Under Michigan law, adults who commit the offense of first-degree murder are subject to a mandatory minimum sentence of life imprisonment without eligibility for parole.[1] In 2016, 18-year-old Kemo Parks aided and abetted his older cousin, Dequavion Harris, in a murder in the parking lot of a convenience store. Witnesses saw Parks and Harris whispering to each other in the back seat of their car, and then Parks gave Harris a gun. They both entered the store, and a short time later, Harris exited the store and shot and killed the victim who was sitting in his car.[2]

Parks was sentenced under Mich. Comp. Laws § 750.316 to life without parole.[3] He appealed his sentence, seeking to have it overturned under either the U.S. Constitution’s Eighth Amendment prohibition on cruel and unusual punishment, or the Michigan Constitution’s prohibition on cruel or unusual punishment.[4] The Court of Appeals of Michigan rejected both arguments and affirmed the trial court’s sentence.[5]

Parks appealed to the Michigan Supreme Court under the same theories.[6] The Michigan Supreme Court rejected the argument that the sentence was unconstitutional under the federal Eighth Amendment but held that it was cruel or unusual under the Michigan Constitution.[7] The court reversed the judgment of the Court of Appeals and remanded to the trial court for resentencing.[8]

In so holding, the court found the reasoning of the United States Supreme Court in Miller v. Alabama to be persuasive for all non-juveniles and applied it to 18-year-old convicts in the State of Michigan.[9] Importantly, the court held that the mandatory or automatic imposition of life without parole to 18-year-olds convicted of first degree murder was unconstitutional. The court did not prohibit such a sentence if the trial court found sufficient aggravating factors. Instead, 18-year-old defendants are now entitled to the full protections afforded to juveniles for individualized sentencing procedures under Mich. Comp. Laws § 769.25.[10]

The court began by analyzing Parks’ claims under the Eighth Amendment to the U.S. Constitution. The court recognized that the Supreme Court had drawn a bright line in Miller at the age of 18 for mandatory sentences. Under the Miller line of decisions, those who are under the age of 18 and convicted of homicide cannot be mandatorily subject to life without parole. The court acknowledged that this bright line rule meant that Parks’ claims under the Eighth Amendment must fail.[11]

The court then turned to Parks’ state constitutional claim. The court began by observing that the Michigan constitutional prohibition on “cruel or unusual punishment” is broader than that of the Eighth Amendment’s prohibition on “cruel and unusual punishment.”[12] The court relied on the principle of proportionality derived from the Michigan Constitution’s prohibition on cruel or unusual punishment. Under current Michigan law, courts must look at four factors to determine whether a sentence is proportional: (1) The severity of the sentence must be relative to the gravity of the offense, (2) the sentences imposed in Michigan for other offenses, (3) sentences imposed in other jurisdictions for the same offense, and (4) the goal of rehabilitation, a criterion specifically rooted in Michigan’s legal traditions.[13]

The majority found that the severity of the sentence relative to the gravity of the offense weighed in favor of finding the penalty cruel or unusual. The court recognized that the crime was very serious, but also recognized that the sentence of life without parole was the most severe sentence available in Michigan. Additionally, 18-year-olds will invariably spend a greater amount of time and more of their lives incarcerated than others who are convicted when they are older.[14] The court also examined scientific evidence on the plasticity of the late adolescent brain and found that the many neurological changes that the young brain goes through in the early adult years supported a finding that a mandatory sentence for 18-year-olds was unconstitutionally disproportionate.[15] This was in part because the plasticity of the late adolescent brain hampers the “ability to make decisions, exercise self-control, appreciate risks or consequences, feel fear, and plan ahead.”[16]

The court next considered the sentences imposed in Michigan for other offenses and ruled that this factor also weighed in favor of finding the penalty cruel or unusual. The court again cited the fact that 18-year-old offenders will invariably spend more time incarcerated than other adult offenders convicted of the same crime or similarly severe crimes.[17] Additionally, 18-year-olds will spend a significantly greater amount of time incarcerated than equally culpable juvenile offenders.[18]

The third factor, which considered sentences imposed in other jurisdictions for the same offense, was a closer call than the first two, but the court found that it slightly weighed in favor of a disproportionality finding. Seventeen other states and the federal government mandate life without parole for first-degree murder. But 25 other states and the District of Columbia do not mandate life without parole for first-degree murder, regardless of the age of the offender. Six other states mandate life without parole only when particular aggravating circumstances are present. The court reasoned that because Michigan was among the minority of states that legislatively mandate life without parole, this factor weighed slightly in favor of a finding of disproportionality.[19]

