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Wednesday, May 16, 2018

MDOC Librarian Cites "Custody and Security Concerns" to Deny Library Access



by Efren Paredes, Jr.

The afternoon of 5/15/18 I was conducting legal research in the law library at the Oaks Correctional Facility (ECF). A short time after my arrival Librarian Leah Berean called me to a law clerk desk as she stood behind it. When I approached the desk she proceeded to tell me she was denying the request for additional legal research time I submitted the previous day. She remarked in a rude and condescending manner, "You were already given an additional two-hour session each week. It's my discretion and you're not getting any more time!"

When I asked if she could provide her decision to me in writing so I could file a grievance in response to her denial she became irate and snarled, "No, you can write it down if you want to!" She then walked away from the desk and returned to her office, offering me no explanation for her decision. Approximately 25 minutes later Berean returned to the law clerk desk bringing along with her my request for additional time which now included a handwritten response she signed. Her response read in relevant part, "Due to custody and security concerns this is the only amount of additional time the library can give you."

OP ECF 05.03.115 "Use of Law Library by General Population Prisoners," authorizes librarians to grant additional time to prisoners to conduct legal research who are within 60 days of a verified court deadline. I provided a court order to the librarian verifying that I have a pending court hearing scheduled within that timeframe.

The policy also states, "The Department of Corrections recognizes the constitutional right to access to the courts. Therefore, the Oaks Correctional Facility shall not prohibit, restrict or deny prisoners in the general population access to the main law library wherein prisoners can use an Electronic Law Library (ELL) and other legal research documents for legal research purposes related to challenging a prisoner's conviction or conditions of confinement."

In my request for additional research time I stated that a great deal of my legal research involves reading dozens of peer-reviewed law journal articles regarding adolescent development, fMRI brain imaging studies, and other mitigating factors related to my upcoming resentencing hearing. There are hundreds of these articles I need to review in a short span of time which is an impossible undertaking given the time I am currently authorized to conduct legal research in the law library. I pointed out that I have paid to have several of the peer-reviewed journal articles photocopied so I can read them in my cell but cannot afford to have them all reproduced.

This was the reason I was requesting additional legal research time. Though I was authorized to receive two additional hours a week it will be insufficient to conduct all the necessary research before my next scheduled court hearing. The articles I need to research frequently exceed 30 pages in length (sometimes up to 70 pages) and I am often unable to read an entire article during a single two-hour law library session and take the necessary handwritten notes which itself is a time-consuming task. I even offered to provide her evidence of the many pages of notes I have already taken from the articles I read each week.

I am currently being limited to six hours of legal research per week to prepare for arguably the most important court hearing of my life. My request for additional legal research time was for two additional hours during regularly scheduled hours on the weekend which would not have prevented other prisoners from using any of the available computers. The law library has 15 computers available for prisoners to conduct legal research with which provide access to LexisNexis, a legal research portal. Less than a third of the computers are used at any given time when Level II prisoners are permitted to use them.

The notion that allowing a prisoner to use one of the idle computers for legal research triggers a "custody and security concern" is delusional and absurd. More than double the number of Level IV custody prisoners use the law library computers than the number of Level II lower custody prisoners for legal research each day during their scheduled time and it is not deemed a "custody and security concern" by custody staff or the Warden. Since Berean's reasoning for her denial is obviously false and baseless it begs the question: what was her true motive?

Later that day after speaking to Berean I showed two custody staff members her response to my request for additional legal research time. When I asked the staff members if they felt my request was a "custody and security concern" they shook their heads and laughed. One replied, "No. What does she know about custody and security, she just started working here. Plus, people hardly even use the law library and there are always computers open to use." The other responded, "She sounds ridiculous. When a prisoner is doing legal research and trying to go home at least he's doing something constructive and isn't on the yard bothering anyone or getting into trouble. You should write a grievance."

Berean's distorted reasoning for denying my request to be granted additional legal research time is arbitrary and a clear abuse of authority. It is divorced from reality, illogical, and provides a snapshot into what she thinks about prisoners using the law library to conduct legal research. It also demonstrates she may be ill-equipped with the temperament, social skills, or decision-making capacity to properly fulfill her job duties. Even other staff members agreed that her decision to deny me additional research time was irrational.

