How young is too young for life in prison?

Ever look at your teenage children and wonder what’s wrong with them? I do. I look at my teenage son and wonder, “Good grief, was I EVER like that?” I probably was. But my adult self is a very different person with (mostly) better judgment and (definitely) a deeper sense of empathy for others and understanding of consequences of my actions.

Can any child or teenager really understand those consequences? The American Civil Liberties Union of Michigan says no. Yesterday, the ACLU of Michigan and Second Chances 4 Youth released a report documenting the systemic disadvantages facing young people in the adult criminal justice system.

When I was my son’s age, 10 years was a long time. Twenty years was forever. And I had no idea what forever really meant.

Most of us recognize that child and teenage brains just aren’t fully grown, so we as a society, as parents, and as a culture offer our kids greater protection from their own actions until they are old enough to live with the consequences.

Unless of course, that teenager commits a crime. Then all bets are off.

The ACLU reports that there have been 371 young offenders sentenced to life without the possibility of parole in Michigan (only one other state has more than 371). About one-third of those were present or committed a felony when the homicide was actually committed by someone else.

The ACLU notes:

  • Race affects the plea bargaining process for adolescents. Young people accused of homicide where the victim was white were 22 percent less likely to receive a plea offer than in cases where the victim was a person of color. There are clear geographic disparities as well; Oakland, Calhoun, Saginaw and Kent counties offer lessor sentences to young people far less often than the rest of the state.
  • Juveniles reject plea offers far more often than adults. They are less equipped to negotiate pleas because of their immaturity, and inexperience. (Remember when you were young and 10 years seemed like a long time, and 20 years seemed like forever, but you had no idea what “forever” really meant?) Many of them said that they didn’t understand the nature of the charges theywere facing or the meaning of parole.
  • Lawyers who have represented young people who were convicted and sentenced to life have a much higher rate of attorney discipline. Some 5 percent of all attorneys have been reprimanded, compared to 38 percent of those who represented young people who later were sentenced to life in prison.

Michigan requires that defendants as young as 14 be tried as adults if they are charged with certain crimes. The U.S. Supreme Court heard arguments in March in two cases that test the constitutionality of sentencing juvenile offenders to life-without-parole sentences.

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Michigan death penalty policy can be mitigating factor under FDPA

In sentencing a convicted rapist/kidnapper/murderer, a federal jury should have been allowed to consider Michigan’s ban on capital punishment as a mitigating factor, the 6th U.S. Circuit Court of Appeals ruled.

In People v. Gabrion, the jury sentenced the defendant to death for his crimes. During the sentencing phase, the district court didn’t allow Michigan’s ban on the death penalty to be mentioned or admitted for the jury to consider as a mitigating factor in determining whether to sentence Gabrion to death or life in prison. Gabrion was tried in federal court because he committed the crime in the Manistee National Forest, a national park.

No other case had been decided on the issue of whether the state’s policy can be a mitigating factor under the Federal Death Penalty Act. In a decision written by Judge Gilbert Merritt Jr., the 6th Circuit said it can be.

Failing to consider the specific language of the statute allowing “any mitigating factor,” the court reasoned without further discussion that the Michigan policy did not fit within any of eight mitigating factors listed in the Federal Death Penalty.  This ruling is inconsistent with the language of the Act requiring the factfinder to  consider “any mitigating factor” and “any information relevant to a mitigating factor.”  18 U.S.C. § 3592(a); id. § 3593(c).

The statute includes a list of mitigating factors, but introduces the list by saying “any mitigating factors, including …”.

The question is whether the fact of the location of the body so close to a line that forbids the death penalty allows counsel to try to convince one or more jurors that imposing the death penalty in these circumstances would treat life or death in a random and arbitrary way based on chance.  The phrase “any mitigating factor” plainly includes information about Michigan’s policy against the death penalty and an argument based on the absence of proportionality in punishment when life or death is made to turn on chance and the lives of other equally guilty psychopaths are spared.  The case was not brought to serve a special national interest like treason or terrorism different from the normal state interest in punishing murder.  The jury should be given the opportunity to consider whether one or more of them would choose a life sentence rather than the death penalty when the same jury considering the same defendant’s proper punishment for the same crime but prosecuted in Michigan state court could not impose the death penalty.

