People of Michigan v. Dakotah Wolfgang Eliason ( 2014 )

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
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. Corbin R. Davis
PEOPLE v CARP
PEOPLE v DAVIS
PEOPLE v ELIASON
Docket Nos. 146478, 146819, and 147428. Argued March 6, 2014 (Calendar Nos. 4, 5,
and 6). Decided July 8, 2014.
Raymond Curtis Carp was charged in the St. Clair Circuit Court with first-degree murder,
MCL 750.316, for his participation in the bludgeoning and stabbing of a woman. Carp was 15
years old at the time of the murder and was tried as an adult. Following Carp’s conviction, the
court, James P. Adair, J., imposed the mandatory sentence of life imprisonment without the
possibility of parole. The Court of Appeals, SCHUETTE, P.J., and ZAHRA and OWENS, JJ.,
affirmed Carp’s conviction in an unpublished opinion per curiam, issued December 30, 2008
(Docket No. 275084), and the Supreme Court denied his application for leave to appeal, 483
Mich 1111 (2009). His conviction and sentence became final for purposes of direct appellate
review in June 2009. In September 2010, Carp sought to collaterally attack the constitutionality
of his sentence by filing a motion for relief from the judgment. The trial court denied the
motion, concluding that imposing a mandatory nonparolable life sentence on a juvenile
convicted of first-degree murder did not constitute cruel or unusual punishment. Carp then
sought leave to appeal, which the Court of Appeals denied in an unpublished order, entered June
8, 2012 (Docket No. 307758). Seventeen days later, on June 25, 2012, the United States
Supreme Court decided Miller v Alabama, 567 US ___; 132 S Ct 2455 (2012), which held that
the Eighth Amendment’s prohibition of cruel and unusual punishment prohibits a sentencing
scheme that mandates life in prison without parole for juvenile offenders. Carp moved for
reconsideration, which the Court of Appeals granted in an unpublished order, entered August 9,
2012 (Docket No. 307758). On reconsideration, the Court of Appeals, TALBOT, P.J., and
FITZGERALD and WHITBECK, JJ., determined that Miller had created a new rule that was
procedural in nature and not subject to retroactive application under the rules set forth in Teague
v Lane, 489 US 288 (1989), or the separate and independent Michigan test for retroactivity set
forth in People v Sexton, 458 Mich 43 (1998), and People v Maxson, 482 Mich 385 (2008). 298
Mich App 472 (2012). The Supreme Court granted Carp’s application for leave to appeal to
consider whether Miller should be applied retroactively under either federal or state law. 495
Mich 890 (2013).
Cortez Roland Davis was charged in the Recorder’s Court for the City of Detroit (now
part of the Wayne Circuit Court) with felony murder, MCL 750.316(1)(b). Davis was 16 when
he and another individual accosted two individuals to rob them. A witness testified that when
one of the victims tried to flee, Davis and the other individual fired shots, killing the victim.
Davis was convicted on May 10, 1994. At sentencing, the court, Vera Massey Jones, J., initially
ruled that Michigan’s sentencing scheme for first-degree murder could not constitutionally be
applied to juvenile homicide offenders because it was cruel and unusual to impose a
nonparolable life sentence on a juvenile who was capable of rehabilitation. In concluding that
Davis was capable of reforming, the court determined that his role in the commission of the
offense was that of an aider and abettor, not an actual shooter, but made no findings concerning
Davis’s intentions about the fleeing victim or whether he had reasonably foreseen when he
initially engaged in the armed robbery the possibility that a life might be taken. The court
sentenced Davis to a term of imprisonment of 10 to 40 years. In an unpublished order, entered
November 23, 1994 (Docket No. 176985), the Court of Appeals reversed and remanded for
resentencing. At resentencing, the trial court imposed the mandatory sentence of life without
parole. Direct appellate review of Davis’s conviction and sentence concluded in 2000.
Following habeas corpus proceedings in federal court, Davis moved for relief from the judgment
in the Wayne Circuit Court in 2010, contending that Graham v Florida, 560 US 48 (2010), had
established a retroactive change in the law by categorically barring sentences of life without
parole for juveniles convicted of nonhomicide offenses. Concluding that felony murder is a
homicide offense even if the defendant was an aider and abettor rather than the actual shooter,
however, the trial court denied the motion. The Court of Appeals denied Davis’s application for
leave to appeal in an unpublished order, entered November 16, 2011 (Docket No. 304075).
Miller was decided while Davis’s application for leave to appeal was pending in the Supreme
Court. The Supreme Court remanded Davis’s case to the trial court for a determination of
whether Miller applied retroactively. 492 Mich 871 (2012). On remand, the trial court
concluded that Miller applied retroactively, entitling Davis to be resentenced. The prosecution
appealed, and the Court of Appeal reversed in an unpublished order, entered January 16, 2013
(Docket No. 314080), citing Carp, 298 Mich App 472. The Supreme Court granted Davis leave
to appeal to address whether the Eighth Amendment or Const 1963, art 1, § 16 categorically bars
the imposition of a nonparolable life sentence on a juvenile convicted of felony murder under an
aiding-and-abetting theory. 495 Mich 890 (2013).
Dakotah Wolfgang Eliason was charged in the Berrien Circuit Court with first-degree
murder, MCL 750.316(1)(a), after he shot his sleeping stepgrandfather in the head. Eliason was
14 at the time. Following his conviction, the court, Scott Schofield, J., sentenced Eliason in
October 2010 to life without parole. Miller was decided while Eliason’s appeal was pending.
The Court of Appeals, O’CONNELL and MURRAY, JJ. (GLEICHER, P.J., concurring in part and
dissenting in part), held that Miller requires a trial court to perform an individualized sentencing
analysis using the factors in Miller and choose whether to impose a sentence of life with or
without parole. Eliason sought leave to appeal in the Supreme Court, challenging the sentencing
procedures and options defined by the Court of Appeals and contending that a trial court should
have the further option of imposing a sentence of a term of years. He additionally argued that
Const 1963, art 1, § 16 categorically bars the imposition of nonparolable life sentences on a
juvenile. The Supreme Court granted Eliason leave to appeal on both issues. 495 Mich 891(2013). Eliason subsequently limited his second issue to juveniles who were 14 at the time of the
offense.
In an opinion by Justice MARKMAN, joined by Chief Justice YOUNG and Justices ZAHRA
and VIVIANO, the Supreme Court held:
The rule announced in Miller does not satisfy either the federal test for retroactivity set
forth in Teague or the Michigan test set forth in Sexton and Maxson. Furthermore, neither the
Eighth Amendment nor Const 1963, art 1, § 16 categorically bars the imposition of a sentence of
life without parole on a juvenile homicide offender.
1. The family division of the circuit court typically has initial jurisdiction under
MCL 712A.4(1) of a juvenile 14 years of age or older charged with a felony. Under what is
termed the “automatic waiver process,” however, if the prosecution charges a juvenile with a
specified juvenile violation (which includes first-degree murder), MCL 764.1f authorizes the
filing of a complaint and warrant, and the circuit court itself, rather than the family division,
acquires jurisdiction over the juvenile’s case. MCL 712A.2(a)(1) then requires the court to try
the juvenile as an adult. After Miller was decided, the Legislature enacted 2014 PA 22, which
added MCL 769.25 and MCL 769.25a to the Code of Criminal Procedure. MCL 769.25
prescribed a new sentencing scheme for juveniles convicted of offenses that had previously
required the imposition of nonparolable life sentences. The new scheme established a default
sentencing range. In the absence of a prosecution motion to impose life without parole, MCL
769.25(9) requires the trial court to sentence the juvenile to a term of imprisonment that has a
minimum term of not less than 25 or more than 40 years and a maximum term of not less than 60
years. If the prosecution seeks a nonparolable life sentence, MCL 769.25(6) requires the trial
court to conduct a hearing on the motion as part of the sentencing process and consider the
factors listed in Miller. MCL 769.25a(1) provides that the procedures set forth in MCL 769.25
do not apply to cases that were final for purposes of appeal on or before June 24, 2012, (the day
before Miller was decided). MCL 769.25a(2), however, provides that if Miller is applied
retroactively to all defendants who were under the age of 18 at the time of their crimes, the trial
court will be required to decide whether to impose a sentence of imprisonment for life without
parole or a term of years as set forth in MCL 769.25(9). Because each defendant in these appeals
would be subject to the new sentencing rules established for juveniles by 2014 PA 22 if granted
resentencing, a determination of whether Miller applies retroactively was necessary.
2. The form and effect of a new rule is essential in determining whether the rule applies
retroactively under Teague. Miller was the product of two strands of precedent, one requiring a
particular form of individualized sentencing before capital punishment may be imposed and the
other addressing the constitutionality of imposing specific punishments on juvenile offenders.
The capital-punishment strand of precedent prescribed rules requiring a sentencer to perform an
individualized sentencing analysis that results in a decision whether to impose capital
punishment. By contrast, the juvenile-sentencing strand prescribed rules that categorically bar
the imposition of a particular sentence, requiring the sentencer to impose a lesser sentence in
every case. The form and effect of the rule in Miller is similar to that of the rules in capital-
punishment cases because it requires a sentencer to perform an individualized sentencing
analysis that results in a decision whether to impose a nonparolable life sentence. Accordingly,
whether Miller had to be applied retroactively depended on whether a rule with a form and effect
similar to the rules in the capital-punishment cases is the type of rule entitled to retroactive
application under Teague.
3. There is a general rule of nonretroactivity for cases on collateral review with respect to
applying new constitutional rules to cases that became final before the new rule was announced.
The first inquiry when determining whether a rule applies retroactively to cases presented on
collateral review is whether it constitutes a new rule as defined by Teague. If a rule is not
deemed a new rule, the general rule of nonretroactivity does not apply and the rule will be
applied retroactively, even to cases on collateral review. If the rule is deemed a new rule,
however, the general rule of nonretroactivity does apply and the court must engage in the second
Teague inquiry: whether the new rule satisfies one of the two exceptions to the general rule, in
which case the rule will be applied retroactively. The Teague exceptions provide that a new rule
applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is
a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the
criminal proceeding.
4. Miller established a new rule because it imposed an obligation on state and lower
federal courts to conduct individualized sentencing hearings before sentencing a juvenile to life
without parole, including the requirement that the prosecution present evidence of aggravating
factors relevant to the offender and the offense and that defendants be given the opportunity and
financial resources to present evidence of mitigating factors As a result of Miller, a considerable
number of juveniles who would previously have been sentenced to life without parole will now
receive a lesser sentence.
5. In light of Carp’s and Davis’s arguments, it was only necessary to consider whether the
rule in Miller fits within the first exception. Categorical rules, such as those derived from the
juvenile-sentencing strand of precedent, are substantive because they have a form and effect that
always results in the unconstitutionality of the punishment imposed. Conversely, noncategorical
rules, such as those derived from the capital-punishment strand of precedent and Miller, are
procedural because they have a form and effect that does not always result in the
unconstitutionality of the punishment imposed. Rather, they merely require a court to perform a
new or amended analysis before determining whether a given punishment can be imposed on a
particular defendant. A new procedural rule creates the possibility that the defendant would have
received a less severe punishment but does not necessitate such a result. Accordingly, a rule is
procedural when it affects how and under what framework a punishment may be imposed but
leaves intact the state’s fundamental legal authority to seek the imposition of the punishment on
a defendant currently subject to the punishment. Because the rule in Miller is procedural,
Teague did not require its retroactive application.
6. States may give broader retroactive effect to a new rule than Teague requires.
Michigan’s retroactivity test requires consideration of three factors: (1) the purpose of the new
rule, (2) the general reliance on the old rule, and (3) the effect of retroactive application on the
administration of justice. The general principle of nonretroactivity for new rules of criminal
procedure, to which Michigan adheres, is properly served by applying in a retroactive fashion
only those new rules of procedure that implicate the guilt or innocence of a defendant. A new
rule of procedure that does not affect the integrity of the fact-finding process should be given
prospective effect only. Therefore, the first factor clearly militated against the retroactive
application of Miller because Miller altered only the process by which a court must determine a
defendant’s level of moral culpability for purposes of sentencing and had no bearing on the
defendant’s legal culpability for the offense. The second and third factors did not favor the
retroactive application of Miller to the extent that they overcame the first factor’s clear direction
against retroactive application. In particular, there would be considerable financial, logistical,
and practical barriers placed on prosecutors to re-create or relocate evidence that had previously
been viewed as irrelevant and unnecessary, a task made all the more burdensome and
complicated by the passage of time. This process would not further the achievement of justice
under the law, and Miller was not entitled to retroactive application under Michigan’s test.
7. Defendants asserted that the Eighth Amendment categorically bars the imposition of a
nonparolable life sentence on any juvenile regardless of whether an individualized sentencing
analysis occurs before that sentence is imposed, consequently requiring the resentencing of all
juveniles sentenced to life without parole under the pre-Miller sentencing scheme and rendering
invalid those portions of MCL 769.25 that allow the imposition of a nonparolable life sentence
on particular juveniles following an individualized sentencing hearing. The caselaw defendants
cited in support did not compel such a categorical rule, however, and defendants failed to show
that the federal proportionality rule for sentences that the United States Supreme Court used in
Miller and the juvenile-sentencing cases supported a categorical rule.
8. While the Eighth Amendment prohibits cruel and unusual punishments, Const 1963,
art 1, § 16 prohibits cruel or unusual punishments. Consequently, it prohibits a punishment that
is unusual but not necessarily cruel. The state test for proportionality of sentences 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. A nonparolable life sentence for a juvenile does not serve the
penological goal of rehabilitation, but because only the fourth factor supported defendants’
contention that their sentences were disproportionate, defendants failed to meet their burden of
demonstrating that their sentences were facially unconstitutional under Const 1963, art 1, § 16.
9. Davis argued that the Eighth Amendment categorically bars imposing nonparolable life
sentences on juvenile homicide offenders convicted of felony murder under an aiding-and-
abetting theory, attempting to derive that categorical rule from Miller and Graham. The
commission of a murder during a robbery is first-degree murder. In MCL 767.39, the
Legislature chose to treat offenders who aid and abet the commission of an offense exactly the
same as those offenders who more directly commit the offense, in particular subjecting them to
the same punishment. This legislative choice is entitled to great weight, and Davis failed to
persuade the Court that it should establish a categorical rule.
10. Eliason asserted that Const 1963, art 1, § 16 categorically bars the imposition of a
nonparolable life sentence on a juvenile homicide offender who was 14 years of age at the time
of the offense. Because Eliason’s case was on direct review, however, he was entitled to
resentencing under MCL 769.25(1)(b)(ii) and subject to a default sentence of a term of years. A
juvenile will only face life without parole if the prosecution seeks that sentence and the trial
court concludes that the sentence is appropriate following an individualized sentencing hearing
in accordance with Miller. Even though the prosecution had filed a motion for imposition of a
nonparolable life sentence, whether the trial court will depart from the default sentence on
resentencing would only be speculation and it was not apparent that Eliason faced a real and
immediate threat of receiving life without parole. Accordingly, his facial constitutional
challenge was no longer justiciably ripe.
Carp and Davis affirmed.
Eliason remanded for resentencing.
Justice KELLY, joined by Justices CAVANAGH and MCCORMACK, dissenting, would have
concluded that Miller applies retroactively to cases on collateral review because it established a
substantive rule and because state law alternatively compelled its retroactive application. The
United States Supreme Court has established in numerous cases that juveniles are different as a
matter of constitutional law. Miller determined that because certain juvenile homicide offenders
have diminished culpability for their crimes compared to adult offenders and greater prospects
for reform, states cannot subject juvenile homicide offenders to mandatory nonparolable life
sentences. Accordingly, Miller expanded the range of punishments available to juveniles in
states that had previously mandated a nonparolable life sentence for juveniles convicted of first-
degree murder. Miller required sentencers to consider an offender’s youth and attendant
characteristics before imposing a nonparolable life sentence. Under Miller, age affects the range
of sentences that can be imposed on someone convicted of first-degree murder. Miller produced
a class of persons subject to a different range of sentences and therefore established a substantive
rule of law that applies retroactively under the Teague framework. While Miller did not
foreclose sentencers from imposing nonparolable life sentences on juveniles in appropriate cases,
it categorically barred a mandatory nonparolable life sentence for those offenders. The Teague
analysis focuses on whether the decision is substantive or procedural, not on whether it is
categorical or noncategorical, but even if all categorical bars are substantive, it does not follow
that all noncategorical bars must be procedural. The fact that Miller did not categorically bar
nonparolable life sentences for juvenile offenders did not negate the substantive import of its
decision to invalidate mandatory nonparolable life sentences as applied to juvenile offenders.
Miller did more than merely allocate decision-making authority; it altered the range of
punishments available to a juvenile homicide offender by requiring that a state’s mandatory
minimum punishment be something less than nonparolable life. Miller involved not just who
exercises the decision-making authority when imposing punishment, but what punishments must
be considered. Accordingly, Justice KELLY would have held that Miller applies retroactively to
cases on collateral review. Furthermore, the first factor that a reviewing court must consider in
assessing a new rule’s retroactivity under the state test for retroactivity is the purpose of the new
rule. While sentencing procedures do not concern the ascertainment of guilt or innocence for the
underlying offense, sentencing is a fact-finding process that allows the sentencer to ascertain an
offender’s culpability for the offense. Miller mandated a new fact-finding process to determine
whether a nonparolable life sentence is appropriate in a particular case and, as a result, the first
factor supported the retroactive application of Miller. The second factor examines whether
individuals have been adversely positioned in reliance on the old rule. Carp and Davis were
adversely positioned because the trial courts did not have the discretion to impose any sentence
but nonparolable life, there was no basis before Miller to appeal this lack of discretion, and it is
likely that many of the juvenile offenders already serving nonparolable life sentences would have
been sentenced to a term of years had they received a sentencing hearing. The third factor
examines whether applying the new rule retroactively would undermine the state’s strong interest
in finality of the criminal justice process. Applying Miller retroactively would not affect the
finality of convictions in this state, but would only require an individualized resentencing process
for the relatively small class of prisoners sentenced to nonparolable life for homicides they
committed as juveniles. Because each factor of the state test supported it, Justice KELLY would
have held that independent state-law grounds also existed to apply Miller retroactively. Justice
KELLY would have reversed the judgments of the Court of Appeals in Carp and Davis and
remanded all three cases to the trial courts for resentencing.
©2014 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice: Justices:
Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
FILED July 8, 2014
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No.146478
RAYMOND CURTIS CARP,
Defendant-Appellant.
_____________________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 146819
CORTEZ ROLAND DAVIS,
Defendant-Appellant.
_____________________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 147428
DAKOTAH WOLFGANG ELIASON,
Defendant-Appellant.
_____________________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal to address (1) whether Miller v Alabama, 567 US ___;
132 S Ct 2455; 183 L Ed 2d 407 (2012), should be applied retroactively-- pursuant to
either the federal or state test for retroactivity-- to cases in which the defendant’s sentence
became final for purposes of direct appellate review before Miller was decided and (2)
whether the Eighth Amendment of the United States Constitution or Const 1963, art 1,
§ 16 categorically bars the imposition of a life-without-parole sentence on a juvenile
homicide offender. After considering these matters, we hold that the rule announced in
Miller does not satisfy either the federal test for retroactivity set forth in Teague v Lane,
489 US 288; 109 S Ct 1060; 103 L Ed 2d 334 (1989), or Michigan’s separate and
independent test for retroactivity set forth in People v Sexton, 458 Mich 43; 580 NW2d
404 (1998), and People v Maxson, 482 Mich 385; 759 NW2d 817 (2008). We further
hold that neither the Eighth Amendment nor Const 1963, art 1, § 16 categorically bars the
imposition of a life-without-parole sentence on a juvenile homicide offender.
2
I. FACTS AND HISTORY
A. DEFENDANT CARP
Defendant Raymond Carp was 15 years of age when he participated in the 2006
bludgeoning and stabbing of Mary Ann McNeely in Casco Township. He was charged
with first-degree murder in violation of MCL 750.316 and tried as an adult. On October
5, 2006, a St. Clair County jury convicted Carp of this offense, and in accordance with
the law he was sentenced to life imprisonment without parole. Carp’s conviction was
subsequently affirmed by the Court of Appeals, People v Carp, unpublished opinion per
curiam of the Court of Appeals, issued December 30, 2008 (Docket No. 275084), and his
application for leave to appeal in this Court was denied on June 23, 2009, People v Carp,
483 Mich 1111 (2009). Because Carp did not seek review in the United States Supreme
Court, his conviction and sentence became final for the purposes of direct appellate
review on June 23, 2009.
In September 2010, Carp sought to collaterally attack the constitutionality of his
sentence by filing a motion for relief from judgment pursuant to MCR 6.501 et seq. The
trial court denied this motion, concluding that the imposition of a mandatory sentence of
life without parole on a juvenile first-degree-murder offender did not constitute cruel or
unusual punishment, citing People v Launsburry, 217 Mich App 358, 363-365; 551
NW2d 460 (1996), lv den 454 Mich 883 (1997), and recon den 454 Mich 883 (1997).
Carp then sought leave to appeal in the Court of Appeals, which was denied on June 8,
2012. People v Carp, unpublished order of the Court of Appeals, entered June 8, 2012
(Docket No. 307758). Seventeen days later, the United States Supreme Court issued its
decision in Miller, leading Carp to move for reconsideration, and the Court of Appeals
3
granted his motion. People v Carp, unpublished order of the Court of Appeals, entered
August 9, 2012 (Docket No. 307758). On reconsideration, the Court determined that
Miller had created a “new rule” that was “procedural” in nature and therefore not subject
to retroactive application under the rules set forth in Teague. People v Carp, 298 Mich
App 472, 511-515; 828 NW2d 685 (2012). The Court further held that Miller was not
subject to retroactive application under Michigan’s separate test for retroactivity set forth
in Sexton and Maxson.1 Id. at 520-522. This Court subsequently granted Carp leave to
appeal with respect to whether Miller should be applied retroactively under either federal
or state law. People v Carp, 495 Mich 890 (2013).
B. DEFENDANT DAVIS
Defendant Cortez Davis, age 16 at the time of his offense, and one of his cohorts,
while both brandishing firearms, accosted two individuals in Detroit for the purpose of
robbery.2 Two witnesses testified that when one of the victims attempted to flee, Davis
and his cohort fired five or six shots, killing the victim. Davis was charged with felony
first-degree murder in violation of MCL 750.316(1)(b) and convicted by a jury in the
former Recorders Court for the City of Detroit (now part of the Wayne Circuit Court) on
this charge on May 10, 1994.
1
The Court of Appeals also opined in dictum how Miller should be applied by trial courts
in resentencing juvenile first-degree-murder offenders in cases that were not presented on
collateral review. Carp, 298 Mich App at 523-537.
2
At trial, Davis testified that he had not participated in the robbery, but that a third
cohort, “Shay-man,” and the other cohort, had committed the offense without Davis’s
help or encouragement.
4
At sentencing, the trial court initially ruled that Michigan’s statutory sentencing
scheme for first-degree murder could not constitutionally be applied to juvenile homicide
offenders because it was “cruel and unusual” to impose a sentence of life without parole
on a juvenile who was “capable of rehabilitation.” In concluding that Davis was such an
individual, the court surmised that Davis’s role in the commission of the offense was that
of an aider and abettor, not an actual shooter. The court, however, did not make any
finding concerning Davis’s intentions with respect to the fleeing victim or whether he
reasonably foresaw the possibility that a life might be taken when he initially engaged in
the armed robbery. The trial court thereupon sentenced Davis to a term of imprisonment
of 10 to 40 years.
On appeal, however, the Court of Appeals reversed and remanded for resentencing
pursuant to Michigan’s statutory sentencing scheme, People v Davis, unpublished order
of the Court of Appeals, entered November 23, 1994 (Docket No. 176985), and at
resentencing, the trial court imposed the required sentence of life without parole. Direct
appellate review of defendant’s conviction and sentence concluded in 2000. People v
Davis, unpublished order of the Court of Appeals, entered June 15, 2000 (Docket No.