Her actions stain the image of the Michigan Department of Corrections (MDOC) and interfere with prisoners' rehabilitation. When MDOC staff members subvert policy and devalue prisoners' lives they send a chilling message that their future is devoid of meaning. There is little wonder why prisoners often return to society frustrated, demoralized, and battling anxiety having been forced to endure the exhausting experience of repeated instances of staff engaging in microaggressions and abusing their power.

Since his recent arrival at ECF Warden Lester Parish has laudably begun transforming the culture of the prison from its shameful past of mismanagement and hostility toward the prisoners in its care to a culture that promotes the MDOC's vision and values policy. Staff members like Berean threaten to destabilize this progress. Her actions are evidence of a belief that prisons should be monuments to punishment and exclusion which contravene the Warden's proactive efforts.

This episode is only one among the many examples of unfortunate challenges prisoners are forced to deal with as they navigate the minefield of staff abusing their power in prison daily life. Fabricating unreasonable excuses to obstruct a prisoner's access to the courts rises to the level of a civil rights violation. Sadly it is not the first time a prisoner has been compelled to challenge similar injustices in federal courts. There is a long history of prisoners litigating against MDOC staff members for their refusal to recognize fundamental constitutional rights.

In a civil suit recently filed by a prisoner challenging a violation of his constitutional rights by an MDOC employee a federal judge ruled that MDOC staff members are not impervious to civil litigation because they simply claim immunity. The court added that staff members are not able to enrobe themselves in an absolute shield against legal action brought against them for violating constitutionally protected conduct.

Unfortunately it is taxpayers who keep bearing the burden of paying the costs associated with litigation resulting from the obstinate behavior of prison staff members who are allowed to engage in unconstitutional behavior. The moment taxpayers refuse to continue paying for their misdeeds it will change their behavior. When state employees begin paying their own legal fees to defend themselves for offending protected constitutional rights they will become less impetuous to entertain their darker impulses. It is a prospect taxpayers should consider exploring.

(Efren Paredes, Jr. is a Michigan prisoner, social justice activist, and blogger who is a frequent guest on the "Elena Herrada Show" on Detroit Superstation AM 910. You can learn more about Efren at www.4Efren.blogspot.com and www.fb.com/Free.Efren.)

Tuesday, May 8, 2018

Wyo. Court Looks to Mich. for Guidance on Juvenile Lifers


by Necalli Ollin

The Wyoming Supreme Court recently handed down an important ruling in the case of Davis v. Wyoming regarding prisoners who received life without parole (LWOP) sentences when they were juveniles ("juvenile lifers"). In its ruling the court detailed how thorough mitigation hearings should become moving forward. They also strongly urged sentencing courts not to repeat the mistakes of the past by arbitrarily meting out LWOP sentences against youthful offenders.

The court referenced the 2016 Michigan Court of Appeals ruling in People v. Hyatt, 316 Mich. App. 368, seven times to support the reasoning for their decision. This is significant because dozens of Michigan juvenile lifers have been awaiting a decision by the Michigan Supreme Court so they can be resentenced. The court will rule whether a judge or jury decides the sentencing fate of juvenile lifers. To date only about 115 of Michigan's 363 juvenile lifers have been resentenced to term-of-year sentences ranging from 25- to 40-year minimums. The other remaining 247 cases await resentencing.

In a 2012 landmark ruling the U.S. Supreme Court remarked in the case of Miller v. Alabama, 132 S. Ct. 2455 (2012), that mandatory LWOP sentences for juvenile offenders are unconstitutional. The high court ordered all the affected 2,500 cases across the nation to be resentenced and made it abundantly clear that instances of juveniles receiving LWOP must become "rare" and "uncommon," and only reserved for prisoners who are incapable of change the remainder of their lives. It is an enterprise the Wyoming Supreme Court recently stated "is difficult, if not impossible" to determine.