The jury’s death sentence was vacated and the case was remanded back for retrial on sentencing.

Alice Batchelder dissented, arguing the majority’s decision goes too far in letting anything enter into the discussion as a mitigating factor.

The majority finds that the district court erred by “fail[ing] to consider the specific language of the statute allowing  ‘any mitigating factor,’” in the FDPA, §§ 3592(a) and 3593(c), and relies on United States v. Davis, 132 F. Supp. 2d 455 (E.D. La. 2001), for the proposition that the phrase “any mitigating factor” contains “no qualification or limitation,” and therefore the defendant is entitled to present or argue “any mitigating factor . . . period.”  Id. at 464. … The majority then defines mitigating factors as anything that “could conceivably make a juror question” the appropriateness of imposing the death penalty in a given case.  By this reading of “any” and “mitigating”, the majority concludes that “[t]he phrase ‘any mitigating factor’ plainly includes information about Michigan’s
policy against the death penalty.” …

The inflexibility of such an absolute proposition appears to render it limitless. After today, Michigan’s law against the death penalty is a mitigating factor.  But suppose Michigan had, not a law, but merely pending legislation to abolish the death penalty — must a court admit that as a mitigating factor?  What about a pending Supreme Court case or a campaign promise?  The Pope condemns the death penalty — is that a mitigating factor to be argued to the sentencing jury?  Read generously, this broad view of admissibility entitles a capital defendant’s counsel to present evidence or argument no matter how tenuous, tangential, or even speculative.  The only limit is counsel’s own creativity — or lack of creativity.  And if counsel may present such argument, no matter how ineffective or unappealing to jurors, will there come a day when we hold counsel ineffective for failing to do so.

Are Michigan’s improved parole numbers an illusion?

Per The Detroit News, some critics allege Michigan’s improved parole system may simply be the result of creative statistics.

Michigan’s Prisoner Re-entry Initiative has won national acclaim for helping ex-convicts stay out of trouble, but critics say the state is undercounting lapsed parolees to make the program appear more successful than it is.

The criticism comes amid an audit of the 6-year-old Department of Corrections program that found other shortcomings, including overcharging vendors for services and allowing conflicts of interest between contractors and subcontractors.

Jim Chihak, a former parole and probation officer who was part of a panel that evaluated the program this spring, said the program’s intent — to keep prisoners from returning to prison — is admirable, but “the way it’s being handled is a disaster.”

“If you worked in a bank that was wasting money and not monitoring where it was going, why would you keep putting money into it?” said Chihak, a Marquette County commissioner.

According to the story, statistics show a marked improvement in parollee recidivism, but parole officers say many parollees are in fact being hidden from the statistics by being herded into alternative programs, house arrest and in county jails rather than being returned to prison.

Michigan has created a “straddle cell” category in which repeat offenders might get GPS tethers and treatment or counseling to help them get their lives on track rather than be put back behind bars. About 43 percent of offenders in Michigan fall into that classification.

Critics are so flustered they’re hurling such well known legal terminology as “malarkey.”

They were not considered repeat offenders, even though they had committed a crime,” Hankey said.Corrections Department spokesman Russell Marlan calls the idea that the state is misrepresenting the numbers “malarkey.” “People who violate the law go back to prison,” he said.

Marlan confirmed parolees who do not go back to prison are not counted as recidivists, but added “judges have discretion in Michigan and may consider alternative sentences (to prison).”

Keeping Up With The Candidates, July 16

As the primary is only three weeks away, the candidates are fighting for an advantage against the other men seeking their respective party’s nomination. Peter Luke of MLive suggests that the thing they are fighting more than their opponents is voter frustration and apathy.

We start off this week with the Democrats. Andy Dillon picked up the endorsement of former Detroit mayor and Dickinson Wright chairman emeritus Dennis Archer. [The Detroit News].