224046).3
3
A federal district court dismissed Davis’s federal habeas petition, expressly rejecting his
contention “that there was insufficient evidence to convict him of first-degree felony
murder.” Davis v Jackson, unpublished opinion and order of the United States District
Court for the Eastern District of Michigan, issued April 30, 2008 (Docket No. 01-CV-
72747), p 9. The court relied on the surviving victim’s “testi[mony] that both [Davis]
and his co-defendant fired their weapons at the decedent.” Id. Davis challenged the
credibility of this witness, but the court rejected this assertion because “[t]he testimony of
a single, uncorroborated prosecuting witness or other eyewitness is generally sufficient to
5
In 2010, Davis filed his current motion for relief from judgment, contending that
Graham v Florida, 560 US 48; 130 S Ct 2011; 176 L Ed 2d 825 (2010), constituted a
“retroactive change in the law” in that it categorically barred life-without-parole
sentences for juveniles convicted of nonhomicide offenses. Concluding, however, that
felony murder is in fact a “homicide offense,” even when the defendant is not the actual
shooter but an aider and abettor, the trial court denied this motion. The Court of Appeals
denied Davis’s application for leave to appeal. People v Davis, unpublished order of the
Court of Appeals, entered November 16, 2011 (Docket No. 304075). While Davis’s
application for leave to appeal in this Court was pending, the United States Supreme
Court issued its decision in Miller. In light of Miller, Davis’s case was remanded to the
trial court for a determination of whether Miller applied retroactively. People v Davis,
492 Mich 871 (2012). On remand, the trial court concluded that Miller did apply
retroactively, entitling Davis to be resentenced. The prosecutor then appealed, and the
Court of Appeals reversed. People v Davis, unpublished order of the Court of Appeals,
entered January 16, 2013 (Docket No. 314080), citing Carp, 289 Mich App 472. Davis
again sought leave to appeal in this Court, which we granted to address whether the
support a conviction, so long as the prosecution presents evidence which establishes the
elements of the offense beyond a reasonable doubt.” Id. at 11. The court later denied
Davis’s request for a certificate of appealability. Davis v Jackson, unpublished order of
the United States District Court for the Eastern District of Michigan, entered June 4, 2008
(Docket No. 01-CV-72747). The United States Court of Appeals for the Sixth Circuit
affirmed this denial, stating that “[a]n eyewitness . . . testified that both Davis and his co-
perpetrator fired shots at the decedent.” Davis v Jackson, unpublished order of the
United States Court of Appeals for the Sixth Circuit, entered July 14, 2009 (Docket No.
08-1717), p 2.
6
Eighth Amendment of the United States Constitution or Const 1963, art 1, § 16
categorically bars imposing a sentence of life without parole on a juvenile convicted of
felony murder on aiding-and-abetting grounds. People v Davis, 495 Mich 890 (2013).
C. DEFENDANT ELIASON
Unlike Carp and Davis, whose sentences became final for purposes of direct
review before Miller was decided, at least 10 defendants were convicted and sentenced
before Miller, but their cases were on direct appeal at the time Miller was decided.
Dakotah Eliason is one of those defendants. At age 14, Eliason, without provocation and
after hours of deliberation, fired a single deadly shot into the head of his stepgrandfather
as he slept in his Niles Township home. Eliason was charged with first-degree murder in
violation of MCL 750.316(1)(a) in the Berrien Circuit Court, convicted by a jury, and
sentenced in October 2010 to life without parole.
While Eliason’s appeal was pending before the Court of Appeals, Miller was
decided. In assessing the effect of Miller on Michigan’s sentencing scheme for juvenile
first-degree-murder offenders, the Court of Appeals held that a trial court must as a result
of Miller perform an individualized sentencing analysis based upon the factors identified
in Miller. People v Eliason, 300 Mich App 293, 309-311; 833 NW2d 357 (2013), citing
Carp, 289 Mich App at 522-532. Using this analysis, the trial court must then choose
between imposing a sentence of life with or without parole. Eliason, 300 Mich App at
310. Eliason sought leave to appeal in this Court, challenging the sentencing procedures
and options defined by the Court of Appeals, contending that the trial court should have
the further option of imposing a sentence of a term of years. Eliason additionally argued
7
that Const 1963, art 1, § 16 categorically bars the imposition of a life-without-parole
sentence on a juvenile. We granted leave to appeal on both issues. People v Eliason, 495
Mich 891 (2013).
II. MICHIGAN STATUTES
Pending our resolution of this appeal, and in response to Miller, the Legislature
enacted, and the Governor signed into law, 2014 PA 22, now codified as MCL 769.25
and MCL 769.25a. This law significantly altered Michigan’s sentencing scheme for
juvenile offenders convicted of crimes that had previously carried a sentence of life
without parole.
A. PRE-MILLER
To understand the full context of defendants’ appeals and the relief each seeks in
reliance on Miller, it is necessary first to delineate the pre-Miller statutes that controlled
the trial and sentencing of juvenile first-degree-murder offenders in Michigan. Each
defendant before this Court was charged with first-degree murder under MCL 750.316.
When a juvenile defendant “14 years of age or older” is charged with a felony, the family
division of the circuit court would typically possess initial jurisdiction. MCL 712A.4(1).
However, when a juvenile is charged with a “specified juvenile violation,” including
first-degree murder in violation of MCL 750.316, “the prosecuting attorney may
authorize the filing of a complaint and warrant on the charge . . . .” MCL 764.1f. If the
prosecutor does so, the circuit court itself, rather than the family division of the circuit
court, acquires jurisdiction over the juvenile defendant’s case and must try that person as
an adult. See MCL 712A.2(a)(1).
8
This process has been termed the “automatic waiver process” because the
Legislature has vested exclusively in the prosecutor the executive discretion to charge
and try a juvenile as an adult when the juvenile stands accused of first-degree murder.
People v Conat, 238 Mich App 134, 141-142; 605 NW2d 49 (1999). The prosecutors in
the instant three cases filed complaints and warrants placing the cases within the
jurisdiction of the circuit court, where each defendant was then tried and convicted as an
adult. When this occurs and the offense is included in an enumerated subset of specified
juvenile violations (which includes first-degree murder), “[t]he court shall sentence a
juvenile . . . in the same manner as an adult[.]” MCL 769.1(1). Because an adult
convicted of first-degree murder “shall be punished by imprisonment for life,”
MCL 750.316(1), and is not eligible for parole, MCL 791.234(6)(a), defendants were
ultimately sentenced to terms of life without parole. Each defendant now seeks
resentencing and, pursuant to the statutory response to Miller, would, if granted
resentencing, be subject to the new sentencing rules established for juveniles by 2014 PA
22.
B. POST-MILLER
MCL 769.25, enacted in response to Miller, prescribes a new sentencing scheme
for juveniles convicted of violating certain provisions of Michigan laws, such as MCL
750.316, that had previously carried with them a fixed sentence of life without parole.
The effect of MCL 769.25 is that even juveniles who commit the most serious offenses
against the laws of this state may no longer be sentenced under the same sentencing rules
and procedures as those that apply to adults who commit the same offenses. Rather than
9
imposing fixed sentences of life without parole on all defendants convicted of violating
MCL 750.316, MCL 769.25 now establishes a default sentencing range for individuals
who commit first-degree murder before turning 18 years of age. Pursuant to the new law,
absent a motion by the prosecutor seeking a sentence of life without parole,
the court shall sentence the individual to a term of imprisonment for which
the maximum term shall be not less than 60 years and the minimum term
shall be not less than 25 years or more than 40 years. [MCL 769.25(4) and
(9).]
When, however, the prosecutor does file a motion seeking a life-without-parole sentence,
the trial court “shall conduct a hearing on the motion as part of the sentencing process”
and “shall consider the factors listed in Miller v Alabama . . . .” MCL 769.25(6).
Accordingly, the sentencing of juvenile first-degree-murder offenders now provides for
the so-called “individualized sentencing” procedures of Miller.
In adopting this new sentencing scheme, the Legislature was clearly cognizant of
the issue surrounding whether Miller was to be applied retroactively. In defining the
scope of the new scheme, the Legislature asserted that “the procedures set forth in
[MCL 769.25] do not apply to any case that is final for purposes of appeal on or before
June 24, 2012 [the day before the United States Supreme Court’s decision in Miller].”
MCL 769.25a(1). Instead, the Legislature specified:
If the state supreme court or the United States supreme court finds
that the decision of the United States supreme court in Miller v Alabama,
[567] US ___; 183 L Ed 2d 407; 132 S Ct 2455 (2012), applies
retroactively to all defendants who were under the age of 18 at the time of
their crimes, and that decision is final for appellate purposes, the
determination of whether a sentence of imprisonment for a violation set
forth in [MCL 769.25(2)] shall be imprisonment for life without parole
eligibility or a term of years as set forth in [MCL 769.25(9)] shall be made
10
by the sentencing judge or his or her successor as provided in this section.
[MCL 769.25a(2).][4]
We now take up the question identified in MCL 769.25a(2)-- whether Miller must be
applied retroactively.
III. STANDARD OF REVIEW
Whether a decision of the United States Supreme Court applies retroactively under
either federal or state retroactivity rules poses a question of law that is reviewed de novo.
Maxson, 482 Mich at 387. Whether a statute is constitutional also poses a question of
law that is reviewed de novo. Hunter v Hunter, 484 Mich 247, 257; 771 NW2d 694
(2009). When the constitutionality of a statute is brought into question, “[t]he party
challenging [it] has the burden of proving its invalidity.” People v Thomas, 201 Mich
App 111, 117; 505 NW2d 873 (1993). To sustain its burden, the party challenging the
statute must overcome the presumption that a statute is constitutional, and the statute
“will not be declared unconstitutional unless clearly so, or so beyond a reasonable
doubt.” Cady v Detroit, 289 Mich 499, 505; 286 NW 805 (1939). Furthermore, a “party
challenging the facial constitutionality of a statute faces an extremely rigorous standard,
and must show that no set of circumstances exists under which the [a]ct would be valid.”
In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich
1, 11; 740 NW2d 444 (2007) (citations and quotation marks omitted).
4
MCL 769.25a(3) contains a similar exception to the prospective application of MCL
769.25 in the event that this Court or the United States Supreme Court holds that Miller
applies retroactively to juvenile first-degree-murder offenders convicted on a felony-
murder theory under MCL 750.316(1)(b).
11
IV. ANALYSIS
To determine whether Miller must be applied retroactively, it is helpful to first
identify exactly what Miller held by way of understanding what precedents were relied
on in forming its rule. Miller is the product of “two strands of precedent,” one requiring
a particular form of individualized sentencing before capital punishment can be imposed
and the other addressing the constitutionality of imposing specific punishments on
juvenile offenders. Miller, 567 US at ___; 132 S Ct at 2463-2464. We now consider
both strands of precedent with the purpose of identifying what is required by the rules
formed from each strand of precedent and then comparing and contrasting what is
required by each with what is required by the rule in Miller in order to determine whether
the latter rule should be applied retroactively.
A. GENESIS OF MILLER
1. CAPITAL-PUNISHMENT STRAND
In Furman v Georgia, 408 US 238; 92 S Ct 2726; 33 L Ed 2d 346 (1972), the
United States Supreme Court decided 5-4 in seven separate opinions that it constituted
cruel and unusual punishment in violation of the Eighth Amendment to impose capital
punishment pursuant to a sentencing scheme that, in its words, “vested the [sentencer]
with complete and unguided discretion to impose the death penalty . . . .” Beck v
Alabama, 447 US 625, 639; 100 S Ct 2382; 65 L Ed 2d 392 (1980). In response, some
states enacted sentencing schemes requiring the imposition of capital punishment for
select crimes by way of the mandatory operation of law. Woodson v North Carolina, 428
US 280, 286-287, 298; 96 S Ct 2978; 49 L Ed 2d 944 (1976). Those sentencing schemes
12
were also challenged on Eighth Amendment grounds in Woodson, with the Court
understanding the case as challenging not the state’s ability to impose capital punishment
but “the procedure employed by the State to select persons for the . . . penalty of death.”
Id. at 287 (emphasis added).
In Woodson, the Court, in another 5-4 decision, held that those schemes were
unconstitutional. The plurality opinion viewed as unconstitutional sentencing schemes
that employed a process that did not permit for “the prevailing practice of individualizing
sentencing determinations” as part of the process for imposing capital punishment. Id. at
303-304 (opinion of Stewart, Powell, and Stevens, JJ.). Accordingly, post-Woodson,
capital punishment could only be constitutionally imposed after “consideration of the
character and record of the individual offender and the circumstances of the particular
offense . . . .” Id. at 304. Notably, however, on the same day that the United States
Supreme Court decided Woodson, it also declined to categorically bar the imposition of
capital punishment. Gregg v Georgia, 428 US 153; 96 S Ct 2909; 49 L Ed 2d 859(1976).
Following Woodson and Gregg, the United States Supreme Court confronted two
additional cases challenging whether the sentencing procedures employed to impose
capital punishment complied with Woodson’s requirement of individualized sentencing
determinations. See Lockett v Ohio, 438 US 586; 98 S Ct 2954; 57 L Ed 2d 973 (1978),
and Eddings v Oklahoma, 455 US 104; 102 S Ct 869; 71 L Ed 2d 1 (1982). Both Lockett
and Eddings were cited in Miller as part of the capital-punishment strand of precedent
that culminated in Miller. Miller, 567 US at ___; 132 S Ct at 2467. The plurality opinion
13
in Lockett stated that statutory schemes authorizing capital punishment must permit the
sentencer to consider all forms of mitigating evidence relating to two measuring points
for determining the propriety of the sentence-- evidence relating to the defendant’s
“character or record and any of the circumstances of the offense . . . .” Lockett, 438 US at
604 (opinion by Burger, C.J.). Relevantly listed as factors that the sentencer must be
permitted to consider were the defendant’s “role in the offense” and the defendant’s
“age.” Id. at 608.
In Eddings, the Court, in a 5-4 decision, applied Lockett to a case in which the trial
court, in considering mitigating factors before imposing capital punishment, declined to
consider either the defendant’s family background, including the physical abuse and
neglect he had suffered, or the fact that he suffered from an alleged “personality
disorder.” Eddings, 455 US at 112-113. The Court ruled that while a sentencer may
“determine the weight to be given relevant mitigating evidence,” the sentencer may not
decide to give a piece of relevant mitigating evidence “no weight by [altogether]
excluding such evidence from . . . consideration.” Id. at 114-115. Under Lockett and
Eddings, in which individualized sentencing is required, not only must statutory
procedures for imposing capital punishment permit the defendant to present all relevant
mitigating evidence, but the sentencer must also consider and accord some weight to that
evidence. Id. at 112-115.
2. JUVENILE-SENTENCING STRAND
The second strand of precedent was developed in two cases, Roper v Simmons,
543 US 551; 125 S Ct 1183; 161 L Ed 2d 1 (2005), and Graham. Roper and Graham
14
were understood by the Court in Miller to have “establish[ed] that children are
constitutionally different from adults for purposes of sentencing.” Miller, 567 US at ___;
132 S Ct at 2464. This constitutional distinction has resulted in downward alterations in
Roper and Graham in the range of punishments that the state may constitutionally impose
on juvenile offenders. When the rules from Roper and Graham are considered together, a
state may only impose a sentence of life without parole on a juvenile for the commission
of an offense that if committed by an adult would constitutionally permit the state to
punish the adult by capital punishment.
In Roper, the Court held that the “Eighth and Fourteenth Amendments forbid
imposition of the death penalty on offenders who were under the age of 18 when their
crimes were committed.” Roper, 543 US at 578. The Court characterized the rule it was
adopting as a “categorical rule.” Id. at 572.5 The subsequent decision in Graham
adopted what the Court again characterized as a “categorical rule,” i.e., that a sentence of
life without parole could not be imposed on a juvenile nonhomicide offender. Graham,
560 US at 79. In reaching this conclusion, Graham drew comparisons between a capital
sentence for an adult offender and a life-without-parole sentence for a juvenile offender.
Id. at 69-70. To justify this categorical rule, the Court relied on the factors identified in
5
The Court’s basis for prescribing this rule, distinguishing between adult and juvenile
offenders for purposes of constitutional analysis, rested on three factors: (1) juveniles, by
way of their “lack of maturity,” tend to engage in “impetuous and ill-considered actions,”
(2) “juveniles are more vulnerable or susceptible to negative influences and outside
pressures” because they “have less control . . . over their own environment,” and (3) “the
character of a juvenile is not as well formed as that of an adult.” Roper, 543 US at 569-
570 (citation and quotation marks omitted).
15
Roper that assertedly distinguished juvenile and adult offenders. Id. at 68, citing Roper,
543 US at 569-570. The Court also supported its prohibition of life-without-parole
sentences for juvenile nonhomicide offenders by concluding that the goals of punishment
(retribution, deterrence, incapacitation, and rehabilitation) are not furthered when a
nonparolable life sentence is imposed. Id. at 71-74. Combining strands of precedent that
were previously limited to capital sentences and juvenile nonhomicide offenders
respectively, and holding for the first time that these separate strands were relevant to
noncapital sentences for juvenile homicide offenders, the United States Supreme Court
reached its holding in Miller.
3. MILLER v ALABAMA
Miller v Alabama created the rule that Carp and Davis seek to have applied
retroactively. Having identified what is required by the rules from each of the two
strands of precedent that underlie Miller, we now identify what is required by the rule in
Miller in order to determine whether Miller is more like the juvenile-sentencing strand
whose rules have applied retroactively under Teague or more like the capital-punishment
strand whose rules have not been applied retroactively under Teague. We compare and
contrast the rule in Miller in this way because, as discussed later, the “form and effect” of
a rule is essential in determining whether a rule is to be applied retroactively under
Teague. One form of a rule will produce a single invariable result, or a single effect,
when applied to any defendant in the class of defendants to whom the rule is pertinent.
Another form of a rule will produce a range of results, or have multiple possible effects,
when applied to different defendants in the class of defendants to whom the rule is
16
pertinent. The form and effect of the rules derived from the capital-punishment strand of
precedent varies considerably from the form and effect of the rules derived from the
juvenile-sentencing strand of precedent, and this variance has markedly different
consequences for the question of retroactivity. The capital-punishment strand of
precedent prescribed rules that require a sentencer to perform an individualized
sentencing analysis resulting in capital punishment being either imposed or not. By
contrast, the juvenile-sentencing strand of precedent prescribed rules that categorically
bar the imposition of a particular sentence, requiring the sentencer to impose a lesser
sentence in every case. The former class of rules does not clearly satisfy the test for
retroactivity, while the latter class of rules does. In assessing whether the form and effect
of the rule in Miller is more akin to that of the capital-punishment strand of precedent,
and therefore less clearly retroactive, or more akin to the juvenile-sentencing strand of
precedent, and therefore more clearly retroactive, we find it important to examine what
Miller itself stated about the form and effect of its own holding.
Miller held “that the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders.” Miller, 567
US at ___; 132 S Ct at 2469. Within the very same paragraph in which Miller announced
this holding, the Court also stated that its decision “require[s] [the sentencer] to take into
account how children are different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.” Id. at ___; 132 S Ct at 2469. Miller then
provides substantial details regarding what must be considered as part of the
17
individualized sentencing process before a sentence of life without parole can be imposed
on a juvenile:
Mandatory life without parole for a juvenile precludes consideration of his
chronological age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences. It prevents
taking into account the family and home environment that surrounds him—
and from which he cannot usually extricate himself—no matter how brutal
or dysfunctional. It neglects 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. Indeed, it ignores that he might
have been charged and convicted of a lesser offense if not for
incompetencies associated with 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 finally, this mandatory
punishment disregards the possibility of rehabilitation even when the
circumstances most suggest it. [Id. at ___; 132 S Ct at 2468 (citation
omitted).]
Miller’s summarization of what the trial court must evaluate as part of the new
individualized sentencing process tracks in large part the two measuring points about
which a defendant must be allowed to present mitigating evidence within the capital-
punishment context of Lockett-- evidence relating to “the ‘circumstances of the particular
offense and [to] the character and propensities of the offender.’ ” Id. ___ n 9; 132 S Ct at
at 2471 n 9, quoting Roberts v Louisiana, 428 US 325, 333; 96 S Ct 3001; 49 L Ed 2d
974 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), and citing Sumner v Shuman,
483 US 66; 107 S Ct 2716; 97 L Ed 2d 56 (1987). Although the focus of the rule in
Miller-- life-without-parole sentences for juvenile offenders-- is, of course, distinct from
the focus of the rules in capital-punishment cases, the form and effect of the rule in Miller
is quite similar to that of the rules in capital-punishment cases. That is, the rule in Miller
requires a sentencer to perform an individualized sentencing analysis resulting in a life-
18
without-parole sentence being either imposed or not, very much like the capital-
punishment cases require a sentencer to perform an individualized sentencing analysis
resulting in capital punishment being either imposed or not.
It is considerably more difficult to draw the same comparison between the rule in
Miller and the categorical rules in Graham and Roper. Indeed, the United States
Supreme Court itself specifically distinguished the form and effect of these rules:
Our decision does not categorically bar a penalty for a class of offenders or
type of crime—as, for example, we did in Roper or Graham. Instead, it
mandates only that a sentencer follow a certain process—considering an
offender’s youth and attendant characteristics—before imposing a
particular penalty. [Miller, 567 US at ___; 132 S Ct at 2471.][6]
6
This is but one of several statements from Miller highlighting the limited effect of its
rule as it pertains to requiring “a certain process” rather than “categorically bar[ring] a
penalty.” In the paragraph in which it describes its holding and addresses the sentencer’s
obligations before imposing a life-without-parole sentence, the Court stated, “[W]e do
not foreclose a sentencer’s ability to make that judgment in homicide cases . . . .” Id. at
___; 132 S Ct at 2469. Additionally, in discussing the breadth of its holding, the Court
stated unequivocally that it has not placed any bar on imposing a life-without-parole
sentence on juvenile homicide offenders because it had declined to even reach the
question of whether the Eighth Amendment requires such a bar. See id. at ___; 132 S Ct
at 2469 (“[W]e do not consider Jackson’s and Miller’s alternative argument that the
Eighth Amendment requires a categorical bar on life without parole for juveniles . . . .”).
Indeed, the only opinion in Miller even to entertain the possibility that the Eighth
Amendment imposes a categorical bar on life-without-parole sentences for juvenile
homicide offenders was Justice Breyer’s concurrence, joined in only by Justice
Sotomayor, in which he stated,
Given Graham’s reasoning, the kinds of homicide that can subject a
juvenile offender to life without parole must exclude instances where the
juvenile himself neither kills nor intends to kill the victim. [Id. at ___; 132
S Ct at 2475-2476 (Breyer, J., concurring).]
Had the Court itself adopted Justice Breyer’s proposed rule, then Miller might be said to
have the same form and effect of the categorical rules adopted in Graham and Roper, but
19
Thus, rather than relying on Graham and Roper to give form and effect to Miller, in the
same manner as the capital-punishment decisions, the Court relied on Graham and Roper
in Miller only for a generalized “principle” regarding juvenile offenders. Id. at ___; 132
S Ct at 2471, 2472 n 11. That is, Miller relied on Graham and Roper for the general
principle of law that juveniles possess different mental faculties than adults, so the United
States Constitution requires that they be treated differently than adults for sentencing
purposes with respect to the imposition of capital punishment and sentences of life
without parole. Although this principle of law explains why the United States Supreme
Court found it necessary to adopt the rule in Miller, it has no bearing on the actual form
and effect of the rule adopted in Miller. Accordingly, because the form and effect of a
rule rather than the principle underlying the rule’s formation controls whether the rule
must be applied retroactively under federal retroactivity rules, whether Miller must be
applied retroactively will center on whether a rule with a form and effect similar to the
rules in Woodson, Lockett, and Eddings (rather than Roper and Graham) is the type of
the Court did not. The dissent in this case further errs in its attempt to read the rule in
Miller and the rule proposed by Justice Breyer as one and the same. See post at 19 n 67.
Whereas the rule proposed by Justice Breyer draws a bright line, foreclosing the state’s
ability to impose a sentence of life without parole for a juvenile convicted of a homicide
offense in which the juvenile offender did not kill or intend to kill, the rule in Miller does
not foreclose imposing a life-without-parole sentence on such an offender. This is
because the rule in Miller, unlike that proposed by Justice Breyer, requires a sentencer to
look at not only the circumstances of the offense, but also at the characteristics of the
defendant such that a juvenile homicide offender who did not kill or intend to kill could
be sentenced to life without parole if the offender, for example, possessed a prior criminal
record, showed no signs of amenability to rehabilitation, and exhibited mental faculties
similar to those possessed by an adult offender.
20
rule entitled to retroactive application under Teague.7 With this in mind, we next define
Teague’s federal retroactivity test so as to determine whether the rule in Miller is entitled
to retroactive application under that test.
B. FEDERAL RETROACTIVITY
1. GENERAL OVERVIEW
There is a “general rule of nonretroactivity for cases on collateral review” when it
comes to applying new constitutional rules to cases that became final before the new rule
was announced.8 Teague, 489 US at 307 (opinion by O’Connor, J). This default rule is
driven by “the principle of finality which is essential to the operation of our criminal
justice system.” Id. at 309. Supporting this same principle are concerns arising from the
burdens placed on the administration of justice when new rules are applied retroactively,
in that “[t]he ‘costs imposed upon the State[s] by retroactive application of new rules of
constitutional law on [collateral review] generally far outweigh the benefits of this
7
The dissent does not appear to dispute that the rule in Miller has the form and effect of
the rules from Woodson, Lockett, and Eddings, rather than those from Roper and
Graham, when it describes the latter decisions as having “forbade” and “prohibited”
specific types of punishments as applied to juveniles while describing Miller as having
“struck down a sentencing scheme.” Post at 5.
8
This general rule of nonretroactivity stands in contrast to the general rule requiring the
retroactive application of new rules to cases that have not become final for purposes of
direct appellate review before the new rule is announced. Griffith v Kentucky, 479 US
314, 328; 107 S Ct 708; 93 L Ed 2d 649 (1987).
21
application.’ ”9 Id. at 310, quoting Solem v Stumes, 465 US 638, 654; 104 S Ct 1338; 79
L Ed 2d 579 (1984) (second alteration in original).
