People of Michigan v. Montez Stovall

• Court: Michigan Supreme Court
• Decided: July 28, 2022
• Docket: 162425
• Status: Published

Opinion

Michigan Supreme Court Lansing, Michigan

Syllabus Chief Justice: Justices: Bridget M. McCormack Brian K. Zahra David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh Elizabeth M. Welch

This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis

PEOPLE v STOVALL

Docket No. 162425. Argued March 2, 2022 (Calendar No. 3). Decided July 28, 2022.

In 1992, Montez Stovall pleaded guilty in the Wayne Circuit Court to second-degree murder, MCL 750.317, and to possession of a firearm during the commission of a felony (felony- firearm), MCL 750.227b. Defendant fatally shot two men in 1991 when he was a juvenile, and he pleaded guilty in exchange for the dismissal of first-degree murder charges. Pursuant to the plea agreement, defendant was sentenced to life in prison with the possibility of parole (parolable life) for murder, to be served consecutively to the mandatory two-year sentence for felony-firearm. Defendant moved to withdraw his plea in 1993, but the trial court denied the motion. Defendant later filed multiple motions for relief from judgment, which were also denied. In 2017, defendant again moved for relief from the judgment, arguing that his plea was illusory and that his sentences violated the Eighth Amendment of the United States Constitution pursuant to Miller v Alabama, 567 US 460 (2012), and Montgomery v Louisiana, 577 US 190 (2016), because his sentences effectively denied him a meaningful opportunity for release. The trial court, Kelly Ramsey, J., denied the motion, and the Court of Appeals denied leave to appeal. Defendant sought leave to appeal in the Supreme Court, which remanded the case to the Court of Appeals as on leave granted. 504 Mich 892 (2019). On remand, the Court of Appeals, SAWYER and METER, JJ. (GLEICHER, P.J., dissenting), affirmed the decision of the trial court. 334 Mich App 553 (2020). Defendant again sought leave to appeal in the Supreme Court, and the Supreme Court granted the application. 507 Mich 938 (2021).

In an opinion by Chief Justice MCCORMACK, joined by Justices BERNSTEIN, CAVANAGH, and WELCH, the Supreme Court held:

A sentence of life in prison with the possibility of parole for a defendant who committed second-degree murder while a juvenile constitutes cruel or unusual punishment and therefore violates Const 1963, art 1, § 16.

1. Defendant’s successive motion for relief from judgment was not barred by MCR 6.502(G)(2) because it was based on a retroactive change in law. A retroactive change in the law must serve only as a foundation or base for a defendant’s claim to overcome the procedural bar in the court rule. A narrower reading of the rule requiring that the defendant’s claims fall squarely within a retroactive change in law would effectively merge the procedural hurdle in MCR 6.502(G)(2) with the merits inquiry in MCR 6.508(D), rendering one of those provisions nugatory. Because Miller and Montgomery served as the foundation or base for defendant’s challenges to the constitutionality of his sentences, his motion was based on a retroactive change in law sufficient to overcome the procedural bar in MCR 6.502(G).

2. A defendant may be entitled to withdraw a guilty plea if the plea bargain was illusory, meaning that the defendant received no benefit from the agreement. Contrary to defendant’s assertion here, it was not the case that he received no benefit from the plea agreement. Without a plea agreement, defendant could nevertheless have been sentenced to life without the possibility of parole if he had been convicted of first-degree murder; he just would have been entitled to a Miller hearing after Montgomery was decided in 2016. Defendant received the benefit for which he bargained: the possibility of being paroled that a conviction of first-degree murder might not have allowed.

3. The Eighth Amendment of the United States Constitution provides that “cruel and unusual punishments” shall not be inflicted on criminal defendants. In Miller, the Court held that mandatory sentences of life without the possibility of parole violate the Eighth Amendment and that a sentencing court must have discretion to sentence a juvenile offender to a lesser sentence after considering the mitigating qualities of youth. Defendant’s Eighth Amendment challenge to his sentences under Miller failed; under Montgomery, a parolable life sentence for a juvenile offender does not violate the Eighth Amendment. However, the Michigan Constitution is different from the Eighth Amendment. Const 1963, art 1, § 16 bars “cruel or unusual punishments,” and the textual difference between the Eighth Amendment and Const 1963, art 1, § 16 called for a broader interpretation of the Michigan prohibition than its federal counterpart. When determining whether a sentence is cruel or unusual, the trial court relies on a test set forth by the Michigan Supreme Court in People v Bullock, 440 Mich 15 (1992), which assesses: (1) the severity of the sentence imposed compared to the gravity of the offense, (2) the penalty imposed for the offense compared to penalties imposed on other offenders in the same jurisdiction, (3) the penalty imposed for the offense in Michigan compared to the penalty imposed for the same offense in other states, and (4) whether the penalty imposed advances the penological goal of rehabilitation. As applied to this case, regarding the first and second factors of the test, a parolable life sentence is the most severe penalty that can be imposed for second-degree murder, and it is particularly severe when imposed on a juvenile. The severity of the sentence was heightened by the fact that juveniles who committed second-degree murder could receive the same sentence as juveniles who committed first-degree murder with less process than the juveniles convicted of the more serious crime, because sentencing courts were not required to consider the mitigating qualities of youth before imposing sentence on a juvenile offender convicted of second-degree murder. Further, the Michigan Legislature, in enacting MCL 769.25 and MCL 769.25a, chose not to make parolable life the applicable sentence for juveniles who commit first-degree murder. Because this sentence was not on the table for the most serious crime a juvenile could commit, permitting it for a less serious offense was disproportionate and therefore cruel or unusual. Considering the third Bullock factor, the clear national trend was toward treating juveniles less harshly than adults and extending Miller beyond the context of mandatory life without the possibility of parole, with many states not allowing parolable life sentences for adult or juvenile offenders. Therefore, the third Bullock factor supported finding a parolable life sentence for a juvenile who committed second-degree murder to be cruel or unusual. Regarding the fourth Bullock factor, although a parolable life sentence may advance the penological goal of rehabilitation in theory, the question for juvenile offenders was whether such a sentence provided a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. Parolable life sentences for juveniles do not advance the sentencing goal of rehabilitation because prisoners who have received this sentence are given lower priority for participation in educational and rehabilitative programming, which is especially necessary for juvenile offenders, and because a juvenile convicted of second-degree murder could receive a meaningful opportunity for release after a longer period of incarceration than the maximum sentence served by a juvenile convicted of first-degree murder. Finally, whether the Parole Board practically considered whether to grant parole to an offender serving a parolable life sentence was subject to changing executive branch policies. An offender’s meaningful opportunity to gain release is to be measured in terms of the offender’s demonstrated maturity and rehabilitation and should not be subject to the whims of executive branch policy. Under the test in Bullock, a parolable life sentence for a defendant who committed second-degree murder as a juvenile violated Const 1963, art 1, § 16.

Sentence for second-degree murder conviction vacated and case remanded to the Wayne Circuit Court for further proceedings.

Chief Justice MCCORMACK, concurring, wrote separately to address Justice ZAHRA’s suggestion that the Supreme Court should revisit its caselaw interpreting Const 1963, art 1, § 16. The Supreme Court has long held that the textual difference between the federal and state constitutional provisions means that Article 1, § 16 provides slightly broader protection than the Eighth Amendment. Justice ZAHRA would hold that Article 1, § 16 only prohibited punishments that would have been considered cruel or unusual in 1963. In fact, it was likely that the original meaning of the prohibition in Article 1, § 16 was to consider standards of decency over time. Additionally, the United States Supreme Court had already implemented its “evolving standards of decency” approach to interpreting the Eighth Amendment when the state Constitution was ratified, so the fact that the ratifiers used the same words as the Eighth Amendment in Article 1, § 16 but with a more flexible conjunction indicated that they did not intend to reject the approach of the United States Supreme Court. Further, the assumption that, by trying to understand the text’s original meaning, judges could set aside their own policy preferences was flawed. “Original” understandings of constitutional provisions were subject to differing interpretations, and allowing judges to reconsider long-settled precedent in order to consider the original meanings of constitutional provisions would render stare decisis irrelevant.

Justice ZAHRA, dissenting, joined by Justice VIVIANO (except as to footnote 9) and Justice CLEMENT (except as to footnotes 24 and 25), agreed with the majority that defendant’s plea and sentencing agreements were not illusory or invalid and that defendant had entered into them knowingly, voluntarily, and intelligently. However, he disagreed that defendant’s parolable life sentences constituted cruel or unusual punishment under Const 1963, art 1, § 16. In Montgomery, the Supreme Court explicitly approved of parolable life sentences for juvenile homicide offenders as a remedy for the mandatory life sentences held unconstitutional under Miller. Miller mandated only that the sentencing court consider an offender’s youth and attendant characteristics before imposing life without the possibility of parole. Because defendant did not receive life without the possibility of parole, his Eighth Amendment challenge lacked merit. Justice ZAHRA further asserted that the Michigan Constitution did not support defendant’s claim that his sentences were constitutionally disproportionate pursuant to the test set forth by the Michigan Supreme Court in People v Lorentzen, 387 Mich 167 (1992), and Bullock. First, the severity of a parolable life sentence was proportionate to the gravity of a second-degree murder conviction. Second-degree murder was the second-most serious crime a person could commit under Michigan law, so it was logical that it was punishable by the second-most serious punishment, a parolable life sentence. With regard to the second factor, parolable life was not an uncommon sentence for serious crimes committed in Michigan, and Michigan law penalized some nonhomicide offenses with parolable life sentences, demonstrating that this punishment was not constitutionally disproportionate for homicides. Third, parolable life sentences were common in other states, and the majority opinion inappropriately relied on the law in jurisdictions that extended Miller to de facto life sentences, which was not what was at issue here. Fourth, defendant’s sentences served the penological goal of rehabilitation because he was eligible for parole after 10 years and able to be reconsidered for parole every five years after that. Therefore, none of the factors in the Lorentzen/Bullock test supported the conclusion that a parolable life sentence was constitutionally disproportionate when imposed on a juvenile homicide offender, so defendant did not show that his sentence violated the Eighth Amendment or Const 1963, art 1, § 16. The majority opinion’s application of the Lorentzen/Bullock factors was flawed in several respects. First, the majority conflated sentences of parolable life with nonparolable life sentences and rendered the distinction made between the two sentences by the Montgomery Court meaningless. Next, the majority improperly second- guessed the Legislature’s policy decisions by using the Legislature’s chosen Miller remedy, MCL 769.25 and MCL 769.25a, as a justification for finding parolable life sentences constitutionally disproportionate. Further, the facts of defendant’s case demonstrate why his parolable life sentences are not more severe than the term-of-years sentences imposed under MCL 769.25 and MCL 769.25a. Finally, the majority based its contention that parolable life sentences for juvenile homicide offenders do not advance the penological goal of rehabilitation on its assertion that those sentenced to parolable life had less access to rehabilitative programming than those serving term- of-years sentences and on its assertion that the decision to grant parole is subject to the changing policies of the Parole Board. But the Parole Board was now required to consider the distinctive attributes of youth recognized in Miller, and the Board’s policy directives required it to give prisoners who were denied parole a notice of decision setting forth the factors the Board considered and the corrective actions the prisoner could take to improve the probability of being granted parole in the future. Therefore, those sentenced to parolable life had the tools necessary to maximize their prospects for release. Miller applied only to life-without-parole sentences and required only a meaningful opportunity to obtain release. Because Montgomery concluded that parolable life sentences provided this meaningful opportunity, Justice ZAHRA would not have entertained defendant’s request to redefine what constituted a meaningful opportunity. In this case and the other sentencing cases decided at the same time, the majority departed from the Court’s past jurisprudence and improperly usurped the role of the Legislature.

Justice VIVIANO, dissenting, joined Justice ZAHRA’s dissent except as to footnote 9. Justice VIVIANO disagreed with the majority and with Justice ZAHRA’s statement in footnote 9 that defendant had satisfied the procedural requirements to file a successive motion for relief from judgment under MCR 6.502(G). The majority held that defendant’s motion satisfied the procedural bar in MCR 6.502(G) because it was “based on a retroactive change in law.” But defendant relied on Miller and Montgomery, both of which are inapplicable to defendants sentenced to life with the possibility of parole. Reliance on an inapplicable holding was not a true basis or foundation to satisfy the court rule, and the majority’s holding would allow defendants to satisfy the procedural requirements by citing a case with retroactive effect, regardless of whether the cited caselaw actually entitled them to any relief. The relief requested by defendant in his motion did not depend on recognition of the rule announced in Miller and made retroactive in Montgomery, and the majority’s interpretation of MCR 6.502(G) would incentivize criminal defendants to file increasingly meritless successive motions for relief from judgment, which would further burden already backlogged trial courts. Additionally, even if defendant could overcome the procedural bar in the court rule, his constitutional argument would nevertheless fail for the reasons stated by Justice ZAHRA.

Justice CLEMENT, dissenting, joined Justice ZAHRA’s dissent except as to footnotes 24 and 25 and except insofar as Justice ZAHRA’s dissent conflicted with her opinion in People v Boykin, ___ Mich ___; ___ NW2d ___ (2022) (Docket Nos. 157738 and 158695) (CLEMENT, J., concurring in part and dissenting in part). Michigan Supreme Court Lansing, Michigan

OPINION Chief Justice: Justices: Bridget M. McCormack Brian K. Zahra David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh Elizabeth M. Welch

FILED July 28, 2022

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 162425

MONTEZ STOVALL,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

MCCORMACK, C.J. We consider whether the defendant’s life sentence with the possibility of parole for

second-degree murder, imposed for a crime committed when he was a juvenile, violates

Article 1, § 16 of the Michigan Constitution. That provision, unlike its federal counterpart,

forbids cruel or unusual punishment, and our test from People v Lorentzen, 387 Mich 167;

194 NW2d 827 (1972), and People v Bullock, 440 Mich 15, 33-34; 485 NW2d 866 (1992),

governs our review. Applying that test, we conclude that the defendant’s sentence violates the prohibition against cruel or unusual punishment in Const 1963, art 1, § 16, so we

reverse the Court of Appeals, vacate the defendant’s sentence, and remand to the Wayne

Circuit Court for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

In 1991, while he was a juvenile, the defendant fatally shot two men. He pled guilty

in 1992 in two separate files to one count each of second-degree murder, MCL 750.317,

and possession of a firearm during the commission of a felony (felony-firearm), MCL

750.227b, in exchange for the dismissal of first-degree murder charges. The plea deal also

included a sentence agreement for life in prison with the possibility of parole (parolable

life) for murder, consecutive to the mandatory two-year term for felony-firearm. In 1993,

the defendant moved to withdraw his plea. The trial court denied that motion. The Court

of Appeals affirmed, and this Court denied leave to appeal in 1994. Defendant

subsequently filed multiple motions for relief from judgment, none of which succeeded.