According to the U.S. Supreme Court, "Deciding that a juvenile offender will forever be a danger to society would require making a judgment that [he] is incorrigible -- but incorrigibility is inconsistent with youth and for the same reason, rehabilitation could not justify that sentence. Life without parole foreswears the rehabilitative ideal. It reflects an irrevocable judgment about [an offender's] value and place in society, at odds with a child's capacity for change." (Miller, 132 S. Ct. at 2465)

Several Michigan prosecutors have rejected the stern rebuke by the high court replacing the court's ruling with their own narrow, myopic, and misguided views. They have also politicized and stalled resentencing hearings for the remaining 240 juvenile cases awaiting hearings since 2012 by pursuing unwarranted LWOP sentences against them. This makes the Michigan Supreme Court's forthcoming ruling about juvenile lifers all the more important.

One instance of a juvenile lifer awaiting a resentencing hearing who is not deserving of a LWOP sentence is Efren Paredes, Jr., a 45-year-old Latino who has been incarcerated since age 15. He was convicted for the 1989 murder and robbery of a grocery store manager in St. Joseph, Michigan, and sentenced to LWOP. He had no previous criminal record and was a high school honor student at the time of his arrest. Three of his co-defendants received considerable less time than he did. Two were released 13 years ago and one received a six-month sentence. All three co-defendants were older than Paredes at the time.
                                                                                                

A review of Paredes' life during his incarceration reveals a catalog of impressive accomplishments and dozens of examples of his capacity for change. He helped lead a successful campaign to create an indigenous charter middle school in the Los Angeles Unified School District (LAUSD), has become a Literary Braille Transcriber certified by the U.S. Library of Congress, and a mentor to other prisoners and students outside of prison. He has also received letters of commendation from career Michigan Department of Corrections professionals about his positive attitude and leadership. In 2016 LATINA magazine named him one of four Latina/o prisoners in the nation deserving of clemency.

Though Paredes presents compelling evidence of a juvenile offender deserving a term-of-year sentence and the opportunity to become a productive member of society once again, the Berrien County Prosecutor's Office has pursued a LWOP sentence against him. His case is only one among the scores of egregious examples of injustice occurring in juvenile lifer cases across the state. Additional information about the Paredes case is available at www.fb.com/Free.Efren. An online petition expressing support for his release is also available at www.TinyURL.com/Efren1016.

There is little doubt that members of the court have seen repeated instances of clear and convincing evidence of how far Michigan prosecutors have strayed from U.S. Supreme Court rulings about the treatment of juvenile lifers over the past several years. Prosecutors have demonstrated their refusal to follow the rule of law even when it is unequivocal and absent ambiguity. The court now has a historic opportunity to end their abuse of authority and flagrant violations of the U.S. Constitution by abolishing LWOP for Michigan juvenile lifers altogether.

The trend of the nation continues to move in the direction of abandoning the pernicious practice of condemning children to die in prison. Currently less than half the states in the nation are imposing LWOP sentences on juveniles, and states are increasingly legislating an end to these deplorable sentences. Their actions are a symbol of the evolving standards of decency of a civilized society. It is a trend that is making its way to the doorstep of the U.S. Supreme Court and will eventually result in abolishment of the sentence altogether.
Allowing prosecutors to continue hijacking the resentencing process could result in potentially repeating the resentencing of hundreds of juvenile lifers at least two more times between now and the time the U.S. Supreme Court issues a total ban on juvenile LWOP sentences. It will also result in each case being appealed and creating unnecessary work for our appellate courts.

Since the 2012 U.S. Supreme Court ruling ending mandatory LWOP sentences for juvenile offenders the Michigan Court of Appeals has reversed every case in which a juvenile lifer has been resentenced to a LWOP sentence. This is the same outcome that will potentially unfold in hundreds more cases, creating a costly burden to taxpayers and wasting valuable judicial time and resources, if allowed to remain unchecked.

Rendering any ruling other than a total ban on LWOP sentences for juvenile offenders will be impotent to reign in the rogue actions of obstinate prosecutors. They have already demonstrated a blatant disregard to adhere to rulings of the highest court in the nation and a willingness to undermine them with impunity. It is a clear message to the Michigan Supreme Court that anything short of abolishing juvenile LWOP sentences will result in prosecutors impugning the integrity of the court and demonstrating contempt for their ruling as well.

