19.4Cruel and/or Unusual Punishment

A.Eighth Amendment Prohibition of Cruel and Unusual Punishments

The Eighth Amendment of the United States Constitution, US Const, Am VIII, provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Eighth Amendment’s prohibition of cruel and unusual punishments requires that a punishment be “‘“graduated and proportioned”’ to both the offender and the offense.” Miller v Alabama, 567 US 460, 469 (2012) (citations omitted). “To determine whether a punishment is cruel and unusual, courts must look . . . to ‘“the evolving standards of decency that mark the progress of a maturing society.”’” Graham v Florida, 560 US 48, 58 (2010) (citations omitted).

B.Michigan Constitutional Prohibition of Cruel or Unusual Punishments

“The Michigan Constitution prohibits cruel or unusual punishment, Const 1963, art 1, § 16, whereas the United States Constitution prohibits cruel and unusual punishment, US Const, Am VIII. If a punishment ‘passes muster under the state constitution, then it necessarily passes muster under the federal constitution.’” People v Benton, 294 Mich App 191, 204 (2011), quoting People v Nunez, 242 Mich App 610, 618-619 n 2 (2000).

In determining whether a penalty is cruel or unusual under the Michigan Constitution, relevant considerations include (1) “‘the gravity of the offense and the harshness of the penalty[,]’” (2) “the penalt[ies] . . . imposed for . . . other crimes in Michigan[,]” (3) “‘the sentences imposed for commission of the same crime in other jurisdictions[,]’” and (4) “the goal of rehabilitation.” People v Bullock, 440 Mich 15, 33-34 (1992) (internal citations omitted). Additionally, “the punishment . . . chosen or authorized by the Legislature [must not be] so grossly disproportionate as to be unconstitutionally ‘cruel or unusual.’” Id. at 34-35 n 17.

C.Life Imprisonment Without Eligibility for Parole

Certain homicide and nonhomicide crimes are generally punishable under Michigan law by mandatory life imprisonment without the possibility of parole. See MCL 791.234(6)(a)-(f)¹; MCL 750.436(2)(e); MCL 750.543f. Previously, a juvenile who was sentenced as an adult for a conviction under one of these statutes was subject to this mandatory penalty. See MCL 712A.4; MCL 712A.18(1)(o); MCL 769.1. However, in two United States Supreme Court decisions, the Court held that (1) an offender under the age of 18 may not be sentenced to life imprisonment without the possibility of parole for a nonhomicide offense, Graham, 560 US 48,² and (2) an offender under the age of 18 may not be sentenced to mandatory life imprisonment without the possibility of parole for a homicide offense, Miller, 567 US 460.

MCL 769.25 and MCL 769.25a effectively eliminate the mandatory imposition of a sentence of life imprisonment without the possibility of parole for certain offenses when committed by an offender who was under the age of 18 at the time of the offense.³ See Section 19.4(C) for discussion of MCL 769.25 and MCL 769.25a and the procedures for sentencing or resentencing an eligible juvenile offender.

1.Age of Juvenile

Only those individuals who are below the age of 18 at the time of their offenses are subject to application of Michigan’s juvenile justice statutes governing delinquency, traditional waiver, automatic waiver, and designated proceedings. See MCL 600.606(1); MCL 712A.2(a)(1); MCL 712A.2d; MCL 712A.3; MCL 712A.4. Proceedings against defendants who commit crimes after reaching age 18 are conducted in courts of general criminal jurisdiction.

“[T]he common law of this state . . . provide[s] that a defendant is a juvenile for the purposes of Miller[, 567 US 460,] when he or she is under the age of 18, as determined by his or her anniversary of birth[,]” rather than “by the day preceding the anniversary of birth as at English common law.” People v Woolfolk, 479 Mich 23, 26, 27 (2014) (aff’g 304 Mich App 450 (2014) and holding that “[the] defendant remained ‘under the age of 18’ at the time he committed [a] homicide offense [on the night before his 18^th birthday] and [was] therefore entitled to be treated in accordance with the United States Supreme Court’s rule in Miller”).

However, “mandatorily subjecting 18-year-old defendants to life in prison, without first considering the attributes of youth, is unusually excessive imprisonment and thus a disproportionate sentence that constitutes ‘cruel or unusual punishment’ under Const 1963, art 1, § 16.” People v Parks, ___ Mich ___, ___ (2022).⁴

2.Nonhomicide Offenses

A sentence of life imprisonment without the possibility of parole for a nonhomicide offense violates the Eighth Amendment of the United States Constitution when imposed upon a defendant who was under age 18 when the offense was committed. Graham, 560 US at 74-75, 82. Noting that juveniles are less mature, more vulnerable to negative influences, and more capable of rehabilitation than adults, and that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers[,]” the Graham Court concluded that “[a] State need not guarantee the offender eventual release, but if it imposes a sentence of life [upon an offender under the age of 18 who did not commit homicide] it must provide him or her with some realistic opportunity to obtain release before the end of that term.” Id. at 68-69, 82. The Court explained:   

 “A categorical rule avoids the risk that . . . a court or jury will erroneously conclude that a particular juvenile is sufficiently culpable to deserve life without parole for a nonhomicide. . . . [A] categorical rule gives all juvenile nonhomicide offenders a chance to demonstrate maturity and reform. . . . A categorical rule against life without parole for juvenile nonhomicide offenders avoids the perverse consequence in which the lack of maturity that led to an offender’s crime is reinforced by the prison term.” Graham, 560 US at 78-79.

