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Michigan prosecutors defying U.S. Supreme Court on ‘juvenile lifers’

August 25, 2016
Ted Roelofs
Michigan Government
Bridge Michigan
Bridge Michigan
Michigan Government
Michigan prosecutors defying U.S. Supreme Court on ‘juvenile lifers’
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Juvenile lifer Barbara Hernandez, right, with her sister, Andrea. Juvenile lifer Barbara Hernandez, right, with her sister, Andrea.

 

Prosecutors across Michigan are fighting to uphold sentences for most of the 350-plus prison inmates now serving mandatory life terms for crimes they committed as juveniles.

Their stance is in apparent defiance of a U.S. Supreme Court directive this year that courts across the nation are supposed to reduce life sentences for young offenders except in only “rare” cases.

According to data, which Bridge obtained from a network of Michigan lawyers, at least nine county prosecutors are asking judges to uphold life sentences for every so-called “juvenile lifer” convicted in their courts. They argue that these inmates, including some who have behind bars for decades, can never be safely returned to society.

“I think what the prosecutors are doing is appalling,” said Ann Arbor lawyer Deborah LaBelle, a prisoner rights advocate who is organizing free legal representation for about 100 juvenile lifers.

“The Supreme Court says the vast majority have to have the chance at being paroled,” LaBelle said. “You can't just lock them up and throw away the key for things they did as a child.”

Juvenile life – How Michigan got here

1988 – Michigan legislators approve a measure authorizing prosecutors to seek charges in adult court for juveniles as young as 15. Judges retain authority over whether the youth would be tried in adult or juvenile court.

1996 – Gov. Engler signs legislation allow prosecutors to try juveniles 14 through 16 for a list of 18 offenses in adult court, with no provision for judicial review of the prosecutor’s decision. A conviction of first-degree murder means life without parole.

2006 – An Alabama jury finds 17-year-old Evan Miller guilty of capital murder in the 2003 beating and burning of a neighbor in his mobile home, sentencing him to life without parole. He was 14 at the time of the crime. The case is appealed to the U.S. Supreme Court, which weighs whether the sentence violates the Eighth and 14th Amendment prohibition against cruel and unusual punishment.

June 2012 – Writing for a 5-4 majority in Miller V. Alabama, U.S. Supreme Court Justice Elena Kagan states that mandatory life without parole for juveniles constitutes “cruel and unusual punishment.” Justice Anthony Kennedy swings the decision, by joining the court's four liberal members. The decision leaves open the question of whether the prohibition should be applied retroactively.

July 2014 – The Michigan Supreme Court rules 4-3 that the Miller decision does not apply retroactively to juveniles in the state serving mandatory life terms. Attorney General Bill Schuette hails the ruling, saying: “This ruling should bring a measure of peace to the many families who struggled with the possibility of painful re-sentencing hearings for cases successfully prosecuted decades ago.”

August 2015 – Schuette files an amicus brief with the U.S. Supreme Court on behalf of Michigan and 15 other states in the case of Montgomery v. Louisiana, which considers whether the Miller ruling should apply retroactively. It states in part: “Contrary to the suggestion of some, the prisoners who seek the retroactive application of Miller are not all hapless aiders and abettors who played a secondary role...Rather, the cases span more than fifty years. And they include some of the most vicious criminals anywhere.”

January 2016 - Voting 6-3, the U.S. Supreme Court says states must consider new sentences for all juvenile lifers. Writing for the majority, Justice Kennedy states: “The court now holds that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule.”

July 2016 – A seven-judge panel of the Michigan Court of Appeals concludes that a judge, not a jury, should determine whether to sentence a juvenile to life without parole.

Among the most resistant to the Supreme Court’s ruling: Saginaw County Prosecutor John McColgan Jr., who wants to uphold 21 of 21 sentences in which life terms were given to juvenile defendants. It's nine of nine in Kalamazoo County. And seven of seven in Muskegon County.

