People of Michigan v. Raymond Curtis CarpPeople of Michigan v. Raymond Curtis Carp
Lead
We granted leave to appeal to address (1) whether Miller v Alabama, 567 US_;
I. FACTS AND HISTORY
A. DEFENDANT CARP
Defendant Raymond Carp was 15 years of age when he participated in the 2006 bludgeoning and stabbing of Mary Ann McNeely in Casco Township. He was charged with first-degree murder in violation of MCL 750.316 and tried as an adult. On October 5, 2006, a St. Clair County jury convicted Carp of this offense, and in accordance with the law he was sentenced to life imprisonment without parole. Carp’s conviction was subsequently affirmed by the Court of Appeals, People v Carp, unpublished opinion per curiam of the Court of Appeals, issued December 30, 2008 (Docket No. 275084), and his
In September 2010, Carp sought to collaterally attack the constitutionality of his sentence by filing a motion for relief from judgment pursuant to MCR 6.501 et seq. The trial court denied this motion, concluding that the imposition of a mandatory sentence of life without parole on a juvenile first-degree-murder offender did not constitute cruel or unusual punishment, citing People v Launsburry,
B. DEFENDANT DAVIS
Defendant Cortez Davis, age 16 at the time of his offense, and one of his cohorts, while both brandishing firearms, accosted two individuals in Detroit for the purpose of robbery.
At sentencing, the trial court initially ruled that Michigan’s statutory sentencing scheme for first-degree murder could not constitutionally be applied to juvenile homicide offenders because it was “cruel and unusual” to impose a sentence of life without parole on a juvenile who was “capable of rehabilitation.” In concluding that Davis was such an individual, the court surmised that Davis’s role in the commission of the offense was that of an aider and abettor, not an actual shooter. The court, however, did not make any finding concerning Davis’s intentions with respect to the fleeing victim or whether
On appeal, however, the Court of Appeals reversed and remanded for resentencing pursuant to Michigan’s statutory sentencing scheme, People v Davis, unpublished order of the Court of Appeals, entered November 23, 1994 (Docket No. 176985), and at resentencing, the trial court imposed the required sentence of life without parole. Direct appellate review of defendant’s conviction and sentence concluded in 2000. People v Davis, unpublished order of the Court of Appeals, entered June 15, 2000 (Docket No. 224046).
In 2010, Davis filed his current motion for relief from judgment, contending that Graham v Florida,
C. DEFENDANT ELIASON
Unlike Carp and Davis, whose sentences became final for purposes of direct review
While Eliason’s appeal was pending before the Court of Appeals, Miller was decided. In assessing the effect of Miller on Michigan’s sentencing scheme for juvenile first-degree-murder offenders, the Court of Appeals held that a trial court must as a result of Miller perform an individualized sentencing analysis based upon the factors identified in Miller. People v Eliason,
II. MICHIGAN STATUTES
Pending our resolution of this appeal, and in response to Miller, the Legislature enacted, and the Governor signed into law,
A. PRE-MILLER
To understand the full context of defendants’ appeals and the relief each seeks in reliance on Miller, it is necessary first to delineate the pre-Miller statutes that controlled the trial and sentencing of juvenile first-degree-murder offenders in Michigan. Each defendant before this Court was charged with first-degree murder under MCL 750.316. When a juvenile defendant “14 years of age or older” is charged with a felony, the family division of the circuit court would typically possess initial jurisdiction. MCL 712A.4(1). However, when a juvenile is charged with a “specified juvenile violation,” including first-degree murder in violation of MCL 750.316, “the prosecuting attorney may authorize the filing of a complaint and warrant on the charge . . ..” MCL 764.1f. If the prosecutor does so, the circuit court itself, rather than the family division of the circuit court, acquires jurisdiction over the juvenile defendant’s case and must try that person as an adult. See MCL 712A.2(a)(l).
This process has been termed the “automatic waiver process” because the Legislature has vested exclusively in the prosecutor the executive discretion to charge and try a juvenile as an adult when the juvenile stands accused of first-degree murder. People v Conat,
B. POST'-MILLER
MCL 769.25, enacted in response to Miller, prescribes a new sentencing scheme for juveniles convicted of violating certain provisions of Michigan laws, such as MCL 750.316, that had previously carried with them a fixed sentence of life without parole. The effect of MCL 769.25 is that even juveniles who commit the most serious offenses against the laws of this state may no 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 parole on all defendants convicted of violating MCL 750.316, MCL 769.25 now establishes a default sentencing range for individuals who commit first-degree murder before turning 18 years of age. Pursuant to the new law, absent a motion by the prosecutor seeking a sentence of life without parole,
the court shall sentence the individual to a term of imprisonment for which the maximum term shall be not less than 60 years and the minimum term shall be not less than 25 years or more than 40 years. [MCL 769.25(4) and (9).]
When, however, the prosecutor does file a motion seeking a life-without-parole sentence, the trial court “shall conduct a hearing on the motion as part of the sentencing process” and “shall consider the factors listed in Miller v Alabama . . . .” MCL 769.25(6). Accordingly, the sentencing of juvenile first-degree-murder offenders now provides for the so-called “individualized sentencing” procedures of Miller.
In adopting this new sentencing scheme, the Legislature was clearly cognizant of the issue surrounding whether Miller was to be applied retroactively. In defining the scope of the new scheme, the Legislature asserted that “the procedures set forth in [MCL 769.25] do not apply to any case that is final for purposes of appeal on or before June 24, 2012 [the day before the United States Supreme Court’s decision in Miller].” MCL 769.25a(l). Instead, the Legislature specified:
If the state supreme court or the United States supreme court finds that the decision of the United States supreme court in Miller v Alabama. [567] US_;183 L Ed 2d 407 ;132 S Ct 2455 (2012), applies retroactively to all defendants who were under the age of 18 at the time of their crimes, and that decision is final for appellate purposes, the determination of whether a sentence of imprisonment for a violation set forth in [MCL 769.25(2)] shall be imprisonment for life without parole eligibility or a term of years as set forth in [MCL 769.25(9)] shall be made by the sentencing judge or his or her successor as provided in this section. [MCL 769.25a(2).][4 ]
III. STANDARD OF REVIEW
Whether a decision of the United States Supreme Court applies retroactively under either federal or state retroactivity rules poses a question of law that is reviewed de novo. Maxson,
IV ANALYSIS
To determine whether Miller must be applied retroactively, it is helpful to first identify exactly what Miller held by way of understanding what precedents were relied on in forming its rule. Miller is the product of “two strands of precedent,” one requiring a particular form of individualized sentencing before capital punishment can be imposed and the other addressing the constitutionality of imposing specific punishments on juvenile offenders. Miller, 567 US at_;
A. GENESIS OF MILLER
1. CAPITAL-PUNISHMENT STRAND
In Furman v Georgia,
In Woodson, the Court, in another 5-4 decision, held that those schemes were unconstitutional. The plurality opinion
Following Woodson and Gregg, the United States Supreme Court confronted two additional cases challenging whether the sentencing procedures employed to impose capital punishment complied with Woodson's requirement of individualized sentencing determinations. See Lockett v Ohio,
In Eddings, the Court, in a 5-4 decision, applied Lockett to a case in which the trial court, in considering mitigating factors before imposing capital punishment, declined to consider either the defendant’s family background, including the physical abuse and neglect he had suffered, or the fact that he suffered from an alleged “personality disorder.” Eddings,
2. JUVENILE-SENTENCING STRAND
The second strand of precedent was developed in two cases, Roper v Simmons,
In Roper, the Court held that the “Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.” Roper,
3. MILLER v ALABAMA
Miller v Alabama created the rule that Carp and Davis seek to have applied retroactively. Having identified what is required by the rules from each of the two strands of precedent that underlie Miller, we now identify what is required by the rule in Miller in order to determine whether Miller is more like the juvenile-sentencing strand whose rules have applied retroactively under Teague or more like the capital-punishment strand whose rules have not been applied retroactively under Teague. We compare and contrast the rule in Miller in this way because, as discussed later, the “form and effect” of a rule is essential in determining whether a rule is to be applied retroactively under Teague. One form of a rule will produce a single invariable result, or a single effect, when applied to any defendant in the class of defendants to whom the rule is pertinent. Another form of a rule will produce a range of results, or have multiple possible effects, when applied to different defendants in the class of defendants to whom the rule is pertinent. The form and effect of the rules derived from the capital-punishment strand of precedent varies considerably from the form and effect of the rules derived from the juvenile-sentencing strand of precedent, and this variance has markedly different consequences for the question of retroactivity. The capital-punishment
Miller held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Miller, 567 US at_;
Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features— among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth — for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it. [Id. at_;132 S Ct at 2468 (citation omitted).]
Miller’s summarization of what the trial court must evaluate as part of the new individualized sentencing process tracks in large part the two measuring points about which a defendant must be allowed to present mitigating evidence within the capital-punishment context of Lockett — evidence relating to “the ‘circumstances of the particular offense and [to] the character and propensities of the offender.’ ” Id._n 9; 132 S Ct at at 2471 n 9, quoting Roberts v Louisiana,
It is considerably more difficult to draw the same comparison between the rule in Miller and the categorical rules in Graham and Roper. Indeed, the United States Supreme Court itself specifically distinguished the form and effect of these rules:
Our decision does not categorically bar a penalty for a class of offenders or type of crime — as, for example, we did in Roper or Graham. Instead, it mandates only that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics — before imposing a particular penalty. [Miller,567 US at _;132 S Ct at 2471 .][6 ]
Thus, rather than relying on Graham and Roper to give form and effect to Miller, in the same manner as the capital-punishment decisions, the Court relied on Graham and Roper in Miller only for a generalized “principle” regarding juvenile offenders. Id. at_;
B. FEDERAL RETROACTIVITY
1. GENERAL OVERVIEW
There is a “general rule of nonretroactivity for cases on collateral review” when it comes to applying new constitutional rules to cases that became final before the new rule was announced.
