People of Michigan v. Raymond Curtis Carp

440 496 Mich 440

PEOPLE v CARP PEOPLE v DAVIS v PEOPLE ELIASON (Calen- 146478, 146819, 6, Argued Docket Nos. and 147428. March 2014 6). 4, 5, July 8, dar Nos. and Decided 2014. Raymond Carp charged Curtis was in the St. Clair Circuit Court with murder, first-degree 750.316, participation MCL for his in the bludgeoning stabbing Carp years and of a woman. was 15 old at the Following Carp’s time of the murder and was tried an adult. conviction, court, Adair, J., imposed mandatory James P imprisonment possibility sentence of life parole. without Appeals, EJ., JJ., The Court of and Zahra and Schuette, Owens, Carp’s unpublished opinion per curiam, affirmed conviction in an (Docket 30, 275084), Supreme issued December 2008 No. and the application appeal, Court denied his for leave to 483 Mich 1111 (2009). purposes His conviction and sentence became final for appellate September Carp direct review in June 2009. sought collaterally constitutionality attack the of his sentence by filing judgment. a motion for relief from the The trial court motion, concluding imposing denied mandatory nonpa- first-degree rolable life sentence on a convicted of murder punishment. Carp did not sought constitute cruel or unusual then appeal, Appeals leave to unpub- which the Court of denied in an (Docket 307758). order, lished entered June 2012 No. Seventeen later, days 25, 2012, on June the United States Alabama, (2012), decided US_; Miller v 132 S Ct 2455 which Eighth prohibition held that Amendment’s of cruel and punishment prohibits unusual scheme that mandates prison Carp life in without for offenders. moved for reconsideration, Appeals granted unpub- which the Court of in an (Docket 307758). order, August 9, lished entered No. On reconsideration, Fitzgerald EJ., Appeals, the Court of and Talbot, JJ., determined that Miller had created a new rule Whitbeck, procedural subject that was in nature and not to retroactive application Lane, Teague under the rules set forth in v 489 US 288 (1989), separate independent Michigan or the test for retro- activity Sexton, People (1998), People set forth in v 458 Mich 43 (2012). (2008). App The Maxson, Mich 482 Mich 385 appeal Carp’s application leave to granted Supreme Court retroactively applied under Miller should he whether consider (2013). Mich law. 495 either federal or state charged Court for in the Recorder’s Davis was Cortez Roland Court) (now felony Wayne part Circuit with City of the of Detroit 750.316(l)(b). murder, he and another Davis was 16 when MCL testified them. A witness two individuals to rob individual accosted flee, and the other tried to Davis of the victims that when one shots, killing Davis was convicted the victim. individual fired Jones, J., court, Massey 10, sentencing, May Vera 1994. At first-degree Michigan’s for initially scheme ruled that juvenile constitutionally applied to homicide murder could not nonparo- impose a cruel and unusual to because it was offenders capable of rehabilitation. who was lable life sentence on reforming, concluding capable the court was that Davis of the offense was role in the commission determined that his shooter, findings abettor, made no actual but an aider and not an fleeing whether concerning about the victim or Davis’s intentions initially engaged reasonably in the armed when he he had foreseen might robbery possibility be taken. The court that a life years. imprisonment In an of 10 to 40 Davis to a term of sentenced (Docket 23, order, unpublished 1994 No. entered November 176985), Appeals resen- and remanded for the Court of reversed mandatory imposed tencing. resentencing, the trial court At parole. appellate Direct review of Davis’s of life without sentence Following habeas in 2000. conviction and sentence concluded court, corpus proceedings relief from in federal Davis moved for 2010, contending Wayne judgment Court in in the Circuit Florida, (2010), had established a retroactive Graham v 560 US 48 barring change by categorically sentences of life without in the law Concluding juveniles convicted of nonhomicide offenses. felony even if the defendant was murder is a homicide offense shooter, however, the an abettor rather than the actual aider and Appeals the motion. The Court of denied Davis’s trial court denied order, appeal unpublished application in an entered for leave to (Docket 304075). 16, Miller was decided while November 2011 No. pending Supreme application appeal in the for leave to was Davis’s Supreme Davis’s case to the trial Court. The Court remanded retroactively. applied Miller court for a determination of whether (2012). remand, the trial court concluded that Mich 871 On retroactively, entitling The applied Davis to be resentenced. Appeal in an prosecution appealed, and the Court of reversed (Docket 314080), order, January 16, unpublished entered No. granted Supreme citing Carp, App Court Davis 298 Mich 472. The 496 Mich 440 appeal Eighth leave to to address whether the Amendment or 1963, 1, categorically § imposition Const art bars the of a nonparolable felony life sentence on a convicted of murder (2013). aiding-and-abetting theory. under an 495 Mich 890 Wolfgang charged Dakotah Eliason was in the Berrien Circuit Court murder, first-degree 750.316(l)(a), with MCL after he shot his sleeping stepgrandfather in the head. Eliason was at the time. Following conviction, court, Schofield, J., his Scott sentenced parole. Eliason in October 2010 to life without Miller was decided appeal pending. Appeals, while Eliason’s was The Court of (Gleicher, EJ., concurring part and JJ. O’Connell Murray, dissenting part), requires held that Miller a trial court to perform sentencing analysis using an individualized the factors in impose Miller and choose whether to a sentence of life with or parole. sought appeal without Supreme Eliason leave to in the Court, challenging sentencing procedures options defined Appeals contending the Court of that a trial court should option imposing have years. the further a sentence of a term of additionally argued He categorically § that Const art imposition nonparolable bars the juvenile. life sentences on a granted The appeal Eliason leave to on both issues. (2013). subsequently 495 Mich 891 Eliason limited his second issue juveniles who were 14 at the time of the offense. opinion by joined In an by Justice Markman, Chief Justice Young and Justices Zahra the Court held: Viviano, satisfy The rule announced in Miller does not either the federal retroactivity Teague test for Michigan set in forth or the test set Furthermore, forth in Sexton and Eighth Maxson. neither the 1, categorically § Amendment nor Const art bars the imposition parole juvenile of a sentence of life without on a homicide offender. family 1. The typically division of the circuit court has initial 712A.4(1) jurisdiction juvenile under years MCL age of a of or charged felony. older with a Under what is termed the “automatic process,” however, prosecution waiver charges juvenile if the a (which specified juvenile with a first-degree violation includes murder), filing complaint MCL 764.1f authorizes the of a warrant, itself, and the circuit family court rather than the division, jurisdiction acquires juvenile’s over the case. MCL 712A.2(a)(l) requires try juvenile then the court to the as an adult. decided, After Legislature Miller was the enacted 2014 FA which added MCL 769.25 and MCL 769.25a to the Code of prescribed Criminal Procedure. MCL sentencing 769.25 a new juveniles scheme for previously convicted of offenses that had The new nonparolable life sentences. imposition of required sentencing range. of a In the absence a default established scheme 769.25(9) parole, MCL impose life without prosecution motion to to a term requires trial court to sentence 25 or not less than minimum term of imprisonment that has a years. than 60 years of not less and a maximum term than 40 more sentence, nonparolable life MCL prosecution seeks If the hearing 769.25(6) on the requires conduct a the trial court to sentencing process consider the factors part of the motion as 769.25a(l) procedures provides set that the in Miller. MCL listed apply were final for to cases that do not forth in MCL 769.25 (the 24, 2012, day before appeal June purposes of on or before decided). 769.25a(2), however, provides that if MCL Miller was retroactively were under applied all defendants who to Miller is crimes, trial court will he age their of 18 at the time of imprisonment impose a required whether to sentence to decide years set forth MCL a term of for life without 769.25(9). appeals be in these would each defendant Because juveniles sentencing subject the new rules established resentencing, granted of whether a determination PA 22 if necessary. retroactively applies was Miller determining a new rule is essential The form and effect of 2. Teague. retroactively was applies under rule whether the particular requiring precedent, product one of two strands may capital punishment sentencing before of individualized form constitutionality addressing imposed and the other capital- punishments The imposing specific offenders. requiring prescribed precedent rules punishment strand sentencing analysis that perform an individualized sentencer to By punishment. impose capital decision whether to results in a prescribed contrast, juvenile-sentencing rules strand sentence, requiring imposition particular categorically of a bar the every impose case. The form a lesser sentence the sentencer of the rules in to that the rule in Miller is similar and effect of per- requires a sentencer capital-punishment cases because it analysis in a that results an individualized form Accord- impose nonparolable life sentence. decision whether to retroactively depended on applied ingly, Miller had to he whether in the to the rules a form and effect similar a rule with whether type retroactive of rule entitled to capital-punishment cases is the Teague. application under nonretroactivity general cases on rule of 3. There is respect applying rules new constitutional with to collateral review announced. The the new rule was became final before to cases that 496 Mich 440 determining inquiry applies first when whether a rule retroac- tively presented to cases on collateral is whether it review consti- by Teague. rule If tutes a new as defined a rule not deemed a new rule, general nonretroactivity apply the rule of does not and the applied retroactively, rule will be even to on collateral cases review. rule, however, general If the is deemed the rule a new rule of nonretroactivity engage apply and does the court must in the Teague inquiry: second whether the new rule satisfies one of the rule, exceptions general two to the in the which case rule will be applied retroactively. Teague provide exceptions The that a new (1) applies retroactively proceeding only rule in a collateral if the (2) rule is substantive or the rule is a rule of watershed criminal procedure implicating accuracy the fundamental and fairness proceeding. the criminal imposed obliga- 4. Miller rule established a new because it an tion on state lower federal courts to conduct individualized sentencing hearings before to life without parole, including requirement prosecution present the aggravating evidence of factors relevant to the offender and the given opportunity offense and that be defendants and financial present mitigating resources evidence factors As a result of Miller, juveniles previously a considerable number who would have been sentenced to life without will now receive a lesser sentence. light Carp’s arguments, 5. In and Davis’s it was necessary to consider whether the rule Miller fits within the rules, exception. Categorical first such as derived from those juvenile-sentencing precedent, strand of are substantive because they always a form have and effect that in the results unconstitu- tionality punishment imposed. Conversely, noncategorical rules, capital-punishment such as those from derived strand of precedent procedural they are because have a form and always unconstitutionality effect that does not result of the punishment Rather, imposed. they merely require a court perform analysis determining new or amended before whether a given punishment imposed particular can be on a defendant. A procedural possibility new rule creates the defendant punishment would have received a less severe but does not Accordingly, procedural necessitate such a result. a rule is when it punishment may affects how under what framework a imposed legal authority but leaves intact the state’s fundamental imposition punishment currently to seek the of the on a defendant subject punishment. proce- Because the rule Miller is dural, Teague require did application. not its retroactive than may give effect to new rule broader retroactive 6. States retroactivity requires requires. Michigan’s consider- Teague test (2) (1) rule, purpose of the new the the ation of three factors: (3) rule, effect retroactive general old and the of reliance on the general principle justice. The application administration of on the procedure, nonretroactivity to which for new rules of criminal of adheres, hy applying Michigan properly in a retroactive is served implicate guilt only procedure that the new rules fashion those procedure does not A rule of that a defendant. new or innocence of given fact-finding process integrity of the should affect the clearly only. Therefore, factor militated prospective the first effect application altered against ofMiller because Miller the retroactive only process by a defendant’s which a court must determine the purposes had no culpability and for level moral legal bearing culpability for The the offense. on the defendant’s application of not retroactive and factors did favor the second third they first clear the factor’s Miller to the extent overcame particular, against application. In there retroactive direction practical financial, logistical, and barriers would be considerable placed prosecutors that had on to re-create or relocate evidence unnecessary, made previously and a task been viewed as irrelevant complicated passage the of time. the and all more burdensome justice process under not further the achievement of This would law, application was not entitled to retroactive the and Miller Michigan’s under test. Eighth categori- Amendment asserted that the 7. Defendants any cally imposition nonparolable of a life sentence on bars the sentencing analy- regardless juvenile of whether an individualized consequently requiring imposed, occurs that sentence sis before resentencing juveniles to life the of all sentenced without rendering pre-Miller sentencing invalid under the scheme portions imposition allow the of a those of MCL 769.25 that juveniles following nonparolable particular an on life sentence sentencing hearing. cited The caselaw defendants individualized rule, however, compel categorical support did not such a proportionality federal rule for defendants failed to show in Miller the United Court used sentences that States juvenile-sentencing supported categorical rule. and the cases Eighth prohibits and unusual 8. While Amendment cruel 1963, punishments, prohibits § art or unusual Const cruel punishment punishments. Consequently, prohibits that is necessarily proportional- The state test for unusual hut not cruel. (1) imposed ity severity of the of sentences assesses sentence (2) offense, penalty imposed compared gravity for of the to the 496 Mich 440 compared penalties imposed offense other offenders in (3) penalty jurisdiction, imposed the same for the offense compared Michigan penalty imposed to the for the same offense (4) states, penalty imposed other whether the advances the penological goal nonparolable of rehabilitation. A life sentence rehabilitation, penologicalgoal does not serve hut supported because fourth factor defendants’ contention disproportionate, that their sentences were defendants failed to demonstrating meet their burden of their sentences were facially 1, § unconstitutional art under Const 16. argued Eighth categorically 9. Davis that the Amendment bars nonparolable imposing life sentences on homicide offend- felony aiding-and-abetting ers convicted murder under an theory, attempting categorical to derive rule from Miller and during robbery Graham. a The commission of murder a is first- 767.39, degree Legislature murder. MCL the to chose treat exactly offenders aid and the who abet commission of an offense directly offense, the same as those offenders who more commit the particular subjecting punishment. them to the same This legislative great weight, choice is to entitled failed to Davis persuade categorical the Court that it a should establish rule. 1, § 10. categorically Eliason asserted that Const art imposition nonparolable bars juvenile of a life sentence on a years age homicide offender who was of the time of the review, however, offense. Because Eliason’s case was on direct he 769.25(l)(b)(¿¿) resentencing was entitled to under MCL subject years. juvenile only to a default sentence of a term A of will prosecution face life without if the seeks that sentence appropriate following trial court concludes that sentence is sentencing hearing an individualized in accordance with Miller. prosecution though Even imposition had filed a motion for of sentence, nonparolable a depart life whether trial court will resentencing specula- from the default sentence on would be apparent tion and it was not that Eliason faced a real and receiving parole. Accordingly, immediate threat of life without his challenge longer justiciably facial ripe. constitutional was no Carp and Davis affirmed. resentencing.

Eliason remanded for joined Cavanagh Justice Justices and McCormack, Kelly, dissenting, applies retroactively would have concluded that Miller to cases on collateral review because it established a substantive alternatively compelled rule and because state law its retroactive application. The United States Court has established juveniles numerous cases are different as a matter of consti- juvenile certain that because Miller determined tutional law. culpability for their crimes have homicide diminished offenders reform, prospects greater compared for offenders and to adult mandatory subject juvenile to offenders homicide states cannot Accordingly, expanded the nonparolable Miller life sentences. juveniles in that had range punishments to states available juveniles nonparolable life sentence for previously mandated required first-degree Miller sentencers convicted of murder. youth characteristics before an and attendant consider offender’s Miller, age imposing nonparolable affects life sentence. Under range imposed that can on someone convicted of sentences be persons subject produced first-degree Miller a class of murder. range established a substan- sentences and therefore a different retroactively Teague applies under the rule law that tive impos- Miller did foreclose sentencers from framework. While not cases, appropriate ing nonparolable juveniles in life sentences on nonparolable categorically mandatory life for sentence barred Teague analysis focuses on whether the those offenders. The categori- procedural, not on whether it is decision substantive or categorical noncategorical, bars but even if all are substan- cal or tive, noncategorical bars must be it does not follow all categorically nonpa- procedural. The fact that did not bar juvenile negate not did rolable life sentences offenders nonpa- mandatory import of its decision to invalidate substantive applied did offenders. Miller rolable life sentences decision-making merely authority; it altered more than allocate range punishments homicide offender available to punishment by requiring mandatory minimum that a state’s just something nonparolable Miller involved not who less than life. decision-making authority imposing punish- exercises the when ment, Accordingly, punishments considered. but what must be Kelly retroactively applies have held Miller Justice would Furthermore, first a review. factor that cases collateral assessing reviewing new must consider in rule’s retroac- court tivity retroactivity purpose of the under the state test for is sentencing procedures rule. do not concern the ascer- new While offense, underlying guilt sentenc- tainment or innocence for the ing fact-finding process that allows the sentencer to ascertain culpability new for Miller mandated a an offender’s the offense. nonparolable fact-finding process life to determine whether and, result, particular appropriate case as a in a sentence is application of The supported Miller. first factor the retroactive adversely have whether individuals been second factor examines Carp and were positioned reliance on the old rule. Davis adversely positioned did have the because the trial courts not Mich any life, impose nonparolable discretion to but sentence there was discretion, appeal before no basis Miller to this lack of and it is likely many already serving nonpa- of the offenders years rolable life sentences have been to a would sentenced term of they sentencing hearing. had received a factor The third examines applying retroactively whether the new rule would undermine the strong finality justice process. state’s interest in of the criminal retroactively Applying finality Miller would not affect the state, only require convictions in this would an but individualized resentencing process relatively prisoners for the small class of nonparolable they sentenced to life for homicides committed as juveniles. supported it, Because each factor of the state test Justice independent grounds would have held that Kelly state-law also apply retroactively. existed to Miller Justice Kelly would have judgments Appeals Carp reversed of the Court of and Davis resentencing. and remanded all three to the for cases trial courts Sentencing — — — Imposition Nonparolable 1. Criminal Law Juveniles —Retroactivity of Miller. Life Sentences Alabama, (2012), US_; Miller v 132 S Ct 2455 held that the Eighth prohibition punish- Amendment’s of cruel and unusual prohibits ment prison scheme that mandates life in juvenile offenders; parole apply without for not does retro- actively retroactivity under either the federal test for set forth in Teague Lane, (1989), separate indepen- v 489 US 288 or the Michigan People Sexton, (1998), dent test set forth 458 Mich 43 (2008). People Maxson, 482 Mich 385 Sentencing — 2. Criminal Law — —Imposition Nonparolable Juveniles — Life Sentences Cruel and Unusual Punishments. Eighth categori- § Neither the Amendment nor Const art cally imposition bars the aof sentence of life without on a juvenile homicide offender. Schuette, Bill General, Attorney D. Lindstrom, Aaron General, Solicitor Michael D. Wendling, Prosecuting Attorney, and Hilary Georgia, B. Assistant Prosecuting Attorney, for the people in Carp. Schuette,

Bill General, Attorney D. Lindstrom, Aaron General, Solicitor Kym L. Worthy, Prosecuting Attor- ney, and A. Timothy Baughman, Chief of Research, Training Appeals, the people in Davis. Lindstrom, General, Aaron D. Schuette, Attorney Bill Attor- Prosecuting J. General, Sepic, Michael Solicitor At- Prosecuting Wild, Assistant A. and Elizabeth ney, in Eliason. people torney, for for Firm, Selby), Patricia L. (by PLLC Law Selby Carp. C. Raymond Hubbell) and J. (by PLLC Clinton

Hubbell DuVall Davis. Cortez R. A. Stevenson Bryan and Jonathan Sacks (by Defender Appellate State Eliason. Wolfgang for Dakotah DeGroff) Brett Amici Curiae: Timothy and Attorney, Prosecuting Worthy, L.

Kym Research, Appeals, and Training Chief Baughman, A. in Eliason. Attorney Prosecuting Wayne County for the M. and Patrick Jon R. Muth (by Johnson Jaicomo) Richard Father Gabriel for 450 students Arbor, School, Michigan. Ann High Kary and Korobkin, Steinberg, J. Michael Daniel S. and the American Union Civil Liberties for the L. Moss Carp. Michigan Union of Civil Liberties American Winston) for (by LLP Sarah & McKenzie Baker rights organi- crime and victims’ numerous victims zations. Tremont, (by LLP Sarah E. Burling &

Covington Rosen) for numerous Parets, Krysten and Brendan leaders. religious and organizations faith-based LLP Mitra (by Cohn Miller Schwartz Honigman Educa- Legal and NAACP Jafary-Hariri) Defense MICH440 Fund, tional Inc. Jin Hee Lee Vincent M. (by Sutherland), NAACP Legal for Defense and Educa- tional Fund, Inc. Stone, Canfield, Paddock and PLC (by Tho- Hudson),

mas W. Cranmer and Paul D. for an ad hoc up committee made of former officials the Depart- Corrections; correctional, ment of numerous penologi- cal, health, mental community, justice and organiza- tions; and criminal-justice experts individual in Carp and Davis. LLP (by Hardin Robert Wierenga, Kimberly J.

Schiff Wahl, K. Kefalas, Suzanne Larimore Jessica Anne and Sprovtsoff) for an ad hoc made up committee of former prosecuting attorneys, former judges, govern- former mental and officials, associations, various of bar leaders deans, law school and law school Carp in professors Davis.

Bill Schuette, Attorney General, Lindstrom, Aaron D. Restuccia, and B. Eric General, Solicitor Deputy Solici- tor General, for the Attorney in Carp. General Levick)

Juvenile Law Center (by L. Marsha Neckers) Rhoades PC (by McKee Bruce W. for the Juvenile Law Center and organizations numerous individuals.

Stuart G. Friedman for the Criminal Defense Attor- neys of Carp. Michigan

Kimberly Thomas for Criminal Defense Attor- in Davis. neys Michigan (by Michael L. Mittlestat State Defender Appellate and Erin Campen) Van for the Appellate State Defender Office in Carp. 451 appeal granted to address J. leave We Markman,

(1) S Ct Alabama, US_; whether Miller v (2012), applied L should be 2455; 183 Ed 2d retroactively pursuant federal or state to either the — retroactivity defen in which the for cases test —to purposes direct final for sentence became dant’s appellate (2) was decided and review before Eighth the United Amendment of States whether § categorically 1, 16 Const art Constitution or life-without-parole imposition sentence bars considering After homicide offender. hold the rule announced matters, these we satisfy federal either the test Miller does not retroactivity 288; US Lane, forth set Teague (1989), Michigan’s L Ed 2d Ct 109 S retroactivity independent separate and for set test 43; 458 Mich 580 NW2d 404 Sexton, forth People v (1998), and 482 Mich 759 NW2d v Maxson, People (2008). Eighth hold neither further the 817 We § categorically 1, 16 1963, Amendment Const art nor life-without-parole imposition of a sentence bars on a homicide offender.

