So what can we do with kids who kill?
Technically, in Michigan, it has been possible since 1997 to have a person of any age — even an infant — charged, tried and sentenced as an adult. It has also been legal to sentence minors who murder to life without the possibility of parole.
Today, Michigan’s prisons hold 350 such inmates. Some seem to have been vicious killers. Others did nothing except be present when, say, their boyfriends murdered someone.
Regardless, it costs the taxpayers more each year to keep each of them locked up than it would to send them to a private university.
Yet whether or not this is a good policy, the U.S. Supreme Court last year ruled that sentencing kids to life without the possibility of parole is unconstitutional. Nobody disputes this.
Yet what isn’t clear is whether that decision applies to those already so sentenced. Michigan Attorney General Bill Schuette doesn’t seem to think the nation’s highest court’s ruling applies to those inmates in his state — at least not retroactively.
Schuette, a politically ambitious politician who likes to appear tough on crime, says he doesn’t want to “revictimize the families” of those killed, by holding parole hearings.
That has plainly irked at least one federal judge. U.S. District Judge John Corbett O’Meara last week slammed the state for inaction and ordered the state to put in place a system to review possible parole for such offenders, almost immediately.
His order said that by Dec. 31, Michigan has to put in place “an administrative structure to process and determine the appropriateness of parole for prisoners sentenced to life without parole for crimes committed as juveniles.”
Judge O’Meara ordered the state to take seven other actions, including notifying all such people who have spent at least 10 years in prison that they are eligible for parole, and that their cases “will be considered in a meaningful and realistic manner.”
He also ordered the state to prevent sentencing judges from vetoing any parole considerations.
But while Schuette’s office concedes that the nation’s highest court struck down Michigan’s juvenile lifer law, he insists it doesn’t apply retroactively — and is resisting Judge O’Meara’s order.
To a layman, the attorney general’s reasoning may be hard to comprehend. In June 2012, the U.S. Supreme Court ruled that it is unconstitutional to require sentencing a juvenile convicted of homicide to life without the possibility of parole.
The decision came about because of two cases — Miller v. Alabama and Jackson v. Hobbs. Both involved young males who were convicted of killing when they were 14 years old.
Justice Elena Kagan wrote in her majority opinion that “Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features … immaturity, impetuosity and failure to appreciate risks and consequences.”
Yet that doesn’t automatically mean the court’s decision is retroactive, said Robert Sedler, a professor of constitutional law at Wayne State University in Detroit. “This is a very complicated issue, and is going to be fought out state by state,” he said.
That includes Michigan, where there is no death penalty, and life without parole is the harshest possible sentence.
The state, in fact, has a disproportionate number of the estimated 2,500 such cases nationwide.
The Michigan Supreme Court has recently agreed to hear three such cases on the retroactivity issue, though arguments won’t be made until next spring. So far, several other states have issued contradictory rulings as to whether the law is retroactive or not.
The U.S. Department of Justice believes the decision striking down mandatory life without parole for juveniles is retroactive.
But Pennsylvania’s highest court ruled the opposite. What seems certain is that eventually, the U.S. Supreme Court will have to decide whether kids who were sentenced to life without parole in the past will now be eligible for parole in the future.
Should the same judges be on the high court when the retroactivity issue reaches Washington, it seems clear that, once again, Justice Anthony Kennedy will be the swing vote who decides.
Ruling that someone is eligible for parole doesn’t mean they will be paroled, however, and in some cases, they probably won’t be.
Whatever the courts eventually do is certain to be controversial — and anger some. Some newspapers have focused on the case of Amy Black, who was 16 when her boyfriend murdered a man at their apartment in Muskegon Heights in 1991.
She confessed to the killing, thinking she’d get a light sentence as a juvenile. Instead, she got life without parole. Those supporting parole often cite Black, now 38, as a textbook example of someone who deserves another chance.
But the Detroit Free Press quoted the murdered man’s wife as saying there is no way Black deserves parole, after being an accessory to the slaying of a father of two young children.
About all that’s clear is that in Michigan as elsewhere, no more minors can be sentenced to life without the possibility of parole, and the fate of those now in prison will almost certainly take a year or more to decide.
Jack Lessenberry, who teaches journalism at Wayne State University, is Michigan Radio’s senior political analyst, an ombudsman and writing coach for the Toledo Blade and former foreign correspondent for and executive national editor of The Detroit News. He was named Journalist of the Year in 2002 by the Metropolitan Detroit Chapter of the Society of Professional Journalists.