In the meanwhile, Virg Bernero, appearing at a visit to Siena Heights University in Adrian, said that he’s a bulletproof candidate: [The Daily Telegram/Adrian].

“The two main candidates are largely unknown, Speaker of the House Andy Dillon and myself,” Bernero said, but he added that a new poll conducted for his campaign sampling 600 likely primary voters showed Dillon to be the more vulnerable candidate.
“The two Achilles’ heels that my opponent had — and I have no Achilles’ heels, really, we tried to test some — but he has two that are deadly,” Bernero said. “One is that he’s anti-choice (on abortion) and anti-stem cell research, and that is deadly in a Democratic primary, come to find out. And, two, his corporate raider, corporate boardroom experience of running people off and shipping jobs overseas. They’re almost equally negative and very toxic.”

I want to think that was a joke. Yeah, it had to be a joke, right?

About those Achilles’ heels, Laura Berman of The Detroit News agrees with Bernero that Dillon’s pro-life/anti-embryonic stem cell research stances will matter.

But when they will matter may be another issue. A poll released Tuesday has Dillon ahead of Bernero 35 percent to 15 percent, with 50 percent undecided. Of course, wait a day or two and those numbers will likely be closer. [Detroit Free Press].

The news was heavier on the GOP side this week. (That’s been the case more often lately. More candidates, closer race). The party is certainly confident that whomever wins its primary will be the next governor. Said State Republican Party chairman Ron Weiser:

“People are going to want a change. We saw that in 2008, and Obama took advantage of it,” Weiser told reporters in a conference call. “And certainly as Republicans we’re going to take advantage of the same thing.”

He added “I know there’s always the possibility that something strange can happen, but we certainly are overwhelming favorites now to take the governorship.”

The same poll mentioned earlier shows Pete Hoekstra, Rick Snyder and Mike Cox in a dead heat, all with 18 percent, while Mike Bouchard is a distant 9 percent and Dr. Tom George at one percent.

It should be said that polling numbers have been all over the place in this election, so, for both races, take them for what they are worth. It’s the score at the end of the third quarter. Might be the result, might not.

Bouchard’s people say the numbers are way off. His Minister of Information campaign manager Ted Prill said the campaigns internal polling shows Bouchard tied for the lead with 19 percent, with Cox and Snyder polling at 16 and 12 percent, respectively.

Bouchard has been more active in advocating the GOP dogma, coming out in support of both a Michigan equivalent to the controversial Arizona immigration law (again) and making Michigan a right-to-work state.

He will speak to a Tea Party forum next week about the Arizona immigration law. He wrote a newspaper op-ed and released a commercial about the right-to-work issue. Jeff Cranson of The Grand Rapids Press asks whether this is Bouchard’s Hail Mary pass.

Speaking of the Tea Party, the Livingston Daily says they have the GOP’s attention.

Michigan’s “tea party” groups could affect dozens of local races, as well as those for the state Legislature. Making an impact in Michigan’s gubernatorial race will be harder, but the enthusiasm of newly minted political activists could help pick a Republican nominee, and the field knows it.

Attorney General Mike Cox, U.S. Rep. Pete Hoekstra of Holland and Oakland County Sheriff Mike Bouchard all have courted the “tea party” vote. Although Ann Arbor businessman Rick Snyder is seen by some as the most moderate of the group, his business success and his status as the only nonpolitician helps him, Ballenger said.

Pete Hoekstra was in Holland with President Barack Obama and Gov. Jennifer Granholm for the groundbreaking of a new battery plant.  He used the opportunity to criticize Obama and the stimulus bill, which at least in part will fund the the new LG Chem plant.

“If you take a look around, you will see companies that were built by individuals and families,” Hoekstra said in a YouTube video he posted on his campaign website. “They have never received a government stimulus package.”

Of course, the companies he’s speaking of weren’t offered one and who knows what they would have done if the money was on the table. (I’d like to see the company that says “We’d like to build a new plant in your state/district/city, but please, do not offer us any tax breaks or other economic incentives! Give that money back to the people!”)