I. FACTS AND HISTORY A. DEFENDANT CARP years age Raymond Carp Defendant was 15 bludgeoning participated he the 2006 and when stabbing Township. Mary McNeely Ann in Casco charged first-degree murder in He was with violation 5, tried On of MCL 750.316 and as an adult. October County jury Carp 2006, St. of this Clair convicted offense, he and in accordance with law was imprisonment parole. to life without sentenced by Carp’s subsequently affirmed conviction was Appeals, unpublished opinion Court v People Carp, 452 496 Mich 440 per curiam of the Court of issued Appeals, December (Docket 30, 275084), No. and his for application appeal 23, leave to in this Court denied June was (2009). 2009, People v 483 Mich 1111 Carp, Because did not Carp seek review in the United States Su- Court, preme his conviction sentence became final for of direct purposes appellate review on 23, June 2009. 2010,

In September sought to Carp collaterally at- tack constitutionality of his sentence filing motion relief judgment from to MCR pursuant 6.501 et The trial court seq. motion, denied this concluding imposition of a mandatory sentence of life without on a first-degree-murder of- fender did not constitute cruel or punishment, unusual citing People Launsburry, 358, App 363-365; 217 Mich (1996), (1997), NW2d 460 lv den Mich (1997). recon den 454 Mich 883 Carp sought then leave in the appeal Court which Appeals, was denied on 8, June 2012. People Carp, unpublished order of the (Docket Appeals, Court of entered June No. 307758). days later, Seventeen the United States Su- preme Court issued its in Miller, leading decision for reconsideration, move Court of Appeals granted his motion. v Carp, unpublished order of (Docket entered Appeals, August 307758). No. On reconsideration, the Court determined that Miller had created a rule” “proce- “new that was dural” in nature and subject therefore not to retroactive application under the rules set forth in Teague. People v 298 Mich Carp, 472, 511-515; App 828 NW2d 685 (2012). The Court further held that Miller was not subject to retroactive application Michigan’s under separate test for retroactivity set forth in Sexton and 453 Carp Opinion Court of the subsequently 520-522. This Maxson.1 Id. at whether respect with to appeal leave granted under either retroactively applied Miller should be (2013). Mich People Carp, law. federal or state DAVIS B. DEFENDANT of his Davis, the time age Defendant Cortez brandishing offense, cohorts, while both and one his for in Detroit two individuals firearms, accosted that when Two witnesses testified robbery.2 purpose flee, and his attempted to Davis of the victims one Davis shots, killing six the victim. fired five or cohort first-degree murder vio- charged felony with was 750.316(l)(b) aby jury and convicted of MCL lation City Court for the of Detroit in the former Recorders Court) (now charge on Wayne Circuit part of the May 10, 1994. initially ruled that At the trial court sentencing, statutory sentencing first-degree scheme Michigan’s constitutionally applied could not murder and unusual” offenders because it was “cruel homicide of life without on a impose a sentence concluding of rehabilitation.” In “capable was who individual, the surmised that such an court Davis was that of in the commission of offense was Davis’s role court, The abettor, an aider and not actual shooter. an finding concerning Davis’s however, any did not make or whether respect fleeing with to the victim intentions opined Appeals how Miller should be also in dictum The Court juvenile first-degree-murder resentencing applied by trial courts Carp, presented not on collateral review. in cases that were offenders App Mich at 523-537. robbery, trial, participated in the that he had not At Davis testified cohort, cohort, “Shay-man,” had commit other a third but help encouragement. without Davis's ted offense

454 496 MICH440 Opinion op the Court he reasonably foresaw the that a possibility might life initially be taken when he engaged the firmed rob- bery. The trial court thereupon sentenced Davis to a term of of imprisonment 10 to 40 years. however,

On appeal, the Court Appeals of reversed resentencing remanded for pursuant Michigan’s scheme, statutory sentencing Davis, v People unpub- lished Appeals, order the Court of entered November (Docket 23, 176985), 1994 No. resentencing, and at trial imposed court the required sentence of life without parole. Direct appellate review of defendant’s convic- tion and sentence concluded 2000. People Davis, v unpublished order of the Court of Appeals, entered (Docket 224046).3 15, June No. Davis filed his current motion for relief from

judgment, contending Florida, that Graham v 2011; Ct L (2010), 130 S Ed 2d constituted a “retroactive change in the law” in that it categorically 3 A federal district court petition, dismissed federal Davis’s habeas expressly rejecting his contention "that there was insufficient evidence to first-degree felony Jackson, convict him unpublished murder.” Davis opinion and order of the United States District for the Eastern (Docket Michigan, 30,2008 April 01-CV-72747), District of issued p No. 9. surviving “testi[mony] The court relied on the victim’s [Davis] both his weapons co-defendant fired their at the decedent.” Id. Davis challenged credibility witness, rejected of this but court this testimony single, “[t]he assertion because prosecut of a uncorroborated ing eyewitness generally support witness other sufficient conviction, long prosecution presents so as the evidence which estab beyond lishes the elements of the offense a reasonable doubt.” Id. 11. request The court later appealability. denied Davis’s for a certificate Jackson, unpublished Davis v order of the United States District Court (Docket Michigan, for the Eastern District of entered June No. 01-CV-72747). Appeals The United States Court of for the Sixth Circuit denial, eyewitness stating affirmed “[a]n . . . testified that both co-perpetrator Davis and his fired shots at the decedent.” Davis v Jackson, unpublished Appeals order of the United States Court for (Docket Circuit, July 14, 08-1717), Sixth p entered No. 2. juveniles con- life-without-parole sentences barred however, Concluding, offenses. victed nonhomicide offense,” even murder is fact “homicide felony an the actual shooter but defendant is not when the abettor, trial court denied this motion. aider Davis’s application of denied Appeals The Court Davis, order unpublished v People leave to appeal. (Docket 16, entered November Appeals, Court 304075). for leave to Davis’s application While No. the United States pending, in this Court was appeal light its in Miller. In Court issued decision trial court for Miller, remanded to the Davis’s case was retroactively. applied of whether Miller a determination (2012). remand, Davis, v 492 Mich 871 On People retroactively, Miller did apply court concluded that trial then The prosecutor to be resentenced. entitling Davis v People reversed. Appeals and the Court appealed, Appeals, of the Court of Davis, order unpublished (Docket 16, 314080), citing No. January entered leave to again sought 472. Davis App Mich Carp, 289 address Court, granted which we in this appeal of the United States Amendment Eighth whether the § categorically Const art Constitution or a parole on a sentence of life without imposing bars aiding-and- felony convicted of murder (2013). Davis, 495 Mich 890 abetting grounds. ELIASON C. DEFENDANT became Davis, whose sentences Unlike Carp of direct review before was for purposes final convicted and decided, 10 defendants were at least direct but their cases were on sentenced before Dakotah Eliason time Miller was decided. at the appeal 14, Eliason, without age defendants. At of those one deliberation, fired hours of and after provocation MICH440 single deadly shot into the head of his stepgrandfather he slept his Niles Township home. Eliason was charged first-degree with murder violation of MCL 750.316(l)(a) Court, in the Berrien Circuit convicted jury, and sentenced in October 2010 to life without parole.

While Eliason’s appeal pending was before the Court of Appeals, Miller was decided. In assessing the effect of Miller on Michigan’s sentencing scheme for first-degree-murder offenders, of Appeals held that a trial court must as result of Miller perform an individualized sentencing analysis based upon factors identified Miller. People Eliason, 300 Mich 293, 309-311; App (2013), 833 NW2d 357 citing Carp, 289 Mich App at 522-532. Using analysis, the trial court must then choose between imposing sentence Eliason, life with parole. or without 300 Mich App at sought 310. Court, Eliason leave to appeal in this challenging the sentencing and procedures options de- fined the of Appeals, that contending the trial court should have the further option of a imposing a sentence of term of years. Eliason additionally argued 1963, § Const art 16 categorically bars the of imposition a sentence a life-without-parole juve- We granted nile. leave to appeal on both issues. v People (2013). Eliason, 495 Mich 891 II. MICHIGAN STATUTES Pending our resolution of appeal, in and re- sponse Miller, the Legislature enacted, and the signed law, Governor into 2014 PA now codified as MCL 769.25 and MCL 769.25a. This significantly law altered Michigan’s sentencing scheme juvenile of- fenders convicted of crimes that had previously carried a sentence of life parole. without People Opinion the Court of

A. PRE-MILLER appeals defendants’ full context of understand the To it is reliance on in relief each seeks and the statutes pre-Miller the necessary first to delineate of first- juvenile and the trial controlled defendant Michigan. Each offenders degree-murder murder first-degree with charged Court was before this “14 juvenile a defendant When MCL 750.316. under the charged felony, with or older” is years age would typically of the circuit court family division 712A.4(1). However, MCL jurisdiction. initial possess juvenile charged “specified with a juvenile when in violation of violation,” first-degree murder including attorney authorize 750.316, may prosecuting “the MCL warrant on the complaint filing so, does prosecutor . . MCL If the charge ..” 764.1f. family of the itself, rather than the division circuit court juvenile over court, jurisdiction acquires circuit as an adult. try person defendant’s case and must 712A.2(a)(l). See MCL

This has been termed the “automatic waiver process exclusively Legislature has vested process” because charge the executive discretion to prosecutor as an adult when the stands try Conat, first-degree murder. accused (1999). The 134, 141-142; Mich 605 NW2d App three cases filed complaints the instant prosecutors jurisdiction cases placing and warrants within court, each defendant was then circuit where as an adult. this occurs tried and convicted When in an enumerated subset is included the offense (which first-degree includes specified violations murder), a juvenile... shall sentence “[t]he court 769.1(1). Because adult[.]” as an MCL the same manner murder “shall be first-degree an adiilt convicted 496 Mich 440 punished by imprisonment life,” 750.316(1), for MCL and is not for MCL eligible parole, 791.234(6)(a), defen- ultimately dants were sentenced to terms of life without parole. Each defendant and, now seeks resentencing pursuant statutory Miller, to the response would, if granted resentencing, subject to the sentencing new rules juveniles by established for 2014 PA 22.

B. POST'-MILLER 769.25, MCL in response enacted pre- scribes new juveniles scheme for convicted of violating certain provisions Michigan laws, such as 750.316, MCL previously had carried with them a fixed sentence of life without parole. The effect of MCL 769.25 that even juveniles who commit the most serious against offenses the laws of this state no may longer be sentenced under the same sentencing rules and procedures as those that apply to adults who commit the same offenses. Rather than imposing fixed sentences of life without on all defendants con- victed of violating 750.316, MCL MCL 769.25 now establishes a default sentencing range individuals who commit first-degree murder before turning years age. law, Pursuant the new absent motion prosecutor seeking a sentence of life without parole,

the court shall impris- sentence individual ato term of onment for which the maximum term shall be not less than years and the minimum term shall be not less than 25 769.25(4) years (9).] years. more than 40 [MCL When, however, the prosecutor file does a motion seek- ing a life-without-parole sentence, the trial court “shall a hearing conduct on the motion part of the sentenc- ing process” and “shall consider the factors listed 769.25(6). Miller v Alabama . . . .” MCL Accordingly, the People 459 Opinion of the Court offenders first-degree-murder sentencing of “individualized sentenc- the so-called provides now for of Miller. ing” procedures scheme, Legis- the this adopting new surrounding the of issue clearly cognizant

lature was retroactively. In defin- to applied Miller was whether scheme, Legislature new scope of the ing [MCL 769.25] forth in procedures that “the set asserted of final for any purposes case that is apply do not day before the [the or June 2012 before appeal Miller].” Court’s decision Supreme United States 769.25a(l). Instead, Legislature specified: MCL supreme supreme or the United States

If the state court supreme of United States finds that the decision court court in Miller Alabama. ^[567] US_; 183 L Ed 2d 407; (2012), retroactively to all defendants applies 132 2455 S Ct crimes, age the time of their under the of who were appellate purposes, deter is final for and that decision imprisonment a mination whether a sentence 769.25(2)] imprison shall be [MCL set forth violation years parole eligibility or life a term ment for without 769.25(9)] by the sentenc [MCL set shall be made forth ing provided her in this section. judge or his or successor as 769.25a(2).][4] [MCL in MCL question identified up We now take 769.25a(2) retroactively. applied Miller must be —whether

III. OF REVIEW STANDARD Supreme of the United States Whether decision federal or state retroactively under either applies Court 769.25a(3) exception prospective MCL contains similar application Court the United of MCL 769.25 in the event retroactively applies holds that Miller States felony-murder theory under first-degree-murder on a offenders convicted 750.316(l)(b). MCL Mich

retroactivity rules poses question of law that is Maxson, reviewed de novo. 482 Mich at 387. Whether a statute is question constitutional also poses law Hunter, reviewed de novo. Hunter v 484 Mich (2009). 771 NW2d 694 When the constitution- ality of a statute is brought question, into party “[t]he challenging proving [it] has burden invalidity.” its v Thomas, 111, 117; 201 Mich App 505 NW2d (1993). burden, To sustain its the party challenging the statute must overcome presumption that statute is constitutional, and the statute “will not be declared clearly so, unconstitutional unless or so be- yond a Detroit, reasonable Cady 499, doubt.” Mich 289 (1939). 505; Furthermore, 286 NW 805 a “party chal- lenging the facial constitutionality of a statute faces an extremely rigorous standard, and must show that no set of circumstances exists under the [a]ct which would be valid.” In re Request Advisory Opinion Regarding Constitutionality PA 1, 11; 2005 479 Mich (2007) (citations NW2d 444 quotation and marks omit- ted).

IV ANALYSIS To determine whether Miller must be applied retro- actively, it helpful is identify exactly first what Miller by way held of understanding what precedents were relied on in forming its rule. Miller is the product “two strands of precedent,” requiring one a particular form of individualized before sentencing capital punish- ment can be imposed the other addressing the constitutionality of imposing specific punishments on offenders. 567 US 132 S Ct at at_; 2463-2464. We now consider both strands of precedent with the purpose of identifying what required by is rules formed from each of precedent strand and then

Opinion Court each by what is contrasting required comparing in Miller order the rule required with what be applied rule should whether the latter determine retroactively. OF MILLER

A. GENESIS STRAND 1. CAPITAL-PUNISHMENT 238; 2726; 33 S Ct Georgia, In 408 US Furman v (1972), the United States L Ed 2d 346 it consti- opinions separate decided 5-4 seven violation punishment tuted cruel and unusual pur- impose capital punishment Amendment Eighth words, that, in “vested sentencing to a scheme its suant discretion complete unguided [sentencer] with Alabama, 447 .. . .” Beck v penalty the death to impose (1980). 2382; L Ed 625, 639; S 2d US 100 Ct re- schemes sentencing some enacted response, states for select capital punishment imposition quiring of law. mandatory by way operation of the crimes 298; Carolina, 286-287, v North Woodson (1976). L 2d 944 Those S Ct 49 Ed Eighth Amendment challenged also on schemes were Woodson, understanding the in the Court grounds with ability impose to not the state’s challenging case as by the procedure employed but “the capital punishment the of death.” Id. penalty State to select for ... persons added). (emphasis at 287 decision, held Woodson, Court, another 5-4 the The plural- were unconstitutional.

that those schemes sentencing unconstitutional ity viewed as opinion for permit that did not employed process schemes sentencing individualizing of practice “the prevailing imposing part process as of determinations” Stewart, of (opinion at Id. 303-304 capital punishment. 462 496 440 MICH JJ.). Powell, Stevens, Accordingly, post-Woodson, capital punishment could im- constitutionally posed after “consideration of the character record of the individual offender and the circumstances particular however, offense ...Id. at 304. Notably, the same day that the United States Supreme Court Woodson, decided it also declined categorically to bar imposition capital punishment. Georgia, Gregg (1976). 153; 2909; S L US 96 Ct 49 Ed 2d 859 Following Woodson and Gregg, United States Supreme Court confronted two additional cases chal whether lenging sentencing procedures employed impose capital punishment complied with Woodson's requirement of individualized determina Ohio, 586; tions. See Lockett v 2954; 438 US 98 CtS L Ed 2d (1978), and Eddings Oklahoma, 455 US (1982). 104; S 102 Ct 71 L Ed 2d Both Lockett and Eddings were cited in Miller part of the capital- punishment precedent strand of that culminated in Miller. S 132 Ct at_; at 2467. The plurality opinion in Lockett stated that statutory schemes authorizing capital punishment must permit the sentencer to consider all forms evi- mitigating dence relating measuring two points for determining the propriety of the sentence —evidence relating to the defendant’s “character or any record and circum- Lockett, stances . . . offense .” US C.J.). (opinion by Burger, Relevantly listed as factors that the sentencer must be permitted consider were the defendant’s “role the offense” and the defen- “age.” dant’s Id. at 608.

In Eddings, Court, decision, in a 5-4 applied Lockett to a court, case which the trial in considering mitigating factors imposing capital before punishment, declined to consider either the defendant’s family back- Opinion the Court of he had neglect abuse and physical the including ground, an alleged he from suffered, the fact that suffered at 112-113. Eddings, disorder.” “personality “determine may that while a sentencer The Court ruled evidence,” given mitigating relevant weight to be give piece relevant may not decide the sentencer exclud- by [altogether] weight “no mitigating evidence Id. at 114- from . consideration.” such .. ing evidence individual- in which Eddings, 115. Lockett and Under statutory not must required, ized permit the punishment imposing capital for procedures evidence, mitigating all relevant defendant to present and accord some must also consider but sentencer evidence. Id. at 112-115. weight

2. JUVENILE-SENTENCING STRAND in two developed The strand of was precedent second 1183; cases, Simmons, US 125 S Ct Roper v 1 (2005), Roper L Ed 2d and Graham were Graham. in Miller to have by “establish[ed] understood the Court for constitutionally that children are different from adults Miller, 567 132 Ct at sentencing.” US S purposes at_; 2464. resulted in down- This constitutional distinction has in the Roper range ward alterations and Graham constitutionally may impose that the punishments state Roper on offenders. When rules from may only impose together, Graham are considered state a sentence of life without on a committed by that if an adult commission of an offense constitutionally punish would state permit punishment. adult capital “Eighth held that Roper, the Court imposition forbid death

Fourteenth Amendments age who were under the 18 when penalty offenders committed.” US Roper, 543 at 578. their crimes were 496 Mich 440 The Court characterized the rule it was adopting as a “categorical rule.” Id. at 572.5 The subsequent decision in adopted again Graham what characterized i.e., “categorical rule,” as a a that sentence life could juvenile without not imposed Graham, nonhomicide offender. US at 79. In reach- conclusion, this ing comparisons Graham drew between a capital sentence for an adult offender and a life- without-parole juvenile sentence for a Id. offender. at rule, To justify categorical 69-70. this the Court relied on the Roper assertedly factors identified in distin- guished juvenile and adult offenders. Id. citing Roper, 543 US at The 569-570. Court also supported its prohibition life-without-parole juvenile sentences for nonhomicide by concluding offenders goals punishment (retribution, deterrence, incapacitation, rehabilitation) and are not furthered when a nonparo- life lable sentence is imposed. Id. at 71-74. Combining precedent strands of that were previously limited to capital and juvenile sentences nonhomicide offenders respectively, and holding the first time that these separate were strands relevant to noncapital sentences for juvenile offenders, homicide United States Su- preme Court reached its in holding Miller.

3. MILLER v ALABAMA Miller v Alabama created the Carp rule that and seek Davis to have applied retroactively. Having identi- rule, prescribing distinguishing The Court’s basis for this between adult purposes and analysis, offenders for of constitutional rested on (1) juveniles, by way three maturity,” factors: their engage “lack of tend to (2) “impetuous actions,” “juveniles and ill-considered are more vulnerable susceptible negative pressures” or they influences and outside because (3) environment,” “have less control... over their own “the character of Roper, is not as well formed that of an adult.” 543 US at (citation omitted). quotation 569-570 marks required by the two from each of the rules fied what is precedent Miller, we now underlie strands identify required in order in Miller the rule what is juvenile- like the Miller is more whether to determine applied retroac- have rules strand whose capital- Teague tively more like the under applied punishment rules have not been whose strand compare retroactively Teague. contrast We under way later, because, as discussed rule in Miller in determin- a rule is essential and effect” of the “form retroactively applied ing under a rule is to be whether single produce Teague. will form of a rule One applied any single effect,when result, or a invariable rule is to whom the of defendants defendant the class range produce pertinent. form of a rule will Another ap- multiple possible effects, when results, or have of plied in the class of defendants defendants to different pertinent. and effect of The form the rule is to whom capital-punishment of strand from the rules derived the considerably precedent and effect from the form varies juvenile-sentencing strand from the the rules derived of markedly precedent, different has and this variance of retroactivity. question consequences The of for the precedent prescribed capital-punishment strand of perform require an individu- a sentencer rules punish- analysis resulting capital sentencing in alized By being imposed contrast, the or not. ment either precedent prescribed juvenile-sentencing of strand particu- imposition categorically the of bar rules that impose requiring a lesser sentence, the sentencer lar every of rules does The former class case. sentence retroactivity, clearly satisfy the while the test for not assessing the form whether class of rules does. latter that of more akin to rule in Miller is and effect of the precedent, capital-punishment and there- of strand the clearly akin to the retroactive, or more fore less 496 Mich 440

Opinion the of juvenile-sentencing strand of precedent, therefore retroactive, clearly important more we find it to exam- ine what Miller itself stated about form and effect of its holding. own “that Eighth held Amendment forbids life in

sentencing prison scheme mandates without possibility offenders.” parole US S Ct at the very 2469. Within same at_; paragraph in which Miller announced this holding, Court also stated that its “require [s] [the decision sentencer] to take into account how children are differ- ent, and how those against differences counsel irrevo- cably them to a lifetime prison.” Id. 132 S 2469. _; provides Ct at Miller then substantial details what must be regarding part considered as sentencing process individualized before a sentence life without can parole juvenile: on a imposed

Mandatory juvenile precludes life without for a consid- chronological age eration of his and its hallmark features— among them, immaturity, impetuosity, appreci- and failure to consequences. prevents taking ate risks and It into account family home environment that surrounds him —and usually from which he cannot extricate himself —no matter dysfunctional. neglects how brutal or It circumstances offense, including the homicide participation the extent of his way peer pressures may conduct and familial and Indeed, ignores have might affected him. he have been charged and if incompe- convicted a lesser offense not for youth example, tencies associated with inability his —for police prosecutors deal with (including officers or plea on a agreement) incapacity attorneys. or his to assist his own And finally, mandatory punishment disregards possibility of rehabilitation even when the suggest circumstances most (citation omitted).] [Id. it. S Ct at_; at 2468 Miller’s summarization of the trial what court must evaluate as of the part sentencing new individualized process large part tracks in the two measuring points v to present a defendant must be allowed about which con- capital-punishment within the mitigating evidence “the ‘circum- relating to text of Lockett —evidence the character [to] offense and particular stances of ” 9; 132 S Ct of the offender.’ propensities Id._n and Louisiana, at at 2471 n Roberts quoting (1976) 333; 3001; (opinion L Ed 2d 974 96 S Ct Powell, Stevens, JJ.), citing Sumner Stewart, L 2716; Ct Ed 2d 56 Shuman, 483 US 107 S (1987). the rule in Miller —life- Although the focus of is, of sentences for without-parole offenders — the rules in course, capital- distinct from the focus of the rule in cases, the form and effect of punishment in capital- to that of the rules quite Miller is similar is, in requires That the rule Miller punishment cases. an individualized perform sentencer be- resulting life-without-parole sentence analysis not, capital- much like the very either ing imposed an require perform cases sentencer punishment sentencing analysis resulting capital individualized or not. being imposed either punishment more difficult to draw the same considerably It is categori- the rule in Miller and the between comparison Indeed, the United Roper. cal rules Graham distinguished Court itself specifically States effect of rules: the form and these categorically penalty bar a for a class Our decision does not as, type example, we did in of offenders or of crime — Instead, only that a sen Roper or Graham. it mandates process considering an offender’s tencer follow a certain — imposing youth and attendant characteristics —before [Miller, penalty. US at 132 S Ct at particular _; 2471.][6] highlighting This is but one of several statements from requiring process” pertains “a certain

limited effect rule as it of its 496 Mich 440 op Opinion the Court

Thus, rather than relying give Graham and Roper Miller, form and effect to in the same manner as the capital-punishment decisions, the Court relied on Gra ham Roper in Miller only generalized for a “categoricallybar[ring] penalty.” paragraph rather than a In the in which holding obligations it describes its addresses sentencer’s before imposing sentence, life-without-parole stated, a “[W]e do not ability judgment foreclose a sentencer’s to make that in homicide Additionally, ,_; discussing cases . ...” Id. at 132 S Ct at 2469. in holding, unequivocally breadth of its the Court stated that it has not placed any imposing life-without-parole juvenile bar on a sentence on question homicide offenders because it had declined to even reach the Eighth requires whether Amendment at_; such a bar. id. See (“[W]e S Ct at 2469 do not consider Jackson’s and Miller’s alternative argument Eighth requires categorical that the Amendment a bar on life ...”). parole juveniles Indeed, only opinion without for . in Miller possibility Eighth even to entertain the imposes that the Amendment a categorical life-without-parole juvenile bar on sentences for homicide Breyer’s concurrence, joined offenders only by was Justice in Justice Sotomayor, stated, in which he reasoning, subject Given Graham's the kinds of homicide that can juvenile parole offender to life without must exclude instances juvenile where the himself neither kills nor intends to kill the at_; (Breyer,J., [Id. victim. concurring).] 132 S Ct at 2475-2476 adopted Breyer’s proposed rule, Had the Court itself Justice then Miller might categorical be said to have the same form and effect of the rules adopted Roper, in Graham and but the Court did not. The dissent in this attempt case further errs its to read the rule in Miller and the rule proposed by Breyer post Justice as one and the same. See at 545. Whereas proposed by Breyer bright line, the rule foreclosing Justice draws a ability impose state’s parole juvenile a sentence life without for juvenile convicted of a homicide offense in which the offender did kill not kill, or intend to imposing rule Miller does not foreclose life-without-parole sentence on such an offender.This is because the rule proposed by Breyer, requires unlike that Justice a sentencer to offense, look at not the circumstances of the but also at the characteristics of the defendant such that a homicide offender who did not kill or intend to kill could be sentenced to life without offender, example, possessed prior record, if the criminal no showed signs amenability rehabilitation, and exhibited mental faculties possessed by similar to those an adult offender. Caep Opinion op the Court “principle” Id. regarding offenders. 132 S at_; is, Ct at n 11. That Miller relied on Graham for the Roper general principle juveniles of law that possess adults, different mental faculties than so the United requires they States Constitution treated than differently adults for with re purposes spect to the of imposition capital punishment and sen tences of life parole. Although without this principle law explains why the United Supreme States Court found it necessary to the rule in adopt bearing it has no the actual form and effect of the rule adopted Miller. Accordingly, because the form and effect of a rule rather than the principle underlying the rule’s formation con trols whether the rule must be applied retroactively under federal retroactivity rules, whether Miller be applied must retroactively will center on whether a rule with a form and effect similar to the rules in Woodson, Lockett, and Ed- (rather Graham) dings Roper than is the of rule type entitled to retroactive application under Teague.7 With mind, this in we next define Teague’s federal retroac tivity test so as to determine whether the rule in Miller is entitled to retroactive under application that test.