The fourth factor, which required the court to consider the goal of rehabilitation, also weighed in favor of a finding of disproportionality. In the court’s view, life without parole leaves no opportunity for rehabilitation.[20]

The court therefore concluded that under the proportionality test, Parks’ sentence of life without parole constituted cruel or unusual punishment.[21]

Justice Richard Bernstein wrote a concurring opinion, in which he agreed with the majority’s proportionality analysis and conclusion that the sentence constituted cruel or unusual punishment.[22] The purposes of the concurrence were to highlight additional reasons supporting the decision and to express discomfort with the bright line rule established by the majority opinion.[23] The concurrence argued that a better approach would be to have an irrebuttable presumption of youth and diminished capacity for those 18 and under, and then shift to a rebuttable presumption of maturity for those over 18. Adult convicts would then bear the burden of showing a need for a hearing to ensure that a sentence of life without parole was proportionate.[24]

There were two dissenting opinions. The first was written by Justice Brian Zahra and joined by Justice David Viviano. It expressed interest in revisiting the case law interpreting the Michigan Constitution to provide broader protection than the Eighth Amendment and a proportionality guarantee.[25]

The second dissenting opinion was authored by Justice Elizabeth Clement and joined by Justices Zahra and Viviano. It took issue with the majority’s application of the four-factor test.[26] She asserted that legislatively mandated sentences are presumptively proportional and presumptively valid.[27] Regarding the first factor, first-degree murder is a very serious offense, one that is among the most serious a person can commit.[28] Even though there is ongoing neurological development, 18-year-olds are generally able to understand the gravity of their decisions.[29]

Justice Clement found that the second factor also weighed in favor of the mandatory sentence. She compared the penalty to penalties for other crimes such as first-degree criminal sexual conduct and the possession with intent to unlawfully use an explosive device causing death, among other offenses.[30]

Justice Clement also found that the third factor weighed in favor of the mandatory sentence. Michigan was hardly alone in prescribing this type of penalty when 17 other states and the federal government also prescribe it. In past decisions, the court had only found this factor to be met when there were few or no other states that had similar severity of sentences.[31]

Although the fourth factor weighed against a finding of proportionality, Justice Clement did not see this as sufficient to support a determination that mandatory life without parole sentences were unconstitutional as applied to 18-year-olds.[32] She remarked that there are other valid penological goals besides deterrence, such as retribution, deterrence, and incapacitation.[33]

Justice Clement’s final critique of the majority opinion was that it relied on scientific evidence, which she saw as usurping the policy-making role of the legislature.[34]

Ultimately, this case is a reminder of the right of state supreme courts to interpret their own state constitutions. For many years, this “new federalism” was associated with criminal procedure cases and Justice William Brennan.[35] In the past decade, new federalism has also been applied to other areas of doctrine, in a movement led by individuals such as Judge Jeffrey Sutton and Justice Clint Bolick.[36] The Michigan Supreme Court’s decision in this case highlights the importance of unique text, history, and tradition in interpreting state constitutional provisions.

Mr. Suhr gratefully acknowledges the assistance of Dylan Blanchard, an intern at the Liberty Justice Center and a student at the Benjamin N. Cardozo School of Law.

[1] People v. Parks, 162086, 2022 WL 3008548, 5 (Mich. July 28, 2022).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id. at 6.

[7] Id. at 5.

[8] Id.

[9] Id. at 12.

[10] Id. at 20.

[11] Id. at 7.

[12] Id. at 9.

[13] See People v. Bullock, 485 N.W.2d 866 (Mich. 1992).

[14] Parks, 162086, 2022 WL at 16.

[15] Id. at 17.

[16] Id. at 13.

[17] Id.

[18] Id. at 18.

[19] Id.

[20] Id.

[21] Id.

[22] Id. at 21.

[23] Id. at 21, 23.

[24] Id. at 24.

[25] Id. at 25.

[26] Id. at 26.

[27] Id.

[28] Id.

[29] Id. at 27.

[30] Id. at 28.

[31] Id. at 29.

[32] Id. at 31.

[33] Id. at 30.

[34] Id. at 31-32.

[35] William J. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).

[36] Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018); Clint Bolick, Principles of State Constitutional Interpretation, 23 Federalist Soc’y Rev. (2022).

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at info@fedsoc.org.