For this reason, the first inquiry in which a court must engage when determining
whether a rule applies retroactively to cases presented on collateral review concerns
whether the rule constitutes a “new rule” as defined by Teague, 489 US at 299-301(opinion by O’Connor, J.), and Penry v Lynaugh, 492 US 302, 329; 109 S Ct 2934; 106 L
9
By our count, Carp and Davis are 2 of 334 defendants currently serving life-without-
parole sentences in Michigan for crimes committed before they turned 18 years of age
whose sentences became final for purposes of direct review before the Supreme Court’s
decision in Miller. To fully understand the effect of applying Miller retroactively, it may
be helpful to briefly consider the demographics and case histories of the defendants who
would be entitled to resentencing if Miller is applied retroactively. There are at least two
reasons why these factors are relevant to the Miller analysis: first, Miller focuses its
individualized sentencing analysis on the defendant’s circumstances and personal
characteristics at the time of the offense, so any retroactive application of Miller
necessarily requires an analysis specific to that time, however long ago it may have been.
The older the case generally, the greater the state’s interest in finality and, concomitantly,
the more burdensome it is likely to be to accurately reconstruct what characterized the
offense and the offender at that time. Second, because Miller identifies age and mental
development as two consequential factors in determining whether a life-without-parole
sentence is constitutionally permissible for a juvenile offender, that sentence is
increasingly likely to be permissible the closer an offender was to 18 years of age at the
time of the offense. See note 35 of this opinion.
Of the 334 affected defendants, 4 were 14 years of age when they committed their
first-degree-murder offenses, 44 were 15 years of age, 105 were 16 years of age, and 181
were 17 years of age. Of the 181 defendants who were 17 years of age at the time of
their offenses, 28 were within two months of turning 18 years of age, with several of
those individuals within days of turning 18. As for when the defendants were initially
sentenced, 172 of the defendants were sentenced at least 20 years ago, with several
sentenced as early as the mid- to late 1970s. Another 83 defendants were sentenced
between 15 and 20 years ago, 46 were sentenced between 10 and 15 years ago, 33 were
sentenced between 5 and 10 years ago, and none were sentenced within the last 5 years.
22
Ed 2d 256 (1989). Saffle v Parks, 494 US 484, 487; 110 S Ct 1257; 108 L Ed 2d 415(1990). Generally speaking, a rule is “new” if the rule announces a principle of law not
previously articulated or recognized by the courts and therefore “falls outside [the]
universe of federal law” in place at the time defendant’s conviction became final.
Williams v Taylor, 529 US 362, 381; 120 S Ct 1495; 146 L Ed 2d 389 (2000) (opinion by
Stevens, J.). If a rule is not deemed a “new rule,” then the general rule of
nonretroactivity is inapplicable and the rule will be applied retroactively even to cases
that became final for purposes of direct appellate review before the case on which the
defendant relies for the rule was decided. Whorton v Bockting, 549 US 406, 416; 127 S
Ct 1173; 167 L Ed 2d 1 (2007). If, however, a rule is deemed a “new rule,” then the
general rule of nonretroactivity does apply. See Saffle, 494 US at 494
When a rule is deemed a “new rule” and the general rule of nonretroactivity
applies, a court must then engage in Teague’s second inquiry, to wit, whether the “new
rule” satisfies one of Teague’s two exceptions to the general rule of nonretroactivity for
new rules. See id. If the “new rule” satisfies either of Teague’s two exceptions, then it
will be applied retroactively. Id. If, however, the “new rule” fails to satisfy either of
those exceptions, the rule will only be entitled to prospective application. Id. Whorton
succinctly summarized Teague’s two exceptions to the general rule of nonretroactivity as
follows:
A new rule applies retroactively in a collateral proceeding only if (1)
the rule is substantive or (2) the rule is a “ ‘watershed rul[e] of criminal
procedure’ implicating the fundamental fairness and accuracy of the
criminal proceeding.” [Whorton, 549 US at 416, quoting Saffle, 494 US at
495, quoting Teague, 489 US at 311 (opinion by O’Connor, J.) (alteration
in original).]
23
2. “NEW RULE”
Turning to the first inquiry of the retroactivity analysis, whether the rule in Miller
is “new,” we note that the United States Supreme Court has defined a rule as “new” when
the rule “ ‘breaks new ground,’ ‘imposes a new obligation on the States or the Federal
Government,’ or was not ‘dictated by precedent existing at the time the defendant’s
conviction became final.’ ” Saffle, 494 US at 488, quoting Teague, 489 US at 301(opinion by O’Connor, J.) (emphasis omitted). Essential to any of these bases for finding
that a rule is “new” is the question of whether “all reasonable jurists would have deemed
themselves compelled to accept” the rule at the time defendant’s conviction became final.
Graham v Collins, 506 US 461, 477; 113 S Ct 892; 122 L Ed 2d 260 (1993) (emphasis
added). The fact that a “decision is within the ‘logical compass’ of an earlier decision . . .
is not conclusive for purposes of deciding whether the current decision is a ‘new rule’
under Teague.” Butler v McKellar, 494 US 407, 415; 110 S Ct 1212; 108 L Ed 2d 347(1990). In determining whether the rule in Miller is “new,” this Court inquires whether
before Miller courts of this state, if presented with a constitutional challenge to our pre-
Miller sentencing statutes, would have felt bound to declare those statutes
unconstitutional for the reasons expressed in Miller.
It is apparent, in our judgment, that the rule in Miller constitutes a new rule.
Miller imposed a hitherto-absent obligation on state and lower federal courts to conduct
individualized sentencing hearings before imposing a sentence of life without parole on a
juvenile homicide offender. As part of this process, a prosecutor seeking a life-without-
parole sentence must now present evidence of aggravating factors relevant to the offender
and the offense, juvenile defendants must be afforded the opportunity and the financial
24
resources to present evidence of mitigating factors relevant to the offender and the
offense, psychological and other evaluations relevant to the youthfulness and maturity of
the defendants must be allowed, and courts must now embark upon the consideration of
aggravating and mitigating evidence offered regarding juvenile defendants as a condition
to imposing sentences that previously required no such consideration. It thus seems
certain as a result of Miller that a considerable number of juvenile defendants who would
previously have been sentenced to life without parole for the commission of homicide
offenses will have a lesser sentence meted out. Under Teague and Saffle, these new
obligations clearly render the rule in Miller a new rule. We are not aware of any
statement of this Court by any justice before Miller that argued in support of, or
anticipated, the constitutional requirements set forth in that decision. Unless every
affirmation by this Court of a sentence of life without parole on a juvenile offender
before Miller, including those that followed decisions such as Roper, Graham, Eddings,
and Lockett, can be characterized as “unreasonable,” there cannot be serious argument
that Miller did not define a “new rule.”
Although Miller may be “within the logical compass” of earlier decisions, and
built upon their foundation, cases predating Miller can hardly be read as having
“dictated” or “compelled” Miller’s result. Miller undoubtedly broke new ground in that it
set forth the first constitutional rule to mandate individualized sentencing before
noncapital punishment can be imposed. In this respect, the capital-punishment cases,
although providing a model for the form and effect of Miller, would not have required a
25
reasonable jurist to conclude that a life-without-parole sentence for a juvenile could only
be constitutionally imposed following an individualized sentencing hearing.
Turning to the juvenile cases, Roper also dealt exclusively with the imposition of
capital sentences without discussing the constitutionality of life-without-parole sentences
and the need for individualized sentencing hearings. While Graham’s focus was on life-
without-parole sentences, its constitutional rule was limited to nonhomicide offenses, and
it did not make individualized sentencing the constitutional threshold for imposing a
sentence of life without parole. Furthermore, while Graham drew a comparison between
life-without-parole sentences for juvenile offenders and capital punishment, which was
pivotal in deciding Miller, Graham also stopped well short of finding the two
punishments equivalent. See Graham, 560 US at 69. This is evident by Graham’s
reference to life without parole as “ ‘the second most severe penalty permitted by law,’ ”
id., quoting Harmelin v Michigan, 501 US 957, 1001; 111 S Ct 2680; 115 L Ed 2d 836(1991) (Kennedy, J., concurring in part), and its description of capital punishment as
“ ‘unique in its severity and irrevocability,’ ” id., quoting Gregg, 428 US at 187(emphasis added). Accordingly, although Roper and Graham could certainly be argued
as being part of a longer-term movement toward application of the individualized
sentencing capital-punishment cases to life-without-parole sentences for juvenile
homicide offenders, Graham itself nowhere compelled or dictated this application. Since
before Miller a court of this state could have reasonably rejected a constitutional
challenge to Michigan’s pre-Miller sentencing scheme similar to that raised in Miller,
Miller is clearly a “new rule.”
26
3. PROCEDURE VERSUS SUBSTANCE
Concluding that Miller announced a new rule, we turn to the second inquiry,
whether the rule in Miller fits within one of Teague’s two “narrow exceptions” to the
general rule of nonretroactivity. Saffle, 494 US at 486. At the outset, we note that
neither Carp nor Davis advanced any argument before this Court suggesting that Miller
should be applied retroactively under the second exception, the “watershed rule of
criminal procedure” exception. Accordingly, we consider any argument regarding Miller
identifying a “watershed rule of criminal procedure” unpreserved, and we will only
consider whether the rule in Miller fits within the first exception to the general rule of
nonretroactivity.10
The first exception differentiates between new substantive rules and new
procedural rules, allowing for the retroactive application of only the former. See
Whorton, 549 US at 417; Schriro v Summerlin, 542 US 348, 351-352; 124 S Ct 2519; 159
10
Nonetheless, we observe that
[i]n order to qualify as watershed, a new rule must meet two requirements.
First, the rule must be necessary to prevent an impermissibly large risk of
an inaccurate conviction. Second, the rule must alter our understanding of
the bedrock procedural elements essential to the fairness of a proceeding.
[Whorton, 549 US at 418 (citations and quotation marks omitted).]
In applying this standard, the only rule that the United States Supreme Court has ever
identified as a “watershed rule” for purpose of Teague’s second exception is the rule
drawn from Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963),
which established that the Sixth Amendment included the right to appointed counsel at
trial for indigent defendants. See Whorton, 549 US at 419. Furthermore, the sentencing
rule in Miller has no possible effect in preventing any “impermissibly large risk of an
inaccurate conviction” and pertains to no “bedrock procedural elements essential to the
fairness of a proceeding.”
27
L Ed 2d 442 (2004). The origin of the first exception predates Teague, as that decision
drew the contours of this exception from Justice Harlan’s partial concurrence and partial
dissent in Mackey v United States, 401 US 667; 91 S Ct 1160; 28 L Ed 2d 404 (1971).
Teague, 489 US at 311 (opinion by O’Connor, J.). In speaking of the “general” rule
against retroactive application of new constitutional rules, Justice Harlan commented that
the Court’s
discussion is written only with new ‘procedural due process’ rules in mind,
that is, those applications of the Constitution that forbid the Government to
utilize certain techniques or processes in enforcing concededly valid
societal proscriptions on individual behavior. New ‘substantive due
process’ rules, that is, those that place, as a matter of constitutional
interpretation, certain kinds of primary, private individual conduct beyond
the power of the criminal law-making authority to proscribe, must, in my
view, be placed on a different footing [and afforded retroactive
application]. [Mackey, 401 US at 692 (Harlan, J., concurring in the
judgments in part and dissenting in part).]
Justice Harlan supported this differentiation by emphasizing that retroactive application
of a substantive rule “represents the clearest instance where finality interests should
yield” because “[t]here is little societal interest in permitting the criminal process to rest
at a point where it ought properly never to repose.” Id. at 693. Contrasting the
retroactive application of a substantive rule with that of a procedural rule, Justice Harlan
proceeded to offer the observation that the retroactive application of a substantive rule
“entails none of the adverse collateral consequences of retrial” certain to follow the
retroactive application of a procedural rule. Id. This is because a substantive rule
precludes the possibility of retrial given that its application dictates a single result for the
class of individuals or type of conduct formerly regulated by the old rule and now
28
governed by the new rule. It is in this sense that categorical rules, such as those derived
from the juvenile-sentencing strand of precedent, are substantive because they have a
“form and effect” that always results in the imposed punishment being unconstitutional,
i.e., they produce a “single result.” Conversely, noncategorical rules, such as those
derived from the capital-punishment strand of precedent-- and Miller-- are procedural
because they have a “form and effect” that does not always result in the imposed
punishment being unconstitutional, i.e., they do not produce a “single result.” The latter
rules merely require a court to perform a new or amended analysis before it can be
determined whether a given punishment can be imposed on a particular defendant.
Teague subsequently adopted Justice Harlan’s distinction between procedural and
substantive rules, including the definition of when a rule is substantive. Teague, 489 US
at 310-311 (opinion by O’Connor, J.). Since Teague, the United States Supreme Court
has continued to recognize that the exceptions proposed by Justice Harlan in his opinion
in Mackey were adopted in Teague. See, e.g., Danforth v Minnesota, 552 US 264, 273-
275; 128 S Ct 1029; 169 L Ed 2d 859 (2008); Penry, 492 US at 329-330; see also
Schriro, 542 US at 362 (Breyer, J., dissenting).
Although Teague addressed whether a new rule germane to the trial stage of a
criminal case could be applied retroactively, later cases have addressed whether new
rules pertaining only to punishments and the sentencing phase are substantive and fit into
Teague’s first exception to the general rule of nonretroactivity. In so doing, the United
States Supreme Court has provided three descriptions of what makes a new rule
“substantive” within the context of a new rule governing the sentencing stage of a
29
criminal case. Each of these, however, can be boiled down to whether the punishment
imposed is one that the state has the authority to, and may constitutionally, impose on an
individual within the pertinent class of defendants.
First, a new rule has been described as “substantive” when the rule “prohibit[s] a
certain category of punishment for a class of defendants because of their status or
offense.” Penry, 492 US at 330; see also Saffle, 494 US at 494-495. Put another way,
the new rule is “substantive” when the punishment at issue is categorically barred. The
requirement that the new rule be “categorical” in its prohibition is the direct product of
how Justice Harlan’s first exception has been understood. That is, his first exception
permits the retroactive application of “substantive categorical guarantees accorded by the
Constitution, regardless of the procedures followed.” Penry, 492 US at 329 (emphasis
added); see also Saffle, 494 US at 494.
Second, a new rule has been described as “substantive” if it “alters the range of
conduct or the class of persons that the law punishes.” Schriro, 542 US at 353, citing
Bousley v United States, 523 US 614, 620-621; 118 S Ct 1604; 140 L Ed 2d 828 (1998).
The dissent contends that when a new rule “expand[s] the range of punishments”
available to the sentencer, the rule fits within this second description of a new rule as
substantive. Post at 19-20. Although a new rule could potentially be viewed as altering
the range of punishments available to the sentencer when the rule makes a previously
unavailable lesser punishment available to the sentencer, the United States Supreme
Court has adopted a different definition for when a new rule “alters the range” of
available punishments. We are bound to abide by that definition when considering the
30
rule in Miller for federal retroactivity purposes. Under that definition, a new rule alters
the “range of conduct” that the law can punish when it “place[s] particular conduct or
persons covered by the statute beyond the State’s power to punish.” Schriro, 542 US at
352 (emphasis added) (citations omitted). In this sense, the new rule transforms the
conduct in which the defendant engaged, and which was previously within the state’s
power to regulate, into conduct that is no longer subject to criminal regulation. Applied
in the context of rules governing sentencing and punishment, it must be the case that
under the previous rule, the defendant “faces a punishment that the law cannot [any
more] impose upon him” in light of the new rule. Id. In this sense, a new rule only
“alters the range” of punishments available to the sentencer if it shifts the upper limits of
the range of punishments downward so that the previously most severe punishment to
which defendants have been sentenced is no longer a punishment that the sentencer may
constitutionally impose.11
Third, a new rule has been described as “substantive” when it “narrow[s] the scope
of a criminal statute by interpreting its terms . . . .” Id. at 351, citing Bousley, 523 US at
620-621 (emphasis added). This third description addresses situations in which a
criminal statute has previously been interpreted and applied beyond the statute’s intended
11
Although the dissent argues that Schriro’s definition of a rule that alters the range of
punishments is “inclusive and not exclusive,” post at 20 n 68, the dissent fails to identify
a single Supreme Court decision that classifies a rule as “altering the range” of
punishments when the rule requires the sentencer to consider a lesser punishment, but
does not exclude any punishment from the range of punishments that may be considered.
Despite no such decision, the dissent would make retroactive a type of rule that the
Supreme Court has never before granted retroactive status under Teague’s first exception
to the general rule of nonretroactivity.
31
scope so that the “defendant stands convicted of ‘an act that the law does not make
criminal.’ ” Bousley, 523 US at 620, quoting Davis v United States, 417 US 333, 346; 94
S Ct 2298; 41 L Ed 2d 109 (1974).12 Put another way, this description is implicated
when a court, rather than a legislature, has criminalized conduct, authorized punishment,
or construed a statute to apply more broadly than it is later deemed to apply. See id. at
620-621 (“For under our federal system it is only Congress, and not the courts, which can
make conduct criminal.”). In this sense, the state cannot constitutionally impose the
punishment at issue because the new rule determines that no lawfully enacted statute has
given the state the authority to impose such a punishment.
In distinguishing what makes a new rule substantive, the United States Supreme
Court has also afforded considerable direction regarding the qualities and contours of
nonsubstantive, or procedural, rules. Simply put, “rules that regulate only the manner of
determining the defendant’s culpability are procedural.” Schriro, 542 US at 353. This is
because a rule that alters the “manner of determining” culpability “merely raise[s] the
possibility that someone convicted with use of the invalidated procedure might have been
acquitted otherwise.” Id. at 352. Applying this understanding to new rules governing
sentences and punishments, a new procedural rule creates the possibility that the
defendant would have received a less severe punishment but does not necessitate such a
result. Accordingly, a rule is procedural when it affects how and under what framework
12
Notable to the scope and application of this third description, both Bousley and Davis
involved collateral attacks to federal criminal convictions in which such attacks were
dependent on the interpretation of federal law, rather than the development of a new
constitutional rule.
32
a punishment may be imposed but leaves intact the state’s fundamental legal authority to
seek the imposition of the punishment on a defendant currently subject to the punishment.
Turning to how the United States Supreme Court has applied this distinction
between substantive and procedural rules, in Schriro the Court was confronted with
whether the new rule from Ring v Arizona, 536 US 584; 122 S Ct 2428; 153 L Ed 2d 556(2002), was substantive or procedural. Ring’s rule invalidated Arizona’s capital-
punishment sentencing scheme and required that a jury rather than a judge make the
determination whether aggravating factors necessary for the imposition of capital
punishment had been proved. Id. at 609. Despite the fact that Ring invalidated Arizona’s
statutory sentencing scheme authorizing capital punishment, its rule was ultimately
deemed “procedural” on the basis that it
did not alter the range of conduct Arizona law subjected to the death
penalty. . . . Instead, Ring altered the range of permissible methods for
determining whether a defendant's conduct is punishable by death,
requiring that a jury rather than a judge find the essential facts bearing on
punishment. Rules that allocate decisionmaking authority in this fashion
are prototypical procedural rules, a conclusion we have reached in
numerous other contexts. [Schriro, 542 US at 353.]
In Saffle, the Court similarly deemed a new rule “procedural” when it would have
prohibited anti-sympathy instructions to juries performing the individualized sentencing
process as a condition to imposing capital punishment. See Saffle, 494 US at 486. In
doing so, Saffle stated that the rule “would neither decriminalize a class of conduct nor
prohibit the imposition of capital punishment on a particular class of persons.” Id. at 495.
It is with Schriro and Saffle in mind that we turn to the question of whether the rule in
Miller is properly viewed as substantive or procedural.
33
Although the new procedures required by Miller may be more elaborate and
detailed than the new procedures at issue in Schriro and Saffle, the basic form and effect
is the same. As discussed earlier, Miller requires that the trial court “follow a certain
process” before it can impose a sentence of life without parole on a juvenile homicide
offender. Miller, 567 US at ___; 132 S Ct at 2471. Miller, however, specifically “does
not categorically bar a penalty for a class of offenders or type of crime[.]” Id. at ___; 132
S Ct at 2471.
Considering Miller’s self-description of its rule, it is clear that the rule is not
substantive within the terms of the first description of when a rule is substantive, i.e.,
when the rule “prohibit[s] a certain category of punishment for a class of defendants
because of their status or offense.” Penry, 492 US at 330; see also Saffle, 494 US at 494.
The category of punishment implicated by Miller is a sentence of “life without parole,”13
the class of defendants receiving the benefit of Miller are juvenile defendants who are
under the age of 18 at the time they commit their offenses, and the types of offenses
implicated by Miller are homicide offenses. Accordingly, for Miller to be considered
“substantive” under the first description of when a rule is substantive, it must prohibit
sentences of life without parole for juvenile offenders under the age of 18 who are
13
Carp and Davis argue that the sentence imposed on them was a sentence of
“mandatory” life without parole. Regardless of the process by which a defendant is
sentenced to life without parole, however, the term that the defendant serves is simply life
without parole. Had, for instance, Carp and Davis received all the procedural protections
afforded by Miller before being sentenced, the terms they would serve in prison would be
identical. The specific manner in which a defendant is sentenced, i.e., by operation of
law or as a result of individualized sentencing, does not alter the actual sentence rendered
or the length of time the defendant must remain in prison.
34
convicted of homicide offenses, and clearly Miller does no such thing. Instead, as with
the procedural rules in Schriro and Saffle, and the rules from the capital-punishment cases
of Woodson, Lockett, and Eddings, Miller creates only the possibility that a defendant
may have received a lesser punishment had the trial court employed the new process that
is constitutionally required by Miller.
The second description of when a rule is substantive is equally of no avail to Carp
and Davis because a rule is substantive under that description only when it alters the
range of punishments that a state is permitted to impose by foreclosing the state’s ability
to impose the punishment defendant is serving. See Schriro, 542 US at 353. In this
sense, a rule is only substantive if it acts to ratchet down the previously most severe
punishment possible. Conversely, and contrary to the dissent, a rule will be considered
procedural if it merely expands the range of possible punishments that may be imposed
on the defendant. Applied to Michigan’s sentencing scheme, Miller now requires the
sentencer to consider imposing a sentence of life with the possibility of parole, but it does
not require the sentencer to exclude from consideration a sentence of life without parole.
Accordingly, Miller does not remove the punishment imposed on Carp and Davis from
within the range of punishments the state has the power to impose. Accordingly, the rule
in Miller again cannot be viewed as substantive under the second United States Supreme
Court description.
The third description of when a rule is substantive is altogether inapplicable to
Miller. The decision did not rest on any principle of statutory interpretation, and it did
not pertain to a situation in which life-without-parole sentences were being imposed on
35
juvenile homicide offenders absent clear statutory authority to do so. Just as Carp and
Davis were sentenced to life without parole in full accordance with Michigan’s statutory
sentencing scheme, Miller was sentenced to life without parole in full accordance with
Alabama’s statutory sentencing scheme. See Miller, 567 US at ___; 132 S Ct at 2462-
2643.
Ultimately, the rule in Miller is procedural because, as with the rule in Ring, it
merely shifts “decisionmaking authority” for the imposition of a life-without-parole
sentence on a juvenile homicide offender.14 Schriro, 542 US at 353. Whereas Ring
shifted decision-making authority for imposing capital punishment from the judge to the
jury, Miller shifted decision-making authority for imposing a sentence of life without
parole on a juvenile homicide offender from the legislature to the judiciary, by way of its
individualized sentencing requirements.15 Although the process set forth in Miller is
14
The dissent asserts that the rule in Miller, although having “procedural implications,” is
nonetheless substantive because it invalidated “an entire ‘sentencing scheme.’ ” Post at
13-14. While the dissent is correct that Miller invalidated Michigan’s sentencing scheme
authorizing the imposition of a life-without-parole sentence for a juvenile homicide
offender, Ring also invalidated Arizona’s sentencing scheme authorizing the imposition
of capital punishment on a homicide offender. As Ring was deemed procedural, it
follows that the distinction between substantive and procedural rules does not turn on
whether the new rule invalidates a sentencing scheme authorizing a punishment. Instead,
the distinction turns on whether the punishment is one that the state may constitutionally
impose under any conceivable sentencing scheme governing the class of defendants to
which the defendant belongs.
15
The dissent argues that while a shift in decision-making authority from a judge to a
jury is procedural, a shift in decision-making authority from the legislature to the
judiciary is substantive because it vests new authority (the authority to impose a lesser
sentence) in the judiciary. Post at 18-20. Although we acknowledge that there is a
difference between these respective shifts in decision-making authority, we do not find
the difference pivotal in determining whether a new rule is substantive or procedural.