B. FEDERAL RETROACTIVITY

1. GENERAL OVERVIEW There is a “general rule of nonretroactivity cases on collateral review” when it to applying comes new constitutional rules to cases that became final before 7 appear dispute The dissent does not that the rule in Miller has the to Woodson, Lockett, Eddings, form and effect of the rules from rather Graham, Roper than those from when it describes the latter having “prohibited” specific decisions as types punish “forbade” and applied juveniles describing ments Miller as having while “struck down a scheme.” Post at 531. MICH440 496 at Teague, was announced.8 489 US

the new rule J). O’Connor, by This default rule is driven by (opinion finality which is essential principle “the justice system.” of our criminal Id. 309. operation arising are concerns Supporting principle this same on the administration placed from the burdens in that justice applied retroactively, when new rules are imposed upon State[s] ‘costs retroactive “[t]he [col of new rules of constitutional law on application far the benefits of generally outweigh review] lateral ”9 Stumes, quoting Id. at Solem v application.’ nonretroactivity general general This rule of stands contrast to the requiring application rule the retroactive of new to cases that have rules purposes appellate not become final for of direct review before the new 314, 328; Kentucky, rule is announced. 107 S Ct Griffith (1987). L Ed 2d 649 count, By currently our and Davis are of 334 defendants serving life-without-parole Michigan sentences in for crimes committed they years age before turned 18 whose sentences became final for purposes of direct review before the Court’s decision in Miller. fully applying retroactively, may To understand the effect of helpful briefly demographics consider the and case histories of the resentencing applied if defendants who would be entitled to Miller is retroactively. why at There are least two reasons these factors are first, analysis: relevant the Miller Miller focuses its individualized analysis personal on the defendant’s circumstances and offense, any application at characteristics the time of the so retroactive of necessarily requires analysis time, specific long an to that however ago may generally, greater have The been. older case the state’s and, finality concomitantly, likely interest the more burdensome it is accurately be to reconstruct what characterized the offense and the Second, age offender at that time. because Miller identifies and mental development consequential determining two factors in whether a life-without-parole constitutionally permissible sentence is for a offender, likely increasingly permissible that sentence is to be the closer years age an at of the offender was to 18 of the time offense. See note 35 opinion. of this defendants, years they age Of the 334 affected 4 were 14 of when offenses, years first-degree-murder age, committed their 44 15 of were years years age, age. were 16 and 181 were 17 Of the 181 105 People Caep v 471 Opinion the Court (1984) 1338; L Ed 2d 579 638, 654; S Ct 79 US 104 465 (second original). alteration a court reason, inquiry the first which

For this applies a rule determining whether engage must when collateral review presented to cases retroactively a “new rule” as the rule constitutes concerns whether (opinion 489 US at 299-301 by Teague, defined 329; 302, 492 US O’Connor, J.), Penry Lynaugh, v (1989). Parks, 2934; 106 L Ed 2d 256 109 S Ct Saffle (1990). 487; 1257; 108 L Ed 2d 415 494 US 110 S Ct if the rule an- a rule is “new” Generally speaking, of law not articulated principle previously nounces the courts and therefore “falls outside recognized by place of federal law” in the time [the] universe v Taylor, defendant’s conviction became final. Williams (2000) 381; 1495; L Ed 2d 389 120 S Ct 146 J.). Stevens, If a rule not deemed a “new (opinion by is rule,” nonretroactivity inap- then the rule of general retroactively rule even applied and the will plicable purposes appel- cases that became final for of direct the defendant late review before the case on which Bockting, 549 relies for the rule was decided. Whorton (2007). If, 406, 416; L Ed 2d US 127 S Ct however, rule,” a “new then the a rule is deemed Saffle, rule of does See general nonretroactivity apply. 494 US at 494. general deemed a “new rule” and the

When a rule is a court must then nonretroactivity applies, rule of offenses, years age at the time of their 28 were defendants who were 17 age, turning years of with several of those within two months of days turning defendants were within 18. As for when the individuals years initially sentenced, were sentenced at least 20 172 of defendants early ago, mid- to late 1970s. Another 83 several sentenced as as the with years ago, 46 between 15 and 20 were defendants were sentenced years ago, sentenced between 5 sentenced between 10 and were years. years ago, the last 5 and none were sentenced within 496 MICH440 Opinion op the Court engage Teague’s wit, second to whether the inquiry, Teague’s exceptions “new rule” satisfies one of two general nonretroactivity rule of for new rules. See If Teague’s id. the “new rule” satisfies either of two If, then it will be Id. exceptions, applied retroactively. however, satisfy the “new rule” fails to either of those exceptions, the rule will be entitled to prospective application. succinctly Id. Whorton summarized Teague’s exceptions general two to the rule of rionret- roactivity as follows: retroactively applies pro- A rule new a collateral (1) (2) ceeding only if the rule is substantive or the rule “ procedure’ implicat- rul[e] ‘watershed of criminal

ing accuracy the fundamental fairness and of the crimi- [Whorton, 416, proceeding.” quoting Saffle, nal 549 US at 495, quoting Teague, (opinion 494 US at 489 US at 311 J.) (alteration O’Connor, by original).]

2. “NEW RULE” Turning inquiry to the first of the retroactivity analysis, “new,” whether the rule in Miller is we note the United States Supreme Court has defined a “ rule as “new” when the rule ground,’ ‘breaks new ‘imposes obligation new on the States or the Federal Government,’ or was not ‘dictated precedent existing ” at the time the defendant’s conviction became final.’ Saffle, 494 US at quoting Teague, 489 US at 301 J.) omitted). O’Connor, (opinion by (emphasis Essential any of these bases for finding that a rule is “new” is the question of whether “all jurists reasonable would have deemed themselves compelled accept” the rule at the time defendant’s conviction became final. Gra- Collins, ham v 892; 122 L S Ct Ed (1993) added). 2d 260 (emphasis The fact that a “deci- sion is within the ‘logical compass’ of an earlier deci- sion ... is not for purposes deciding conclusive Caep rule’ under decision is a ‘new the current whether 407, 415; 110 S Ct McKellar, 494 US Butler v Teague.” (1990). whether determining L In 1212; 108 Ed 2d 347 whether “new,” inquires this Court rule in Miller is a state, if with presented Miller courts of before challenge pre-Miller to our constitutional to declare those stat- statutes, have felt bound would expressed for the reasons utes unconstitutional Miller. the rule in judgment, in our

It is apparent, imposed rule. Miller a new Miller constitutes and federal on state lower obligation hitherto-absent sentencing hearings individualized courts to conduct on a parole of life without a sentence imposing before of this part process, offender. As homicide juvenile sentence must life-without-parole seeking prosecutor factors relevant aggravating present now evidence offense, defendants must juvenile and the the offender financial resources and the opportunity be afforded the to the factors relevant mitigating evidence of present and evalu- offense, other psychological offender and the maturity and of the youthfulness relevant to the ations allowed, courts must now defendants must aggravating the consideration of upon embark juvenile defen- regarding offered mitigating evidence previ- imposing as a condition to sentences dants It thus seems ously no such consideration. required number of Miller that a considerable certain as result have been previously defendants who would for the commission parole sentenced to life without meted out. have a lesser sentence homicide offenses will clearly obligations these new Teague Saffle, Under are not aware in Miller a new rule. We render rule before by any justice of this Court any statement of, anticipated, argued support Miller that forth in that decision. constitutional set requirements 496 Mich 440 Opinion op the Court every Unless affirmation by this Court of a sentence of life without on a offender before including those that followed decisions such as Roper, Graham, Lockett, Eddings, and can be characterized as “unreasonable,” there cannot be serious argument Miller did not define a “new rule.”

Although Miller may be “within the logical compass” decisions, of earlier and built their upon foundation, cases predating Miller can hardly be read as having “dictated” or “compelled” Miller’s result. Miller un- doubtedly ground broke new in that it set forth the first constitutional rule to mandate individualized sentenc- ing before noncapital punishment can be imposed. respect, the capital-punishment cases, although providing model for the form and Miller, effect of would not required have jurist reasonable to conclude that a life-without-parole sentence for a could only be constitutionally imposed following an individu- alized sentencing hearing.

Turning juvenile cases, to the Roper also dealt exclu- sively with the imposition of capital sentences without discussing constitutionality of life-without-parole sentences and the need for individualized sentencing hearings. While Graham’s focus was life-without- parole sentences, its constitutional rule was limited to offenses, nonhomicide and it did not make individual- ized sentencing the constitutional threshold for impos- ing a sentence of life without parole. Furthermore, while Graham a comparison drew between life-without- parole sentences for juvenile offenders and capital pun- ishment, which was pivotal Miller, deciding Graham stopped also well short of finding the two punishments equivalent. Graham, See 560 US at 69. This is evident “ by Graham’s reference to life without as ‘the ” second most severe penalty law,’ permitted by id., Carp 957, 1001; 111 S US Michigan, Harmelin quoting (1991) J., (Kennedy, concur- 2680; 115 L Ed 2d 836 Ct punishment description capital its part), ring ” “ id., severity irrevocability,’ in its ‘unique as added). Ac- (emphasis US at Gregg, 428 quoting certainly could although Roper Graham cordingly, movement longer-term of a being part argued sentencing of the individualized application toward sen- life-without-parole cases to capital-punishment offenders, Graham itself homicide tences Since application. or dictated this nowhere compelled reasonably have Miller of this state could a court before challenge Michigan’s pre- a constitutional rejected to that raised Miller scheme similar rule.” clearly Miller is “new 3. VERSUS SUBSTANCE PROCEDURE rule, we Miller announced a new Concluding that Miller the rule in inquiry, to the second whether turn “narrow Teague's exceptions” fits within one of two US at nonretroactivity. Saffle, 494 general rule of Davis outset, At the note that neither nor 486. we any suggesting this Court argument advanced before retroactively under applied should be rule of criminal exception, pro- the “watershed second argu- consider exception. Accordingly, any cedure” we rule of regarding identifying ment “watershed only procedure” unpreserved, criminal we will in first the rule Miller fits within the consider whether nonretroactivity.10 to the rule of exception general 10 Nonetheless, we observe watershed, qualify to a new rule must meet two [i]n order necessary First, prevent

requirements. an the rule must be Second, impermissibly large the of an inaccurate conviction. risk 496 440 476 MICH The first exception differentiates between new sub- rules, stantive rules and new procedural allowing for application only retroactive the former. See Whorton, 417; Summerlin, US at Schriro 542 US (2004). 348, 351-352; 2519; 124 Ct L S 159 Ed 2d 442 origin The exception predates the first Teague, as that decision exception drew contours this from Justice partial partial Harlan’s concurrence and dissent States, in Mackey 667; United 1160; 401 US 91 S Ct (1971). L Teague, Ed 2d US at (opinion by J.). O’Connor, In “general” of the speaking against rule application rules, retroactive of new constitutional Jus- tice Harlan commented that the Court’s only ‘procedural

discussion is pro- written with new due mind, is, applications cess’ rules in those of the Constitution that forbid Government to utilize certain techniques processes enforcing in concededly valid soci- proscriptions etal on individual behavior. New ‘substantive rules, is, process’ due place, those that as a matter of interpretation, constitutional primary, certain kinds of private beyond power individual conduct of the crimi- law-making authority proscribe, must, view, nal my in placed on a footing different [and afforded retroactive application], [Mackey, (Harlan, J., 401 US at 692 concur- ring judgments part dissenting part).] understanding rule must alter our procedural of the bedrock [Whorton, elements proceeding. essential to the fairness of a (citations omitted).] quotation US at 418 marks applying standard, rule that the United States ever purpose Teague’s has identified as “watershed rule” for exception Wainwright, second is the rule drawn from Gideon v 792; (1963), 83 S 9 L Ct Ed 2d 799 which established that the Sixth right appointed included indigent Amendment counsel at trial for Whorton, Furthermore, See defendants. 549 US at 419. possible rule in preventing any “impermissibly Miller has no effect in large pertains risk of an inaccurate conviction” and to no “bedrock procedural proceeding.” elements essential to the fairness of a Opinion op the Court by empha- this differentiation supported Harlan Justice rule of a retroactive substantive sizing application that interests finality where instance clearest “represents in is little interest because societal yield” “[t]here should it to rest where point at a process the criminal permitting Contrasting never Id. at 693. repose.” ought properly of a substantive rule with application retroactive rule, offer the proceeded Harlan a Justice procedural of a application that the retroactive substan- observation conse- “entails none of the adverse collateral tive rule appli- retrial” certain to follow retroactive quences a Id. is because procedural of a rule. This cation given of retrial precludes possibility rule substantive single a result for the class application that its dictates formerly regulated by type individuals or of conduct in the new rule. It is governed by rule and now old rules, derived from categorical such those sense precedent, are substan- juvenile-sentencing strand they always a “form and effect” that tive because have in unconstitu- imposed punishment being results Conversely, tional, i.e., they produce “single a result.” from the rules, as those derived noncategorical such Miller—are precedent strand capital-punishment —and a “form because have and effect” procedural they punishment being in always imposed does not result unconstitutional, “single not re- i.e., they produce do a merely require perform The latter court to rules sult.” amended before can be determined analysis new or imposed particu- can be given punishment whether lar defendant. dis- subsequently adopted Justice Harlan’s

Teague rules, in- procedural tinction between substantive when a rule is substantive. cluding the definition of J.). O’Connor, (opinion by 489 US 310-311 Teague, has the United States Teague, Since recognize exceptions proposed that the continued 496 Mich 440 Opinion op the Court Justice Harlan his opinion Mackey adopted were See, Teague. e.g., Minnesota, Danforth 273-275; L (2008); 128 S Ct Ed 2d Penry, 329-330; Schriro, 492 US at see also 542 US at 362 (Breyer, J., dissenting). Teague whether

Although ger- addressed a new rule mane to the trial a stage of criminal case could be applied retroactively, later cases have addressed whether pertaining only new rules to punishments and the sentencing phase are substantive and fit into first the Teague’s exception general of rule nonret- roactivity. so United doing, the States Supreme Court has three provided descriptions of what makes a new rule “substantive” the of a within context new rule the governing sentencing stage of a criminal case. Each these, however, can be boiled down to whether the punishment imposed is one that the state has the to, authority and may constitutionally, impose on an individual within the pertinent class of defendants.

First, a new rule has been described as “substantive” when the rule “prohibit[s] certain category of punish- ment for a class of defendants because of their status or Penry, 330; offense.” Saffle, US at see also at way, 494-495. Put another the is new rule “substan- tive” the punishment when at issue is categorically barred. The requirement that the new rule “categori- cal” in prohibition its direct product of how exception Justice Harlan’s first has been understood. is, That his first exception permits the retroactive application of categorical “substantive guarantees ac- by corded the Constitution, regardless the procedures Penry, 492 at 329 (emphasis added); US see followed.” Saffle, also 494 US at 494.

Second, a new rule has been described as “substan- if tive” it “alters the range conduct or the class of Schriro, atUS punishes.” that the law persons States, 614, 620-621; 118 US Bousley United citing (1998). 2d 828 The dissent contends S 140 L Ed Ct range punish- “expand[s] rule that when new sentencer, rule fits to the within ments” available Post of a new rule as substantive. description second be viewed Although potentially a new rule could 545. to the sen- available altering range punishments makes the rule unavailable previously tencer when sentencer, the United available punishment lesser has a different definition adopted States range” rule “alters the of available when new by bound abide that definition punishments. We are the rule Miller for federal retroactiv- considering when definition, a new rule alters Under ity purposes. punish can when “range of conduct” law persons conduct covered particular “placets] Schriro, 542 power State’s to beyond punish.” statute the added) (citations omitted). In this (emphasis US at 352 the sense, the new the conduct in which rule transforms the and which within engaged, previously defendant was longer into that conduct is no power regulate, state’s of regulation. in the context subject Applied to criminal it must be governing punishment, rules rule, “faces previous that under the the defendant the case [any impose the law more] a cannot punishment sense, light the new Id. In this a new him” rule. upon range” of available only punishments rule “alters the range if the limits of it shifts the upper the sentencer most se- punishments previously so that the downward have sen- vere to which defendants been punishment may no a that the sentencer longer punishment tenced is constitutionally impose.11 argues Although a rule that definition of dissent Schriro’s exclusive,” range punishments post is and not at

alters the “inclusive 496 Mich 440 [July-

Third, a new rule has been described as “substan- when “narrow[s] tive” it of a criminal statute scope by interpreting 351, its terms . ...” Id. at citing Bousley, added). (emphasis 523 US 620-621 third descrip- This tion addresses situations which criminal statute has been previously interpreted applied beyond the scope statute’s intended so that “defendant stands convicted of ‘an act that the law does not make crimi- ” nal.’ US at Bousley, v United quoting Davis States, 333, 346; US 94 S Ct 41 L Ed 2d 109 (1974).12 way, Put another description implicated is court, when a than rather a legislature, has criminal- conduct, ized punishment, authorized or construed a apply statute to it broadly more than is later deemed to (“For See id. at apply. 620-621 under our federal system Congress, courts, not the can which make criminal.”). sense, conduct In this the state cannot constitutionally impose the punishment at issue be- cause new rule determines that no enacted lawfully given statute has state the authority to such impose a punishment. what distinguishing substantive, makes a new rule

the United Supreme States Court has also afforded considerable direction regarding qualities and con- nonsubstantive, tours of or procedural, rules. Simply identify single Supreme 545 n the dissent fails Court decision that “altering range” punishments classifies rule as when the rule requires punishment, the sentencer to consider a lesser does hut not any punishment range punishments may exclude from the Despite decision, considered. no such the dissent would make retroactive type granted of rule that Court has never before Teague’s exception retroactive status general under first to the rule of nonretroactivity. scope application description, Notable to the of this third both Bousley and Davis involved collateral attacks to federal criminal convic which dependent interpretation tions in such attacks were on the law, development federal rather than the of a new constitutional rule. determin- manner only regulate “rules that put, Schr- procedural.” are culpability defendant’s ing rule that alters This is because US at 353. iro, 542 raise[s] “merely determining” culpability “manner of use of the with convicted that someone possibility oth- acquitted been have might procedure invalidated to new understanding Applying 352. Id. at erwise.” a new punishments, sentences governing rules defen- possibility creates the rule procedural but punishment severe received less have dant would a rule is Accordingly, a result. such not necessitate does frame- and under what how it affects when procedural leaves intact but may imposed punishment work to seek the authority legal fundamental the state’s currently on a defendant punishment of the imposition subject punishment. to the States how the United

Turning to between substantive this distinction applied has confronted rules, the Court was in Schriro procedural Arizona, US Ring from the new rule whether with (2002), 2d 556 was 2428; L Ed 122 Ct S Ari- rule invalidated Ring’s procedural. substantive and re- sentencing scheme capital-punishment zona’s make the judge rather than jury that a quired necessary factors aggravating whether determination had been punishment capital imposition for the invali- Ring fact that Despite Id. at 609. proved. scheme authoriz- statutory Arizona’s dated deemed ultimately its rule was ing capital punishment, that it on the basis “procedural” subjected law range conduct Arizona alter the did not range Instead, Ring altered penalty. ... the death determining a defen- whether methods for permissible jury death, requiring that a punishable conduct is dant’s bearing on facts judge find the essential than a rather authority decisionmaking allocate punishment. Rules that 496 MICH 440 Opinion of Court rules, procedural prototypical this fashion are a conclu- [Schriro, sion we have reached in other numerous contexts. 353.] 542 US at similarly Saffle, the deemed a new rule “pro-

cedural” prohibited when would have anti-sympathy to juries instructions the individualized performing sentencing process as a condition to capital imposing punishment. Saffle, so, See 494 US at In doing 486. stated the rule “would neither decriminalize Saffle of conduct prohibit class nor of imposition capital punishment particular on a of persons.” class Id. at 495. It is with Schriro and mind turn that we to the Saffle question of whether rule in is properly Miller viewed as substantive or procedural.

Although the new procedures required by Miller may be more elaborate and detailed than the procedures new at issue in Schriro and the basic Saffle, form effect is the As earlier, same. discussed requires Miller the trial court “follow a certain process” before it can impose a sentence of life without on a parole juvenile homicide Miller, offender. 567 US 132 S Ct at at_; 2471. however, specifically “does not categori- cally penalty bar a for a class of or type offenders of crime[.]” Id. 132 S Ct at at_; 2471.

Considering self-description rule, Miller’s of its it is clear that the rule is not substantive within the terms of the first description substantive, of when rule is i.e., when the rule “prohibits] certain category punish- ment for a class of defendants because of their status or Penry, offense.” Saffle, US at see also at 494. The category punishment implicated by Miller is a sentence “life without parole,”13 class of 13 Carp argue imposed and Davis the sentence on them was a “mandatory” parole. Regardless process by sentence of life without of the parole, however, which a defendant is sentenced to life without the term Opinion the Court of Miller are receiving the benefit defendants they time age of at the are under the who defendants impli- types of offenses offenses, and the commit their for Accordingly, are offenses. homicide cated first “substantive” under be considered Miller to substantive, it must rule is of when a description of life without sentences prohibit who convicted of 18 are age under offenders no such offenses, Miller does clearly homicide in Schriro Instead, as the rules procedural with thing. capital-punishment the from the and rules Saffle, creates Woodson, Lockett, Eddings, Miller cases of received may a defendant have possibility the only employed a had the trial court punishment lesser by Miller. constitutionally required that is new process a of when rule is substantive description The second rule is and Davis a Carp is of no avail to because equally it alters when description only under that substantive to a permitted of state is range punishments impose to by foreclosing ability the state’s impose Schriro, See 542 US serving. defendant is punishment sense, if it acts In this rule is substantive 353. previously punishment to down the most severe ratchet dissent, contrary to a rule Conversely, and possible. if it procedural merely expands considered will be on punishments may imposed of range possible Michigan’s sentencing to Applied the defendant. to consider scheme, Miller now the sentencer requires possibility parole, life with the a sentence of imposing instance, Had, parole. simply serves is life without that the defendant n protections by procedural Carp afforded and Davis received all the sentenced, they prison being in would be the terms would serve before i.e., sentenced, specific The in which defendant is identical. manner sentencing, operation does not alter as a of individualized of law or result length must the defendant rendered or the time actual sentence prison. in remain 496 Mich 440 Opinion of but it does not require sentencer to exclude from consideration a sentence of life without parole. Accord- ingly, punishment Miller does not remove the imposed on from Carp punish- Davis within the range the power ments the state has to impose. Accordingly, the rule Miller again cannot be viewed as substantive under the second United States Court descrip- tion.