3.Homicide Offenses

Previously, a juvenile who was convicted, in an automatic or traditional waiver proceeding, of first-degree murder—including felony murder, MCL 750.316(1)(b), and aiding and abetting first-degree murder, MCL 767.39—was subject under Michigan law to a mandatory sentence of life imprisonment.⁵ See former MCL 750.316; see also MCL 712A.4; MCL 769.1(1)(e); MCL 769.1(1)(g). Additionally, a juvenile who was convicted of first-degree murder in a prosecutor-designated proceeding was subject to this mandatory penalty if the court decided to sentence the juvenile as an adult. See MCL 712A.18(1)(o); MCL 712A.18h. Moreover, under MCL 791.234(6)(a), any offender serving a life sentence for first-degree murder is ineligible for parole.⁶

In Miller, 567 US at 465, 479, 489, the United States Supreme Court held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole” for offenders under the age of 18 at the time of their crimes, and that “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.” See also People v Skinner (Skinner II), 502 Mich 89, 104 (2018), rev’g People v Skinner (Skinner I), 312 Mich App 15 (2015) and aff’g in part and rev’g in part People v Hyatt, 316 Mich App 368 (2016). Noting that Graham, 560 US 48,⁷ “insists that youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole[,]” the Miller Court concluded that a nonparolable sentence of life imprisonment may not be imposed on a juvenile for a homicide offense unless the sentencer has “take[n] into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, 567 US at 473, 480.

The Miller Court identified, as relevant considerations in determining whether to impose such a sentence, the offender’s “chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences[;]” the offender’s “family and home environment[;]” “the circumstances of the homicide offense, including the extent of [the offender’s] participation in the conduct and the way familial and peer pressures may have affected him [or her;]” the “incompetencies associated with youth[]” in dealing with police officers, prosecutors, and defense attorneys; and “the possibility of rehabilitation[.]” See Miller, 567 US at 477-478. Although rejecting the petitioners’ invitation to impose a categorical bar on life sentences without parole for juveniles of any age, the Miller Court cautioned that, in light of “children’s diminished culpability and heightened capacity for change, . . . appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Id. at 479-480 (noting “the great difficulty . . . of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption[]’”) (citations omitted).

In Montgomery v Louisiana, 577 US 190, 195 (2016), the United States Supreme Court stressed that “[a]lthough Miller[, 567 US 460,] did not foreclose a sentencer’s ability to impose life without parole on a juvenile, the [Miller] Court explained that a lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect ‘“irreparable corruption.”’” (Citations omitted.) Although “Miller did not impose a formal factfinding requirement” regarding a juvenile’s incorrigibility, this “does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole[; t]o the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment.” Montgomery, 577 US at 211 (citation omitted). See also Skinner II, 502 Mich at 125, n 18; 128 (“MCL 769.25 requires trial courts to consider the Miller factors before imposing life without parole in order to ensure that only those juveniles who are irreparably corrupt are sentenced to life without parole”; however, “[w]hether a juvenile is irreparably corrupt is not a factual finding, [but] instead . . . is a moral judgment that is made after considering and weighing the Miller factors,” and thus, “[t]he trial court is not obligated to explicitly find that defendant is irreparably corrupt” before imposing a sentence of life without parole, nor does it “have to explicitly find that defendant is ‘rare.’”).

“[N]either Miller nor Montgomery imposes a presumption against life without parole for those juveniles who have been convicted of first-degree murder on either the trial court or appellate court.” Skinner II, 502 Mich at 131. “Miller and Montgomery simply require that the trial court consider ‘an offender’s youth and attendant characteristics’ before imposing life without parole.” Skinner II, 502 Mich at 131, quoting Miller, 567 US at 483. See Section 19.4(C)(4)(a) for more information on the hearing process under MCL 769.25.

Addressing the issue of Miller’s retroactivity, the Montgomery Court held that because Miller “rendered life without parole an unconstitutional penalty for ‘a class of defendants because of their status’—that is, juvenile offenders whose crimes reflect the transient immaturity of youth,’” it “announced a substantive rule of constitutional law[, and, l]ike other substantive rules, is retroactive because it ‘“necessarily carr[ies] a significant risk that a defendant”’—here, the vast majority of juvenile offenders—‘“faces a punishment that the law cannot impose upon him.”’” Montgomery, 577 US at 208-209, 212 (noting that giving Miller retroactive effect “does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole[; rather, a] State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them”) (citations omitted).

“[T]here is a rebuttable presumption against the imposition of juvenile LWOP sentences in Michigan and . . . it is the prosecution’s burden to overcome this presumption by clear and convincing evidence at a Miller hearing.” People v Taylor, ___ Mich ___, ___ (2022). “MCL 769.25 does not require the sentencing court to find a particular fact before it can impose an LWOP sentence.” Taylor, ___ Mich at ___. “The trial court . . . must consider all the evidence before it and determine whether the presumption has been rebutted in order to impose LWOP.” Id. at ___. “This is an exercise in discretion, not a fact-finding mission.” Id. at ___ (noting that “our decision today does not foreclose a sentencing court’s ability to sentence a juvenile offender to LWOP if it is determined that, considering all the information before it, LWOP is a constitutionally proportionate sentence.”).