The Michigan Supreme Court must boldly exercise its stewardship if it intends to prevent prosecutors from feeling they are above the law by continually using juvenile lifer resentencing hearings as a playground for political gamesmanship.

                                                                                                 * * * *

The following are excerpts from the recent Wyoming Supreme Court ruling in Davis v. Wyoming, 2018 WY 40 (Wyo. 2018):

"We recognize that the task of determining whether a juvenile is permanently incorrigible is difficult, if not impossible. The Roper Court remarked, '[i]t 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 irreparable corruption.' (Roper v. Simmons, 543 U.S. at 573, 125 S. Ct. at 1197 (2005) (citing Laurence Steinberg & Elizabeth Scott, "Less Guilty by Reason of Adolescence," 58 Am. Psychologist 1009, 1014-16 (2003)). 'If this determination is difficult for even trained psychologists, we would be remiss if we did not acknowledge our concerns about sentencing courts -- or reviewing courts for that matter -- accurately assessing, or in essence forecasting, whether an individual who committed a crime while still a minor is and will remain irreparably corrupt for the rest of his or her life and on the basis of that assessment accurately meting out a proportionate sentence.' (People v. Hyatt, 891 N.W.2d 549, 573-74 (Mich. App. 2016)), appeal denied, (People v. Williams, 888 N.W.2d 64 (Mich. 2016))." (Paragraph 35)

"The Supreme Court made clear that a sentencing court must determine that a juvenile is irreparably corrupt or permanently incorrigible prior to imposing a sentence of life without parole: 'Even if a court considers a child's age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects 'unfortunate yet transient immaturity.' (Montgomery v. Louisiana, 136 S. Ct. at 734 (2016) (quoting Miller v. Alabama, 567 U.S. at 479-80, 132 S. Ct. at 2469 (2012)) (quoting Roper, 543 U.S. at 573, 125 S. Ct. at 1197))." (Paragraph 38)

"A sentencing court must begin its analysis with the premise that in all but the rarest of circumstances, a life-without-parole (or the functional equivalent thereof) sentence will likely be disproportionate for the juvenile before it. (See Hyatt, 891 N.W.2d at 574) ('A sentencing court must operate under the understanding that life without parole is, more often than not, not just inappropriate, but a violation of the juvenile's constitutional rights.') ... '[T]he vast majority of adolescents change as they age." (Commonwealth v. Batts, 163 A.3d at 452 (Pa. 2017))." (Paragraph 44)

'[M]inimal risk is associated with an erroneous decision in favor of the juvenile: sentencing the juvenile to a term of years with the possibility of parole when that juvenile is one of the rare individuals incapable of rehabilitation would simply mean that, while eligible for parole, the unrehabilitated juvenile would likely never obtain release on parole and would spend the rest of his life in prison." (Paragraph 49)

"'To protect youthful offenders from erroneous decisions that foreclose their ability to ever be released from prison, the Supreme Court therefore held that a sentence of life without parole is disproportionate and illegal for a juvenile offender unless that defendant 'exhibits such irretrievable depravity that rehabilitation is impossible.' (Montgomery, 136 S. Ct. at 733 (citing Miller, 567 U.S. at 479-80, 132 S. Ct. 2455))[.]' Batts, 163 A.3d at 455 (emphasis in original)." (Paragraph 50)

"[S]ee also (State v. Seats, 865 N.W.2d at 557 (Iowa 2015)) ('We must be cognizant of the fact that a sentence of life in prison without the possibility of parole for a juvenile is the equivalent of the death penalty for juveniles.')" (Paragraph 68)

"Miller contains no suggestion that a seventeen-year-old is more deserving of adult punishment than a sixteen-year-old. Rather, Miller recognized that 'youth is more than a chronological fact' and is 'itself a relevant mitigating factor of great weight.' (Miller, 567 U.S. at 476, 132 S. Ct. at 2467 (citing Eddings v. Oklahoma, 455 U.S. 104, 115, 116, 102 S. Ct. 869, 877, 878, 71 L.Ed.2d 1 (1982))." (Paragraph 76)