For this reason, the first inquiry in which a court must engage when
When a rule is deemed a “new rule” and the general rule of nonretroactivity applies, a court must then engage in Teague’s second inquiry, to wit, whether the “new rule” satisfies one of Teague’s two exceptions to the general rule of nonretroactivity for new rules. See id. If the “new rule” satisfies either of Teague’s two exceptions, then it will be applied retroactively. Id. If, however, the “new rule” fails to satisfy either of those exceptions, the rule will only be entitled to prospective application. Id. Whorton succinctly summarized Teague’s two exceptions to the general rule of rionretroactivity as follows:
A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a “ ‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” [Whorton,549 US at 416 , quoting Saffle,494 US at 495 , quoting Teague,489 US at 311 (opinion by O’Connor, J.) (alteration in original).]
2. “NEW RULE”
Turning to the first inquiry of the retroactivity analysis, whether the rule in Miller is “new,” we note that the United States Supreme Court has defined a rule as “new” when the rule “ ‘breaks new ground,’ ‘imposes a new obligation on the States or the Federal Government,’ or was not ‘dictated by precedent existing at the time the defendant’s conviction became final.’ ” Saffle,
It is apparent, in our judgment, that the rule in Miller constitutes a new rule. Miller imposed a hitherto-absent obligation on state and lower federal courts to conduct individualized sentencing hearings before imposing a sentence of life without parole on a juvenile homicide offender. As part of this process, a prosecutor seeking a life-without-parole sentence must now present evidence of aggravating factors relevant to the offender and the offense, juvenile defendants must be afforded the opportunity and the financial resources to present evidence of mitigating factors relevant to the offender and the offense, psychological and other evaluations relevant to the youthfulness and maturity of the defendants must be allowed, and courts must now embark upon the consideration of aggravating and mitigating evidence offered regarding juvenile defendants as a condition to imposing sentences that previously required no such consideration. It thus seems certain as a result of Miller that a considerable number of juvenile defendants who would previously have been sentenced to life without parole for the commission of homicide offenses will have a lesser sentence meted out. Under Teague and Saffle, these new obligations clearly render the rule in Miller a new rule. We are not aware of any statement of this Court by any justice before Miller that argued in support of, or anticipated, the constitutional requirements set forth in that decision. Unless every affirmation by this Court of a sentence of life without parole on a juvenile offender before Miller, including those that followed decisions such as Roper, Graham, Eddings, and Lockett, can be characterized as “unreasonable,” there cannot be serious argument that Miller did not define a “new rule.”
Although Miller may be “within the logical compass” of earlier decisions, and built upon their foundation, cases predating Miller can hardly be read as having “dictated” or “compelled” Miller’s result. Miller undoubtedly broke new ground in that it set forth the first constitutional rule to mandate individualized sentencing before noncapital punishment can be imposed. In this respect, the capital-punishment cases, although providing a model for the form and effect of Miller, would not have required a reasonable jurist to conclude that a life-without-parole sentence for a juvenile could only be constitutionally imposed following an individualized sentencing hearing.
Turning to the juvenile cases, Roper also dealt exclusively with the imposition of capital sentences without discussing the constitutionality of life-without-parole sentences and the need for individualized sentencing hearings. While Graham’s focus was on life-without-parole sentences, its constitutional rule was limited to nonhomicide offenses, and it did not make individualized sentencing the constitutional threshold for imposing a sentence of life without parole. Furthermore, while Graham drew a comparison between life-without-parole sentences for juvenile offenders and capital punishment, which was pivotal in deciding Miller, Graham also stopped well short of finding the two punishments equivalent. See Graham,
3. PROCEDURE VERSUS SUBSTANCE
Concluding that Miller announced a new rule, we turn to the second inquiry, whether the rule in Miller fits within one of Teague's two “narrow exceptions” to the general rule of nonretroactivity. Saffle,
The first exception differentiates between new substantive rules and new procedural rules, allowing for the retroactive application of only the former. See Whorton,
discussion is written only with new ‘procedural due process’ rules in mind, that is, those applications of the Constitution that forbid the Government to utilize certain techniques or processes in enforcing concededly valid societal proscriptions on individual behavior. New ‘substantive due process’ rules, that is, those that place, as a matter of constitutional interpretation, certain kinds ofprimary, private individual conduct beyond the power of the criminal law-making authority to proscribe, must, in my view, be placed on a different footing [and afforded retroactive application], [Mackey, 401 US at 692 (Harlan, J., concurring in the judgments in part and dissenting in part).]
Justice Harlan supported this differentiation by emphasizing that retroactive application of a substantive rule “represents the clearest instance where finality interests should yield” because “[t]here is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose.” Id. at 693. Contrasting the retroactive application of a substantive rule with that of a procedural rule, Justice Harlan proceeded to offer the observation that the retroactive application of a substantive rule “entails none of the adverse collateral consequences of retrial” certain to follow the retroactive application of a procedural rule. Id. This is because a substantive rule precludes the possibility of retrial given that its application dictates a single result for the class of individuals or type of conduct formerly regulated by the old rule and now governed by the new rule. It is in this sense that categorical rules, such as those derived from the juvenile-sentencing strand of precedent, are substantive because they have a “form and effect” that always results in the imposed punishment being unconstitutional, i.e., they produce a “single result.” Conversely, noncategorical rules, such as those derived from the capital-punishment strand of precedent — and Miller — are procedural because they have a “form and effect” that does not always result in the imposed punishment being unconstitutional, i.e., they do not produce a “single result.” The latter rules merely require a court to perform a new or amended analysis before it can be determined whether a given punishment can be imposed on a particular defendant.
Teague subsequently adopted Justice Harlan’s distinction between procedural and substantive rules, including the definition of when a rule is substantive. Teague,
Although Teague addressed whether a new rule germane to the trial stage of a criminal case could be applied retroactively, later cases have addressed whether new rules pertaining only to punishments and the sentencing phase are substantive and fit into Teague’s first exception to the general rule of nonretroactivity. In so doing, the United States Supreme Court has provided three descriptions of what makes a new rule “substantive” within the context of a new rule governing the sentencing stage of a criminal case. Each of these, however, can be boiled down to whether the punishment imposed is one that the state has the authority to, 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] a certain category of punishment for a class of defendants because of their status or offense.” Penry,
Second, a new rule has been described as “substantive” if it “alters the range of conduct or the class of persons that the law punishes.” Schriro,
Third, a new rule has been described as “substantive” when it “narrow[s] the scope of a criminal statute by interpreting its terms . ...” Id. at 351, citing Bousley,
In distinguishing what makes a new rule substantive, the United States Supreme Court has also afforded considerable direction regarding the qualities and contours of nonsubstantive, or procedural, rules. Simply put, “rules that regulate only the manner of determining the defendant’s culpability are procedural.” Schriro,
Turning to how the United States Supreme Court has applied this distinction between substantive and procedural rules, in Schriro the Court was confronted with whether the new rule from Ring v Arizona,
did not alter the range of conduct Arizona law subjected to the death penalty. ... Instead, Ring altered the range of permissible methods for determining whether a defendant’s conduct is punishable by death, requiring that a jury rather than a judge find the essential facts bearing on punishment. Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules, a conclusion we have reached in numerous other contexts. [Schriro,542 US at 353 .]
In Saffle, the Court similarly deemed a new rule “procedural” when it would have prohibited anti-sympathy instructions to juries performing the individualized sentencing process as a condition to imposing capital punishment. See Saffle,
Although the new procedures required by Miller may be more elaborate and detailed than the new procedures at issue in
Considering Miller’s self-description of its rule, it is clear that the rule is not substantive within the terms of the first description of when a rule is substantive, i.e., when the rule “prohibits] a certain category of punishment for a class of defendants because of their status or offense.” Penry,
The second description of when a rule is substantive is equally of no avail to Carp and Davis because a rule is substantive under that description only when it alters the range of punishments that a state is permitted to impose by foreclosing the state’s ability to impose the punishment defendant is serving. See Schriro,
The third description of when a rule is substantive is altogether inapplicable to Miller. The decision did not rest on any principle of statutory interpretation, and it did not pertain to a situation in which life-without-parole sentences were being imposed on juvenile homicide offenders absent
Ultimately, the rule in Miller is procedural because, as with the rule in Ring, it merely shifts “decisionmaking authority” for the imposition of a life-without-parole sentence on a juvenile homicide offender.
An additional consideration serves to strengthen this conclusion. In its description of the rule in Miller, the articulation employed by the United States Supreme Court is telling. Teague’s retroactivity analysis distinguishing substantive and procedural rules is in no sense new or novel. Rather, the proposition that “substantive categorical guarantees” should receive retroactive application while “procedural noncategorical guarantees” should only receive prospective application predates Teague. See Penry,
Carp advances three arguments in an effort to overcome our conclusion that Miller does not qualify for retroactive application under Teague. First, he argues that each of the strands of precedent that underlie Miller has been granted retroactive status. While there may be considerable force to the argument that categorical rules like those in Roper and Graham must be applied retroactively under Teague, the same cannot be said for the strand of cases requiring individualized sentencing before capital punishment can be imposed on an adult offender. Despite considerable effort by Carp, including
In an effort to demonstrate to the contrary, Carp principally cites Sumner, in which the United States Supreme Court held that individualized sentencing was required before capital punishment could be imposed on a defendant, Shuman, who was serving a life-without-parole sentence at the time he committed the capital offense. Sumner,
If, with respect to the application of Woodson, Sumner fell into the latter category, then we might agree with Carp that Woodson had been applied retroactively. Sumner, as it relates to the application of Woodson, however, falls into the former category of cases presenting themselves on collateral review. Woodson was decided on July 2, 1976, and Shuman’s conviction did not become final for direct review purposes until May 17, 1978, nearly two years after Woodson was decided. See Shuman v State, 94 Nev 265;
Apparently anticipating these flaws in the argument that Woodson has been applied retroactively, Carp contends that Sumner itself has been applied retroactively post-Teague. For this proposition, he cites Thigpen v Thigpen, 926 F2d 1003, 1005 (CA 11, 1991). We, however, do not read Thigpen as addressing the question of Sumner's retroactivity. Although the district court below had applied Sumner retroactively to invalidate Thigpen’s sentence, that portion of the district court’s ruling was never appealed and the only issue before the United States Court of Appeals for the Eleventh Circuit was Thigpen’s appeal concerning whether the
Accordingly, Carp has not succeeded in demonstrating that any of the individualized sentencing capital-punishment cases, i.e., Furman, Woodson, Lockett, Ed-dings, or Sumner, have been applied retroactively under Teague. This failure is pivotal given our earlier conclusion that the rule in Miller is of the same form and effect as the rules in the individualized sentencing capital-punishment cases.
