Blame Michigan Prosecutors For SCOTUS’ Lousy Job

There was resounding applause when the Supreme Court held that mandatory life without parole was unconstitutional for juveniles. Certainly, everyone understood that what makes kids kids was that their brains were still developing. While they could physically do harm, sometimes terrible harm, they lacked the intellectual capacity to appreciate the harm in a mature way. Everyone gets that, right?

But the New York Times says Michigan prosecutors don’t, and they’re “defying” the Supreme Court’s rule. How are Michigan’s prosecutors ignoring the Supreme Court?

Across the state, they are flouting the justices’ clear message in two recent decisions. The first ruling, in 2012, banned mandatory life-without-parole sentences for juveniles in homicide cases. While the court did not prohibit life-without-parole sentences for juveniles completely, it has said that punishment should be used only in the rarest cases — when the defendant “exhibits such irretrievable depravity that rehabilitation is impossible.”

In January, the justices clarified that this rule applies not just going forward but to every inmate already serving such a sentence, or about 2,500 people nationwide.

Putting aside the fact that it took the Supremes two cases to make one ruling, since there could be no doubt whatsoever that the question of retroactivity loomed huge when they decided Miller v. Alabama, the holding was still merely half a thought. Mandatory sentences were unconstitutional. Fair enough. But then, what about non-mandatory sentences? How are they to be divvied out?

The Supremes didn’t ban life without parole sentences for juveniles altogether, which they could have done but didn’t. Instead, they provided a process for their imposition. Jump through the right hoops and, boom, everything is fine. Same sentence, different hoops. The feelz rhetoric isn’t a legal test. It’s just empty words, a vague admonition, subject to the circumstances of individual cases.

So how is it that the Times accuses Michigan prosecutors of defying the Supreme Court?

Michigan prisons house 363 of these inmates. All but a very few should be resentenced to shorter terms, with the possibility of parole. Yet prosecutors are seeking to keep more than half of them locked up forever.

All but a very few? Says who?* Give an example? Actually, to address the failing of Miller, you have to go through every one of those cases, because each gets decided on its own merits, not vague generalizations.

Young people convicted of murder should be justly punished, but Michigan’s approach isn’t close to what the Supreme Court envisioned.

So what constitutes “justly punished”? That’s what we have judges to decide, even if editorial boards think they get a vote. Even worse is some claim to knowing “what the Supreme Court envisioned.” Do you have magical powers to read the minds of the justices? The rest of us are constrained to read the words of the Court’s opinion. We work with what they write. How do you know something no one else knows?

In many cases, even the prosecutors believed that more lenient terms were appropriate. In Wayne County, for instance, nearly one-third of those serving life without parole were initially offered plea deals that averaged 20 years. One defendant now serving life rejected a plea offer of four years behind bars.

Well, that’s not how the legal system works. Plea offers reflect not only the outcome, but the likelihood of prevailing at trial. While the argument that if a person wasn’t so “irretrievably depraved” before that they shouldn’t be sentenced to life without parole after trial is a sound sentencing argument, it is not proof that prosecutors are defying the law. They made an offer for whatever reasons made sense at the time, maybe related to depravity, but maybe not, and the plea offer was refused.

At the end of trial, after the testimony of witnesses and the jury’s conviction, the view of the cases is often a lot worse than it looked beforehand.  When a judge imposes a sentence of life without parole, it comes in response to the facts and circumstances of the case before him, not some generalized “rarest” lingo. This isn’t to say that the judge wasn’t unduly harsh, but the only way to reach that view is to look at each individual case.

Now it is up to federal judges to force Michigan’s misbehaving prosecutors to follow the law.

This is insane. Having failed to cite a single case, one set of facts and circumstances, to demonstrate that Michigan prosecutors, in a single specific case, did anything wrong, they’re still “misbehaving”? Because the gross numbers don’t match up to what you feel they ought to be?

Maybe Michigan prosecutors are too tough toward juveniles. Maybe there are specific cases, lots of them, where the juveniles should be given a chance at parole. It’s highly likely that someone with my sensibilities would think so, even if I’m no prosecutor and don’t have a single example, no less every case at issue, spelled out.

But if your beef is that juveniles are still being sentenced to life without parole, blame SCOTUS, not prosecutors. The Supreme could have ended it, and they decided to let it ride. The Supremes could have spelled out a meaningful test for its application, but instead used the vague feel-good rhetoric of which the Times is so fond.

Don’t blame prosecutors for being prosecutors. Blame justices for not being justices.  And stop using empty rhetoric about law to make people stupider, as if your beloved vagaries had any actual meaning even when uttered by the newest justice. We can’t afford it.

*In the retroactivity opinion of Montgomery v. Miller, Justice Kennedy wrote:

The Court recognized that a sentencer might encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified.

While this may give some a warm and fuzzy feeling, what the Court did was leave the decision up to the judge on a case by case basis. It provides no meaningful rule to limit the sentencer’s discretion.

4 thoughts on “Blame Michigan Prosecutors For SCOTUS’ Lousy Job

  1. John Barleycorn

    Why is it your heavy lifting posts get so few comments?

    I  woukd like to think, you frighten your audience into a speechless “seizure” on occasion to such an extent, that upon recover a favorable viremia-ish-ness in their unclamed “soil” becomes an awakening to the presence of ethylene in their vinyl.

    Fuck if I know though…


      1. Patrick Maupin

        I liked this column, but…

        Your best columns stand alone, and your regulars all know not to give too many tummy rubs.

        Which leaves you in the position of having to discern whether crickets chirping indicates a lack of dissent or a lack of interest.

        Of course, you could always fix the lack of comments by getting a Times editor to help you out.

        1. SHG Post author

          Come on, let’s be truthful. We both know that comments here are largely a function of my being a bastard about them. And I’ve come to terms with that, for better or worse. What’s really funny, by the way, is watching the attitude toward comments at FL, as the writers there have to watch their efforts reduced to idiocy in the comments. At first, they liked the fact that people read their posts and had something to say. Over time, the happy wore off and their heads began to explode as they read comments that are so mind-numbingly stupid that they couldn’t stand it. Now, they understand why I do what I do here.

          I’ve started to limit comments at FL to prevent some of the harm, but with a far lighter touch than here. And, as one contributor said yesterday about a commenter, “That dude is ten shades of stupid dressed up in a thin veneer of pretend smarts.” Yup. Welcome to my world.

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