36
undoubtedly more favorable to juvenile homicide defendants as a class, the new process
has no effect on Michigan’s inherent authority to lawfully and constitutionally seek the
imposition of a life-without-parole sentence on any and every given juvenile homicide
offender. Just as no court may impose a sentence of life without parole without
conducting an individualized consideration of certain factors, no court relying on Miller
may categorically refuse to impose a sentence of life without parole if the individualized
sentencing factors do not operate in a defendant’s favor. Accordingly, in contrast to a
substantive rule that avoids the adverse collateral consequences of retrial by dictating a
singular result, Mackey, 401 US at 693 (Harlan, J., concurring in the judgments in part
and dissenting in part), retroactive application of Miller necessarily requires this adverse
collateral consequence. In this regard, the rule in Miller in no reasonable way can be said
to “represent[] the clearest instance where finality interests should yield.” Id. (emphasis
added). Because Miller continues to permit Michigan to impose a life-without-parole
sentence on any juvenile homicide offender (but only after individualized consideration),
it must necessarily be viewed as procedural rather than substantive. Therefore, we hold
This is because the question at hand is not focused on whether the judiciary’s or the
legislature’s or the executive’s authority has changed as a function of the new rule, but
inquires only whether the punishment imposed is one that is beyond the state’s or the
law’s power to impose. Schriro, 542 US at 352 (defining a rule as substantive when it
“place[s] particular conduct or persons covered by the statute beyond the State’s power to
punish” or means that the defendant “faces a punishment that the law cannot [any more]
impose upon him”) (emphasis added). Both before and after Miller the state of Michigan
possessed the authority to constitutionally impose a sentence of life without parole on a
juvenile homicide offender.
37
that the rule in Miller does not satisfy the first exception to the general rule of
nonretroactivity in Teague.
An additional consideration serves to strengthen this conclusion. In its description
of the rule in Miller, the articulation employed by the United States Supreme Court is
telling. Teague’s retroactivity analysis distinguishing substantive and procedural rules is
in no sense new or novel. Rather, the proposition that “substantive categorical
guarantees” should receive retroactive application while “procedural noncategorical
guarantees” should only receive prospective application predates Teague. See Penry, 492
US at 329. In the face of this reasonably well-defined and longstanding distinction,
Miller, in describing the nature and scope of its rule, repeatedly employs language
typically associated with nonretroactive procedural rules. Although fully recognizing
that Roper and Graham announced “categorical” bars, Miller twice states that its rule
does not create a “categorical” bar. Miller, 567 US at ___; 132 S Ct at 2469, 2471.
Furthermore, Miller, in straightforward terms, speaks of its rule as one that “mandates
only that a sentencer follow a certain process[.]” Id. at ___; 132 S Ct at 2471 (emphasis
added). It is hard to view these statements as anything other than expressions of
continuity in the Court’s understanding of the law of retroactivity, particularly in a
circumstance in which the four justices of the Supreme Court who were presumably the
least inclined to extend Miller to a broader range of cases-- the dissenting justices who
had rejected the new rule in the first place-- were absent from the majority opinion.16
16
One of the critical divides between how this majority resolves the question of Miller’s
retroactivity and how the dissent resolves the same question centers on the significance
each accords to the words the Supreme Court chose to use in describing the rule in
38
Carp advances three arguments in an effort to overcome our conclusion that Miller
does not qualify for retroactive application under Teague. First, he argues that each of
the strands of precedent that underlie Miller has been granted retroactive status. While
there may be considerable force to the argument that categorical rules like those in Roper
and Graham must be applied retroactively under Teague, the same cannot be said for the
strand of cases requiring individualized sentencing before capital punishment can be
imposed on an adult offender. Despite considerable effort by Carp, including post-oral-
argument supplemental briefings, we remain unpersuaded that the United States Supreme
Court, or even any federal court of appeals,17 has declared any of the individualized
sentencing capital-punishment cases retroactive under Teague.
Miller. Despite its many thoughtful arguments, the dissent is unable to explain why the
Supreme Court, if it genuinely intended for the rule in Miller to be applied retroactively
under Teague, specifically stated that the rule in Miller does not “categorically bar a
penalty,” Miller, 567 US at ___; 132 S Ct at 2471, when the “categorical bar” versus
“noncategorical bar” distinction defines the critical element of the retroactivity analysis
in Teague. The dissent contends that by focusing on “categorical” versus
“noncategorical” distinction, the majority “muddles” the Teague analysis. Post at 14.
However, it is the dissent that misapprehends Teague by its conclusion that the rule in
Miller is entitled to retroactive relief despite its acknowledgement that Miller did not
categorically bar life-without-parole sentences for juveniles. Id. Neither defendants nor
the dissent has identified a single Supreme Court decision that has ever concluded that a
noncategorical rule is entitled retroactive application under the first of Teague’s two
exceptions to the general rule of nonretroactivity. From this, we can only reason that
Teague does not merely stand for the proposition, as the dissent asserts, that a categorical
rule is substantive, but also for the proposition that a rule is substantive only when it is
categorical.
17
We include federal courts of appeal in our discussion because Carp cites federal courts
of appeal decisions for the proposition that the capital-punishment strand of precedent has
been applied retroactively.
39
In an effort to demonstrate to the contrary, Carp principally cites Sumner, in which
the United States Supreme Court held that individualized sentencing was required before
capital punishment could be imposed on a defendant, Shuman, who was serving a life-
without-parole sentence at the time he committed the capital offense. Sumner, 483 US at
80-81. Carp is correct that Sumner relied on Woodson in creating its rule, id. at 70-75,
and is also correct that Sumner involved the review of a state conviction on collateral
habeas review, see id. at 68. However, not all cases presenting themselves on collateral
review are equivalent for retroactivity purposes. Some cases on collateral review assert
that state courts failed to properly apply constitutional rules in effect before the
defendant’s conviction became final, while others seek the application or creation of a
new rule that was not announced before the defendant’s conviction became final.
If, with respect to the application of Woodson, Sumner fell into the latter category,
then we might agree with Carp that Woodson had been applied retroactively. Sumner, as
it relates to the application of Woodson, however, falls into the former category of cases
presenting themselves on collateral review. Woodson was decided on July 2, 1976, and
Shuman’s conviction did not become final for direct review purposes until May 17, 1978,
nearly two years after Woodson was decided. See Shuman v State, 94 Nev 265; 578 P2d
1183 (1978). Accordingly, to the extent that Woodson was applied in Sumner, it was
simply not applied retroactively to a case that had become final for direct review
purposes before Woodson was issued.18
18
We further note that even if Sumner had applied Woodson retroactively to a case that
had become final for direct review purposes before Woodson was announced, it still
would not follow that Woodson qualified for retroactive application under Teague. This
40
Apparently anticipating these flaws in the argument that Woodson has been
applied retroactively, Carp contends that Sumner itself has been applied retroactively
post-Teague. For this proposition, he cites Thigpen v Thigpen, 926 F2d 1003, 1005 (CA
11, 1991). We, however, do not read Thigpen as addressing the question of Sumner’s
retroactivity. Although the district court below had applied Sumner retroactively to
invalidate Thigpen’s sentence, that portion of the district court’s ruling was never
appealed and the only issue before the United States Court of Appeals for the Eleventh
Circuit was Thigpen’s appeal concerning whether the district court had erred by
upholding his conviction. See id.19
Accordingly, Carp has not succeeded in demonstrating that any of the
individualized sentencing capital-punishment cases, i.e., Furman, Woodson, Lockett,
is because Sumner was decided in 1987 and Teague, in which a plurality of the United
States Supreme Court announced the current federal retroactivity test, was not decided
until 1989. It is for this same reason that we reject Carp’s contention that the retroactive
application of Lockett’s rule in Songer v Wainwright, 769 F2d 1488, 1489 (CA 11, 1985),
and Dutton v Brown, 812 F2d 593, 599 n 7 (CA 10, 1987), carries any weight with regard
to whether those courts applying Lockett retroactively would have done so under Teague.
The same can also be said about the significance of the retroactive application of the rule
from Furman as acknowledged in Michigan v Payne, 412 US 47, 57 n 14; 93 S Ct 1966;
36 L Ed 2d 736 (1973).
19
In framing the issue before the court, the Eleventh Circuit stated:
On appeal, Thigpen raises only one issue: whether the admission of
evidence that he was convicted in 1972 of another first-degree murder and
received a death sentence . . . rendered his trial so fundamentally unfair that
he was convicted without the due process of law. For the reasons set forth
below, we affirm the district court's conclusion that Thigpen’s conviction
was constitutional. [Thigpen, 926 F2d at 1005.]
41
Eddings, or Sumner, have been applied retroactively under Teague. This failure is pivotal
given our earlier conclusion that the rule in Miller is of the same form and effect as the
rules in the individualized sentencing capital-punishment cases.
Second, Carp argues that Miller has added “age” and “incorrigibility” as elements
of what must be assessed before a life-without-parole sentence can be imposed on a
juvenile offender. Carp argues that it follows from this that age and the juvenile
offender’s incorrigibility are aggravating factors that raise the mandatory minimum
sentence that a defendant could receive under Michigan’s pre-Miller sentencing scheme
because they must now be shown by the state before a juvenile offender can be sentenced
pursuant to MCL 750.316(1) and MCL 791.234(6). Citing Alleyne v United States, 570
US ___; 133 S Ct 2151, 2155; 186 L Ed 2d 314 (2013), Carp notes that “any fact that
increases the mandatory minimum is an ‘element’ that must be submitted to the jury.”
Accordingly, he argues that the rule in Miller must be viewed as substantive and applied
retroactively when it is considered in light of Alleyne because Miller combined with
Alleyne substantively alters the way Michigan law defines and sentences juvenile
homicide offenders.
Even assuming for the sake of argument that Miller made assessments of “age”
and “incorrigibility” necessary elements for imposing a life-without-parole sentence on a
juvenile homicide offender, Carp’s argument still fails.20 This is because his argument
20
Because Carp’s argument fails here, we find it unnecessary to address whether Miller
adds the elements of age and incorrigibility to what must be found before a life-without-
parole sentence may be imposed on a juvenile homicide offender. We do note that
Miller’s repeated statements that individualized sentencing hearings could occur before a
“judge or jury,” Miller, 567 US at ___; 132 S Ct at 2460, 2470, 2475, tend to suggest that
42
relies on the new rule adopted in Alleyne and therefore Alleyne itself would need to
qualify for retroactive application to have any bearing on the instant case. Carp,
however, has failed to even argue, much less persuade this Court, that Alleyne established
a substantive rule entitled to retroactive application under Teague. Absent being so
persuaded, we treat the rule in Alleyne as a procedural rule entitled only to prospective
application.21 Accordingly, to the extent that we view Alleyne as establishing a
nonretroactive procedural rule, Alleyne may not be bootstrapped onto the rule in Miller to
transform the latter from a nonretroactive procedural rule into a retroactive substantive
rule.
Miller did not make age or incorrigibility aggravating elements because under Alleyne
aggravating elements that raise the mandatory minimum sentence “must be submitted to
the jury and found beyond a reasonable doubt,” Alleyne, 570 US at ___; 133 S Ct at 2155.
(Emphasis added.) However, because Alleyne was decided after Miller, Miller’s
reference to individualized sentencing being performed by a “judge or jury” might
merely be instructive on the issue but not dispositive. As none of the defendants before
this Court asserts that his sentence is deficient because it was not the product of a jury
determination, we find it unnecessary to further opine on this issue and leave it to another
day to determine whether the individualized sentencing procedures required by Miller
must be performed by a jury in light of Alleyne.
21
Treating Alleyne as a procedural rule is consistent with how multiple federal courts
have resolved the issue of whether Alleyne is procedural or substantive for federal
retroactivity purposes. See, e.g., Simpson v United States, 721 F3d 875, 876 (CA 7,
2013) (comparing Alleyne to the rule from Apprendi v New Jersey, 530 US 466; 120 S Ct
2348; 147 L Ed 2d 435 (2000), which has been held to be procedural); United States v
Evans, ___ F Supp 2d ___ (WD Ark, February 25, 2014, Case Nos. 1:11-CR-10012 and
1:13-CV-1025), citing United States v Lara-Ruiz, 721 F3d 554, 557 (CA 8, 2013);
Willoughby v United States, ___ F Supp 2d ___ (WD NC, September 17, 2013, Case Nos.
3:13-CV-493-FDW and 3:99-CR-24-FDW-6).
43
Third, Carp cites Miller’s companion case of Jackson v Hobbs as evidence that
Miller has already been accorded retroactive status, and therefore presumably that the
present judicial exercise has been rendered unnecessary. In offering this argument, Carp
is correct that Jackson presented itself on collateral review and that the case was
remanded for resentencing pursuant to the rule announced in Miller. Miller, 567 US at
___; 132 S Ct at 2475. Accordingly, Carp also correctly notes that Jackson received
retroactive relief under Miller. Id. at ___; 132 S Ct at 2475. That being said, the fact that
Jackson received the benefit of Miller being applied retroactively does not lead to the
conclusion that Miller must be applied retroactively to any other defendant. This is
because the assertion that a rule is nonretroactive is an “affirmative defense,” available to
a prosecutor in objection to collateral relief being sought by a defendant. Thompson v
Runnels, 705 F3d 1089, 1099 (CA 9, 2013) (noting that Caspari v Bohlen, 510 US 383,
389; 114 S Ct 948; 127 L Ed 2d 236 (1994) held that “ ‘a federal court may, but need not,
decline to apply Teague if the State does not argue it,’ but ‘if the State does argue that the
defendant seeks the benefit of a new rule of constitutional law, the court must apply
Teague before considering the merits of the claim’ ”). As such, the nonretroactivity
argument must be affirmatively raised by the state and when it is not raised, it is waived:
Since a State can waive the Teague bar by not raising it, and since the
propriety of reaching the merits of a dispute is an important consideration
in deciding whether or not to grant certiorari, the State’s omission of any
Teague defense at the petition stage is significant. Although we
undoubtedly have the discretion to reach the State’s Teague argument, we
will not do so in these circumstances. [Schiro v Farley, 510 US 222, 229;
114 S Ct 783; 127 L Ed 2d 47 (1994) (citation omitted).]
44
In this sense, a defense premised on the nonretroactivity of a new rule is “not
‘jurisdictional’ ” in nature, and the court does not have any duty sua sponte to conduct a
retroactivity analysis. Collins v Youngblood, 497 US 37, 41; 110 S Ct 2715; 111 L Ed 2d
30 (1990). Rather, because the question of retroactivity is “grounded in important
considerations of federal-state relations,” a state is free to “[choose] not to rely on
Teague” without the federal courts’ invalidating that choice. Id. By opting not to raise
the defense in Jackson, the defense was waived and the question whether Miller should
be applied retroactively was never presented to the United States Supreme Court.22
Carp, however, contends that “principles of even-handed justice” dictate that the
rule in Miller be applied retroactively in his case since it was applied retroactively in
Jackson’s case. He draws his argument from Teague, wherein the United States Supreme
Court stated:
We can simply refuse to announce a new rule in a given case unless the rule
would be applied retroactively to the defendant in the case and to all others
similarly situated. . . . We think this approach is a sound one. Not only
does it eliminate any problems of rendering advisory opinions, it also
avoids the inequity resulting from the uneven application of new rules to
similarly situated defendants. We therefore hold that, implicit in the
retroactivity approach we adopt today, is the principle that habeas corpus
cannot be used as a vehicle to create new constitutional rules of criminal
procedure unless those rules would be applied retroactively to all
defendants on collateral review . . . . [Teague, 489 US at 316 (opinion by
O’Connor, J.) (all but last emphasis added).]
22
Tellingly, with regard to the prosecutor’s intentions in Jackson, we further note that on
remand the prosecutor conceded the defense of retroactivity, but did so only on the basis
“that Jackson is entitled to the benefit of the United [States] Supreme Court’s opinion in
his own case.” See Jackson v Norris, 2013 Ark 175, p 6; 426 SW3d 906 (2013)
(emphasis added).
45
As evidenced by the very quotation on which Carp relies, the application of the
“principles of even-handed justice” only become relevant when the United States
Supreme Court has actually undertaken a retroactivity analysis in the course of
announcing a new rule. If no such analysis is necessary because of the posture of the
case, as here, the Court will obviously not have the occasion to consider whether the new
rule can be applied retroactively to all defendants who are situated similarly to the
defendant before the Court.23 Under those circumstances, the idiosyncrasies, strategies,
or policies and practices of a single prosecutor, among more than 3,000 throughout the
country, cannot possibly be allowed under our system of federalism to determine what
“even-handed justice” requires (and what the law does or does not command) of all
prosecutors in every jurisdiction throughout the country.24
23
The dissent similarly acknowledges that the Supreme Court’s application of the rule in
Miller to Jackson is “inconclusive” about whether the rule should be applied retroactively
and that the relief Jackson received does not mandate the retroactive application of Miller
to any other case. Post at 8 n 31.
24
Although the issue was not raised in any way by any of the defendants, the dissent
argues that Miller is similar to Atkins v Virginia, 536 US 304; 122 S Ct 2242; 153 L Ed
2d 335 (2002), because “considerable discretion” is left to the states by both rules, so that
where Atkins has been applied retroactively, so too should Miller. Post at 22-23. While
the dissent is not incorrect to suggest that Miller and Atkins both allow some discretion to
the states, it fails to examine this issue with greater precision. Atkins held that the Eighth
Amendment bars the imposition of capital punishment on a “mentally retarded offender.”
Atkins, 536 US at 321. Atkins, however, left it to the discretion of the states to establish
criteria for whether a defendant qualifies as “mentally retarded.” Id. at 317.
Accordingly, the discretion left to the states by Atkins pertains to when Atkins applies and
which defendants fall within the universe of defendants governed by Atkins. Once a
defendant is deemed to be mentally retarded, however, the state’s discretion ceases and
Atkins compels the single result that the state is constitutionally prohibited from imposing
capital punishment on the defendant. Under Miller, by contrast, all juveniles are entitled
to individualized sentencing hearings and accordingly the state has no discretion to
46
Having concluded that Miller established a new procedural rule that does not
“categorically bar a penalty,” but instead requires “only that a sentencer follow a certain
process,” Miller, 567 US at ___; 132 S Ct at 2471, and having rejected the arguments in
support of the retroactive application of Miller, we hold that the United States Supreme
Court’s decision in that case does not require retroactive application under Teague. In
light of this holding, we now turn to whether Miller is entitled to retroactive application
under Michigan’s separate test for retroactivity.
C. STATE RETROACTIVITY
Although states must apply a new rule of criminal procedure retroactively when
the new rule satisfies Teague’s exceptions to the general rule of nonretroactivity, they are
permitted to “give broader retroactive effect” to a new rule than is required by Teague.
Danforth, 552 US at 288-289. In this sense, Teague provides a floor for when a new rule
of criminal procedure must be applied retroactively, with a state nonetheless free to adopt
determine when, and to which defendants, Miller applies. Instead, the discretionary
element of Miller only comes into play in selecting a sentence for a defendant after it has
been determined, per Miller, that the defendant is a juvenile by virtue of being under the
age of 18 at the time of the offense. In this regard, the rules announced in Atkins and
Miller have both different forms and different effects. That is, Atkins has the form of a
categorical rule in that after a state has determined that a defendant is “mentally
retarded,” it applies to bar the imposition of capital punishment on that defendant, while
Miller has the form of a noncategorical rule in that it requires individualized sentencing
before a life-without-parole sentence may be imposed on a juvenile homicide offender
but expressly does not bar the imposition of that sentence. Further, the effect of Atkins
will always produce a single result in invalidating the capital sentence of every defendant
who falls within the rule because the defendant is “mentally retarded,” while the effect of
Miller will necessarily result in the imposition of a variety of sentences for different
offenders, creating only the potential that any given juvenile will receive a sentence other
than life without parole.
47
its own broader test for requiring the retroactive application of a new federal or state
constitutional rule. See id. at 289-290.
Michigan has adopted its own separate test for when a new rule of criminal
procedure should be applied retroactively. See Maxson, 482 Mich at 392-393.
Michigan’s test for retroactivity was originally derived from the pre-Teague federal test
set forth in Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965). See
People v Hampton, 384 Mich 669, 674; 187 NW2d 404 (1971).
Despite Michigan’s having adopted its own retroactivity test that may give broader
retroactive effect to some new rules than is mandated by the Teague test, Michigan
nonetheless still adheres to the general principle of nonretroactivity for new rules of
criminal procedure.25 As a result, “Michigan law has regularly declined to apply new
rules of criminal procedure to cases in which a defendant’s conviction has become final.”
Maxson, 482 Mich at 392-393 (citing several examples of new rules of criminal
procedure that this Court declined to apply retroactively under its version of the
25
Contrary to Carp’s and Davis’s assertions, and consistently with the general principle
of nonretroactivity, this Court does not adhere to the doctrine that an unconstitutional
statute is void ab initio. People v Smith, 405 Mich 418, 432-433; 275 NW2d 466 (1979).
In rejecting this doctrine, this Court in Smith, 405 Mich at 432, cited Lemon v Kurtzman,
411 US 192; 93 S Ct 1463; 36 L Ed 2d 151 (1973), which, for federal retroactivity
purposes, departed from the view that an unconstitutional statute is a nullity ab initio.
Smith also quoted Chicot Co Drainage Dist v Baxter State Bank, 308 US 371; 60 S Ct
317; 84 L Ed 329 (1940), for the proposition that a new constitutional rule does not
always nullify past application of the old rule when the old rule was understood to have
conformed with the Constitution at the time it was applied: “ ‘The actual existence of a
statute, prior to such a determination, is an operative fact and may have consequences
which cannot justly be ignored. The past cannot always be erased by a new judicial
declaration.’ ” Smith, 405 Mich at 432, quoting Chicot Co, 308 US at 374.
48
Linkletter test). With Michigan’s predisposition against the retroactive application of
new rules of criminal procedure firmly in mind-- in that only the extraordinary new rule
of criminal procedure will be applied retroactively under Michigan’s test when
retroactivity is not already mandated under Teague-- we proceed to evaluate whether the
rule in Miller satisfies this state test.
Michigan’s test for retroactivity consists of three factors:
“(1) the purpose of the new rule[]; (2) the general reliance on the old
rule[;] and (3) the effect of retroactive application of the new rule on the
administration of justice.” [Maxson, 482 Mich at 393, quoting Sexton, 458
Mich at 60-61, citing Hampton, 384 Mich at 674 (second alteration in
original).]
The first factor, the purpose factor, assesses the nature and focus of the new rule and the
effect the rule is designed to have on the implementation of justice. See People v Young,
410 Mich 363, 366-367; 301 NW2d 803 (1981). Under this first factor, when a new rule
“concerns the ascertainment of guilt or innocence, retroactive application may be
appropriate.” Id. at 367, citing Hampton, 384 Mich 669 (emphasis added). Conversely,
“[w]hen the ascertainment of guilt or innocence is not at stake, prospective application is
possible” because “the purposes of the rule can be effectuated by prospective
application.” People v Markham, 397 Mich 530, 535; 245 NW2d 41 (1976). Consistent
with this standard for when a rule should be applied only prospectively, “a new rule of
procedure . . . which does not affect the integrity of the fact-finding process should be
given [only] prospective effect.” Young, 410 Mich at 367.
Carp contends that Miller, although not implicating his guilt or innocence,
nonetheless, goes to the “integrity of the fact-finding process” because it is essential to
49
evaluating a defendant’s level of culpability when imposing a sentence. In support of this
contention, he cites McConnell v Rhay, 393 US 2, 3-4; 89 S Ct 32; 21 L Ed 2d 2 (1968),
in which pursuant to Linkletter, the United States Supreme Court retroactively applied a
new rule of criminal procedure despite the new rule’s being relevant only to the
sentencing phase.26 As Carp correctly observes, McConnell, in effecting its
proretroactivity holding, stated that “the right being asserted relates to ‘the very integrity
of the fact-finding process.’ ” Id. at 3, quoting Linkletter, 381 US at 639.
Two considerations, however, leave us unpersuaded that this remark necessitates
the conclusion that the first factor of Michigan’s test favors the retroactive application of
Miller. First, the new rule applied retroactively in McConnell addressed the right to
counsel, a right with unique significance both within the context of the criminal
proceeding27 and within the context of the United States Supreme Court’s retroactivity
jurisprudence.28 Given this extraordinary footing of the right to counsel, we read
26
The new rule made retroactive in McConnell was set forth in Mempa v Rhay, 389 US
128; 88 S Ct 254; 19 L Ed 2d 336 (1967), and held that the Sixth Amendment right to
counsel, including the appointment of counsel for indigent defendants, extended to the
sentencing phase of a criminal trial. McConnell, 393 US at 2-3.
27
The Sixth Amendment right to counsel has been described as a right “necessary to
insure fundamental human rights of life and liberty” with “[t]he Sixth Amendment
stand[ing] as a constant admonition that if the constitutional safeguards it provides be
lost, justice will not ‘still be done.’ ” Johnson v Zerbst, 304 US 458, 462; 58 S Ct 1019;
82 L Ed 1461 (1938), citing Palko v Connecticut, 302 US 319, 325; 58 S Ct 149; 82 L Ed
288 (1937). In Gideon, 372 US at 344, the Sixth Amendment right to counsel was
described as “fundamental and essential to fair trials,” such that indigent criminal
defendants facing felony charges are entitled to the appointment of counsel.
28
As McConnell noted, rules extending “a criminal defendant’s right to counsel at trial,
Gideon v. Wainwright, 372 U. S. 335 (1963) ; at certain arraignments, Hamilton v.
