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Friday, July 29, 2016

Berrien County Prosecutor Betrays Rule of Law in Juvenile Lifer Cases (Part 2)

The United States is a party to several treaties that have been interpreted by their oversight bodies, and recognized by states parties, to prohibit the irreducible sentence of life without parole for juvenile offenders. The U.S. Constitution, Art. VI, Cl. 2, states that the United States must uphold these treaty obligations.

The Convention on the Rights of the Child provides that imprisonment be used only as a "measure of last resort" for juvenile offenders, and "for the shortest appropriate time." The International Covenant on Civil and Political Rights requires that criminal procedures for juvenile offenders should take into account "their age and desirability of promoting their rehabilitation."

In Michigan 71% of juveniles serving life without parole sentences are children of color. In response to that shameful number, the Convention on the Elimination of Racial Discrimination has found that the sentence is applied disproportionately to youth of color, amounting to pervasive discrimination.

The United Nations has also adopted the U.N. Standard Minimum Rules for the Administration of Juvenile Justice that provides that "confinement shall be imposed only after careful consideration" and for the "shortest period possible." Included, was Commentary stating that the "well-being and future of the juvenile offender should always outweigh retributive sanctions."

To underscore their position they passed additional resolution in support, the U.N. Rules for the Protection of Juveniles Deprives of Their Liberty, which emphasizes imprisonment "as a last resort" and "for the shortest tie possible."

Earlier this month Berrien County Prosecutor, Michael Sepic, made the ill-conceived decision to pursue life without parole sentences for all 10 juveniles lifers who must be resentenced from his county. "Juvenile lifers" are prisoners who received a life without parole sentence when they were juveniles.

Sepic made the decision after the U.S. Supreme Court deemed mandatory life without parole sentences unconstitutional for juvenile offenders. His move contravened rulings the U.S. Supreme Court and Michigan Court of Appeals prescribed courts to follow, along with treaty requirements that state and local governments are obligated to uphold.

As an officer of the court Sepic has a duty to uphold the rule of law, not run afoul of it. The U.S. Supreme Court made it abundantly clear that life without parole sentences should be uncommon and reserved for rare cases that the vast majority of juveniles will not qualify for. Sepic, however, defied their ruling and pursued the extreme sentence for all the juvenile lifers from his county.

The Michigan Constitution, Art. 1, Sec. 16, prohibits cruel or unusual punishment. The words "rare" and "uncommon" are synonymous with the word "unusual," which is unconstitutional according to the state's Constitution.

Sepic's rogue actions are reinforcing research conducted by the Bar Association that found "juveniles convicted of murder in the United States [are] more likely to enter prison with a life without parole sentence than adult murder offenders."

The U.S. Supreme Court has stated that incorrigibility is inconsistent with youth. It is a fact any parent, teacher, or rational adult understands. According to the American Psychological Association juveniles cannot be diagnosed with antisocial personality disorder, a disorder also referred to as psychopathy or sociopathy, because the diagnosis cannot be made on people before the age of 18. Incorrigibility is synonymous with antisocial personality disorder.

One incontrovertible example of how out of touch Sepic is with the issue of adolescent brain development is his inclusion in at least one of his motions to the Berrien County Trial Court that he intends to pursue a life without parole sentence against one of the juvenile lifers citing a psychological evaluation performed nearly 30 years ago.

Sepic's ignorance of adolescent development prevents him from acknowledging the indisputable fact that science and the medical field have since evolved tremendously and did not remain frozen in time.

Decades ago the lessons that scientists and researchers knew about adolescent brain development were largely gleaned from post-mortem examinations. Years later with the advent of fMRI technology the world has made remarkable discoveries that have rendered previous research incorrect or obsolete. Many psychological evaluations from decades ago are no longer relevant by today's standards.

According to sources close to Sepic, he [Sepic] negotiates reduced charges and sentences with an alarmingly high number of child sexual predators and individuals accused of physically harming children. While Sepic pursues deplorable sentences against juveniles who commit crimes and ignores their enormous redemptive potential, he simultaneously empowers those who violently offend them and provides them second chances.

Court records reveal that in some cases Sepic's office has declined to charge some adult sex offenders altogether, including the case of a former Berrien County Courthouse employee. Sepic's predecessor, Arthur Cotter, now a Berrien County Trial Court judge, also had a similar history of providing favorable treatment to sexual predators.

The fact that nearly all the 10 prisoners who will be resentenced are people of color further compounds the injustice. Berrien County's long history and culture of racial discrimination against citizens of color is widely known. Complaints and lawsuits have been filed against the county for decades over its blatant discriminatory practices and Jim Crow-style of justice.

To date nineteen states in the U.S. have categorically banned life without parole sentences for juveniles. As Michigan Court of Appeals Judge Jane M. Beckering recently wrote, "This recent trend illustrates that the island on which Michigan sits with regard to this particular sentencing practice is becoming increasing lonelier."

The nation's high court is on the cusp of categorically banning life without parole sentences for juveniles across the country. The ban is likely to be ordered within the next year or so based on the trend of states across the country banning the sentence at such a rapid pace.

The evolving standards of decency of a civilized society will eventually trump prosecutors with an insatiable appetite for inordinate and inhumane punishments against children. In the meantime the public will be forced to pay the high cost of protracted court hearings and appeals because of intransigent prosecutors intent on committing malfeasance and continuing years of racist policies targeting children of color.