“[T]he Michigan Constitution requires that 18-year-olds convicted of first-degree murder receive the same individualized sentencing procedure under MCL 769.25 as juveniles who have committed first-degree murder, instead of being subjected to a mandatory life-without-parole sentence like other older adults.” People v Parks, ___ Mich ___, ___ (2022).⁸ In Parks, the Michigan Supreme Court held that “mandatorily subjecting 18-year-old defendants to life in prison, without first considering the attributes of youth, is unusually excessive imprisonment and thus a disproportionate sentence that constitutes ‘cruel or unusual punishment’ under Const 1963, art 1, § 16.” Parks, ___ Mich at ___ (holding that because defendant “was sentenced without consideration of the attributes of youth, his sentence [was] unconstitutional, and he must be resentenced.”)

See Section 19.4(C)(4) for discussion of sentencing juveniles to life-without-parole sentences under MCL 769.25 and MCL 769.25a.

4.Michigan “Juvenile Lifer” Statutory Sentencing and Resentencing Procedures: Legislative Compliance With Miller

MCL 769.25 and MCL 769.25a attempt to achieve compliance with Miller, 567 US 460, by (1) eliminating mandatory life-without-parole sentences for certain offenders under the age of 18 in cases that are not final for purposes of appellate review⁹; (2) establishing, in MCL 769.25, a procedure under which the prosecuting attorney, in a case that is not final for purposes of appellate review, may seek imposition of a life-without-parole sentence for an offender under the age of 18, and providing for the imposition of a term-of-years sentence if a life-without-parole sentence is not imposed; and (3) establishing, in MCL 769.25a, a procedure for the resentencing of defendants in cases that are final for purposes of appellate review, in the event that either the Michigan Supreme Court or the United States Supreme Court determined that Miller is to be given retroactive application (and, indeed, the United States Supreme Court held in Montgomery, 577 US 208-209, that Miller is to be applied retroactively, thereby triggering application of MCL 769.25a to cases on collateral review).

a.MCL 769.25: Prospective Application of Miller¹⁰

MCL 769.25 authorizes a prosecuting attorney to file, in a case that is not final for purposes of appellate review, a motion seeking a sentence of imprisonment for life without the possibility of parole for a conviction of first-degree murder or other enumerated offense that was committed when the defendant was less than 18 years old. MCL 769.25(1)-(3); MCL 769.25a(1).¹¹

Except as otherwise provided in MCL 769.25a(2) and MCL 769.25a(3) (providing for resentencing in a case that is final for purposes of appellate review in the event that the Michigan Supreme Court or the United States Supreme Court determined that Miller, 567 US 460, is retroactively applicable, as, indeed, the United States Supreme Court has since held),¹² “the procedures set forth in [MCL 769.25] do not apply to any case that is final^[13] for purposes of appeal on or before June 24, 2012.” MCL 769.25a(1)-(3). Specifically, MCL 769.25 “applies to a criminal defendant who was less than 18 years of age at the time he or she committed an offense described in [MCL 769.25(2)] if either of the following circumstances exists:”

“(a) The defendant is convicted of the offense on or after [March 4, 2014,] the effective date of the amendatory act that added [MCL 769.25].

(b) The defendant was convicted of the offense before [March 4, 2014,] and either of the following applies:

(i) The case is still pending in the trial court or the applicable time periods for direct appellate review by state or federal courts have not expired.

(ii) On June 25, 2012[,] the case was pending in the trial court or the applicable time periods for direct appellate review by state or federal courts had not expired.” MCL 769.25(1)(a)-(b).

“[W]hen a prosecutor seeks a [life imprisonment without the possibility of parole] sentence for a juvenile offender, the defendant must be afforded the opportunity and the financial resources to present evidence of mitigating factors relevant to the offender and the offense.” People v Williams, 328 Mich App 408, 413 (2019) (finding that the trial court’s limitation on expert funding for defendant’s mitigation expert lacked support where it failed to articulate why “defendant’s request for $42,650 was highly excessive” and “instead provide[d] $2,500 to defendant to retain expert witnesses”) (quotation marks, alteration, and citation omitted). See the Michigan Judicial Institute’s Evidence Benchbook, Chapter 4, for more information on expert witnesses, including funding.

Enumerated Offenses. MCL 769.25(2) provides that “[t]he prosecuting attorney may file a motion      .      .      .      to sentence a defendant described in [MCL 769.25(1)] to imprisonment for life without the possibility of parole if the individual is or was convicted of any of the following violations:”

•first-degree murder, MCL 750.316;

•certain offenses involving the alteration, adulteration, misbranding, or mislabeling of a drug, medicine, or device with the intent to kill or to cause serious impairment of a body function of two or more individuals, resulting in death, MCL 333.17764(7); MCL 750.16(5); MCL 750.18(7);

•a violation of Chapter XXXIII of the Michigan Penal Code (“Explosives, Bombs, and Harmful Devices”), MCL 750.200—MCL 750.212a;

•willfully mingling a poison or harmful substance with a food, drink, nonprescription medicine, or pharmaceutical product, or willfully placing a poison or harmful substance in a spring, well, reservoir, or public water supply, knowing or having reason to know that it may be ingested or used by a person to his or her injury, causing the death of another individual, MCL 750.436(2)(e);

•terrorism causing death, MCL 750.543f; or

•a violation of law involving the death of another person for which parole eligibility is expressly denied under state law.