The defendant filed this successive motion for relief from judgment in 2017, arguing

that his plea was illusory and his sentences violate the Eighth Amendment of the United

States Constitution under Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407

(2012), and Montgomery v Louisiana, 577 US 190; 136 S Ct 718; 193 L Ed 2d 599 (2016),

because he is effectively being denied a meaningful opportunity for release. The trial court

denied the motion, concluding that despite the fact that the Parole Board is following

stricter procedures than when the defendant entered into his plea, he still has a chance to

be released, and his plea was not illusory. The Court of Appeals denied leave to appeal.

2 The defendant appealed here, and this Court remanded the case to the Court of

Appeals as on leave granted. People v Stovall, 504 Mich 892 (2019). On remand, a

majority of the Court of Appeals affirmed the decision of the trial court in a published

opinion. People v Stovall, 334 Mich App 553; 965 NW2d 264 (2020). Judge GLEICHER

dissented and would have remanded for a resentencing hearing consistent with Miller

because she concluded that the defendant is serving a de facto sentence of life without the

possibility of parole (LWOP) with no individualized consideration of the characteristics of

youth. Id. at 572-580 (GLEICHER, P.J., dissenting).

The defendant again appealed here, repeating his same arguments. We granted

leave to appeal and directed the parties to address

(1) whether the defendant’s parolable life sentences for second-degree murder were the result of an illusory plea bargain; (2) whether the defendant’s sentences violate the prohibition against “cruel and unusual punishments” found in the Eighth Amendment to the United States Constitution, and/or the prohibition against “cruel or unusual punishment” found in Const 1963, art 1, § 16, where he was under the age of 18 at the time of the offenses; (3) whether the Parole Board’s “life means life” policy renders the defendant’s sentences unconstitutional under Miller v Alabama, 567 US 460 (2012), and Montgomery v Louisiana, 577 US 190 (2016); (4) whether, pursuant to Miller and Montgomery, the trial court was required to take the defendant’s youth into consideration when accepting his plea and ruling on his motion for relief from judgment; and (5) whether the Parole Board is similarly required to take his youth into consideration when evaluating him for release on parole.

People v Stovall, 507 Mich 938 (2021). In light of our rulings below, we decline to address

issues (3), (4), and (5) from our grant order.

3 II. PROCEDURAL BAR IN MCR 6.502(G)

The prosecution argues that the defendant’s successive motion for relief from

judgment is barred by MCR 6.502(G) because the defendant’s motion is not “based on a

retroactive change in law.” See MCR 6.502(G)(2). We disagree; as Justice CLEMENT said

in her concurring statement in People v Manning, 506 Mich 1033, 1038 (2020) (CLEMENT,

J., concurring), the retroactive change in law must only serve as a “foundation” or “base”

for a defendant’s claim to overcome the procedural bar in MCR 6.502(G)(2). Reading the

rule more narrowly to require that the defendant’s claims fall squarely within a retroactive

change in law would effectively merge the procedural hurdle in MCR 6.502(G)(2) with the

merits inquiry in MCR 6.508(D), rendering one of those provisions nugatory. Manning,

506 Mich at 1039 (CLEMENT, J., concurring), quoting Apsey v Mem Hosp, 477 Mich 120,

127; 730 NW2d 695 (2007) (“[N]o word should be treated as surplusage or made

nugatory.”).

Because Miller and Montgomery serve as the “foundation” or “base” for the

defendant’s challenges to the constitutionality of his sentences, his motion is “based on a

retroactive change in law” and therefore overcomes the procedural bar in MCR 6.502(G). 1

1 The defendant also argues that his motion involves a “claim of new evidence that was not discovered before the first such motion [for relief from judgment],” satisfying the other exception to the procedural bar in MCR 6.502(G). See MCR 6.502(G)(2). Given our conclusion that the defendant’s motion is “based on a retroactive change in law,” we decline to address this argument.

4 III. ANALYSIS

A. ILLUSORY PLEA

The defendant first asserts that his plea was illusory because he believed that

pleading guilty to second-degree murder was the only way to avoid spending his life in

prison, but under Miller and Montgomery, mandatory LWOP was outside the power of the

state to impose. “A defendant may be entitled to withdraw a guilty plea if the bargain on

which the plea was based was illusory, meaning that the defendant received no benefit from

the agreement.” People v Harris, 224 Mich App 130, 132; 568 NW2d 149 (1997).

We disagree with the defendant that he received no benefit from his plea agreement.

As the prosecution notes, the defendant could have still been sentenced to LWOP had he

been convicted of first-degree murder; he just would have been entitled to a Miller hearing

in 2016, after Montgomery was decided. So the defendant still received the benefit for

which he bargained: the possibility of being paroled that a first-degree murder conviction

might not have allowed. Thus, it is not the case that “the defendant received no benefit

from the agreement.” Harris, 224 Mich App at 132. 2

2 Defendant’s citation of People v Bollinger, 224 Mich App 491, 493; 569 NW2d 646 (1997), is nominally on point but ultimately distinguishable. In Bollinger, the defendant pled guilty to avoid a habitual-offender enhancement that the state lacked any authority to enforce. Id. at 491-492. Thus, in both that case and this one, the defendant pled guilty to avoid a penalty that the prosecutor did not have the authority to pursue. But in Bollinger, the prosecutor agreed as part of the plea agreement to forgo prosecuting the defendant as a habitual offender, but it lacked any authority to do so because its habitual-offender notice was not timely filed. Id. at 492-493. Here, the prosecutor could have still sought a first- degree murder conviction and LWOP even if the defendant had been prosecuted after Miller; LWOP simply would not have been mandatory.

5 B. CONSTITUTIONALITY OF PAROLABLE LIFE SENTENCE

Whether a defendant’s sentence constitutes cruel and/or unusual punishment under

the Eighth Amendment of the United States Constitution or Article 1, § 16 of the Michigan

Constitution are questions of constitutional law that we review de novo. People v

Lockridge, 498 Mich 358, 373; 870 NW2d 502 (2015). That means that we review them

independently, with no required deference to the trial court. People v Beck, 504 Mich 605,

618; 939 NW2d 213 (2019).

The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” US Const, Am

VIII. In Miller, the United States Supreme Court held that mandatory LWOP sentences

for juveniles violate the Eighth Amendment. Rather, a sentencer must have discretion to

impose a lesser sentence on a juvenile after considering “the mitigating qualities of youth.”

Miller, 567 US at 476, quoting Johnson v Texas, 509 US 350, 367; 113 S Ct 2658; 125 L

Ed 2d 290 (1993). The Court noted “three significant gaps between juveniles and adults”:

(1) Children have a lack of maturity and an underdeveloped sense of responsibility, leading

to recklessness, impulsivity, and risk-taking; (2) children are more vulnerable to negative

influences and outside pressures from their family and peers, have limited control over

their own environment, and lack the ability to extricate themselves from horrific, crime-

producing settings; and (3) a child’s traits are less fixed than those of an adult, and a child’s

actions thus are less likely to be evidence of irretrievable depravity. Miller, 567 US at 471.

In Montgomery, the Court held that Miller announced a substantive rule of

constitutional law; therefore, it applied retroactively to cases on collateral review.

6 Defendant’s challenge to his parolable life sentence under the Eighth Amendment

fails—Montgomery tells us so explicitly. See Montgomery, 577 US at 212 (“A State may

remedy a Miller violation by permitting juvenile homicide offenders to be considered for

parole, rather than by resentencing them.”). The United States Supreme Court wouldn’t

offer up a Miller remedy that it believed violated the Eighth Amendment. And if there

were any doubt, Jones v Mississippi, 593 US ___; 141 S Ct 1307; 209 L Ed 2d 390 (2021)

eliminated it. See id. at ___; 141 S Ct at 1314 (rejecting the argument that “Miller requires

more than just a discretionary sentencing procedure”); id. at ___; 141 S Ct at 1321 (“Miller

held that a State may not impose a mandatory life-without-parole sentence on a murderer

under 18.”).

The Michigan Constitution, however, is different. Article 1, § 16 of the Michigan

Constitution provides that “[e]xcessive bail shall not be required; excessive fines shall not

be imposed; cruel or unusual punishment shall not be inflicted; nor shall witnesses be

unreasonably detained.” The Michigan Constitution, therefore, forbids unusually

excessive imprisonment. Lorentzen, 387 Mich at 172. In Bullock, 440 Mich at 30-35, this

Court held that the textual difference between Michigan’s prohibition on “cruel or unusual

punishment” and the Eighth Amendment’s bar on “cruel and unusual punishments,” the

historical circumstances when the Eighth Amendment was ratified, and longstanding

Michigan precedent called for a broader interpretation of Michigan’s prohibition against

“cruel or unusual punishment” than the Supreme Court’s interpretation of the federal

counterpart.

The Court applied a four-part test adopted in Lorentzen, 387 Mich 167, for

determining whether a sentence is cruel or unusual. Bullock, 440 Mich at 33-34. That test

7 assesses (1) the severity of the sentence imposed compared to the gravity of the offense,

(2) the penalty imposed for the offense compared to penalties imposed on other offenders

in Michigan, (3) the penalty imposed for the offense in Michigan compared to the penalty

imposed for the same offense in other states, and (4) whether the penalty imposed advances

the penological goal of rehabilitation. Bullock, 440 Mich at 33-34, citing Lorentzen, 387

Mich at 176-181. That test also governs whether the defendant’s parolable life sentence

violates Const 1963, art 1, § 16.

As for the first and second Bullock factors (which go hand in hand here), a parolable

life sentence is the most severe penalty that can be imposed for second-degree murder. 3

3 A trial court could impose a long term-of-years sentence that would theoretically deprive a defendant of any chance of being paroled during their lifetime. But such a defendant, unlike a parolable lifer, would have an early release date and therefore be given higher priority for scarce rehabilitative and educational programming. See generally In re Parole of Elias, 294 Mich App 507, 530-531; 811 NW2d 541 (2011) (describing how a prisoner’s participation in programming is considered in the parole guidelines); see also People v Johnson, unpublished per curiam opinion of the Court of Appeals, issued June 18, 2019 (Docket No. 344322), pp 8-9 (“[P]arolable lifers do not get the benefit of the parole guidelines until after an interview with a member of the parole board, after the sentencing judge or the judge’s successor has had an opportunity to register any objections, and after a public hearing of the type contemplated for prisoners seeking pardon or commutation.”). The defendant asserts, and the prosecution does not dispute, that his parole guidelines have never been scored.

Other considerations also make a term-of-years sentence less harsh than a life sentence. For example, a prisoner subject to a term-of-years sentence is generally considered for parole at no more than two-year intervals, but a parolable lifer is reviewed only at five- year intervals after serving 15 years of their sentence. Compare Michigan Department of Corrections, Parole Process, PD 06.05.104 (April 1, 2022), p 5, ¶ AA (providing for parole review “at intervals not to exceed 24 months” except in limited circumstances), available at [https://perma.cc/T345-7QLN], with MCL 791.234(8)(b) (providing that a prisoner sentenced to imprisonment for life is reviewed for parole after serving 15 years of their

8 MCL 750.317. And it is particularly severe when imposed on a juvenile, given the

important mitigating ways that children are different from adults. While second-degree

murder is a grave offense, the law recognizes graver yet.

The severity of the sentence is also heightened by the fact that unlike courts

sentencing juveniles who commit first-degree murder, sentencing courts who sentenced

defendants like Mr. Stovall—those convicted of second-degree murder committed while

they were juveniles—have not been required to consider the mitigating qualities of youth

identified in Miller before imposing sentence. But see People v Boykin, ___ Mich ___,

___; ___ NW2d ___ (2022) (Docket No. 157738); slip op at 13 (courts sentencing juveniles

who commit murder must consider the mitigating characteristics of youth when exercising

their discretion to impose any sentence). In other words, while juveniles who commit first-

degree murder will always receive a significant procedural safeguard before being

sentenced to die in prison, see People v Taylor, ___ Mich ___; ___ NW2d ___ (2022)

(Docket No. 154994); slip op at 8, defendants like Mr. Stovall who commit second-degree

murder as juveniles are at risk to serve precisely the same sentence without that safeguard. 4

sentence “and every 5 years thereafter”). We express no opinion on whether a long term-of- years sentence imposed on a juvenile would violate Const 1963, art 1, § 16. 4 This failure is not mitigated by the Parole Board’s recent adoption of provisions requiring the board to consider the mitigating characteristics of youth, i.e., the Miller factors, when considering a defendant for parole. See PD 06.05.104, p 3, ¶ N. While the Parole Board’s consideration of these mitigating characteristics is certainly in harmony with recent advances in the way we understand how youth impacts behavior and culpability, Miller requires that sentencing courts consider the mitigating characteristics of youth before imposing a discretionary sentence on juveniles who would otherwise be subject to a mandatory LWOP sentence. Having the Parole Board consider those characteristics decades later in deciding whether to grant parole to the defendant is a doubly watered-

9 That is, they may receive the same sentence with less process although they have been

convicted of a less serious offense.

As a practical matter, a parolable life sentence for second-degree murder is often

more severe than the minimum sentences now given to most juveniles who commit first-

degree murder: 25 to 40 years. In enacting MCL 769.25 and MCL 769.25a, the

Legislature chose not to make a parolable life sentence the applicable sentence for

juveniles who commit first-degree murder, even though the United States Supreme Court

blessed parolable life as a constitutionally permissible means of accommodating its

decision in Miller. See, e.g., Miller, 567 US at 489; Montgomery, 577 US at 212. When

a sentence is not on the table for the most serious offense a juvenile can commit, see

People v Carp, 496 Mich 440, 514; 852 NW2d 801 (2014) (“[F]irst-degree murder is

almost certainly the gravest and most serious offense that an individual can commit under

the laws of Michigan[.]”), cert gtd and opinion vacated sub nom on other grounds Carp

v Michigan, 577 US 1186 (2016), permitting it for a less serious offense is

disproportionate and therefore cruel or unusual.