50
McConnell’s statement that “the right being asserted relates to ‘the very integrity of the
fact-finding process’ ” as concerning specifically the right to counsel rather than all new
rules that may expand the fact-finding process at sentencing. For this reason, we do not
understand McConnell as necessitating the view that, for retroactivity purposes under the
Linkletter test, rules implicating the fact-finding process at sentencing must be placed on
equal footing with rules implicating the fact-finding process for guilt or innocence.
Second, even if McConnell supported the expansive view that Carp attributes to it,
that view is contrary to how Michigan law describes its own application of the Linkletter
test. In every case to date in which this Court has applied the state retroactivity test, the
“integrity of the fact-finding process” has always been referred to in the context of
determining a defendant’s “guilt or innocence.” Maxson, 482 Mich at 393-394; Sexton,
458 Mich at 62; Young, 410 Mich at 367. To the extent that McConnell may have viewed
the “fact-finding process” as continuing throughout sentencing, we respectfully disagree
and decline to adopt such an expansive view for purposes of our separate and
independent test for retroactivity. It reflects an understanding of retroactivity that is no
longer subscribed to by the United States Supreme Court and an understanding to which
this Court has never subscribed. There is utterly no obligation on our part to forever
maintain the Linkletter test in accordance with every past federal understanding when the
Alabama, 368 U. S. 52 [82 S Ct 157; 7 L Ed 2d 114] (1961) ; and on appeal, Douglas v.
California, 372 U. S. 353 [83 S Ct 814; 9 L Ed 2d 811] (1963), have all been applied
retroactively.” McConnell, 393 US at 3. In fact, the right to counsel is such a uniquely
fundamental right that Gideon remains “the only case that [the United States Supreme
Court has] identified as qualifying under the [watershed rule of criminal procedure
exception to nonretroactivity from Teague].” Whorton, 549 US at 419.
51
test is now defunct for federal purposes and this Court, although initially relying on
Linkletter to formulate our state test for retroactivity, has added its own interpretations to
that test. Instead, the general principle of nonretroactivity for new rules of criminal
procedure, to which Michigan adheres and which informs this state’s retroactivity
analysis, is properly served, in our judgment, by applying retroactively only those new
rules of procedure that implicate the guilt or innocence of a defendant. We acknowledge
that there are circumstances in which our state test may sometimes apply a new rule
retroactively in circumstances in which Teague would not apply, but we are not prepared
to extend our test beyond the federal test to the degree urged upon us by Carp.
In declining to expand the scope of the first factor of Michigan’s state test for
retroactivity, we note again that although our state test is derived from Linkletter, nothing
requires this Court to adopt each and every articulation of that test-- one that is no longer
adhered to by the United States Supreme Court itself. Our state test for retroactivity is
supplemental to the current federal test set forth in Teague, and it is separate and
independent of the former federal test set forth in Linkletter. See Danforth, 552 US at
289. As the Teague test replaced the Linkletter test for federal purposes, doubtlessly
contracting the universe of new constitutional rules that will be applied retroactively,29 it
29
See Sawyer v Smith, 497 US 227, 257-258; 110 S Ct 2822; 111 L Ed 2d 193 (1990)
(Marshall, J., dissenting) (“The Court’s refusal to allow Sawyer the benefit of Caldwell [v
Mississippi, 472 US 320; 105 S Ct 2633; 86 L Ed 2d 231 (1985)] reveals the extent to
which Teague and its progeny unjustifiably limit the retroactive application of accuracy-
enhancing criminal rules. Prior to Teague, our retroactivity jurisprudence always
recognized a difference between rules aimed primarily at deterring police conduct and
those designed to promote the accuracy of criminal proceedings.”).
52
should be unsurprising that this Court would decline to grant retroactive status to a new
rule of criminal procedure affecting only the sentencing phase of a criminal case when
such a permutation of the defunct test has never before been so applied in this state.30
From our holding that the first factor of our state test for retroactivity focuses on
whether a new rule of procedure implicates a defendant’s guilt or innocence, it is
apparent that the first factor clearly militates against the retroactive application of Miller.
As Miller alters only the process by which a court must determine a defendant’s level of
moral culpability for purposes of sentencing, it has no bearing on the defendant’s legal
culpability for the offense of which the defendant has been duly convicted.
In light then of our conclusion that the first state factor clearly counsels against the
retroactive application of Miller, we find it relevant here to address the interplay between
the three factors of the test and the weight that must be given to each before we determine
the effect of the second and third factors on Miller’s retroactive application. That a test
consists of multiple factors does not logically signify that equal weight must be given to
30
We recognize that the prosecutor in Davis and the Attorney General as an intervenor in
Carp both assert that this Court should abandon Michigan’s separate test for retroactivity
and adopt Teague as our state test. We further recognize the anomalousness of this Court
applying new federal rules retroactively pursuant to a standard that is more expansive
than that which the United States Supreme Court has directed be applied by federal courts
themselves. This anomalousness-- at least as it applies to Michigan’s retroactive
application of new federal rules-- is further heightened when, as in the instant case, (a)
the federal rule contradicts the laws of our state as enacted by the Legislature in
accordance with the will of the people of Michigan and (b) the Supreme Court has, for
purposes of federal court application, specifically rejected the retroactivity test adopted
by Michigan. See Teague, 489 US 288. This issue not having been the focal point of
briefing or argument, we do not address it further in this case.
53
each. The United States Supreme Court, in applying the Linkletter test before it adopted
the Teague test, observed that the second and third factors “have been regarded as having
controlling significance ‘only when the purpose of the rule in question did not clearly
favor either retroactivity or prospectivity.’ ” Michigan v Payne, 412 US 47, 55; 93 S Ct
1966; 36 L Ed 2d 736 (1973), quoting Desist v United States, 394 US 244, 251; 89 S Ct
1030; 22 L Ed 2d 248 (1969). Deductively from this statement, if two of the three factors
only control when the first factor does not “clearly favor” retroactivity or prospectivity, it
follows that the first factor must be afforded more weight than either of the other two
factors when the first factor does “clearly favor” retroactivity or prospectivity. We are
persuaded by, and adhere to, Payne’s and Desist’s understanding regarding the
heightened weight to be afforded the first factor when it strongly supports one side or the
other of the retroactivity question.
Placing such an emphasis on the first factor is fully consistent with this Court’s
longstanding practice of dealing with the second and third factors “together.” Young, 410
Mich at 367; Hampton, 384 Mich at 677. In this sense, the second and third factors will
generally tend to produce a unified result that either favors or disfavors retroactivity.
This is because the subject of the second factor (general reliance on the old rule) “will
often have a profound effect on” the subject of the third factor (administration of justice),
given that the greater the reliance by prosecutors of this state on a rule in pursuing justice,
the more burdensome it will generally be for the judiciary to undo the administration of
that rule. Sexton, 458 Mich at 63-64; see also Hampton, 384 Mich at 677-678. In light of
the weight to be afforded the first factor when it clearly preponderates against retroactive
54
application, our unified consideration of the second and third factors would need to favor
retroactive application to a substantial degree in order for Miller to satisfy the
requirements for retroactive application under our state test.
Turning to the inquiry required to evaluate the second and third factors “together,”
the second factor-- the reliance on the old rule-- must be considered both from the
perspective of prosecutors across the state when prosecutors faithfully abided by the
constitutional guarantees in place at the time of a defendant’s conviction, see Adams v
Illinois, 405 US 278, 283-284; 92 S Ct 916; 31 L Ed 2d 202 (1972), and Johnson v New
Jersey, 384 US 719, 731; 86 S Ct 1772; 16 L Ed 2d 882 (1996), as well as from the
collective perspective of the 334 defendants who would be entitled to resentencing if the
new rule were applied retroactively, see Maxson, 482 Mich at 394. Inherent in the
question of reliance by prosecutors across the state is the extent to which the old rule
received constitutional approval from the judiciary before the adoption of the new rule.
See Tehan v United States ex rel Shott, 382 US 406, 417; 86 S Ct 459; 15 L Ed 2d 453(1966). When the old rule is merely the result of a “negative implication” drawn by
prosecutors, the prosecutors’ good-faith reliance on the old rule is at its most minimal.
Brown v Louisiana, 447 US 323, 335; 100 S Ct 2214; 65 L Ed 2d 159 (1980) (opinion by
Brennan, J.). Similarly, when the old rule was of “doubtful constitutionality,” the ability
of prosecutors across the state to rely on the old rule in good faith is diminished. Id.Conversely, when the old rule has been specifically approved by the courts as passing
constitutional muster, prosecutors have their strongest argument for having relied on the
old rule in good faith. Tehan, 382 US at 417. Moreover, when prosecutors relied in good
55
faith on the old rule and did so for a lengthier period of time, reliance can be viewed as
more significant and the second factor will tend to counsel against retroactive application.
Id. As for defendants’ reliance on the old rule, they must demonstrate not only that they
relied on the old rule by taking or not taking a specific action, but that they “detrimentally
relied on the old rule.” Maxson, 482 Mich at 394 (emphasis added).
The inquiry into reliance will significantly affect any inquiry into the burden
placed on the administration of justice because when prosecutors have relied on the old
rule, they have presumably taken few, if any, steps to comply with the new rule. The
greater the extent of their reliance, and the greater the extent to which the new rule
constitutes a departure from the old rule, the more burdensome it becomes for prosecutors
to take the steps necessary to comply with the new rule. Similarly, the greater the extent
of the departure, the more difficult it becomes for courts to look back and attempt to
reconstruct what outcome would have resulted had the new rule governed at the time a
given defendant was sentenced. A burden is placed on the administration of justice in the
form of time and expense to the judiciary in retroactively accommodating the new rule.
Far more importantly, when a new rule is likely to be difficult to apply retroactively, a
burden is placed on the administration of justice in the form of compromising the
accuracy with which the new rule can be applied and the confidence the public may have
regarding judicial determinations in situations in which the new rule is applied to cases
that became final many years or even decades earlier.
Applying these considerations in evaluating the second and third factors to Miller,
it is apparent that these factors do not sufficiently favor the retroactive application of
56
Miller so as to overcome the first factor’s clear direction against its retroactive
application. The old rule permitting life-without-parole sentences on the basis of the pre-
Miller sentencing scheme established by the Legislature received in 1996 the specific
approval of its constitutionality by our judiciary. Launsburry, 217 Mich App at 363-365.
Further, nothing in United States Supreme Court caselaw called into any question life-
without-parole sentences for any juvenile offenders until Graham was decided in 2010,
and even then Graham was specifically limited in its breadth to juveniles who committed
nonhomicide offenses.31 Graham, 560 US at 82. Indeed, before Roper in 2005, United
States Supreme Court precedent specifically held that it was constitutional to impose
capital punishment on juveniles over the age of 16 convicted of homicide offenses.
Stanford v Kentucky, 492 US 361, 380; 109 S Ct 2969; 106 L Ed 2d 306 (1989).
Accordingly, at the time prosecutors across Michigan sought life-without-parole
sentences for 302 of the 334 defendants who would gain a resentencing hearing if Miller
were applied retroactively, the Eighth Amendment of the United States Constitution was
affirmatively understood as permitting the imposition of not merely life without parole
but also the imposition of capital punishment on juvenile first-degree-murder offenders.32
31
Interestingly, we note that none of the 334 defendants who would receive resentencing
under Miller if it were applied retroactively to cases that had become final before Miller
was issued was sentenced after Graham was decided. Therefore, to whatever extent it
might be argued that Graham weakened the constitutional foundation of the old rule
permitting life-without-parole sentences for juvenile homicide offenders, the argument is
of little relevance to the retroactive application of Miller regarding any juvenile
defendants currently serving life-without-parole sentences in Michigan.
32
Even with respect to the 34 defendants sentenced post-Roper, there was no cause for
prosecutors to believe that the decision had any significant bearing on their ability, on
behalf of the people of Michigan, to constitutionally seek a sentence of life without
57
On the basis of this state of the law, prosecutors across Michigan entirely in good
faith relied on the old rule whenever they sought life-without-parole sentences for
juvenile homicide offenders. Considering the constitutional approval the old rule
received from both our judiciary and the United States Supreme Court, as well as the
length of time during which the old rule prevailed-- dating back to our state’s founding in
1837-- the reliance on the old rule by Michigan prosecutors was significant and
justified.33
Conversely, we note that this is not a situation in which it can fairly be said that, as
a group, the 334 defendants who would be entitled to resentencing if the rule in Miller
were applied retroactively have “relied” on the old rule to their “detriment.” First, we
find it difficult to understand, and Carp and Davis themselves fail to identify, exactly
what adverse action the 334 defendants have taken, or opted not to take, in “reliance” on
parole or that it brought into question the decision in Launsburry upholding the
imposition of life-without-parole sentences.
33
Although Maxson’s analysis of the second factor focused exclusively on whether the
defendants in that case had detrimentally relied on the old rule without considering the
extent to which prosecutors had detrimentally relied on the old rule, Maxson’s approach
to analyzing the second factor is not inconsistent with the approach we use today. When
there are two relevant entities, concluding that one of these entities has or has not relied
detrimentally on the old rule may be sufficient to reach a conclusion concerning the effect
of the second factor on retroactivity. In Maxson, it was clear that the defendants’
detrimental reliance on the old rule was insignificant so it was unnecessary to consider
the extent to which prosecutors had relied on the old rule at issue in that case. Although
the inverse is largely true here in that the detrimental reliance interests of prosecutors
across this state are considerable, we have reviewed what is asserted to be Carp’s and
Davis’s detrimental reliance on the old rule and see none. Once again, merely to act in
accord with the old rule is not tantamount to detrimental reliance.
58
the old rule (except perhaps to recognize and abide by the old rule as the then extant law
of this state).34 If such “reliance,” in the sense of merely having to comply with the then
extant law, is viewed as sufficiently “detrimental” to satisfy the second state retroactivity
factor, then it would almost always be the case that this factor would weigh heavily in
favor of retroactivity, since it must be assumed that criminal defendants, or at least their
counsels, would almost always rely on existing law in formulating their trial and
appellate strategies. There is nothing “detrimental” about that reliance except that the
34
The dissent similarly struggles to identify what action that would have benefited the
334 defendants was taken or not taken in “detrimental reliance” on the old rule. First, the
dissent asserts that trial courts would have engaged in individualized sentencing
hearings, but for the old rule. Post at 26-27. This, however, is an action that courts, not a
defendant, would have taken, and essentially asserts nothing more than that Miller has
altered the rules. Second, the dissent argues that defendants relied on the old rule by not
seeking appellate review of their life-without-parole sentences. Post at 26 n 86. In
making this argument, the dissent compares this case to Maxson, in which this Court
suggested that a defendant’s decision not to pursue an appeal could constitute an action
that the defendant opted not to take in reliance on the old rule. Maxson, 482 Mich at 394-
395. However, Maxson was addressing the retroactivity of Halbert v Michigan, 545 US
605; 125 S Ct 2582; 162 L Ed 2d 552 (2005), “which held that indigent defendants who
plead guilty to criminal offenses are entitled to appointed appellate counsel on direct
appeal.” Maxson, 482 Mich at 387. Accordingly, the old rule analyzed in Maxson, that
indigent defendants who pleaded guilty to criminal offenses were not entitled to
appointed appellate counsel on direct appeal, served as a direct impediment to a
defendant’s ability to file an appeal after pleading guilty. In these cases, the pre-Miller
constitutionality of imposing life-without-parole sentences on juvenile homicide
offenders by mandatory operation of law did nothing to hinder a defendant’s ability to
file an appeal challenging Michigan’s then extant sentencing scheme or its personal
application. Furthermore, as Michigan caselaw had specifically upheld the
constitutionality of our pre-Miller sentencing scheme, Launsburry, 217 Mich App 358, it
is unclear how defendants’ failures to seek appellate review proved detrimental. While
the dissent is obviously correct that their interests were not favored under the old rule to
the extent they are under the new rule, that is not the equivalent of having “detrimentally
relied” on the old rule.
59
law is not as hospitable to the interests of such defendants as they might like it to be.
That the law might have been destined to become more hospitable in the future is of little
relevance since it is only because of that development that the issue of retroactivity has
arisen in the first place.
Second, even to the extent that any defendants can be said to have taken or
foregone some action to their detriment in reliance on the old rule, they still can only be
said to have “detrimentally” relied on the old rule if they can establish that they would
have obtained a result more favorable to them under the new rule. Maxson, 482 Mich at
394-396. In this sense, defendants can only be said to have “ ‘detrimentally relied’ on the
old rule” if they “suffered actual harm from [their] reliance . . . .” Id. at 396. However, a
majority of the 334 defendants who would receive resentencing hearings if the rule in
Miller were applied retroactively were between 17 and 18 years of age when they
committed their homicide offenses. Because Miller requires a sentencing court to give
specific consideration to the age and the mental development of a juvenile offender
before imposing a sentence of life without parole, when a juvenile most closely
approaches the age of majority at the time the juvenile commits a homicide offense,
Miller would seem least likely to counsel in favor of sentencing that juvenile with special
leniency, given that in only as few as several months the juvenile would be ineligible for
any leniency at all.35 In this sense, it is speculative at best to presume that a majority of
35
In focusing on the age of the defendants who would receive resentencing if Miller were
applied retroactively, we nowhere suggest that age is the exclusive factor that the trial
court should consider in imposing a sentence on a juvenile homicide offender, and we
agree with the dissent that Miller calls for a “multifaceted” approach to sentencing.
Compare page 17 of this opinion with post 27 n 88. However, in light of the other factors
60
Michigan’s juvenile offenders serving life-without-parole sentences would gain relief in
the form of a lesser sentence if they received a resentencing hearing pursuant to the
retroactive application of Miller. Accordingly, juvenile defendants, as a class, are unable
to demonstrate with any certainty under the state test that they detrimentally relied on the
old rule to such an extent as to outweigh the state’s reliance on the old rule.
As between defendants and the prosecutors of this state, it is further apparent that
the latter have relied far more heavily on the old rule, have done so in good faith, and
would have relied “detrimentally” on behalf of the people were Miller to be applied
retroactively. In particular, in relying on the old rule, prosecutors did not for the purpose
of sentencing have any cause at the time to investigate or present evidence concerning the
aggravating or mitigating factors now required to be considered by Miller. If Miller were
to be applied retroactively, prosecutors would be abruptly required to bear the
considerable expense of having to investigate the nature of the offense and the character
of the 334 juvenile offenders subject to Miller’s retroactive application. This task, if
that Miller instructs a trial court to consider, it seems apparent that a juvenile’s age at the
time of the offense will weigh relatively heavily at sentencing hearings. In most cases, a
juvenile’s age will reasonably correspond to his or her mental and emotional
development as well as the ability to overcome a difficult family and home life.
Additionally, as a juvenile approaches 18 years of age at the time of the offense, and may
even turn 18 during the proceedings related to the offense, it follows that the
“incompetencies associated with youth” will come to have increasingly less of an effect
on the juvenile’s ability to communicate with, and to assist, his or her attorneys in their
legal preparations. Accordingly, while age is by no means the only factor to be
considered in imposing a sentence pursuant to Miller, an offender’s age is likely to be
given significant weight in the court’s deliberations and may well constitute the single
best factor for ascertaining whether a Miller-benefited offender would actually gain relief
if Miller were applied retroactively.
61
newly thrust upon prosecutors, would be all the more burdensome and complicated
because a majority of the 334 defendants were sentenced more than 20 years ago and
another 25% were sentenced between 15 and 20 years ago. And in many, if not most, of
those instances, the prosecutor who initially tried the case would likely no longer be
available for a resentencing hearing. That is, Miller makes many things relevant to the
sentencing process that were simply not relevant at the time of the initial sentencing, and
these things would have to be reconstructed, almost impossibly so in some cases, after
many years, in order to sustain a criminal sentence that was viewed at the time as the
culmination of a full and fair process by which justice was obtained in cases of first-
degree murder. There would be considerable financial, logistical, and practical barriers
placed on prosecutors to re-create or relocate evidence that had previously been viewed
as irrelevant and unnecessary. This process would not, in our judgment, further the
achievement of justice under the law because it would require in many instances that the
impossible be done, and if it could not be, a heavy cost would be incurred by society in
the form of the premature release of large numbers of persons who will not have fully
paid their legal debt to society, many of whom as a result might well continue to pose a
physical threat in particular to individuals living in our most vulnerable neighborhoods.
Miller requires trial courts to determine a defendant’s moral culpability for the
murder the defendant has committed by examining the defendant’s character and mental
development at the time of the offense. Even if the myriad evidence could somehow be
obtained by the prosecutor, it is fanciful to believe that the backward-looking
determination then required of the trial court could be undertaken with sufficient
62
accuracy and trustworthiness so many years after the crime had been committed, the trial
completed, and the defendant sentenced. Further, just as the prosecutor might no longer
be available to represent the people’s interest, neither might the sentencing judge. We are
not confident that the justice achieved by a resentencing process taking place many years
after the original trial and sentencing-- many years after the victims of the homicide have
become little more than historical footnotes to all but their immediate families-- and
presided over by a judge who can never entirely be situated like the judge who presided
over the trial, can effectively replicate the justice achieved at the initial sentencing.
Instead, we believe that the trial court’s ability to travel back in time to assess a
defendant’s mental state of some 20 years earlier-- evidence of which may not even have
been gathered at the time-- is limited; that the recollection of memories about aggravating
and mitigating circumstances-- evidence of which may again not even have been gathered
at the time-- is questionable; and that, as a result, public confidence in the integrity and
accuracy of those proceedings will understandably be low.
For these reasons, we find that the second and third factors do not sufficiently
favor the retroactive application of Miller so as to overcome the first factor counseling
against the retroactive application of Miller. As a result of this analysis, Miller is not
entitled to retroactive application under Michigan’s test for retroactivity.
D. CONSTITUTIONAL ISSUES
Defendants raise a series of constitutional challenges arguing that the Eighth
Amendment of the United States Constitution or Const 1963, art 1, § 16, or both,
63
categorically bars the imposition of a life-without-parole sentence on a juvenile homicide
offender. We consider each challenge in turn.
1. FEDERAL CATEGORICAL BAR
Defendants assert that the Eighth Amendment of the United States Constitution36
categorically bars the imposition of a sentence of life without parole on any juvenile
homicide offender, regardless of whether the “individualization” of sentencing is
performed before that sentence is imposed. The effect of the categorical rule sought by
defendants would not only mandate resentencing for all juvenile defendants sentenced to
life without parole under the pre-Miller sentencing scheme, but would also invalidate
those portions of MCL 769.25 allowing the state to impose a life-without-parole sentence
on particular juveniles following an individualized sentencing hearing in accordance with
Miller. See MCL 769.25(2) through (7). Defendants ask this Court to read the United
States Supreme Court’s rulings in Roper, Graham, and Miller as necessarily
foreshadowing the conclusion that the Eighth Amendment categorically bars life-without-
parole sentences for all juvenile offenders. However, the limited nature of each of these
rulings does not, in our judgment, necessitate that conclusion. Moreover, the
proportionality review employed by the United States Supreme Court in fashioning the
rules in Roper, Graham, and Miller also does not support the categorical rule sought by
defendants.
36
The Eighth Amendment of the United States Constitution reads:
Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted. [US Const, Am VIII.]
64
As noted earlier, the holding in Roper was specifically limited to capital
punishment in that the “Eighth and Fourteenth Amendments forbid imposition of the
death penalty on offenders who were under the age of 18 when their crimes were
committed.” Roper, 543 US at 578. Given that capital punishment was only “likened” to
life without parole for a juvenile offender, Miller, 567 US at ___; 132 S Ct at 2463-2464,
rather than deemed equivalent to life without parole for a juvenile offender, neither Roper
nor Roper in conjunction with Graham and Miller suggests in any way that the Eighth
Amendment must be read as invalidating the state’s ability to impose a life-without-
parole sentence on a juvenile homicide offender. Likewise, Graham’s holding was
specifically limited so as to categorically bar only the imposition of life-without-parole
sentences for juvenile offenders convicted of nonhomicide offenses. Graham, 560 US at
79. Accordingly, Graham also does not compel the invalidation of a state’s ability to
impose a sentence of life without parole on a juvenile homicide offender.
Turning lastly to Miller, its rule is specifically limited in that it counsels against
the very categorical rule sought by defendants. As discussed earlier, Miller requires that
an individualized sentencing hearing occur before a life-without-parole sentence may be
imposed, but expressly “does not categorically bar a penalty” or “foreclose a sentencer’s
ability” to impose a life-without-parole sentence. Miller, 567 US at ___; 132 S Ct at
2469, 2471. Defendants’ proposed categorical rule would therefore read the Eighth
Amendment as categorically barring precisely the very punishment that Miller declined
to categorically bar and, in so doing, asserted was not categorically barred by the Eighth
Amendment.