Motion and Response Requirements. If a prosecuting attorney intends to seek a sentence of imprisonment for life without parole for a defendant who was convicted on or after March 4, 2014 (the effective date of the amendatory legislation), the motion must be filed within 21 days after the defendant was convicted. MCL 769.25(3). If the defendant was convicted before March 4, 2014, but the conviction was not final as set out in MCL 769.25(1)(b), a motion for a sentence of life imprisonment without parole must be filed within 90 days after March 4, 2014. MCL 769.25(3). The motion must “specify the grounds on which the prosecuting attorney is requesting the court to impose a sentence of imprisonment for life without the possibility of parole.” Id. The defendant must file a response within 14 days after receiving notice of the prosecutor’s motion. MCL 769.25(5).

If the motion is not timely filed, the court must sentence the defendant to a term of years as provided in MCL 769.25(9). MCL 769.25(4).

Victims’ Rights. “Each victim shall be afforded the right under section 15 of the [Crime Victim’s Rights Act], MCL 780.765, to appear before the court and make an oral impact statement at any sentencing or resentencing of the defendant under [MCL 769.25].” MCL 769.25(8).

Hearing Process. “[T]he decision to sentence a juvenile to life without parole [under MCL 769.25] is to be made by a judge[.]” People v Skinner (Skinner II), 502 Mich 89, 137 (2018), rev’g People v Skinner (Skinner I), 312 Mich App 15 (2015) and aff’g in part and rev’g in part People v Hyatt, 316 Mich App 368 (2016). “MCL 769.25 requires trial courts to consider the Miller factors before imposing life without parole in order to ensure that only those juveniles who are irreparably corrupt are sentenced to life without parole”; however, “[w]hether a juvenile is irreparably corrupt is not a factual finding, [but] instead . . . is a moral judgment that is made after considering and weighing the Miller factors” Skinner II, 502 Mich at 125, n 18. Accordingly “[t]he trial court is not obligated to explicitly find that defendant is irreparably corrupt” before imposing a sentence of life without parole, nor does it “have to explicitly find that defendant is ‘rare.’” Id. at 128. Additionally, the decision to sentence a juvenile to LWOP does not require a separate factual finding of permanent incorrigibility, nor is the sentencing court required to provide an explanation with an implicit finding of permanent incorrigibility on the record. Jones v Mississippi, 593 US ___, ___, ___ (2021) (the Jones decision does not disturb the Miller or Montgomery holdings).

“[T]here is a rebuttable presumption against the imposition of juvenile LWOP sentences in Michigan and . . . it is the prosecution’s burden to overcome this presumption by clear and convincing evidence at a Miller hearing.” People v Taylor, ___ Mich ___, ___ (2022). “MCL 769.25 does not require the sentencing court to find a particular fact before it can impose an LWOP sentence.” Taylor, ___ Mich at ___. “The trial court . . . must consider all the evidence before it and determine whether the presumption has been rebutted in order to impose LWOP.” Id. at ___. “This is an exercise in discretion, not a fact-finding mission.” Id. at ___ (noting that “our decision today does not foreclose a sentencing court’s ability to sentence a juvenile offender to LWOP if it is determined that, considering all the information before it, LWOP is a constitutionally proportionate sentence.”).

While “trial courts must consider a juvenile defendant’s youth to be a mitigating factor when sentencing them to term-of-years sentences under MCL 769.25 or MCL 769.25a[,]” they are not required to “articulate on the record how a defendant’s youth affected the decision.” People v Boykin, ___ Mich ___, ___ (2022).

“MCL 769.25 does not violate the Sixth Amendment because neither [MCL 769.25] nor the Eighth Amendment requires a judge to find any particular fact before imposing life without parole; instead, life without parole is authorized by the jury’s verdict alone.” Skinner II, 502 Mich at 97. Specifically, under MCL 769.25(6) the trial court must “conduct a hearing on the motion as part of the sentencing process[]” and consider the factors listed in Miller, 567 US 460,¹⁴ and under MCL 769.25(7) the court must specify on the record the aggravating and mitigating circumstances considered by the court and the court’s reasons supporting the sentence imposed. Neither of these requirements violated the Sixth Amendment. See Skinner II, 502 Mich at 102. Because “the Sixth Amendment only prohibits fact-finding that increases a defendant’s sentence” and “does not prohibit fact-finding that reduces a defendant’s sentence. Therefore, the requirement in MCL 769.25(6) that the court consider the Miller factors does not violate the Sixth Amendment.” Skinner II, 502 Mich at 115, 116 (finding that the Miller factors “‘counsel against irrevocably sentencing [juveniles] to a lifetime in prison’”), quoting Miller, 567 US at 480 (emphasis added; alteration in original). Similarly, MCL 765.29(7) does not violate the Sixth Amendment because it does not necessarily require the trial court to specify an aggravating circumstance before imposing a life-without-parole sentence; the trial court “could find that there are no mitigating or aggravating circumstances and that is why it is imposing a life-without-parole sentence,” which “demonstrates that a life-without-parole sentence is authorized by the jury’s verdict alone.” Skinner II, 502 Mich at 117, n 12, 117. However, “a judge is not precluded from considering aggravating circumstances in deciding whether to sentence a juvenile to either a term of years or life without parole because both of those sentences are within the range prescribed by Michigan’s statutory scheme.” Id. at 118 n 14 (a factual finding by the court indicating that an aggravating circumstance exists does not expose the defendant to a sentence that exceeds the sentence authorized by the jury’s verdict alone, and thus, does not violate the Sixth Amendment).