Comparing the maximum penalty that the Legislature allows to be imposed against

a juvenile convicted of first-degree murder to the maximum penalty it allows to be

imposed against a juvenile convicted of second-degree murder is also instructive. See,

e.g., People v Babcock, 469 Mich 247, 263; 666 NW2d 231 (2003) (explaining that the

Legislature roots both minimum and maximum sentences in the principle of

proportionality). Without the safeguards of (1) the prosecution timely moving the trial

down version of what Miller requires and is no substitute for the judiciary’s responsibility to ensure that sentences are constitutionally proportionate when they are imposed.

10 court to sentence a juvenile convicted of first-degree murder to LWOP; (2) the trial court

conducting a hearing focused on the Miller factors; and (3) the trial court determining that

the particular offender deserves LWOP, the maximum release date for a juvenile convicted

of first-degree murder is typically 60 years. See MCL 769.25(4) or (9); MCL

769.25a(4)(c).

A hypothetical shows how this works. Consider Defendant A, who commits murder

as a juvenile, is arrested on his seventeenth birthday, and is detained until he is ultimately

convicted of first-degree murder and sentenced to a term-of-years sentence under MCL

769.25(4) or (9). Under the statute, which imposes a 60-year maximum for first-degree

murder, on Defendant A’s 77th birthday, he reaches his maximum discharge date and must

be released from the Department of Corrections; the Parole Board has no discretion to keep

Defendant A incarcerated even one more day.

Now consider Defendant B, who also commits murder as a juvenile, is arrested on

his seventeenth birthday, is detained until he is instead convicted of second-degree murder

and sentenced to parolable life, and who is not paroled during the first 60 years of his

sentence. On Defendant B’s 77th birthday, unlike Defendant A, there is no guarantee that

he will be released from the custody of the Department of Corrections. The same is true

the next year. And the next.

In short, in enacting MCL 769.25 and MCL 769.25a, the Legislature decided that

the Parole Board has a limited window of authority for deciding when a juvenile convicted

of the most serious crimes may be released. For many such offenders, the Parole Board’s

authority extends only to their sixtieth year of incarceration. That the Parole Board’s

11 authority over juvenile offenders convicted of lesser offenses extends further into their term

of incarceration is evidence of disproportionality.

Turning to the third Bullock factor, there is a clear national trend toward treating

juveniles less harshly than adults and extending Miller beyond just the mandatory LWOP

context. See, e.g., McKinley v Butler, 809 F3d 908, 911 (CA 7, 2016); People v Franklin,

63 Cal 4th 261, 276; 370 P3d 1053 (2016); Casiano v Comm’r of Correction, 317 Conn

52; 115 A3d 1031, 1045 (2015); People v Buffer, 2019 IL 122327, ¶ ¶ 25-27; 137 NE3d

763; State v Null, 836 NW2d 41, 71 (Iowa, 2013); State v Zuber, 227 NJ 422, 429; 152

A3d 197 (2017); State v Kelliher, ___ NC ___; ___ SE2d ___ (2022); State v Moore, 149

Ohio St 3d 557, 583; 2016-Ohio-8288; 76 NE3d 1127 (2016); Davis v State, 415 P3d 666;

2018 WY 40, ¶ ¶ 44-45 (2018) (all extending Miller to sentences that are de facto life

sentences or the functional equivalent of LWOP); see also State v Gilbert, 193 Wash 2d

169, 175-176; 438 P3d 133 (2019) (sentencing courts must consider the mitigating

characteristics of youth when sentencing all juveniles and may impose a lesser sentence on

the basis of those characteristics, regardless of any sentencing statute to the contrary).

And many states authorize term-of-years sentences for second-degree murder and

do not allow parolable life sentences—for anyone, not just juveniles. 5 See, e.g., Ariz Rev

Stat Ann 13-710 (providing for a minimum of 10 years and a maximum of 29 years for

second-degree murder); Ark Code Ann 5-10-103 (providing that second-degree murder is

a Class A felony) and Ark Code Ann 5-4-401 (providing that the punishment for Class A

5 We agree with Justice ZAHRA’s dissent that “parolable life is a common sentence for juvenile offenders in other states,” but that’s not very relevant. The Lorentzen/Bullock test compares the penalty imposed for the offense in Michigan and the penalty imposed for the same offense in other states.

12 felonies is a determinate sentence of 6 to 30 years); Ga Code Ann 16-5-1 (providing for

a 10- to 30-year sentence for second-degree murder); Iowa Code 707.3 (providing for a

50-year maximum sentence for second-degree murder); Md Code, Crim Law 2-204

(providing for a 40-year maximum sentence for second-degree murder); Minn Stat 609.19

(same); New Mex Stat Ann 30-2-1 (providing that second-degree murder is a second-

degree felony resulting in the death of a human being) and New Mex Stat Ann 31-18-15(4)

(setting the punishment for second-degree felonies at 15 years in prison); Tenn Code Ann

39-13-210 (providing that second-degree murder is a Class A felony) and Tenn Code Ann

40-35-112 (providing that Class A felonies are subject to sentences of 15 to 60 years);

Va Code 18.2-32 (providing for a minimum sentence of five years and a maximum

sentence of 40 years for second-degree murder); W Va Code 61-2-3 (providing for a 10-

to 40-year sentence for second-degree murder).

Of the states that do authorize parolable life for second-degree murder, some have

recognized the difference between children and adults by making children sentenced to

parolable life eligible for parole sooner. Compare, e.g., Ore Rev Stat 144.397(1)(a) and

(2)(a) (allowing a prisoner who commits second-degree murder while a juvenile to be

eligible for parole after 15 years) with Ore Rev Stat 163.115(5)(b) (providing that

prisoners who commit second-degree murder must serve a minimum of 25 years in prison

before becoming eligible for parole). For these reasons, the third Bullock factor supports

finding a parolable life sentence for a juvenile who commits second-degree murder to be

cruel or unusual.

Finally, although a parolable life sentence may advance the penological goal of

rehabilitation in theory, for juvenile offenders the question is whether that parolable life

13 sentence provides a “meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.” Compare Montgomery, 577 US at 212, with Miller, 567 US

at 479, quoting Graham v Florida, 560 US 48, 75; 130 S Ct 2011; 176 L Ed 2d 825 (2010).

A lot of ground we have already covered leads us to conclude that a parolable life

sentence for a juvenile offender convicted of second-degree murder does not advance this

penological goal. First, prisoners who receive parolable life sentences are given lower

priority when it comes to educational and rehabilitative programming. Access to these

programs is vital, especially for juvenile offenders, to enhance their growth and

rehabilitative potential. See Graham, 560 US at 74 (explaining that “[f]or juvenile

offenders, who are most in need of and receptive to rehabilitation, the absence of

rehabilitative opportunities or treatment makes the disproportionality of the sentence all

the more evident”) (citation omitted).

Second, the Legislature has made clear its intent that for juvenile first-degree-

murder convictions, such a meaningful opportunity for release is generally available after

60 years unless the juvenile offender was afforded the procedural protection of a Miller

hearing. It does not rationally follow that a meaningful opportunity for release for a

juvenile convicted of second-degree murder could come after a longer period of

incarceration than the maximum served by a juvenile convicted of first-degree murder.

Third, and relatedly, whether the Parole Board practically considers whether to grant

parole to an offender serving a parolable life sentence is subject to the fluctuations of

executive branch policies. An offender’s meaningful opportunity to gain release is to be

measured in terms of the offender’s “demonstrated maturity and rehabilitation,” not the

whims of an executive branch policy directive instructing the Parole Board to forgo

14 consideration of all offenders serving parolable life. Miller, 567 US at 479 (quotation

marks and citation omitted). Without further statutory limits, such as the one referred to

by the Supreme Court in Montgomery as a permissible sentencing scheme, parolable life

does not necessarily further the sentencing goal of rehabilitation. Montgomery, 577 US at

212, citing Wyo Stat Ann § 6-10-301(c) (noting that the Wyoming statute, which made

juvenile homicide offenders eligible for parole after serving 25 years in prison, may be a

constitutional sentencing scheme).

“[T]he people of Michigan, speaking through their constitution, have forbidden the

imposition of cruel or unusual punishments, and we are duty-bound to devise a principled

test by which to enforce that prohibition, and to apply that test to the cases that are brought

before us.” Bullock, 440 Mich at 41. We do that here and conclude that a parolable life

sentence for a defendant who commits second-degree murder while a juvenile violates

Article 1, § 16 of the Michigan Constitution. This conclusion is therefore precisely a

determination of what the law requires and not, as the dissent asserts, an intrusion upon the

Legislature’s authority of determining what the law should be. We have done this without

controversy many times before and will undoubtedly do so again. See, e.g., Rafaeli, LLC

v Oakland Co, 505 Mich 429; 952 NW2d 434 (2020) (unanimously holding that the

defendants had committed an unconstitutional taking by retaining the surplus proceeds

from the tax-foreclosure sales of the plaintiffs’ properties).

15 IV. CONCLUSION

We vacate the defendant’s sentence for second-degree murder because it violates

Article 1, § 16 of the Michigan Constitution. We remand this case to the Wayne Circuit

Court for further proceedings consistent with this opinion.

Bridget M. McCormack Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch

16 STATE OF MICHIGAN

MCCORMACK, C.J. (concurring). I concur in the majority opinion that I wrote. 1 I write separately to address Justice

ZAHRA’s contention that our many prior decisions construing Article 1, § 16 of the

Michigan Constitution, which precludes imposition of “cruel or unusual punishment,” are

analytically unsound and that he would therefore revisit them. He finds them unsound

because he does not believe the original meaning when ratified in 1963 included “evolving

standards of decency.” Accepting Justice ZAHRA’s premise for argument’s sake that clear,

unanimous original meaning is knowable, I’m not convinced that the original meaning of

Article 1, § 16 doesn’t include evolving standards of decency; more likely, that is exactly

what the ratifiers intended. But more importantly, his premise that clear, unanimous

original intent can be discerned and applied by judges with superhuman neutrality to

resolve legal questions in cases like this is flawed.

1 By quirk of this Court’s practice, my colleagues and I can “concur” with an opinion for which we are the author, a step I have never taken before. But here I appreciate the opportunity to dedicate a separate opinion to some fundamental observations. To begin with our constitutional text. It contrasts with the corresponding provision

in the Eighth Amendment of the United States Constitution, which prohibits “cruel and

unusual punishment.” This Court has long held that this textual difference means—not

surprisingly given the plain meaning of conjunctions—that Article 1, § 16 provides slightly

broader protection than the Eighth Amendment. See People v Bullock, 440 Mich 15, 30;

485 NW2d 866 (1992); People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972). In

those same decisions, we have also followed the United States Supreme Court’s analytical

approach in applying the Eighth Amendment when applying Article 1, § 16. That is, we

have agreed that the provision “must draw its meaning from the evolving standards of

decency that mark the progress of a maturing society.” Lorentzen, 387 Mich at 179,

quoting Trop v Dulles, 356 US 86, 101; 78 S Ct 590; 2 L Ed 2d 630 (1958).

Justice ZAHRA, “[n]otwithstanding” this precedent, “question[s] whether the textual

difference between the two punishment clauses is a sufficient basis to conclude that the

Michigan Constitution provides greater protection than the Eighth Amendment.” The basis

for his question is, he asserts, that “[d]iffering interpretative principles apply to each

constitutional provision.” For that reason, Justice ZAHRA says that this Court was wrong

to follow the United States Supreme Court’s approach to interpreting the Eighth

Amendment’s prohibition against cruel and unusual punishment in light of the evolving

standards of decency. Because his “interpretive principles,” which are simply a factual

contention, contrast with those of the United States Supreme Court, they make Michigan’s

constitutional protection less than, not more than, the Eighth Amendment’s. Curious.

Justice ZAHRA therefore suggests that this Court has “gone astray” in this precedent

(including precedent he himself joined, see People v Carp, 496 Mich 440; 852 NW2d 801

2 (2014)), because the ratifiers of the Michigan Constitution in 1963 might not—says he—

have understood the prohibition against “cruel or unusual punishment” to consider

society’s evolving standards of decency. He thus would instead construe Article 1, § 16’s

prohibition against cruel or unusual punishment “ ‘to discern the original meaning

attributed to the words of [the] constitutional provision by its ratifiers, the people, who are

understood to have accepted the words employed in a constitutional provision in the sense

most obvious to the common understanding and to have ratified the instrument in the belief

that that was the sense designed to be conveyed.’ ” 2 (Citation omitted.) So far so good. 3

But then: “while the protection afforded under the Eighth Amendment is constantly

evolving, the protection afforded under Const 1963, art 1, § 16, remains as it was originally

understood at the time of ratification”; that is, he suggests that it prohibits only those

punishments considered cruel or unusual in 1963. This step is mere assertion. Although

the ratifiers of Const 1963, art 1, § 16 adopted language nearly identical to the Eighth

2 When interpreting constitutional provisions, of course this Court has often referred to the rule of “common understanding” to consider how the operative terms were generally understood at the time of ratification. See Mich United Conservation Clubs v Secretary of State (After Remand), 464 Mich 359, 373-374; 630 NW2d 297 (2001) (YOUNG, J., concurring) (collecting cases). But this has never been an exclusive tool; many of these same opinions make clear that courts may also consider “the circumstances surrounding the adoption of the constitutional provision and the purpose sought to be accomplished” and the desire to avoid an interpretation that creates a constitutional invalidity. See, e.g., State Hwy Comm v Vanderkloot, 392 Mich 159, 179; 220 NW2d 416 (1974), quoting Traverse City Sch Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). 3 To emphasize, I agree with Justice ZAHRA that the ratifiers’ intent is at the core of the issue. The logical misstep in his argument is that it assumes the conclusion—that, in fact, the ratifiers intended to petrify then-existing conceptions of “cruel or unusual” punishment—and only those—for all time. That contention requires support, which his argument does not provide.

3 Amendment, they meant, according to Justice ZAHRA, something far less. But what is the

evidence for that?

Justice ZAHRA simply supposes that the 1963 ratifiers understood the prohibition

against cruel or unusual punishment to mean punishments either cruel or unusual at the

time. That argument rests on the premise that all ratifiers (or a majority, maybe?) agreed

exactly about what the broad phrase “cruel or unusual punishment” meant in 1963 too.

Given that assumption, all this Court needs to do is to look back to the precise and

unanimous 1963 meaning of “cruel or unusual punishment” and, voila, then the modern

applications will be clear.