Meanwhile, Oakland County Prosecutor Jessica Cooper has asked judges to uphold mandatory life sentences for 44 of 49 inmates who committed crimes as juveniles. In Genesee County, Prosecutor David Leyton is asking the same in 23 of 27 cases.

Related: In prison for decades, one juvenile lifer’s quest for redemption

More broadly, four large Michigan counties – Genesee, Oakland, Saginaw and Wayne – account for 150 of the 218 cases for which prosecutors are seeking to uphold life without parole.

In Wayne County, which includes Detroit, Prosecutor Kym Worthy is seeking life without parole in 61 of 153 cases – hardly rare at 40 percent, but lower than Oakland County's request to uphold 90 percent of juvenile life sentences.

Oakland County Sheriff Michael Bouchard put an incendiary exclamation mark on the position of prosecutors when he held a press conference in July in which he compared juvenile lifers to a famous fictional serial killer.

“I looked at a sample of these individuals and they are Hannibal Lecters who committed very heinous murders – often, multiple murders – and then they've continued to display very assaultive behavior in prison and show no remorse,” Bouchard said.

The meaning of ‘rare’

Overall, according to the data, prosecutors are seeking to uphold life-without-parole sentences for 218 of the 363 men and women in state prisons for crimes committed as minors. Most were convicted of first-degree murder or of abetting first-degree murder. Some were as young as 14. The oldest is now 71.

The effort to keep juvenile lifers permanently behind bars faces pushback from legal advocates, as well as some federal prosecutors.

Critics accuse county prosecutors of ignoring not only the clear instructions of the nation’s highest court, but overwhelming scientific research showing that adolescent brains are at once more impulsive than those of adults and yet more capable of change and growth as they mature, even among teens involved in brutal crimes.

Oakland County resident Jody Robinson opposes the release of Barbara Hernandez, convicted in 1991 for her part at age 16 in the murder of Robinson's brother. (photo courtesy of MLive) Oakland County resident Jody Robinson opposes the release of Barbara Hernandez, convicted in 1991 for her part at age 16 in the murder of Robinson's brother. (photo courtesy of MLive)

 

Michigan's tough juvenile sentencing laws – allowing mandatory life without parole for those as young as 14, and for decades treating 17-year-olds as adults – have made the state a leader in imprisoning juveniles for life, ranking second only to Pennsylvania.

For years now, the U.S. Supreme Court, relying heavily on developments in brain science, has chipped away at the notion that young criminals are irredeemable.

In 2012, in Miller v. Alabama, the justices concluded that juveniles should no longer face the possibility of mandatory life terms. Then, this past January, the court held in Montgomery v. Louisiana that the Miller decision should be applied retroactively to those already in prison. The 6-3 decision required local courts to reconsider a shorter sentence for roughly 2,000 juvenile lifers across the country.

The ruling reignited a familiar and contentious debate over crime, punishment – and the redemptive possibilities for young offenders who commit horrible crimes.

Mandatory life sentences, the court said, should be reserved for those “rare children whose crimes reflect irreparable corruption,” who exhibit “such irretrievable depravity that rehabilitation is impossible and life without parole is justified.”

Do these juvenile lifers deserve parole?

County prosecutors in Michigan are challenging sentence reductions for most of the 363 inmates in prison for life for crimes committed as juveniles. Defense lawyers say that inmates like the three profiled below deserve a second chance at freedom.

Donald Williams

In 1994, Donald Williams was convicted of first-degree murder for his role in a deadly carjacking at a Macomb County gas station. Witnesses agreed that Williams, who was 16 at the time, was not the shooter.

But under the felony murder rule, anyone who takes part in a felony (in this case, the carjacking) can be held responsible if someone is killed even if they did not cause the death. It was Williams’s accomplice, Antonio Payne, then 15, who pulled the trigger. Payne shot Emil Mazurek as he attempted to flee and was convicted of first-degree murder and sentenced to life without parole.