The third a rule description when is substantive is altogether to inapplicable Miller. The did decision not any rest on principle statutory interpretation, and it pertain did not situation which life-without- parole sentences were being homi- imposed cide statutory offenders absent clear authority to do so. Just as and Davis were sentenced life without parole in full accordance Michigan’s with statutory sentencing scheme, Miller was sentenced life without parole in full accordance with Alabama’s statutory See Miller, scheme. 567 US 132 S Ct at_; at 2462-2643.

Ultimately, the rule Miller procedural because, with the rule in Ring, it merely shifts “decisionmaking for the authority” imposition of life-without-parole sen- tence on a Schriro, homicide offender.14 Miller, although having “proce The dissent the asserts that rule in implications,” dural is nonetheless substantive because it invalidated “an ” ‘sentencing entire scheme.’ Post at 540. While the is correct dissent Michigan’s sentencing authorizing impo invalidated scheme the life-without-parole sition offender, of a a sentence for homicide Ring sentencing authorizing also invalidated Arizona’s scheme the imposition capital punishment Ring on a homicide As offender. was procedural, deemed it follows the distinction between substantive procedural rules not turn does on whether the new rule invalidates sentencing authorizing punishment. Instead, a scheme a the distinction punishment may turns on whether the is one that the state constitution ally impose any sentencing governing under conceivable scheme the class belongs. to defendants which the defendant decision-making authority Ring shifted at 353. Whereas to the judge from the punishment for imposing capital im- authority for decision-making Miller shifted jury, a juvenile on parole of life without a sentence posing judiciary, the to legislature from the homicide offender requirements.15 sentencing individualized by of its way undoubtedly in Miller is set forth Although process the aas juvenile homicide defendants to more favorable Michigan’s on has no effect class, process the new seek constitutionally lawfully to authority inherent any on life-without-parole of a sentence imposition no homicide offender. Just given juvenile every parole of life without may a sentence impose court individualized consideration conducting an without may categori- on Miller factors, relying no court certain parole a sentence of life without impose refuse to cally operate factors do not if the individualized to a Accordingly, in contrast in a defendant’s favor. con- collateral rule that avoids the adverse substantive result, a by dictating singular retrial sequences of J., (Harlan, concurring in 401 US at 693 Mackey, authority decision-making argues a in The dissent that while shift authority decision-making judge jury procedural, to is from a shift legislature judiciary new because it vests from the to is substantive sentence) (the judiciary. authority Post authority impose in the to a lesser acknowledge Although there a difference between we 544-545. decision-making authority, respective do find the we not these shifts determining or pivotal a new rule is substantive whether difference question procedural. not on at hand is focused This is because authority judiciary’s legislature’s or the executive’s whether the rule, inquires changed new but whether has as a function of the power beyond punishment imposed or the law’s is one that is state’s (defining Schriro, rule when impose. US as substantive at 352 beyond “placets] particular persons the statute conduct or covered punish power punish” the defendant “faces a or means that State’s him”) impose (emphasis [any upon more] that the law cannot ment added). Michigan possessed the Both and after Miller the state before authority constitutionally impose a without sentence of life homicide offender. 496 Mich 440 Opinion of the Court in

judgments part dissenting in part), retroactive application of necessarily this requires adverse consequence. regard, collateral in this the rule Miller in no reasonable can way be said to “represento the instance finality clearest where interests yield.” should added). Id. (emphasis Because Miller continues to per- Michigan mit to impose a life-without-parole sentence (but any juvenile homicide offender only after indi- consideration), vidualized it must necessarily be viewed as procedural rather Therefore, than substantive. we hold that rule in Miller does satisfy not the first exception general to the rule of nonretroactivity Teague.

An additional consideration serves to strengthen conclusion. In its description Miller, the rule in articulation employed by the United States Supreme telling. Court is Teague’s retroactivity analysis distin- guishing substantive and procedural rules is in no sense Rather, new or novel. the proposition that “substantive categorical guarantees” should receive retroactive ap- plication “procedural while noncategorical guarantees” should only receive prospective application predates Teague. See Penry, 492 US at 329. In the face of this reasonably well-defined and distinction, longstanding Miller, describing the rule, nature and scope of its repeatedly employs language typically associated with procedural nonretroactive rules. Although fully recog- nizing Roper and Graham announced “categorical” bars, Miller twice states that its rule does not create “categorical” bar. 132 S Ct at at_; 2469, 2471. Furthermore, Miller, in straightforward terms, speaks of rule its as one that “mandates that a sentencer follow a process[.Y certain Id. at_; added). 132 S Ct at 2471 (emphasis It is hard to view these statements as anything other than expressions of continuity in the Court’s understanding of the law of in a circumstance which retroactivity, particularly Court who were justices Supreme the the four a to least inclined to extend Miller the presumably had dissenting justices who of cases—the range broader absent place in the first rejected the new rule —-were opinion.16 from the majority in an effort to over- arguments three Carp advances qualify Miller does not our that come conclusion First, Teague. argues under he application retroactive that underlie precedent each of the strands While there retroactive status. granted Miller has been argument that cat- force the may be considerable must be in and Graham egorical Roper rules like those cannot be retroactively the same Teague, under applied cases individualized requiring for the strand of said imposed can be sentencing punishment capital before majority the resolves the divides between how One of critical retroactivity question the the same and how dissent resolves of Miller’s the question significance to the words each accords centers on Despite describing in Miller. its Supreme in the rule Court chose use explain why the many thoughtful arguments, unable to the dissent is Supreme Court, genuinely to be intended for rule Miller if it Teague, applied retroactively specifically stated that the rule under “categorically penalty,” at_; a does not bar “noncategorical “categorical versus bar” bar” S Ct at when retroactivity analysis in of the distinction defines the critical element by focusing “categorical” Teague. on versus The contends that dissent analy- distinction, Teague “noncategorical” majority “muddles” However, misapprehends Teague the dissent that sis. Post at 540. is application the rule in Miller is entitled retroactive its conclusion that categorically despite acknowledgement not life- that Miller did bar its juveniles. without-parole nor Id. Neither defendants sentences for Supreme single that has ever Court decision dissent has identified noncategorical application rule is to retroactive entitled concluded general Teague’s exceptions to the rule two under the first of nonretroactivity. Teague this, only does not we can reason that From asserts, categorical merely proposition, that a as the dissent stand for the substantive, proposition is that a rule substantive rule but also for is categorical. it is when 496 MICH440 [July- on Despite an adult offender. considerable effort by including Carp, post-oral-argument supplemental brief- ings, unpersuaded we remain the United States Court, any or even federal court of appeals,17 declared any has the individualized sentencing capital-punishment cases retroactive under Teague. an effort to demonstrate to contrary, Carp principally Sumner, cites which the United States Supreme Court held that individualized was required before capital punishment could be imposed defendant, Shuman, who was serving life-without- parole sentence at the time he committed the capital Sumner, offense. atUS 80-81. correct that rule, Sumner relied on Woodson its creating id. at 70-75, and is also correct that Sumner involved the review a state review, conviction on collateral habeas see However, id. at 68. not all cases presenting them- selves collateral are equivalent review for retroactiv- ity purposes. Some cases on collateral review assert that state courts failed to properly apply constitutional rules in effect before final, the defendant’s conviction became while others seek the application creation of new rule that was not announced before the defendant’s conviction became final.

If, with respect application Woodson, Sum- ner fell category, into latter then might we agree with that Carp Woodson had been applied retroactively. Sumner, as relates to the application of Woodson, however, falls into former category of cases present- ing themselves on collateral review. Woodson was de- 2, 1976, on July cided and Shuman’s conviction did not become final for direct review until purposes May 17, 17 appeal federal Carp We include courts of in our discussion because appeal proposition cites federal courts of for decisions capital-punishment precedent applied retroactively. strand of has been 489 v decided. See 1978, years two after Woodson was nearly (1978). State, 265; 578 P2d 1183 94 Nev Shuman v applied was to the extent that Woodson Accordingly, retroactively to a not Sumner, simply applied it was purposes final for direct review case that had become issued.18 before Woodson was argument flaws in the these Apparently anticipating retroactively, Carp con- applied has been that Woodson applied retroactively has Sumner itself been tends that Thigpen he cites v For this proposition, post-Teague. (CA 1991). We, 1003, 11, how- F2d Thigpen, 926 addressing ever, question read Thigpen do not court be- retroactivity. Although district Sumner's retroactively to invalidate Sumner applied low had sentence, of the district court’s portion Thigpen’s before the ruling never and the issue appealed was Circuit Appeals Court of Eleventh United States whether the district concerning Thigpen’s appeal was See his conviction. id.19 by upholding court had erred applied if had Woodson retroac We note that even Sumner further purposes tively to become final for direct review before a case had qualified announced, not follow that Woodson it still would Woodson was application Teague. under This because Sumner was for retroactive plurality Teague, United in which a of the States decided in 1987 test, retroactivity the current federal was not Court announced reject Carp’s It reason that we 1989. is for same decided until application Songer rule in the retroactive of Lockett’s contention that (CA Brown, 11, 1985), and Wainwright, F2d Dutton (CA any weight regard 10,1987), with whether F2d n 7 carries retroactively applying would have done so under Lockett those courts significance Teague. the can he said retroac The same also about acknowledged Michigan application in of the rule from Furman as tive (1973). 1966; 14; Ed Payne, Ct 36 L 2d 736 US 57 n 93 S court, framing the Eleventh Circuit stated: the issue before Thigpen appeal, raises one issue: whether admis- On in 1972 of another first-

sion evidence that he was convicted degree ... his trial murder and received a death sentence rendered fundamentally the due that he convicted without so unfair was Mich Accordingly, has not succeeded demonstrat- ing any of the individualized sentencing capital- cases, i.e., Furman, punishment Woodson, Lockett, Ed- dings, Sumner, have applied been retroactively under This failure Teague. pivotal given is our earlier conclusion that the rule in Miller is of the same form effect as rules individualized capital-punishment cases.

Second, Carp argues that Miller has added “age” and “incorrigibility” as elements of what be must assessed before a sentence can life-without-parole imposed be juvenile Carp argues offender. that it follows from this that age juvenile and the offender’s incorrigibility are factors that aggravating mandatory raise the minimum sentence that a defendant could under receive Michi- gan’s pre-Miller sentencing scheme they because must now be shown the state before a offender 750.316(1) can be sentenced pursuant to MCL and MCL 791.234(6). Citing Alleyne v States, United 570 US_; 133 S (2013), Ct 186 L Ed 2d Carp notes “any fact that minimum mandatory increases the an ‘element’ that must be submitted to the jury.” he Accordingly, argues that rule in must viewed as substantive applied retroactively when is considered light Alleyne because Miller com- Alleyne bined with substantively alters way Michi- gan law defines and sentences juvenile homicide offend- ers.

Even assuming for the argument sake of that Miller made “age” assessments of and “incorrigibility” neces- sary elements for imposing life-without-parole sen- tence on a offender, homicide argument Carp’s process below, of law. For the reasons set forth affirm we Thigpen’s district court’s conclusion that conviction was constitu- [Thigpen, tional. 1005.] 926 F2d at 491 v op Opinion the Court relies on the argument his fails.20 is because still This itself Alleyne and therefore adopted Alleyne rule new to have application retroactive need to qualify would however, has Carp, case. bearing the instant any on Court, much persuade to even less argue, failed rule entitled to a Alleyne established substantive that being Absent so Teague. under application retroactive a procedural rule in as Alleyne we treat persuaded, Accord- prospective application.21 entitled to rule establishing as Alleyne we to the extent that view ingly, rule, not be Alleyne may procedural a nonretroactive the rule in Miller to transform bootstrapped onto 20 here, unnecessary to Carp’s argument fails find it Because we incorrigibility age to the elements of whether Miller adds address may imposed life-without-parole sentence be must be found before a what repeated offender. We do note Miller’s on a homicide sentencing hearings a could occur before statements individualized “ 2460, 2475, 2470, jury,” Miller, at_; tend judge US S Ct at or 567 132 incorrigibility age aggravating suggest make did not Miller aggravating Alleyne elements that raise elements because under mandatory jury “must to the and found minimum sentence be submitted doubt,” Alleyne, at_; 133 at 2155. beyond US S Ct a reasonable 570 added.) However, Alleyne decided (Emphasis because was after being performed by reference to individualized Miller’s jury” merely might on the but not “judge or instructive issue that his dispositive. defendants before this Court asserts As none of the product jury it was not the determina- is deficient because sentence tion, unnecessary opine further this issue and leave it to we find it sentencing proce- day to the individualized another determine whether by jury light Alleyne. required by performed must be dures multiple Treating procedural Alleyne consistent with how as a rule is Alleyne procedural or issue courts have resolved the of whether federal retroactivity See, e.g., Simpson purposes. v United for federal substantive 2013) (CA7, Alleyne States, 875, (comparing rule from 721 F3d 2348; Jersey, 147 L Ed 2d 435 Apprendi v New 120 S Ct procedural); Evans,_ (2000), has to be United States v which been held 25, 2014, Ark, February Supp 2d_(WD Nos. 1:11-CR-10012 Case F (CA 1:13-CV-1025), Lara-Ruiz, citing F3d States United NC, Septem- 2013); Willoughby Supp 2d_(WD States,_F United 3:99-CR-24-FDW-6). 17, 2013, 3:13-CV-493-FDWand ber Case Nos. MICH 440

latter from a into procedural nonretroactive rule retroactive substantive rule.

Third, Carp companion cites Miller’s case of Jackson v Hobbs evidence that Miller already has been status, accorded retroactive and therefore presumably the exercise been present judicial has rendered unnecessary. offering argument, is correct presented that Jackson itself on collateral review and case was remanded for resentencing pursuant to rule announced Miller. US at_; S132 Ct at 2475. Accordingly, Carp also argument He his from case. draws tively Jackson’s Supreme Court wherein the United States Teague, stated; given simply a new rule in a can refuse to announce We retroactively applied to the unless the rule would be case similarly and to all others situ- defendant the case only approach a sound one. ated. ... We think this is Not rendering advisory opin- any problems it of does eliminate ions, inequity resulting from uneven the the also avoids similarly situated defendants. application of new rules that, retroactivity ap- implicit in the therefore hold We 22 Jackson, Tellingly, regard prosecutor’s we to the intentions in with prosecutor of conceded the defense note that remand the further on retroactivity, entitled to the but on the basis “that Jackson is did so Supreme opinion in own case.” [States] the Court’s his of United benefit (2013) (emphasis p 6; Norris, 906 Ark 426 SW3d Jackson v See added). MICH today,

proach adopt principle we corpus is the that habeas be cannot used as a vehicle to create new constitutional procedure of rules criminal those would unless rules be retroactively applied to all defendants on collateral re- J.) [Teague, (opinion O’Connor, by view .... 489 US at 316 (all added).] emphasis last but As evidenced by very the quotation which Carp relies, the of the application “principles of even-handed justice” only become relevant the when United States Supreme Court actually has undertaken a retroactivity analysis in the announcing course of rule. new If no analysis such necessary because the posture the case, here, the will obviously not have the occasion to consider whether new can rule applied to all retroactively defendants who are situated similarly to the defendant before Court.23 Under circumstances, those the idiosyncrasies, strategies, or policies and practices single of a prosecutor, among 3,000 more than throughout the country, cannot possi- bly be allowed under our system federalism to (and determine justice” what “even-handed requires command) what the law does or does not prosecu- all every jurisdiction tors in throughout country.24 similarly acknowledges The dissent appli that the Court’s cation of the rule in Miller Jackson is “inconclusive” about whether applied retroactively the rule should be and that the relief Jackson application received does not any mandate the retroactive of Miller to other Post at case. 535 n 31. 24Although any way by any defendants, issue was not raised in of the argues Virginia, 304; dissent that Miller is similar to Atkins v (2002), 122 S Ct 153 L Ed 2d because “considerable discretion” is rules, left to states applied both so that where Atkins been has retroactively, so too should Miller. Post at 547-549. While dissent is not suggest incorrect to Atkins allow both some discretion to the states, greater precision. it fails to examine this issue with Atkins held that Eighth imposition capital punishment Amendment bars the on a “mentally Atkins, Atkins, however, retarded offender.” at 321. US left it to the discretion of the states establish criteria for a whether defendant a new Miller established Having concluded pen- a bar “categorically does not rule that procedural follow that a sentencer “only requires instead alty,” but Ct at 132 S Miller, US at_; process,” a certain of support arguments having rejected Miller, hold that we application the retroactive in that case decision Court’s United States Teague. under application retroactive require does not Miller turn to whether we now holding, of this light Michigan’s under application retroactive is entitled to retroactivity. test separate RETROACTIVITY

C. STATE of criminal a new rule apply must Although states rule satisfies when the new retroactively procedure Accordingly, left to “mentally the discretion qualifies Id. at 317. retarded.” applies defendants by pertains Atkins and which to when the states Atkins by governed a defendant Atkins. Once the universe defendants fall within retarded, however, mentally ceases and the state’s discretion is deemed to be constitutionally prohibited single compels that the state is result Atkins Miller, by capital punishment defendant. Under imposing on the from hearings sentencing contrast, juveniles individualized all are entitled to when, accordingly and to which no discretion to determine the state has only Instead, discretionary defendants, oí Miller applies. element selecting a after it has been play in a sentence for defendant comes into being juvenile determined, per virtue of that the defendant is regard, age In this the rules the time of the offense. under the of 18 at different forms and and Miller have both different announced in Atkins is, categorical rule in that after a state the form of a That Atkins has effects. retarded,” applies “mentally it to bar a defendant is has determined that defendant, Miller has the imposition capital punishment while requires noncategorical individualized rule in that form of may imposed life-without-parole on a homicide sentence before a Further, imposition expressly of that sentence. not bar the offender but does invalidating single always produce result the effect of Atkins wifi every falls within the rule because capital defendant who sentence necessarily “mentally retarded,” will the effect of Miller while defendant is offenders, variety imposition different of sentences for result in the any given receive a sentence creating potential will parole. life without other than 496 496 Mich 440

Opinion of the Court Teague’s to the rule of exceptions general nonretroac- tivity, they are to broader permitted “give retroactive effect” required by to a new rule than is Teague. Danforth, at sense, 552 US 288-289. In this Teague provides a floor for when a new of criminal proce- rule dure must with applied retroactively, be a state none- theless adopt free to its own broader test for requiring application retroactive federal new or state constitutional See id. at rule. 289-290.

Michigan adopted has its own test for separate when a new rule of criminal procedure should be applied Maxson, retroactively. See 482 Mich 392-393. Michi- gan’s retroactivity test for originally was derived from federal pre-Teague test set forth Linkletter v Walker, 618; 1731; 381 US 85 S Ct 14 L Ed 2d 601 (1965). v See Mich People Hampton, 674; (1971). NW2d 404

Despite Michigan’s having its adopted own retroac- tivity may give test that broader retroactive effect to some test, new rules than mandated the Teague Michigan nonetheless still the general adheres to prin- ciple nonretroactivity for new rules of criminal pro- result, cedure.25 As a “Michigan law has regularly 25 Contrary Carp’s assertions, consistently to and Davis’s with the general principle nonretroactivity, this Court does not adhere Smith, doctrine People that an ab unconstitutional statute is void initio. v (1979). 418, 432-433; doctrine, 405 Mich rejecting 275 NW2d 466 Smith, Kurtzman, this Court in 405 Mich at cited Lemon 411 US 192; 1463; which, (1973), retroactivity 93 S Ct L Ed 2d for federal purposes, departed from the view that an unconstitutional statute ais nullity quoted Drainage ah initio. Smith also Chicot Co Dist v Baxter Bank, 371; (1940), State 60 S Ct Ed 84 L for the proposition always nullify past that a constitutional new rule does not application of the rule when old the old rule was understood to have “ applied: conformed with the Constitution at the time it was ‘The actual statute, determination, prior existence operative to such a is an fact may consequences ignored. justly have past which cannot The criminal procedure new rules of apply declined has become in which a defendant’s conviction cases several Maxson, (citing 482 Mich at 392-393 final.” that this procedure of new rules of criminal examples under its version retroactively declined to apply test). Michigan’s predisposition of the Linkletter With of new rules of application the retroactive against in mind —in that firmly criminal procedure will be extraordinary procedure new rule of criminal test when retro- retroactively Michigan’s under applied Teague mandated under activity already is not —we whether the rule Miller satisfies proceed to evaluate this state test. of three retroactivity test for consists

Michigan’s factors: (2) “(1) rule[]; general purpose of the new (3) rule[;] and the effect of retroactive

reliance on the old jus- the administration of application of the new rule on Sexton, [Maxson, 393, quoting 458 Mich tice.” 482 Mich at (second 60-61, Hampton, alter- citing 384 Mich at 674 at original).] ation in factor, factor, the assesses the nature purpose

The first rule and the effect the rule is and focus of the new justice. See implementation to on the designed have 363, 366-367; 803 410 Mich 301 NW2d People Young, (1981). factor, rule “con- Under this first when a new innocence, or retroac- guilt cerns the ascertainment 367, at may citing Id. application appropriate.” tive added). Conversely, Mich 669 Hampton, (emphasis or innocence is not guilt the ascertainment “[w]hen because stake, possible” at prospective application by effectuated prospec- “the of the rule can be purposes 530, Markham, Mich application.” People tive ” Smith, judicial always Mich declaration.’ cannot be erased new Co, Chicot quoting at 374. 308 US [July- 496 MICH (1976). 535; 245 NW2d Consistent with this stan- dard for when a rule should be applied only prospec- tively, “a new rule of procedure . . . which does not affect the integrity fact-finding of the process should be given [only] prospective Young, effect.” 410 Mich at 367. contends that although not his impheating guilt innocence, nonetheless, to the goes “integrity of the fact-finding process” because is essential to evalu ating defendant’s level of culpability imposing when sentence. In support contention, of this he cites McCon nell v Rhay, 2, 3-4; 89 S Ct 21 L (1968), Ed 2d 2 Linkletter, which pursuant the United States Su preme retroactively applied a new rule of criminal procedure despite the new rule’s being relevant the sentencing phase.26 Carp correctly observes, As Mc Connell, in effecting its proretroactivity holding, stated that “the right being asserted relates to ‘the very ” of the integrity fact-finding process.’ Id. at quoting Linkletter, 381 US at 639. considerations, however,

Two leave us unpersuaded this remark necessitates conclusion that first factor of Michigan’s test favors the retroactive application First, of Miller. the new rule applied retro- actively in McConnell right counsel, addressed the right unique with significance both within the context of the criminal proceeding27 and within the context of 26 The new rule made Mempa retroactive McConnell was set forth in Rhay, 128; 254; (1967), 389 US 88 S L Ct 19 Ed 2d 336 and held that the counsel, right including appointment Sixth Amendment to the of counsel indigent defendants, sentencing phase for extended to the of a criminal McConnell, trial. 393 US at 2-3. 27 right The right Sixth Amendment to counsel has been described as a “necessary rights liberty” to insure fundamental human of life and with stand[ing] “[t]he Sixth Amendment as a constant admonition that if the safeguards provides lost, justice constitutional will not ‘still be ” Zerbst, 458, 462; 1019; done.’ Johnson v 304 US 58 S Ct 82 L Ed 1461 Carp 2014] 499 Opinion the Court retroactivity juris- the United States Court’s Supreme extraordinary footing of the prudence.28 Given counsel, right to we read McConnell’s statement ‘the right being very integrity “the asserted relates to ” fact-finding concerning specifically the the process’ right may to counsel rather than all new rules that sentencing. the at For this expand fact-finding process reason, we do not understand McConnell as necessitat- that, under the ing retroactivity purposes the view for test, Linkletter implicating fact-finding pro- rules placed equal footing cess at must be with or implicating fact-finding process guilt rules innocence.