But it does not follow that this Court’s consideration of the “evolving standards of

decency” when interpreting our state’s constitutional prohibition on cruel or unusual

punishment betrays “the original meaning attributed to the words of a constitutional

provision by its ratifiers” as explained in recent decisions Justice ZAHRA cites. See People

v Vaughn, 491 Mich 642, 651 n 25; 821 NW2d 288 (2012), and People v Nutt, 469 Mich

565, 573-574; 677 NW2d 1 (2004). More plausibly, the original meaning expressed by

those words is precisely to consider standards of decency over time. The words on their

face suggest as much. And given that the 1963 ratification came after the United States

Supreme Court’s “evolving standards of decency” approach to the Eighth Amendment was

established, the ratifiers could have picked words to make very clear that they rejected the

Supreme Court’s evolving-understanding approach. Instead, they went with the same

words, with a more flexible conjunction tying them together.

For, unlike certain terms with more fixed and less controversial meanings, see, e.g.,

State Hwy Comm, 392 Mich at 180 (“Certainly the popular and common understanding of

4 the word ‘shall’ is that it denotes mandatoriness.”), the broad language “cruel or unusual

punishment” itself conveys an understanding that this prohibition is to be applied in context

and over time. It is far-fetched to suppose that the ratifiers of the 1963 Constitution

themselves were unanimously committed to the belief that punishments cruel or unusual

were understood (by them) to be fixed in time, static for all humanity. Nor is there evidence

for this Court to assume as much. The ratifiers would have naturally expected the

application of the broad words “cruel or unusual” to be applied to reflect evolving

conceptions of cruelty, for example, over time. 4 There is no reason to assume otherwise.

So to get where he would go, Justice ZAHRA’s argument must add text to our

Constitution, like “. . . as we think today.” That is, Justice ZAHRA, in effect, reads the

constitutional text to prohibit something like “cruel or unusual punishment as we think of

those today in 1963.” The ghost modifier does all the work.

But enough on the merits question. I write here mainly to address Justice ZAHRA’s

claim about methodology because it feels important enough to warrant transparent

discussion of the stakes.

Justice ZAHRA suggests that by tacking to original meaning (as a majority of us

understand it), we can keep judges’ subjective policy preferences out of decision-making.

That is an alluring prospect: judges setting aside their policy preferences and instead

4 Moreover, generations of Michiganders should not be prisoners of history with the breadth of their constitutional protections confined only to what the 1963 ratifiers would consider “cruel or unusual.” That is not the nature of constitutionalism in the first place. Constitutions often express general principles to be applied in specific cases and context over time. Otherwise, constitutional law reduces to a two-dimensional exercise in history by us non-historian judges.

5 discerning the original meaning as understood by statesmen and stateswomen (usually

statesmen) from generations past to guide interpretation. But this approach has three major

flaws.

First, it assumes implausibly that there is such a thing as an original meaning and

that it is identifiable. Second, the approach assumes, perhaps more heroically, that judicial

efforts to discern “the” original meaning will not be impacted at all by judges’ own

experiences, perspectives, and values. Finally, Justice ZAHRA’s approach eviscerates stare

decisis, leaving judges even more room to channel their druthers.

To take each in turn.

Constitutional provisions usually lack a fixed, definitive original meaning apparent

on the face of constitutional text that is sufficient to decide specific cases. As many have

observed, history is complicated and contested, and neither judges nor their clerks are

typically trained in the discipline. “Originalist source material is sometimes scarce and

sometimes endless. It often does not specifically address the question that must be decided.

When it does address that question, it often does so in many different voices, no one of

which has a greater claim to authority than the others.” Primus, Limits of Interpretivism,

32 Harv J L & Pub Pol’y 159, 170 (2009); see also Fallon, The Many and Varied Roles of

History in Constitutional Adjudication, 90 Notre Dame L Rev 1753, 1758 (2015) (“[E]ither

the original public meaning of constitutional language or the proper application of that

meaning to particular cases frequently cannot be identified as a matter of simple historical

fact.”); Barrett, Originalism & Stare Decisis, 92 Notre Dame L Rev 1921, 1921 (2017)

(“For an originalist, the meaning of the text is fixed so long as it is discoverable.”)

(emphasis added). Original understandings of constitutional provisions are therefore

6 subject to differing interpretations. The Many and Varied Roles of History, 90 Notre Dame

L Rev at 1798 (“[H]istorical facts alone will frequently fail to prove the existence of an

original intent, original understanding, or original public meaning that is sufficiently clear

and determinate to resolve modern controversies.”); Primus, When Should Original

Meanings Matter?, 107 Mich L Rev 165, 214 (2008) (“[T]ellingly, many of the original

meanings that operate as clear authority in constitutional law have actually achieved that

clarity less because the underlying originalist source material was clear than because the

United States Supreme Court issued a decision adopting a particular reading of that source

material as authoritative.”).

Not surprisingly, then, judges too routinely disagree about “the” most faithful

original meaning of constitutional provisions. See, e.g., New York State Rifle & Pistol

Ass’n, Inc v Bruen, 597 US ___; 142 S Ct 2111; ___ L Ed 2d ___ (2022); id. at ___ (Breyer,

J., dissenting) (disagreeing with the majority opinion over the original meaning of the

Second Amendment of the United States Constitution); District of Columbia v Heller, 554

US 570; 128 S Ct 2783; 171 L Ed 2d 637 (2008); id. at 636-680 (Stevens, J., dissenting)

(same); id. at 681-723 (Breyer, J., dissenting) (same); Studier v Mich Pub Sch Employees’

Retirement Bd, 472 Mich 642; 698 NW2d 350 (2005); id. at 672-684 (CAVANAGH, J.,

dissenting) (disagreeing over the original meaning of “accrued financial benefits” in Article

9, § 24 of the Michigan Constitution).

Tacking to original meaning may make it just as likely that judges’ policy

preferences drive a result, intentionally or unintentionally, but either way less

transparently. Indeed, as Professor Cary Franklin explained in her critique of the United

States Supreme Court’s decision in Bostock v Clayton Co, Georgia, 590 US ___; 140 S Ct

7 1731; 207 L Ed 2d 218 (2020), adherence to original meaning does not offer more

objectivity than other methods of interpretation. It allows rather for disguised policy

choices about how to interpret text, such as which bits of text to subject to textualist

analysis; whether to consult a dictionary or a corpus linguistics database and, if so, which

dictionary or database to use; and which definition to select—to name just a few. See

Franklin, Living Textualism, 2020 Sup Ct Rev 119, 125 (2021) (“[O]riginal public meaning

is a judicial construct. It is not something judges find, but something they produce—and

something they need to produce because, in the kind of conflicts that reach the Court, there

generally is not a single truth of the matter from a semantic standpoint.”); see also Limits

of Interpretivism, 32 Harv J L & Pub Pol’y at 170 (“[O]riginalism is a poor strategy for

establishing clear rules of decision in advance of particular cases.”); Choi, Computational

Corpus Linguistics (July 1, 2022) (unpublished manuscript), p 1, available to download at

(accessed July 20, 2022) [https://perma.cc/Z9US-

VALM] (“[T]he traditional approach to corpus linguistics encounters several problems. It

focuses on word frequencies at the expense of subtler linguistic cues and presents no clear

dividing line between correct and incorrect textual meanings. It also requires a variety of

subjective and opaque judgment calls, allowing motivated interpreters to cherry-pick the

method that supports their favored meanings.”).

Of course, judges should consult and consider all sources and dimensions of original

meaning in analyzing constitutional text in applying constitutional provisions to specific

cases. But I don’t know any who don’t. Often, however, a particular textual phrase—

“cruel or unusual punishment,” for example—doesn’t allow us to resolve every application

of that provision even if we can know what the ratifiers of the Constitution thought it meant

8 in 1963. In such cases, judges shouldn’t pretend that we have some objective original

meaning that requires a specific result.

But Justice ZAHRA isn’t suggesting only that he would interpret Article 1, § 16

according to its original meaning (as he determines that original meaning), if called to do

so, against a blank canvas. He would also overrule 50 years of this Court’s precedent

because, in his revisionist view, the Court’s methodology was off. When the Court has for

50 years approached new iterations of a question governed by broad constitutional text

with a specific analysis, it is immodest indeed to pitch that away because now, in 2022,

one can determine somehow that the ouija board has spoken and the 1963 ratifiers meant

something else by that broad language.

Such an approach renders stare decisis irrelevant. Yet stare decisis is an important

commitment for courts because it allows people to order their affairs consistently with the

law’s requirements. We therefore normally require more than a majority of a court thinking

that precedent was incorrectly decided. See Robinson v Detroit, 462 Mich 439, 463-468;

613 NW2d 307 (2000) (discussing the other factors to be considered before overruling a

prior decision). After all, if we fully agreed with the way a previous case was decided we

wouldn’t need stare decisis—we’d just decide the next related question the same way. If

stare decisis means anything, it means not every judicial decision is up for grabs from

scratch. On the other hand, if original meaning provides a stare decisis override, 5 then it

5 Even committed originalists have recognized that judges should not upset settled expectations, even when a precedent departs from the “original” meaning of a constitutional provision. See, e.g., Barrett & Nagle, Congressional Originalism, 19 U Pa J Const L 1, 1 (2016) (“Some decisions thought inconsistent with the Constitution’s original public meaning are so well baked into government that reversing them would wreak havoc.”). Justice Scalia emphasized that originalism should not be used to undo

9 provides a platform for judges to make policy choices while claiming they are doing

something else. (I set aside that constitutional ratifiers would be generally familiar with

the doctrine of stare decisis and conferred constitutional judicial power in recognition of

it. In that sense, stare decisis has an originalist element itself.)

Justice ZAHRA would apparently still overturn our longstanding doctrine applying

Article 1, § 16 if four members of this Court, lacking historical training, divine that the

ratifiers in 1963 had a unanimous and specific understanding of a prohibition against “cruel

or unusual punishment” that was not to be applied over time and that did not include a

prohibition against parolable life sentences for young people. Such new forms of judicial

immodesty are likely to erode confidence in judicial neutrality.

Bridget M. McCormack

settled constitutional principles. Scalia, A Matter of Interpretation: Federal Courts & the Law (Princeton: Princeton University Press, 1997), pp 138-139 (“Originalism, like any theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew. . . . [O]riginalism will make a difference . . . not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones.”).

10 STATE OF MICHIGAN

ZAHRA, J. (dissenting). In 1991, defendant murdered two people one month before he turned 18 years old.

Defendant fatally shot his first victim because he believed the victim had shot an

acquaintance of his. Three days later, defendant fatally shot his second victim because the

victim’s friend had attempted to rob defendant the day before. Defendant pleaded guilty

to two counts of second-degree murder in exchange for the dismissal of one count of first-

degree murder—a conviction for which, at the time, carried with it a sentence of mandatory

life without parole—and an agreed-upon sentence of life with the possibility of parole

(parolable life). 1 Defendant became eligible for parole after serving 10 years in prison. 2

After the Supreme Court of the United States held in Miller v Alabama 3 that mandatory

1 Defendant also pleaded guilty to two counts of possession of a firearm during the commission of a felony (felony-firearm). The parolable life sentences were to be served consecutively to two concurrent terms of two years’ imprisonment for the felony-firearm convictions. See MCL 750.227b(1). 2 MCL 791.234(7)(a). 3 Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012). life without parole is unconstitutional for juvenile homicide offenders and held in

Montgomery v Louisiana 4 that Miller applied retroactively, defendant filed this successive

motion for relief from judgment seeking to withdraw his plea or, alternatively, have his

parolable life sentences declared unconstitutional in light of Miller and Montgomery. The

trial court denied defendant relief from the judgment, and the Court of Appeals affirmed.

This Court granted defendant’s application for leave to appeal on a number of issues

regarding the validity of his plea and sentencing agreement and the constitutionality of his

parolable life sentences.

I agree with the majority opinion that defendant’s plea and sentencing agreement

were not illusory or invalid, but instead were knowingly, voluntarily, and intelligently

entered into by defendant. I disagree, however, with the majority opinion’s conclusion that

defendant’s parolable life sentences constitute “cruel or unusual punishment” under Const

1963, art 1, § 16. Far from being constitutionally disproportionate, defendant’s parolable

life sentences match the severity of his two murder convictions while still affording him a

meaningful opportunity to be reintegrated into society. For reasons more thoroughly

developed in this opinion, I dissent from the majority opinion’s conclusion that defendant’s

parolable life sentences are invalid and that he is entitled to relief from judgment under

MCR 6.508(D).

4 Montgomery v Louisiana, 577 US 190; 136 S Ct 718; 193 L Ed 2d 599 (2016).

2 I. STANDARD OF REVIEW AND ENTITLEMENT TO RELIEF FROM JUDGMENT

A trial court’s ruling on a motion for relief from judgment is reviewed for an abuse

of discretion. 5 “An abuse of discretion occurs when a trial court’s decision falls outside

the range of reasonable and principled outcomes.” 6 “The proper interpretation and

application of a court rule is a question of law that is reviewed de novo.” 7 Questions of

constitutional law are also reviewed de novo. 8

To be entitled to relief from judgment under MCR 6.508(D), 9 defendant must show

“good cause” for failing to raise the grounds for relief on appeal or in the prior motion and

“actual prejudice” from the alleged irregularities that support the claim for relief. 10 MCR

6.508(D)(3)(b) states that actual prejudice, in relevant part, occurs when:

(ii) in a conviction entered on a plea of guilty, . . . the defect in the proceedings was such that it renders the plea an involuntary one to a degree that it would be manifestly unjust to allow the conviction to stand;

* * *

(iv) in the case of a challenge to the sentence, the sentence is invalid.

5 People v Hewitt-El, 501 Mich 1031 (2018). 6 People v Franklin, 500 Mich 92, 100; 894 NW2d 561 (2017) (quotation marks and citation omitted). 7 People v Cole, 491 Mich 325, 330; 817 NW2d 497 (2012). 8 People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011). 9 For the reasons stated in Justice CLEMENT’s concurrence in People v Manning, 506 Mich 1033, 1036-1039 (2020), I agree with the majority opinion’s conclusion that defendant’s successive motion for relief from judgment is “based on a retroactive change in law that occurred after [defendant’s] first motion for relief from judgment” and, therefore, satisfies the procedural bar in MCR 6.502(G)(2). 10 MCR 6.508(D)(3)(a) and (b).