In the court's pre-sentence investigation, Williams told authorities, “I knew of Payne for two days. I didn't know what was going to happen. Payne just snapped – we talked before – I didn't know he was going to rob someone.”

In recognition of his lesser role in the offense, the prosecution offered to drop the first-degree murder charge and charge him instead with armed robbery, in exchange for his testimony against Payne. Williams turned it down.

Like many juvenile lifers, Williams’s home life was dire. His father was fatally shot when he was 2. His mother lost her job of 10 years when a General Motors plant relocated; she was later sentenced to four to 20 years in prison for armed robbery. He was raised by a partially blind grandmother in a wheelchair.

Now 40, Williams obtained his GED and according to a court filing by his attorney “has maintained employment as a unit porter, recreational official and handicap aide with positive reports and completed vocational skill trainings.”

Macomb County Prosecutor Eric Smith said Williams was the “least egregious” of the cases he reviewed for resentencing. He filed a request to resentence 10 of 10 juvenile lifers convicted in Macomb to life without parole, as well another two cases that were on appeal when the 2012 Miller decision came down.

“This was the one we agonized over the most, for sure,” Smith said of Williams. “But to be clear, he was convicted of first-degree murder. Do I have any qualms about sentencing a convicted murderer to life without parole? Absolutely not.”

Smith, added, however, that he could be open to a sentence of less than life if he is convinced there is evidence that Williams has turned his life around

As for the other nine juvenile lifers, Smith said he found no evidence they were ready to return to society.

“No one wants them back on the street,” he said.

James Adrian

In 1995, Ypsilanti resident James Adrian was convicted in the murder of Donte Flonnoy, who was shot as he fled a robbery attempt at an Ypsilanti park. Adrian was 17 at the time. Toronto Gardette, then 19, was convicted in the shooting as well.

In a motion filed earlier this month, Adrian’s lawyer outlined his troubled upbringing, along with evidence of his rehabilitation. They are among the factors the Supreme Court said the legal system must weigh in reconsidering a sentence of life without parole.

Indeed, the 2012 Supreme Court decision forbidding mandatory life terms for offenses committed by minors notes that many young criminals are stuck in homes “from which he cannot usually extricate himself — no matter how brutal or dysfunctional.”

In Adrian’s case, his father abandoned him as a baby, while his mother “used illegal drugs, including crack and failed to care for her son. He grew up in a home with drug users and drug dealers...Guns and drugs were everywhere and law enforcement was not,” according to a court filing.

“He began drinking alcohol at the age of 12 and attempted suicide as a teen. No one in his family discussed with him the concept of a future and he felt he had nothing to live for.”

Since his incarceration, the filing said, Adrian has completed numerous courses and training programs as well as leading fundraising efforts for school supplies for a River Rouge elementary school and to purchase cold-weather clothing for students at two other schools.

In 2012, he joined the National Lifers of America, which advocates for rehabilitation and release of prisoners “who no longer represent or pose any danger to public safety,” and is now vice president of a local chapter. Adrian also discovered a passion for poetry and has performed as part of the University of Michigan Creative Arts Program and Black History Month program.

The record, it states, “does not support in any way the sentence sought by the People. To the contrary, it shows deep empathy, sympathy, commitment and service to others, personal growth, responsibility, discipline, perseverance, hopefulness – and remorse for the deep harm that came to the family and friends of Mr. Flonnoy...”

He has been in prison for 20 years.

Washtenaw County Prosecutor Brian Mackie – who filed for renewed life without parole in four of seven cases – declined comment.

Barbara Hernandez

Barbara Hernandez grew up in a home where she was sexually abused, with a mother who drank heavily and often left her children to fend for themselves, according to a 2013 Associated Press account.