Second, if supported expansive even McConnell it, contrary view that attributes to that view is to its of the Michigan application how law describes own every Linkletter test. In case to date in which this Court test, retroactivity “integrity has the state applied fact-finding always has been referred to process” determining “guilt the context of a defendant’s Maxson, 393-394; Sexton, Mich at innocence.” 62; Mich at 410 Mich at 367. To the extent that Young, may “fact-finding process” McConnell have viewed 325; 149; (1938), citing Connecticut, L Palko v 58 S Ct 82 Ed (1937). Gideon, right 372 US at the Sixth Amendment trials,” counsel was described as “fundamental and essential to fair such indigent facing felony charges criminal defendants are entitled to appointment of counsel. noted, extending right As McConnell rules “a criminal defendant’s (1963) trial, ; Wainwright, counsel at Gideon v. 372 U. S. 335 certain Alabama, 157; arraignments, [82 v. 368 U. S Ct 7 L Ed 2d Hamilton S. (1961) ; appeal, California, Douglas [83 114] and on v. 372 U. S. 353 S Ct (1963), applied retroactively.” L 2d all Ed have been McConnell, fact, right uniquely 393 US at 3. In to counsel is such a right [the United fundamental that Gideon remains “the case qualifying has] [watershed States identified as under the nonretroactivity procedure exception Teague].” rule of criminal from Whorton, 549 US at 419. 496 Mich 440 Opinion op the Court sentencing, continuing throughout respectfully we expansive and decline to such an view for disagree adopt purposes separate independent of our test for retroactivity. understanding It reflects an of retroactiv- to the United ity longer by that is no subscribed States and an to Supreme understanding Court which this There utterly obliga- Court has never subscribed. is no part tion on our to forever maintain Linkletter test every past understanding accordance with federal defunct federal purposes when test is now Court, although initially relying this on Linkletter to formulate our state for retroactivity, test has added its Instead, that interpretations general own test. principle nonretroactivity for new rules of criminal procedure, Michigan to which adheres and which in- retroactivity analysis, forms this state’s is properly served, in judgment, by applying retroactively only our those new rules of that procedure implicate guilt or innocence of a defendant. acknowledge We there are circumstances in which our state test some- may apply retroactively times a new rule circumstances Teague which would not are not apply, prepared but we to extend our test the federal beyond degree test to the urged us upon by Carp.

In declining expand of the first factor scope Michigan’s state for retroactivity, again test we note although our Linkletter, state test is derived from nothing requires this Court to each and adopt every articulation of that longer test —one that is no adhered the United States itself. Our state test for retroactivity supplemental to the current federal test forth in Teague, set and it is separate of the former independent federal test set forth in Linkletter. See US at Danforth, Teague 289. As the test the Linkletter replaced test for federal purposes, doubtlessly contracting the universe of new constitu- Caep op Opinion the Court be applied retroactively,29 tional rules that will it should unsurprising grant Court would decline to a new rule procedure retroactive status to of criminal affecting only the a criminal sentencing phase of case such a of test permutation when the defunct has never before been so this state.30 applied From our the holding that first of our state factor test retroactivity for focuses on whether new rule of procedure implicates innocence, defendant’s or guilt it apparent first factor clearly against the militates the retroactive of As application Miller. Miller alters the process by which a court must determine a defendant’s level of moral for culpability purposes of it sentencing, bearing has no on the legal defendant’s for culpability the offense of which the defendant has duly been convicted. 29 Sawyer Smith, 227, 257-258; 2822; See US 110 S Ct 111 L Ed (1990) (“The (Marshall, J., dissenting) 2d 193 Court’s refusal to allow Sawyer 320; Mississippi, [v the 2633; benefit of Caldwell 472 US 105 S Ct (1985)] Teague 86 L Ed 2d 231 reveals the extent to which and its progeny unjustifiably application accuracy- the limit retroactive of enhancing Teague, retroactivity criminal jurispru rules. Prior to our always recognized dence primarily a difference between rules aimed deterring police designed promote accuracy those conduct and the of proceedings.”). criminal recognize prosecutor Attorney ^e that the in Davis and the General as an intervenor in assert that both this Court abandon should Michi gan’s separate retroactivity adopt Teague test for and as our state test. We recognize applying further the anomalousness of this Court new federal retroactively pursuant expansive rules to a standard that is more than that Supreme applied by which United States Court be has directed federal applies Michigan’s courts themselves. This anomalousness —at least as it application heightened when, retroactive of new rules—is further as federal (a) case, in the instant the federal rule contradicts the laws of our state as Legislature people enacted in accordance will of the with the (b)

Michigan has, Supreme purposes Court of federal court application, specificallyrejected retroactivity adopted by Michigan. test Teague, having point See 489 US 288. This issue not the focal been briefing argument, or not we do address it this case. further in 496 Mich Opinion state the first light then of our conclusion applica- clearly against retroactive

factor counsels relevant to address find it here tion of we and the three factors of the test between the interplay each we determine before weight given that must be third on Miller’s factors the effect the second multiple That a test application. consists retroactive weight must signify equal does not logically factors Court, States to each. The United given the Teague test before adopted the Linkletter applying factors “have test, observed that the second third ‘only having significance regarded controlling been clearly did not question of the rule purpose when ” Michigan retroactivity prospectivity.’ favor either 55; 1966; L Ed 2d 736 93 S Ct Payne, 244, 251; (1973), States, US quoting Desist v United (1969). Deductively 22 Ed 2d 248 from 89 S Ct L statement, three control if of the factors this two retroac- “clearly the first factor does not favor” when factor or it follows that the first tivity prospectivity, than either of the other weight must be afforded more “clearly factor favor” two factors when the first does by, We retroactivity persuaded are prospectivity. to, Payne’s understanding regard- and Desist’s adhere factor heightened weight the to be afforded the first ing one side other of the strongly supports when or the retroactivity question. fully such on the factor is

Placing emphasis an first longstanding practice consistent with this Court’s third dealing “together.” with the second and factors 367; Hampton, 410 Mich Mich at 677. In Young, at sense, generally the and third factors will second result favors or produce tend to a unified that either of the subject This is retroactivity. disfavors because rule) “will (general second factor reliance the old subject have a effect on” the of the third profound often Caep Opinion (administration factor of justice), given greater that the by the reliance prosecutors this state on rule pursuing justice, the more burdensome it generally will the judiciary be for to undo the of that administration Sexton, 63-64; rule. Mich see also Hampton, Mich at In light 677-678. of the afforded weight the first factor when it clearly preponderates against retroactive application, our unified consideration of the second and third factors would need to favor retroactive to a application degree substantial in order for Miller to satisfy the requirements for retroactive application under our state test.

Turning to the inquiry required to evaluate the second and third factors “together,” second factor —the reli- ance on the old rule —must be considered from both perspective prosecutors across state when pros- ecutors faithfully by abided guaran- constitutional tees in at the time place conviction, of a defendant’s see Illinois, Adams v 283-284; 916; 405 US 92 S Ct L (1972), Ed 2d 202 and Johnson v New Jersey, 384 US 719, 731; 1772; 86 S Ct L (1996), 16 Ed 2d 882 as well as from the collective perspective of the 334 defendants who would be entitled to resentencing if the rule new were applied retroactively, seeMaxson, 482 Mich at 394. Inherent question by reliance prosecutors across the state is the extent to which the old rule received constitutional approval judiciary from the be- adoption fore the of the new rule. See Tehan v United Shott, States ex rel 406, 417; 86 S L Ct (1966). Ed 2d 453 When the old rule is merely the result “negative of a implication” drawn prosecutors, prosecutors’ good-faith reliance on the old rule is at its Louisiana, most minimal. 323, 335; Brown v (1980) 100 S Ct L65 Ed 2d 159 (opinion by J.). Brennan, Similarly, when the old rule was of “doubt- ful constitutionality,” ability of prosecutors across 496 Mich 440 Opinion op the Court in good on the old rule faith is rely

the state to the old rule has been Conversely, Id. when diminished. constitu- passing the courts specifically approved muster, strongest argu- their prosecutors tional have faith. good ment relied on the old rule having Moreover, Tehan, prosecutors US at 417. when for a faith on the old rule and did so good relied time, more reliance can be viewed as lengthier period and the second factor will tend to counsel significant Id. As for defendants’ against application. retroactive rule, not they reliance on the old must demonstrate they by taking relied on the old rule or not action, taking specific they “detrimentally but that Maxson, relied on the old rule.” 482 Mich at 394 added). (emphasis inquiry significantly any

The into reliance will affect into the burden on the administration of inquiry placed have relied on the old justice prosecutors because when rule, few, taken if they presumably any, steps have the new rule. The the extent of comply greater with reliance, greater their and the the extent to which the rule, new rule constitutes a from the old departure prosecutors more burdensome it becomes for to take the rule. steps necessary comply Similarly, with new greater departure, the extent of the the more attempt difficult it becomes for courts to look back and to reconstruct what outcome would have resulted had governed given the new rule at the time a defendant A burden is on the placed was sentenced. administra- justice tion of in the form of expense time rule. judiciary retroactively accommodating new likely Far more a new rule is to be importantly, when apply retroactively, placed difficult to a burden is on the justice in the form of compromising administration accuracy with which the new rule can be applied may regarding and the confidence the have public Opinion Court in the new in situations which judicial determinations many years that became final rule is to cases applied even decades earlier. evaluating the sec- these considerations

Applying Miller, it that these apparent and third factors to ond applica- favor the retroactive sufficiently factors do not clear to overcome the first factor’s tion of so as The old against application. direction its retroactive sentences on permitting life-without-parole rule scheme established pre-Miller basis of approval received in 1996 the Legislature specific judiciary. Launsburry, our constitutionality by of its Further, Mich in United States App nothing 363-365. life- Supreme any question Court caselaw called into any juvenile sentences offenders without-parole until Graham was decided in and even then juve- Graham was limited in its breadth to specifically Graham, niles who committed nonhomicide offenses.31 Indeed, 560 US at 82. before United Roper States held that it precedent specifically was constitutional impose capital punishment juveniles over the age of 16 convicted of homicide 361, 380; Kentucky, offenses. 109 S Stanford (1989). L Ct 106 Ed 2d 306 at the Accordingly, prosecutors time across Michigan sought life-without- parole sentences for 302 of the 334 defendants who gain resentencing would if Miller were hearing ap- 31 Interestingly, we note that of the would none 334 defendants who resentencing retroactively applied receive under Miller if it were to cases that had become final Miller was was sentenced after before issued Therefore, might argued whatever Graham was decided. extent he that Graham of the old rule weakened constitutional foundation offenders, permitting life-without-parole juvenile homicide sentences for argument application is of little relevance to the retroactive of Miller regarding any juvenile currently serving life-without-parole defendants Michigan. sentences in Mich 440 retroactively, Eighth Amendment of the

plied affirmatively United Constitution under- States was merely stood as of not life permitting imposition imposition capital pun- without but also the juvenile first-degree-murder ishment on offenders.32 law, On the basis of this state of the across prosecutors Michigan entirely good faith relied on the old rule they whenever sought hfe-without-parole sentences for juvenile homicide offenders. Considering the constitu- approval judi- tional the old rule received from both our ciary Court, and the United States Supreme as well as the length of time which the during prevailed dating old rule — founding back to our state’s in 1837—the reliance on the by Michigan old rule was and prosecutors significant justified.33

Conversely, we note that this is not situation in fairly that, which it can be said group, as a the 334 respect post-Roper, Even with to the defendants sentenced there prosecutors any was no cause for to believe that the decision had significant bearing ability, people Michigan, their on on behalf of the to constitutionally brought seek a sentence of life without or question Launsburry upholding imposition into the decision in life-without-parole sentences. 33Although analysis exclusively Maxson’s of the second factor focused detrimentally on whether the defendants in that case had relied on the considering prosecutors old rule without the extent to which had detri mentally rule, approach analyzing relied on the old Maxson’s to approach today. second factor is not inconsistent with the we use When entities, concluding there are two relevant that one of these entities has detrimentally may or has not relied on the old rule be sufficient to reach concerning retroactivity. a conclusion the effect of the second factor on In Maxson, it was clear that the defendants’ detrimental reliance on old insignificant unnecessary rule was so it was to consider the extent to prosecutors which had relied on the rule old at issue in that case. Although largely the inverse is true here in that the detrimental reliance prosecutors considerable, interests of across this state are we have Carp’s reviewed what is asserted to be and Davis’s detrimental reliance again, merely on the old rule and see none. Once to act accord with the old rule is not tantamount to detrimental reliance. Carp Opinion the Court if the resentencing to entitled who would be defendants “relied” have retroactively applied in Miller were rule find it First, we to “detriment.” rule their the old themselves understand, and Davis to difficult the 334 adverse action identify, exactly what fail to take, in “reli- not to taken, opted have defendants recognize (except perhaps the old rule ance” on this then extant law of the old rule as the by abide state).34 having merely in the sense “reliance,” If such law, extant is viewed with the then comply similarly identify struggles that would what action The dissent taken or taken in “detrimen the 334 defendants was not have benefited First, that trial courts tal the old rule. the dissent asserts reliance” on sentencing hearings, engaged the old but for have individualized would defendant, courts, This, however, is an action that not rule. Post at 552. taken, nothing essentially asserts more than that would have Second, argues defendants relied the rules. the dissent has altered life-without-parole seeking appellate not review of their on the old rule compares making argument, dissent at 552. this sentences. Post Maxson, suggested this Court that a defendant’s case to which pursue appeal an action that not to an could constitute decision Maxson, opted 482 Mich not to in reliance on the old rule. defendant take However, addressing retroactivity Halbert Maxson was 394-395. 2582; (2005), Michigan, L Ed “which US Ct 2d 552 125 S indigent plead guilty are offenses held that defendants who to criminal Maxson, appellate appointed appeal.” counsel on direct entitled to analyzed Maxson, indigent Accordingly, in that Mich at 387. the old rule pleaded guilty to to criminal offenses were not entitled defendants who appeal, impedi appellate appointed direct served as a direct counsel on guilty. ability appeal pleading In file an ment to a defendant’s to after cases, constitutionality pr imposing of life-without- these e-Miller juvenile mandatory operation offenders sentences on homicide appeal nothing ability to a defendant’s to file an law did hinder sentencing personal Michigan’s challenging scheme or its then extant Furthermore, Michigan specifically upheld application. caselaw had Launsburry, scheme, constitutionality pr e-Miller our appellate App defendants’ to seek it is unclear how failures 217 Mich obviously that proved the dissent is correct review detrimental. While they are not the old rule to the extent interests were favored under their “detrimentally rule, having equivalent new is not the under the rule. relied” on the old 496 Mich 440

sufficiently “detrimental” satisfy the second state retroactivity factor, then it would always almost be the case that factor weigh this would in heavily favor of retroactivity, since it must be assumed that criminal defendants, or at counsel, least their would almost always rely on in existing formulating law their trial appellate strategies. There is nothing “detrimen- tal” about that reliance except that the law is not as hospitable to the interests of such defendants as they might like it to be. That might law have been destined to become more hospitable the future is of little relevance since it is only because of that develop- ment that the issue of has retroactivity arisen in the place. first

Second, even to the extent any defendants can said have taken foregone some action to their detriment in reliance rule, on the old they still can only be said to have “detrimentally” relied on the old rule if they can establish that they would have obtained a result more favorable to them under the new rule. Maxson, 482 Mich at sense, 394-396. defendants “ can only be said to have ‘detrimentally relied’ on the old rule” if they actual harm from [their] “suffered reliance . . . .” Id. However, at 396. a majority of the 334 defendants who would receive resentencing hearings if rule Miller were applied retroactively were be- tween 17 and years age when they committed their homicide offenses. Because Miller requires a sen- tencing give court to specific consideration to age and the mental development of a juvenile offender before imposing a sentence of life parole, without when a juvenile most closely approaches age majority the time juvenile commits a offense, homicide would seem likely least counsel favor of sentencing with special leniency, given that in only as few as several months would be ineligible Opinion op the Court sense, it is at speculative In this leniency at all.35 any Michigan’s juvenile majority a to presume best sentences would life-without-parole serving offenders they if sentence in the form of a lesser relief gain retro- to the resentencing hearing pursuant received a defen- Accordingly, juvenile of Miller. active application any to demonstrate with class, are unable dants, as a detrimentally they test that under the state certainty outweigh an extent as to the old rule to such relied on reliance on the old rule. the state’s prosecutors defendants and As between relied that the latter have state, further apparent it is good in rule, old have done so heavily on the far more on behalf “detrimentally” relied faith, and would have In retroactively. applied Miller to be people of the were rule, did not prosecutors the old relying in particular, time any cause at the have purpose for the age receive resen focusing the defendants who would In on the age retroactively, suggest applied nowhere tencing we if Miller were imposing trial court should consider factor that the is the exclusive offender, agree with the dissent homicide and we sentence on a sentencing. Compare approach to calls for a “multifaceted” that Miller However, light opinion post of the other page 553 n 88. 466 of this with consider, apparent it seems Miller instructs a trial court factors that relatively weigh juvenile’s age at the time of the offense will that a cases, juvenile’s age sentencing hearings. will heavily most development reasonably correspond emotional to his or her mental and family life. ability and home to overcome a difficult as well as the years age Additionally, juvenile approaches at the time of the offense, may during proceedings to the related even turn 18 youth” “incompetencies offense, with will associated it follows that the ability juvenile’s increasingly of an effect on come to have less assist, attorneys legal with, in their his or her communicate and to Accordingly, age factor to be preparations. is no means while age pursuant imposing an offender’s a sentence considered significant weight likely given in the court’s deliberations to be ascertaining may single whether best factor for well constitute the applied actually gain if Miller were relief offender would Miller-benefited retroactively. 496 Mich 440 Opinion op the Court

to investigate or present evidence concerning aggra- vating or mitigating factors required now to be consid- by ered If Miller. Miller were to be applied retroactively,

prosecutors would be abruptly required to bear the considerable expense having to investigate the na- ture of the offense and the character of the 334 juvenile subject offenders to Miller’s retroactive application. task, This if newly thrust upon prosecutors, would be all the more burdensome and complicated because a majority of the 334 defendants were sentenced more than years ago and another 25% were sentenced between years 15 and 20 ago. And in many, most, if not instances, of those the prosecutor who initially tried the case likely would no longer be available for a resentenc- ing is, hearing. That Miller makes many things relevant

to the sentencing process that were simply not relevant at the time of the initial sentencing, and these things would have to be reconstructed, almost impossibly so in cases, some after many years, in order to sustain a criminal sentence that was viewed at the time as the culmination of a full and fair process by justice which was obtained in cases of first-degree murder. There would be financial, considerable logistical, and practical placed barriers on prosecutors to re-create or relocate evidence that had previously been viewed as irrelevant and unnecessary. process This not, would in our judg- ment, further the achievement justice under the law because it would require in many instances that impossible done, and if it be, could not a heavy cost would be by incurred society in the form of the prema- ture release of large numbers of persons who will not have fully paid their legal debt society, many of whom aas result might well continue to pose a physical threat in particular living individuals in our most vulner- able neighborhoods. Caep Opinion the Court defen- to determine trial courts requires the defendant the murder culpability moral

dant’s character the defendant’s examining by has committed Even time at the development and mental offense. by be obtained could somehow evidence myriad if the to believe is fanciful prosecutor, of the required then determination backward-looking accuracy with sufficient could be undertaken trial court had the crime after many years so and trustworthiness and the defendant committed, completed, the trial been no might prosecutor as the Further, just sentenced. interest, people’s represent be available longer confi- are not sentencing judge. We might neither resentencing process achieved justice that the dent and original trial after many years taking place of the homi- after the victims years sentencing many— footnotes to than historical little more cide have become over presided families —and immediate all but their judge like the entirely be situated can never judge who trial, effectively replicate can over presided who Instead, we sentencing. at the initial achieved justice back ability to travel the trial court’s believe that mental state of some defendant’s time to assess a may not even have of which earlier —evidence years recollec- limited; that the at the time —is gathered been mitigating and aggravating about tion of memories not even may again of which circumstances —evidence time —is questionable; at the gathered have been integrity in the result, confidence that, public as a understandably will accuracy proceedings of those low. third reasons, find that second we

For these applica- the retroactive sufficiently favor factors do not counsel- the first factor to overcome of Miller so as tion of Miller. As application retroactive ing against 496 Mich 440 result of this analysis, Miller is not entitled to retroac- application tive under Michigan’s test for retroactivity.

D. CONSTITUTIONAL ISSUES Defendants raise series of constitutional challenges arguing that the Eighth Amendment of the United States Constitution or 1, § Const art both, categorically the imposition bars of a life-without- parole sentence on a homicide offender. We consider each challenge in turn.

1. FEDERAL CATEGORICAL BAR Defendants assert that the Eighth Amendment of the United States Constitution36 categorically bars the im- position aof sentence of life without parole on any offender, homicide regardless of whether the “individualization” of sentencing performed is before that sentence imposed. The effect of the categorical rule sought by defendants would not only mandate resentencing for all juvenile defendants sentenced to life without under the pre-Miller sentencing scheme, but would also invalidate those portions of MCL 769.25 allowing the state to impose life-without- parole sentence on particular juveniles an following individualized sentencing hearing in accordance with 769.25(2) (7). Miller. See MCL through Defendants ask this Court to read the United States Supreme Court’s rulings in Roper, Graham, and Miller as necessarily foreshadowing the conclusion that the Eighth Amend- ment categorically bars life-without-parole sentences Eighth The Amendment of the United States Constitution reads: required, Excessive hail shall not be nor excessive im- fines posed, punishments nor cruel and Const, unusual [US inflicted.

Am VIII.] Caep Opinion op the Court However, limited nature the offenders. juvenile for all neces- not, judgment, in our rulings does each of these Moreover, proportionality- that conclusion. sitate the United States employed by review Graham, and Miller in Roper, the rules fashioning in sought rule categorical support also does not defendants. in was earlier, holding Roper specifically

As noted “Eighth capital punishment limited to of the death imposition forbid Fourteenth Amendments of 18 when age who were under on offenders penalty 543 US at 578. Roper, committed.” their crimes were “likened” to only was capital punishment Given that offender, Miller, 567 juvenile for a parole life without 2463-2464, than deemed 132 Ct at rather US S at_; offender, juvenile parole to life without for equivalent with Graham Roper conjunction neither nor Roper Eighth that the Amend- any way and Miller suggests ability to invalidating ment must be read as state’s juvenile on a life-without-parole sentence impose Likewise, holding was homicide offender. Graham’s bar categorically limited so as to specifically imposition life-without-parole sentences Graham, of nonhomicide offenses. offenders convicted compel also does not Accordingly, 560 US at 79. Graham a sentence ability impose the invalidation of a state’s offender. on a homicide of life without limited Miller, specifically its rule is Turning lastly very categorical rule against in that it counsels earlier, Miller re- sought by defendants. As discussed occur sentencing hearing individualized quires that an bemay imposed, sentence life-without-parole before bar a categorically penalty” “does not expressly but a life- ability” impose “foreclose sentencer’s US 132 S Ct sentence. without-parole at_; 496 Mich 440 Opinion op the Court 2469, 2471. proposed categorical Defendants’ rule would therefore Eighth read the Amendment as cat- egorically barring precisely very punishment and, Miller declined to categorically bar in so doing, asserted not categorically was barred by Eighth Amendment. alternatively that,

Defendants contend in light of the manner in legislatures which state by reacted to Miller adjusting sentencing governing juvenile schemes homi- offenders, now, cide pursuant to the proportionality Graham, review employed Roper, cruel punishment unusual impose a life-without- parole sentence on a juvenile homicide offender. Within the context of Eighth Amendment, the United States Supreme Court has used a multipart test determine if a punishment imposed on a of- fender is disproportionate: begin by A court comparing gravity must of the severity

offense and the of the “[I]n sentence. the rare case comparison [this] which threshold ... leads an infer gross ence disproportionality” the court should then compare the defendant’s sentence with the sentences re by ceived jurisdiction other offenders in the same and with imposed the sentences juris for the same crime in other comparative analysis dictions. If this “validate[s] an initial judgment grossly [the] disproportionate,” sentence is [Graham, the sentence is cruel and unusual. atUS quoting Harmelin, (Kennedy, J., 501 US at 1005 concurring part).] Starting with the preliminary question whether “the gravity of the offense” is commensurate with “the severity sentence,” of the Graham, 560 US at we note that first-degree murder is almost certainly the gravest and most serious offense that an individual can commit under the laws of Michigan premeditated —the of an taking innocent is, human life. It therefore, Opinion op the Court state, through people unsurprising the most to impose have chosen would Legislature, Michigan the laws of by authorized punishment severe the individualized Although offense. for this (and necessary by now required process 769.25) indi- may perhaps MCL to Miller response moral culpa- lack the offenders juvenile cate that some a life-without- to warrant mental faculties bility and premises to the pursuant sentence parole drawn, they as are contrary conclusions when the of life cases, a sentence some will presumably not “lead[] murder will first-degree for parole without Accord- Id. disproportionality.” of gross to an inference that have failed to demonstrate defendants ingly, satisfy sentence will life-without-parole of a imposition Court’s test the United States the first part of this federal test part As the first for proportionality. finding punish- for requirement a necessary challenge facial defendants’ “disproportionate,” ment is demonstrate unable to they consequently are fails categorically bars Amendment Eighth juvenile sentence life-without-parole of a imposition offenders. homicide the first of the part if had satisfied

Even defendants however, they have for disproportionality, federal test test, of the which satisfy part failed to the second also defendants life-without-parole sentence compares the other received “with the sentences seek to invalidate and with the sen- jurisdiction same offenders jurisdic- crime in other for the same imposed tences the state for other offenders within tions.” Id. As that life with- are correct to note defendants Michigan, imposed by punishment most severe is the out however, not alone, persuade does This fact this state. sentence on life-without-parole imposing us disproportionate. offender is homicide juvenile 496 MlCH440 Opinion First, as noted in the first part of this test proportionality, first-degree murder is almost certainly the gravest and most serious offense that can be com- mitted under the laws of Michigan. juveniles, As with adult offenders who commit the offense of first-degree murder face the same sentence of life without parole. Because some offenders will possess the same mental faculties of an adult so that they are equally able to recognize the consequences of their crimes and form an unequivocal premeditated intent to kill in the face of the consequences, it is not categorically disproportion- ate punish least some offenders the same as adults.