3 II. RELEVANT LAW

The Eighth Amendment of the United States Constitution proscribes the imposition

of “cruel and unusual punishments.” 11 In Miller, the Supreme Court of the United States

held that “mandatory life without parole for those under the age of 18 at the time of their

crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishments.” 12

The Supreme Court reasoned that juveniles’ lack of maturity, vulnerability to negative

influence, and transitory personality traits render them “constitutionally different from

adults for purposes of sentencing.” 13 These “distinctive attributes of youth diminish the

penological justifications for imposing” life without parole on juvenile homicide offenders,

and “[b]y making youth (and all that accompanies it) irrelevant to imposition of that

harshest prison sentence, [a sentencing scheme mandating life without parole for juvenile

homicide offenders] poses too great a risk of disproportionate punishment.” 14 Therefore,

the Supreme Court in Miller held that before sentencing a juvenile homicide offender to

life without parole, a sentencing court must first have an opportunity to consider the

distinctive attributes of youth, i.e., the Miller factors. 15 The Miller Court clarified,

11 US Const, Am VIII. 12 Miller, 567 US 465 (quotation marks omitted). 13 Id. at 471. 14 Id. at 472, 479. 15 Those factors include: (1) “[a defendant’s] chronological age and its hallmark features— among them, immaturity, impetuosity, and failure to appreciate risks and consequences”; (2) “the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional”; (3) “the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him”; (4) whether “he might have been charged [with] and convicted of a lesser offense if not for incompetencies associated with

4 however, that its holding “mandate[s] ‘only that a sentencer follow a certain process—

considering an offender’s youth and attendant characteristics—before imposing’ a life-

without-parole sentence” 16 and that “ ‘[a] State is not required to guarantee eventual

freedom,’ but must provide ‘some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation.’ ” 17

In Montgomery, the Supreme Court held that Miller applies retroactively to juvenile

homicide offenders whose convictions and sentences were final when Miller was

decided. 18 The Supreme Court assured that

[g]iving Miller retroactive effect . . . does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.[19]

In response to Miller, our Legislature enacted MCL 769.25 and MCL 769.25a,

which provide relief to juvenile homicide offenders who committed certain crimes that,

youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys”; and (5) “the possibility of rehabilitation.” Id. at 477-478. 16 Jones v Mississippi, 593 US ___; 141 S Ct 1307, 1314; 209 L Ed 2d 390 (2021) (emphasis added), quoting Miller, 567 US at 483. 17 Miller, 567 US at 479, quoting Graham v Florida, 560 US 48, 75; 130 S Ct 2011; 176 L Ed 2d 825 (2010) (holding that the Eighth Amendment bars life without parole for a juvenile convicted of a nonhomicide offense). 18 Montgomery, 577 US 190. 19 Id. at 212 (citation omitted; emphasis added).

5 before Miller, would have mandated life without parole. 20 Under those statutes, if the

prosecution seeks a life-without-parole sentence, the sentencing court is required to

conduct a hearing to consider the Miller factors and specify on the record the aggravating

and mitigating circumstances that the court considered in imposing its sentence. 21 If the

prosecution does not seek a life-without-parole sentence, the sentencing court must

sentence the defendant to a term of years, in which the minimum sentence is between 25

and 40 years’ imprisonment. 22 Notably, MCL 769.25 and MCL 769.25a do not list second-

degree murder as an eligible offense triggering either a Miller hearing or a term-of-years

sentence. Those statutes also do not address juvenile homicide offenders sentenced to

parolable life.

Finally, the Michigan Constitution provides that “cruel or unusual punishment shall

not be inflicted.” 23 “The textual difference between the federal constitutional protection

and the state constitutional protection is of consequence and has led this Court to conclude

that Article 1, § 16 provides greater protection against certain punishments than its federal

counterpart . . . .” 24 Our precedent provides that each punishment clause contains a

20 MCL 769.25a was enacted in anticipation that Miller would apply retroactively. It applies to juvenile homicide offenders who were sentenced to mandatory life without parole prior to Miller and provides essentially the same substantive relief as MCL 769.25. 21 MCL 769.25(6), (7); MCL 769.25a(4)(b). 22 MCL 769.25(9); MCL 769.25a(4)(c). 23 Const 1963, art 1, § 16 (emphasis added). 24 People v Carp, 496 Mich 440, 519; 852 NW2d 801 (2014), cert gtd and opinion vacated sub nom on other grounds Carp v Michigan, 577 US 1186 (2016). Notwithstanding this statement in Carp, I question whether the textual difference between the two punishment clauses is a sufficient basis to conclude that the Michigan Constitution provides greater protection than the Eighth Amendment. Differing interpretative principles apply to each

6 constitutional provision. The Supreme Court of the United States has stated that “[t]o determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society.” Graham, 560 US at 58 (quotation marks and citations omitted). In interpreting the Michigan Constitution, however, “[o]ur goal in construing our Constitution is to discern the original meaning attributed to the words of a constitutional provision by its ratifiers, the people, who are understood to have accepted the words employed in a constitutional provision in the sense most obvious to the common understanding and to have ratified the instrument in the belief that that was the sense designed to be conveyed.” People v Vaughn, 491 Mich 642, 651 n 25; 821 NW2d 288 (2012) (quotation marks and citations omitted). Our task is to give effect to the meaning of the constitutional text that “the people who ratified the text in 1963 gave to it,” not “the meaning we as judges would prefer, or even the meaning the people of Michigan today would prefer[.]” People v Nutt, 469 Mich 565, 574 n 7; 677 NW2d 1 (2004) (quotation marks and citation omitted). In other words, while the protection afforded under the Eighth Amendment is constantly evolving, the protection afforded under Const 1963, art 1, § 16 remains as it was originally understood at the time of ratification.

It appears, however, that our caselaw concerning Const 1963, art 1, § 16 has gone astray by unthinkingly adopting the federal “evolving standards of decency” principle when it, in fact, conflicts with our general rule of constitutional interpretation. In People v Lorentzen, 387 Mich 167, 178-179; 194 NW2d 827 (1972), this Court appeared to incorporate the “evolving standards of decency” principle in deciding whether a sentence was constitutionally proportionate under both the United States and Michigan Constitutions, explaining that “[t]he decency test . . . looks to comparative law for guidelines in determining what penalties are widely regarded as proper for the offense in question.” See People v Coles, 417 Mich 523, 530; 339 NW2d 440 (1983) (stating that, under Lorentzen’s analysis, “the definition of cruel or unusual punishment becomes a flexible one, changing with the evolving standards of decency as expressed by similar penal statutes”), overruled in part on other grounds by People v Milbourn, 435 Mich 630 (1990). This Court in People v Bullock, 440 Mich 15, 33-35; 485 NW2d 866 (1992), simply accepted Lorentzen’s proportionality analysis without first questioning whether its adoption of the “evolving standards of decency” principle conflicted with our traditional method of constitutional interpretation.

In sum, while this Court has stated that the textual difference between the Eighth Amendment and Const 1963, art 1, § 16 leads to greater protection under the latter, it did so without consideration of the materially different interpretative methods applicable to each provision. Given this, I question whether the above cases interpret Const 1963, art 1, § 16 correctly and whether the ratifiers of the Michigan Constitution in 1963 understood the “cruel or unusual punishment” clause to provide greater protection than what the Eighth Amendment currently provides under our society’s evolving standards of decency.

7 Accordingly, I would revisit whether the textual difference between Const 1963, art 1, § 16 and the Eighth Amendment translates into a greater protection under the Michigan Constitution.

Rather than give any meaningful response to my criticisms regarding the precise legal question before this Court—i.e., the constitutional validity of a parolable life sentence for a juvenile homicide offender who specifically agreed to that sentence—Chief Justice MCCORMACK responds to this footnote with a 10-page diatribe expressing, among other things, her opposition to original-meaning jurisprudence. Chief Justice MCCORMACK claims my understanding of how we interpret the Michigan Constitution is “simply a factual contention.” Ante at 2 (MCCORMACK, C.J., concurring). Curious, considering this Court has consistently recognized that the Michigan Constitution is to be interpreted in accordance with “ ‘the text’s original meaning [according] to the ratifiers, the people, at the time of ratification.’ ” Rafaeli, LLC v Oakland Co, 505 Mich 429, 456; 952 NW2d 434 (2020), quoting Wayne Co v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004). See also Woodland v Mich Citizens Lobby, 423 Mich 188, 219; 378 NW2d 337 (1985) (“ ‘Constitutions do not change with the varying tides of public opinion and desire; the will of the people therein recorded is the same inflexible law until changed by their own deliberative action. They [the courts] must construe them as the people did in their adoption, if the means of arriving at that construction are within their power.’ ”) (ellipsis omitted), quoting People ex rel Bay City v State Treasurer, 23 Mich 499, 506 (1871) (opinion of the Court by COOLEY, J.); Mich Farm Bureau v Secretary of State, 379 Mich 387, 390-391; 151 NW2d 797 (1967) (“[T]he all important duty of the judiciary when constitutional provisions are brought up for interpretation and application . . . is to ascertain as best the Court may the general understanding and therefore the uppermost or dominant purpose of the people when they approved the provision or provisions thus brought up.”); Burdick v Secretary of State, 373 Mich 578, 584; 130 NW2d 380 (1964) (“It is a fundamental principle of constitutional construction that we determine the intent of the framers of the Constitution and of the people adopting it. . . . [W]e should endeavor to place ourselves in the position of the framers of the Constitution, and ascertain what was meant at the time. . . . It could not mean one thing at the time of its adoption, and another thing today, when public sentiments have undergone a change. It is therefore essential that we determine the intent of [a constitutional] provision by reference to the state of the law or custom previously existing, and by the contemporaneous construction, rather than attempt to test its meaning by the so-called advanced or liberal views obtaining among a large class of the community at the present day.”) (quotation marks and citations omitted).

Chief Justice MCCORMACK now rejects our lodestar principle of constitutional interpretation, despite frequently subscribing to this standard as the appropriate method of constitutional interpretation in Michigan. See, e.g., League of Women Voters of Mich v Secretary of State, 508 Mich 520, 535; ___ NW2d ___ (2022) (“Our primary goal in construing a constitutional provision is to give effect to the intent of the people of the state

8 of Michigan who ratified the Constitution, by applying the rule of common understanding. We locate the common understanding of constitutional text by determining the plain meaning of the text as it was understood at the time of ratification.”) (quotation marks and citation omitted); Taxpayers for Mich Constitutional Gov’t v Michigan, 508 Mich 48, 60- 61; 972 NW2d 738 (2021) (same); Rafaeli, 505 Mich at 456; (same); Paquin v City of St Ignace, 504 Mich 124, 129-130; 934 NW2d 650 (2019) (same); Citizens Protecting Michigan’s Constitution v Secretary of State, 503 Mich 42, 61; 921 NW2d 247 (2018) (same); Adair v Michigan, 497 Mich 89, 101-102; 860 NW2d 93 (2014) (same). See also In re House of Representatives Request for Advisory Opinion Regarding Constitutionality of 2018 PA 368 & 369, 505 Mich 884, 886 (2019) (CLEMENT, J., concurring, joined by MCCORMACK, C.J.) (“When construing the Michigan Constitution, our primary goal is to give effect to the intent of the people of the state of Michigan who ratified the Constitution, by applying the rule of common understanding. Generally, we locate the common understanding of constitutional text by determining the plain meaning of the text as it was understood at the time of ratification . . . .”) (cleaned up); People v Cain, 498 Mich 108, 132; 869 NW2d 829 (2015) (VIVIANO, J., dissenting, joined by MCCORMACK, C.J.) (“In interpreting the constitutional phrase ‘trial by jury,’ the guiding principle is to give the text the meaning it was understood to have at the time of its adoption by the people.”) (quotation marks and citation omitted). My willingness to revisit our precedent interpreting Const 1963, art 1, § 16 is not, as the Chief Justice suggests, a frivolous request to overturn caselaw contrary to stare decisis. If anything, respecting stare decisis would demand adherence to our longstanding principle of constitutional interpretation discussed above, which dates back to at least 1871. Apparently, the Chief Justice is only concerned about stare decisis when it serves her interests.

Further, Chief Justice MCCORMACK embraces a cafeteria-style approach to constitutional interpretation, in which she picks any method that arguably supports her view. See ante at 3 n 2 (MCCORMACK, C.J., concurring). Chief Justice MCCORMACK’s freewheeling approach to constitutional interpretation is simply not sound. The various interpretive tools used in the cases cited by the Chief Justice work toward a single purpose: to determine the original understanding of the ratifiers. Again, this Court has long held that our “primary objective” in interpreting a constitutional provision is to determine the text’s original meaning according to the common understanding of the people at the time of ratification. Rafaeli, 505 Mich at 456 (quotation marks and citation omitted). And the Chief Justice concedes, as she must, that “ ‘the circumstances surrounding the adoption of the constitutional provision and the purpose sought to be accomplished’ ” are helpful in accomplishing our objective. Ante at 3 n 2 (MCCORMACK, C.J., concurring), quoting State Hwy Comm v Vanderkloot, 392 Mich 159, 179; 220 NW2d 416 (1974). For example, we have repeatedly recognized that contemporary sources, such as the constitutional convention debates, the Address to the People, and dictionaries in circulation at the time of ratification may aid us in ascertaining how the constitutional text was commonly understood according to the people when they ratified it. See People v Tanner, 496 Mich

9 proportionality component making criminal sentences subject to appellate review. 25 In

People v Lorentzen and People v Bullock, this Court set forth a four-prong test to assess

199, 224-226; 853 NW2d 653 (2014); League of Women Voters, 508 Mich at 537 n 7 (looking to dictionaries “more contemporaneous with the ratification of the [Michigan] Constitution” in interpreting Const 1963, art 2, § 9).

Chief Justice MCCORMACK also attributes to me many things not expressed or implied in this footnote. For example, Chief Justice MCCORMACK asserts it is my position that “[a]lthough the ratifiers of Const 1963, art 1, § 16 adopted language nearly identical to the Eighth Amendment, they meant . . . something far less.” Ante at 3-4 (MCCORMACK, C.J., concurring). It is plainly obvious to any reasonable person that I make no such assertion in this footnote. I simply question whether this Court was correct when it concluded without significant analysis that Article 1, § 16 provides greater protection than that provided under the Eighth Amendment. This is not a novel concept. Multiple commentators have observed that the phrases “cruel and unusual” and “cruel or unusual” were used interchangeably in early American history, with both formulations capturing the same meaning. See, e.g., Stacy, Cleaning Up the Eighth Amendment Mess, 14 Wm & Mary Bill Rts J 475, 503-504 (2005); Bessler, The Anomaly of Executions: The Cruel and Unusual Punishments Clause in the 21st Century, 2 Brit J Am Legal Stud 297, 313 (2013); Casale & Katz, Would Executing Death-Sentenced Prisoners After the Repeal of the Death Penalty Be Unusually Cruel Under the Eighth Amendment?, 86 Conn B J 329, 336 (2012). And, as Justice RILEY noted in her partial dissenting opinion in Bullock, there is no evidence that “the replacement of the conjunctive ‘and’ by the disjunctive ‘or’ supports the argument that the drafters of the state constitution intended for this Court to interpret the phrase differently from the meaning that the United States Supreme Court has given the Eighth Amendment.” Bullock, 440 Mich at 58-61 (RILEY, J., concurring in part and dissenting in part).

