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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

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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

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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

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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

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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. Simmons 4

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and Graham v. Florida, compel the same conclusion. Opinion and Order Denying Defendants’

Motion to Dismiss, Dkt. 31, p. 10 (“Graham and Roper do not compel the conclusion that

Plaintiffs’ Eighth Amendment claims must fail as a matter of law . . . . ”).

Contrary to Defendants’ assertion, the Miller Court found mandatory imposition of life without parole to be unconstitutional and “because that holding is sufficient to decide these cases, we do not consider Jackson’s and Miller’s alternative argument that the Eighth

Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger.” 132 S. Ct. at 2469. This lack of consideration of the Eighth Amendment argument as a categorical bar, is a far cry from Defendants’ assertion that Miller found life without parole sentences to be constitutional. Miller said in fact, “given all we have said in

Roper, Graham, and this decision, about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Id.4

Plaintiffs’ original claim, filed before the decision in Miller, that imposing a life without possibility of parole sentence on a child in Michigan violates the Eighth Amendment, is supported by the Eighth Amendment analysis in both Graham, Roper and now, Miller. The factors that this Court noted were at the crux of any ruling on this claim, including “the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question” and “whether the challenged sentencing practice serves legitimate penological goals,” Graham v. Florida, 130 S. Ct. 2011, 2026 (2010), continue to weigh in favor of striking down this punishment as unconstitutional. The Miller Court extended the reasoning in Graham and applied it with equal authority for children, like Plaintiffs, who

4 Miller further notes that the “juvenile offender whose crime reflects irreparable corruption” is “rare.” Id., 132 S. Ct. at 2469. 5

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were convicted of homicide offenses. The Miller Court noted, in discussing Graham’s categorical ban on life without parole as applied to non-homicide crimes, that none of what

Graham said about children “is crime specific,” and that “Graham’s reasoning implicates any life-without-parole sentence imposed on a juvenile.” 132 S. Ct. at 2465 (emphasis added). Thus,

Miller not only does not foreclose this Court from ruling on the constitutionality of life without paroles sentences for children, it supports such a ruling.

Defendants do not dispute any of Plaintiffs’ arguments and facts regarding the neuroscience and psychology of children, which distinguishes them as a class from adults. Nor do Defendants dispute the facts set forth in Plaintiffs’ motion establishing that a national consensus against sentencing children to life without possibility of parole has developed since

2005. These established facts, taken together with the uniqueness of Michigan’s sentencing scheme, render the punishment categorically unconstitutional. Allowing youth to receive the same punishment as adults convicted of first-degree homicide crimes disregards the Supreme

Court’s admonition that “children are constitutionally different from adults” for purposes of punishment. Id. at 2464. To subject children to the harshest punishment available in this state for any adult runs contrary to Miller’s and Graham’s recognition that children as a class are less culpable.

Moreover, four of the named Plaintiffs, Keith Maxey, Nicole Dupure, Jean Cintron and

Dontez Tillman, are all serving life without any possibility of parole despite the fact that they neither committed the actual homicide or intended that anyone be killed. In Michigan, a conviction for first-degree felony murder includes no requirement that a defendant killed, intended to kill or foresaw that a life would be taken; and nearly half of youth serving life without parole in Michigan were convicted under this theory. Graham and Miller stand for the

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proposition that life without parole, if ever imposed on a child, must be given only in the most extreme circumstances. A youth who did not kill, intend to kill, or foresee that a life would be taken does not meet this test. As Justice Breyer explained in his concurrence:

Given Graham’s reasoning, the kinds of homicides 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.

Miller, 132 S. Ct. at 2475-76 (Breyer, J., concurring).

III. THIS COURT HAS AUTHORITY TO GRANT DECLARATORY AND INJUNCTIVE RELIEF.

Defendants assert that this Court “lacks authority to issue injunctive or other remedial relief” because federal courts are limited in their power to enjoin judicial officers. (Defs.’ Br. at

13.)5 This argument ignores the fact that the named Defendants in this case are not judicial officers and unquestionably can be enjoined from violating Plaintiffs’ constitutional rights. See, e.g., Miller v. Skumanick, 605 F. Supp. 2d 634 (M.D. Pa. 2009) (enjoining state prosecution), aff’d sub nom. Miller v. Mitchell, 598 F.3d 139 (3d Cir. 2010). Federal case law under § 1983 is replete with examples of official-capacity lawsuits against state corrections and parole officials for injunctive relief from unconstitutional statutes, policies, and procedures. See, e.g., Wilkinson v. Dotson, 544 U.S. 74 (2005) (state parole procedures can be enjoined under § 1983). Here, this

Court has the power to:

 Enjoin Defendants from failing to consider Plaintiffs for parole under M.C.L. § 791.234 because M.C.L. § 791.234(6) is unconstitutional as applied to children. See Skinner v. Switzer, 131 S. Ct. 1289 (unconstitutional postconviction DNA statute can be enjoined under § 1983).

 Enjoin Defendants from carrying out Plaintiffs’ punishment in a cruel and unusual manner—i.e., with no meaningful and realistic opportunity for

5 Defendants do not contest this Court’s authority to enter summary and declaratory judgments in favor of Plaintiffs on their Eighth Amendment and statutory claims. 7

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release. See Nelson v. Campbell, 541 U.S. 637 (2004) (unconstitutional method of execution can be enjoined under § 1983).

