Michigan prosecutors fail juvenile offenders

James Brady, Michael Dettmer, and Richard Rossman

The U.S. Supreme Court recently ruled in Montgomery v. Louisiana that people serving mandatory life without parole sentences (LWOP) for crimes committed as children must be reviewed and given an opportunity for release if they can demonstrate rehabilitation.

Montgomery reinforced the 2012 ruling in Miller v. Alabama that those sentences imposed on minors as if they were adults, “pos(e) too great a risk of disproportionate punishment” and must be limited to that “rare juvenile offender” who is incapable of reform.

The rulings do not mean that those youth must freed. Instead, they require states to assess who the youth have become and provide them an opportunity to demonstrate their rehabilitation through a rigorous parole board review.

But most Michigan prosecutors are not following the spirit and letter of the law. They are not adhering to the court’s warning that only the rare youth warrant a LWOP sentence and are conveniently ignoring the fact that the vast majority of youth have been rehabilitated.

Eighty-five percent of those serving LWOP sentences have been assigned the lowest security level allowed by prison officials. Officials assess the security risk level of each inmate from Level 1 (lowest risk) to 5. Those serving LWOP enter at Level 4 and, depending on their behavior, can move to a higher or lower risk level but cannot go below a Level 2. When 85 percent behaved well enough in prison to be at Level 2, you might think they are the ones the Supreme Court had in mind when it wrote “that children who commit even heinous crimes are capable of change” and deserve the “opportunity for release.”

While 38 states abolished juvenile LWOP or have less than five people serving that sentence, Michigan has the second highest, 363. That’s partially because Michigan sentences children as young as 14 and those that never fired a weapon. Where other states follow Supreme Court rulings and develop data-driven policies, Michigan sidesteps rulings and ignores data and facts. And spends money doing so. Michigan’s top prosecutor spent taxpayer resources unsuccessfully fighting Miller and Montgomery and now county prosecutors are willing to spend millions more to keep those youth who have long since been rehabilitated in prison.

As former U.S. Attorneys, 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. The first responsibility of a prosecutor in criminal litigation is to see that in each case, justice is done. In failing to exercise a case by case review pursuant to the mandates of Miller and Montgomery, Michigan prosecutors not only fail our justice system, they fail all of us, the citizens of the state of Michigan.

James Brady and Michael Dettmer are former U.S. Attorneys (Western District of Michigan). Richard Rossman is a former U. S. Attorney (Eastern District of Michigan).