"The nature of the crime alone will generally be insufficient to support a conclusion that a juvenile is irreparably depraved. ... '[T]he fact that a vile offense occurred is not enough, by itself, to warrant imposition of a life-without-parole sentence. The court must undertake a searching inquiry into the particular juvenile, as well as the particular offense, and make the admittedly difficult decision of determining whether this is the truly rare juvenile for whom life without parole is constitutionally proportionate as compared to the more common and constitutionally protected juvenile whose conduct was due to transient immaturity for the reasons addressed by our United States Supreme Court.' (Hyatt, 891 N.W.2d at 575); see also (Adams v. Alabama, 136 S. Ct. 1796, 1800, 195 L.Ed.2d 251 (2016) (Sotomayor, J., concurring, joined by Ginsburg, J.) (referring to the 'Court's repeated exhortation that the gruesomeness of a crime is not sufficient to demonstrate that a juvenile offender is beyond redemption')); (People v. Padilla 209 Cal. Rptr. 3d at 221 (Cal. App. 2016)). Miller recognized that none of the characteristics that distinguish a child from an adult are 'crime-specific.' (Miller, 567 U.S. at 473, 132 S. Ct. at 2465)." (Paragraph 79)

"The district court also failed to recognized that 'peer influence can play a more subtle role in adolescent behavior, as when teenagers engage in behavior that they think will win peer approval ... or simply encourage one another through group interaction.' (Elizabeth Scott et al., "Juvenile Sentencing Reform in a Constitutional Framework," 88 Temp. L. Rev. 675, 699 (2016))" (Paragraph 81)

"Most juveniles will outgrow the signature qualities of youth by the time their brain development is complete. (See Scott, supra, 88 Temp. L. Rev. at 700). Juveniles are more likely to change with available treatment. Id. at 701. And, the seriousness of their crime does not alter these propositions. Id. at 700." (Paragraph 91)

"A life-without-parole sentence 'means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days.' (Graham v. Florida, 560 U.S. at 70, 130 S. Ct. at 2027 (2010) (quoting Naovarath v. State, 779 P.2d 944, 945 (Nev. 1989))." (Paragraph 94)

"Miller and Montgomery 'make clear that sentencing a juvenile to life without parole is more than a simple consideration of a set of factors.' (Hyatt, 891 N.W.2d at 579). Montgomery establishes a stringent standard whereby a juvenile offender cannot be sentenced to life without parole unless the sentencing court determines, based upon its analysis of the Miller factors, that the juvenile is one of the truly rare individuals incapable of reform." (Paragraph 104)

"[T]he district court abused its discretion by failing to make a finding of permanent incorrigibility based upon its analysis of all the Miller factors. When the Miller factors are not properly considered and weighed and when there is no finding of permanent incorrigibility, or when a finding of permanent incorrigibility is not supported by the Miller factors, the resulting sentence violates the Eighth Amendment." (Paragraph 106)


Monday, April 16, 2018

Double Jeopardy Infects Dozens of Juvenile Lifer Cases




by Necalli Ollin

Across Michigan trial courts are approaching how they sentence juvenile lifers who are eligible for resentencing hearings in different ways. Two areas of particular concern is how they sentence those who were previously sentenced for two counts of first-degree murder for premeditated murder and felony murder for the death of a single victim, and those who were previously sentenced for felony murder and the underlying felony (e.g., armed robbery, larceny, etc.).

Some courts are resentencing people for both of the murder charges and allowing the underlying felony sentence to remain the same. Some are dismissing one of the murder charges and allowing the underlying felony sentence to remain the same. And, others are resentencing for one of the murder charges as well as resentencing for the underlying felony. 

Even judges from the same county are treating cases differently. The problem with all three scenarios is that they are all wrong.