Second, Carp argues that Miller has added “age” and “incorrigibility” as elements of what must be assessed before a life-without-parole sentence can be imposed on a juvenile offender. Carp argues that it follows from this that age and the juvenile offender’s incorrigibility are aggravating factors that raise the mandatory minimum sentence that a defendant could receive under Michigan’s pre-Miller sentencing scheme because they must now be shown by the state before a juvenile offender can be sentenced pursuant to MCL 750.316(1) and MCL 791.234(6). Citing Alleyne v United States, 570 US_;
Even assuming for the sake of argument that Miller made assessments of “age” and “incorrigibility” necessary elements for imposing a life-without-parole sentence on a juvenile homicide offender, Carp’s argument still fails.
Third, Carp cites Miller’s companion case of Jackson v Hobbs as evidence that Miller has already been accorded retroactive status, and therefore presumably that the present judicial exercise has been rendered unnecessary. In offering this argument, Carp is correct that Jackson presented itself on collateral review and that the case was remanded for resentencing pursuant to the rule announced in Miller. Miller, 567 US at_;
Since a State can waive the Teague bar by not raising it, and since the propriety of reaching the merits of a dispute is an important consideration in deciding whether or not to grant certiorari, the State’s omission of any Teague defense at the petition stage is significant. Although we undoubtedly have the discretion to reach the State’s Teague argument, we will not do so in these circumstances. [Schiro v Farley,510 US 222 , 229;114 S Ct 783 ;127 L Ed 2d 47 (1994) (citation omitted).]
In this sense, a defense premised on the nonretroactivity of a new rule is “not ‘jurisdictional’ ” in nature, and the court does not have any duty sua sponte to conduct a retroactivity analysis. Collins v Youngblood,
We can simply refuse to announce a new rule in a given case unless the rule would be applied retroactively to the defendant in the case and to all others similarly situated. ... We think this approach is a sound one. Not only does it eliminate any problems of rendering advisory opinions, it also avoids the inequity resulting from the uneven application of new rules to similarly situated defendants. We therefore hold that, implicit in the retroactivity approach we adopt today, is the principle that habeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review .... [Teague,489 US at 316 (opinion by O’Connor, J.) (all but last emphasis added).]
As evidenced by the very quotation on which Carp relies, the application of the “principles of even-handed justice” only become relevant when the United States Supreme Court has actually undertaken a retroactivity analysis in the course of announcing a new rule. If no such analysis is necessary because of the posture of the case, as here, the Court will obviously not have the occasion to consider whether the new rule can be applied retroactively to all defendants who are situated similarly to the defendant before the Court.
C. STATE RETROACTIVITY
Although states must apply a new rule of criminal procedure retroactively when the new rule satisfies Teague’s exceptions to the general rule of nonretroactivity, they are permitted to “give broader retroactive effect” to a new rule than is required by Teague. Danforth,
Michigan has adopted its own separate test for when a new rule of criminal procedure should be applied retroactively. See Maxson,
Despite Michigan’s having adopted its own retroactivity test that may give broader retroactive effect to some new rules than is mandated by the Teague test, Michigan nonetheless still adheres to the general principle of nonretroactivity for new rules of criminal procedure.
Michigan’s test for retroactivity consists of three factors:
“(1) the purpose of the new rule[]; (2) the general reliance on the old rule[;] and (3) the effect of retroactive application of the new rule on the administration of justice.” [Maxson,482 Mich at 393 , quoting Sexton,458 Mich at 60-61 , citing Hampton,384 Mich at 674 (second alteration in original).]
The first factor, the purpose factor, assesses the nature and focus of the new rule and the effect the rule is designed to have on the implementation of justice. See People v Young,
Carp contends that Miller, although not impheating his guilt or innocence, nonetheless, goes to the “integrity of the fact-finding process” because it is essential to evaluating a defendant’s level of culpability when imposing a sentence. In support of this contention, he cites McConnell v Rhay,
Two considerations, however, leave us unpersuaded that this remark necessitates the conclusion that the first factor of Michigan’s test favors the retroactive application of Miller. First, the new rule applied retroactively in McConnell addressed the right to counsel, a right with unique significance both within the context of the criminal proceeding
Second, even if McConnell supported the expansive view that Carp attributes to it, that view is contrary to how Michigan law describes its own application of the Linkletter test. In every case to date in which this Court has applied the state retroactivity test, the “integrity of the fact-finding process” has always been referred to in the context of determining a defendant’s “guilt or innocence.” Maxson,
In declining to expand the scope of the first factor of Michigan’s state test for retroactivity, we note again that although our state test is derived from Linkletter,
From our holding that the first factor of our state test for retroactivity focuses on whether a new rule of procedure implicates a defendant’s guilt or innocence, it is apparent that the first factor clearly militates against the retroactive application of Miller. As Miller alters only the process by which a court must determine a defendant’s level of moral culpability for purposes of sentencing, it has no bearing on the defendant’s legal culpability for the offense of which the defendant has been duly convicted.
In light then of our conclusion that the first state factor clearly counsels against the retroactive application of Miller, we find it relevant here to address the interplay between the three factors of the test and the weight that must be given to each before we determine the effect of the second and third factors on Miller’s retroactive application. That a test consists of multiple factors does not logically signify that equal weight must be given to each. The United States Supreme Court, in applying the Linkletter test before it adopted the Teague test, observed that the second and third factors “have been regarded as having controlling significance ‘only when the purpose of the rule in question did not clearly favor either retroactivity or prospectivity.’ ” Michigan v Payne,
Placing such an emphasis on the first factor is fully consistent with this Court’s longstanding practice of dealing with the second and third factors “together.” Young,
Turning to the inquiry required to evaluate the second and third factors “together,” the second factor — the reliance on the old rule — must be considered both from the perspective of prosecutors across the state when prosecutors faithfully abided by the constitutional guarantees in place at the time of a defendant’s conviction, see Adams v Illinois,
The inquiry
Applying these considerations in evaluating the second and third factors to Miller, it is apparent that these factors do not sufficiently favor the retroactive application of Miller so as to overcome the first factor’s clear direction against its retroactive application. The old rule permitting life-without-parole sentences on the basis of the pre-Miller sentencing scheme established by the Legislature received in 1996 the specific approval of its constitutionality by our judiciary. Launsburry,
On the basis of this state of the law, prosecutors across Michigan entirely in
Conversely, we note that this is not a situation in which it can fairly be said that, as a group, the 334 defendants who would be entitled to resentencing if the rule in Miller were applied retroactively have “relied” on the old rule to their “detriment.” First, we find it difficult to understand, and Carp and Davis themselves fail to identify, exactly what adverse action the 334 defendants have taken, or opted not to take, in “reliance” on the old rule (except perhaps to recognize and abide by the old rule as the then extant law of this state).
Second, even to the extent that any defendants can be said to have taken or foregone some action to their detriment in reliance on the old rule, 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,
As between defendants and the prosecutors of this state, it is further apparent that the latter have relied far more heavily on the old rule, have done so in good faith, and would have relied “detrimentally” on
Miller requires trial courts to determine a defendant’s moral culpability for the murder the defendant has committed by examining the defendant’s character and mental development at the time of the offense. Even if the myriad evidence could somehow be obtained by the prosecutor, it is fanciful to believe that the backward-looking determination then required of the trial court could be undertaken with sufficient accuracy and trustworthiness so many years after the crime had been committed, the trial completed, and the defendant sentenced. Further, just as the prosecutor might no longer be available to represent the people’s interest, neither might the sentencing judge. We are not confident that the justice achieved by a resentencing process taking place many years after the original trial and sentencing — many years after the victims of the homicide have become little more than historical footnotes to all but their immediate families — and presided over by a judge who can never entirely be situated like the judge who presided over the trial, can effectively replicate the justice achieved at the initial sentencing. Instead, we believe that the trial court’s ability to travel back in time to assess a defendant’s mental state of some 20 years earlier — evidence of which may not even have been gathered at the time — is limited; that the recollection of memories about aggravating and mitigating circumstances — evidence of which may again not even have been gathered at the time — is questionable; and that, as a result, public confidence in the integrity and accuracy of those proceedings will understandably be low.
For these reasons, we find that the second and third factors do not sufficiently favor the retroactive application of Miller
D. CONSTITUTIONAL ISSUES
Defendants raise a series of constitutional challenges arguing that the Eighth Amendment of the United States Constitution or Const 1963, art 1, § 16, or both, categorically bars the imposition of a life-without-parole sentence on a juvenile homicide offender. We consider each challenge in turn.