65
Defendants alternatively contend that, in light of the manner in which state
legislatures reacted to Miller by adjusting sentencing schemes governing juvenile
homicide offenders, it is now, pursuant to the proportionality review employed in Roper,
Graham, and Miller, cruel and unusual punishment to impose a life-without-parole
sentence on a juvenile homicide offender. Within the context of the Eighth Amendment,
the United States Supreme Court has used a multipart test to determine if a punishment
imposed on a juvenile offender is disproportionate:
A court must begin by comparing the gravity of the offense and the
severity of the sentence. “[I]n the rare case in which [this] threshold
comparison . . . leads to an inference of gross disproportionality” the court
should then compare the defendant’s sentence with the sentences received
by other offenders in the same jurisdiction and with the sentences imposed
for the same crime in other jurisdictions. If this comparative analysis
“validate[s] an initial judgment that [the] sentence is grossly
disproportionate,” the sentence is cruel and unusual. [Graham, 560 US at
60, quoting Harmelin, 501 US at 1005 (Kennedy, J., concurring in part).]
Starting with the preliminary question whether “the gravity of the offense” is
commensurate with “the severity of the sentence,” Graham, 560 US at 60, we note that
first-degree murder is almost certainly the gravest and most serious offense that an
individual can commit under the laws of Michigan-- the premeditated taking of an
innocent human life. It is, therefore, unsurprising that the people of this state, through the
Legislature, would have chosen to impose the most severe punishment authorized by the
laws of Michigan for this offense. Although the individualized sentencing process now
required by Miller (and as a necessary response to Miller by MCL 769.25) may perhaps
indicate that some juvenile offenders lack the moral culpability and mental faculties to
warrant a life-without-parole sentence pursuant to the premises of Miller, when the
66
contrary conclusions are drawn, as they presumably will be in some cases, a sentence of
life without parole for first-degree murder will not “lead[] to an inference of gross
disproportionality.” Id. Accordingly, defendants have failed to demonstrate that the
imposition of a life-without-parole sentence will satisfy the first part of the United States
Supreme Court’s test for proportionality. As the first part of this federal test is a
necessary requirement for finding that a punishment is “disproportionate,” defendants’
facial challenge fails as they are consequently unable to demonstrate that the Eighth
Amendment categorically bars the imposition of a life-without-parole sentence on
juvenile homicide offenders.
Even if defendants had satisfied the first part of the federal test for
disproportionality, however, they have also failed to satisfy the second part of the test,
which compares the life-without-parole sentence defendants seek to invalidate “with the
sentences received by other offenders in the same jurisdiction and with the sentences
imposed for the same crime in other jurisdictions.” Id. As for other offenders within the
state of Michigan, defendants are correct to note that life without parole is the most
severe punishment imposed by this state. This fact alone, however, does not persuade us
that imposing a life-without-parole sentence on a juvenile homicide offender is
disproportionate.
First, as noted in the first part of this test for proportionality, first-degree murder is
almost certainly the gravest and most serious offense that can be committed under the
laws of Michigan. As with juveniles, adult offenders who commit the offense of first-
degree murder face the same sentence of life without parole. Because some juvenile
67
offenders will possess the same mental faculties of an adult so that they are equally able
to recognize the consequences of their crimes and form an unequivocal premeditated
intent to kill in the face of the consequences, it is not categorically disproportionate to
punish at least some juvenile offenders the same as adults.
Second, there are some nonhomicide offenses that may be viewed as less grave
and less serious than first-degree murder and for which only adult offenders face a life-
without-parole sentence in this state. For instance, an adult who commits successive
first-degree criminal sexual conduct offenses against an individual under the age of 13
faces a sentence of life without parole. MCL 750.520b(2)(c). Accordingly, when the
commission of a nonhomicide offense by an adult offender may result in the imposition
of a life-without-parole sentence, it does not appear categorically disproportionate to
impose a life-without-parole sentence on a juvenile offender for committing the gravest
and most serious homicide offense.
Third, although this Court is required by Graham to assess the proportionality of a
sentence of life without parole imposed on juveniles who commit first-degree murder, we
would be derelict if we did not observe that the people of this state, acting through their
Legislature, have already exercised their judgment-- to which we owe considerable
deference-- that the sanction they have selected for juvenile first-degree-murder offenders
is, in fact, a proportionate sanction. We are not certain that there is a superior test for
assessing a determination of proportionality than that a particular sanction is compatible
with public opinion and sentiment. Nonetheless, because this Court is required to do so
by Graham, we undertake to the best of our ability to exercise independent judgment in
68
analyzing the criminal punishments authorized by our Legislature and assessing their
propriety in the light of the crimes for which the Legislature has deemed them
proportionate.
Turning to whether Michigan’s sentencing scheme for juvenile first-degree-
murder offenders is “disproportionate” to sentencing schemes used in other states,
defendants have wholly failed to present relevant data demonstrating that Michigan is an
outlier when it comes to permitting the imposition of life-without-parole sentences for
juvenile first-degree-murder offenders, even on the assumption that being an “outlier”
adversely affects our state’s compliance with the United States Constitution. Defendants
in their briefs cherry-pick six states in which sentencing schemes have been altered post-
Miller to eliminate life-without-parole as a possible sentence for juvenile offenders. The
fact that six states have eliminated life-without-parole sentences for juvenile offenders in
response to Miller tells us next to nothing about how Michigan’s choice to impose life-
without-parole sentences on juveniles convicted of first-degree murder compares to
sentencing schemes across the nation, and defendants have come nowhere close to
satisfying their burdens in this regard.
What trend is demonstrated by the actions of these six states alone? How many
states at the time of Miller imposed a sentence of life without parole on juvenile homicide
offenders? How many of these states responded to Miller in a manner similar to that of
Michigan? What is apparent is that at the time of Miller, “26 States . . . [made] life
without parole the mandatory (or mandatory minimum) punishment for some form of
murder, and would apply the relevant provision to 14-year-olds . . . .” Miller, 567 US at
69
___ n 9; 132 S Ct at 2471 n 9. Another 15 states allowed for the discretionary imposition
of life-without-parole sentences on juvenile offenders. Id. at ___ n 10; 132 S Ct at 2472
n 10. Combined therefore, 41 states exercised the authority under at least some
circumstances to impose a life-without-parole sentence on a juvenile. If, as defendants
assert, six of those states have departed from this practice by eliminating that sentence
altogether, can it be concluded that life-without-parole sentences for juveniles are
disproportionte when they remain an option of some kind in 35 states in total, or 70% of
the states composing the Union?
In summary, we have no evidence that sustains defendants’ burden of
demonstrating that Michigan’s statutory scheme is categorically disproportionate to those
of other states. As defendants have failed to demonstrate that either part of the federal
test for the constitutionality of punishments supports the conclusion that a life-without-
parole sentence for juvenile homicide offenders is disproportionate, we decline to hold
that the Eighth Amendment of the United States Constitution categorically bars that
punishment.
2. STATE CATEGORICAL BAR
Defendants next contend that even if the Eighth Amendment does not
categorically bar the imposition of sentences of life without parole on juvenile homicide
offenders, Const 1963, art 1, § 16 does mandate such a categorical bar. Whereas the
Eighth Amendment proscribes the imposition of “cruel and unusual punishments,” Const
1963, art 1, § 16 states:
70
Excessive 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. [Emphasis added.]
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 in that if a punishment must be both “cruel” and “unusual” for it to be
proscribed by the Eighth Amendment, a “punishment that is unusual but not necessarily
cruel” is also proscribed by Article 1, § 16. People v Lorentzen, 387 Mich 167, 172; 194
NW2d 827 (1972).
This broader protection under Article 1, § 16 against punishments that are merely
“unusual” has led this Court to adopt a slightly different and broader test for
proportionality than that employed in Graham. See id. at 171-172; see also People v
Bullock, 440 Mich 15, 31; 485 NW2d 866 (1992).37 As set forth in Lorentzen and
Bullock, the state test for proportionality assesses (1) the severity of the sentence imposed
37
The inclusion of proportionality review under Article 1, § 16 has been the subject of
significant disagreement. Bullock, 440 Mich at 46 (RILEY, J., concurring in part and
dissenting in part) (“I believe that People v Lorentzen . . . , the principle case relied on by
the majority to support its conclusion, was wrongly decided and that proportionality is
not, and has never been, a component of the ‘cruel or unusual punishment’ clause of this
state’s constitution.”); People v Correa, 488 Mich 989, 992 (2010) (MARKMAN, J., joined
by CORRIGAN and YOUNG, JJ., concurring) (“[A]t some point, this Court should revisit
Bullock’s establishment of proportionality review of criminal sentences, and reconsider
Justice RILEY’s dissenting opinion in that case.”). However, because life without parole
is not a categorically disproportionate sentence for a juvenile homicide offender, we find
it unnecessary in this case to resolve whether proportionality review is rightly a part of
the protection in Article 1, § 16 against “cruel or unusual punishment,” instead assuming
for the sake of argument that it has a place in an analysis under Article 1, § 16.
71
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. Bullock, 440 Mich at 33-34, citing Lorentzen, 387 Mich at 176-181.
At the outset, we note that the Lorentzen/Bullock test bears a considerable
resemblance to the federal test for proportionality because the first three factors combine
to effect the same general inquiry as the two-part test employed in Graham. See Bullock,
440 Mich at 33 (“Our analysis in Lorentzen foreshadowed in a striking manner the three-
pronged test later adopted by the United States Supreme Court in Solem v Helm, 463 US
277, 290-291; 103 S Ct 3001; 77 L Ed 2d 637 (1983).”). Our conclusion that none of the
first three factors supports the inference that a life-without-parole sentence for a juvenile
offender is disproportionate under the Eighth Amendment also bears on the first three
inquires of the proportionality analysis under the Lorentzen/Bullock test. Accordingly,
only the fourth factor of the Lorentzen/Bullock test remains to be assessed before
weighing these factors and reaching a conclusion about the proportionality of a life-
without-parole sentence for a juvenile homicide offender under Article 1, § 16 of our
state constitution.
Concerning the fourth factor, we concur with the United States Supreme Court’s
assessment that a life-without-parole sentence for a juvenile does not serve the
72
penological goal of rehabilitation.38 Graham, 560 US at 74. As stated in Graham, when
life without parole is imposed on a juvenile, “[t]he penalty forswears altogether the
rehabilitative ideal. By denying the defendant the right to reenter the community, the
State makes an irrevocable judgment about that person’s value and place in society.” Id.
Accordingly, the fourth factor of the Lorentzen/Bullock test supports defendants’
contention that a life-without-parole sentence for a juvenile offender is disproportionate.
That said, with only one of the four factors supporting the conclusion that life-without-
parole sentences are disproportionate when imposed on juvenile homicide offenders,
defendants have failed to meet their burden of demonstrating that it is facially
unconstitutional under Article 1, § 16 to impose that sentence on a juvenile homicide
offender. While the language of the Michigan counterpart to the Eighth Amendment is at
some variance from the latter, it is not so substantially at variance that it results in any
different conclusion in its fundamental analysis of proportionality.
3. AIDING AND ABETTING
Davis argues that even if the Eighth Amendment does not categorically bar
imposing sentences of life without parole on juvenile homicide offenders, it at least
38
In accepting this conclusion, this Court, as did the United States Supreme Court,
speaks of “rehabilitation” exclusively within the context of a defendant reforming himself
or herself for the purpose of reintegration into society. See Graham, 560 US at 74. This,
however, is not to foreclose the ability of a person, however long the person is to be
incarcerated, to rehabilitate himself or herself in the sense of fully comprehending the
nature of the wrong, achieving a greater awareness of and commitment to the elements of
moral behavior, attaining a sincere adherence to religious faith, or contributing in positive
ways to those with whom the person interacts in whatever environment he or she has
been placed.
73
categorically bars imposing life-without-parole sentences on juvenile homicide offenders,
such as himself, convicted of felony murder ostensibly on the basis of an aiding-and-
abetting theory. At the outset of our analysis, we note that our Legislature has chosen to
treat offenders who aid and abet the commission of an offense in exactly the same
manner as those offenders who more directly commit the offense:
Every person concerned in the commission of an offense, whether he
directly commits the act constituting the offense or procures, counsels, aids,
or abets in its commission may hereafter be prosecuted, indicted, tried and
on conviction shall be punished as if he had directly committed such
offense. [MCL 767.39.]
Moreover, the Legislature has enacted a felony-murder statute, which treats the
commission of a murder during the course of a robbery as first-degree murder. See
MCL 750.316(1)(b).39 These choices by the Legislature must be afforded great weight in
light of the fact that Lockett, one of the capital-punishment cases relied on by the United
States Supreme Court in forming the rule in Miller, specifically instructs:
That States have authority to make aiders and abettors equally
responsible, as a matter of law, with principals, or to enact felony-murder
statutes is beyond constitutional challenge. [Lockett, 438 US at 602.]
Davis attempts to overcome this constitutional pronouncement in light of his own
proposed categorical rule mandating a lesser maximum penalty for aiders and abettors by
asserting that Miller and Graham combine to necessitate such a rule. He advances a two-
39
We speak of the felony-murder statute in terms of the underlying felony being a
robbery merely because the underlying felony in Davis’s case was a robbery. The
reasoning put forth in this part, however, would apply equally when the underlying
felony is any one of the other felonies listed in MCL 750.316(1)(b).
74
part argument to this effect: (1) the rule in Miller requires individualized sentencing for
juvenile offenders in an effort to account for “their lesser culpability,” Miller, 567 US at
___; 132 S Ct at 2463, and (2) Graham has already determined that aiders and abettors
are sufficiently less culpable that a sentence of life without parole is never
constitutionally appropriate, see Graham, 560 US at 69.
Although the first part of this syllogism is undoubtedly accurate, the same cannot
be said of the second part. Graham made two statements pertinent to the second part of
Davis’s argument:
The Court has recognized that defendants who do not kill, intend to
kill, or foresee that life will be taken are categorically less deserving of the
most serious forms of punishment than are murderers. . . .
It follows that, when compared to an adult murderer, a juvenile
offender who did not kill or intend to kill has a twice diminished moral
culpability. [Id.]
In combination with Miller’s requirement that individualized sentencing account for a
juvenile’s “lesser culpability,” it has been argued that a juvenile offender cannot be
sentenced to life without parole when the defendant did not kill, intend to kill, or foresee
that life would be taken as a result of the offense, even when the offense of which the
offender was convicted was felony murder. Just such a contention was advanced by
Justice Breyer in his concurrence in Miller, in which, addressing specifically the
constitutionality of life-without-parole sentences for juvenile offenders convicted of
felony murder on an aiding-and-abetting theory, he stated, “Graham dictates a clear rule:
The only juveniles who may constitutionally be sentenced to life without parole are those
75
convicted of homicide offenses who ‘kill or intend to kill.’ ” Miller, 567 US at ___; 132
S Ct at 2476 (Breyer, J., concurring).
Assuming for the sake of argument that some categorical rule of this nature is the
necessary product of Graham and Miller,40 it still does not follow that the rule pertains to
and encompasses all instances in which a juvenile aids and abets a felony murder. As
recognized by Justice Breyer himself, a juvenile who aids and abets a felony murder may
have intended the death of any victim of the offense. Id. at ___; 132 S Ct at 2477(indicating that on remand, the trial court would need to determine if the defendant, who
was convicted of felony murder for aiding and abetting the commission of a robbery that
resulted in a death, “did intend to cause the clerk’s death”). Further, a juvenile who aids
and abets a felony murder may have foreseen that a life might be taken as a result of his
offense, but proceeded notwithstanding to engage in the underlying offense with
indifference to this risk. Accordingly, when a juvenile can be convicted of felony murder
on an aiding-and-abetting theory while either intending to kill or having foreseen the
possibility that a life could be taken, any categorical rule gleaned from Graham
pertaining to the limited situation in which a juvenile homicide offender lacked the intent
40
Although we assume for the sake of argument that such a categorical rule may exist,
nothing in this opinion should be understood as actually accepting or adopting such a
rule. To the contrary, we note that a categorical rule mandating that a subclass of aiders
and abettors be treated differently with respect to what punishments can be imposed
would run directly contrary to both the aforementioned statement in Lockett and
MCL 767.39. Further, Justice Breyer in his concurrence spoke only for himself and one
other justice.
76
to kill and did not foresee the possibility that a life could be taken will once again not
categorically bar the imposition of a sentence of life without parole for that offense.41
This conclusion is entirely consistent with, and arguably dictated by, the
individualized sentencing process required by Miller. In seeking to assess a juvenile
offender’s moral culpability, Miller instructs trial courts to consider the “ ‘circumstances
of the particular offense and the character and propensities of the offender.’ ” Id. at ___
n 9; 132 S Ct at 2471 n 9, quoting Roberts, 428 US at 333, and citing Sumner, 483 US 66(emphasis added). A categorical rule altogether foreclosing a trial court from imposing a
life-without-parole sentence on a juvenile convicted of felony murder on an aiding-and-
abetting theory obviates the necessity for any evaluation of either the circumstances of
the individual defendant’s offense or the individual defendant’s character. Such a
categorical rule would permit a defendant to avoid a life-without-parole sentence for
aiding and abetting a felony murder even if the defendant was closely nearing the age of
18 at the time of the offense, intended the death of the victim by instructing a
coconspirator to fire the fatal shot, and had had previous encounters with the criminal
justice system that demonstrated a lack of amenability to rehabilitation. Because it is not
41
To the extent that Graham and Miller might create a categorical rule prohibiting life-
without-parole sentences for juveniles convicted of aiding and abetting a felony murder
“who do not kill, intend to kill, or foresee that life will be taken,” Graham, 560 US at 69,
Davis would not be entitled to relief under that rule. Although the trial court concluded
at sentencing that Davis was not the shooter, it did not make an explicit finding regarding
Davis’s intentions about the victim’s death, and it made no findings indicative of whether
he foresaw the potential that life would be taken as a result of the armed robbery in which
he engaged. To go back and attempt to make these findings now would entail engaging
in the broader individualized sentencing procedures called for by Miller that we have
already determined today need not be engaged in retroactively.
77
difficult to imagine such a defendant, and because imposing a life-without-parole
sentence on that defendant would be warranted and entirely constitutional under Miller,
we reject Davis’s facial challenge and his contention that the Eighth Amendment
categorically bars the imposition of a life-without-parole sentence on a juvenile convicted
of felony murder on an aiding-and-abetting theory.42
4. RIPENESS
Eliason asserts that Const 1963, art 1, § 16 categorically bars the imposition of a
sentence of life without parole on a juvenile homicide offender who is 14 years of age at
the time of the offense. For Eliason’s facial challenge to be ripe, there must be “a real
and immediate threat . . . as opposed to a hypothetical one” that a sentence of life without
parole will be imposed on him. Conat, 238 Mich App at 145, citing Los Angeles v Lyons,
42
This holding carries with it the conclusion that some juveniles convicted of felony
murder on an aiding-and-abetting theory might be as morally culpable for their crimes as
juveniles who commit premeditated first-degree murder and not simply as legally
culpable. A juvenile convicted of felony murder on an aiding-and-abetting theory can be
said to have committed as grave an offense as a juvenile who commits premeditated first-
degree murder. Accordingly, for the purpose of Davis’s challenge under Const 1963, art
1, § 16, the first two factors of the Lorentzen/Bullock proportionality test will be resolved
in a fashion identical to how they were resolved for life-without-parole sentences
generally. Concerning the third factor, Davis fails to present any data specific to how
other jurisdictions sentence juveniles convicted of felony murder on an aiding-and-
abetting theory, only putting forth a sampling of how a very few states now sentence
juveniles convicted of first-degree murder generally. In the absence of evidence to the
contrary, we are left to assume that a majority of other states hold aiders and abettors
equally responsible for their offenses. Accordingly, the third factor also counsels against
a finding of disproportionality. Because only the fourth factor of the Lorentzen/Bullock
proportionality test, pertaining to rehabilitation, favors holding life-without-parole
sentences for juveniles convicted of felony murder on an aiding-and-abetting theory
unconstitutional, Davis’s facial challenge under Article 1, § 16 fails as well.
78
461 US 95, 101-101; 103 S Ct 1660; 75 L Ed 2d 675 (1983), and Dep’t of Social Servs v
Emmanuel Baptist Preschool, 434 Mich 380, 410; 455 NW2d 1 (1990) (CAVANAGH, J.).
Put differently, in determining whether an issue is justiciably “ripe,” a court must assess
“ ‘whether the harm asserted has matured sufficiently to warrant judicial intervention.’ ”
Emmanuel Baptist, 434 Mich at 412 n 48 (citation omitted). Inherent in this assessment
is the balancing of “any uncertainty as to whether defendant[] will actually suffer future
injury, with the potential hardship of denying anticipatory relief.” Id. at 412, citing
Abbott Laboratoriess v Gardner, 387 US 136, 148-149; 87 S Ct 1507; 18 L Ed 2d 681(1967).
Eliason was 14 years of age at the time of his offense and was initially sentenced
to life without parole. However, because Eliason’s case is on direct review, he is entitled
to resentencing pursuant to MCL 769.25(1)(b)(ii). Under MCL 769.25(9), the default
sentence for a juvenile convicted of first-degree murder is a sentence of a term of years
within specific limits rather than life without parole. A juvenile defendant will only face
a life-without-parole sentence if the prosecutor files a motion seeking that sentence and
the trial court concludes following an individualized sentencing hearing in accordance
with Miller that such a sentence is appropriate. MCL 769.25(2) through (7).
Although the prosecutor has filed a motion seeking the imposition of a sentence of
life without parole, it is no more than speculation whether the trial court will depart from
the default sentence in response to the prosecutor’s motion and impose a life-without-
parole sentence, and it is not apparent that Eliason faces a “real and immediate” threat of
receiving a life-without-parole sentence. Furthermore, because he will be facing a
79
minimum sentence of “not less than 25 years,” MCL 769.25(9), to deny on ripeness
grounds the relief Eliason seeks will cause him no legally cognizable hardship or harm.
If a life-without-parole sentence is imposed at resentencing, Eliason will have more than
ample time to appeal and assert either an as-applied or a facial constitutional challenge to
his sentence before he completes the minimum possible sentence for his offense.
Accordingly, in light of Eliason’s being entitled to resentencing under MCL 769.25, his
facial constitutional challenge to life-without-parole sentences for juvenile homicide
offenders who are 14 years of age at the time of their offense is no longer justiciable.43
V. CONCLUSION
For these reasons, we hold that the rule set forth in Miller should not be
retroactively applied under either the federal retroactivity test set forth in Teague or
Michigan’s separate and independent retroactivity test set forth in Sexton and Maxson. In
so doing, we affirm the judgments of the Court of Appeals in Carp and Davis that Miller
should not be applied retroactively. We further hold that neither the Eighth Amendment
nor Const 1963, art 1, § 16 categorically bars the imposition of a sentence of life without
parole on a juvenile first-degree-murder offender or a juvenile convicted of felony
murder on the basis of an aiding-and-abetting theory. Finally, we hold that Eliason’s
43
As conceded by the parties at oral argument, Eliason’s other issues on which this Court
granted leave to appeal are moot as a result of the enactment of MCL 769.25.
80
facial constitutional challenge is no longer ripe and therefore remand his case for
resentencing pursuant to MCL 769.25.
Stephen J. Markman
Robert P. Young, Jr.
Brian K. Zahra
David F. Viviano
81
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 146478
RAYMOND CURTIS CARP,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 146819
CORTEZ ROLAND DAVIS,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 147428
DAKOTAH WOLFGANG ELIASON,
Defendant-Appellant.
KELLY, J. (dissenting).
In a series of recent cases involving juvenile offenders,1 the United States
Supreme Court has established that “children are different” as a matter of constitutional
law.2 Specifically at issue here is the application of one of those recent cases, Miller v
Alabama, to incarcerated juvenile offenders whose direct appeals were complete when
the Supreme Court decided Miller. In Miller, the Supreme Court determined that,
because certain juvenile homicide offenders have “diminished culpability” when
compared with adult offenders, states cannot subject juvenile homicide offenders to
mandatory nonparolable life sentences.3 By doing so, the Court expanded the range of
punishments that may be imposed on juvenile homicide offenders in states, like
Michigan, that had previously mandated a nonparolable life sentence whenever a juvenile
1
The phrase “juvenile offenders” throughout this opinion refers to the class of
individuals who were convicted for crimes committed before reaching the age of 18.
2
Miller v Alabama, 567 US __; 132 S Ct 2455, 2470; 183 L Ed 2d 407 (2012). See also
Roper v Simmons, 543 US 551; 125 S Ct 1183; 161 L Ed 1 (2005); Graham v Florida,
560 US 48; 130 S Ct 2011; 176 L Ed 2d 825 (2010).
3
Miller, 567 US at __; 132 S Ct at 2464
2
offender was convicted of first-degree murder in the circuit court. We conclude that
Miller applies retroactively to cases appearing before us on collateral review, including in
People v Carp and People v Davis, because it established a substantive rule of law.
Alternatively, state law compels the retroactive application of Miller. Accordingly, we
would reverse in Carp and Davis and remand those cases to the St. Clair Circuit Court
and Wayne Circuit Court, respectively, for resentencing pursuant to MCL 769.25a.4
I. THE EIGHTH AMENDMENT APPLIED TO JUVENILE OFFENDERS
The Eighth Amendment of the United States Constitution prohibits the infliction
of “cruel and unusual punishments”5 and has a long history in American and English law
predating the Bill of Rights. Similar protections were provided in various state
constitutions,6 and identical language appeared in the English Bill of Rights of 1689.7
4
We would also remand People v Eliason to the Berrien Circuit Court for resentencing
pursuant to MCL 769.25, as the majority does.
