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App 146 (1980); People v. Harding, 443 Mich 693, 795 (1993); and People v. Carter, 1998 Mich App LEXIS 1698 (1998) (unpublished).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."