At 14, she went to live with Jim Hyde, four years her senior. They lived at Hyde's mother's apartment in Pontiac, where Hyde pushed her into prostitution to support his cocaine habit, the account stated. They moved to an abandoned house, where they slept on the floor, after Hyde was kicked out of the apartment for stealing his mother's welfare check. Hyde beat Hernandez and pulled her by her hair if she did not obey him, the AP reported.

Hyde’s own step-sister, Deborah Erdman, described the couple’s relationship as more resembling a master and slave: “If he had told her to walk out in the middle of the road and stand in front of a speeding semi, she'd have done it. It was almost like she was hypnotized by him,” Erdman is quoted as saying.

Their victim was James Cotaling, who was killed after being lured to the house in a scheme to rob him and steal his car. Hyde and Hernandez were arrested a short time later. Hernandez said Hyde ordered her to purchase the knife he used to kill Cotaling.

Now 42, Hernandez has a level 1 security clearance – the lowest possible - at the Women's Huron Valley Correctional Facility in Ypsilanti.

She is one of only two juvenile lifers in the system with such a clearance, according to her lawyer, Royal Oak attorney Cary McGehee.

McGehee contends Hernandez has demonstrated rehabilitation and leadership in helping prisoners deal with issues related to substance abuse and past domestic violence. In addition, she has completed two college composition courses and earned awards of excellence for her work on cleaning duty.

“I can't think of a better example of somebody who had a difficult life as a juvenile and has done her best to rehabilitate herself. She has been a mentor to other prisoners by demonstrating that even though you are placed in a terrible situation, you can pull yourself up.

“The record irrefutably establishes that she is somebody who should be released for her time served,” McGehee said.

But Cotaling's sister, Jody Robinson, said she sees no reason why Hernandez or other juveniles in prison for life deserve a second chance. The Oakland County resident is president of the National Organization of Victims of Juvenile Murderers, which advocates against release of juvenile lifers.

“I don't think she should be let out of prison. You are talking about juveniles who have the capacity to take another life. They don't value human life. I want you to prove to me beyond a reasonable doubt she won't do it again,” Robinson said.

Robinson said the Supreme Court's decision forcing reconsideration of these cases is dragging families through anguish and emotional pain outsiders can't even imagine.

“What is it like? There are not words that can make somebody who has never been through this understand what it is like. It is the most painful, traumatizing thing we are going through.

“It brings you back to that day and time. I tell people to close your eyes. I want you to think of your mother, your sister, your son and what it would be like, whether it be to an illness or a car accident, and remember the day you got that phone call.

“Now multiply that by 10 times. Now, 27 years later we are forced to live through this as if it was yesterday. That really is the cruel and unusual part.”

Prosecutors in Michigan were given a July deadline to name juvenile lifers within their jurisdictions who they contend remain too dangerous to ever walk free. Those named will face an eventual mini-trial in which prosecutors have to prove they were among the irretrievably depraved. The facts of the original crime, statements by friends or relatives of the victim and each inmate's background and behavior in prison are to be weighed.

For those lifers not targeted by prosecutors, legislation signed by Gov. Snyder in 2014 spells out a default minimum sentence of 25 years in prison to maximum of 60 years.

The adolescent mind

Juvenile advocates insist that life without parole is too harsh for crimes committed by minors, whose brains are less developed, more impulsive and far more susceptible to peer pressure. They say life terms also ignore young people’s greater capacity for rehabilitation. After years in prison, advocates say, many of these younger inmates display rehabilitative qualities that at least merit discussion about their ability to rejoin society.

They point to cases like that of Barbara Hernandez, imprisoned since 1991 for the murder of James Cotaling in Pontiac. Cotaling was stabbed to death by Hernandez’s then-boyfriend and apparent pimp, Jim Hyde. There was dispute at trial as to whether Hernandez - who was 16 at the time of the crime - physically aided Hyde in the attack.

Her champions argue that since entering prison she has overcome a childhood marked by sexual abuse and parental neglect and an abusive relationship with Hyde. Housed at the Huron Valley Correctional Facility, she has become a leader and mentor to other women who suffered similar trauma. She is ready, at age 42, they say, to safely rejoin society.