5
The Cruel and Unusual Punishments clause has been incorporated to the states through
the Fourteenth Amendment. See Robinson v California, 370 US 660; 82 S Ct 1417; 8 L
Ed 2d 758 (1962). Additionally, Article 1, § 16 of the 1963 Michigan Constitution
provides that “cruel or unusual punishment shall not be inflicted . . . .”
6
For instance, the Virginia Declaration of Rights stated “[t]hat excessive bail ought not
to be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” 5 Kurland & Lerner, The Founders’ Constitution, p 373, quoting Virginia
Declaration of Rights, § 9 (June 12, 1776).
7
The English Bill of Rights of 1689 provided “[t]hat excessive bail ought not to be
required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.” 5
Kurland & Lerner, The Founders’ Constitution, p 369, quoting the English Bill of Rights,
1 W & M, 2d sess, ch 2, § 10 (December 16, 1689).
3
Even farther back in time, a prohibition of excessive punishments appeared in the Magna
Carta.8
“ ‘The basic concept underlying the Eighth Amendment is nothing less than the
dignity of man.’ ”9 For more than a century, the Supreme Court has maintained that the
Clause does not have a fixed meaning,10 but instead “may acquire meaning as public
opinion becomes enlightened by a humane justice.”11 One meaning the Supreme Court
has developed over the last decade is that “children are constitutionally different from
adults for purposes of sentencing.”12 In Roper v Simmons, the Court forbade imposition
of the death penalty on juvenile offenders.13 In Graham v Florida, the Court prohibited
8
Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57
Cal L Rev 839, 845-846 (1969) (The Magna Carta “clearly stipulated as fundamental law
a prohibition of excessiveness in punishments[.]”). Caselaw further establishes “a
common law prohibition against excessive punishments in any form,” even if it remains
unclear “[w]hether the principle was honored in practice . . . .” Id. at 847.
9
Atkins v Virginia, 536 US 304, 311; 122 S Ct 2242; 153 L Ed 2d 335 (2002), quoting
Trop v Dulles, 356 US 86, 100; 78 S Ct 590; 2 L Ed 2d 630 (1958) (opinion by Warren,
C.J.).
10
See Weems v United States, 217 US 349, 373; 30 S Ct 544; 54 L Ed 793 (1910) (“[I]f
we are to attribute an intelligent providence to its advocates we cannot think that it was
intended to prohibit only practices like the Stuarts, or to prevent only an exact repetition
of history.”); id. (“[O]ur contemplation cannot be only of what has been but of what may
be.”).
11
Id. at 378. More recently, the Court has explained that the clause “ ‘must draw its
meaning from the evolving standards of decency that mark the progress of a maturing
society.’ ” Atkins, 536 US at 311-312, quoting Trop, 356 US at 101 (opinion by Warren,
C.J.).
12
Miller, 567 US at __; 132 S Ct at 2464.
13
Roper, 543 US at 578.
4
“the imposition of a life without parole sentence on a juvenile offender who did not
commit homicide.”14 Most recently, in Miller v Alabama, the Court struck down a
sentencing scheme that provided a mandatory nonparolable life sentence for juvenile
homicide offenders.15
In these rulings, the Court relied on three significant differences between juveniles
and adults to conclude that juveniles have “diminished culpability” for their crimes and
“greater prospects for reform.”16
First, children have a “ ‘lack of maturity and an underdeveloped sense of
responsibility,’ ” leading to recklessness, impulsivity, and heedless risk-
taking. Second, children “are more vulnerable . . . to negative influences
and outside pressures,” including from their family and peers; they have
limited “contro[l] over their own environment” and lack the ability to
extricate themselves from horrific, crime-producing settings. And third, a
child’s character is not as “well formed” as an adult’s; his traits are “less
fixed” and his actions less likely to be “evidence of irretrievabl[e]
deprav[ity].”[17]
14
Graham, 560 US at 82.
15
Miller, 567 US at __; 132 S Ct at 2460.
16
Id. at __; 132 S Ct at 2464. The Court cited research developments in science and
social science that show “ ‘fundamental differences between juvenile and adult minds’—
for example, in ‘parts of the brain involved in behavior control.’ ” Id. at __; 132 S Ct at
2464, quoting Graham, 560 US at 68. Specifically, the Court cited a paper by Laurence
Steinberg & Elizabeth Scott, Less Guilty by Reason of Adolescence, which explains that
there are two components to the diminished culpability of adolescents: the brain
development that continues to occur during adolescence and psychosocial factors limiting
adolescents’ emotional maturity, such as “(a) susceptibility to peer influence, (b) attitudes
toward and perception of risk, (c) future orientation, and (d) the capacity for self-
management.” Steinberg & Scott, Less Guilty by Reason of Adolescence, 58 Am
Psychologist 1009, 1012 (2003).
17
Miller, 567 US at __; 132 S Ct at 2464, quoting Roper, 543 US at 569-570 (citations
omitted; alterations in original).
5
These differences between juveniles and adults “diminish the penological justifications
for imposing the harshest sentences on juvenile offenders, even when they commit
terrible crimes.”18 In this respect, Miller relied heavily on Graham, explaining that
Graham “insist[ed] that youth matters in determining the appropriateness of a lifetime of
incarceration without the possibility of parole.”19 Because an offender’s age “ ‘is
relevant to the Eighth Amendment,’ . . . ‘criminal procedure laws that fail to take
defendants’ youthfulness into account at all would be flawed.’ ”20
Not only is age relevant in establishing an offender’s culpability for the crime, as
already explained in this opinion, but it is also relevant in determining whether
punishment for a crime is sufficiently comparable in severity to an identical sentence
given to an adult offender. Sentencing a juvenile offender to a nonparolable life sentence
is “ ‘especially harsh’ ” given that the offender “will almost inevitably serve ‘more years
and a greater percentage of his life in prison than an adult offender.’ ”21 Indeed, it
“cannot be ignored” that “[a] 16-year-old and a 75-year-old each sentenced to life
without parole receive the same punishment in name only.”22 As a result, the Supreme
Court compared this “ultimate penalty” for juvenile offenders to the death penalty, which
18
Miller, 567 US at __; 132 S Ct at 2465.
19
Id. at __; 132 S Ct at 2465.
20
Id. at __; 132 S Ct at 2466, quoting Graham, 560 US at 76.
21
Miller, 567 US at __; 132 S Ct at 2466, quoting Graham, 560 US at 70.
22
Graham, 560 US at 70-71.
6
is the ultimate penalty for adult offenders, rather than to nonparolable life sentences for
adult offenders.23
In particular, the Supreme Court questioned the ability of mandatory penalties to
take into account the unique circumstances of youth: “mandatory penalties, by their
nature, preclude a sentencer from taking account of an offender’s age and the wealth of
characteristics and circumstances attendant to it.”24 In imposing the harshest penalty
available on a juvenile offender, then, “a sentencer misses too much if he treats every
child as an adult.”25 As a result, the Supreme Court required “that a sentencer follow a
certain process—considering an offender’s youth and attendant characteristics—before
imposing”26 a nonparolable life sentence:
Mandatory life without parole for a juvenile precludes consideration of his
chronological age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences. It prevents
taking into account the family and home environment that surrounds him—
and from which he cannot usually extricate himself—no matter how brutal
or dysfunctional. It neglects 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. Indeed, it ignores that he might
have been charged and convicted of a lesser offense if not for
incompetencies associated with 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 finally, this mandatory
23
Miller, 567 US at __; 132 S Ct at 2466.
24
Id. at __; 132 S Ct at 2467.
25
Id. at __; 132 S Ct at 2468.
26
Id. at __; 132 S Ct at 2471.
7
punishment disregards the possibility of rehabilitation even when the
circumstances most suggest it.[27]
The Supreme Court invalidated any “sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders.”28
It is undisputed—and cannot be disputed—that Miller applies to all cases that
were pending on direct appeal when the decision was issued on June 25, 2012, and that it
applies to all juvenile offenders going forward.29 What is in dispute in Carp and Davis is
whether Miller applies to offenders whose direct appeals were completed before June 25,
2012. After having filed motions for relief from judgment in their respective cases,
defendants Raymond Carp and Cortez Davis now appear before this Court, presenting
that very issue.30 On this question, to which we now turn, Miller was silent31 and courts
across the country are divided.32
27
Id. at __; 132 S Ct at 2468 (citations omitted).
28
Id. at __; 132 S Ct at 2469.
29
“When a decision of this Court results in a ‘new rule,’ that rule applies to all criminal
cases still pending on direct review.” Schriro v Summerlin, 542 US 348, 351; 124 S Ct
2519; 159 L Ed 2d 442 (2004). A case becomes final on direct review “for purposes of
retroactivity analysis when the availability of direct appeal to the state courts has been
exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely
filed petition has been finally denied.” Caspari v Bohlen, 510 US 383, 390; 114 S Ct
948; 127 L Ed 2d 236 (1994). Moreover, the Legislature recognized this when it enacted
new procedures for sentencing juvenile offenders in compliance with Miller. See
MCL 769.25, added by 2014 PA 22. As a result, we would remand Eliason to the
Berrien Circuit Court for resentencing pursuant to MCL 769.25, as the majority does,
because that case was still pending on direct review when Miller was decided.
30
See MCR 6.501 et seq.
31
For the reasons explained later in this opinion, the fact that Miller failed to
categorically bar imposition of a nonparolable life sentence for juvenile offenders does
not require the conclusion that Miller is not retroactive. We similarly deem inconclusive
8
II. RETROACTIVITY UNDER FEDERAL LAW
A. ANALYSIS
In Teague v Lane and its progeny, the United States Supreme Court has explained
when its new rules are retroactive under federal law and thereby apply to cases on
collateral review.33 The threshold inquiry is whether the Supreme Court has, in fact,
as evidence of retroactivity the fact that the Supreme Court did not distinguish Miller
from a companion case appearing before the Supreme Court on collateral review. See
Miller, 567 US at __; 132 S Ct at 2461-2462, 2475; Jackson v Norris, 2013 Ark 175; 426
SW3d 906 (2013) (applying Miller in that companion case). Although the Supreme
Court indicated in Teague v Lane that “implicit in the retroactivity approach we adopt
today, is the principle that habeas corpus cannot be used as a vehicle to create new
constitutional rules of criminal procedure unless those rules would be applied
retroactively to all defendants on collateral review,” Teague v Lane, 489 US 288, 316;
109 S Ct 1060; 103 L Ed 2d 334 (1989) (opinion by O’Connor, J.), it has only
inconsistently followed that approach. See Chaidez v United States, 568 US __; 133 S Ct
1103; 185 L Ed 2d 149 (2013) (holding that Padilla v Kentucky, 559 US 356; 130 S Ct
1473; 176 L Ed 2d 284 (2010), did not apply retroactively notwithstanding the fact that
Padilla appeared before the Supreme Court on collateral review).
32
For example, state appellate courts in California, In re Rainey, 224 Cal App 4th 280;
168 Cal Rptr 3d 719; ___ P3d ___ (2014); Illinois, People v Davis, 2014 Ill 115595; 379
Ill Dec 381; 6 NE3d 709 (2014); Iowa, State v Ragland, 836 NW2d 107 (Iowa, 2013);
Massachusetts, Diatchenko v Dist Att’y, 466 Mass 655; 1 NE3d 270 (2013); Mississippi,
Jones v State, 122 So 3d 698 (Miss, 2013); Nebraska, State v Mantich, 287 Neb 320; 842
NW2d 716 (2014); and Texas, Ex parte Maxwell, 424 SW3d 66 (Tex Crim App, 2014),
have all ruled in favor of Miller’s retroactivity. In contrast, state appellate courts in
Alabama, Williams v State, __ So 3d __ (Ala Crim App, 2014); Louisiana, State v Tate,
La 2012-2763; 130 So 3d 829 (November 5, 2013); Minnesota, Chambers v State, 831
NW2d 311 (Minn, 2013); and Pennsylvania, Commonwealth v Cunningham, 81 A3d 1
(Pa, 2013), have ruled that Miller is not retroactive. Additionally, the appellate courts in
Florida have reached opposite conclusions on the question of retroactivity. Falcon v
State, 111 So 3d 973 (Fla Dist Ct App, 2013) (concluding that Miller did not apply
retroactively), lv gtd 137 So 3d 1019 (Fla, 2013); Toye v State, 133 So 3d 540 (Fla Dist
Ct App, 2014) (concluding that Miller applied retroactively).
33
Teague, 489 US 288. Although the lead opinion in Teague was not supported in whole
by a majority of the court, the Teague retroactivity framework has subsequently been
9
issued a new rule of law. A new rule has been issued and the Teague analysis proceeds if
“the precise holding[s]” in the Supreme Court’s previous cases did not “dictate the result”
of the case being analyzed.34
Once the reviewing court determines that the Supreme Court issued a new rule of
law in the case being analyzed, the reviewing court must then determine whether the new
rule is a substantive rule or a procedural rule:
New substantive rules generally apply retroactively. This includes
decisions that narrow the scope of a criminal statute by interpreting its
terms, as well as constitutional determinations that place particular conduct
or persons covered by the statute beyond the State’s power to punish. Such
rules apply retroactively because they “necessarily carry a significant risk
that a defendant stands convicted of ‘an act that the law does not make
criminal’ ” or faces a punishment that the law cannot impose upon him.
Bousley [v United States, 523 US 614, 620; 118 S Ct 1604; 140 L Ed 2d
828 (1998), quoting Davis v United States, 417 US 333, 346; 94 S Ct 2298;
41 L Ed 2d 109 (1974)].
New rules of procedure, on the other hand, generally do not apply
retroactively. They do not produce a class of persons convicted of conduct
the law does not make criminal, but merely raise the possibility that
someone convicted with use of the invalidated procedure might have been
acquitted otherwise.[35]
adopted by a majority of the Court. Penry v Lynaugh, 492 US 302; 109 S Ct 2934; 106 L
Ed 2d 256 (1989), overruled in part on other grounds by Atkins, 536 US 304. In Penry,
the majority also determined that the Teague framework applied to capital punishment
cases. Because sentencing a juvenile offender to a nonparolable life sentence is the
“ultimate penalty for juveniles,” Miller, 567 US at ___; 132 S Ct at 2466, the Teague
framework similarly applies to nonparolable life sentences for juvenile offenders.
34
Saffle v Parks, 494 US 484, 490; 110 S Ct 1257; 108 L Ed 2d 415 (1990).
35
Summerlin, 542 US at 351-352 (most citations omitted).
10
A rule is procedural if it “regulate[s] only the manner of determining the
defendant’s culpability” or if it “allocate[s] decisionmaking authority.”36 On the other
hand, “[a] decision that modifies the elements of an offense is normally substantive rather
than procedural,” including, for example, a decision stating that “a certain fact [is]
essential to the death penalty . . . .”37 Finally, if the new rule is determined to be
procedural, then it applies retroactively only if it satisfies the two requirements of a
watershed rule of criminal procedure: (1) it must be necessary to prevent an
impermissibly large risk of an inaccurate conviction, and (2) it must alter our
understanding of the bedrock procedural elements essential to the fairness of a
proceeding.38 One such watershed rule of criminal procedure was articulated in Gideon v
Wainwright,39 which requires the appointment of counsel for any indigent defendant
charged with a felony.40
B. APPLICATION
It is uncontested that Miller is a new rule, and we agree with the majority’s
conclusion that “Miller imposed a hitherto-absent obligation on state and lower federal
36
Id. at 353 (emphasis omitted).
37
Id. at 354.
38
Whorton v Bockting, 549 US 406, 417-418; 127 S Ct 1173; 167 L Ed 2d 1 (2007),
citing Summerlin, 542 US at 356.
39
Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963).
40
Whorton, 549 US at 419 (stating that Gideon was a watershed rule of constitutional
procedure within the meaning of Teague).
11
courts to conduct individualized sentencing hearings before imposing a sentence of life
without parole on a juvenile homicide offender.”41
We disagree, however, with the majority’s conclusion that Miller is best
characterized as a procedural ruling such that it applies retroactively to cases on collateral
review only if it is a watershed rule of constitutional procedure. Admittedly, the
distinction between rules of procedure and rules of substance “is not necessarily always a
simple matter to divine.”42 Generally, a substantive rule “place[s] particular conduct or
persons covered by the statute beyond the State’s power to punish,”43 while a procedural
rule “regulate[s] only the manner of determining the defendant’s culpability . . . .”44
State legislatures have the “substantive power to define crimes and prescribe
punishments,”45 subject to constitutional limitations. The Supreme Court articulated one
such limitation in Miller: after Miller, state legislatures no longer can mandate, like the
Michigan Legislature did,46 that a juvenile offender convicted of first-degree murder in
41
Ante at 24. While Miller applied principles contained in several of the Court’s Eighth
Amendment precedents, the “precise holding[s]” of those precedents did not “dictate the
result” of Miller. See Saffle, 494 US at 490.
42
People v Carp, 298 Mich App 472, 512; 828 NW2d 685 (2012), citing Robinson v
Neil, 409 US 505, 509; 93 S Ct 876; 35 L Ed 2d 29 (1973).
43
Summerlin, 542 US at 352.
44
Id. at 353 (emphasis omitted).
45
Jones v Thomas, 491 US 376, 381; 109 S Ct 2522; 105 L Ed 2d 322 (1989).
46
See MCL 750.316 (stating that first-degree murder shall be punished by imprisonment
for life); MCL 769.1(1) (stating that a juvenile convicted of first-degree murder shall be
sentenced “in the same manner as an adult”); MCL 791.234(6)(a) (stating that someone
sentenced to life imprisonment for first-degree murder “is not eligible for parole”).
12
the circuit court receive a nonparolable life sentence.47 In Graham, the Supreme Court
“recognized the severity of sentences that deny convicts the possibility of parole”48 when
it categorically barred a state from imposing a nonparolable life sentence (whether
discretionary or mandatory) on a juvenile nonhomicide offender. While Miller does not
prohibit a sentencer from imposing a nonparolable life sentence on a juvenile homicide
offender in the appropriate case, the Supreme Court categorically barred mandatory
nonparolable life sentences for such offenders.
After Miller, if a state chooses to permit the sentencing of juveniles to
nonparolable life,49 then the state must provide some procedure that requires the
sentencer to consider the particular facts and circumstances of the crime and the offender.
The Court of Appeals and, to some extent, the majority have placed particular importance
on a single line in Miller: that the decision “mandates only that a sentencer follow a
certain process . . . before imposing a particular penalty.”50 However, the mere fact that
Miller mandates “a certain process,” or has procedural implications, does not transform
the decision itself into a procedural decision. To the contrary, Miller invalidated an
47
Indeed, the majority acknowledges that “[i]t thus seems certain as a result of Miller that
a considerable number of juvenile defendants who would previously have been sentenced
to life without parole for the commission of homicide offenses will have a lesser sentence
meted out.” Ante at 25.
48
Graham, 560 US at 70.
49
Michigan has recently done so. 2014 PA 22.
50
Miller, 567 US at __; 132 S Ct at 2471.
13
entire “sentencing scheme” that “mandate[d] life in prison without possibility of parole
for juvenile offenders.”51
The majority claims that the distinction between the “categorical bar” of a penalty
and the “noncategorical bar” of a penalty “defines the critical element of the retroactivity
analysis in Teague.”52 This distinction, however, is not dispositive to the Teague
analysis, which focuses on whether the decision is substantive or procedural, not on
whether it is categorical or noncategorical. By elevating the categorical/noncategorical
distinction in the way it does, the majority muddles the Teague analysis to state that
noncategorical bars must be procedural in nature. Even if all categorical bars are
substantive, it does not logically follow that all noncategorical bars must be procedural.53
Rather, for the reasons stated later in this opinion, the fact that Miller did not
categorically bar nonparolable life sentences for juvenile offenders does not negate the
substantive import of its decision to invalidate mandatory nonparolable life sentences as
applied to juvenile offenders.
The substantive nature of Miller’s holding becomes clearer upon considering that
it did not invalidate mandatory sentencing schemes as applied to adult offenders.54
51
Id. at __; 132 S Ct at 2469 (emphasis added).
52
Ante at 38 n 16.
53
The division among our nation’s courts with regard to whether this proposition is
correct or incorrect suggests that our nation’s jurisprudence would benefit from a
clarification of the substantive/procedural distinction.
54
In Michigan, for instance, first-degree murder remains punishable by life in prison
without the possibility of parole. MCL 750.316; MCL 791.234(6).
14
Rather, in Miller, the Supreme Court made one fact—the age of the offender at the time
of the offense—determinative regarding whether a state or the federal government can
mandate the imposition of a nonparolable life sentence.55 As a result, Miller did not alter
“only the manner of determining the defendant’s culpability,”56 but instead also altered
the range of punishments that must be available to impose on a juvenile offender.
After Miller, the offender’s age at the time of the offense determines which of two
sentencing schemes applies to the offender—that is, whether the offender is subject to a
mandatory nonparolable life sentence (because the offender is an adult) or whether the
sentence must take into account the offender’s age and characteristics of youth, as well as
the circumstances of the offense (because the offender is a juvenile).57 While previously,
in Michigan, juvenile offenders convicted of first-degree murder in the circuit court were
subject to only one possible punishment—life imprisonment without the possibility of
parole—after Miller, the prosecution must specifically request a nonparolable life
sentence, rather than a term of years, after which the court must hold a hearing to
consider the offender’s characteristics and the circumstances of the offense before
55
In Summerlin, the Supreme Court explained that a decision making “a certain fact
essential to the death penalty” is a substantive rule of law within the Teague framework.
Summerlin, 542 US at 354.
56
Summerlin, 542 US at 353 (emphasis altered).
57
Someone who is convicted of first-degree murder committed as an adult in Michigan is
still subject to the mandatory penalty of life in prison without the possibility of parole,
MCL 750.316; MCL 791.234(6)(a), while a juvenile offender is no longer subject to the
same mandatory sentence. MCL 769.25.
15
deciding whether to impose a nonparolable life sentence or a term of years.58 As a result,
age affects the range of sentences that can be imposed on someone convicted of first-
degree murder in Michigan. It produces a class of persons subject to a different range of
sentences than was previously mandated and thus reflects a substantive rule of law that
applies retroactively under the Teague framework.
The majority analyzes what it deems the “form and effect” of Miller and
concludes differently. Under its rationale, Miller is not retroactive in large part because
the Supreme Court did not categorically bar a sentence as applied to a class of
individuals, which it did in Roper and Graham. Rather, juvenile offenders sentenced to
nonparolable life have been given a punishment that is within the power of the state to
impose. The majority thus determines that Miller is more similar to cases involving the
individualized imposition of the death penalty, which, the majority asserts, are cases
involving new procedural rules.
The majority is insightful, to a point, by comparing Miller with Woodson v North
Carolina, which struck down a sentencing scheme that mandated the death penalty upon
conviction of certain offenses.59 Indeed, after Woodson, the Supreme Court requires an
58
It is particularly relevant that Miller left considerable discretion for states to craft
procedural mechanisms for ensuring the protection of a juvenile defendant’s Eighth
Amendment rights. The Legislature exercised such discretion in response to Miller, 2014
PA 22, adding MCL 769.25.
59
Woodson v North Carolina, 428 US 280; 96 S Ct 2978; 49 L Ed 2d 944 (1976). See
also Sumner v Shuman, 483 US 66; 107 S Ct 2716; 97 L Ed 2d 56 (1987), which
similarly struck down a sentencing scheme that mandated the death penalty upon
conviction of certain offenses committed while serving a nonparolable life sentence.
16
individualized sentencing procedure if a state chooses to impose the death penalty.60
Woodson also illustrates the problem with the majority’s method of distinguishing
procedural from substantive holdings. The majority claims that substantive holdings
“produce a single invariable result, or a single effect, when applied to any defendant in
the class of defendants to whom the rule is pertinent,” while procedural holdings
“produce a range of results, or have multiple possible effects, when applied to different
defendants in the class of defendants to whom the rule is pertinent.”61 In requiring an
individualized procedure before a state can impose the death penalty, however, Woodson
placed a particular punishment beyond the power of the state to mandate. So too did
Miller place a particular punishment beyond the power of the state to mandate. The
majority’s distinction fails to give appropriate import to these decisions that involve more
than simply the creation of particular procedural rights.
While Woodson required a state to provide some sort of procedural mechanism
before it could impose capital punishment, it only offered minimal guidance on what
procedures are required and, specifically, on who should decide whether an individual
was eligible to receive the death penalty. After Woodson, some states listed aggravating
factors that rendered an offense eligible for the death penalty. The Supreme Court
subsequently held, in Ring v Arizona, that the Sixth Amendment right to a jury trial
60
If the Supreme Court had definitively held Woodson to be a procedural ruling, then it
would be difficult to distinguish Miller. However, if the Supreme Court has not ruled
that Woodson is retroactive, as the majority posits, then neither has it ruled that Woodson
is only prospective.
61
Ante at 16-17.
