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Lansing — In the next few weeks, a Michigan Court of Appeals panel will take up the matter of whether a jury, not a judge, should determine whether a person under the age of 18 should be sentenced to life without parole.

The date of the legal hearing by seven judges has not been set, but it will lead to a decision anticipated by attorneys on both sides of the legal issue since it will affect more than 363 past convictions and untold ones moving forward.

Michigan does not have the death penalty but critics of juveniles sentenced to life without parole describe it as an enhancement amounting to the same thing. In 2012, the U.S. Supreme Court ruled that sentencing a person under 18 to life in prison without parole constitutes “cruel and unusual punishment” and requires a hearing. The Michigan Court of Appeals ruled last year that a jury, not a judge, should make the determination in such sentences.

Special panels are convened once every two to three years, said John Nevin, spokesman for the Michigan Supreme Court. The last conflict panel was convened in 2013.

“Absolutely, juries should be making the decision,” said Deborah LaBelle, an Ann Arbor-based appeals attorney involved in several cases of juveniles convicted in killings. “It’s something society — the community — should be hearing all the facts about before someone is sent off to prison for what the Supreme Court has already ruled is akin to the death penalty.”

St. Clair Prosecutor Michael Wendling, president of the Prosecutors Attorneys Association of Michigan, vehemently disagrees.

“This is a topic we’ve spent a lot of time on,” Wendling said. “My office and prosecutors across Michigan are of the same opinion. A judge decides sentencing not a jury. That’s the way it has always been in our state and it has worked well.

“To take a limited issue like this out of established practice is inappropriate. What’s next? Juries deciding sentences in other violent convictions? In sexual assaults?”

Juries in Michigan are traditionally instructed they are not to consider sentences when deciding guilt or innocence, Wendling noted.

Since 1962, Wayne County has processed 152 juvenile lifer cases; Oakland, 49, followed by Genesee with 26; Kent, 24, and Macomb, 12, all to be reconsidered for sentencing.

“We believe that a defendant does not have a Sixth Amendment right to a jury trial during the sentencing phase, and have taken that position in the Michigan Court of Appeals,” Wayne County Prosecutor Kym Worthy told The Detroit News.

In some cases, those in prison have served or are close to serving what would be the 25 to 40 year minimum sentences for juveniles in Michigan. A few are approaching the 60 year maximum sentence before they would automatically be entitled to be considered for parole.

As it stands, should a prosecutor waive a life without parole conviction and decide not to have that sentenced reinstated, the minimum and maximum sentences would be decided by a judge.

LaBelle said about two-thirds of the 100 clients her office represents have served more than 20 years behind bars.

Prosecutors remain concerned, not only about the chance of a sentence being changed, but the cost and resources needed to prepare what some say amounts to a new trial, including locating witnesses and evidence that may be needed to be brought back before a jury. While the jury would not be charged with determining guilt or innocence it would need to hear all facts to decide whether life without parole was an appropriate sentence.

“I’ve talked to some prosecutors across Michigan who have told me they no longer have the files in their cases,” Wendling said..

Worthy estimated the conservative estimate for how much jury trials for resentencing will cost would be in the hundreds of thousand of dollars.

“A jury trial will take considerable time, require greater reliance on experts, create jail overruns, and exponentially increase fees for jurors, witnesses, as well as court personnel,” she said.

In various crimes before sentencing, judges routinely consider the criminal history of the defendant, including whether it is a first-time offense or the convicted person’s role, such as being the main player, planner or accessory to the crime.

The criminal’s mental state before committing the crime is often brought into decision making. Defense attorneys such as Robyn Frankel said that is especially important in cases involving juveniles with undeveloped minds.

“How does a 15-year-old realize the consequences of all their actions?” Frankel said. “They think they know it all. But they know nothing about life or the world.”

Frankel said the life without parole is the harshest sentence possible and to be used only when there is no reasonable doubt that a person is “irreparably corrupt.” That is a tall order for immature teenagers who often act impulsively, she said.

“It (life without parole sentence) has to be for a person who is felt beyond repair or can’t be fixed,” she said. “How can you feel that way when there are people who have gone inside when young and made the best of their time? Some are model prisoners who earned college degrees in prison.”

Frankel noted one of her appeals cases, Jennifer Pruitt, who is now nearly 40 years old and is “in no way” the 16-year-old sentenced to life in prison without parole for her role in the death of an elderly neighbor killed during a robbery by another woman.

“She didn’t participate in the killing and even reported it to police,” Frankel said. “Doesn’t she deserve a second chance?”

Critics, including families of victims, argue mandatory resentencing may be unjust and opens wounds for victims who thought their cases were settled. Local law enforcement officials and prosecutors predict the process will be lengthy, costly and could further traumatize families.

“In one of my cases we have already resentenced the person three times with the same result — life without parole,” he said. “How many times are we going to pull this Band-Aid off the wound?

“At what point does the rights of the victim trump the rights of the criminal?”

David Moran, a University of Michigan law professor and co-founder of the Michigan Innocence Clinic, said whether jury or judge determines a life without parole sentence is warranted is a “great legal question still to be decided by the courts.”

“The law says there has to be extraordinary facts to sentence a juvenile to life without parole,” Moran said. “A judge has to find a juvenile incorrigible and requiring an enhanced term based on additional facts before there is a sentence. But a jury has to find the additional facts, not the judge.”

mmartindale@detroitnews.com

(248) 338-0319

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