Second, there are some nonhomicide offenses that may be viewed as less grave and less serious than first-degree murder and for which only adult offenders face a life-without-parole sentence in this state. For instance, an adult who commits successive first-degree criminal sexual conduct offenses against an individual under the age of 13 faces a sentence of life without 750.520b(2)(c). parole. MCL Accordingly, when the com- mission of a nonhomicide offense an by adult offender may result in the imposition of a life-without-parole sentence, it does not appear categorically disproportion- ate to impose a life-without-parole sentence juve- on a nile offender for committing the gravest and most serious homicide offense.

Third, although this Court is required by Graham to assess the proportionality of a sentence of life without parole imposed on juveniles who first-degree commit murder, we would be derelict if we did not observe that the people state, of this acting through Legisla- their ture, have already exercised their judgment which —to we owe considerable deference —that the sanction they have selected juvenile for first-degree-murder offenders not are certain sanction. We is, fact, a proportionate in a determina- assessing test for superior that there is is sanction than that a particular proportionality tion of sentiment. None- public opinion with compatible by do to so required is theless, because this to ability our Graham, undertake to best we the crimi- analyzing judgment independent exercise by Legislature our nal authorized punishments for crimes light in the assessing propriety their proportionate. has deemed them Legislature which sentencing scheme Turning Michigan’s whether to offenders is “dispropor- for juvenile first-degree-murder states, in other sentencing to schemes used tionate” relevant data failed to wholly present defendants have an outlier when demonstrating Michigan of life-without- imposition comes to permitting first-degree-murder of- juvenile for parole sentences an “outlier” fenders, being on the assumption even the United adversely compliance affects our state’s with cherry- in their briefs States Constitution. Defendants schemes have been six states which pick as a life-without-parole -Miller to eliminate post altered offenders. The fact that juvenile sentence for possible sentences life-without-parole eliminated six states have tells next to Miller us response offenders choice to Michigan’s impose how nothing about convicted juveniles sentences on life-without-parole sentencing schemes first-degree murder compares nation, have come and defendants nowhere across regard. in this satisfying close to their burdens these the actions of trend is demonstrated What the time of states at many alone? How six states of life without imposed a sentence re- many of these states How homicide offenders? in a manner similar to Miller sponded 496 Mich 440 Michigan? apparent Miller, What is is at the time of “26 States ... parole mandatory [made] life without (or minimum) mandatory punishment for some form of murder, and apply would the relevant provision to 14- year-olds ----” 9; S Ct at_n n 9. Another 15 states discretionary allowed imposition life-without-parole juve- sentences nile offenders. Id. 132 S at 2472 Ct n 10. at_n therefore, Combined authority states exercised the under at least some circumstances impose a life- without-parole If, sentence on a juvenile. as defen- assert, dants six of those departed states have from this practice eliminating that sentence altogether, can it be concluded that life-without-parole sentences for juveniles are disproportionte when they remain an option of some kind in 35 total, states in or 70% of the states composing the Union?

In summary, we have no evidence that sustains defendants’ burden of demonstrating that Michigan’s statutory scheme is categorically disproportionate those of other states. As defendants have failed to demonstrate that either of the part federal test for the constitutionality punishments supports the conclu- sion that a life-without-parole sentence for homicide offenders disproportionate, we decline to hold that the Eighth Amendment of the United States Constitution categorically bars that punishment.

2. STATE CATEGORICAL BAR Defendants next contend that even if the Eighth Amendment does not bar the categorically imposition of sentences life without on juvenile homicide offenders, 1, § Const art 16 does mandate such a categorical bar. Eighth Whereas the Amendment pro- People 519 v Opinion the Court of punish- of “cruel and unusual imposition scribes the 1, § 16 ments,” 1963, art states: Const fines required; not excessive shall bail shall be Excessive punishment not be or unusual shall imposed; cruel not unreasonably inflicted; detained. shall witnesses be nor [Emphasis added.] the federal constitu- difference between

The textual protection tional and state constitutional protection Court to conclude has led this is and consequence against 1, greater protection § provides that Article 16 in counterpart than its federal punishments certain and “un- be both “cruel” if a must punishment that Amend- Eighth by for it to be proscribed usual” not necessar- that is unusual but ment, “punishment a 1, v § Article 16. proscribed by People also ily cruel” is (1972). Lorentzen, 167, 172; 194 827 Mich NW2d 387 1, § 16 against under Article protection This broader has led this merely are “unusual” punishments that test for different and broader slightly to adopt in See id. employed Graham. than proportionality 15, 31; Bullock, Mich 171-172; People v 440 see also (1992).37 in and As set forth Lorentzen NW2d 866 485 37 1, § proportionality 16has been review under Article The inclusion J., Bullock, subject disagreement. at 46 significant Mich (Riley, (“I part) dissenting concurring part believe and majority ., by support its principle case .. relied Lorentzen not, conclusion, proportionality has wrongly is and decided and that was been, punishment’ component clause of of the ‘cruel or unusual never (2010) constitution.”); People Correa, 488 Mich this state’s (“[A]t JJ., J., concurring) some Corrigan joined Young, (Markman, proportional point, revisit Bullock’s establishment this Court should Riley’s dissenting sentences, ity reconsider Justice review criminal case.”). However, not a opinion life because without offender, disproportionate homicide categorically sentence unnecessary proportionality in this case to resolve whether we find it against protection § “cruel rightly part in Article of the review is 496 Mich 440 (1)

Bullock, the state test for proportionality assesses severity of the imposed sentence compared to the (2) offense, of the gravity the penalty imposed for the offense compared penalties imposed on other offend- (3) jurisdiction, ers in the same the penalty imposed for the offense in Michigan compared penalty to the im- (4) posed for states, the same offense in other whether the penalty imposed advances the penological goal of Bullock, rehabilitation. 33-34, Mich at citing Lorentzen, Mich at 176-181. outset,

At the we note that the test LorentzenIBullock bears a considerable resemblance to the federal for test proportionality because the first three factors combine to effect the general same as the inquiry two-part test in employed Graham. Bullock, See 440 Mich at 33 (“Our analysis in Lorentzen foreshadowed in a striking manner the three-pronged test later adopted by the United States Supreme Helm, Court in Solem v 463 US 277, 290-291; (1983).”). S Ct L77 Ed 2d 637 Our conclusion that none of the first three factors the supports inference that a life-without-parole sen- juvenile tence for a offender disproportionate is under the Eighth Amendment also bears on the first three inquires of the proportionality analysis under the test. Accordingly, only the LorentzenIBullock fourth factor of the test remains to be LorentzenIBullock assessed weighing before these factors and reaching conclusion about the proportionality of a life-without- parole juvenile sentence for a homicide offender under 1, § Article our state constitution. the

Concerning factor, fourth we concur with the United States Court’s assessment that a life- without-parole juvenile sentence for a does not serve punishment,” assuming argument unusual instead sake of the place analysis it has a in § an under Article 16. People Cakp Graham, goal of rehabilitation.38 penological Graham, when life without As stated at 74. alto- forswears penalty “[t]he a juvenile, on

imposed the defen- By denying ideal. rehabilitative gether the State community, to reenter right dant person’s about judgment irrevocable makes an the fourth society.” Accordingly, Id. and place value defen- test supports factor of the Lorentzen/Bullock sentence life-without-parole dants’ contention said, That disproportionate. offender is juvenile for a the conclu- supporting factors one of the four with dispropor- are sentences life-without-parole sion that offenders, homicide juvenile on imposed tionate when of demon- to meet their burden have failed defendants Article under facially that it is unconstitutional strating homicide 1, § 16 that sentence on impose counter- language Michigan offender. While at some from Eighth to the Amendment is variance part latter, substantially at variance that it it is not so conclusion its fundamental any results in different analysis proportionality. AND

3. AIDING ABETTING if Eighth Amendment argues Davis that even of life bar sentences categorically imposing does not offenders, homicide without parole conclusion, Court, did United accepting this the States exclusively Court, speaks the Supreme “rehabilitation” within context of reintegra purpose reforming or for the of a defendant himself herself This, however, Graham, society. is at 74. not to into See US tion long person ability person, is to however the he foreclose the of a fully incarcerated, in himself herself the sense to rehabilitate or greater achieving comprehending wrong, awareness of the the nature of behavior, attaining a sincere elements moral and commitment the ways faith, contributing positive religious those or adherence to person he or she has in whatever environment with interacts whom placed. been Mich categorically

least imposing bars life-without-parole sentences on offenders, homicide him- such as self, felony convicted of murder ostensibly the basis of an theory. At the our aiding-and-abetting outset of analysis, we note that Legislature our has chosen to treat offenders aid and who abet the commission anof offense in exactly same manner as those offenders who directly more commit the offense:

Every person offense, in the concerned commission of an directly whether he commits act constituting counsels, procures, aids, or offense or abets in its commis- may prosecuted, indicted, sion hereafter be tried and on punished directly conviction shall be as if had he commit- [MCL ted 767.39.] such offense.

Moreover, the Legislature has enacted a felony-murder statute, which treats the commission of a murder during the course a robbery as murder. first-degree 750.316(l)(b).39 See MCL These by choices the Legisla ture must afforded great weight light of the fact Lockett, one of the capital-punishment cases relied on the United States Court in forming rule in specifically instructs: authority That States have to make aiders and abettors equally responsible, law, as a principals, matter of with felony-murder beyond to enact statutes is constitutional challenge. [Lockett, 438 at 602.] US Davis attempts overcome this constitutional pro- light nouncement of his own proposed categorical rule mandating a lesser maximum penalty aiders and abettors by asserting that Miller and Graham speak felony-murder We underlying statute in terms of felony being robbery merely underlying felony because the in Davis’s robbery. put reasoning part, however, case was a The forth in this would apply equally any underlying felony when the one of other felonies 750.316(l)(b). listed in MCL Caep op Opinion the Court a such a rule. He advances necessitate combine to (1) two-part argument the rule in Miller this effect: to juvenile requires offend- for individualized culpability,” lesser to account “their ers in an effort (2) S and Graham Miller, US 132 Ct at at_; already are that aiders and abettors determined has sufficiently culpable life without that a less sentence constitutionally appropriate, parole see Gra- never ham, 560 US at 69. syllogism

Although part of is undoubt- first edly the second accurate, the cannot be said of same pertinent part. to the made two statements Graham argument: part of Davis’s second do recognized that defendants who not has The Court kill, kill, life will taken are or foresee that he intend deserving forms categorically of the most serious less punishment than are murderers.. .. murderer, that, compared an adult

It follows when kill has juvenile not kill or intend to offender who did culpability. [Id.] moral twice diminished requirement that indi- In combination with Miller’s juvenile’s sentencing account for a “lesser vidualized argued culpability,” that a of- it has been parole life be without fender cannot sentenced kill, kill, did not intend to the defendant when result life taken foresee that would offender offense, the offense of which the even when felony Just a conten- was murder. such in his concur- was convicted Breyer advanced Justice tion was addressing specifically which, Miller, rence in constitutionality life-without-parole sentences for felony murder on an convicted of offenders theory, aiding-and-abetting stated, “Graham dic- he may only juveniles con- The who tates clear rule: stitutionally are life without be sentenced to Mich 440 those convicted of homicide offenses who ‘kill or ” intend to kill.’ 132 S Ct at at_; J., (Breyer, concurring). for the

Assuming argument sake of that some cat- egorical rule this nature is the necessary product of Miller,40 it Graham and still does not follow that rule to pertains and all encompasses instances which a juvenile felony aids and a recognized abets murder. As by Breyer himself, Justice a juvenile who and aids abets a felony murder may have intended the of any death victim of the offense. Id. at 132 S Ct at _; (indicating remand, that on the trial court would need if defendant, determine who was convicted of felony murder for aiding abetting and the commission of a robbery death, that resulted in a “did intend to death”). Further, cause clerk’s a juvenile who aids felony a abets murder may have foreseen that a life might be offense, taken as a result of his but proceeded notwithstanding to engage the underlying offense with indifference to this risk. a Accordingly, when juvenile can be convicted felony murder on an aiding- and-abetting theory while either intending kill or having possibility foreseen the a life could be taken, any categorical rule gleaned from Graham per- taining to the limited juvenile situation in which a homicide offender lacked the intent to kill and did not foresee the possibility that a life could be taken will again once not bar categorically imposition of 40Although argument we assume for the sake of such categorical may exist, nothing opinion rule in this should be under actually accepting adopting stood as contrary, such a rule. To we categorical mandating note that a rule that a subclass of aiders and differently respect punishments abettors be treated with to what can imposed directly contrary run would to both the aforementioned Further, Breyer statement Lockett and MCL 767.39. Justice in his spoke only justice. concurrence for himself and one other Caep for offense.41 of life without sentence with, argu- consistent entirely This conclusion sentencing process the individualized by, dictated ably seeking assess Miller. required trial courts Miller instructs culpability, moral offender’s “ of- particular ‘circumstances to consider of the of- propensities character and and the fense ” 9, quoting n Ct at 2471 132 S fender.’ Id. at_n Sumner, 483 US citing Roberts, added). fore- altogether A rule categorical (emphasis a life-without-parole from imposing a trial court closing murder on an felony convicted sentence necessity theory obviates aiding-and-abetting of the indi- either the circumstances evaluation of any the individual defendant’s defendant’s offense or vidual a defen- categorical permit a rule would character. Such aiding for sentence life-without-parole to avoid a dant if defendant was felony even the abetting a murder and offense, of the age of 18 at time closely nearing by instructing of victim intended the death shot, had had previ- to fire the fatal coconspirator justice system that the criminal ous encounters with amenability lack of to rehabilitation. demonstrated a defendant, imagine it such a Because is not difficult to sentence life-without-parole imposing and because 41 might categorical create a rule To the that Graham and Miller extent juveniles aiding life-without-parole prohibiting convicted of sentences kill, kill, abetting felony to or foresee murder “who do not intend Graham, 69, taken,” he US at Davis would not life will 560 Although the trial court concluded to relief under that rule. entitled shooter, explicit make an did not that Davis was not the death, finding regarding and it Davis’s about the victim’s intentions potential life findings of he indicative foresaw made no whether robbery engaged. he To armed in which he taken as a result would findings engaging in now entail go attempt make would back and to these sentencing procedures for Miller that called the broader individualized retroactively. engaged today already not be determined need we have Mich 440

that defendant would be warranted entirely consti- reject tutional under we facial challenge Davis’s and his Eighth contention that Amendment cat- bars the of a egorically imposition life-without-parole a juvenile felony sentence on convicted murder on an theory.42 aiding-and-abetting

4. RIPENESS 1, Eliason 1963, § asserts that Const art categori- cally imposition bars the of a sentence life without parole juvenile on a homicide offender who is 14 years of age at the time offense. For Eliason’s facial challenge be ripe, there must be “a real and imme- diate threat... as to a opposed hypothetical one” that a sentence of life without will be imposed on him. Conat, Mich at 145, App citing Angeles Lyons, Los 95, 101-101; 103 S Ct L 2d 75 Ed holding This juveniles carries with it the conclusion that some felony aiding-and-abetting theory convicted of might murder on an be as morally culpable juveniles premeditated for their crimes as who commit first-degree simply legally culpable. murder and not A felony aiding-and-abetting theory convicted of an murder on can be said grave to have committed as an offense as a who commits premeditated first-degree Accordingly, purpose murder. for the of Davis’s challenge 1, § under Const art the first two factors of the proportionality test will be LorentzenIBullock resolved a fashion they life-without-parole identical to how were resolved for sentences generally. Concerning factor, any present the third Davis fails data specific jurisdictions juveniles felony how other sentence convicted aiding-and-abetting theory, only putting murder on an sampling forth a very juveniles of how first-degree few states now sentence convicted of generally. murder contrary, the absence of evidence to the arewe left majority to equally assume that a other of states hold aiders abettors responsible Accordingly, for their offenses. the third factor also counsels against finding disproportionality. only a of Because the fourth factor of test, proportionality pertaining rehabilitation, Lorentzen/Bullock life-without-parole holding juveniles favors sentences for convicted of felony aiding-and-abetting theory unconstitutional, murder an challenge 1, § Davis’s facial under Article 16 as well. fails 527 v Baptist Emmanuel Social Servs (1983), Dep’t of (1990) 1 455 NW2d Preschool, Mich J.). determining differently, Put (CAVANAGH, must a court justiciably “ripe,” an issue is whether “ matured has the harm asserted ‘whether assess ” Em- intervention.’ judicial to warrant sufficiently (citation n at 412 434 Mich Baptist, manuel omitted). balancing is in this assessment Inherent defendant[] will uncertainty as to whether “any of hard- potential injury, future with actually suffer 412, citing relief.” Id. at anticipatory denying of ship 148-149; Gardner, US Laboratories Abbott (1967). 2d 1507; 18 L Ed S Ct his offense at the time of years age Eliason was parole. to life without initially sentenced and was review, he case is on direct However, Eliason’s because to MCL resentencing pursuant is entitled 769.25(l)(b)(ii). 769.25(9), the default sen- MCL Under a murder is first-degree a convicted tence for rather limits specific within years of a term of sentence will A defendant life parole. than without prosecutor if the sentence life-without-parole face a the trial court that sentence and seeking a files motion hear- an individualized following concludes such a sentence Miller that in accordance with ing (7). 769.25(2) through MCL appropriate. seeking has filed a motion

Although prosecutor parole, life without imposition sentence trial court whether speculation than is no more in response the default sentence from depart will life-without- impose motion the prosecutor’s Eliason sentence, apparent and it is not receiving immediate” threat a “real and faces Furthermore, because sentence. life-without-parole of “not less minimum sentence facing he will be 496 MICH 440 than years,” 769.25(9), deny MCL to on ripeness grounds the Eliason him relief seeks will cause no legally cognizable hardship or harm. If a life-without-parole sen tence is at Eliason imposed resentencing, will have more than ample appeal time either assert an as-applied or a facial challenge constitutional his sentence before he minimum completes the possible sentence his Accordingly, offense. in light of Eliason’s being entitled resentencing 769.25, under MCL his facial constitutional challenge to life-without-parole juvenile sentences for ho micide who are 14 of years age offenders at the time their offense no longer justiciable.43

V CONCLUSION For reasons, these we hold that the rule set forth Miller should not be retroactively under applied either federal retroactivity test set forth in Teague or Michigan’s separate and independent retroactivity test set forth in Sexton and Maxson. so affirm doing, we the judgments Appeals the Court Carp Davis that Miller should not be applied We retroactively. further hold that neither the Eighth Amendment nor Const art § 16 categorically bars the imposition a sentence life without juvenile on first-degree-murder offender or a of felony convicted murder on the basis of an aiding-and-abetting theory. Finally, we hold that Eliason’s facial challenge longer constitutional ripe is no and there- fore remand his case for resentencing pursuant to MCL 769.25.

YOUNG, C.J., and ZAHRA JJ., concurred VIVIANO, J. Markman, with by parties As argument, conceded at oral Eliason’s other issues granted appeal which this Court leave to are moot as a result of the enactment of MCL 769.25. Dissenting Opinion Kelly, J. recent cases In a series of (dissenting).

KELLY, J. Su- offenders,1 the United States involving juvenile differ- “children are has established that preme law.2 Specifically matter of constitutional ent” as a cases, those recent of one of application issue here is the offenders Alabama, to incarcerated Miller v when the complete were appeals whose direct Court decided Miller. Court homicide that, juvenile certain because determined “diminished com- when culpability” offenders have offenders, subject juve- states cannot with adult pared life mandatory nonparolable nile homicide offenders so, range doing expanded By sentences.3 homi- may imposed of punishments states, Michigan, previ- in like that had cide offenders life sentence whenever ously nonparolable mandated first-degree murder offender was convicted Miller applies in the circuit court. We conclude that before us on collateral retroactively appearing to cases Davis, review, Carp People in v including People substantive rule of law. Alter- because it established a natively, application state law the retroactive compels in and Davis we would reverse Accordingly, Miller. to the St. Clair Circuit Court remand those cases Court, resentencing for Wayne respectively, Circuit to MCL 769.25a.4 pursuant 1 “juvenile throughout opinion phrase refers to the The offenders” who were convicted for crimes committed before class of individuals

reaching age of 18. 2 Alabama, 2455, 2470; L US_; 132 S 183 Ed 2d 407 Miller v 567 Ct (2012). 1183; Simmons, 551; Roper L Ed 543 US 125 S Ct 161 See also Florida, 48; 2011; (2005); L 2d 1 US 130 S Ct 176 Ed 825 Graham v (2010). 3 Miller, at_; 132 S Ct at 2464 to the Berrien Circuit Court We would also remand v Eliason 769.25, majority resentencing pursuant as the does. to MCL 496 MICH440 Dissenting Opinion Kelly, J.

I. THE EIGHTH AMENDMENTAPPLIED TO JUVENILE OFFENDERS

The Eighth Amendment United States Consti- tution prohibits the infliction of “cruel and unusual punishments”5 and a long history has in American and English predating law the Bill Rights. Similar pro- tections were provided constitutions,6 various state and identical language appeared English Bill of Rights of 1689.7Even in time, farther back a prohibition punishments excessive appeared the Magna Carta.8

“ ‘The basic concept underlying the Eighth Amend- ”9 ment is nothing less than the dignity of man.’ For more than a century, the Supreme Court has main- 5 The Cruel and Unusual incorporated Punishments clause has been through the states the Fourteenth Amendment. See Robinson v Califor nia, 660; (1962). Additionally, US 82 S Ct 8 L Ed 2d 758 Article 1, § Michigan provides of the 1963 Constitution that “cruel or unusual punishment shall not be inflicted . ...” instance, Virginia Rights For Declaration of “[t]hat stated exces ought required, sive bail imposed, not to be nor excessive fines nor cruel punishments Lerner, and unusual inflicted.” 5 Kurland & The Founders’ Constitution, 373, (June p quoting Virginia Rights, 12, § Declaration of 9 1776). 7 English Rights provided The Bill of “[t]hat 1689 excessive bail ought required, not to be imposed; nor excessive fines nor cruel and punishments Lerner, unusual inflicted.” 5 Kurland & The Founders’ Constitution, 369, p quoting English Rights, M, sess, Bill of &1W 2d (December 1689). 2, 16, § ch 10 8 Granucci, “Nor Cruel and Unusual Punishments The Inflicted:” (1969) (The Original Meaning, 57 Cal L Magna Rev 845-846 Carta “clearly stipulated prohibition as fundamental law of excessiveness punishments!.]”). in Caselaw further establishes “a common law prohibition against punishments any form,” excessive in even if remains principle “[w]hether unclear prac was honored in tice . . . .” Id. at 847. Virginia, 304, 311; 2242; Atkins v 536 US 122 S Ct 153 L Ed 2d 335 (2002), quoting Trop Dulles, 86, 100; 590; v 356 US 78 S Ct 2 L Ed 2d 630 (1958) C.J.). (opinion by Warren, v Dissenting Opinion by Kelly, J. tained that the Clause not fixed does have a meaning,10 instead “may acquire meaning public but opinion becomes ing enlightened by Court has humane developed justice.”* over the last One mean decade is that “children constitutionally are different from adults for In purposes Roper sentencing.”12 Simmons, the Court forbade of the death imposition Florida, In penalty juvenile Graham v offenders.13 prohibited the Court “the a life imposition of without sentence on offender who did not Alabama, recently, commit homicide.”14 Most Miller v pro Court struck down a scheme that vided a life mandatory nonparolable juve sentence for nile homicide offenders.15 rulings, these the Court relied on three significant juveniles

differences between and adults to conclude that juveniles have “diminished for their culpability” and “greater prospects crimes reform.”16 States, 349, 373; See Weems United 217 US 30 S Ct 54 L Ed 793 (1910) (“[I]f intelligent providence we are to attribute an to its advocates prohibit only practices we cannot think that it was intended to like the (“[0]ur Stuarts, prevent only history.”); repetition or to an exact id. be.”). contemplation may cannot be of what has been what but of recently, explained Id. at 378. More the Court has that the clause “ meaning evolving decency ‘must draw its from the standards of that mark ” Atkins, progress maturing society.’ 311-312, quoting of a 536 US at C.J.). by Warren, Trap, (opinion 356 US at 101 12Miller, at_; 567 US 132 S Ct at 2464. 13Roper, 543 US at 578.