Considering Factors Other Than Miller Factors. “Although reliance on other criteria to the exclusion of, or without proper consideration of, Miller v Alabama, 567 US 460 (2012), would be an abuse of discretion, mere consideration of the traditional objectives of sentencing or other factors is not, per se, an error of law. See MCL 769.25(6)-(7).” People v Garay, 506 Mich 936, 936-937 (2020). Traditional objectives of sentencing include punishment, deterrence, protection, retribution, and rehabilitation. Id. at 936.

Life-Without-Parole Sentence: Standard of Review. A trial court’s decision whether to sentence a juvenile to life without parole is reviewed for an abuse of discretion. Skinner II, 502 Mich at 137 (reversing Hyatt, 316 Mich App at 423, to the extent that it required a heightened standard of review). “The trial court remains in the best position to determine whether each particular defendant is deserving of life without parole. All crimes have a maximum possible penalty, and when trial judges have discretion to impose a sentence, the imposition of the maximum possible penalty for any crime is presumably ‘uncommon’ or ‘rare.’” Skinner II, 502 Mich at 137.

“‘Any fact-finding by the trial court is to be reviewed for clear error’ and . . . ‘any questions of law are to be reviewed de novo[.]’” Skinner II, 502 Mich at 137, n 27, quoting Hyatt, 316 Mich App at 423.

Term-of-Years Sentence. If a nonparolable life sentence is not imposed, either following a sentencing hearing under MCL 769.25 or because the prosecutor does not file a timely motion, the court must impose a “term of imprisonment for which the maximum term shall be not less than 60 years and the minimum term shall be not less than 25 years or more than 40 years.” MCL 769.25(9); see also MCL 769.25(4). The defendant must be given credit for time already served, “but shall not receive any good time credits, special good time credits, disciplinary credits, or any other credits that reduce the defendant’s minimum or maximum sentence.” MCL 769.25(10).

b.MCL 769.25a: Retroactive Application of Miller

MCL 769.25a¹⁵ sets out procedures for resentencing certain eligible offenders whose convictions are final for purposes of appellate review. These procedures were to become applicable only in the event, and to the extent, that the Michigan Supreme Court or the United States Supreme Court determined that Miller v Alabama, 567 US 460 (2012), is retroactively applicable.¹⁶ Indeed, after the enactment of MCL 769.25 and MCL 769.25a, the United States Supreme Court held that Miller is to be applied retroactively, thereby triggering application of MCL 769.25a to cases on collateral review. Montgomery v Louisiana, 577 US 190 (2016).¹⁷ 

MCL 769.25a(2) provides:

“If the state supreme court or the United States supreme court finds that [Miller, 567 US 460], applies retroactively to all defendants who were under the age of 18 at the time of their crimes, and that decision is final for appellate purposes, the determination of whether a sentence of imprisonment for a violation set forth in [MCL 769.25(2)] shall be imprisonment for life without parole eligibility or a term of years as set forth in [MCL 769.25(9)] shall be made by the sentencing judge or his or her successor as provided in [MCL 769.25a]. For purposes of [MCL 769.25a(2)], a decision of the state supreme court is final when either the United States supreme court denies a petition for certiorari challenging the decision or the time for filing that petition passes without a petition being filed.”¹⁸ 

Because a decision requiring Miller’s retroactive application has been issued as contemplated in MCL 769.25a(2), the following procedures apply:

“(a) Within 30 days after the date the supreme court’s decision becomes final,^[19] the prosecuting attorney shall provide a list of names to the chief circuit judge of that county of all defendants who are subject to the jurisdiction of that court and who must be resentenced under that decision.

(b) Within 180 days after the date the supreme court’s decision becomes final, the prosecuting attorney shall file motions for resentencing in all cases in which the prosecuting attorney will be requesting the court to impose a sentence of imprisonment for life without the possibility of parole. A hearing on the motion shall be conducted as provided in [MCL 769.25].^[20]

(c) If the prosecuting attorney does not file a motion under [MCL 769.25a(4)(b)], the court shall sentence the individual to a term of imprisonment for which the maximum term shall be 60 years^[21] and the minimum term shall be not less than 25 years or more than 40 years. Each victim shall be afforded the right under section 15 of the [Crime Victim’s Rights Act], MCL 780.765, to appear before the court and make an oral impact statement at any resentencing of the defendant under [MCL 769.25a(4)(c)].” MCL 769.25a(4).