Chief Justice MCCORMACK makes other claims that grossly mischaracterize my position. Rather than rebut each of her assertions, I leave it to the reader to determine whether this footnote merits the uncharacteristic ad hominem attack expressed by the Chief Justice. 25 See Graham, 560 US at 59 (“The concept of proportionality is central to the Eighth Amendment.”); Harmelin v Michigan, 501 US 957, 997, 1001; 111 S Ct 2680; 115 L Ed 2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment) (concluding that “the Cruel and Unusual Punishments Clause encompasses a narrow proportionality principle” that “forbids only extreme sentences that are ‘grossly disproportionate’ to the crime”), quoting Solem v Helm, 463 US 277, 288, 303; 103 S Ct 3001; 77 L Ed 2d 637 (1983). See also Bullock, 440 Mich at 27-35 (holding that

10 whether a sentence is constitutionally proportionate. 26 That test, which “bears a

considerable resemblance to the federal test for proportionality,” 27 requires an assessment

of (1) the severity of the sentence imposed compared to the gravity of the offense, (2) the

penalty imposed for the offense compared to penalties imposed on other offenders in the

same jurisdiction, (3) the penalty imposed for the offense in Michigan compared to the

Michigan’s ban on cruel or unusual punishment includes a prohibition on grossly disproportionate sentences), citing Lorentzen, 387 Mich at 171-181.

However, I question the above caselaw, given the many jurists who have opined that neither the Eighth Amendment nor Const 1963, art 1, § 16 contain a proportionality component. See Graham, 560 US at 99 (Thomas, J., dissenting, joined by Scalia, J.) (“[T]he Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous ‘methods of punishment,’ ”and “does not expressly refer to proportionality or invoke any synonym for that term[.]”), quoting Harmelin, 501 US at 965, 976 (opinion by Scalia, J., joined by Rehnquist, C.J.) (stating that the Cruel and Unusual Punishments “Clause disables the Legislature from authorizing particular forms or ‘modes’ of punishment—specifically, cruel methods of punishment that are not regularly or customarily employed” and does not contain a “proportionality guarantee”). See also People v Correa, 488 Mich 989, 990-992 (2010) (MARKMAN, J., concurring, joined by CORRIGAN and YOUNG, JJ.) (stating that Const 1963, art 1, § 16 does not contain a proportionality component; that the prohibition against cruel or unusual punishment only forbids certain modes or methods of punishment; and “that because ‘imprisonment . . . is, and always has been, in this country and in all civilized countries, one of the methods of punishment,’ it does not violate the Cruel or Unusual Punishment Clause”) (brackets and emphasis omitted), quoting People v Morris, 80 Mich 634, 639; 45 NW 591 (1890); Bullock, 440 Mich at 48 (RILEY, J., concurring in part and dissenting in part) (“[T]he ‘cruel or unusual punishment’ clause was intended to prohibit inhumane and barbarous treatment of the criminally convicted, and does not have a proportionality component.”). Although I am bound to follow the interpretation of the Eighth Amendment espoused by the Supreme Court of the United States and “to enforce the rights conferred by” that Court, People v Tanner, 496 Mich 199, 219 n 10; 853 NW2d 653 (2014), I would revisit this Court’s interpretation of Const 1963, art 1, § 16 as containing a proportionality component. See Manning, 506 Mich at 1034-1035 (MARKMAN, J., concurring, joined by ZAHRA, J.). 26 See Bullock, 440 Mich at 33-34; Lorentzen, 387 Mich at 176-181. 27 Carp, 496 Mich at 520.

11 penalty imposed for the same offense in other states, and (4) whether the penalty imposed

advances the penological goal of rehabilitation. 28

III. ANALYSIS

A. ILLUSORY PLEA BARGAIN

Defendant first argues that Miller and Montgomery have rendered his plea illusory

and invalid; that is, because mandatory life without parole for juvenile homicide offenders

is now an unconstitutional sentence, defendant contends that his plea and sentencing

agreement has no benefit and that he is therefore entitled to withdraw his plea. I agree with

the majority opinion that this argument lacks merit. Defendant benefited from the plea and

sentencing agreement at the time it was entered into by (1) avoiding a possible conviction

of first-degree murder and a mandatory life-without-parole sentence attached to that

conviction, and (2) becoming eligible for parole after serving 10 years’ imprisonment.

Even after Miller and Montgomery, defendant continues to benefit from the agreement by

avoiding a life-without-parole sentence and remaining eligible for parole. As the Supreme

Court of the United States stated in Brady v United States:

A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended . . . the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. A plea of

28 Bullock, 440 Mich at 33-34. See also Solem, 463 US at 292 (“[A] court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.”).

12 guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant’s lawyer correctly advised him with respect to the then existing law as to possible penalties but later pronouncements of the courts . . . hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.[29]

That defendant did not anticipate the Supreme Court of the United States would

render mandatory life without parole an unconstitutional sentence for juvenile homicide

offenders does not undermine the validity of his guilty plea, nor does it render his plea

illusory or without any benefit. To be sure, “[s]ome element of pressure exists in every

deal, as the tradeoff between present certainty and future uncertainty is emblematic of the

process of plea bargaining.” 30 After all, a plea agreement is a contract, and “[c]ontracts in

general are a bet on the future.” 31 But there is “no requirement in the Constitution that a

defendant must be permitted to disown his solemn admissions in open court that he

committed the act with which he is charged simply because it later develops . . . that the

maximum penalty then assumed applicable has been held inapplicable in subsequent

judicial decisions.” 32 Accordingly, defendant has failed to show that he is entitled to relief

29 Brady v United States, 397 US 742, 757; 90 S Ct 1463; 25 L Ed 2d 747 (1970) (citation omitted). 30 Dingle v Stevenson, 840 F3d 171, 175 (CA 4, 2016); Brady, 397 US at 756-757 (“Often the decision to plead guilty is heavily influenced by the defendant’s appraisal of the prosecution’s case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly sensible at the time.”). 31 Dingle, 840 F3d at 175. 32 Brady, 397 US at 757.

13 under MCR 6.508(D) because there was no “defect in the proceedings . . . render[ing] the

plea an involuntary one to a degree that it would be manifestly unjust to allow the

conviction to stand,” 33 and his plea was not otherwise illusory entitling him to withdraw

it. 34

33 MCR 6.508(D)(3)(b)(ii). 34 Moreover, by entering into a valid plea and sentencing agreement, defendant arguably waived his ability to challenge the validity of his sentence under Miller and Montgomery. See People v Likine, 492 Mich 367, 409; 823 NW2d 50 (2012) (“An unconditional guilty plea that is knowing and intelligent waives claims of error on appeal, even claims of constitutional dimension.”) (emphasis added). See also People v Jones, 2021 IL 126432, ¶ 21; ___ NE3d ___ (2021) (“Fundamentally, plea agreements are contracts, and principles of waiver apply equally to them.”). Some courts faced with requests to extend the reasoning of Miller and Montgomery beyond life-without-parole sentences have held that a defendant’s decision to enter into a plea and sentencing agreement waives any claim that a less-than-nonparolable-life sentence is unconstitutional under those decisions. See, e.g., id. at ¶ 26 (concluding that the juvenile homicide offender’s “knowing and voluntary guilty plea [to a 50-year sentence] waived any constitutional challenge based on subsequent changes in the applicable law”); Jones v Commonwealth, 293 Va 29, 45; 795 SE2d 705 (2017) (holding that defendant’s negotiated plea agreement “waived his right to challenge his sentence on direct appeal and, a fortiori, on collateral attack”; that his claim for relief under Miller and Montgomery was not “immunized from waiver principles that govern all other constitutional challenges”; and that “[n]othing in Montgomery undermines settled waiver principles”). See also Carp, 577 US at 1186 (Thomas, J., concurring, joined by Alito, J.) (“On remand [in light of Montgomery], courts should understand that the Court’s disposition of these petitions does not reflect any view regarding petitioner’s entitlement to relief. The Court’s disposition does not, for example, address . . . whether petitioners forfeited or waived any entitlement to relief (by, for example, entering into a plea agreement waiving any entitlement to relief), or whether petitioners’ sentences actually qualify as mandatory life without parole sentences.”) (emphasis added). But see Malvo v Mathena, 893 F3d 265, 275-277 (CA 4, 2018) (declining to hold that the defendant waived his ability to challenge, on the basis of Miller and Montgomery, the constitutionality of his life-without-parole sentence imposed pursuant to an otherwise valid plea agreement), abrogated on other grounds by Jones, 593 US at ___; 141 S Ct at 1318-1319. Because defendant knowingly and voluntarily entered into his plea and sentencing agreement—a bargain that he continues to benefit from even after Miller and Montgomery—it is questionable whether this Court should further entertain his constitutional challenges to his

14 B. CONSTITUTIONALITY OF DEFENDANT’S PAROLABLE LIFE SENTENCES

In the alternative, defendant argues that his parolable life sentences amount to cruel

and/or unusual punishment under the United States and Michigan Constitutions. I disagree.

There is no question that defendant’s parolable life sentences are constitutionally

proportionate under the Eighth Amendment. The majority opinion correctly notes that

Montgomery explicitly approved of parolable life sentences as a means for states to remedy

Miller violations without having to “relitigate sentences.” 35 More compelling, however, is

the Supreme Court’s emphasis on the type of sentences to which Miller actually applies.

Again, “the Miller Court mandated only that a sentencer follow a certain process—

considering an offender’s youth and attendant characteristics—before imposing a life-

without-parole sentence.” 36 Given that defendant undisputedly did not receive a life-

without-parole sentence, his Eighth Amendment challenge lacks merit.

Defendant’s attempt to bring in the Michigan Constitution to do what the Eighth

Amendment cannot must also fail. Applying the four-factor test from Lorentzen and

Bullock, 37 parolable life sentences for juvenile homicide offenders are not constitutionally

disproportionate under Const 1963, art 1, § 16.

parolable life sentences. Yet the majority opinion grants defendant relief without even considering this issue. 35 Montgomery, 577 US at 212. 36 Jones, 593 US at ___; 141 S Ct at 1316 (quotation marks and citation omitted; emphasis added). 37 Supra at 10-12.

15 With regard to the first factor, this Court has explained that first-degree murder—

which includes the “the premeditated taking of an innocent human life”—is the most

serious offense under Michigan law and that the Legislature’s imposition of life without

parole for that offense, even for juveniles, is a proportionate punishment. 38 Given that

second-degree murder, also known as malice murder, 39 would be the second most serious

offense that a person can commit under Michigan law, it is only natural that the second

most serious punishment, i.e., parolable life, accompany a conviction of that offense.

Logically then, the severity of a parolable life sentence is proportionate to the gravity of a

second-degree murder conviction. 40

With regard to the second factor, parolable life is not an uncommon sentence for

serious crimes committed in Michigan—even for those crimes that do not involve the

taking of an innocent person’s life. Some common, nonhomicide felonies subject to

parolable life include assault with intent to murder, armed robbery, and first-degree

38 Carp, 496 Mich at 514-515. 39 “Malice” is an element of second-degree murder, People v Smith, 478 Mich 64, 70; 731 NW2d 411 (2007), and is defined as “the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and wilful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm,” People v Goecke, 457 Mich 442, 464; 579 NW2d 868 (1998). 40 Defendant contends, and the majority opinion suggests, that parolable life for juveniles is the most serious punishment because sentencers are required to conduct a Miller hearing before imposing life without parole. That an extra procedural step is necessary before imposing life without parole on a juvenile homicide offender does not alter the fact that a life-without-parole sentence is still a valid sentence and, therefore, remains “the law’s harshest term of imprisonment” for juvenile offenders. Miller, 567 US at 474.

16 criminal sexual conduct. 41 That Michigan penalizes nonhomicide offenses with parolable

life demonstrates that it is not a constitutionally disproportionate sentence for homicide

offenses, some of which are committed by offenders who intended to kill their victims.

As to the third factor, parolable life is a common sentence for juvenile offenders in

other states. 42 The majority opinion’s reliance on jurisdictions that extend Miller’s

rationale to “de facto” life sentences is inapposite. A “de facto” life sentence, also known

as a “virtual” life sentence, is a sentence that “foreclose[s] the defendant’s release from

prison for all or virtually all of his expected remaining life span” 43 and often involves

lengthy term-of-years sentences under which the defendant is not eligible for parole until

he or she is geriatric. Such sentences are necessarily distinct from a parolable life sentence

in which the defendant becomes parole eligible much earlier in life. 44 The de facto life-

41 MCL 750.83; MCL 750.529(2); MCL 750.520b(2)(a). Other offenses subject to parolable life sentences include: first-degree arson, MCL 750.72(3); bank robbery, MCL 750.531; carjacking, MCL 750.529a(1); first-degree child abuse, MCL 750.136b(2); and kidnapping, MCL 750.349(3). 42 See The Sentencing Project, Youth Sentenced to Life Imprisonment (October 2019), p 1 (“[A]ll states allow juveniles to be sentenced to life imprisonment, and all but two states have persons serving a life or ‘virtual life’ sentence for a crime committed as a juvenile.”), available at (accessed May 19, 2022) [https://perma.cc/NC9E-XX4N]. 43 Williams v United States, 205 A3d 837, 844 (DC, 2019). See also State v Ramos, 187 Wash 2d 420, 434; 387 P3d 650 (2017) (defining a “de facto life sentence” as one “result[ing] in a total prison term exceeding the average human life-span”). 44 See Restore Justice, Know More: De Facto Life Sentences (accessed May 19, 2022) [https://perma.cc/SJ38-6KU5] (“De facto life sentences (also known as “virtual” life sentences) refer to non-life sentences that are so long the sentenced person will likely die or live out a significant majority of their lives before they are released.”) (emphasis added).

17 sentencing cases are a far cry from the circumstances here, in which defendant’s parolable

life sentence rendered him eligible for parole after serving just 10 years in prison. And,

even assuming defendant’s parolable life sentences can be properly labeled “de facto” life

sentences, a number of courts have rejected the notion that Miller applies to de facto life

sentences for juvenile homicide offenders. 45 In short, Michigan is hardly an outlier in

imposing parolable life sentences for juvenile homicide offenders.