14 Graham, 560 US at 82. 15Miller, at_; 132 S Ct at 2460. at_; developments Id. 132 S Ct at 2464. The Court cited research “ in science and social science that show ‘fundamental differences example, ‘parts between and adult minds’—for of the brain ” at_; quoting involved behavior control.’ Id. 132 S Ct at Graham, by Specifically, paper 560 US at 68. the Court cited a Laurence Steinberg Scott, Adolescence, Guilty & Elizabeth Less which Reason of explains components culpability that there are to the two diminished 496 Mich 440 Dissenting Opinion J. Kelly, “

First, maturity ‘lack and an underde children have a ” recklessness, responsibility,’ leading veloped sense of Second, risk-taking. “are impulsivity, and heedless children negative influences and outside more vulnerable ... they including family peers; pressures,” from their and have limited “contro ^[1] over their own environment” and horrific, ability to extricate themselves from lack third, crime-producing settings. And a child’s character is adult’s; fixed” not as “well formed” as an his traits are “less likely irretrievabl[e] and his actions less to be “evidence of deprav[ity].”[17] juveniles

These differences between and adults “dimin- justifications ish the for penological imposing offenders, harshest sentences on even when commit they respect, terrible crimes.”18 Graham, heavily relied that Graham explaining youth determining “insisted] matters in the ap- propriateness of a lifetime of incarceration without the “ Because an possibility parole.”19 age offender’s ‘is Amendment,’ to the Eighth pro- relevant . . . ‘criminal cedure youthfulness laws that fail to take defendants’ ”20 into account at all would be flawed.’ age

Not is relevant in an establishing offender’s crime, culpability already for the in this explained opinion, but it is also relevant in determining whether for a crime punishment sufficiently comparable development during adolescents: the brain that continues to occur psychosocial limiting adolescence factors adolescents’ emotional “(a) (b) maturity, influence, susceptibility peer such as attitudes (c) (d) perception risk, orientation, capacity toward future self-management.” Steinberg Scott, Guilty by & Less Reason of (2003). Adolescence, 1009, Psychologist Am58 17Miller, at_; quoting Roper, 567 US 132 S Ct at 543 US at (citations omitted; original). 569-570 alterations in 18Miller, at_; 132 Ct at S 2465. at_; Id. 132 S Ct at 2465. Graham, at_; quoting Id. 132 S Ct at US at 76. Dissenting Opinion by Kelly, J. severity to an identical sentence given to an adult Sentencing offender. nonparo- offender to a “ ” life lable sentence is ‘especially given harsh’ that the offender inevitably “will almost serve ‘more years and a greater percentage of his life in than prison an adult ”21Indeed, offender.’ it “cannot be ignored” “[a] 16-year-old and a 75-year-old each sentenced to life without parole receive same in name punishment only.”22 result, As a Court compared this “ultimate for penalty” juvenile offenders to the death penalty, is the which ultimate penalty adult offend- ers, rather than to nonparolable life sentences for adult offenders.23

In particular, the Supreme Court questioned the ability of mandatory penalties to take into account the unique circumstances youth: “mandatory penalties, nature, their by preclude a sentencer from taking account of an age offender’s and the wealth of charac- teristics and circumstances attendant to it.”24In impos- ing the penalty harshest available on a of- fender, then, “a sentencer misses too much if he treats every child as an result, adult.”25 As a the Supreme required “that a sentencer follow certain process considering an youth offender’s and attendant — characteristics —before imposing”26 a nonparolable life sentence:

Mandatory life juvenile precludes without for a chronological consideration age his and its hallmark 21Miller, at_; quoting Graham, 567 US 132 S Ct at 560 US at 70. 22 Graham, 560 US at 70-71.

23Miller, at_132 S Ct at 2466. at_; Id. 132 S Ct at 2467. at_; Id. 132 S Ct at 2468. ; Id. at 132 S Ct at 2471. 496 Mich Dissenting Opinion Kelly, J. them, immaturity, impetuosity, fail among

features — prevents consequences. It appreciate risks ure family and home environment taking into account usually he extri from which cannot him—and surrounds dysfunctional. It matter how brutal or cate himself—no offense, includ neglects of the homicide the circumstances participation in the conduct and ing of his the extent may affected him. way peer pressures have familial and charged Indeed, might ignores that he have been incompetencies if not for of a lesser offense convicted example, inability to deal youth his associated with —for (including plea prosecutors on a police or with officers attorneys. agreement) incapacity his to assist his own mandatory punishment disregards the finally, And possibility even when the circumstances of rehabilitation it.[27] suggest most “sentencing any

The Court invalidated Supreme in without prison possibility that mandates life scheme juvenile offenders.”28 for disputed cannot be undisputed It is —that —and on direct pending to all cases that were applies Miller 25, 2012, decision was issued on June when the appeal for- going to all offenders applies and that in Davis whether dispute Carp is in ward.29What appeals direct were Miller to offenders whose applies 27 (citations omitted). ; Id. at 132 S Ct at 2468 28 at_; 132 at 2469. Id. S Ct 29 rule,’ in that rule of this Court results a ‘new “When decision pending v applies criminal on direct review.” Schriro to all cases still (2004). 2519; Summerlin, 351; A 124 159 L Ed 2d 442 542 US S Ct retroactivity analysis purposes final on direct review “for case becomes availability appeal courts has been of direct to the state when the filing petition for a writ of certiorari has exhausted and the time for finally Caspari timely petition elapsed been denied.” v filed has (1994). Moreover, 383, 390; 948; Bohlen, 114 Ct 127 L Ed 2d 236 510 US S procedures Legislature recognized this when it enacted new 769.25, sentencing juvenile compliance MCL with Miller. See offenders result, would remand Eliason to the 2014 PA 22. As a we added People 535 v Opinion by Dissenting Kelly, J. having June 2012. After filed completed before judgment respective relief from in their motions for cases, and Cortez Davis now Eaymond Carp defendants Court, very before this issue.30 appear presenting turn, On to which we now Miller was question, this country silent31 and courts across the are divided.32 769.25, resentencing pursuant Berrien Circuit Court for to MCL as the majority does, pending when because that case was still on direct review Miller was decided. 30 seq. See MCR 6.501 et 31 explained opinion, For the reasons later the fact that Miller categorically imposition nonparolable failed to bar of a life sentence for require offenders does not the conclusion that Miller is not similarly retroactivity retroactive. We deem inconclusive as evidence of distinguish Supreme the fact that Court did not Miller from a companion appearing Supreme case before the Court on collateral review. ; 2461-2462, 2475; Norris, See 567 US at 132 S Ct at Jackson v (2013) 175; (applying companion Ark 2013 426 SW3d 906 case). Although Supreme Teague indicated in v Lane that “implicit retroactivity approach adopt today, principle in the we is the corpus be used constitu- habeas cannot as vehicle create new applied procedure tional rules of criminal unless those rules would be retroactively review,” Lane, Teague to all defendants on collateral 489 (1989) 288, 316; 1060; (opinion by US L Ed 2d 109 S Ct 103 334 O’Connor, J.), only inconsistently approach. it has followed that See States, 1103; US_; Chaidez v L Ed United 133 S Ct 2d 149 (2013) 1473; (holding Kentucky, 356; that Padilla v 130 S Ct (2010), apply retroactively notwithstanding L Ed 2d 284 did not the fact review). appeared that Padilla before the Court on collateral example, appellate California, Rainey, For state courts in In re 280; Illinois, App Rptr 719;_P3d_(2014); 4th Cal 168 Cal 3d Davis, 381; (2014); Iowa, Ill 379 Ill Dec 6 NE3d 709 State (Iowa, 2013); Ragland, Massachusetts, v 836 NW2d 107 Diatchenko v Att’y, 655; (2013); Mississippi, State, Dist 466 Mass 1 NE3d 270 Jones v (Miss, 320; 2013); Nebraska, Mantich, 122 So 3d 698 State v 287 Neb 842 (Tex (2014); Texas, Maxwell, parte Ex 424 66 Crim NW2d SW3d App, 2014), retroactivity. contrast, have all ruled in favor of Miller’s In Alabama, appellate State,_So 3d_(Ala state courts in Williams v 2014); Louisiana, 2012-2763; App, Tate, 3d Crim State v La 130 So (November State, (Minn, 5, 2013); Minnesota, Chambers v 831 NW2d 311 2013); Pennsylvania, Cunningham, (Pa, Commonwealth v 81 A3d 1 2013), Additionally, appel- have ruled that Miller is not retroactive. 496 Mich Dissenting Opinion by Kelly, J. II. RETROACTIVITYUNDER FEDERAL LAW

A. ANALYSIS Teague v Lane and its the United States progeny, has rules are Supreme explained Court when its new thereby apply retroactive under federal law and to cases The inquiry on collateral review.33 threshold is whether has, fact, a rule of Supreme issued new law. A been and the Teague analysis new rule has issued if “the in the proceeds precise holding[s]” previous Court’s cases did not “dictate the result” of the being analyzed.34 case reviewing

Once the court determines that the Su- preme being Court issued new rule of law in the case analyzed, reviewing court must then determine whether the new rule is a rule a proce- substantive dural rule: generally apply retroactively.

New substantive rules This scope includes decisions narrow the of a criminal by terms, interpreting statute its as well as constitu- place particular tional determinations conduct or opposite question late courts in have Florida reached conclusions on the (Fla 2013) retroactivity. State, App, Falcon v 111 So 3d 973 Dist Ct (concluding apply retroactively), gtd that Miller did not lv 3d 137 So (Fla 2014) (Fla, 2013); State, Toye App, v 133 So 3d 540 Dist Ct (concluding applied retroactively). that Miller 33 Teague, Although opinion Teague 489 US 288. lead was not supported court, by majority Teague retroactivity in whole of the subsequently adopted majority framework has been of the Court. Penry Lynaugh, 302; 2934; (1989), 492 US 109 S Ct 106 L Ed 2d 256 part Atkins, grounds by Penry, overruled in on other 536 US 304. In majority Teague applied capital also determined that the framework punishment nonparo cases. Because offender to a penalty juveniles,” lable life sentence is the “ultimate 567 US Teague similarly at_; applies 132 Ct at S framework nonparolable life sentences for offenders. Parks, 1257; 110 S Ct 108 L Ed 2d 415 Saffle (1990). People v 537 Dissenting by Opinion J. Kelly, power beyond the State’s persons the statute covered retroactively they apply because punish. Such rules “necessarily carry significant risk that a defendant not make of ‘an act that the law does stands convicted “ the law cannot punishment faces a criminal’ or States, Bousley 523 US impose upon [v him. United (1998), 1604; quoting 620; 140 L Ed 2d 828 118 S Ct 333, 346; 2298; States, 94 S Ct 417 US Davis v United (1974)]. L Ed 2d 109 hand, generally do procedure, on the other

New rules of retroactively. They produce a class of apply not do not the law does not make crimi persons convicted of conduct nal, merely possibility raise the that someone convicted but might procedure have been with use of the invalidated otherwise.[35] acquitted procedural “regulate[s]

A if it rule is determining culpability” manner of the defendant’s decisionmaking authority.”36 “allocated] On if it “[a] hand, ele- the other decision that modifies the normally rather ments of an offense is substantive including, example, procedural,” a decision than stating [is] death that “a certain fact essential to the ,”37 Finally, penalty if . . . the new rule is determined retroactively only procedural, applies it if then requirements it of a rule satisfies the two watershed (1) procedure: necessary criminal must be prevent impermissibly large an an risk of inaccurate (2) understanding conviction, and it must alter our procedural the bedrock elements essential to the proceeding.38 rule of fairness of a One such watershed procedure criminal was articulated Gideon Wain- (most omitted). Summerlin, citations 542 US 351-352 omitted). (emphasis Id. at 353 37Id. at 354. 406, 417-418; Bockting, L 127 S Ct 167 Ed Whorton v (2007), Summerlin, citing 2d 1 542 US at 356. Mich 440 Dissenting Opinion by Kelly, J.

wright,39 requires appointment which counsel for any indigent charged defendant with a felony.40

B. APPLICATION rule, It is uncontested that Miller is a new and we agree majority’s with the conclusion that im- “Miller posed obligation hitherto-absent on state and lower federal courts to conduct individualized sentencing hearings imposing before a sentence of life without juvenile on a homicide offender.”41 disagree, however,

We majority’s with the conclusion that Miller is best characterized as a procedural ruling such that it applies retroactively to cases on collateral if review it is a watershed rule of constitutional procedure. Admittedly, the distinction between rules of procedure and rules of substance “is not necessarily always simple matter to Generally, a substan- divine.”42 “placets] tive rule particular conduct or persons covered by the statute beyond the State’s power punish,”43 procedural while a “regulate[s] only rule the manner of determining the defendant’s culpability . . . .”44

State legislatures have the “substantive power to define crimes and prescribe punishments,”45 subject to 39 Wainwright, 335; (1963). Gideon v 792; 372 US 83 S Ct 9 L Ed 2d 799 40 Whorton, (stating that Gideon was a watershed rule of 549 US Teague). procedure meaning constitutional within the Ante at 473. While applied principles contained in several of the Eighth precedents, “precise holding[s]” Court’s Amendment of those precedents Saffle, did not “dictate the result” of Miller. See 494 US at 490. 42 People Carp, App 512; (2012), citing 298 Mich 828 NW2d 685 Neil, (1973). Robinson v 509; 876; 409 US 93 S Ct L Ed 2d 29 43 Summerlin, 542 US at 352. omitted). Id. at 353 (emphasis Thomas, 376, 381; Jones v 109 S Ct L105 Ed 2d 322 (1989). Opinion Dissenting Kelly, J. articu- Court Supreme The limitations. constitutional Miller, after state in Miller: limitation lated one such mandate, Michigan like the can longer no legislatures convicted of offender did,46 that a Legislature a non- court receive in the circuit first-degree murder Graham, Supreme life sentence.47 parolable deny of sentences severity “recognized Court categorically when it parole”48 possibility convicts life sen- imposing nonparolable from barred a state (whether juve- on a mandatory) discretionary tence does not pro- While Miller nonhomicide offender. nile life nonparolable imposing a sentencer from hibit in the appro- homicide offender on a sentence barred categorically case, priate offend- life sentences for such mandatory nonparolable ers. the sentenc- permit if chooses to

After a state life,49 then the state juveniles nonparolable ing the sen- requires some provide procedure must and circum- facts particular tencer to consider The Court of and the offender. of the crime stances have and, extent, majority placed to some Appeals that the line in Miller: single on a importance particular follow a that a sentencer decision “mandates a particular pen- process imposing certain . . . before (stating first-degree punished murder shall be that See MCL 750.316 769.1(1) life); (stating juvenile by imprisonment convicted for MCL manner as an first-degree “in the same murder shall be sentenced 791.234(6)(a) adult”); (stating life sentenced to that someone MCL eligible parole”). first-degree for imprisonment murder “is not for 47 Indeed, acknowledges majority “[i]t thus seems certain as juvenile defendants who that a considerable number of result of Miller previously life without for have been sentenced to would meted out.” have a lesser sentence of homicide offenses will commission Ante at 473. 48 Graham, 560 US at 70.

49 Michigan recently 22. done so. 2014 PA has 496 Mich 440 Dissenting Opinion Kelly, J.

alty.”50However, the mere fact that Miller mandates “a process,” procedural implications, certain or has does procedural not transform the decision itself into a contrary, decision. To the Miller invalidated an entire “sentencing “mandate[d] prison scheme” that life in possibility parole without for offenders.”51 majority The claims that the distinction between “categorical penalty bar” of a and the “noncat- egorical penalty bar” of a “defines the critical ele- retroactivity analysis Teague.”52 ment of the This dispositive Teague distinction, however, is not to the analysis, which focuses on whether the decision is procedural, substantive or not on whether it is cat- egorical noncategorical. By elevating categorical/noncategorical way distinction in the majority Teague analysis does, the muddles the noncategorical procedural state that bars must be categorical nature. Even if all bars are substantive, it logically noncategorical does not follow that all bars procedural.53 must be Rather, for the reasons stated opinion, later in this the fact that Miller did not categorically nonparolable juve- bar life sentences negate nile import offenders does not the substantive mandatory nonparolable its decision to invalidate applied life sentences as offenders. holding The substantive nature of Miller’s becomes upon considering clearer it did not invalidate mandatory sentencing applied schemes as to adult

50 Miller, at_; 132 S Ct at 2471. added). at_; Id. (emphasis 132 S Ct at 2469 52Ante at 487 n 16. among The division regard our nation’s courts with to whether proposition suggests is correct or jurispru incorrect that our nation’s dence would benefit from a substantive/procedural clarification of the distinction. Dissenting Opinion Kelly, J. Court made Rather, Supreme in the offenders.54 time of the at the the offender age of fact —the one a state whether regarding offense —determinative of a the imposition mandate can government federal not result, Miller did As a life sentence.55 nonparolable the defendant’s determining manner of “only alter range also altered but instead culpability,”56 impose available that must be punishments offender. of the at the time age Miller, the offender’s After schemes two which of determines offense the offender is is, whether offender —that to the applies (be- life sentence mandatory nonparolable subject to a adult) the sentence or whether is an cause the offender and charac- age offender’s into account the must take of the as the circumstances as well youth, teristics of (because While juvenile).57 offender is a offense convicted offenders Michigan, juvenile previously, subject were in the circuit court murder first-degree with- imprisonment punishment possible one —life Miller, the prosecu- possibility out —after life sen- nonparolable request must specifically tion court after which the tence, years, than a term of rather charac- the offender’s hearing to consider must hold before of the offense and the circumstances teristics punishable by instance, first-degree Michigan, remains murder In 750.316; parole. MCL possibility MCL prison life in without 791.234(6). making Summerlin, explained a decision penalty” rule of law a substantive to the death “a certain fact essential Summerlin, Teague 542 US at 354. framework. within the altered). Summerlin, (emphasis US at 353 first-degree committed as an murder is convicted of Someone who prison mandatory penalty subject of life Michigan to the is still adult 791.234(6)(a), 750.316; parole, while possibility MCL MCL without mandatory subject longer sentence. to the same offender is no MCL 769.25. 496 Mich 440 by Dissenting Opinion Kelly, J. a to life sentence

deciding impose nonparolable whether result, of years.58 age range or a term As a affects the that can sentences on someone convicted of imposed Michigan. murder in It a first-degree produces class of subject to a persons range different of sentences than was a previously mandated thus reflects substan- retroactively tive of law rule under the applies Teague framework. majority analyzes

The what it the “form deems effect” differently. of Miller and concludes Under its rationale, Miller is in large part not retroactive did because the Court not categorically bar a individuals, sentence as applied to a class which Roper Rather, did in Graham. offend- ers sentenced to life nonparolable given have been punishment power is within the of the state to The impose. majority thus determines that Miller is more to involving similar cases the individualized imposition which, the death penalty, the majority asserts, involving are cases new procedural rules.

The to a majority insightful, by point, comparing Carolina, with Woodson v North which struck sentencing down a scheme mandated the death penalty upon Indeed, conviction of certain offenses.59 after Woodson, the Supreme requires an individualized sentencing procedure if a state impose chooses to particularly It is relevant that Miller left considerable discretion procedural ensuring protection for states to craft mechanisms for Eighth of a rights. Legislature defendant’s Amendment The response exercised adding such discretion in to PA MCL 769.25. Carolina, 280; 2978; Woodson v North US L 96 S Ct 49 Ed 2d 944 (1976). Shuman, 2716; See also Sumner v 107 S Ct 97 L Ed (1987), similarly 2d 56 which struck down a scheme that penalty upon mandated death conviction of certain offenses commit serving nonparolable ted while life sentence. Caep Opinion Dissenting Kelly, J. with problem illustrates the also Woodson penalty.60 death from distinguishing procedural method majority’s substan- claims that majority The holdings. substantive result, or a invariable single holdings “produce tive in the class of defendant effect, any applied when single proce- while the rule is pertinent,” to whom defendants results, have mul- range holdings “produce dural defendants effects, applied when possible tiple different pertinent.”61 the rule is in the class of defendants whom before a state procedure an individualized requiring a however, placed death Woodson impose penalty, can of the state beyond power punishment particular punishment a place particular So too dadMiller mandate. majority’s The to mandate. of the state beyond power these deci- import to give appropriate fails to distinction creation of than simply involve more sions procedural rights. particular a some sort of provide state to required

While Woodson pun- impose capital mechanism before it could procedural guidance proce- minimal on what ishment, offered decide and, on who should required specifically, are dures the death eligible to receive whether an individual was Woodson, aggravating listed After some states penalty. the death eligible an offense that rendered factors held, in Ring subsequently The Supreme penalty. jury to a trial Arizona, right that the Sixth Amendment or absence of the presence to determine the requires jurya death- an offender as qualify factors that aggravating eligible.62 procedural definitively Supreme held to be Court had Woodson If the However, distinguish if

ruling, Miller. he difficult to then it would retroactive, majority as the Supreme ruled that Woodson is Court has not only prospective. posits, ruled that then neither has it Woodson Ante 465. (2002). Arizona, 2428; L Ed 2d 556 Ring 122 S Ct 496 Mich 440 Dissenting Opinion Kelly, J. Summerlin, Schriro v Court deter-

mined that was procedural, therefore not Ring retroactive, because the aggravating factors at issue “subject there remained to the procedural requirements the Constitution attaches to trial elements.”63 The prototypical procedural merely decision “allocated] de- cisionmaking authority.”64 Ring, Unlike Miller does more merely than allocate decision-making authority. While Ring only range “altered the of permissible determining methods for whether defendant’s con- death,”65 duct is punishable by Miller went beyond that range altered of punishments available to juvenile homicide offender by requiring that a state’s mandatory punishment minimum less something than nonparolable Indeed, life. not it does allo- simply cate decision-making authority but establishes that au- thority in the majority instance. The implicitly first recognizes by observing that, as Ring shifted the authority decision-making for imposing capital punish- ment from the judge jury, Miller shifted the decision-making authority from one branch of govern- (the (the ment legislative) to another judiciary).66 Put simply, Miller involved not just who exercises the decision-making authority for imposing punishment, but what punishments must be considered. 63 Summerlin, at 542 US 354.