1. FEDERAL CATEGORICAL BAR
Defendants assert that the Eighth Amendment of the United States Constitution
As noted earlier, the holding in Roper was specifically limited to capital punishment in that the “Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.” Roper,
Turning lastly to Miller, its rule is specifically limited in that it counsels against the very categorical rule sought by defendants. As discussed earlier, Miller requires that an individualized sentencing hearing occur before a life-without-parole
Defendants alternatively contend that, in light of the manner in which state legislatures reacted to Miller by adjusting sentencing schemes governing juvenile homicide offenders, it is now, pursuant to the proportionality review employed in Roper, Graham, and Miller, cruel and unusual punishment to impose a life-without-parole sentence on a juvenile homicide offender. Within the context of the Eighth Amendment, the United States Supreme Court has used a multipart test to determine if a punishment imposed on a juvenile offender is disproportionate:
A court must begin by comparing the gravity of the offense and the severity of the sentence. “[I]n the rare case in which [this] threshold comparison ... leads to an inference of gross disproportionality” the court should then compare the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. If this comparative analysis “validate[s] an initial judgment that [the] sentence is grossly disproportionate,” the sentence is cruel and unusual. [Graham,560 US at 60 , quoting Harmelin,501 US at 1005 (Kennedy, J., concurring in part).]
Starting with the preliminary question whether “the gravity of the offense” is commensurate with “the severity of the sentence,” Graham,
Even if defendants had satisfied the first part of the federal test for disproportionality, however, they have also failed to satisfy the second part of the test, which compares the life-without-parole sentence defendants seek to invalidate “with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same
First, as noted in the first part of this test for proportionality, first-degree murder is almost certainly the gravest and most serious offense that can be committed under the laws of Michigan. As with juveniles, adult offenders who commit the offense of first-degree murder face the same sentence of life without parole. Because some juvenile 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 disproportionate to punish at least some juvenile 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 parole. MCL 750.520b(2)(c). Accordingly, when the commission of a nonhomicide offense by an adult offender may result in the imposition of a life-without-parole sentence, it does not appear categorically disproportionate to impose a life-without-parole sentence on a juvenile 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 commit first-degree murder, we would be derelict if we did not observe that the people of this state, acting through their Legislature, have already exercised their judgment — to which we owe considerable deference — that the sanction they have selected for juvenile first-degree-murder offenders is, in fact, a proportionate sanction. We are not certain that there is a superior test for assessing a determination of proportionality than that a particular sanction is compatible with public opinion and sentiment. Nonetheless, because this Court is required to do so by Graham, we undertake to the best of our ability to exercise independent judgment in analyzing the criminal punishments authorized by our Legislature and assessing their propriety in the light of the crimes for which the Legislature has deemed them proportionate.
Turning to whether Michigan’s sentencing scheme for juvenile first-degree-murder offenders is “disproportionate” to sentencing schemes used in other states, defendants have wholly failed to present relevant data demonstrating that Michigan is an outlier when it comes to permitting the imposition of life-without-parole sentences for juvenile first-degree-murder offenders, even on the assumption that being an “outlier” adversely affects our state’s compliance with the United States Constitution. Defendants in their briefs cherry-pick six states in which sentencing schemes have been altered post -Miller to eliminate life-without-parole as a possible sentence for juvenile offenders. The fact that six states have eliminated life-without-parole sentences for juvenile offenders in response to Miller tells us next to nothing about how Michigan’s choice to impose life-without-parole sentences on juveniles convicted of first-degree murder compares to
What trend is demonstrated by the actions of these six states alone? How many states at the time of Miller imposed a sentence of life without parole on juvenile homicide offenders? How many of these states responded to Miller in a manner similar to that of Michigan? What is apparent is that at the time of Miller, “26 States ... [made] life without parole the mandatory (or mandatory minimum) punishment for some form of murder, and would apply the relevant provision to 14-year-olds ----” Miller, 567 US at_n 9;
In summary, we have no evidence that sustains defendants’ burden of demonstrating that Michigan’s statutory scheme is categorically disproportionate to those of other states. As defendants have failed to demonstrate that either part of the federal test for the constitutionality of punishments supports the conclusion that a life-without-parole sentence for juvenile homicide offenders is 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 categorically bar the imposition of sentences of life without parole on juvenile homicide offenders, Const 1963, art 1, § 16 does mandate such a categorical bar. Whereas the Eighth Amendment proscribes the imposition of “cruel and unusual punishments,” Const 1963, art 1, § 16 states:
Excessive bail shall not be required; excessive fines shall not be imposed; cruel or unusual punishment shall not be inflicted; nor shall witnesses be unreasonably detained. [Emphasis added.]
The textual difference between the federal constitutional protection and the state constitutional protection is of consequence and has led this Court to conclude that Article 1, § 16 provides greater protection against certain punishments than its federal counterpart in that if a punishment must be both “cruel” and “unusual” for it to be proscribed by the Eighth Amendment, a “punishment that is unusual but not necessarily cruel” is also proscribed by Article 1, § 16. People v Lorentzen,
This broader protection under Article 1, § 16 against punishments that are merely “unusual” has led this Court to adopt a slightly different and broader test for proportionality than that employed in Graham. See id. at 171-172; see also People v Bullock,
At the outset, we note that the LorentzenIBullock test bears a considerable resemblance to the federal test for proportionality because the first three factors combine to effect the same general inquiry as the two-part test employed in Graham. See Bullock,
Concerning the fourth factor, we concur with the United States Supreme Court’s assessment that a life-without-parole sentence for a juvenile does not serve the penological goal of rehabilitation.
3. AIDING AND ABETTING
Davis argues that even if the Eighth Amendment does not categorically bar imposing sentences of life without parole on juvenile homicide offenders, it at least categorically bars imposing life-without-parole sentences on juvenile homicide offenders, such as himself, convicted of felony murder ostensibly on the basis of an aiding-and-abetting theory. At the outset of our analysis, we note that our Legislature has chosen to treat offenders who aid and abet the commission of an offense in exactly the same manner as those offenders who more directly commit the offense:
Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense. [MCL 767.39.]
Moreover, the Legislature has enacted a felony-murder statute, which treats the commission of a murder during the course of a robbery as first-degree murder. See MCL 750.316(l)(b).
That States have authority to make aiders and abettors equally responsible, as a matter of law, with principals, or to enact felony-murder statutes is beyond constitutional challenge. [Lockett,438 US at 602 .]
Davis attempts to overcome this constitutional pronouncement in light of his own proposed categorical rule mandating a lesser maximum penalty for aiders and abettors by asserting that Miller and Graham combine to necessitate such a rule. He advances a two-part argument to this effect: (1) the rule in Miller requires individualized sentencing for juvenile offenders in an effort to account for “their lesser culpability,” Miller, 567 US at_;
Although the first part of this syllogism is undoubtedly accurate, the same cannot be said of the second part. Graham made two statements pertinent to the second part of Davis’s argument:
The Court has recognized that defendants who do not kill, intend to kill, or foresee that life will he taken are categorically less deserving of the most serious forms of punishment than are murderers.. ..
It follows that, when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability. [Id.]
In combination with Miller’s requirement that individualized sentencing account for a juvenile’s “lesser culpability,” it has been argued that a juvenile offender cannot be sentenced to life without parole when the defendant did not kill, intend to kill, or foresee that life would be taken as a result of the offense, even when the offense of which the offender was convicted was felony murder. Just such a contention was advanced by Justice Breyer in his concurrence in Miller, in which, addressing specifically the constitutionality of life-without-parole sentences for juvenile offenders convicted of felony murder on an aiding-and-abetting theory, he stated, “Graham dictates a clear rule: The only juveniles who may constitutionally be sentenced to life without parole are those convicted of homicide offenses who ‘kill or intend to kill.’ ” Miller, 567 US at_;
Assuming for the sake of argument that some categorical rule of this nature is the necessary product of Graham and Miller,
This conclusion is entirely consistent with, and arguably dictated by, the individualized
4. RIPENESS
Eliason asserts that Const 1963, art 1, § 16 categorically bars the imposition of a sentence of life without parole on a juvenile homicide offender who is 14 years of age at the time of the offense. For Eliason’s facial challenge to be ripe, there must be “a real and immediate threat... as opposed to a hypothetical one” that a sentence of life without parole will be imposed on him. Conat,
Eliason was 14 years of age at the time of his offense and was initially sentenced to life without parole. However, because Eliason’s case is on direct review, he is entitled to resentencing pursuant to MCL 769.25(l)(b)(ii). Under MCL 769.25(9), the default sentence for a juvenile convicted of first-degree murder is a sentence of a term of years within specific limits rather than life without parole. A juvenile defendant will only face a life-without-parole sentence if the prosecutor files a motion seeking that sentence and the trial court concludes following an individualized sentencing hearing in accordance with Miller that such a sentence is appropriate. MCL 769.25(2) through (7).
Although the prosecutor has filed a motion seeking the imposition of a sentence of life without parole, it is no more than speculation whether the trial court will depart from the default sentence in response to the prosecutor’s motion and impose a life-without-parole sentence, and it is not apparent that Eliason faces a “real and immediate” threat of receiving a life-without-parole sentence. Furthermore, because he will be facing a minimum sentence of “not less than 25 years,” MCL 769.25(9), to deny on ripeness grounds the relief Eliason seeks will cause him no legally cognizable hardship or harm. If a life-without-parole sentence is imposed at resentencing, Eliason will have more than ample time to appeal and assert either an as-applied or a facial constitutional challenge to his sentence before he completes the minimum possible sentence for his offense. Accordingly, in light of Eliason’s being entitled to resentencing under MCL 769.25, his facial constitutional challenge to life-without-parole sentences for juvenile homicide offenders who are 14 years of age at the time of their offense is no longer justiciable.
V CONCLUSION
For these reasons, we hold that the rule set forth in Miller should not be retroactively applied under either the federal retroactivity test set forth in Teague or Michigan’s separate and independent retroactivity test set forth in Sexton and Maxson. In so doing, we affirm the judgments of the Court of Appeals in Carp and Davis that Miller should not be applied retroactively. We further hold that neither the Eighth Amendment nor Const 1963, art 1, § 16 categorically bars the imposition of a sentence of life without parole on a juvenile first-degree-murder offender or a juvenile convicted of felony murder on the basis of an aiding-and-abetting theory. Finally, we hold that Eliason’s facial constitutional challenge is no longer ripe and therefore remand his case for resentencing pursuant to MCL 769.25.