Finally, with respect to the fourth factor, defendant’s sentences made him eligible

for parole after serving 10 years’ imprisonment and allow him to be reconsidered for parole

every five years. 46 His sentences therefore serve the penological goal of rehabilitation.

They also serve “other critical penological goals, such as securing a just and proper

punishment as determined by a self-governing people and their representatives; the general

deterrence of other potential criminal offenders; and the individual deterrence, and

incapacitation, of the individual offender himself.” 47

Overall, none of the four Lorentzen/Bullock factors supports the conclusion that

parolable life is a constitutionally disproportionate sentence when imposed on a juvenile

homicide offender. Accordingly, defendant has not shown that his sentences are

unconstitutional under either the Eighth Amendment or Const 1963, art 1, § 16 and has not

carried his burden of proving that his sentences are invalid. Therefore, defendant has not

45 See State v Slocumb, 426 SC 297, 313, 315 n 17, 315-323; 827 SE2d 148 (2019) (collecting cases illustrating an approximately even split of authority as to whether the Eighth Amendment, as interpreted by Graham and Miller, prohibits de facto life sentences for juvenile offenders convicted of nonhomicide and homicide offenses alike). 46 MCL 791.234(7)(a) and (8)(b). 47 Manning, 506 Mich at 1036 (MARKMAN, J., concurring).

18 established actual prejudice under MCR 6.508(D) and is not entitled to relief from

judgment.

IV. FLAWS IN THE MAJORITY OPINION’S LEGAL ANALYSIS

The majority opinion supports its application of the four Lorentzen/Bullock factors

to defendant’s parolable life sentences with several contentions with which I do not agree.

First, the majority opinion asserts that juvenile homicide offenders sentenced to life

with the possibility of parole “are at risk to serve precisely the same sentence” as those

offenders sentenced to life without the possibility of parole, and that the former group of

offenders “may receive the same sentence with less process” than the latter group. 48 It is

wholly unreasonable to suggest that a nonparolable life sentence is the same as a parolable

life sentence. Such an assertion flies in the face of the Montgomery Court’s guidance that

states may remedy a Miller violation by permitting juvenile homicide offenders to be

considered for parole and renders the distinction the Supreme Court made between

parolable and nonparolable life sentences utterly meaningless. Further, the only “process”

required by Miller is that sentencing courts be given the discretion to consider an offender’s

youth and to impose a sentence less than life without parole. 49 Here, defendant bargained

for a parolable life sentence, and the sentencing court had the discretion to reject that

sentence if it believed it was not tailored to defendant and his offenses. 50 Therefore, even

48 Ante at 9. 49 Jones, 593 US at ___; 141 S Ct at 1318 (explaining that Miller required “a discretionary sentencing procedure . . . where the sentencer can consider the defendant’s youth and has discretion to impose a lesser sentence than life without parole”). 50 See People v Killebrew, 416 Mich 189, 206-207; 330 NW2d 834 (1982) (“If the sentence bargain includes a sentence agreement, whereby the defendant agrees with the prosecuting

19 though defendant is not entitled to relief under Miller and Montgomery, he received all the

process that those decisions require.

Next, the majority opinion asserts that “a parolable life sentence for second-degree

murder is often more severe than the minimum sentences now given to most juveniles who

commit first-degree murder: 25 to 40 years,” and purports to explain why the Legislature’s

chosen Miller remedy, MCL 769.25 and MCL 769.25a, renders defendant’s parolable life

sentences constitutionally disproportionate. 51 The inference from the majority opinion’s

juxtaposition of parolable life sentences and term-of-years sentences under MCL 769.25

and MCL 769.25a is that, had the Legislature simply chosen to change all nonparolable life

sentences for juvenile homicide offenders to parolable life sentences, such a scheme would

be constitutionally permissible. But, because the Legislature decided to retain life without

parole as a permissible sentence for some Michigan juvenile homicide offenders and permit

attorney to plead guilty in exchange for a specific sentence disposition, the court must accept or reject the agreement or defer action until the judge has had the opportunity to consider the presentence report. . . . If the judge feels that the agreed-upon disposition will serve the interests of justice, he may accept the agreement. . . . However, if the judge, in the exercise of his discretion, finds that the bargain is not tailored to reflect the particular circumstances of the case or the particular offender, he shall reject the plea at that time.”). See also Jones, 2021 IL 126432, ¶ 27-28 (holding that the sentencing court’s authority to accept or reject the defendant’s plea and sentencing agreement “necessarily constituted an exercise of its discretion,” thereby satisfying the constitutional requirements of Miller). 51 Ante at 10. The majority also asserts a general rule that “the Parole Board’s authority extends only to the[] sixtieth year of incarceration” for juvenile homicide offenders sentenced and resentenced under MCL 769.25 and MCL 769.25a. Ante at 11. This is not necessarily accurate. Juvenile homicide offenders ordered to serve term-of-years sentences post-Miller receive a maximum sentence that “shall be not less than 60 years,” MCL 769.25(9), while offenders benefiting from Montgomery receive a maximum sentence that “shall be 60 years,” MCL 769.25a(4)(c). Thus, a defendant sentenced under MCL 769.25(9) may be subject to a lengthier maximum sentence than a defendant resentenced under MCL 769.25a(4)(c).

20 term-of-years sentences for others, the majority opinion concludes that parolable life

sentences are unconstitutional for all juvenile homicide offenders. Put another way, the

majority opinion concludes that parolable life for juvenile homicide offenders is

unconstitutional because the Legislature excludes parolable lifers like defendant from its

chosen Miller remedy—even though those offenders do not fall within the purview of

Miller. This is truly a remarkable conclusion, as the majority opinion uses the Legislature’s

chosen Miller remedy as a justification for finding parolable life sentences constitutionally

disproportionate. This is nothing short of second-guessing the Legislature’s policy

decisions, which we may not do. 52

In any event, the facts of defendant’s case demonstrate why his parolable life

sentences are not more severe than the term-of-years sentences imposed under MCL 769.25

and MCL 769.25a. Defendant’s agreed-upon sentences of parolable life allowed him to

become eligible for parole after serving just 10 years in prison, and he remains parole

eligible to this day. On the other hand, if defendant were entitled to the same relief as those

offenders resentenced under MCL 769.25a, the sentencing court could impose the

maximum term-of-years sentence of 40 to 60 years, meaning defendant would no longer

be eligible for parole. In fact, the roughly 29 years of imprisonment that defendant has

served up to this point is at the lower end of the 25- to 40-year allowable minimum

sentence. And, given that defendant committed multiple murders one month shy of turning

18 years old, it is very possible, if not likely, that he would receive the maximum 40-year

52 Robertson v DaimlerChrysler Corp, 465 Mich 732, 759; 641 NW2d 567 (2002) (“[O]ur judicial role precludes imposing different policy choices than those selected by the Legislature[.]”) (quotation marks and citation omitted).

21 minimum sentence were he eligible for resentencing under that scheme. In short, it is far

from clear that defendant’s parolable life sentences are more severe—let alone

constitutionally disproportionate—than the term-of-years sentences imposed under MCL

769.25 and MCL 769.25a, particularly since defendant himself bargained for his parolable

life sentences in the first place. 53

Finally, the majority opinion contends that parolable life for juvenile homicide

offenders does not advance the penological goal of rehabilitation because parolable lifers

have less access to rehabilitative programming than offenders serving a term-of-years

sentence and because the decision to grant parole is subject to the varying policies of the

Parole Board. That is, the majority opinion faults the Department of Corrections and the

Parole Board for making it difficult for parolable lifers like defendant to obtain release. A

motion for relief from judgment challenging the constitutionality of an otherwise valid

sentence is hardly the appropriate vehicle to launch an attack on the policies and procedures

of the executive branch. 54 But in any event, statistics provided by the prosecution and the

53 Defendant speculates that he would have benefited from going to trial as charged, losing, and being sentenced to mandatory life without parole so that he could receive relief under Miller, Montgomery, and MCL 769.25a. Not only does defendant’s hindsight ignore the teachings of Brady, see supra at 12-13, he also fails to appreciate that life without parole is still a valid sentence for juvenile homicide offenders under Michigan law. See Carp, 496 Mich at 528 (holding that neither the Eighth Amendment nor Const 1963, art 1, § 16 categorically barred the imposition of life without parole on juvenile homicide offenders). Thus, while it is possible that defendant could have received a term-of-years sentence had he been convicted of first-degree murder and obtained relief under Miller and Montgomery, it is also possible that he could have received the greater—and still constitutionally permissible—sentence of life without parole. 54 See People v Johnson, unpublished per curiam opinion of the Court of Appeals, issued June 18, 2019 (Docket No. 344322), p 9 (“The essence of defendant’s sentence challenge . . . is that the policies and procedures of the parole board are unconstitutional based on an application of Miller and Graham . . . because they deprive defendant of any

22 Attorney General demonstrate that parolable lifers have been paroled at a reasonable rate

in the decade since Miller and Montgomery were decided; in fact, the rate for juvenile

parolable lifers alone from 2016 to 2021 (20.6%) is even higher than the average rate of

parole for the general prison population during that same time period (16.67%). 55 Further,

the Michigan Department of Corrections recently amended its policy directives to now

require the Parole Board to consider the distinctive attributes of youth recognized in

Miller. 56 Although the Parole Board, after considering those mitigating factors, may

nonetheless decide not to grant a juvenile parolable lifer an interview, the policy directives

require the Board to give the prisoner “a Parole Board Notice of Decision . . . that shall set

forth the factors considered for that decision and what corrective action the prisoner may

take to improve the probability of being granted a parole in the future.” 57 Parolable lifers

therefore have the tools necessary to maximize their prospects for release.

Of course, as noted in the majority opinion, there is no “guarantee” that defendant

will be released. 58 Michigan law simply does not require that someone sentenced to a

real possibility of parole . . . . However, invalidating defendant’s valid sentence and resentencing him to a term[]of years is not the answer. The appropriate vehicle in which to seek redress of the alleged wrong done by the parole board is a claim for relief under 42 USC 1983 filed against the parole board.”), citing Wershe v Combs, 763 F3d 500 (CA 6, 2014). 55 These statistics rebut defendant’s argument that the Parole Board currently employs a “life means life” policy. 56 Michigan Department of Corrections, Parole Process, PD 06.05.104 (April 1, 2022), p 3, ¶ N, available at . 57 Id., ¶ O. 58 Ante at 11.

23 parolable life sentence actually receive parole. Whether parole is awarded is left to the

sound discretion of the Parole Board. Miller demands nothing more. Aside from applying

only to life-without-parole sentences, Miller requires only a “meaningful opportunity to

obtain release based on demonstrated maturity and rehabilitation.” 59 Nowhere did the

Supreme Court in Miller or Montgomery state that juvenile homicide offenders are

guaranteed release. Defendant had a genuine opportunity for parole when he was

sentenced, and he still has that opportunity today. That he has not yet been granted parole

does not mean he is deprived of a meaningful opportunity for release. Unlike the majority

opinion, I would not entertain defendant’s request to redefine what constitutes “a

meaningful opportunity to obtain release.” 60 Montgomery already provided an answer to

that question—parolable life, which is precisely the sentence that defendant bargained for

in exchange for pleading guilty to committing multiple murders.

V. SUMMARY AND RAMIFICATIONS OF THE MAJORITY’S CHANGES TO THIS STATE’S SENTENCING JURISPRUDENCE

Today, in this case and in four other juvenile sentencing cases, a majority of this

Court makes law and adopts rules that are only tenuously related to the caselaw being cited

in support of this action. These decisions are a radical departure from our criminal-

sentencing jurisprudence. At the heart of all of these decisions is Miller’s holding that

“mandatory life without parole for those under the age of 18 at the time of their crimes

59 Miller, 567 US at 479 (quotation marks and citation omitted; emphasis added); Montgomery, 577 US at 212 (“The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.”) (emphasis added). 60 Miller, 567 US at 479 (quotation marks and citation omitted).

24 violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” 61 A

majority of this Court repeatedly uses the rationale of Miller to decide issues far beyond

those related to mandatory life without parole for juvenile homicide offenders. It is

important to briefly lay out the breadth of the majority’s holdings in all of these cases and

the flaws in its analyses.

Less than two years ago, this Court declined to extend Miller’s reasoning to 18-

year-old homicide offenders sentenced to mandatory life without parole. 62 The law has not

materially changed in the intervening two years, but this Court’s composition has. In

People v Parks, a bare majority of this newly comprised Court does an about-face and now

uses the Michigan Constitution to apply Miller to such defendants who challenge their

mandatory life-without-parole sentences on direct appeal. 63 The result is that mandatory

life without parole is now unconstitutional for 18-year-old homicide offenders in the state

of Michigan. Rather than being based in a sound interpretation of our Constitution, much

of the majority’s rationale is based on policy considerations that are properly within the

purview of the Legislature, not this Court. 64 It is likely only a matter of time before the

majority again flexes its judicial policymaking power to extend Miller further, 65 perhaps

doing away with mandatory life without parole altogether.

61 Id. at 465 (quotation marks omitted). 62 See Manning, 506 Mich 1033. 63 People v Parks, ___ Mich ___; ___ NW2d ___ (2022) (Docket No. 162086). 64 See id. at ___; slip op at 14-21 (CLEMENT, J., dissenting, joined by ZAHRA and VIVIANO, JJ.). 65 See id. at ___; slip op at 19-20 (CLEMENT, J., dissenting).

25 In People v Poole, a bare majority of this Court has set the stage for applying Parks

retroactively, such that defendants who were 18 years old when they committed murder

and were later sentenced to mandatory life without parole may challenge their sentences

through motions for relief from judgment. 66 If the Court of Appeals accepts the majority’s

invitation to extend Parks in this way, trial courts will be faced with a slew of

resentencings. This will exhaust precious judicial resources in an untold number of cases

and will not only open up old wounds for the families of victims, but will also subject them

to a whole new trauma—the prospect that their loved-ones’ killers will be released from

incarceration.

In the present case, the majority, again reading into our state Constitution, makes

the astounding proclamation that our trial courts no longer have any discretion to sentence

a juvenile convicted of second-degree murder to life with the possibility of parole. By

striking down parolable life as a constitutional sentence for juvenile homicide offenders,

the majority substitutes what the law actually requires with what the majority believes it

should require, impermissibly usurping the Legislature’s role in making the policy

decisions of this state. And, given the majority’s expansion of Miller to 18-year-olds in

Parks, it may only be a matter of time before the majority further expands the class of

defendants who may not be sentenced to parolable life.

