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United States District Court Eastern District of Michigan Southern Division Henry Hill, Jemal Tipton, Damion Todd, Bobby Hines

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United States District Court Eastern District of Michigan Southern Division Henry Hill, Jemal Tipton, Damion Todd, Bobby Hines 5:10-cv-14568-JCO-RSW Doc # 55 Filed 09/04/12 Pg 1 of 12 Pg ID 696 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION HENRY HILL, JEMAL TIPTON, DAMION TODD, BOBBY HINES, KEVIN BOYD, File No. 10-cv-14568 BOSIE SMITH, JENNIFER PRUITT, MATTHEW BENTLEY, KEITH MAXEY, GIOVANNI CASPER, JEAN CARLOS CINTRON, NICOLE DUPURE and DONTEZ TILLMAN, HON. JOHN CORBETT O’MEARA Plaintiffs, MAG. JUDGE R. STEVEN WHELAN v. RICK SNYDER, in his Official Capacity as Governor of the State of Michigan, DANIEL H. HEYNS, in his Official Capacity as Director, Michigan Department of Corrections, and TOMAS COMBS, in his Official Capacity as Chair, Michigan Parole Board, jointly and severally, Defendants. DEBORAH LaBELLE (P31595) MARGARET A. NELSON (P30342) 221 N. Main St., Ste. 300 ANN M. SHERMAN (P67762) Ann Arbor, MI 48104 CHRISTINA M. GROSSI (P67482 734.996.5620 JOSEPH T. FROEHLICH (P71887) Michigan Dept. of Attorney General STEVEN M. WATT Public Employment, Elections & Tort Division EZEKIEL R. EDWARDS P.O. Box 30736 American Civil Liberties Union Foundation Lansing, MI 48909 125 Broad St., 17th Floor 517.373.6434 New York, NY 10004 212.517.7870 Attorney for Defendants DANIEL S. KOROBKIN (P72842) MICHAEL J. STEINBERG (P43085) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 313.578.6824 Attorneys for Plaintiffs _____________________________________________________________________________________________ PLAINTIFFS’ REPLY AND RESPONSE TO DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT 5:10-cv-14568-JCO-RSW Doc # 55 Filed 09/04/12 Pg 2 of 12 Pg ID 697 Defendants concede Plaintiffs’ claim that Michigan’s mandatory sentencing scheme, and in particular M.C.L. § 791.234(6), is unconstitutional as applied to children (Defendants’ Response I(A), p. 2). See Plaintiffs’ Amended Complaint, Dkt. 44, ¶¶ 10, 50, 198-201. Defendants then argue that Plaintiffs are not entitled to summary judgment on this very claim, asserting a retroactivity argument, and further argue they are entitled to summary judgment on grounds that Miller actually precludes a ruling that life without parole is cruel and unusual punishment. Plaintiffs reply to Defendants’ failure to recognize the import of the Supreme Court rulings in Roper and Graham, and their attempt to avoid the Court’s holding in Miller, as follows: I. MILLER APPLIES RETROACTIVELY TO ALL MICHIGAN YOUTH WHO RECEIVED THE UNCONSTITUTIONAL PUNISHMENT OF LIFE WITHOUT PAROLE IMPOSED AS A MANDATORY SENTENCE WITHOUT CONSIDERATION OF THEIR CHILD STATUS. A. Miller Applies Retroactively Because Miller’s Companion Case, Jackson v. Hobbs, was Decided on Collateral Review. In Miller v. Alabama, 132 S. Ct. 2455 (2012), the Court addressed and vacated the sentence of both Evan Miller and Kuntrell Jackson. While Miller’s challenge was heard by the Court on direct review, Jackson’s conviction, like Plaintiffs’, had become final before the Court announced its decision in Miller. If the Court’s decision did not apply retroactively to cases on collateral review, Jackson would have been precluded from the relief he was in fact granted. “[O]nce a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated.” Teague v. Lane, 489 U.S. 288, 300 (1989); see also Griffith v. Kentucky, 479 U.S. 314, 323 (1987) (“[S]elective 1 5:10-cv-14568-JCO-RSW Doc # 55 Filed 09/04/12 Pg 3 of 12 Pg ID 698 application of new rules violates the principle of treating similarly situated defendants the same.”).1 B. Miller Applies Retroactively Under the Criteria Established by Teague and its Progeny. A new rule is substantive and therefore applied retroactively if it “alters the range of conduct or the class of persons that the law punishes.” Schriro v. Summerlin, 542 U.S. 348, 353 (2004). The Miller Court found mandatory life without parole to constitute cruel and unusual punishment for youth not because mandatory punishment schemes are always unconstitutional (see Harmelin v. Michigan, 501 U.S. 957 (1991)), but rather because the punishment was imposed on a specific category of persons – children, a class of persons who are inherently less culpable than adults. Miller prohibits a certain category of punishment (mandatory life without parole), for a class of persons (children), and therefore altered the permissible punishment allowed by law. The conclusion that Miller is a new substantive rule, entitled to retroactivity, is further supported by the retroactive application given to the Court’s analogous decisions striking down mandatory death penalty schemes.2 Sumner v. Shuman, 483 U.S. 66, 68 (1987); Woodson v. North Carolina, 428 U.S. 280 (1976); Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 436 U.S. 921 (1978). All of these cases have uniformly received retroactive application whenever courts have considered the issue. See Thigpen v. Thigpen, 541 So.2d 465, 466 (Ala. 1989); Songer v. Wainwright, 769 F.2d 1488 (11th Cir. 1985); Harvard v. State, 486 1 The retroactive effect of Miller was also apparent to the dissenting judges in Miller, who noted that the majority “prediction” that life without parole sentences will be uncommon, “appears to be nothing more than an invitation to overturn life without parole sentences imposed by juries and trial judges.” (Roberts, J.) 132 S. Ct. at 2481. 