DETROIT — 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 charged, tried, and sentenced as an adult. It also has been legal to sentence minors who murder to life in prison 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 state’s taxpayers more each year to keep each of them locked up than it would to send them to a private university.
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 who have already been sentenced. Michigan Attorney General Bill Schuette doesn’t seem to think the ruling of the nation’s highest court applies to those inmates in his state — at least not retroactively.
Mr. Schuette, a politically ambitious politician who likes to appear tough on crime, says he doesn’t want to “revictimize the families” of victims by holding parole hearings.
That has irked U.S. District Judge John Corbett O’Meara, who last month slammed the state for inaction. He ordered the state to put in a process to review possible parole for such offenders, almost immediately.
His order said that by Dec. 31, Michigan must develop “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. They include notifying all such inmates 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 consideration.
But while Mr. 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 who is convicted of homicide to life without the possibility of parole.
The decision came about because of two cases — Miller vs. Alabama and Jackson vs. Hobbs. Both involved young men who were convicted of murder when they were 14 years old.
Justice Elena Kagan wrote in her majority opinion: “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. Life without parole is the state’s harshest possible sentence. Michigan has a disproportionate number of the estimated 2,500 such cases nationwide.
The Michigan Supreme Court agreed recently to hear three cases on the retroactivity issue, though arguments won’t be made until next spring. So far, several other states have issued contradictory rulings whether the law is retroactive.
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 the U.S. Supreme Court will have to decide whether kids who were sentenced to life without parole in the past will be eligible for parole in the future.
Should the same justices 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.
Ruling that inmates are eligible for parole doesn’t mean they will be paroled. In some cases, they probably won’t be.
Whatever the courts eventually do is certain to be controversial — and to anger 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, Mich., in 1991.
She confessed to the killing, thinking she’d get a light sentence as a juvenile. Instead, she got life without parole. Those who support 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 Black does not deserve parole, because she was 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 parole.
The fate of those who are now in prison almost certainly will take a year or more to decide.
Jack Lessenberry, a member of the journalism faculty at Wayne State University in Detroit and The Blade’s ombudsman, writes on issues and people in Michigan.
Contact him at: email@example.com