Notes
The Court of Appeals also opined in dictum how Miller should be applied by trial courts in resentencing juvenile first-degree-murder offenders in cases that were not presented on collateral review. Carp,
At trial, Davis testified that he had not participated in the robbery, but that a third cohort, “Shay-man,” and the other cohort, had committed the offense without Davis's help or encouragement.
A federal district court dismissed Davis’s federal habeas petition, expressly rejecting his contention "that there was insufficient evidence to convict him of first-degree felony murder.” Davis v Jackson, unpublished opinion and order of the United States District Court for the Eastern District of Michigan, issued April 30,2008 (Docket No. 01-CV-72747), p 9. The court relied on the surviving victim’s “testi[mony] that both [Davis] and his co-defendant fired their weapons at the decedent.” Id. Davis challenged the credibility of this witness, but the court rejected this assertion because “[t]he testimony of a single, uncorroborated prosecuting witness or other eyewitness is generally sufficient to support a conviction, so long as the prosecution presents evidence which establishes the elements of the offense beyond a reasonable doubt.” Id. at 11. The court later denied Davis’s request for a certificate of appealability. Davis v Jackson, unpublished order of the United States District Court for the Eastern District of Michigan, entered June 4, 2008 (Docket No. 01-CV-72747). The United States Court of Appeals for the Sixth Circuit affirmed this denial, stating that “[a]n eyewitness . . . testified that both Davis and his co-perpetrator fired shots at the decedent.” Davis v Jackson, unpublished order of the United States Court of Appeals for the Sixth Circuit, entered July 14, 2009 (Docket No. 08-1717), p 2.
MCL 769.25a(3) contains a similar exception to the prospective application of MCL 769.25 in the event that this Court or the United States Supreme Court holds that Miller applies retroactively to juvenile first-degree-murder offenders convicted on a felony-murder theory under MCL 750.316(l)(b).
The Court’s basis for prescribing this rule, distinguishing between adult and juvenile offenders for purposes of constitutional analysis, rested on three factors: (1) juveniles, by way of their “lack of maturity,” tend to engage in “impetuous and ill-considered actions,” (2) “juveniles are more vulnerable or susceptible to negative influences and outside pressures” because they “have less control... over their own environment,” and (3) “the character of a juvenile is not as well formed as that of an adult.” Roper,
This is but one of several statements from Miller highlighting the limited effect of its rule as it pertains to requiring “a certain process” rather than “categorically bar[ring] a penalty.” In the paragraph in which it describes its holding and addresses the sentencer’s obligations before imposing a life-without-parole sentence, the Court stated, “[W]e do not foreclose a sentencer’s ability to make that judgment in homicide cases . ...” Id. at ,_;
Given Graham's reasoning, the kinds of homicide that can subject a juvenile offender to life without parole must exclude instances where the juvenile himself neither kills nor intends to kill the victim. [Id. at_;132 S Ct at 2475-2476 (Breyer, J., concurring).]
Had the Court itself adopted Justice Breyer’s proposed rule, then Miller might be said to have the same form and effect of the categorical rules adopted in Graham and Roper, but the Court did not. The dissent in this case further errs in its attempt to read the rule in Miller and the rule proposed by Justice Breyer as one and the same. See post at 545. Whereas the rule proposed by Justice Breyer draws a bright line, foreclosing the state’s ability to impose a sentence of life without parole for a juvenile convicted of a homicide offense in which the juvenile offender did not kill or intend to kill, the rule in Miller does not foreclose imposing a life-without-parole sentence on such an offender. This is because the rule in Miller, unlike that proposed by Justice Breyer, requires a sentencer to look at not only the circumstances of the offense, but also at the characteristics of the defendant such that a juvenile homicide offender who did not kill or intend to kill could be sentenced to life without parole if the offender, for example, possessed a prior criminal record, showed no signs of amenability to rehabilitation, and exhibited mental faculties similar to those possessed by an adult offender.
The dissent does not appear to dispute that the rule in Miller has the form and effect of the rules from Woodson, Lockett, and Eddings, rather than those from Roper and Graham, when it describes the latter decisions as having “forbade” and “prohibited” specific types of punishments as applied to juveniles while describing Miller as having “struck down a sentencing scheme.” Post at 531.
This general rule of nonretroactivity stands in contrast to the general rule requiring the retroactive application of new rules to cases that have not become final for purposes of direct appellate review before the new rule is announced. Griffith v Kentucky,
By our count, Carp and Davis are 2 of 334 defendants currently serving life-without-parole sentences in Michigan for crimes committed before they turned 18 years of age whose sentences became final for purposes of direct review before the Supreme Court’s decision in Miller. To fully understand the effect of applying Miller retroactively, it may be helpful to briefly consider the demographics and case histories of the defendants who would be entitled to resentencing if Miller is applied retroactively. There are at least two reasons why these factors are relevant to the Miller analysis: first, Miller focuses its individualized sentencing analysis on the defendant’s circumstances and personal characteristics at the time of the offense, so any retroactive application of Miller necessarily requires an analysis specific to that time, however long ago it may have been. The older the case generally, the greater the state’s interest in finality and, concomitantly, the more burdensome it is likely to be to accurately reconstruct what characterized the offense and the offender at that time. Second, because Miller identifies age and mental development as two consequential factors in determining whether a life-without-parole sentence is constitutionally permissible for a juvenile offender, that sentence is increasingly likely to be permissible the closer an offender was to 18 years of age at the time of the offense. See note 35 of this opinion.
Of the 334 affected defendants, 4 were 14 years of age when they committed their first-degree-murder offenses, 44 were 15 years of age, 105 were 16 years of age, and 181 were 17 years of age. Of the 181 defendants who were 17 years of age at the time of their offenses, 28 were within two months of turning 18 years of age, with several of those individuals within days of turning 18. As for when the defendants were initially sentenced, 172 of the defendants were sentenced at least 20 years ago, with several sentenced as early as the mid- to late 1970s. Another 83 defendants were sentenced between 15 and 20 years ago, 46 were sentenced between 10 and 15 years ago, 33 were sentenced between 5 and 10 years ago, and none were sentenced within the last 5 years.
Nonetheless, we observe that
[i]n order to qualify as watershed, a new rule must meet two requirements. First, the rule must be necessary to prevent an impermissibly large risk of an inaccurate conviction. Second, the rule must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding. [Whorton,549 US at 418 (citations and quotation marks omitted).]
In applying this standard, the only rule that the United States Supreme Court has ever identified as a “watershed rule” for purpose of Teague’s second exception is the rule drawn from Gideon v Wainwright,
Although the dissent argues that Schriro’s definition of a rule that alters the range of punishments is “inclusive and not exclusive,” post at 545 n 68, the dissent fails to identify a single Supreme Court decision that classifies a rule as “altering the range” of punishments when the rule requires the sentencer to consider a lesser punishment, hut does not exclude any punishment from the range of punishments that may be considered. Despite no such decision, the dissent would make retroactive a type of rule that the Supreme Court has never before granted retroactive status under Teague’s first exception to the general rule of nonretroactivity.
Notable to the scope and application of this third description, both Bousley and Davis involved collateral attacks to federal criminal convictions in which such attacks were dependent on the interpretation of federal law, rather than the development of a new constitutional rule.
Carp and Davis argue that the sentence imposed on them was a sentence of “mandatory” life without parole. Regardless of the process by which a defendant is sentenced to life without parole, however, the term that the defendant serves is simply life without parole. Had, for instance, Carp and Davis received all the procedural protections afforded by Miller ■ before being sentenced, the terms they would serve in prison would be identical. The specific manner in which a defendant is sentenced, i.e., by operation of law or as a result of individualized sentencing, does not alter the actual sentence rendered or the length of time the defendant must remain in prison.
The dissent asserts that the rule in Miller, although having “procedural implications,” is nonetheless substantive because it invalidated “an entire ‘sentencing scheme.’ ” Post at 540. While the dissent is correct that Miller invalidated Michigan’s sentencing scheme authorizing the imposition of a life-without-parole sentence for a juvenile homicide offender, Ring also invalidated Arizona’s sentencing scheme authorizing the imposition of capital punishment on a homicide offender. As Ring was deemed procedural, it follows that the distinction between substantive and procedural rules does not turn on whether the new rule invalidates a sentencing scheme authorizing a punishment. Instead, the distinction turns on whether the punishment is one that the state may constitutionally impose under any conceivable sentencing scheme governing the class of defendants to which the defendant belongs.
The dissent argues that while a shift in decision-making authority from a judge to a jury is procedural, a shift in decision-making authority from the legislature to the judiciary is substantive because it vests new authority (the authority to impose a lesser sentence) in the judiciary. Post at 544-545. Although we acknowledge that there is a difference between these respective shifts in decision-making authority, we do not find the difference pivotal in determining whether a new rule is substantive or procedural. This is because the question at hand is not focused on whether the judiciary’s or the legislature’s or the executive’s authority has changed as a function of the new rule, but inquires only whether the punishment imposed is one that is beyond the state’s or the law’s power to impose. Schriro,
One of the critical divides between how this majority resolves the question of Miller’s retroactivity and how the dissent resolves the same question centers on the significance each accords to the words the Supreme Court chose to use in describing the rule in Miller. Despite its many thoughtful arguments, the dissent is unable to explain why the Supreme Court, if it genuinely intended for the rule in Miller to be applied retroactively under Teague, specifically stated that the rule in Miller does not “categorically bar a penalty,” Miller, 567 US at_;
We include federal courts of appeal in our discussion because Carp cites federal courts of appeal decisions for the proposition that the capital-punishment strand of precedent has been applied retroactively.
