d 407 (2012), which held that mandatory LWOP for those under the age of 18 at the time of their crime is unconstitutional.2 Our Legislature subsequently enacted
A three-day resentencing hearing was held in 2014, at which there was testimony relating to both defendant and Masalmani. The trial court issued a written opinion, resentencing defendant to LWOP. The trial judge considered the five Miller factors and found that all of them except for defendant‘s home and family environment favored an LWOP sentence. First, the court looked at defendant‘s age and the “hallmark features” of it, noting that defendant
Defendant appealed, and the Court of Appeals affirmed the sentence in an unpublished per curiam opinion, concluding that the sentencing judge did not abuse her discretion.4 Defendant sought leave to appeal in this Court. We held the case in abeyance for a number of cases, most recently Jones v Mississippi, in which the Supreme Court granted certiorari to consider whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing an LWOP sentence.5 After Jones was decided, we ordered oral argument on the application in this case, directing the parties to brief
whether, in exercising its discretion to impose a sentence of life without parole (LWOP), the trial court properly considered the “factors listed in Miller v Alabama, [567 US 460] (2012)” as potentially mitigating circumstances.
MCL 769.25(6) . See also People v Skinner, 502 Mich 89, 113-116 (2018). In particular, the parties shall address: (1) which party, if any, bears the burden of proof of showing that a Miller factor does or does not suggest a LWOP sentence; (2) whether the sentencing court gave proper consideration to the defendant‘s “chronological age and its hallmark features,” Miller, 567 US at 477-478, by focusing on his proximity to the bright line age of 18 rather than his individual characteristics; and (3) whether the court properly considered the defendant‘s family and home environment, which the court characterized as “far from optimal,” as weighing against his potential for rehabilitation.6
II. LEGAL BACKGROUND
The Eighth Amendment of the United States Constitution states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”7 Pursuant to this constitutional provision, the United States Supreme Court has limited the potential punishments available for juvenile offenders over the past twenty years. First, in Roper v Simmons, the United States Supreme
Finally, in Miller v Alabama, the Supreme Court held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.”10 In so holding, the Court relied on Roper and Graham, explaining:
Roper and Graham establish that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform . . . they are less deserving of the most severe punishments. Those cases relied on three significant gaps 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. Second, children are more vulnerable to negative influences and outside pressures including from their family and peers; they have limited control over their own environment and lack the ability to
extricate themselves from horrific, crime-producing settings. 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 irretrievable depravity.11
The Court further explained that mandatory LWOP
prevent[s] the sentencer from taking account of these central considerations. By removing youth from the balance—by subjecting a juvenile to the same life-without-parole sentence applicable to an adult—these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.12
The Court highlighted five factors that a mandatory LWOP statute prevents the sentencer from considering:
Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. . . .
And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.13
The defendants in Miller had argued that the
[W]e 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.”15
The Court did not foreclose the sentencer’s ability to make that judgment in homicide cases but did require the sentencer “to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”16
In response to Miller, our Legislature enacted
A few years later, the Supreme Court gave Miller retroactive effect.21 In doing so, the Court explained that ”Miller did not require trial courts to make a finding of fact regarding a child’s incorrigibility,” but the lack of such a fact-finding requirement “speaks only to the degree of procedure Miller mandated in order to implement its substantive guarantee.”22 “That Miller did not impose a formal factfinding requirement does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under the
We subsequently considered a constitutional challenge to
Most recently, in Jones, the United States Supreme Court considered whether the
The majority declares that there is a presumption that LWOP is a disproportionate sentence for juveniles. It justifies the creation of such a presumption on Miller’s observation that, as a group, juveniles are “less deserving of the most severe punishments.”36 But in Skinner, we rejected the very presumption the majority creates today. In the companion case to Skinner, People v. Hyatt, the Court of Appeals had stated, “While we do not suggest a presumption against the constitutionality of that sentence, we would be remiss not to note that review of that sentence requires a searching inquiry into the record with the understanding that, more likely than not, a life-without-parole sentence imposed on a juvenile is disproportionate.”37 In Skinner, we rejected this approach, explaining that “this sounds tantamount to a presumption against life-without-parole sentences.”38 We further observed that “neither Miller nor Montgomery imposes a presumption against life without parole for those juveniles who have been convicted of first-degree murder on either the trial court or the appellate court.”39