On the other side, victim rights' advocates and prosecutors insist violent crime must be severely punished – regardless of age.

In an interview with Bridge, Oakland County prosecutor Cooper called the 44 cases that she challenged for parole some of the most “heinous” crimes she has seen. She said her decision on those cases was reached only after months of exhaustive review.

“We are talking about victims who were stabbed, drowned, bludgeoned and decapitated,” Cooper said. “We are not talking about people who took Dad's car and drove over somebody's lawn.

“Many of these crimes were totally random. They walked up to a car and decided to shoot in it. On and on and on and on. We are really talking about awful cases.”

She pointed to the crime committed by Thomas McCloud Jr., convicted in 2009 on two counts of first-degree murder in the 2008 fatal beating of two elderly Oakland County homeless men. McCloud was 14 at the time, convicted with another 14-year-old. Cooper is seeking to keep him in prison for life.

According to his attorney, McCloud rejected plea deals from prosecutors on three separate occasions on his family’s advice. Under a proposed plea to second-degree murder, attorney Howard Arnkoff said, the teen would have been eligible for parole – and perhaps out of prison – by age 30.

Cooper also cited the 1989 murders of General Motors executive Glenn Tarr and his wife, Wanda, of Rochester Hills. The killers, Bruce Christopher Michaels, and his accomplice, Joseph Andrew Passeno, were 16 and 17, respectively; they received life without parole for the couple’s kidnapping, robbery and fatal shooting.

Rethinking mandatory terms

Lansing has wrestled in recent years with the state’s get-tough approach toward younger offenders. For decades, Michigan charged all 17-year-olds as adults, a practice that would change with legislation that cleared the state House in May, but remains mired in the Senate. Michigan is one of just eight states in which 17-year-olds are still automatically treated as adults by the criminal justice system. That law alone accounts for 207 of the juvenile lifers currently in state prisons.

In 1996, then-Gov. John Engler signed legislation that allowed prosecutors to try teens as young as 14 in adult court for certain crimes, with life without parole for first-degree murder.

Only recently have voices across the political spectrum begun to rethink the mandatory sentencing laws of 1980s and ‘90s, particularly for crimes committed by juveniles. Those voices now include a group of current and former federal prosecutors, who have publicly rebuked state prosecutors for, in their view, defying the Supreme Court’s ruling.

Michael Dettmer, former U.S. Attorney for Michigan's Western District, joined with another former Western District U.S. Attorney, James Brady, and Richard Rossman, former U.S. Attorney for the Eastern District, recently wrote an op-ed condemning the move by state prosecutors to challenge lesser sentences for juvenile lifers.

“As former U.S. Attorneys,” they wrote, “we would have expected Michigan prosecutors to understand Montgomery’s central tenet that children are uniquely capable of growth and maturation and must be able to demonstrate their rehabilitation.

“Instead, too many prosecutors are focusing on the crime committed by a troubled adolescent without exercising the judgment to recognize whether the adult before them today has rehabilitated himself.”

Dettmer said he considers state prosecutors’ push to keep so many in prison for life “a slap in the face” of the court's instruction on rehabilitation.

Former Michigan Gov. William Milliken, a Republican, has also added his criticism of the juvenile lifer law.

Related: Former Gov. Milliken urges Lansing to ban juvenile lifer laws

But county prosecutors have a powerful ally in Michigan Attorney General Bill Schuette.

Schuette has vigorously fought reconsideration of juvenile life sentences, filing a friend of the court brief in 2015 in the Montgomery case on behalf of Michigan and 15 other states opposing any retroactive look at those sentences.

Asked to comment on the high rate of challenges by county prosecutors, a Schuette spokesperson said, “In general, Attorney General Schuette supports local prosecutors and their decisions.”

The next move is in the hands of local judges.

 

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