In People v Taylor, a bare majority of this Court conjures a presumption against life

without parole for juveniles convicted of first-degree murder and imposes a burden on the

66 People v Poole, ___ Mich ___ (2022) (Docket No. 161529).

26 prosecution to rebut this presumption by clear and convincing evidence. 67 This brazen

rewrite of the statute, enacted by the Legislature post-Miller to govern the procedures for

sentencing juvenile homicide offenders, will drastically limit the discretion sentencing

courts have traditionally held to impose a sentence on a defendant convicted of committing

one of our state’s most serious crimes. 68

Finally, in People v Boykin, the majority requires trial courts to consider the

mitigating qualities of youth when sentencing a defendant to a term of years under MCL

769.25 or MCL 769.25a, despite no constitutional, statutory, or precedential basis to do

so. 69 By creating this new rule, the majority invades the role of the Legislature, ignoring

the policy choices it made in enacting MCL 769.25 and MCL 769.25a. 70

Each of these cases, standing alone, represents a significant departure from our

jurisprudence in this area of the law. But taken as a whole, a bare majority of this Court

(in all of the cases but Boykin) has dramatically rewritten the sentencing laws applicable to

young people who commit society’s most heinous crimes. Defining crime and fixing

punishment is emphatically a legislative task, 71 in that it presents profound questions of

policy and moral judgment best left for the Legislature to establish, not for a slim majority

67 People v Taylor, ___ Mich ___; ___ NW2d ___ (2022) (Docket No. 154994). 68 See id. at ___; slip op at 1 (VIVIANO, J., dissenting, joined by ZAHRA and CLEMENT, JJ.). 69 People v Boykin, ___ Mich ___; ___ NW2d ___ (2022) (Docket Nos. 157738 and 158695). 70 See id. at ___; slip op at 2 (ZAHRA, J., dissenting, joined by VIVIANO, J.). 71 See United States v Wiltberger, 18 US (5 Wheat) 76, 95; 5 L Ed 37 (1820) (“[T]he power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment.”).

27 of this Court to prescribe by judicial fiat. 72 As Michigan’s court of last resort, it is critically

important that we honor and respect the separation of constitutional powers and limit the

exercise of our judicial power to simply state what the law requires and not discern what

the law should be in light of competing policy considerations. That is a duty

constitutionally reserved for the Legislature: the state’s elected government body

representing the will of the people. This Court undoubtedly has the final word on the

constitutionality of a particular sentence, but by failing to check its judicial power and

simply state what the law is, the majority denies the Legislature and the people who elect

our legislative representatives their rightful constitutional authority to determine the

punishment for a particular crime.

VI. CONCLUSION

Although defendant is ineligible for the constitutional relief articulated in Miller and

Montgomery and falls outside the purview of the Michigan Legislature’s chosen Miller

remedy, the Court has inappropriately used its judicial power to fashion a remedy for

defendant that, before today, never existed in Michigan law. Put simply, the majority

opinion’s erroneous application of the Lorentzen/Bullock factors leads it to the flawed

conclusion that parolable life sentences are categorically disproportionate for juvenile

72 See Gregg v Georgia, 428 US 153, 175; 96 S Ct 2909; 49 L Ed 2d 859 (1976) (opinion by Stewart, J.) (“In a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.”) (brackets, quotation marks, and citation omitted); Harmelin, 501 US at 962 (opinion by Scalia, J.) (“[T]he length of the sentence actually imposed is purely a matter of legislative prerogative.”) (quotation marks and citation omitted); id. at 998 (Kennedy, J., concurring in part and concurring in the judgment) (“[T]he fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is properly within the province of legislatures, not courts.”) (quotation marks and citation omitted).

28 homicide offenders under Const 1963, art 1, § 16. The law does not require this result, and

the majority’s mistaken belief that it does invades the province of the Legislature by

displacing its quintessential role of fixing punishment. 73 Because the majority opinion

affords defendant relief from an otherwise constitutionally proportionate sentence, I

dissent.

Brian K. Zahra David F. Viviano (except as to footnote 9) Elizabeth T. Clement (except as to footnotes 24 and 25)

73 See State v Soto-Fong, 250 Ariz 1, 10; 474 P3d 34 (2020) (“[C]ourts that have held de facto juvenile life sentences unconstitutional provide a cautionary tale, as they have invariably usurped the legislative prerogative to devise a novel sentencing scheme . . . .”).

29 STATE OF MICHIGAN

VIVIANO, J. (dissenting). To reach the merits of the constitutional issue raised by defendant concerning cruel

or unusual punishment, the majority first holds that defendant has satisfied the procedural

requirements to file a successive motion for relief from judgment. I disagree with that

conclusion. I do not believe defendant has overcome the procedural bar to filing a

successive motion for relief from judgment and write to explain why I believe it is

unnecessary to even reach the merits of defendant’s motion.

Defendant, who pleaded guilty to two counts of second-degree murder, had

previously filed motions for relief from judgment prior to filing the motion at issue in this

case. Therefore, he must satisfy the procedural requirements of MCR 6.502(G), which

bars successive motions for relief from judgment unless certain exceptions apply. At the

time defendant filed his motion for relief from judgment, MCR 6.502(G) stated:

(1) Except as provided in subrule (G)(2), regardless of whether a defendant has previously filed a motion for relief from judgment, after August 1, 1995, one and only one motion for relief from judgment may be filed with regard to a conviction. The court shall return without filing any successive motions for relief from judgment. A defendant may not appeal the denial or rejection of a successive motion.

(2) A defendant may file a second or subsequent motion based on a retroactive change in law that occurred after the first motion for relief from judgment or a claim of new evidence that was not discovered before the first such motion. The clerk shall refer a successive motion that asserts that one of these exceptions is applicable to the judge to whom the case is assigned for a determination whether the motion is within one of the exceptions.[1]

In his current motion for relief from judgment, defendant argued, inter alia, that his

sentences violate the Eighth Amendment pursuant to Miller v Alabama, 567 US 460, 465;

132 S Ct 2455; 183 L Ed 2d 407 (2012) (holding that “mandatory life without parole for

those under the age of 18 at the time of their crimes violates the Eighth Amendment’s

prohibition on ‘cruel and unusual punishments’ ”), and Montgomery v Louisiana, 577 US

190; 136 S Ct 718; 193 L Ed 2d 599 (2016) (applying Miller retroactively). He claimed

these decisions were retroactive changes in law that allowed him to file a successive motion

for relief from judgment. The trial court denied his motion, acknowledging that

Montgomery held that Miller applies retroactively but explaining that Miller is not

applicable to cases involving juveniles sentenced to life with the possibility of parole.

Because Miller and Montgomery were inapplicable to defendant, the trial court declined to

review his claims under the principles announced in those cases. Without expressly stating

that the trial court erred in its analysis of MCR 6.502(G)(2), the Court of Appeals indicated

that defendant’s reliance on Miller and Montgomery “tenuously” satisfied the procedural

requirement to allow him to file a successive motion for relief from judgment. People v

1 MCR 6.502, as amended June 2, 1995, 449 Mich xciii (1995). This provision of the court rule has since been amended twice. Neither of these amendments are relevant for purposes of this appeal.

2 Stovall, 334 Mich App 553, 561; 965 NW2d 264 (2020). It proceeded to address the merits

of his motion, concluding that the trial court did not abuse its discretion in denying

defendant’s motion.

The majority in this Court holds that defendant’s motion was “based on a retroactive

change in law,” such that it satisfied MCR 6.502(G)’s procedural bar. The majority adopts

the reasoning of Justice CLEMENT’s concurring statement in People v Manning, 506 Mich

1033, 1038 (2020) (CLEMENT, J., concurring), holding that the change in law need only

serve as a “foundation” or “base” for the defendant’s claim. Justice CLEMENT’s

concurrence noted that Merriam-Webster’s Collegiate Dictionary (11th ed) defines the

verb “base” as: “1: to make, form, or serve as a base for 2: to find a base or basis for—

usu[ally] used with on or upon” and that Black’s Law Dictionary (11th ed) similarly defines

“base,” in relevant part, as “[t]o make, form, or serve as a foundation for . . . .” Manning,

506 Mich at 1038 (CLEMENT, J., concurring).

I do not disagree with the definition of “base” that the majority applies today and

that Justice CLEMENT applied in Manning. Rather, I disagree with how the majority applies

that definition to defendant’s motion for relief from judgment. Reliance on a clearly

inapplicable holding—such as the holdings of Miller and Montgomery to a defendant

sentenced to life with the possibility of parole—is not a true basis or a foundation; rather,

it is an illusory anchor point. 2 The majority’s interpretation of MCR 6.502(G)(2) elevates

form over substance, allowing a defendant to satisfy the procedural requirements simply

2 The majority itself acknowledges that defendant’s sentence does not run afoul of Miller and Montgomery, going so far as to say that Montgomery explicitly tells us that defendant’s challenge under the Eighth Amendment must fail. Ante at 7.

3 by citing a case with retroactive effect in a motion for relief from judgment, regardless of

whether the caselaw relied on actually entitles the defendant to any relief.

Federal caselaw regarding the proper interpretation of the federal statutes governing

habeas corpus review provides some helpful insight. Under 28 USC 2244(b)(2), a claim

presented in a second or successive habeas corpus application must be dismissed unless

the applicant meets certain criteria, one of which is that “the applicant [must] show[] that

the claim relies on a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable[.]” 28 USC 2244(b)(2)(A).

If a three-judge panel of the appropriate court of appeals is satisfied that the prisoner’s

application has made a prima facie showing that one of the exceptions to the general rule

against second or successive habeas corpus applications applies, it may allow the prisoner

to file an application or motion in the district court. 28 USC 2244(b)(3)(B) and (C); 28

USC 2255(h). 3

There is currently a split among the United States Courts of Appeals with respect to

what “relies on” means for purposes of habeas corpus applications. See generally Means,

Federal Habeas Manual, § 11:36 (May 2022 update). The Third Circuit has taken the most

liberal approach, permitting a nonfrivolous extension of a rule to be certified, while leaving

the ultimate decision on the merits for the district court. See In re Hoffner, 870 F3d 301,

3 28 USC 2244 applies to state prisoners, while 28 USC 2255 provides a similar procedure for federal prisoners who seek to have their sentences vacated or set aside. Although 22 USC 2255(h) does not contain the “relies on” language found in 28 USC 2244(b)(2), it contains an express reference to 28 USC 2244, and federal appellate courts have generally found that the “relies on” language applies to motions brought under 28 USC 2255. See, e.g., In re Hoffner, 870 F3d 301, 307 & n 9 (CA 3, 2017); Donnell v United States, 826 F3d 1014, 1016 (CA 8, 2016).

4 308 (CA 3, 2017) (holding that “whether a claim ‘relies’ on a qualifying new rule must be

construed permissively and flexibly on a case-by-case basis”). However, even the Third

Circuit’s approach is not without limitations. The rule relied upon need not “conclusively

decide[]” the movant’s claim, but it must “substantiate[] the . . . claim.” Id. at 309

(quotation marks and citation omitted; first alteration in original). And while the movant

can argue for a nonfrivolous extension of the rule, the “requested extension . . . cannot be

so facially implausible that he is not really ‘relying’ on the new rule at all.” Id. at 311

(quotation marks and citation omitted). 4

Other circuits have taken a narrower approach. In particular, the United States Court

of Appeals for the Eighth Circuit has rejected the argument that a movant can seek an

extension of a new rule. In Donnell v United States, 826 F3d 1014, 1016 (CA 8, 2016), it

explained:

A claim “relies on” a new rule when it is ‘based on’ a new rule . . . . A claim is truly “based on” a new rule only when the new rule recognizes the right asserted. See Webster’s Third New International Dictionary 180 (defining “base” as “the fundamental part of something: ESSENCE, FOUNDATION”). Where a claim depends on recognition of a second new rule, the claim is best understood as relying on that second rule for a grant of relief.

I find the analysis in Donnell to be particularly persuasive, especially because the Eighth

Circuit understood “relies on” to mean the same thing as “based on,” that latter term being

at issue in MCR 6.502(G)(2). The relief defendant requested in his motion does not depend

on recognition of the rule announced in Miller and made retroactive in Montgomery.

4 The United States Court of Appeals for the Ninth Circuit, relying extensively on In re Hoffner, also found that requests for nonfrivolous extensions satisfy the “relies on” requirement. See Henry v Spearman, 899 F3d 703, 706 (CA 9, 2018).

5 Rather, it depends on a rule that even the majority agrees is not found in those cases. The

rule that the majority relies on to grant defendant relief was not in existence at the time

defendant filed his motion. This fact is obvious, as it is in this very case that the Court has

created a new rule that a parolable life sentence for a juvenile who commits second-degree

murder violates our state Constitution.

I fear that the majority’s interpretation of the court rule will incentivize criminal

defendants to file increasingly meritless successive motions for relief from judgment,

which will further burden our already backlogged trial courts. See People v Anderson, 508

Mich 971, 972 (2021) (VIVIANO, J., dissenting) (acknowledging the backlog of cases due

to the COVID-19 pandemic). Unlike even the most generous interpretations of the federal

habeas corpus statutes, the majority has imposed no discernable limitation on how

tangential a case may be to the relevant new rule or how great of an extension would be

necessary in order for a defendant to be entitled to relief. As a result, the trial courts will

struggle to apply the majority’s holding and, undoubtedly, much unwarranted

postjudgment litigation will ensue.

I would deny leave to appeal under MCR 6.502(G). But even if defendant could

overcome the procedural bar, I would conclude that his constitutional argument fails for

the reasons stated by Justice ZAHRA. I therefore join Justice ZAHRA’s dissent in every

respect other than footnote 9. 5 For these reasons, I dissent.

David F. Viviano

5 Because the rest of my colleagues have reached this question, it is appropriate for me to likewise indicate my view. See In re Certified Questions, 506 Mich 332, 414 & n 21; 958 NW2d 1 (2020) (VIVIANO, J., concurring in part and dissenting in part).

6 STATE OF MICHIGAN

CLEMENT, J. (dissenting). I join Justice ZAHRA’s dissent except for footnotes 24 and 25 and except insofar as

it conflicts with my opinion in People v Boykin, ___ Mich ___; ___ NW2d ___ (2022)

(Docket Nos. 157738 and 158695).

Elizabeth T. Clement