Under the guise of being tough on crime prosecutors like Sepic will persist betraying the ethics of public service to become election-scoring vendetta seekers. Sadly, it is a platform no citizen entered the ballot box to cast their vote for.

Citizens will remember the optics of this when they return to the ballot box, however, because they understand that their next vote cannot be one of complicity to empowering further acts of shameful prosecutorial corruption.

Monday, July 25, 2016

Berrien County Prosecutor Betrays Rule of Law in Juvenile Lifer Cases

Earlier this year the U.S. Supreme Court ruled in the case of Montgomery v. Louisiana, 136 S. Ct. 718 (2016), that imposing mandatory life without parole sentences on juvenile offenders is unconstitutional. The high court ordered the resentencing of the 2,500 prisoners affected nationwide. 

Michigan law provides that these prisoners, referred to as "juvenile lifers," must receive mitigation hearings as part of the resentencing process to consider several factors before receiving a new sentence. These factors were delineated in a previous U.S. Supreme Court ruling in the case of Miller v. Alabama, 132 S. Ct. 2455 (2012), and are referred to as the "Miller factors."

In Michigan, when being resentenced, juvenile lifers can receive a term of years or life without parole. Term of year sentencing guidelines are a 25- to 40-year minimum sentence, with a maximum sentence of 60 years. A life without parole sentence may only be imposed as a maximum punishment in cases which the U.S. Supreme Court has made abundantly clear, for "the truly rare juvenile" who is "irreparably corrupt--meaning incapable of rehabilitation for the remainder of his or her life." (People v. Hyatt, Mich. App. No. 325741, (p. 3)).

To drive home its underscoring of how rare life without parole sentences for juveniles should be, the Miller court used the words "rare" or "rarest" six times in its ruling.

The court also held that, "The distinctive attributes of youth diminish the penological justifications for imposing the harshest sentence on juvenile offenders, even when they commit terrible crimes." Thus, when it comes to sentencing a juvenile, concern must be given to the offender's youth and its attendant characteristics.

The Miller court went on to say that because of a juvenile's "diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon." The court further declared that in the "vast majority" of cases, such a sentence will be disproportionate under the Eighth Amendment.

Michigan prosecutors had until late-July 2016 to announce which cases they would seek life without parole sentences for again for the juvenile lifers being resentenced in their respective counties. On the eve of the deadline Berrien County Prosecutor, Michael Sepic, announced he would pursue the extreme sentence for all 10 prisoners from that county--nearly all prisoners of color. The list includes the case of Efren Paredes, Jr.

Ironically, the same day Sepic announced his decision the Michigan Court of Appeals issued a ruling further clarifying what sentencing judges must consider at resentencing hearings in the case of People v. Hyatt. In its ruling the court cautioned judges that prosecutors seeking a life without parole sentence under MCL 769.25(2) and the resultant Miller [mitigation] hearing, is not to be treated as a perfunctory exercise that will authorize the imposition of a life without parole sentence. According to the court, "Such an approach defies what was first announcd in Miller and made even clearer in Montgomery: life without parole is to be imposed on juvenile offenders in only the rarest of cases."

The Miller and Hyatt courts both recognized that it is "difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects the rare juvenile offender whose crime reflects irreparable corruption. In an amicus brief filed in the Miller case the American Psychology Association posited that the "positive predicative power of juvenile psychotherapy assessments ... remains poor."

Michigan Court of Appeals Judge Jane M. Beckering contends that a sentencing court is, to a large degree "guessing, based on information that is widely recognized as unreliable given the malleability of a juvenile's still-developing brain, whether the juvenile is capable of reform."

Justice Beckering said the question we have to ask ourselves is: "If the imposition of the harshest possible penalty available under the law cannot be done with any degree of reliability given the offender being a minor about whom the court must predict his or her entire future, how can the sentence not be rendered either cruel due to guesswork or unusually unfair? ... How could such a speculative, roll-of-the-dice approach to meting out the most serious punishing on a group of offenders who are categorically less culpable not be cruel or unusual?"

The Iowa Supreme Court recently ruled in the case of State v. Sweet, 879 N.W.2d 811 (2016), that "the enterprise of identifying which juvenile offenders are irretrievable at the time of trial is simply too speculative and likely impossible ... The risk of error in determining whether a life without parole sentence is proportionate is unacceptably high."

It continued, "We are asking the sentencer to do the impossible, namely to determine whether the offender is 'irretrievably corrupt' at a time when even trained professionals with years of clinical experience would not attempt to make such a determination."

One is forced to wonder about Sepic's bizarre obsession with imposing extreme sentences on juveniles in light of all that science and the medical community have taught us the past three decades about adolescent brain development. More troubling is what Sepic's own obstinance and deviant behavior reflects about other decisions he is making in his office that affect the public.

It is one thing to seek justice. It is another altogether for a prosecutor to eclipse his judgment and sensibilities with the darkness of his soul when considering the futures of young people.

Public servants who refuse to acknowledge the growth potential or redemptive qualities in young people, and harbor such deep hatred toward them, should not be in positions to abuse their authority in such a reckless and malicious way.

(To learn more about the case of Efren Paredes, Jr. please visit and "Like" the page to express support.)