MCL 769.25a(5) sets out the following order of priority for conducting resentencing hearings under MCL 769.25a(4):

“(a) Cases involving defendants who have served 20 or more years of imprisonment shall be held first.

(b) Cases in which the prosecuting attorney has filed a motion requesting a sentence of imprisonment for life without the possibility of parole shall be held after cases described in [MCL 769.25a(5)(a)] are held.

(c) Cases other than those described in [MCL 769.25a(5)(a)-(b)] shall be held after the cases described in [MCL 769.25a(5)(a)-(b)] are held.”

“[T]here is a rebuttable presumption against the imposition of juvenile LWOP sentences in Michigan and . . . it is the prosecution’s burden to overcome this presumption by clear and convincing evidence at a Miller hearing.” People v Taylor, ___ Mich ___, ___ (2022). “MCL 769.25 does not require the sentencing court to find a particular fact before it can impose an LWOP sentence.” Taylor, ___ Mich at ___. “The trial court . . . must consider all the evidence before it and determine whether the presumption has been rebutted in order to impose LWOP.” Id. at ___. “This is an exercise in discretion, not a fact-finding mission.” Id. at ___ (noting that “our decision today does not foreclose a sentencing court’s ability to sentence a juvenile offender to LWOP if it is determined that, considering all the information before it, LWOP is a constitutionally proportionate sentence.”).

The decision to resentence a juvenile to LWOP does not require a separate factual finding of permanent incorrigibility, nor is the sentencing court required to provide an explanation with an implicit finding of permanent incorrigibility on the record. Jones v Mississippi, 593 US ___, ___, ___ (2021) (the Jones decision does not disturb the Miller or Montgomery holdings). While “trial courts must consider a juvenile defendant’s youth to be a mitigating factor when sentencing them to term-of-years sentences under MCL 769.25 or MCL 769.25a[,]” they are not required to “articulate on the record how a defendant’s youth affected the decision.” People v Boykin, 510 Mich 171, 178 (2022).

MCL 769.25a “allow[s] a defendant to be resentenced on concurrent sentences” and does not require a defendant who must be resentenced under Montgomery “to file a separate motion for relief from judgment in order to seek resentencing on his concurrent sentence[.]” People v Turner, 505 Mich 954, 954 (2020). “In the Miller context, a concurrent sentence for a lesser offense is invalid if there is reason to believe that it was based on a legal misconception that the defendant was required to serve a mandatory sentence of life without parole on the greater offense. Accordingly, at a Miller resentencing, the trial court may exercise its discretion to resentence a defendant on a concurrent sentence” if it makes such a finding. Turner, 505 Mich at 954-955.

“[A] failure to consider the distinctive attributes of youth . . . when sentencing a minor to a term of years pursuant to MCL 769.25a, so undermines a sentencing judge’s exercise of his or her discretion as to constitute reversible error,” and while “there is no constitutional mandate requiring the trial court to specifically make findings as to the Miller factors except in the context of a decision whether or not to impose life without parole,” “when sentencing a minor convicted of first-degree murder, when the sentence of life imprisonment without parole is not at issue, the court should be guided by a balancing of the [People v Snow, 386 Mich 586, 592 (1972)] objectives [(reformation of the offender; protection of society; punishment of the offender; and deterrence of others from committing like offenses)] and in that context is required to take into account the attributes of youth, such as those described in Miller.” People v Wines, 323 Mich App 343, 352 (2018), rev’d in part on other grounds 506 Mich 954 (2020).²² In Wines, the defendant was originally sentenced as a juvenile to life imprisonment without parole for his first-degree murder conviction, and following the United States Supreme Court Montgomery decision, was resentenced to the maximum possible term of 40 to 60 years. Wines, 323 Mich App at 354, 355. The trial court erred when it did not exercise its discretion to consider and balance the Snow factors, but instead “concluded that defendant should receive the maximum sentence the court could impose” based on the facts of the case, and “did not discuss whether defendant remained a threat to the safety of society, whether he was capable of reform, or whether sentencing defendant to 40 years, rather than a lesser minimum term, would be likely to have a significantly different deterrent effect.”

“The focus of the analysis necessarily shifts when a court considers an appropriate sentence for an adult who was sentenced to a lifetime of imprisonment for a crime committed as a juvenile. While sentencing a young person, a judge looks forward and endeavors to predict the future. Miller counsels that a careful examination of the offender’s developmental characteristics, his or her family environment, and the circumstances surrounding the crime help guide a determination of whether that child will ever be capable of change. Resentencing an adult requires restructuring the evidentiary review; the older the adult, the larger the predictive canvas becomes. While the Miller factors remain highly relevant, a judge resentencing an offender who has served many years in prison has the benefit of actual data regarding whether the offender’s life in prison is truly consistent with ‘irreparable corruption,’ the only ground Miller specifically identified for imposing a life-without-parole sentence.” People v Bennett, 335 Mich App 409, 420 (2021).

