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Wednesday, July 16,2014

In Michigan, why not torture?

Supreme Court, A.G., embrace cruel and unusual punishment

by Mickey Hirten
Last week I wrote about Michiganīs shortsighted fiscal policies, its unwillingness to fund education, environment, roads, communities, etc. — investments that produce good jobs and real growth.

This week itīs about Michiganīs soul and how weīve devalued it. Itīs sadly illustrated by last weekīs ruling from the Republican Supreme Court endorsing cruel and unusual punishment of juveniles. Itīs an issue here. Michigan is second only to Pennsylvania in the number of juveniles serving life-without-parole sentences.

In 2012, the U.S. Supreme Court ruled that sentencing juveniles to automatic life-without-parole was “cruel and unusual punishment” and violates the Eighth Amendment of the U.S. Constitution. It found quite reasonably that the cognitive development of young people differs from that of adult and that judges must consider factors like maturity, home life, education and culpability in a crime when handing down sentences. This is hardly a ground-breaking finding. Think of how you changed between 15 and 20 or 30. If you have kids, you know how they changed. Age matters in so many ways.

Michigan, like other states, altered its sentencing policies to comply with the U.S. Supreme Court ruling. But the High Court didnīt address the status of juveniles already sentenced to life-without-parole. There are 334 such prisoners in Michigan. Ever looking to play to his conservative base, Attorney General Bill Schuette determined that prisoners already subject to the stateīs cruel and unusual punishment sentencing were out of luck. He justified the constitutional violation of fundamental rights as a way to fulfill what he said were promises made to the families of victims.

“First-degree murder is a serious crime, and it carries with it serious consequences. In every case where a juvenile is sentenced to life in prison, a victim was already sentenced to death — forever. The victimīs family then grapples with the aftermath of post-traumatic stress, depression, unyielding grief, and visits to a grave."

No legal scholarship needed for this assertion. The crimes committed by juveniles are often horrific and sentences should be severe. But is that justification to trample on the Bill of Rights, to perpetuate punishments that are cruel and unusual? Challenges to Schuetteīs policy was ultimately worked its way to the Michigan Supreme Court whose four Republican justices: Chief Justice Robert P. Young Jr. and Justices David F. Viviano, Brian K. Zahra and Ste phen J. Markman outvoted Justices Mary Beth Kelly (a Republican), Michael F. Cavanagh and Bridget Mary McCormack both Democrats. The majority said that there was no need for the state to reconsider the sentences of juveniles. They are much comfortable defending the Second Amendment — the “right to bear arms.”

The opinion, written by Markman, dismissed the Supreme Courtīs ruling as “procedural” and not “substantive." Then he offered this incredible rationale for the decision.

“There would be considerable financial, logistical, and practical barriers placed on prosecutors to recreate or relocate evidence that had previously been viewed as irrelevant and unnecessary.”

Considerable financial barriers. At least heīs honest.

For Markman and his colleagues there must be a price point where they are willing to address constitutional violations, some acceptable financial threshold. But what is the price of justice? Markman didnīt say.

Of course, wealth already is an issue in these criminal proceedings. Well-funded government prosecutors square off against $50 an hour (or less) public defenders. What, other than overmatched and overworked lawyers, would prompt defendants in a state without a death penalty to plea to first degree murder and life without parole sentences. Take the trial; take a chance.

Michigan is a state where law-and-order credentials help win elections. Markman, for example, was endorsed by Michiganīs Fraternal Order of Police in his well-funded campaign for the Supreme Court. Zahra and Viviano are seeking reelection in November, the appropriate time to remind voters of their tough on crime rulings from the bench.

At some point the Supreme Court is likely to address the retroactive sentencing issue. And there is another case dealing with juveniles moving through the courts. U.S. District Court Judge John Corbett OīMeara ruled in the case of Hill v. Snyder that the juvenile decision by the Supreme Court was retroactive. He ordered the state to provide parole hearings and provide educational and training opportunities to live-without-parole prisoners.

He said in an article reported by the Voice of Detroit: “Indeed, if ever there was a legal rule that should — as a matter of law and morality — be given retroactive effect, it is the rule announced in Miller. To hold otherwise would allow the state to impose unconstitutional punishment on some persons but not others, an intolerable miscarriage of justice.”

Of course, his decision was appealed by Schuette at the 6th U.S. Circuit Court of Appeals. OīMearaīs ruling is currently stayed.

And thanks to the attorney general and his compliant Supreme Court, we in Michigan can continue the government enforced policy ruled cruel and unusual punishment by the nationīs highest court.

Email Mickey Hirten at mickey@lansingcitypulse.com.


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