2 The Supreme Court has repeatedly recognized life without parole imposed on juveniles is “akin to the death penalty.” See Miller, 132 S. Ct. at 2466. 2 5:10-cv-14568-JCO-RSW Doc # 55 Filed 09/04/12 Pg 4 of 12 Pg ID 699 So.2d 537, 539 (Fla. 1986); Shuman v. Wolfe, 571 F. Supp. 213, 216 (D. Nev. 1983); Jackson v. State, 337 So.2d 1242 (Miss. 1976).3 These analogous rulings required retroactive application to avoid “a significant risk that a defendant . faces a punishment that the law cannot impose upon him.” Schriro, 542 U.S. at 352. That “significant risk” is manifest here, as the Miller Court specifically recognized that life without parole for juveniles should be uncommon. Miller, 132 S. Ct. at 2469. Yet absent a recognition of Miller’s retroactivity, the 361 youth serving this sentence in Michigan will continue to suffer this punishment despite the obvious fact that they cannot all represent the rare child for whom life without parole may be permissible. Alternatively, even if Miller is considered a new procedural rule, it is nevertheless retroactive under the “watershed” exception, as it implicates “fundamental fairness” and is central to an accurate determination that the legally appropriate punishment is imposed on an individual. Schriro, 542 U.S. at 352; see also id. at 356 (noting that new procedural rules are retroactive when, without them, there is an “impermissibly large risk” of an unconstitutional punishment). Miller’s ruling that youth are entitled to individualized sentencing prior to imposing a state’s harshest penalties recognized the fundamental unfairness of a failure to consider a youth’s age and its hallmark features prior to imposing punishment. Miller, 132 S. Ct. at 2468 (“mandatory sentencing ignores that [the youth] might have been charged and convicted of a lesser offense if not for incompetencies associated with youth”). Thus, fundamental fairness necessitates retroactive application of Miller to ensure that children do not receive grossly disproportionate punishment in violation of the Eighth Amendment. Id. at 2469 (“[B]y 3 Moreover, Miller noted that “our decision flows straight forwardly from our precedents: specifically, the principle of Roper, Graham, and our individualized sentencing cases that youth matters for purposes of meting out the laws most serious punishments.” Id., 132 S. Ct. at 2471. Both strands of precedent have been applied retroactively. 3 5:10-cv-14568-JCO-RSW Doc # 55 Filed 09/04/12 Pg 5 of 12 Pg ID 700 making youth and all that accompanies it irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” (emphasis added)). C. The Retroactivity of Miller on Collateral Review is Independent of its Applicability to Plaintiffs in this 42 U.S.C. § 1983 Action. In the unlikely event that Miller is held not retroactive under the Teague doctrine, it still applies to Plaintiffs’ claims in this case. Put simply, the Teague doctrine applies to postconviction collateral review on a writ for habeas corpus, not a civil rights action brought under § 1983. See Alabama v. Engler, 85 F.3d 1205, 1209 (6th Cir. 1996) (“Teague concerned the finality of criminal convictions, and has never been applied to a civil proceeding . ”). In civil actions outside the criminal context (such as § 1983 cases), all new rules are retroactive: When [the Supreme Court] applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule. Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97 (1993) (emphasis added). Miller was decided while Plaintiffs’ § 1983 claims under the Eighth Amendment were pending before this Court. Thus, the question of Miller’s retroactivity to a petitioner on collateral review in a habeas setting does not control the clear applicability of Miller to Plaintiffs in this civil action under § 1983. II. ANY LIFE WITHOUT PAROLE SENTENCE FOR PLAINTIFFS IS UNCONSTITUTIONAL PURSUANT TO ROPER, GRAHAM AND MILLER. Defendants once again argue that a Supreme Court ruling (Miller) stands for the proposition that life without parole sentences for children are constitutional. This Court previously rejected Defendants’ similar argument that the Court’s decisions in Roper v.
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