The majority contends that Skinner is not binding precedent on this issue, characterizing as dicta our statement that “neither Miller nor Montgomery imposes a presumption against life without parole for those juveniles who have been convicted of first-degree murder on either the trial court or the appellate court.”40 But the majority’s focus on this statement in Skinner is a red herring. As the majority itself acknowledges, this statement was accurate with respect to what Miller and Montgomery said.41 More significantly, as noted above, Skinner specifically rejected Hyatt’s creation of a presumption against LWOP for juveniles.42 Indeed, the dissent in Skinner believed that Miller and Montgomery require a presumption against LWOP for juveniles and concluded that our interpretation of
It is true, as the majority observes, that Skinner considered what was constitutionally required and not whether
Finally, the mere fact that a trial court is prohibited from imposing an LWOP sentence unless the prosecution files a motion requesting that sentence does not mean that there is a presumption against an LWOP sentence once the prosecution has filed the motion. As discussed below, the requirement that the prosecution must file a motion requesting an LWOP sentence is
IV. NEITHER PARTY SHOULD BEAR THE BURDEN OF PROOF WITH RESPECT TO THE INDIVIDUAL MILLER FACTORS
The majority does not stop at creating a presumption against LWOP for juveniles. It also declares that the prosecution has the burden to overcome this presumption by clear and convincing evidence. Again, no such requirement is found in
Although trial courts generally have “broad discretion in imposing a sentence within a statutory range,”48 our Legislature has chosen to limit this otherwise broad discretion by enacting
The United States Supreme Court has come to a similar conclusion in the context of the death penalty.51 At issue there was a state sentencing procedure that required the jury to consider aggravating and mitigating circumstances and determine whether the aggravating circumstances outweighed the mitigating circumstances such that the death penalty should be imposed.52 The United States Supreme Court has expressed doubt that it is “even possible to apply a standard of proof to the mitigating-factor determination” in a death penalty sentencing proceeding.53 “Whether mitigation exists . . . is largely a judgment call . . . .”54 The Court continued, “It would be possible, of course, to instruct the jury that the facts establishing mitigating circumstances need only be proved by a preponderance, leaving the judgment whether those facts are indeed mitigating, and whether they outweigh the aggravators, to the jury’s discretion without a standard of proof.”55 Indeed, this is what the federal government has done in
From a practical standpoint, far from being “unworkable,” a no-burden standard makes good, common sense. The Miller factors are not aggravating factors.56 Therefore, a prosecutor who is seeking an LWOP sentence has no incentive to present evidence regarding the Miller factors. It is the defendant who has the incentive to present mitigating evidence.57 But, again,
V. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
The abuse-of-discretion standard that we use to review a trial court’s sentencing decision is a deferential one.59 “An abuse of discretion occurs when the trial court’s decision is outside the range of reasonable and principled outcomes.”60 The trial court in this case carefully considered and applied each of the Miller factors in a lengthy, written opinion, finding that all but the defendant’s home and family environment favored sentencing defendant to LWOP. Notably, the Court of Appeals concluded that the sentencing judge did not abuse her discretion even under the heightened scrutiny required by the now-overruled opinion in Hyatt, which held that imposition of an LWOP sentence on a juvenile offender required appellate courts to view such “sentence[s] as inherently suspect.”61 Applying the abuse-of-discretion standard we announced in Skinner, I believe it was well within the range of principled outcomes for the trial court to sentence defendant to LWOP.62
Regarding the third factor, the circumstances of the offense, the concurrence contends that the trial court did not reconcile how defendant and his codefendant could both be the “truly ‘rare juvenile’ ” discussed in Miller when it was only Masalmani who actually killed the victim. But nothing in Miller indicates that the trial court needed to make such a reconciliation on the record, and the circumstances of the offense are just one factor for a trial court to consider in fashioning a sentence. In any event, it is not hard for me to see how a trial judge could conclude that two individuals who participated in the brutal abduction and murder of a random victim are both incorrigible and incapable of reform despite playing different roles in the events that led to the murder.