17
requires a jury to determine the presence or absence of the aggravating factors that
qualify an offender as death-eligible.62
In Schriro v Summerlin, the Supreme Court determined that Ring was procedural,
and therefore not retroactive, because the aggravating factors at issue there remained
“subject to the procedural requirements the Constitution attaches to trial of elements.”63
The prototypical procedural decision merely “allocate[s] decisionmaking authority.”64
Unlike Ring, Miller does more than merely allocate decision-making authority. While
Ring only “altered the range of permissible methods for determining whether a
defendant’s conduct is punishable by death,”65 Miller went beyond that and altered the
range of punishments available to a juvenile homicide offender by requiring that a state’s
mandatory minimum punishment be something less than nonparolable life. Indeed, it
does not simply allocate decision-making authority but establishes that authority in the
first instance. The majority implicitly recognizes this by observing that, as Ring shifted
the decision-making authority for imposing capital punishment from the judge to the jury,
62
Ring v Arizona, 536 US 584; 122 S Ct 2428; 153 L Ed 2d 556 (2002).
63
Summerlin, 542 US at 354.
64
Id. at 353.
65
Id. (emphasis added). Contrary to the majority’s claim, ante at 36 n 14, Ring did not
invalidate Arizona’s entire capital punishment sentencing scheme because both before
and after Ring the same substantive punishments were available for offenders in Arizona.
Rather, it shifted decision-making authority within that sentencing scheme from the judge
to the jury. By contrast, in Miller, the Supreme Court invalidated any sentencing scheme
that mandated a nonparolable life sentence by requiring the sentencer to consider some
additional sentence—whether parolable life, a term of years (as the Michigan Legislature
chose), or both.
18
Miller shifted the decision-making authority from one branch of government (the
legislative) to another (the judiciary).66 Put simply, Miller involved not just who
exercises the decision-making authority for imposing a punishment, but what
punishments must be considered.
The majority glosses over the substantive import of this distinction, and in doing
so ignores the fact that, both before and after Ring, there existed the possibility for a
punishment less than death, while only after Miller does there exist the possibility for a
juvenile homicide offender to receive a punishment less than nonparolable life.67 While
Miller indisputably contains a procedural component, its decision to expand the range of
punishments that may be imposed on juvenile offenders convicted of homicide squarely
66
Ante at 36.
67
Interestingly, the majority suggests that Justice Breyer’s concurring opinion in Miller,
had it received majority support, would be deemed a substantive rule and thus would
apply retroactively. Ante at 19 n 6. Justice Breyer would have conditioned the state’s
ability to impose a nonparolable life sentence on whether the individual homicide
offender “ ‘kill[ed] or intend[ed] to kill’ ” the victim. Miller, 567 US at __; 132 S Ct at
2475 (Breyer, J., concurring), quoting Graham, 560 US at 69 (alterations in original).
But both Justice Breyer’s concurrence and Justice Kagan’s majority opinion condition the
imposition of a nonparolable life sentence on an assessment of a particular defendant’s
culpability for a homicide offense and allow only a subset of individuals convicted of
first-degree murder to be eligible for a nonparolable life sentence. Accordingly, the
distinction that the majority creates between the majority and concurring opinions in
Miller is without a difference and counsels in favor of applying Miller retroactively:
while previously no limitation existed before a state could impose a nonparolable life
sentence as punishment for a homicide offense, now an offender’s individual culpability
in the homicide must be assessed. The Miller majority’s individualized procedure
contains additional factors that govern whether a defendant may be punished with
nonparolable life, and Justice Breyer’s proposed individualized procedure would work in
the same manner. Each invalidates the substantive, mandatory punishment that certain
states imposed for juvenile offenders convicted of homicide.
19
places Miller in the category of substantive decisions.68 No longer can Congress or a
state legislature constitutionally choose to adopt a sentencing scheme that mandates the
imposition of a nonparolable life sentence on juvenile homicide offenders.69
Indeed, if Miller were merely a procedural decision, the Supreme Court would not
have examined—and found wanting—the penological aims of a state legislature’s
substantive policy choice to impose a mandatory nonparolable life sentence on juvenile
homicide offenders. In fact, in Miller, the Court explained that none of the permissible
penological aims—retribution, deterrence, incapacitation, and rehabilitation—warrant
mandatory nonparolable sentences for juvenile offenders.70 Similarly, in Atkins v
68
The majority claims that “[w]e are bound to abide by” the Supreme Court’s
understanding of “when a new rule ‘alters the range’ of available punishments,” and
suggests that this applies only when the rule “ ‘place[s] particular conduct or persons
covered by the statute beyond the State’s power to punish.’ ” Ante at 30-31, quoting
Summerlin, 542 US at 352 (alteration in original). However, Summerlin’s description of
a substantive rule is inclusive and not exclusive, and the majority overstates the Supreme
Court’s position when it forecloses, on the basis of that statement in Summerlin, the
possibility that a substantive decision is one that “makes a previously unavailable lesser
punishment available to the sentencer . . . .” Ante at 30.
69
To the majority, a rule that “merely expands the range of possible punishments that
may be imposed on the defendant” is procedural because, in theory, the state still has the
power to punish a juvenile offender with a nonparolable life sentence. Ante at 35
(emphasis omitted). However, this distinction is misplaced because the Supreme Court
nevertheless placed a substantive limitation on a state’s policy decisions: after Miller the
state no longer has the power to mandate a nonparolable life sentence as punishment for a
crime committed by a juvenile offender.
70
For instance, retribution as a penological rationale “relates to an offender’s
blameworthiness” and, accordingly, “ ‘the case for retribution is not as strong with a
minor as with an adult.’ ” 70 Miller, 567 US at ___; 132 S Ct at 2465, quoting Graham,
560 US at 71 (citation and quotation marks omitted). Deterrence is similarly limited
because “ ‘the same characteristics that render juveniles less culpable than adults’—their
immaturity, recklessness, and impetuosity—make them less likely to consider potential
20
Virginia, the Supreme Court examined the penological justifications for imposing the
death penalty on mentally handicapped individuals and found those justifications
lacking.71
Nevertheless, Atkins acknowledged that states are provided with considerable
discretion to fashion procedures to determine whether an offender must be excluded from
consideration of the death penalty:
Not all people who claim to be mentally retarded will be so impaired as to
fall within the range of mentally retarded offenders about whom there is a
national consensus. As was our approach in Ford v. Wainwright with
regard to insanity, “we leave to the State[s] the task of developing
appropriate ways to enforce the constitutional restriction upon [their]
execution of sentences.”[72]
punishment” before committing a crime. Miller, 567 US at __; 132 S Ct at 2465, quoting
Graham, 560 US at 72 (citation and quotation marks omitted). Incapacitation “would
require ‘mak[ing] a judgment that [the offender] is incorrigible’—but ‘incorrigibility is
inconsistent with youth.’ ”70 Miller, 567 US at __; 132 S Ct at 2465, quoting Graham,
560 US at 72-73 (citation and quotation marks omitted) (first alteration in original). See
also Steinberg & Scott, Less Guilty by Reason of Adolescence, 58 Am Psychologist at
1014 (“Only a relatively small proportion of adolescents who experiment in risky or
illegal activities develop entrenched patterns of problem behavior that persist into
adulthood . . . .”). Nor can a nonparolable life sentence “be justified by the goal of
rehabilitation” because it “forswears altogether the rehabilitative ideal” and “makes an
irrevocable judgment about that person’s value and place in society.” Graham, 560 US at
74. See also Steinberg & Scott, Less Guilty by Reason of Adolescence, 58 Am
Psychologist at 1015 (stating that because the criminal behavior of juvenile offenders, “is
quite different from that of typical adult criminals,” the diagnosis of antisocial personality
disorder is not made before the age of 18).
71
Atkins, 536 US at 321 (“We are not persuaded that the execution of mentally retarded
criminals will measurably advance the deterrent or the retributive purpose of the death
penalty.”).
72
Id. at 317, quoting Ford v Wainwright, 477 US 399, 405, 416-417; 106 S Ct 2595; 91 L
Ed 2d 335 (1986) (citation omitted) (alterations in original).
21
Miller likewise provided states with considerable discretion to determine how a juvenile
offender is to be adjudged sufficiently culpable as an individual to warrant imposition of
a nonparolable life sentence.73 In other words, after Atkins, a court must make an
individual determination of whether an offender’s mental capacity precludes
consideration of the death penalty.74 After Miller, so too must a court make an individual
determination of whether a juvenile offender’s youth and attendant characteristics
preclude consideration of a nonparolable life sentence.75 That Atkins required states to
provide additional procedural safeguards to ensure that they complied with the
substantive limitations of the Eighth Amendment does not negate its substantive nature,76
73
If, for instance, the Supreme Court were to hold in a subsequent decision that the Sixth
Amendment right to a jury trial requires a jury to determine a juvenile offender’s
culpability for purposes of imposing a nonparolable life sentence, then that hypothetical
future holding would be considered procedural rather than substantive. See Summerlin,
542 US 348.
74
This individual determination, made under state law, also shows the weakness of the
majority’s “form and effect” interpretation of Teague, which requires a substantive
decision to have uniform effect. Because Atkins left states with considerable discretion to
define mental retardation, a person whose mental capacity precludes consideration of the
death penalty in one state could nevertheless be subject to the death penalty in a different
state. The majority struggles to fit Atkins within its “form and effect” interpretation—
particularly given that the state’s exercise of its discretion both in Miller and Atkins is to
ensure that only culpable offenders are subject to the ultimate punishment available to
juvenile offenders and adults, respectively.
75
Furthermore, just as “some characteristics of mental retardation undermine the strength
of the procedural protections that our capital jurisprudence steadfastly guards,” Atkins,
536 US at 317, some characteristics of youth likewise undermine the existing procedural
protections in our justice system, including the right to the effective assistance of counsel,
Miller, 567 US at __; 132 S Ct at 2468 (suggesting that a juvenile offender may be
prejudiced because of “his incapacity to assist his own attorneys”).
76
In re Holladay, 331 F3d 1169, 1172 (CA 11, 2003) (holding that Atkins applies
retroactively).
22
just as Miller’s requirement of new procedural safeguards does not negate its substantive
nature. In other words, neither Atkins nor Miller defined precisely the class of offenders
precluded from a particular punishment; rather, fact-finders must examine individual
culpability to determine whether a particular offender is eligible for that punishment. The
broad deference thus afforded to states in the adjudication of the individualized hearings
required under Atkins and Miller only reinforces the substantive nature of those holdings.
In the end, the majority strains to place Miller in a procedural box into which it
will not comfortably fit. Miller is based on the substantive differences between juveniles
and adults and the potentially reduced culpability of juveniles for the crimes that they
commit. While there are procedural implications to the decision—as Miller itself
acknowledged—the “form and effect” of the opinion, to use the majority’s phrase, is that
the Eighth Amendment places a substantive limitation on how states can punish juvenile
offenders. Accordingly, we would hold that Miller applies retroactively under federal
law.
Even if we were to agree with the majority that Miller announced a new rule of
criminal procedure, which we do not, an alternative basis supports our conclusion that
Miller should apply retroactively. That is, as a separate and independent matter, we
would hold that Miller applies retroactively under state law. It is to that analysis that we
now turn.
III. RETROACTIVITY UNDER MICHIGAN LAW
A. ANALYSIS
This Court has consistently asserted that three factors are relevant in determining
whether a new rule of criminal procedure should be applied retroactively under state law,
23
even if such a new rule of criminal procedure does not apply retroactively under federal
law:
(1) the purpose of the new rules; (2) the general reliance on the old
rule[;] and (3) the effect of retroactive application of the new rule on the
administration of justice.[77]
The county prosecutors involved in these cases and the Attorney General argue
that this Court should reverse this existing caselaw and rule that the retroactivity analysis
under Michigan law is identical to the retroactivity analysis under federal law as
articulated in Teague and its progeny. They claim that our caselaw is outdated because it
applies the test for retroactivity that the Supreme Court abandoned in Teague.78 The
Supreme Court, however, has explicitly recognized that Teague’s approach to
retroactivity incorporates federalism and comity concerns that “are unique to federal
habeas review of state convictions.”79 Therefore, “[i]f anything, considerations of comity
militate in favor of allowing state courts to grant habeas relief to a broader class of
individuals than is required by Teague.”80 To this end, we duly concluded only six years
ago that “a state court may use a different test to give broader effect to a new rule of
criminal procedure established by the United States Supreme Court.”81 There is no
reason to abandon that approach now.
77
People v Sexton, 458 Mich 43, 60-61; 580 NW2d 404 (1998).
78
See Linkletter v Walker, 381 US 618, 626; 85 S Ct 1731; 14 L Ed 2d 601(1965).
79
Danforth v Minnesota, 552 US 264, 279; 128 S Ct 1029; 169 L Ed 2d 859 (2008).
80
Id. at 279-280.
81
People v Maxson, 482 Mich 385, 392 n 3; 759 NW2d 817 (2008). See also id. at 404-
405 (CAVANAGH, J., dissenting).
24
B. APPLICATION
As stated, the first factor that a reviewing court must consider in assessing a new
rule’s retroactivity under state law is the purpose of the new rule. “Under the ‘purpose’
prong, a law may be applied retroactively when it ‘concerns the ascertainment of guilt or
innocence[,]’ however, ‘a new rule of procedure . . . which does not affect the integrity of
the fact-finding process should be given prospective effect.’ ”82 While sentencing
procedures do not concern the ascertainment of guilt or innocence for the underlying
offense, sentencing is a fact-finding process that allows the sentencer to ascertain an
offender’s culpability for the offense.83 Indeed, Miller mandates a new fact-finding
82
Maxson, 482 Mich at 393, quoting Sexton, 458 Mich at 63 (citation and quotation
marks omitted).
83
See McConnell v Rhay, 393 US 2, 3-4; 89 S Ct 32; 21 L Ed 2d 2 (1968) (stating that
sentencing relates to the integrity of the fact-finding process under Linkletter). The
majority reads McConnell narrowly on the ground that McConnell implicated the right to
counsel during the sentencing process. However, it did so precisely because the
sentencing process is part of the fact-finding process. Indeed, this Court’s own
jurisprudence involving sentencing describes the sentencing process as requiring the
sentencing court to make “factual determination[s].” See, e.g., People v Babcock, 469
Mich 247, 264; 666 NW2d 231 (2003) (citations and quotation marks omitted). The fact
that this Court has not yet had the opportunity to analyze the sentencing process in the
context of retroactivity does not prevent the principles that we have articulated from
applying in this context.
Contrary to the majority’s claim, it is irrelevant that the Supreme Court has
abandoned the pre-Teague framework in determining the application of this state’s
independent retroactivity jurisprudence. Indeed, saying that this Court has “no
obligation . . . to forever maintain the Linkletter test in accordance with every past federal
understanding,” ante at 51, classifying the foundational caselaw of Michigan’s
retroactivity test as “defunct,” ante at 52, and stating that “only the extraordinary new
rule of criminal procedure,” whatever that may mean, “will be applied retroactively under
Michigan’s test when retroactivity is not already mandated under Teague,” ante at 49
comes perilously close to deciding to maintain the principles underlying this state’s
traditional retroactivity framework only when Teague and its progeny militate in favor of
25
process to determine whether a nonparolable life sentence is appropriate in a particular
case. As a result, this factor supports the retroactive application of Miller.
The second factor “examines whether individual persons or entities have been
‘adversely positioned . . . in reliance’ on the old rule.”84 Detrimental reliance on the old
rule can apply to defendants who have “suffered harm as a result of that reliance” when
they would have pursued an appeal that “would have resulted in some form of relief.”85
In these cases, defendants were adversely positioned in reliance on the old rule because
the sentencing judges did not have discretion to provide a sentence other than
nonparolable life and because, until Miller, there was no basis in existing caselaw to
appeal this lack of discretion.86 Moreover, because the Supreme Court stated that
retroactivity. We would not turn Michigan’s retroactivity framework into such a
parchment barrier. See Federalist No. 48 (James Madison) (Wright ed, 2002), p 343.
84
Maxson, 482 Mich at 394 (citation omitted).
85
Id. at 394, 396 (emphasis omitted).
86
Indeed, Davis’s sentencing judge sought to sentence him to a term of years instead of a
nonparolable life term and was overturned on the prosecution’s appeal. This fact alone
illustrates how defendants as a class were adversely positioned in reliance on the old
rule—after Miller, every defendant is entitled to “some form of relief,” i.e., an
individualized sentencing hearing that allows the sentencer to consider a punishment less
than nonparolable life. Maxson, 482 Mich at 396 (emphasis omitted). Unlike in Maxson,
we cannot assume that juvenile offenders did not appeal their nonparolable life sentences
“because of factors unrelated to, and existing before, the old rule.” Id. Instead, we must
assume that any failure to appeal occurred simply because the old rule provided no judge
with discretion to deviate from a nonparolable life sentence. That Michigan caselaw
upheld the constitutionality of our pre-Miller sentencing scheme, see People v
Launsburry, 217 Mich App 358; 551 NW2d 460 (1996), further supports defendants’
detrimental reliance on the old rule because it reduced the likelihood that a mandatory
nonparolable life sentence would have been overturned on appeal.
26
imposition of nonparolable life sentences would be “uncommon”87 after Miller, it is
likely that many of the juvenile offenders already serving nonparolable life sentences
would have, in fact, been sentenced to a term of years if they had received a sentencing
hearing pursuant to Miller. As a result, this factor also supports the retroactive
application of Miller.88 Nevertheless, this prong is not dispositive: a reviewing court
must balance the detrimental reliance on the old rule “against the other . . . factors, as
87
Miller, 567 US at __; 132 S Ct at 2469.
88
It bears repeating Miller’s statements that “appropriate occasions for sentencing
juveniles to this harshest possible penalty will be uncommon” and that only the “rare
juvenile offender” will commit a crime that “reflects irreparable corruption.” Id. at ___;
132 S Ct at 2469 (emphasis added) (citations and quotation marks omitted). As a result,
the majority’s claim that it is “speculative at best” to presume that juvenile offenders will
gain relief under Miller, is indeed questionable. Ante at 60-61.
Furthermore, contrary to the majority’s assertion that chronological age at the time
of the offense “will weigh relatively heavily at sentencing hearings,” ante at 60 n 35, a
juvenile offender’s chronological age is only one relevant consideration in determining
whether the offender deserves a “sentence of life (and death) in prison.” Miller, 567 US
at ___; 132 S Ct at 2468. Indeed, under Miller, a sentencer must consider the offender’s
chronological age, mental and emotional development, family and home environment,
and potential for rehabilitation, along with the circumstances of the offense, which
include the individual offender’s role in the crime and whether familial and peer
pressures may have affected the juvenile. Id. at ___; 132 S Ct at 2468. Simply stated,
under Miller, a sentencer must “examine all these circumstances before concluding that
life without any possibility of parole [is] the appropriate penalty.” Id. at ___; 132 S Ct at
2469 (emphasis added). The majority, however, places “significant weight” on a
juvenile’s chronological age at the time of the offense. Ante at 60 n 35. By stating that a
juvenile who nears the age of majority at the time of the offense is “least likely” to be
afforded “special leniency,” ante at 60, that a juvenile “may even turn 18 during the
proceedings related to the offense,” ante at 60 n 35, that a nonparolable life sentence is
“increasingly likely to be permissible” to the extent the offender’s age nears the age of
majority, ante at 22 n 9, and that age “may well constitute the single best factor” for
determining culpability, ante at 60 n 35, the majority makes generalizations that ignore
Miller’s multifaceted and holistic examination of the offender’s individual characteristics.
27
well as against the fact that each defendant . . . has received all the rights under the law to
which he or she was entitled at the time.”89
Indeed, applying the third factor takes into account this reliance on the old rule by
examining whether applying the new rule retroactively would undermine the state’s
“strong interest in finality of the criminal justice process . . . .”90 Nevertheless, this factor
does not counsel against retroactivity in the way the majority asserts it does. Simply put,
applying Miller retroactively would not affect the finality of convictions in this state.
Rather, it would only require an individualized resentencing process for the relatively
small class of prisoners sentenced to nonparolable life for homicides that they committed
while juveniles.91
89
Maxson, 482 Mich at 397. The majority concludes that this second factor “must be
considered both from the perspective of prosecutors across the state when prosecutors
faithfully abided by the constitutional guarantees in place at the time of a defendant’s
conviction,” and “from the collective perspective of the 334 defendants who would be
entitled to resentencing if the new rule were applied retroactively.” Ante at 55. However,
that principle is not found in this Court’s traditional caselaw regarding retroactivity, and
the authoring justice’s own examination of retroactivity in People v Maxson did not
engage in such an additional inquiry. See Maxson, 482 Mich at 394-397. Indeed, as
Maxson acknowledged, our traditional caselaw regarding retroactivity requires us to
balance the other factors “against the fact that each defendant . . . has received all the
rights under the law to which he or she was entitled at the time.” Id. at 397. The
majority’s application of our retroactivity caselaw gives the state’s reliance interests
undue weight by factoring those interests twice—once as part of the second factor and
again as part of the third factor. The majority has not pointed to any reasons that would
support revisiting the authoring justice’s examination of retroactivity in Maxson in the six
years since it was decided.
90
Maxson, 482 Mich at 397.
91
If Miller resentencing hearings were to be evenly divided among the circuit court
bench, each circuit judge would receive, on average, two additional sentencing hearings.
That is hardly a strain on the state’s judicial resources. This is in stark contrast to the
potential of “guilty-pleading defendants whose convictions [had] become final [to]
28
The majority concludes that requiring a sentencing hearing for offenders whose
direct appeals are complete would be “burdensome and complicated,” if not “almost
impossibl[e]. . . .”92 Setting aside the majority’s doubt regarding the possibility of
reconstructing the evidence required to conduct such a hearing, Miller’s goal is to
determine, as best as possible, a juvenile offender’s ability to reform.93 A sentencing
hearing under Miller—particularly one conducted many years or even decades after the
original offense—will assist in determining whether an offender “pose[s] a physical
threat . . . to individuals living in our most vulnerable neighborhoods”94 and,
consequently, is irreparably corrupt.95 This is particularly true in Michigan, where the
Legislature has decided that a hearing conducted pursuant to Miller may take into
inundate the appellate process with new appeals” that, in part, prompted a majority of this
Court to reject the retroactivity of Halbert v Michigan, 545 US 605; 125 S Ct 2582; 162
L Ed 2d 552 (2005). Maxson, 482 Mich at 398.
92
Ante at 61-62. The law, and particularly judicial proceedings, are frequently
burdensome and complicated. That the Constitution sometimes requires burdensome and
complicated proceedings should not impede our duty to ensure that constitutional rights
are enforced.
93
The majority’s emphasis on reconstructing the circumstances of the crime and the
impulsiveness of the juvenile offender’s activity is misplaced. As a result, the majority
misinterprets the hearing called for under Miller as entirely backward-looking. Miller’s
goal is to ensure that the sentencing court considers the evidence that it has available to it
in deciding whether an individual offender has the ability to reform.
94
Ante at 62.
95
See Miller, 567 US at ___; 132 S Ct at 2469.
29
account changed circumstances, including post-arrest conduct.96 Accordingly, the
majority errs by asserting that it is “fanciful” to believe that Miller can effectively be
applied retroactively or that applying Miller retroactively will inevitably result in the
“premature release of large numbers of persons” who “continue to pose a physical
threat . . . .”97
Because each of these factors supports retroactive application of Miller under state
law, we would hold that independent state law grounds exist to apply Miller retroactively.
IV. CONCLUSION
For the reasons stated in this opinion, we respectfully dissent from the majority’s
decision not to apply Miller v Alabama retroactively under either federal or state law.
Instead, we would reverse the Court of Appeals in Carp and Davis and remand to the St.
Clair Circuit Court and Wayne Circuit Court, respectively, for resentencing pursuant to
MCL 769.25a.98 Because Miller struck down sentencing schemes that applied mandatory
nonparolable life sentences to juvenile homicide offenders, it altered the range of
sentences that may be imposed on a juvenile homicide offender and effected a
substantive change in the law. The majority has ruled that not all juvenile offenders will
receive the benefit of Miller’s decision to foreclose a state from mandating a
96
See MCL 769.25(6) (allowing the sentencing court to consider at the sentencing
hearing under Miller “any other criteria relevant to its [sentencing] decision, including
the individual’s record while incarcerated”).
97
Ante at 62-63.
98
As previously indicated, we would also remand Eliason to the Berrien Circuit Court for
resentencing pursuant to MCL 769.25, as the majority does.
30
nonparolable life sentence, notwithstanding the Supreme Court’s assertion that only the
“rare juvenile offender” will commit a crime that “reflects irreparable corruption”
punishable by a nonparolable life sentence.99 As a result, although Miller held that
“children are different” as a matter of constitutional law,100 today’s decision ensures that,
merely because of the timing of a conviction and appeal, some children are more
different than others.
Mary Beth Kelly
Michael F. Cavanagh
Bridget M. McCormack
99
Miller, 567 US at __; 132 S Ct at 2469 (emphasis added) (citations and quotation
marks omitted).
100
Id. at __; 132 S Ct at 2470.
31