 Enjoin Defendants from failing to provide Plaintiffs with a fair process that, while not guaranteeing eventual release, provides an opportunity for release that is both meaningful and realistic as required by the Eighth Amendment. See Wilkinson, supra, 544 U.S. at 82 (allowing § 1983 case for injunctive relief where success would speed consideration for release but not necessarily spell speedier release).

Defendants’ implication that such relief would amount to injunctions against judicial officers is baseless. Defendants, who are not judicial officers, have custody of Plaintiffs and are responsible for administering the terms and conditions of that custody in conformity with constitutional standards.

Defendants also argue that they alone must decide how to comply with the Eighth

Amendment, with absolutely no oversight by this Court. This position, too, lacks merit, as

§ 1983 itself reflects “the paramount role Congress has assigned to the federal courts to protect constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 473 (1974). “Requiring the federal courts totally to step aside . . . would turn federalism on its head.” Id. at 472. Where, as here,

Plaintiffs have established a violation of their constitutional rights by state actors, equitable relief is appropriate. See Hutto v. Finney, 437 U.S. 678 (1978) (equitable jurisdiction in Eighth

Amendment case brought under § 1983).

Defendants cite Graham for the proposition that “[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance,” Graham v. Florida, 130 S. Ct. 2011,

2030 (2010), but their insistence that Plaintiffs must spend the rest of their natural lives in prison with no opportunity for release demonstrates that the State intends to resist compliance with the

Eighth Amendment until ordered otherwise. Plaintiffs do not ask this Court to adjudicate the individualized merits of each Plaintiff’s eventual request for actual release, but rather request this Court to exercise its authority to order Defendants to establish a constitutional system for

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ensuring that Plaintiffs are given an opportunity for release that is both meaningful and realistic.

It is readily apparent that Defendants will not do this on their own. Citing pre-Graham case law that applies to adults, Defendants argue that because Michigan law does not create a cognizable “liberty interest” in parole, the Michigan Parole Board may deny parole to a parole- eligible prisoner “for any reason or no reason at all.” (Defs.’ Br. at 16-18.) That is precisely why leaving all juvenile lifers to the mercy of the adult parole system does not comport with

Graham and Miller. Graham and Miller recognize that children, as distinct from adults, are entitled to a meaningful and realistic opportunity for release based on a reasoned and individualized consideration of constitutionally significant factors related to their youth, the circumstances of their offense and their level of involvement, and their demonstrated maturity and rehabilitation. Although Graham and Miller do not mandate that release actually be granted in any particular case, these decisions do require that the opportunity for release not be illusory or arbitrary. Miller requires that Plaintiffs be offered an opportunity for release during their lifetime that is meaningful and realistic. 132 S. Ct. at 2469 (a mandatory sentence imposed on a child may not result in lifetime imprisonment without ‘“some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”’ (quoting Graham, 130 S. Ct. at

2030)); see also Burkett v. Love, 89 F.3d 135, 139 (3d Cir. 1996) (“a state statute may not sanction totally arbitrary parole decisions founded on impermissible criteria” (internal quotation marks omitted)). Accordingly, a system in which parole can be denied to a juvenile lifer “for any reason or no reason at all,” whatever its merits as applied to adults, is not a constitutional

“mechanism[] for compliance” with Graham and Miller.6 This Court should therefore exercise

6 The “judicial veto” provision of Michigan’s adult parole system allows just such an arbitrary denial of any opportunity for release without consideration of a youth’s maturity and rehabilitation by condemning a youth to life without the possibility of parole for no articulated 9

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equitable powers to ensure that Defendants implement a system that does comply.

In sum, Plaintiffs are entitled to equitable relief that will give them a meaningful and realistic opportunity for release as required by the Constitution, and this Court is empowered to order Defendants to carry out their constitutional obligations.

Respectfully submitted,

DATED: September 4, 2012 /s/Deborah LaBelle Deborah LaBelle (P31595) Counsel for Plaintiffs 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620 [email protected]

/s/Ronald J. Reosti RONALD J. REOSTI (P19368) Counsel for Plaintiffs 23880 Woodward Ave. Pleasant Ridge, MI 48069-1133 248.691.4200 [email protected]

/s/Michael J. Steinberg Michael J. Steinberg (P43085) Kary L. Moss (P49759) Daniel S. Korobkin (P72842) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 [email protected] [email protected] [email protected]

reason and without any oversight or review. See M.C.L. § 791.234(8)(c). Defendants’ ripeness argument is misplaced. (See Defs.’ Br. at 18-19.) The judicial veto is an example of why Defendants’ current parole system for adults does not satisfy the constitutional requirements of Graham and Miller. Because Plaintiffs are challenging the constitutionality of that system as applied to children—not the merits of any individual decision to deny them parole—their claim is ripe. 10

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/s/Steven M. Watt Steven M. Watt Human Rights Program Ezekiel Edwards Criminal Law Reform Project American Civil Liberties Union Foundation 125 Broad Street, 17th Floor New York, NY 10004 (212) 519-7870 [email protected] [email protected]

CERTIFICATE OF SERVICE

I hereby certify that on September 4, 2012, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing as well as via U.S. Mail to all non-ECF participants.

/s/Deborah LaBelle Deborah LaBelle (P31595) Counsel for Plaintiffs 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620 [email protected]

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