Finally, with respect to the fifth factor, the possibility of rehabilitation, the concurrence implies that trial courts should avoid finding that a Miller factor is mitigating while also relying on that factor to discount the mitigation of another Miller factor. See ante at 9-10. What Miller ultimately requires is for trial courts “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 480. Nothing in Miller indicates that the factors announced there were intended to be compartmentalized such that consideration of one factor cannot reduce the mitigating effect of another factor. Rather, the factors are merely a way to ensure that trial courts “take into account the differences among defendants and crimes.” Id. at 480 n 8. Sometimes the presence of one mitigating factor may lead a trial court to conclude that the defendant’s possibility of rehabilitation is minimal. Acknowledging this does not run afoul of Miller. On the contrary, it adheres to Miller’s requirement for individualized sentencing. See id. at 475.
VI. CONCLUSION
The breadth of the majority’s holding in this case is breathtaking. The majority first contrives a presumption against LWOP for juveniles. In doing so, the majority deviates from prior cases declining to recognize such a presumption and ignores the intent of the Legislature. The majority then goes even further, requiring the prosecution to rebut this presumption by clear and convincing evidence, which raises similar interpretive and separation-of-powers concerns.
This opinion is a brazen attempt by the majority to operationalize its policy preference and “sincere hope that . . . juvenile LWOP remains relatively rare.”63 But lost in its quixotic vision of juvenile offenders is any recognition of the enormous cost the Court imposes on the victim’s family and friends by once again requiring them to relive this tragic crime at yet another resentencing. Nor do we offer any hope for closure some 13 years after this heinous crime was committed because the trial judge will again attempt to fashion a sentence in search of the ever-elusive blessing of today’s majority.
Rather than changing how trial courts sentence juveniles facing LWOP, I would remand this case to the Court of Appeals for it to address the issue it did not address on direct appeal—whether defendant’s sentence violates the
David F. Viviano
Brian K. Zahra
Elizabeth T. Clement
Notes
Because placing the burden of proving mitigating factors beyond a preponderance of the evidence in capital cases on the defendant has been found not to violate due process, “due process would permit legislatures to place upon the defendant the burden of proving mitigating factors in noncapital cases as well.” Id. at § 26.4(h), p 1010, citing Walton v. Arizona, 497 U.S. 639; 110 S Ct 3047; 111 L Ed 2d 511 (1990). Only a plurality in Walton agreed that placing the burden of proving mitigating factors on the defendant was constitutionally permitted. Walton, 497 US at 650-651 (opinion by White, J.). Walton was overruled on other grounds with respect to its holding, id. at 647-649 (opinion of the Court), that a judge, rather than a jury, could make a finding of aggravating factors to justify the imposition of the death penalty. Ring v. Arizona, 536 U.S. 584; 122 S Ct 2428; 153 L Ed 2d 556 (2002). But the Court later relied on Walton to uphold Kansas’s statute that placed the burden of proving mitigating factors on the defendant. Kansas v. Marsh, 548 U.S. 163, 169-173; 126 S Ct 2516; 165 L Ed 2d 429 (2006). In Walton the Arizona legislature had incorporated the preponderance-of-the-evidence standard directly into its death penalty statutes, requiring that the defendant prove by that standard the existence of mitigating circumstances. See Walton, 497 US at 649;If a fact functions as an element of an aggravated offense, [then] the defendant has the right to demand proof of its existence beyond a reasonable doubt before a jury. If not, and the fact is merely a sentencing factor, proof before a judge by a lower standard will suffice. [6 LaFave et al, Criminal Procedure (4th ed), § 26.4(h), p 1007.]