We further note that even if Sumner had applied Woodson retroactively to a case that had become final for direct review purposes before Woodson was announced, it still would not follow that Woodson qualified for retroactive application under Teague. This is because Sumner was decided in 1987 and Teague, in which a plurality of the United States Supreme Court announced the current federal retroactivity test, was not decided until 1989. It is for this same reason that we reject Carp’s contention that the retroactive application of Lockett’s rule in Songer v Wainwright, 769 F2d 1488, 1489 (CA 11, 1985), and Dutton v Brown, 812 F2d 593, 599 n 7 (CA 10,1987), carries any weight with regard to whether those courts applying Lockett retroactively would have done so under Teague. The same can also he said about the significance of the retroactive application of the rule from Furman as acknowledged in Michigan v Payne,
In framing the issue before the court, the Eleventh Circuit stated:
On appeal, Thigpen raises only one issue: whether the admission of evidence that he was convicted in 1972 of another first-degree murder and received a death sentence ... rendered his trial so fundamentally unfair that he was convicted without the due process of law. For the reasons set forth below, we affirm the district court’s conclusion that Thigpen’s conviction was constitutional. [Thigpen, 926 F2d at 1005.]
Because Carp’s argument fails here, we find it unnecessary to address whether Miller adds the elements of age and incorrigibility to what must be found before a life-without-parole sentence may be imposed on a juvenile homicide offender. We do note that Miller’s repeated statements that individualized sentencing hearings could occur before a “ judge or jury,” Miller, 567 US at_;
Treating Alleyne as a procedural rule is consistent with how multiple federal courts have resolved the issue of whether Alleyne is procedural or substantive for federal retroactivity purposes. See, e.g., Simpson v United States,
Tellingly, with regard to the prosecutor’s intentions in Jackson, we further note that on remand the prosecutor conceded the defense of retroactivity, but did so only on the basis “that Jackson is entitled to the benefit of the United [States] Supreme Court’s opinion in his own case.” See Jackson v Norris,
The dissent similarly acknowledges that the Supreme Court’s application of the rule in Miller to Jackson is “inconclusive” about whether the rule should be applied retroactively and that the relief Jackson received does not mandate the retroactive application of Miller to any other case. Post at 535 n 31.
Although the issue was not raised in any way by any of the defendants, the dissent argues that Miller is similar to Atkins v Virginia,
Contrary to Carp’s and Davis’s assertions, and consistently with the general principle of nonretroactivity, this Court does not adhere to the doctrine that an unconstitutional statute is void ab initio. People v Smith,
The new rule made retroactive in McConnell was set forth in Mempa v Rhay,
The Sixth Amendment right to counsel has been described as a right “necessary to insure fundamental human rights of life and liberty” with “[t]he Sixth Amendment stand[ing] as a constant admonition that if the constitutional safeguards it provides be lost, justice will not ‘still be done.’ ” Johnson v Zerbst,
As McConnell noted, rules extending “a criminal defendant’s right to counsel at trial, Gideon v. Wainwright,
See Sawyer v Smith,
^e recognize that the prosecutor in Davis and the Attorney General as an intervenor in Carp both assert that this Court should abandon Michigan’s separate test for retroactivity and adopt Teague as our state test. We further recognize the anomalousness of this Court applying new federal rules retroactively pursuant to a standard that is more expansive than that which the United States Supreme Court has directed be applied by federal courts themselves. This anomalousness — at least as it applies to Michigan’s retroactive application of new federal rules — is further heightened when, as in the instant case, (a) the federal rule contradicts the laws of our state as enacted by the Legislature in accordance with the will of the people of Michigan and (b) the Supreme Court has, for purposes of federal court application, specifically rejected the retroactivity test adopted by Michigan. See Teague,
Interestingly, we note that none of the 334 defendants who would receive resentencing under Miller if it were applied retroactively to cases that had become final before Miller was issued was sentenced after Graham was decided. Therefore, to whatever extent it might he argued that Graham weakened the constitutional foundation of the old rule permitting life-without-parole sentences for juvenile homicide offenders, the argument is of little relevance to the retroactive application of Miller regarding any juvenile defendants currently serving life-without-parole sentences in Michigan.
Even with respect to the 34 defendants sentenced post-Roper, there was no cause for prosecutors to believe that the decision had any significant bearing on their ability, on behalf of the people of Michigan, to constitutionally seek a sentence of life without parole or that it brought into question the decision in Launsburry upholding the imposition of life-without-parole sentences.
Although Maxson’s analysis of the second factor focused exclusively on whether the defendants in that case had detrimentally relied on the old rule without considering the extent to which prosecutors had detrimentally relied on the old rule, Maxson’s approach to analyzing the second factor is not inconsistent with the approach we use today. When there are two relevant entities, concluding that one of these entities has or has not relied detrimentally on the old rule may be sufficient to reach a conclusion concerning the effect of the second factor on retroactivity. In Maxson, it was clear that the defendants’ detrimental reliance on the old rule was insignificant so it was unnecessary to consider the extent to which prosecutors had relied on the old rule at issue in that case. Although the inverse is largely true here in that the detrimental reliance interests of prosecutors across this state are considerable, we have reviewed what is asserted to be Carp’s and Davis’s detrimental reliance on the old rule and see none. Once again, merely to act in accord with the old rule is not tantamount to detrimental reliance.
The dissent similarly struggles to identify what action that would have benefited the 334 defendants was taken or not taken in “detrimental reliance” on the old rule. First, the dissent asserts that trial courts would have engaged in individualized sentencing hearings, but for the old rule. Post at 552. This, however, is an action that courts, not a defendant, would have taken, and essentially asserts nothing more than that Miller has altered the rules. Second, the dissent argues that defendants relied on the old rule by not seeking appellate review of their life-without-parole sentences. Post at 552. In making this argument, the dissent compares this case to Maxson, in which this Court suggested that a defendant’s decision not to pursue an appeal could constitute an action that the defendant opted not to take in reliance on the old rule. Maxson,
In focusing on the age of the defendants who would receive resentencing if Miller were applied retroactively, we nowhere suggest that age is the exclusive factor that the trial court should consider in imposing a sentence on a juvenile homicide offender, and we agree with the dissent that Miller calls for a “multifaceted” approach to sentencing. Compare page 466 of this opinion with post 553 n 88. However, in light of the other factors that Miller instructs a trial court to consider, it seems apparent that a juvenile’s age at the time of the offense will weigh relatively heavily at sentencing hearings. In most cases, a juvenile’s age will reasonably correspond to his or her mental and emotional development as well as the ability to overcome a difficult family and home life. Additionally, as a juvenile approaches 18 years of age at the time of the offense, and may even turn 18 during the proceedings related to the offense, it follows that the “incompetencies associated with youth” will come to have increasingly less of an effect on the juvenile’s ability to communicate with, and to assist, his or her attorneys in their legal preparations. Accordingly, while age is by no means the only factor to be considered in imposing a sentence pursuant to Miller, an offender’s age is likely to be given significant weight in the court’s deliberations and may well constitute the single best factor for ascertaining whether a Miller-benefited offender would actually gain relief if Miller were applied retroactively.
The Eighth Amendment of the United States Constitution reads:
Excessive hail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. [US Const, Am VIII.]
The inclusion of proportionality review under Article 1, § 16 has been the subject of significant disagreement. Bullock,
In accepting this conclusion, this Court, as did the United States Supreme Court, speaks of “rehabilitation” exclusively within the context of a defendant reforming himself or herself for the purpose of reintegration into society. See Graham,
We speak of the felony-murder statute in terms of the underlying felony being a robbery merely because the underlying felony in Davis’s case was a robbery. The reasoning put forth in this part, however, would apply equally when the underlying felony is any one of the other felonies listed in MCL 750.316(l)(b).
Although we assume for the sake of argument that such a categorical rule may exist, nothing in this opinion should be understood as actually accepting or adopting such a rule. To the contrary, we note that a categorical rule mandating that a subclass of aiders and abettors be treated differently with respect to what punishments can be imposed would run directly contrary to both the aforementioned statement in Lockett and MCL 767.39. Further, Justice Breyer in his concurrence spoke only for himself and one other justice.
To the extent that Graham and Miller might create a categorical rule prohibiting life-without-parole sentences for juveniles convicted of aiding and abetting a felony murder “who do not kill, intend to kill, or foresee that life will be taken,” Graham,
This holding carries with it the conclusion that some juveniles convicted of felony murder on an aiding-and-abetting theory might be as morally culpable for their crimes as juveniles who commit premeditated first-degree murder and not simply as legally culpable. A juvenile convicted of felony murder on an aiding-and-abetting theory can be said to have committed as grave an offense as a juvenile who commits premeditated first-degree murder. Accordingly, for the purpose of Davis’s challenge under Const 1963, art 1, § 16, the first two factors of the LorentzenIBullock proportionality test will be resolved in a fashion identical to how they were resolved for life-without-parole sentences generally. Concerning the third factor, Davis fails to present any data specific to how other jurisdictions sentence juveniles convicted of felony murder on an aiding-and-abetting theory, only putting forth a sampling of how a very few states now sentence juveniles convicted of first-degree murder generally. In the absence of evidence to the contrary, we are left to assume that a majority of other states hold aiders and abettors equally responsible for their offenses. Accordingly, the third factor also counsels against a finding of disproportionality. Because only the fourth factor of the Lorentzen/Bullock proportionality test, pertaining to rehabilitation, favors holding life-without-parole sentences for juveniles convicted of felony murder on an aiding-and-abetting theory unconstitutional, Davis’s facial challenge under Article 1, § 16 fails as well.
As conceded by the parties at oral argument, Eliason’s other issues on which this Court granted leave to appeal are moot as a result of the enactment of MCL 769.25.