64 Id. at 353. added). Id. (emphasis Contrary majority’s claim, to the ante at 484 n Ring punishment sentencing did not capital invalidate Arizona’s entire Ring scheme because punish both before after same the substantive Rather, ments were available offenders in for Arizona. it shifted decision- making authority within that sentencing judge jury. scheme from the to the By contrast, Miller, any Supreme the invalidated nonparolable by scheme that a requiring mandated life sentence the sentencer parolable life, to consider additional some sentence —whether a (as years chose), Michigan Legislature term of the or both. 66 Ante at 484-485. Caep Opinion by Dissenting Kelly, J. import over substantive majority glosses The that, the fact distinction, doing ignores and in so possibility existed the Ring, after there before and both death, only after while less than punishment for a juvenile for a the possibility exist Miller does there than less a punishment to receive homicide offender contains a indisputably Miller life.67While nonparolable range expand decision to its component, procedural offend- may imposed be punishments Miller in the squarely places homicide convicted of ers can Con- longer No decisions.68 category of substantive Breyer’s concurring suggests majority Interestingly, that Justice Miller, majority support, deemed a would he opinion had it received retroactively. n apply Ante at 468 6. rule and thus would substantive ability impose a Breyer have conditioned the state’s would Justice “ the individual homicide offender nonparolable on whether life sentence ” at_; 132 S Ct kill’ the victim. ‘killted] intend[ed] (alter- Graham., J., quoting (Breyer, concurring), 560 US at 69 Breyer’s original). concurrence and Justice But Justice ations in both imposition nonparolable majority opinion life Kagan’s condition the culpability particular for a defendant’s an of a sentence on assessment only convicted of a subset of individuals offense and allow homicide nonparolable eligible life sentence. first-degree for a murder to he major- majority Accordingly, that the creates between the distinction ity concurring opinions difference and counsels in Miller is without a retroactively: previously limitation applying no while in favor impose nonparolable life sentence as could existed before state culpa- offense, individual punishment a homicide now an offender’s for majority’s bility individu- he assessed. The Miller in the homicide must govern procedure whether contains additional factors alized life, Breyer’s may punished nonparolable and Justice defendant with procedure manner. Each proposed would work in the same individualized substantive, mandatory punishment that certain states invalidates imposed of homicide. offenders convicted by” majority abide “[w]e are bound to The claims range’ understanding new rule ‘alters the of “when a Court’s suggests applies punishments,” that this when available “ persons ‘placets] particular covered statute conduct or rule ” Summerlin, 479, quoting punish.’ beyond power Ante at the State’s (alteration However, description original). Summerlin’s US at 352 exclusive, majority over- and the rule inclusive and not of a substantive 496 MICH440 Dissenting Opinion by Kelly, J. or a

gress legislature state constitutionally choose to a adopt sentencing scheme that mandates the imposi- tion of a life nonparolable juvenile sentence on homicide offenders.69

Indeed, if Miller were merely procedural decision, a the Supreme Court would not have examined —and found wanting penological aims of a state legisla- —the ture’s policy substantive choice impose a mandatory nonparolable life sentence on homicide offend- fact, ers. In in Miller, the Court explained that none of the permissible penological retribution, deter- aims — rence, incapacitation, and rehabilitation —warrant mandatory nonparolable sentences for juvenile offend- ers.70 Similarly, Atkins v Virginia, the Supreme Court Supreme position states the forecloses, Court’s when it on the basis of Summerlin, possibility statement in that a substantive decision previously is one that punishment “makes a unavailable lesser available to the sentencer ....” Ante at 479. majority, “merely To the expands range a rule that possible punishments may imposed procedural on the defendant” is because, theory, power punish state still has nonparolable offender with a (emphasis life sentence. Ante at 483 omitted). However, misplaced distinction is because the placed Court nevertheless policy substantive limitation on a state’s longer decisions: power after Miller the state no has the to mandate a nonparolable punishment life by sentence as for a crime committed juvenile offender. instance, For penological retribution as a rationale “relates to an “ and, offender’s accordingly, blameworthiness” ‘the case for retribution ” strong Miller, is not as awith minor as an with adult.’ at_; 567 US 2465, (citation quoting Graham, 132 S Ct at quotation 560 US at 71 and “ omitted). similarly marks Deterrence is limited because ‘the same juveniles culpable characteristics that render less than adults’—their immaturity, recklessness, impetuosity likely and them less —make potential punishment” consider committing before a crime. (citation at_; Graham, quoting US 132 S Ct at 560 US at 72 omitted). quotation Incapacitation require marks ‘mak[ing] “would judgment [the incorrigible’ offender] ‘incorrigibility is in- —but ” youth.’ Miller, consistent with at_; quoting 132 S Ct at (citation Graham, omitted) (first quotation 560 US at 72-73 marks Opinion Dissenting Kelly, J. imposing justifications the penological examined individuals handicapped mentally penalty death lacking.71 justifications those found are that states acknowledged Atkins Nevertheless, proce- fashion discretion considerable with provided ex- must be an offender whether to determine dures penalty: of the death from consideration cluded mentally be so retarded will claim to be people who Not all mentally range retarded of fall within impaired as to As national consensus. there is a about whom offenders Wainwright regard to with in Ford v. approach was our developing [s] the task of insanity, to the State “we leave restriction constitutional ways to enforce the appropriate sentences.”[72] of upon [their] execution considerable states with provided likewise is to be a offender juvenile determine how discretion to war- as an individual sufficiently culpable adjudged In life sentence.73 a nonparolable of imposition rant Scott, Guilty by Steinberg Reason original). & Less in See also alteration relatively (“Only Adolescence, Psychologist a small at 1014 58 Am of risky illegal experiment activities in proportion who of adolescents persist into patterns problem develop of behavior entrenched ....”). justified by nonparolable “be life sentence can a adulthood Nor altogether the rehabili- goal because it “forswears of rehabilitation” person’s judgment about that irrevocable and “makes an tative ideal” Steinberg Graham, society.” US at 74. See also place 560 value Adolescence, Psychologist at Scott, Guilty by 58 Am Reason Less & offenders, juvenile (stating the criminal behavior of that because 1015 criminals,” diagnosis typical quite that of adult different from “is 18). age of made before the personality disorder is not of antisocial 71 (“We persuaded Atkins, that the execution are not 536 US at 321 measurably or the mentally advance the deterrent criminals will retarded penalty.”). purpose of the death retributive 72 399, 405, 416-417; Wainwright, 106 US quoting Ford Id. (alterations omitted) (1986) (citation L Ed 2d 335 S Ct original). subsequent instance, If, to hold a Court were jury requires right jury a trial to a that the Sixth Amendment decision imposing purposes a culpability for a offender’s determine Mich Dissenting Opinion Kelly, J. Atkins, words, other after a court must make an indi- vidual determination of whether an offender’s mental capacity precludes penalty.74 consideration of the death After so too court an must make individual youth determination whether offender’s and attendant preclude characteristics consideration of life sentence.75 That Atkins nonparolable required procedural safeguards states to additional provide to en- they sure that complied with substantive limitations Eighth negate Amendment does not its substantive nature,76 just requirement procedural Miller’s of new safeguards negate does not its substantive nature. words, Atkins Miller defined precisely other neither nor the class of offenders from precluded particular punish- ment; rather, fact-finders must examine individual culpa- bility to determine a particular whether offender is eli- nonparolable sentence, hypothetical holding life then that future wouldbe procedural Summerlin, considered rather than substantive. See 542US 348. determination, law, made This individual under state also shows the majority’s interpretation Teague, of the and weakness “form effect” requires which a substantive decision to have uniform effect. Because Atkins left with states considerable discretion to define mental retarda tion, person precludes capacity whose mental consideration the death penalty subject penalty in one state could be death nevertheless to the majority struggles a different state. The to fit Atkins its “form within interpretation particularly given effect” that the state’s exercise of its — only culpable discretion both Miller and Atkins is to ensure that subject punishment offenders are to the ultimate available to adults, respectively. offenders and 75Furthermore, just as “some characteristics of mental retardation strength procedural protections capital undermine the of the that our Atkins, jurisprudence steadfastly guards,” 317, some US at charac youth existing procedural protections teristics of likewise undermine the justice system, including right in our to the effective assistance of counsel, (suggesting at _; US 132 S Ct at 2468 that a may prejudiced incapacity offender be because of “his to assist attorneys”). his own (CA 2003) Holladay, (holding In re 331 F3d that applies retroactively). Atkins People Caep Kelly, J. Opinion Dissenting The broad deference thus that punishment. gible of the individualized adjudication in the afforded to states and Miller reinforces under Atkins required hearings holdings. nature of those the substantive in a end, Miller majority place strains to comfortably it will not fit. box into which procedural between the substantive differences Miller is based on culpabil- reduced potentially and the juveniles adults they that commit. While for the crimes ity juveniles to the decision—as implications procedural there are “form and effect” acknowledged Miller itself —the Eighth phrase, is majority’s to use the opinion, on how states substantive limitation places Amendment we hold Accordingly, offenders. would punish juvenile can federal law. retroactively under applies that Miller majority with the agree if we were Even rule of criminal procedure, announced a new our not, supports do an alternative basis which we retroactively. That apply Miller should conclusion that matter, we hold would is, separate independent as a It is under state law. applies retroactively that Miller turn. analysis that we now UNDER MICHIGAN LAW III. RETROACTIVITY

A. ANALYSIS that three consistently asserted factors This Court has new rule of crimi- whether a determining are relevant retroactively under state nal procedure applied should does not law, procedure if such new rule of criminal even under federal law: retroactively apply (2) (1) rules; general reliance purpose of the new (3) applica rule[;] and the effect of retroactive on the old justice.[77] administration of the new rule tion 77 (1998). 60-61; Sexton, Mich 580 NW2d v 496 Mich 440 Dissenting Opinion by Kelly, J. county

The prosecutors involved these cases and Attorney argue General that this Court should existing reverse this caselaw and rule retroac- tivity analysis Michigan under law is identical retroactivity analysis under federal law as articulated in Teague and its progeny. They claim that our caselaw is outdated because it applies the test for retroactivity the Supreme Court abandoned in Teague.78 The Court, Supreme however, has explicitly recognized that Teague’s approach to retroactivity incorporates federal- ism and comity concerns “are unique federal habeas review of state convictions.”79 Therefore, “[i]f anything, considerations comity militate favor of state allowing grant courts to habeas relief to a broader class of individuals than required by Teague.”80 To end, we duly years concluded ago six that “a state may court use a different test give broader effect to a new rule of criminal procedure established the United States Court.”81 There is no reason to abandon that approach now.

B. APPLICATION stated, As the first factor that a reviewing court must consider assessing a new rule’s retroactivity under state law is the purpose of the new rule. “Under the ‘purpose’ prong, may law applied retroactively when it ‘concerns the ascertainment of guilt inno- cence[,]’ ‘a however, rule procedure new . . . which Walker, See Linkletter v 618, 626; 1731; 381 US 85 S Ct 14 L Ed 2d 601(1965). Minnesota, 264, 279; 1029; 128 S Ct 169 L Ed 2d Danforth (2008). 80 Id. at 279-280. 81 People Maxson, (2008). 482 Mich 392 n 759 NW2d 817 See id. at 404-405 J., also dissenting). (Cavanagh, 551 v Opinion by Dissenting Kelly, J. fact-finding process integrity the of the not does affect ”82 sentencing While effect.’ prospective be given should guilt of or the not concern ascertainment do procedures offense, sentencing is a underlying for the innocence to ascer- the sentencer that allows fact-finding process Indeed, the offense.83 culpability an tain offender’s to deter- fact-finding process a new Miller mandates appropri- life is sentence nonparolable mine whether result, this supports As a factor in a case. particular ate of Miller. application the retroactive 82 (citation Sexton, 393, Maxson, quoting 458 Mich at 63 Mich at 482 omitted). quotation marks (1968) 2, 32; 3-4; Rhay, 21 L Ed 2d 89 S Ct See McConnell fact-finding process (stating sentencing integrity the to the that relates Linhletter). ground majority narrowly on the The reads McConnell under right during implicated the counsel the that McConnell to sentencing process However, precisely process. did the so because jurisprudence fact-finding Indeed, part process. Court’s this own the sentencing process requiring involving sentencing the as describes See, e.g., People determination[s].” sentencing court to make “factual (2003) (citations Babcock, Mich 666 NW2d omitted). yet quotation fact this Court has not had marks The analyze sentencing process in the of retroac opportunity context to tivity prevent principles articulated from that we have does not applying context. in this claim, majority’s Contrary that the it is irrelevant determining pre-Teague framework in Court has abandoned the retroactivity jurisprudence. independent In- application of this state’s deed, obligation saying ... maintain this has “no to forever understanding,” every past with federal Linkletter test in accordance Michigan’s 500, classifying retroac- foundational caselaw ante at “defunct,” stating “only the tivity extraor- test ante at mean, may dinary procedure,” “will whatever that new rule criminal retroactivity retroactively Michigan’s applied when is not test under perilously already Teague," close to under ante at 497 comes mandated deciding principles underlying state’s traditional maintain the Teague progeny retroactivity and its militate framework when retroactivity Michigan’s retroactivity. not turn frame- We would favor (James parchment Federalist No. barrier. See work into such Madison) ed, 2002), (Wright p 343. 496 Mich 440 Dissenting Opinion Kelly, J. The second factor “examines whether individual per- sons entities have ‘adversely positioned been ... reliance’ on the old rule.”84 Detrimental on the reliance rule old can apply defendants who have “suffered harm as a result of that they reliance” when would have an pursued that “would appeal have resulted in some cases, form of relief.”85 In these defendants ad- were versely positioned in reliance the old rule because judges the not sentencing did have discretion provide to a sentence other than nonparolable because, life and Miller, until there was no basis in existing caselaw to this lack of appeal Moreover, discretion.86 because the Court stated that imposition nonparolable life Miller, sentences would be “uncommon”87 after it is likely many that juvenile already offenders serv- ing nonparolable life have, fact, sentences would in been to a years sentenced term of if they had received a sentencing hearing pursuant result, As a Miller. this (citation Maxson, omitted). 482 Mich at 394 omitted). (emphasis at Id. 86 Indeed, sentencing judge sought Davis’s to sentence him a term years nonparolable instead of a life term and was overturned on the prosecution’s appeal. This fact alone illustrates how defendants as a class adversely positioned Miller, were in every reliance on the old rule—after relief,” i.e., defendant is entitled “some form of an individualized sentencing hearing that punishment allows the sentencer to consider a nonparolable Maxson, omitted). less than (emphasis life. 482 Mich at 396 Maxson, juvenile Unlike we cannot that assume did offenders not appeal nonparolable their to, life sentences “because of factors unrelated existing before, Instead, and the old any rule.” Id. must we assume that appeal simply provided failure to judge occurred because the old rule no nonparolable with discretion to deviate from a life sentence. That Michigan upheld constitutionality pre-Miller caselaw of our sentenc scheme, ing People Launsburry, App see 217 Mich 551 NW2d 460 (1996), supports further defendants’ detrimental reliance on old rule mandatory nonparolable because reduced the that likelihood life appeal. sentence would been have overturned on 87Miller, at_; 567 US at S Ct 2469. Cakp Dissenting Opinion Kelly, J. application also the retroactive supports factor Miller,88 Nevertheless, prong dispositive: is not reliance must balance detrimental reviewing court factors, . . as old the other . well “against rule all defendant. . . has received the fact that each against he she was entitled the law to which rights under at the time.”89 “appropriate for repeating that occasions It bears Miller’s statements juveniles possible penalty sentencing will be uncommon” to this harshest only juvenile a crime “reflects will commit the “rare offender”

and added) (emphasis irreparable corruption.” at_; Id. 132 S Ct at 2469 omitted). (citations result, majority’s quotation marks As a claim and gain “speculative presume that offenders will it is at best” to Miller, questionable. Ante indeed at 509. relief under is age contrary majority’s chronological Furthermore, to the assertion that heavily weigh relatively at time of the offense “will at the chronological age hearings,” n offender’s ante at 509 determining the offender relevant whether deserves one consideration death) (and Miller, prison.” at_; Ct at 132 S “sentence life Miller, Indeed, the offender’s under a sentencer must consider 2468. family chronological development, age, and and home mental emotional environment, rehabilitation, potential along with the circumstances offense, in the include the individual offender’s role crime of the which juvenile. pressures may peer Id. at have affected whether familial stated, Simply must _; 132 S Ct 2468. under a sentencer any concluding all that life without “examine these circumstances before appropriate penalty.” possibility at_; 132 S at 2469 [is] of the Id. Ct added). majority, however, places “significant weight” (emphasis a The on By juvenile’s chronological age at the of the offense. Ante at 509 n 35. time age majority stating of at the the that a who nears the time of leniency,” 508, likely” “special ante at a to be that offense is “least afforded offense,” “may during proceedings related to the even turn the nonparolable “increasingly likely to 509 n life sentence is ante at that age age majority, permissible” extent nears the of to the the offender’s be single age “may n the best factor” for ante at 470 and that well constitute 35, majority generalizations determining culpability,ante at n the makes ignore of the Miller’s multifaceted and holistic examination offender’s individual characteristics. 89Maxson, majority second Mich at 397. The concludes prosecutors perspective the “must both from

factor be considered faithfully by prosecutors abided the constitutional across the state when 496 Mich 440 Dissenting Opinion by Kelly, J.

Indeed, the applying third factor takes into account on this reliance the old rule whether examining the applying retroactively new rule would undermine the “strong finality state’s interest in of the criminal ,”90 justice Nevertheless, process . . . this factor does not against counsel in the retroactivity way majority put, asserts does. Simply applying Miller retroactively would not affect finality in convictions this state. Rather, it would require an individualized resen- process tencing for small relatively prison- class ers nonparolable sentenced to life for homicides that they juveniles.91 committed while majority

The concludes that requiring hearing offenders whose appeals direct are complete would be “burdensome and if complicated,” not “almost guarantees place in conviction,” at the time of a defendant’s and “from the perspective collective of the 334 who defendants would be entitled to resentencing applied if retroactively.” the new rule were Ante at 503. However, principle not is found in this Court’s traditional caselaw regarding retroactivity, justice’s authoring and the own examination of retroactivity engage in v Maxson did not in such an additional inquiry. Maxson, Indeed, See 482 Mich at 394-397. as Maxson acknowl- edged, regarding retroactivity requires our traditional caselaw us to balance “against the other factors the fact that each defendant... has received all rights under the law which he or she was entitled at the time.” Id. at majority’s application retroactivity 397. gives The of our caselaw the state’s weight by factoring reliance interests undue those interests twice—once as part again part of the second majority factor and the third factor. The any pointed support revisiting has not authoring reasons that would justice’s retroactivity years examination of Maxson the six since it was decided. 90Maxson, 482 Mich at 397. resentencing hearings evenly If among were to divided bench, judge receive, average, circuit court circuit each would two sentencing hearings. hardly judicial additional That strain on the state’s potential This is in “guilty-pleading resources. stark contrast to the appellate [had] [to] defendants whose convictions become final inundate process that, appeals” part, prompted majority with new of this Court to reject retroactivity Michigan, 2582; of Halbert v 125 S Ct (2005). Maxson, 162 L Ed 2d 482 Mich at 398. 555 by Dissenting Opinion Kelly, J. re- doubt majority’s the Setting aside impossibl[e]____”92 the evidence reconstructing possibility the garding goal is to hearing, a Miller’s conduct such to required ability offender’s as determine, possible, best as Miller— under sentencing hearing A to reform.93 decades many years or even conducted one particularly determining offense—will assist original after threat... physical an offender “pose[s] whether neighbor- vulnerable most living our individuals irreparably corrupt.95 This and, consequently, is hoods”94 has Legislature where the Michigan, true particularly is Miller may hearing pursuant conducted decided that circumstances, changed including post- take into account majority errs assert- Accordingly, arrest conduct.96 can effec- “fanciful” to believe that Miller ing that it is Miller retroactively applying or that tively applied “premature result in the inevitably will retroactively who “continue to large persons” release numbers physical threat----”97 pose supports ap- each of these factors retroactive

Because law, Miller under state we would hold that plication of law, judicial proceedings, particularly are Ante at The and 510. complicated. frequently some That the Constitution burdensome complicated proceedings requires should not times burdensome rights impede duty our ensure that constitutional are enforced. reconstructing majority’s emphasis of the The the circumstances activity impulsiveness mis offender’s crime result, hearing majority misinterprets placed. called for As a entirely backward-looking. goal is to Miller Miller’s ensure under evidence that it has available to it in court considers the ability deciding has the to reform. whether an individual offender Ante 510. 95 Miller, at_; S Ct at 2469. See 769.25(6) (allowing sentencing court to consider at the See MCL “any sentencing hearing under other criteria relevant to its [sentencing] decision, including record while incarcer the individual’s ated”). 97Ante at 510-511. Dissenting Opinion by Kelly, 496 MICH 440 J. grounds state law

independent exist to apply ret- roactively.

IV CONCLUSION For opinion, the reasons stated respectfully we from the majority’s dissent decision not to apply Miller retroactively Alabama under either federal state Instead, law. we Appeals would reverse the Court of Carp and Davis and remand St. Clair Circuit Wayne Court, Court and Circuit respectively, resen- pursuant MCL tencing 769.25a.98 Because Miller struck down sentencing schemes that applied manda- tory nonparolable life to juvenile sentences homicide offenders, it altered the range of sentences that may be on a imposed juvenile homicide offender and effected a change substantive The law. has majority ruled that not all offenders will receive the benefit of Miller’s decision to foreclose a state from mandating a nonparolable sentence, life notwithstanding the Su- preme Court’s assertion that the “rare offender” will commit crime that irreparable “reflects corruption” punishable by a nonparolable life sen- result, tence.99As a although Miller held that “children are different” as a matter law,100 of constitutional to- day’s that, decision ensures merely because of a timing conviction and some children appeal, are more different than others. JJ., CAVANAGH and concurred with MCCORMACK, J.

Kelly, indicated, previously As we would also remand Eliason to the resentencing pursuant 769.25, Berrien Circuit Court for to MCL as the majority does. 99 added) (citations at_; (emphasis 132 S Ct at 2469 omitted). quotation marks Id. at_; 132 S Ct at 2470. notes correctly that Jackson received retroactive relief under Miller. Id. 132 S being said, Ct at 2475. That at_; the fact that Jackson received the benefit of Miller being applied retroactively does not lead to the conclusion that Miller must to applied retroactively any other defendant. This is because the assertion that rule is nonretroac- is tive an defense,” “affirmative to a prosecu- available in objection tor relief being collateral sought by a Runnels, defendant. v Thompson 1089, 705 F3d (CA 2013) 9, (noting Bohlen, v Caspari 510 US “ (1994) 389; 948; 114 S L Ct 127 Ed 2d 236 held that ‘a may, not, federal court but need decline to apply Teague if argue it,’ the State does not but ‘if the State does argue that the defendant seeks the benefit of a new rule law, of constitutional the court apply Teague must ”). before considering the merits such, claim’ As argument the nonretroactivity must be affirmatively by raised raised, state and when it not is it is waived: Teague it, Since State can waive the raising bar not propriety reaching and since the dispute the merits of a an important deciding is consideration in whether or not to certiorari, grant any Teague the State’s omission of defense petition stage significant. at the Although is we undoubt- edly argu- have the Teague discretion reach State’s Caep v ment, [Schiro do so in these circumstances. we will not 222, 229; L 2d 47 127 Ed Farley, S Ct omitted).] (citation (1994) the nonretroactiv- sense, a on premised In this defense ” nature, and ‘jurisdictional’ “not of a new rule is ity to conduct any duty sponte does have sua the court not US Youngblood, retroactivity analysis. Collins (1990). Rather, 2715; 111 L 2d 30 41; 110 S Ct Ed retroactivity “grounded question because relations,” a considerations federal-state important Teague” without rely free to not to “[choose] state is By choice. Id. invalidating that the federal courts’ Jackson, defense the defense in not raise opting Miller should be whether question waived and was to the United retroactively presented was never applied Supreme Court.22 States of even- however, “principles contends that Carp, applied rule in Miller be dictate that the justice” handed retroac- applied since it was retroactively in his case

Case Details

Case Name: People of Michigan v. Raymond Curtis Carp

Court Name: Michigan Supreme Court

Date Published: Jul 8, 2014

Citation: 496 Mich. 440

Docket Number: Docket 146478, 146819, and 147428

Court Abbreviation: Mich.