“Mental illness is not a specific Miller factor . . . [b]ut it is imbedded within the first two factors: immaturity, impetuosity, and failure to appreciate risks and consequences; and the family and home environment.” Bennett, 335 Mich App at 417, 429 (“[i]t is beyond dispute that the ‘qualities of youth’ encapsulated in the Miller factors include untreated mental illness born of an abusive childhood or exacerbated by living in an abusive home”). “Treated mental illness is not a signal of irreparable corruption” and “although untreated mental illness may predispose a person to violent behavior, successfully treated mental illness does not.” Id. at 430, 434. “Our justice system generally regards an offender who commits a crime while suffering from an undiagnosed or untreated mental illness as less deserving of the harshest punishments[.]” Id. at 429.

In Bennett, the trial judge reimposed a life-without-parole sentence after “determin[ing] that because [defendant] [wa]s mentally ill–a condition that remained undiagnosed and untreated until [defendant’s] incarceration–he ‘might’ be unable to care for himself if released.” Bennett, 335 Mich App at 413, 434 (noting “[t]he court’s unfounded speculation [found] no record support”). It is a due process requirement that “[a] sentencing judge’s exercise of discretion must be based upon accurate information.” Id. at 434 (quotation marks and citation omitted). “Instead of fashioning a sentence grounded in the abundant evidence that [defendant had] become a productive, stable, and peaceful adult, the [trial] court resorted to a purely theoretical and uncertain prediction that because [defendant] is mentally ill, he ‘might’ ‘cause a problem.’” Id. “To the extent that the resentencing court made a factual finding regarding [defendant’s] risk of reoffending, it was clearly erroneous because no evidence supported it”; “[n]or did any evidence support any other ground for [defendant’s] continued incarceration.” Id.

“Courts sentencing juvenile defendants to a term-of-years sentence under MCL 769.25a are required only to make a record demonstrating that the court considered the defendant’s youth and treated it as a mitigating factor.” People v Copeland, ___ Mich App ___, ___ (2024). “When a juvenile defendant is sentenced to a term of years, there is no requirement that the sentencing court consider the Miller factors, expressly or otherwise.” Copeland, ___ Mich App at ___ (noting “courts sentencing juvenile defendants to a term of years have discretion to consider the Miller factors when fashioning an appropriate sentence, which in turn ‘enhances an appellate court’s ability to review the proportionality’ of the sentence,” quoting Boykin, 510 Mich at 194 n 9). Further, “there is no requirement that a trial court resentencing a defendant to a term-of-years sentence under MCL 769.25a articulate on the record its consideration of the mitigating qualities of youth within Snow’s sentencing criteria.” Copeland, ___ Mich App at ___. “More generally, there are no magic words or phrases that a trial court must use to show that it adequately considered the mitigating qualities of youth within Snow’s sentencing criteria.” Copeland, ___ Mich App at ___. “A trial court need only articulate a justification for the sentence imposed in a manner sufficient to facilitate appellate review, even when resentencing a juvenile defendant to a term-of-years sentence under MCL 769.25a.” Copeland, ___ Mich App at ___.

In Copeland, the “defendant was not a juvenile at the time of his resentencing, but instead had already served over 20 years in prison.” Id. at ___. The trial court did not err when it considered the Snow factors with the benefit of hindsight “because the principle of proportionality requires sentencing courts to tailor their sentences to each defendant’s individual circumstances.” Copeland, ___ Mich App at ___ (noting “the trial court made a record explaining how it considered defendant’s youth and treated it as a mitigating factor when tailoring defendant’s sentence”). The Court of Appeals also rejected defendant’s argument “that his sentence [was] disproportionate because, despite finding that several factors mitigated in defendant’s favor, the court still imposed a sentence near the maximum minimum.” Id. at ___. Although “defendant’s sentence [was] on the high-end of [the] minimum-sentence range, the abuse-of-discretion standard recognizes that there is no single correct outcome, but a range of reasonable and principled outcomes.” Id. at ___. “With this in mind, and in light of the trial court’s extensive discussion about what it considered before imposing the sentence, particularly its explicit consideration of defendant’s youth as a mitigating factor,” the Copeland Court concluded “that the trial court did not abuse its discretion by imposing a minimum sentence of 38 years and 3 months based on the record before it.” Id. at ___.

However, a defendant was entitled to resentencing where the trial “court openly acknowledged that [defendant’s] background and the circumstances of the murder demonstrated that [defendant] was immature and impulsive, lacked discipline and self-restraint, and had been negatively influenced by gang members from a young age.” People v Eads, ___ Mich App ___, ___ (2025). The trial court . . . dismissed the very notion that such characteristics might have a mitigating effect and instead considered them as aggravating factors in support of a significant departure sentence—an approach plainly contrary to Miller and its progeny.” Id. at ___. In this case, defendant “was found guilty of second-degree murder and possession of a firearm during the commission of a felony (felony-firearm) for crimes he committed as a juvenile.” Id. at ___ (citations omitted). “The trial court sentenced [defendant] as an adult and, departing upward from the guidelines, imposed consecutive terms of 50 to 75 years’ imprisonment for second-degree murder and two years’ imprisonment for felony-firearm.” Id. at ___. Defendant, “despite his juvenile status and all that has now been recognized to come with it, received a sentence for second-degree murder that would require him to outlive his life expectancy before even becoming eligible for parole and would deny him a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at ___. After Miller and the enactment of MCL 769.25a, a defendant convicted of first-degree murder as a juvenile was entitled “to resentencing such that he or she, by default, could not receive a term-of-years sentence with a minimum higher than 40 years or a maximum higher than 60 years.” Eads, ___ Mich App at ___.  In Eads, defendant received “a minimum sentence 10 years higher and a maximum sentence 15 years higher than [MCL 769.25a(4)(c)’s] upper limits—for committing a lesser offense as a juvenile.” Eads, ___ Mich App at ___. “[I]ronically, [defendant] fared worse than he would have if the jury had convicted him of [first-degree murder].” Id. at ___. Defendant’s “term-of-years sentence for second-degree murder . . . violate[d] the Michigan Constitution’s prohibition against cruel or unusual punishment, and it [was] also disproportionate given the sentencing court’s failure to consider [defendant’s] youth and its attendant characteristics as mitigating factors.Id. at ___.