Dissenting Opinion
(dissenting). In a series of recent cases involving juvenile offenders,
I. THE EIGHTH AMENDMENT APPLIED TO JUVENILE OFFENDERS
The Eighth Amendment of the United States Constitution prohibits the infliction of “cruel and unusual punishments”
“ ‘The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.’ ”
In these rulings, the Court relied on three significant differences between juveniles and adults to conclude that juveniles have “diminished culpability” for their crimes and “greater prospects for reform.”
First, children have a “ ‘lack of maturity and an underdeveloped sense of responsibility,’ ” leading to recklessness, impulsivity, and heedless risk-taking. Second, children “are more vulnerable ... to negative influences and outside pressures,” including from their family and peers; they have limited “contro [1] over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. And third, a child’s character is not as “well formed” as an adult’s; his traits are “less fixed” and his actions less likely to be “evidence of irretrievabl[e] deprav[ity].”[17 ]
These differences between juveniles and adults “diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit
Not only is age relevant in establishing an offender’s culpability for the crime, as already explained in this opinion, but it is also relevant in determining whether punishment for a crime is sufficiently comparable in severity to an identical sentence given to an adult offender. Sentencing a juvenile offender to a nonparolable life sentence is “ ‘especially harsh’ ” given that the offender “will almost inevitably serve ‘more years and a greater percentage of his life in prison than an adult offender.’ ”
In particular, the Supreme Court questioned the ability of mandatory penalties to take into account the unique circumstances of youth: “mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it.”
Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth — for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.[27 ]
It is undisputed — and cannot be disputed — that Miller applies to all cases that were pending on direct appeal when the decision was issued on June 25, 2012, and that it applies to all juvenile offenders going forward.
A. ANALYSIS
In Teague v Lane and its progeny, the United States Supreme Court has explained when its new rules are retroactive under federal law and thereby apply to cases on collateral review.
Once the reviewing court determines that the Supreme Court issued a new rule of law in the case being analyzed, the reviewing court must then determine whether the new rule is a substantive rule or a procedural rule:
New substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish. Such rules apply retroactively because they “necessarily carry a significant risk that a defendant stands convicted of ‘an act that the law does not make criminal’ “ or faces a punishment that the law cannot impose upon him. Bousley [v United States,523 US 614 , 620;118 S Ct 1604 ;140 L Ed 2d 828 (1998), quoting Davis v United States,417 US 333 , 346;94 S Ct 2298 ;41 L Ed 2d 109 (1974)].
New rules of procedure, on the other hand, generally do not apply retroactively. They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.[35 ]
A rule is procedural if it “regulate[s] only the manner of determining the defendant’s culpability” or if it “allocated] decisionmaking authority.”
B. APPLICATION
It is uncontested that Miller is a new rule, and we agree with the majority’s conclusion that “Miller imposed a hitherto-absent obligation on state and lower federal courts to conduct individualized sentencing hearings before imposing a sentence of life without parole on a juvenile homicide offender.”
We disagree, however, with the majority’s conclusion that Miller is best characterized as a procedural ruling such that it applies retroactively to cases on collateral review only if it is a watershed rule of constitutional procedure. Admittedly, the distinction between rules of procedure and rules of substance “is not necessarily always a simple matter to divine.”
State legislatures have the “substantive power to define crimes and prescribe punishments,”
After Miller, if a state chooses to permit the sentencing of juveniles to nonparolable life,
The majority claims that the distinction between the “categorical bar” of a penalty and the “noncategorical bar” of a penalty “defines the critical element of the retroactivity analysis in Teague.”
The substantive nature of Miller’s holding becomes clearer upon considering that it did not invalidate mandatory sentencing schemes as applied to adult offenders.
After Miller, the offender’s age at the time of the offense determines which of two sentencing schemes applies to the offender — that is, whether the offender is subject to a mandatory nonparolable life sentence (because the offender is an adult) or whether the sentence must take into account the offender’s age and characteristics of youth, as well as the circumstances of the offense (because the offender is a juvenile).
The majority analyzes what it deems the “form and effect” of Miller and concludes differently. Under its rationale, Miller is not retroactive in large part because the Supreme Court did not categorically bar a sentence as applied to a class of individuals, which it did in Roper and Graham. Rather, juvenile offenders sentenced to nonparolable life have been given a punishment that is within the power of the state to impose. The majority thus determines that Miller is more similar to cases involving the individualized imposition of the death penalty, which, the majority asserts, are cases involving new procedural rules.
The majority is insightful, to a point, by comparing Miller with Woodson v North Carolina, which struck down a sentencing scheme that mandated the death penalty upon conviction of certain offenses.
While Woodson required a state to provide some sort of procedural mechanism before it could impose capital punishment, it only offered minimal guidance on what procedures are required and, specifically, on who should decide whether an individual was eligible to receive the death penalty. After Woodson, some states listed aggravating factors that rendered an offense eligible for the death penalty. The Supreme Court subsequently held, in Ring v Arizona, that the Sixth Amendment right to a jury trial requires a jury to determine the presence or absence of the aggravating factors that qualify an offender as death-eligible.
In Schriro v Summerlin, the Supreme Court determined that Ring was procedural, and therefore not retroactive, because the aggravating factors at issue there remained “subject to the procedural requirements the Constitution attaches to trial of elements.”
The majority glosses over the substantive import of this distinction, and in doing so ignores the fact that, both before and after Ring, there existed the possibility for a punishment less than death, while only after Miller does there exist the possibility
Indeed, if Miller were merely a procedural decision, the Supreme Court would not have examined — and found wanting — the penological aims of a state legislature’s substantive policy choice to impose a mandatory nonparolable life sentence on juvenile homicide offenders. In fact, in Miller, the Court explained that none of the permissible penological aims — retribution, deterrence, incapacitation, and rehabilitation — warrant mandatory nonparolable sentences for juvenile offenders.
Nevertheless, Atkins acknowledged that states are provided with considerable discretion to fashion procedures to determine whether an offender must be excluded from consideration of the death penalty:
Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright with regard to insanity, “we leave to the State [s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.”[72 ]
Miller likewise provided states with considerable discretion to determine how a juvenile offender is to be adjudged sufficiently culpable as an individual to warrant imposition of a nonparolable life sentence.
In the end, the majority strains to place Miller in a procedural box into which it will not comfortably fit. Miller is based on the substantive differences between juveniles and adults and the potentially reduced culpability of juveniles for the crimes that they commit. While there are procedural implications to the decision — as Miller itself acknowledged — the “form and effect” of the opinion, to use the majority’s phrase, is that the Eighth Amendment places a substantive limitation on how states can punish juvenile offenders. Accordingly, we would hold that Miller applies retroactively under federal law.
Even if we were to agree with the majority that Miller announced a new rule of criminal procedure, which we do not, an alternative basis supports our conclusion that Miller should apply retroactively. That is, as a separate and independent matter, we would hold that Miller applies retroactively under state law. It is to that analysis that we now turn.
III. RETROACTIVITY UNDER MICHIGAN LAW
A. ANALYSIS
This Court has consistently asserted that three factors are relevant in determining whether a new rule of criminal procedure should be applied retroactively under state law, even if such a new rule of criminal procedure does not apply retroactively under federal law:
(1) the purpose of the new rules; (2) the general reliance on the old rule[;] and (3) the effect of retroactive application of the new rule on the administration of justice.[77 ]
The county prosecutors involved in these cases and the Attorney General argue that this Court should reverse this existing caselaw and rule that the retroactivity analysis under Michigan law is identical to the 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 that the Supreme Court abandoned in Teague.
B. APPLICATION
As stated, the first factor that a reviewing court must consider in assessing a new rule’s retroactivity under state law is the purpose of the new rule. “Under the ‘purpose’ prong, a law may be applied retroactively when it ‘concerns the ascertainment of guilt or innocence[,]’ however, ‘a new rule of procedure . . . which does not affect the integrity of the fact-finding process should be given prospective effect.’ ”
The second factor “examines whether individual persons or entities have been ‘adversely positioned ... in reliance’ on the old rule.”
Indeed, applying the third factor takes into account this reliance on the old rule by examining whether applying the new rule retroactively would undermine the state’s “strong interest in finality of the criminal justice process . . . ,”
The majority concludes that requiring a sentencing hearing for offenders whose direct appeals are complete would be “burdensome and complicated,” if not “almost impossibl[e]____”
Because each of these factors supports retroactive application of Miller under state law, we would hold that independent state law grounds exist to apply Miller retroactively.
IV CONCLUSION
For the reasons stated in this opinion, we respectfully dissent from the majority’s decision not to apply Miller v Alabama retroactively under either federal or state law. Instead, we would reverse the Court of Appeals in Carp and Davis and remand to the St. Clair Circuit Court and Wayne Circuit Court, respectively, for resentencing pursuant to MCL 769.25a.
The phrase “juvenile offenders” throughout this opinion refers to the class of individuals who were convicted for crimes committed before reaching the age of 18.
Miller v Alabama, 567 US_;
Miller, 567 US at_;
We would also remand People v Eliason to the Berrien Circuit Court for resentencing pursuant to MCL 769.25, as the majority does.
The Cruel and Unusual Punishments clause has been incorporated to the states through the Fourteenth Amendment. See Robinson v California,
For instance, the Virginia Declaration of Rights stated “[t]hat excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” 5 Kurland & Lerner, The Founders’ Constitution, p 373, quoting Virginia Declaration of Rights, § 9 (June 12, 1776).
The English Bill of Rights of 1689 provided “[t]hat excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.” 5 Kurland & Lerner, The Founders’ Constitution, p 369, quoting the English Bill of Rights, 1W & M, 2d sess, ch 2, § 10 (December 16, 1689).
Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Cal L Rev 839, 845-846 (1969) (The Magna Carta “clearly stipulated as fundamental law a prohibition of excessiveness in punishments!.]”). Caselaw further establishes “a common law prohibition against excessive punishments in any form,” even if it remains unclear “[w]hether the principle was honored in practice . . . .” Id. at 847.
