Od People of Michigan v. Jamar Terrelle Purdle ( 2024 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
February 22, 2024
Plaintiff-Appellee,
v No. 353821
Kent Circuit Court
JAMAR TERRELLE PURDLE, LC No. 19-003606-FC
Defendant-Appellant.
ON REMAND
Before: CAMERON, P.J., and M. J. KELLY and SHAPIRO, JJ.
SHAPIRO, J. (dissenting).
I respectfully dissent and would remand for resentencing.
The only crime in Michigan for which a defendant may be sentenced to life without parole
is first-degree murder. MCL 750.316(1). This is the harshest sentence that can be imposed
because it means that the defendant will not be considered for parole within his lifetime. A
defendant convicted of second-degree murder may not lawfully be sentenced to life without parole.
A defendant convicted of second-degree murder may be sentenced to “life, or any term of years,”
MCL 750.317, but cannot be denied the possibility of release through parole. See People v Jenkins,
395 Mich 440, 442; 236 NW2d 503 (1975), overruled on other grounds by People v Cornell, 466
Mich 335; 646 NW2d 127 (2002). This statutory language has been in effect “at least since 1846.”
Elliot v Dep’t of Corrections, 343 Mich 681, 689; 73 NW2d 298 (1955).
Defendant was 31 years old when he was sentenced to a minimum term of 56 years, 8
months. Given that sentence, he will not even be considered for parole until he is 88 years old.
By contrast, an individual sentenced to life with the possibility of parole must be considered for
parole after 15 years. MCL 791.234(8)(b). One need not be a legal scholar to observe that this
dichotomy makes little sense, as it provides for a far earlier opportunity for parole for someone
sentenced to life imprisonment than someone sentenced to a term of years.
This has not always been the case. In 1989, in People v Moore, 432 Mich 311, 329; 439
NW2d 684 (1989), the Michigan Supreme Court held that a “term of years must be an
indeterminate sentence less than life. It must be something that is reasonably possible for a
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defendant actually to serve.” (quotation marks and citation omitted). The Court did not require
that the trial court make an individualized estimate of a defendant’s life expectancy, but did “direct
the trial court to fashion a sentence that a defendant in his mid-to late- thirties has a reasonable
prospect of actually serving.” Id. See also People v McNeal, 156 Mich App 379, 381; 401 NW2d
650 (1986) (“[A] parolable life term is, as a matter of law, a lengthier sentence than any term of
years[.]”).
The Moore decision was, however, abrogated in People v Lemons, 454 Mich 234; 562
NW2d 447 (1997). In my view, the opinion in Moore and the partial dissent in Lemons have the
far better of the argument, and I urge the Supreme Court to reconsider Lemons. A minimum term
of years that cannot be reasonably expected to be servable within a defendant’s lifetime is greater
than a sentence of life with parole eligibility after 15 years, and improperly sidesteps the
requirement that even those guilty of second-degree murder and sentenced to life are entitled to
parole consideration within their lifetimes.
Lemons was decided in a very different context than exists today. In 1997, prisoners were
eligible for disciplinary credits that would result in far earlier parole consideration.1 The effect of
disciplinary credit reductions should not be underestimated. When Lemons was decided, a prisoner
sentenced to a 40-year minimum term and who received the maximum credits available to him
would be eligible for parole consideration after 16 years. Levine, Too Many Prisoners: Undoing
the Legacy of Getting Too Tough, 96 Mich B J 32, 34 (Sep 2017). In other words, even lengthy
terms-of-year sentences provided defendants with parole consideration within their lifetimes.
Today, the same prisoner would not eligible for parole consideration until he has served 40 years.
Granted, determining whether a particular defendant will live past his minimum term is not
an exact science, and likely asks too much of trial courts to consider the individual variations in
health, sex, and race that affect life expectancy. Hence, the Moore Court concluded that the issue
turns on the life expectancy of an average prisoner. This may not be a perfect standard, but it is
workable and minimizes the likelihood of a term of years exceeding a life sentence. According to
an analysis of New York state parole data from 1989 to 2003, “Each additional year in prison
produced a 15.6% increase in the odds of death for parolees, which translated to a 2-year decline
in life expectancy for each year served in prison.”2 Whether these statistics are precisely accurate
can certainly be challenged, but even if the effect is 50% of what the study found, a 31-year-old
prisoner, like defendant, will lose a year of their life expectancy for every year they spend in prison.
Even assuming this more modest effect, it cannot be reasonably concluded that a 31-year-old will
survive to age 88 in prison. In other words, defendant will never even be considered for parole.
When trial courts impose terms-of-year sentences that cannot be reasonably expected to be
servable within the lifetime of a similarly-aged prisoner in average health, it amounts to a de facto
1
Beginning in 1857, Michigan “permitt[ed] the convicts to earn good time by good conduct[.]”
In re Walsh, 87 Mich 466, 468; 49 NW 606 (1891).
2
Evelyn J. Patterson, The Dose-Response of Time Served in Prison on Mortality: New York State,
1989-2003, American Journal of Public Health (March 2013)
<https://ajph.aphapublications.org/doi/full/10.2105/AJPH.2012.301148> (accessed February 14,
2024).
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life-without-parole sentence. More relevant to the Supreme Court’s remand order, I would hold
that when the sentencing court fails to consider this reality, the sentence does not adequately
account for the circumstances of that particular defendant, as required by the principle of
proportionality. See People v Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017). In this
case, defendant was sentenced to a minimum term of years that he cannot reasonably be expected
to serve within his lifetime, i.e., the court imposed a de facto sentence of life without the possibility
of parole. I would therefore conclude that the sentence is not proportional under People v Posey,
___ Mich ___; ___ NW2d ___ (2023) (Docket No. 162373).
/s/ Douglas B. Shapiro
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