A term-of-years sentence imposed under MCL 769.25a(4)(c) must include “a maximum sentence of 60 years’ imprisonment.” People v Meadows, 319 Mich App 187, 190-191 (2017) (holding that the trial court erred in imposing a 45-year maximum sentence for a juvenile offender who was resentenced under MCL 769.25a(4)(c)).

A defendant who is resentenced under MCL 769.25a(4) must be given credit for time already served, “but shall not receive any good time credits, special good time credits, disciplinary credits, or any other credits that reduce the defendant’s minimum or maximum sentence.” MCL 769.25a(6). However, in People v Wiley, 324 Mich App 130, 149-150 (2018), the Court of Appeals held that “MCL 769.25a(6) violates the Ex Post Facto Clause of the United States and Michigan Constitutions, US Const art I, § 10; Const 1963, art 1, § 10, because it precludes [juveniles (or former juvenile offenders) who are being resentenced] from receiving disciplinary credits on their term-of-years sentences, and thus, it is a retroactive^[23] statute that increases their potential sentences or punishments.” See also Hill v Snyder, 308 F3d 893, 906 (CA 6, 2018).²⁴ In contrast, “because restitution is a civil remedy and not a punishment,” the Michigan Supreme Court held that the trial court did not violate “federal and state constitutional prohibitions on ex post facto laws when, during defendant’s resentencing proceedings, it ordered defendant to pay restitution pursuant to the current restitution statutes rather than the statutes in effect at the time of defendant’s crimes.” People v Neilly, ___ Mich ___, ___ (2024) (rejecting defendant’s argument that “the trial court had improperly increased the punishment for his crimes”).

For a table summarizing the application of MCL 769.25 and MCL 769.25a, see the Michigan Judicial Institute’s Juvenile Life-Without-Parole Quick Reference Guide. 

D.Life with Possibility of Parole

A sentence of life imprisonment with the possibility of parole for second-degree murder, imposed for a crime committed when an offender was a juvenile, “violates the prohibition against cruel or unusual punishment in Const 1963, art 1, § 16.” People v Stovall, ___ Mich ___, ___ (2022) (holding that “[b]ecause Miller and Montgomery serve as the ‘foundation’ or ‘base’ for the defendant’s challenges to the constitutionality of his sentences, his motion is ‘based on a retroactive change in law’ and therefore overcomes the procedural bar [(against successive motions)] in MCR 6.502(G)”); see also People v Eads, ___ Mich App ___, ___ (2025) (holding that defendant’s term-of-years sentence “violate[d] the Michigan Constitution’s prohibition against cruel or unusual punishment, and it [was] also disproportionate given the sentencing court’s failure to consider [defendant’s] youth and its attendant characteristics as mitigating factors”). See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, for additional information on postjudgment motions.

E.Mandatory Minimum 25-Year Sentence for Certain CSC-I Offenders

“[T]he 25-year mandatory minimum [sentence] prescribed by MCL 750.520b(2)(b) [for first-degree criminal sexual conduct committed by a defendant who is 17 years of age or older against a victim who is less than 13 years of age] is [not] cruel or unusual when applied to a [17-year-old] juvenile offender[,]” because the mandatory sentence “provides ‘some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation’ for juvenile offenders.” People v Payne, 304 Mich App 667, 675-676 (2014)²⁵ (quoting Graham v Florida, 560 US 48, 75 (2010), and noting that “[a]lthough a minimum sentence of 25 years is unquestionably substantial, it is simply not comparable to the sentences of death and life without parole found unconstitutional when applied to juveniles in Miller[ v Alabama, 567 US 460 (2012),] Graham, [560 US 48,] and Roper[ v Simmons, 543 US 551 (2005)][]”).²⁶

F.Extradition of Juvenile

“[A] detainee awaiting extradition[] has not incurred a punishment under [either] the Eighth Amendment[]” or Const 1963, art 1, § 16. In re Boynton, 302 Mich App 632, 635, 652, 654-655 (2013) (holding that the trial court properly permitted the juvenile respondent’s extradition under the Uniform Criminal Extradition Act (UCEA), MCL 780.1 et seq., to the state of Georgia to face accusations of delinquent behavior allegedly committed in that state when he was 12 years old, and further concluding that his claim that “removal from his family” and “extradition at ‘the tender age of 15’” would constitute cruel and unusual punishment “must be addressed by the courts of the state of Georgia, not the courts of Michigan[]”).