The Michigan Court of Appeals ("MCOA") has ruled that sentences for both premeditated murder and felony murder which arise out of the death of a single victim, and sentences for both felony murder and the underlying felony (e.g., armed robbery, larceny, etc.), violate the double jeopardy protections of the United States and Michigan Constitution. They are plain-errors that seriously affected the fairness, integrity, and public reputation of judicial proceedings that resulted in incorrect judgments of sentence. According to the MCOA the proper remedy for these double jeopardy violations is for the trial court to do the following:

(1) Vacate the underlying felony which was used to elevate the murder charge to felony murder (e.g., armed robbery, larceny, etc.); and (2) Modify the judgment of conviction and sentence to specify that the person's conviction is for one count and one sentence of first-degree murder supported by two theories: premeditated murder and felony.

(People v. Gimotty, 216 Mich App 254, 259-260 (1996); and People v. Bigelow, 229 Mich App 218, 221-222 (1998) (special panel)). The following cases specifically apply to vacating armed robbery when it is the predicate felony to felony murder: People v. Jackson, 100 Mich App 146 (1980); People v. Harding, 443 Mich 693, 795 (1993); and People v. Carter, 1998 Mich App LEXIS 1698 (1998) (unpublished).

Rather than seek to be resentenced for underlying felony charges juvenile lifers being resentenced should only request resentencing for the felony murder charge and not the underlying felony. Instead of requesting resentencing for the underlying felony they should request that it be vacated because it is an unconstitutional sentence they should have never received from the onset according to the MCOA.

Trial courts cannot ignore unconstitutional double jeopardy sentences at resentencing hearings. Refusal to vacate the unlawful sentence will be viewed as an abuse of discretion resulting in reversible error if it becomes necessary for the MCOA to review the abdication of a sentencing court's responsibility. It would also result in additional court hearings, the wasteful use of time and resources, and unnecessary costs to taxpayers.

Over the past year approximately 100 juvenile lifers have been released and 45 have been safely paroled back to the community. They are being productive citizens, most are working, and none have violated the conditions of their parole. Their conduct reflects decades long established statistics that people originally sentenced to life without parole have a less than 1% rate of recidivating. The average term-of-year sentence they received when resentenced is 31 years in line with previous rulings made by the U.S. Supreme Court. 

The U.S. Supreme Court ruled six years ago that sentencing courts are required "to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison."
(Miller v. Alabama, 567 U.S. 460, 480 (2012)). The court went on state in a separate ruling two years ago that "the penological justifications for life without parole collapse in light of the distinctive attributes of youth" and that only persons who are "incapable of change" can be candidates for a life without parole sentence. (Montgomery v. Louisiana, 136 S Ct 718, 734 (2016)).

Two years ago the MCOA also stated that in sentencing a juvenile, a trial court must begin its analysis with the understanding that life without parole sentences are "unequivocally appropriate only in rare cases." They added, in implementing "stern rebuke of Miller [v. Alabama] and Montgomery [v. Louisiana], the sentencing court must operate under the notion that more likely than not, life without parole is not proportionate." (People v. Hyatt, 316 Mich App 368, 420 (2016)).

Over two-thirds of Michigan's juvenile lifers still await sentencing rehearings. Despite prosecutors' misguided efforts to seek life without parole sentences for the remaining juvenile lifers in defiance of the guidance provided by the U.S. Supreme Court sentencing courts will make the final determination what sentences are actually imposed. It is a very fluid situation right now but soon things will be accelerated with the anticipated ruling by the Michigan Supreme Court regarding whether a judge or jury gets to decide which prisoners can receive life without parole sentences. The court ruling is expected to be made before July.

Sentencing courts exercised the rule of law to sentence over 360 juveniles to death-by-incarceration sentences decades ago. It is now time that they enforce the rulings by the U.S. Supreme Court governing juvenile lifer resentencing hearings with the same vigor moving forward when revisiting these cases. They can acknowledge the stern rebuke of the nation's high court to do the right thing and simultaneously correct the double jeopardy issues which have compounded the miscarriages of justice that have occurred.

Unconstitutional sentences cannot be camouflaged to appear as anything other than they truly are: misapplications or violations of the law. They remain unconstitutional until they are remedied in full and brought in line with U.S. Supreme Court rulings and established law of this state. In the words of the late Dr. Martin Luther King, Jr., "Justice delayed is justice denied."