Of course, Hoekstra has been attacked in ads from unnamed entities for supporting the stimulus bill, which he did not vote for. When he was criticized in the Democratic debate for not supporting the bill, he responded via Twitter:

Democrats blasting me for voting against stimulus package last year. At least THEY got the facts right that I voted no!

Except for his appearance in the GOP debate earlier this week, Mike Cox stayed out of the news, but for his official duties, in which he again slammed the Obama Administration for filing suit to block the aforementioned Arizona immigration bill. His office will file an amicus brief in support of the bill.

At a campaign appearance in Owosso, Rick Snyder said simply fixing Michigan isn’t enough. To compete, Michigan needs to reinvent itself. He also talked about the troubling trend of college graduates leaving the state to find work.

Finally, yes, four of the five GOP candidates debated yet again this week, with Snyder opting to hold a town meeting in Grand Rapids instead. [WOOD-TV Video].

The candidates that were there didn’t inspire confidence, said the Detroit Free Press:

Tuesday night, in the last debate before the August primary, voters got a better look at the distinctions among the candidates than they had before. But it’s also clear that some of the candidates still cling to unrealistic schemes for navigating Michigan’s way to long-term solvency.

Only state Sen. Tom George, for example, seems to understand that the tax cuts proposed by Attorney General Mike Cox and Oakland County Sheriff Mike Bouchard will bankrupt the state. That won’t attract jobs any better than the current onerous business tax environment.

Cox also continues to indulge overly pollyannaish solutions to the gridlock in Lansing.

Cox — and nearly everyone else — fails to explain how [bipartisanship] could now be accomplished with term-limited, politically entrenched legislators who so far haven’t budged toward compromise.

In Supreme Court election news … there isn’t any. Today is the deadline for non-party affiliated (i.e. independent) candidates to submit their paperwork to be put on the ballot. As of 2pm, no one has, according to the Board of Elections. The remaining candidates will be nominated by parties at their political conventions in late August.

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Cox takes aim at carp yet again

Michigan Attorney General Mike Cox has filed a renewed motion with the U.S. Supreme Court for a  preliminary injunction to close Chicago-area locks because of new information that became available after the Court denied the original motion on Jan. 19. 

Cox pointed to eDNA tests showing evidence of Asian carp in Lake Michigan that was available three days before the Court made its decision but not provided by the U.S. Army Corps of Engineers until afterward.

“We think the Court should take another look at our request to hit the pause button on the locks until the entire Great Lakes region is comfortable that an effective  plan is in place to stop Asian carp,” Cox said in a statement.  “While we would like to see significant and immediate action as a result of next week’s meeting between the governors and  administration, that is an unknown at this time, so our battle to protect the Lakes will continue.”

Michigan’s request to reopen the “Chicago Diversion” case, supported by Pennsylvania, New York, Ohio, Wisconsin, Minnesota, and the Province of Ontario, remains before the Supreme Court and briefs are due by February 19.  That request seeks a long-term solution to the crisis that will protect the ecology and economy of the Great Lakes.

Cox also called on President Barack Obama to step in to at least temporarily close the locks.

Asian carp target of lawsuit

The Detroit Free Press reports that Attorney General Mike Cox has ratcheted up the war on the potential Asian carp invasion into the Great Lakes. 

You may remember, these are voracious, up to 100-pound carp that can be expected eat our domestic species out of house and home. They are a highly acrobat ic fish that can jump into boats, endangering boaters. They are a lose-lose for the entire Great Lakes ecosystem, and those who say Cox is overreacting, just think zebra mussels only 100 times worse.

SCOTUS finds police entering building despite defendant asking for a warrant to be constitutional

The US Supreme Court ordered that Brownstown police were right to enter a house without a warrant if they thought “that a person inside was in need of immediate aid,” even if the person told them to go get a search warrant.

In the 7-2 majority, the Court overturned the Michigan Court of Appeals without further briefing or argument beyond the petition for certiorari.

An in-depth analysis of the case will appear in the December 21 issue of Michigan Lawyers Weekly.