Atkins v Virginia,
See Weems v United States,
Id. at 378. More recently, the Court has explained that the clause “ ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ ” Atkins,
Miller, 567 US at_;
Roper,
Graham,
Miller, 567 US at_;
Id. at_;
Miller, 567 US at_;
Miller, 567 US at_;
Id. at_;
Id. at_;
Miller, 567 US at_;
Graham,
Miller, 567 US at_
Id. at_;
Id. at_;
Id. at ;
Id. at ;
Id. at_;
“When a decision of this Court results in a ‘new rule,’ that rule applies to all criminal cases still pending on direct review.” Schriro v Summerlin,
See MCR 6.501 et seq.
For the reasons explained later in this opinion, the fact that Miller failed to categorically bar imposition of a nonparolable life sentence for juvenile offenders does not require the conclusion that Miller is not retroactive. We similarly deem inconclusive as evidence of retroactivity the fact that the Supreme Court did not distinguish Miller from a companion case appearing before the Supreme Court on collateral review. See Miller, 567 US at ;
For example, state appellate courts in California, In re Rainey, 224 Cal App 4th 280; 168 Cal Rptr 3d 719;_P3d_(2014); Illinois, People v Davis, 2014 Ill 115595; 379 Ill Dec 381;
Teague,
Saffle v Parks,
Summerlin,
Id. at 353 (emphasis omitted).
Id. at 354.
Whorton v Bockting,
Gideon v Wainwright,
Whorton,
Ante at 473. While Miller applied principles contained in several of the Court’s Eighth Amendment precedents, the “precise holding[s]” of those precedents did not “dictate the result” of Miller. See Saffle,
People v Carp,
Summerlin,
Id. at 353 (emphasis omitted).
Jones v Thomas,
See MCL 750.316 (stating that first-degree murder shall be punished by imprisonment for life); MCL 769.1(1) (stating that a juvenile convicted of first-degree murder shall be sentenced “in the same manner as an adult”); MCL 791.234(6)(a) (stating that someone sentenced to life imprisonment for first-degree murder “is not eligible for parole”).
Indeed, the majority acknowledges that “[i]t thus seems certain as a result of Miller that a considerable number of juvenile defendants who would previously have been sentenced to life without parole for the commission of homicide offenses will have a lesser sentence meted out.” Ante at 473.
Graham,
Michigan has recently done so.
Miller, 567 US at_;
Id. at_;
Ante at 487 n 16.
The division among our nation’s courts with regard to whether this proposition is correct or incorrect suggests that our nation’s jurisprudence would benefit from a clarification of the substantive/procedural distinction.
In Michigan, for instance, first-degree murder remains punishable by life in prison without the possibility of parole. MCL 750.316; MCL 791.234(6).
In Summerlin, the Supreme Court explained that a decision making “a certain fact essential to the death penalty” is a substantive rule of law within the Teague framework. Summerlin,
Summerlin,
Someone who is convicted of first-degree murder committed as an adult in Michigan is still subject to the mandatory penalty of life in prison without the possibility of parole, MCL 750.316; MCL 791.234(6)(a), while a juvenile offender is no longer subject to the same mandatory sentence. MCL 769.25.
It is particularly relevant that Miller left considerable discretion for states to craft procedural mechanisms for ensuring the protection of a juvenile defendant’s Eighth Amendment rights. The Legislature exercised such discretion in response to Miller,
Woodson v North Carolina,
If the Supreme Court had definitively held Woodson to be a procedural ruling, then it would he difficult to distinguish Miller. However, if the Supreme Court has not ruled that Woodson is retroactive, as the majority posits, then neither has it ruled that Woodson is only prospective.
Ante at 465.
Ring v Arizona,
Summerlin,
Id. at 353.
Id. (emphasis added). Contrary to the majority’s claim, ante at 484 n 14, Ring did not invalidate Arizona’s entire capital punishment sentencing scheme because both before and after Ring the same substantive punishments were available for offenders in Arizona. Rather, it shifted decision-making authority within that sentencing scheme from the judge to the jury. By contrast, in Miller, the Supreme Court invalidated any sentencing scheme that mandated a nonparolable life sentence by requiring the sentencer to consider some additional sentence — whether parolable life, a term of years (as the Michigan Legislature chose), or both.
Ante at 484-485.
Interestingly, the majority suggests that Justice Breyer’s concurring opinion in Miller, had it received majority support, would he deemed a substantive rule and thus would apply retroactively. Ante at 468 n 6. Justice Breyer would have conditioned the state’s ability to impose a nonparolable life sentence on whether the individual homicide offender “ ‘killted] or intend[ed] to kill’ ” the victim. Miller, 567 US at_;
The majority claims that “[w]e are bound to abide by” the Supreme Court’s understanding of “when a new rule ‘alters the range’ of available punishments,” and suggests that this applies only when the rule “ ‘placets] particular conduct or persons covered by the statute beyond the State’s power to punish.’ ” Ante at 479, quoting Summerlin,
To the majority, a rule that “merely expands the range of possible punishments that may be imposed on the defendant” is procedural because, in theory, the state still has the power to punish a juvenile offender with a nonparolable life sentence. Ante at 483 (emphasis omitted). However, this distinction is misplaced because the Supreme Court nevertheless placed a substantive limitation on a state’s policy decisions: after Miller the state no longer has the power to mandate a nonparolable life sentence as punishment for a crime committed by a juvenile offender.
For instance, retribution as a penological rationale “relates to an offender’s blameworthiness” and, accordingly, “ ‘the case for retribution is not as strong with a minor as with an adult.’ ” Miller, 567 US at_;
Atkins,
Id. at 317, quoting Ford v Wainwright, 477 US 399, 405, 416-417;
If, for instance, the Supreme Court were to hold in a subsequent decision that the Sixth Amendment right to a jury trial requires a jury to determine a juvenile offender’s culpability for purposes of imposing a nonparolable life sentence, then that hypothetical future holding would be considered procedural rather than substantive. See Summerlin,
This individual determination, made under state law, also shows the weakness of the majority’s “form and effect” interpretation of Teague, which requires a substantive decision to have uniform effect. Because Atkins left states with considerable discretion to define mental retardation, a person whose mental capacity precludes consideration of the death penalty in one state could nevertheless be subject to the death penalty in a different state. The majority struggles to fit Atkins within its “form and effect” interpretation — particularly given that the state’s exercise of its discretion both in Miller and Atkins is to ensure that only culpable offenders are subject to the ultimate punishment available to juvenile offenders and adults, respectively.
Furthermore, just as “some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards,” Atkins,
In re Holladay,
People v Sexton,
See Linkletter v Walker,
Danforth v Minnesota,
Id. at 279-280.
People v Maxson,
Maxson,
See McConnell v Rhay,
Contrary to the majority’s claim, it is irrelevant that the Supreme Court has abandoned the pre-Teague framework in determining the application of this state’s independent retroactivity jurisprudence. Indeed, saying that this Court has “no obligation ... to forever maintain the Linkletter test in accordance with every past federal understanding,” ante at 500, classifying the foundational caselaw of Michigan’s retroactivity test as “defunct,” ante at 500, and stating that “only the extraordinary new rule of criminal procedure,” whatever that may mean, “will be applied retroactively under Michigan’s test when retroactivity is not already mandated under Teague," ante at 497 comes perilously close to deciding to maintain the principles underlying this state’s traditional retroactivity framework only when Teague and its progeny militate in favor of retroactivity. We would not turn Michigan’s retroactivity framework into such a parchment barrier. See Federalist No. 48 (James Madison) (Wright ed, 2002), p 343.
Maxson,
Id. at 394, 396 (emphasis omitted).
Indeed, Davis’s sentencing judge sought to sentence him to a term of years instead of a nonparolable life term and was overturned on the prosecution’s appeal. This fact alone illustrates how defendants as a class were adversely positioned in reliance on the old rule — after Miller, every defendant is entitled to “some form of relief,” i.e., an individualized sentencing hearing that allows the sentencer to consider a punishment less than nonparolable life. Maxson,
Miller, 567 US at_;
It bears repeating Miller’s statements that “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon” and that only the “rare juvenile offender” will commit a crime that “reflects irreparable corruption.” Id. at_;
Furthermore, contrary to the majority’s assertion that chronological age at the time of the offense “will weigh relatively heavily at sentencing hearings,” ante at 509 n 35, a juvenile offender’s chronological age is only one relevant consideration in determining whether the offender deserves a “sentence of life (and death) in prison.” Miller, 567 US at_;
Maxson,
Maxson,
If Miller resentencing hearings were to be evenly divided among the circuit court bench, each circuit judge would receive, on average, two additional sentencing hearings. That is hardly a strain on the state’s judicial resources. This is in stark contrast to the potential of “guilty-pleading defendants whose convictions [had] become final [to] inundate the appellate process with new appeals” that, in part, prompted a majority of this Court to reject the retroactivity of Halbert v Michigan,
Ante at 510. The law, and particularly judicial proceedings, are frequently burdensome and complicated. That the Constitution sometimes requires burdensome and complicated proceedings should not impede our duty to ensure that constitutional rights are enforced.
The majority’s emphasis on reconstructing the circumstances of the crime and the impulsiveness of the juvenile offender’s activity is misplaced. As a result, the majority misinterprets the hearing called for under Miller as entirely backward-looking. Miller’s goal is to ensure that the sentencing court considers the evidence that it has available to it in deciding whether an individual offender has the ability to reform.
Ante at 510.
See Miller, 567 US at_;
See MCL 769.25(6) (allowing the sentencing court to consider at the sentencing hearing under Miller “any other criteria relevant to its [sentencing] decision, including the individual’s record while incarcerated”).
Ante at 510-511.
As previously indicated, we would also remand Eliason to the Berrien Circuit Court for resentencing pursuant to MCL 769.25, as the majority does.
Miller, 567 US at_;
Id. at_;