Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  December 16, 2010                                                                      Marilyn Kelly,
                                                                                             Chief Justice

  141388                                                                          Michael F. Cavanagh
                                                                                    Maura D. Corrigan
                                                                                   Robert P. Young, Jr.
                                                                                   Stephen J. Markman
                                                                                   Diane M. Hathaway
  PEOPLE OF THE STATE OF MICHIGAN,                                                Alton Thomas Davis,
            Plaintiff-Appellee,                                                                   Justices

  v                                                     SC: 141388
                                                        COA: 290271
                                                        Oakland CC: 2008-221670-FC
  EDWIN CORREA,
           Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the May 18, 2010
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

        MARKMAN, J. (concurring).

         I concur in this Court’s decision to deny leave to appeal. However, I take this
  opportunity to express my concerns regarding this Court’s decision in People v Bullock,
  440 Mich 15 (1992), and its establishment of proportionality review of criminal sentences
  under Const 1963, art 1, § 16, which provides that “cruel or unusual punishment shall not
  be inflicted.” Bullock held that proportionality is a component of “cruel or unusual”
  punishment even though as early as 1890, this Court had rejected such an understanding
  of the Constitution. People v Morton, 80 Mich 634 (1890). As this Court explained in
  Morton:

        Counsel for defendants claims that, as properly understood, it means, when
        used in this connection, punishment out of proportion to the offense. If by
        this is meant the degree of punishment, we do not think the contention
        correct. . . . “We first find the injunction against cruel and unusual
        punishment in the Declaration of Rights, presented by the convention to
        William and Mary before settling the crown upon them in 1688. That
        declaration recites the crimes and errors which had made the revolution
        necessary. These recitals consist of the acts only of the former king and the
        judges appointed by him, and one of them was that ‘illegal and cruel
                                                                                         2

      punishment had been inflicted.’ * * * The punishments complained of were
      the pillories, slittings, and mutilations which the corrupt judges of King
      James had inflicted without warrant of law, and the declaration was aimed
      at the acts of the executive; for the judges appointed by him, and removable
      at pleasure, were practically part of the executive. It clearly did not then
      refer to the degree of punishment, for the criminal law of England was at
      that time disgraced by the infliction of the very gravest punishment for
      slight offenses, even petit larceny then being punishable with death. But
      the declaration was intended to forbid the imposition of punishment of a
      kind not known to the law, or not warranted by the law.” [Id. at 638
      (citation omitted) (emphasis added).]

The Court then proceeded to quote from Justice COOLEY:

             “Probably any punishment declared by statute for an offense which
      was punishable in the same way at the common law could not be regarded
      as cruel or unusual, in the constitutional sense. And probably any new
      statutory offense may be punished to the extent and in the mode permitted
      by the common law for offenses of similar nature. But those degrading
      punishments, which in any state had become obsolete before its existing
      constitution was adopted, we think may well be held forbidden by it as
      cruel and unusual. We may well doubt the right to establish the whipping-
      post and the pillory in states where they were never recognized as
      instruments of punishment, or in states whose constitutions, revised since
      public opinion had banished them, have forbidden cruel and unusual
      punishments. In such states the public sentiment must be regarded as
      having condemned them as cruel, and any punishment which, if ever
      employed at all, has become altogether obsolete, must certainly be looked
      upon as unusual.” [Id. at 638-639 (citation omitted) (emphasis added).]

The Court then concluded that because “[i]mprisonment for larceny is, and always has
been, in this country and in all civilized countries, one of the methods of punishment,” it
does not violate the cruel or unusual punishment clause. Id. at 639 (emphasis added).

       While “the Clause disables the Legislature from authorizing particular forms or
‘modes’ of punishment -- specifically, cruel methods of punishment that are not regularly
or customarily employed[,]” the Clause “contains no proportionality guarantee[,]” and,
thus, “‘the length of the sentence actually imposed is purely a matter of legislative
prerogative.’” Harmelin v Michigan, 501 US 957, 976, 965, 962 (1991) (opinion of
                                                                                           3

Scalia, J., joined by Rehnquist, C.J.) (citation omitted).1 Indeed, “to use the phrase ‘cruel
and unusual punishment’ to describe a requirement of proportionality would have been an
exceedingly vague and oblique way of saying what Americans were well accustomed to
saying more directly.” Id. at 977. “[T]he Clause does not expressly refer to
proportionality or invoke any synonym for that term, even though the Framers were
familiar with the concept, as evidenced by several founding-era state constitutions that
required (albeit without defining) proportional punishments.” Graham v Florida, 130 S
Ct 2011, 2044 (2010) (Thomas, J., dissenting); see also generally, Solem v Helm, 463 US
277 (1983); Ewing v California, 538 US 11 (2003).

       Furthermore, “[w]hile there are relatively clear historical guidelines and accepted
practices that enable judges to determine which modes of punishment are ‘cruel and
unusual,’ proportionality does not lend itself to such analysis.” Harmelin, 501 US at 985
(emphasis in the original). That is, I fail to see how I, as a judge, am any more qualified
than the Legislature, as the representative body of the people, to determine the
proportionality of a sentence. In her concurring in part and dissenting in part opinion in
Bullock, 440 Mich at 63-64, Justice RILEY quoted from the amicus curiae brief of the
Prosecuting Attorneys Association of Michigan:

       “[I]f ‘evolving standards of decency’ as to the appropriate (proportionate)
       sentence for a crime are to be the measure of the constitutionality of a
       legislatively set penalty, how is such an inquiry to be carried out? What is
       the measure? What informs the judgment? What tools does a court have to
       make it? What enables a court to overrule society’s expression of its
       ‘standard of decency,’ communicated through statute, imposing a different
       standard, which is also supposed to be society’s standard and not the
       court’s? Would not the court’s role be to discover or identify society’s
       ‘standard of decency’-- not what it should be, but what it is, and how better
       could society express [its] standard of decency than through its elected
       lawmakers? The alternative . . . for the judiciary is that ‘it is for us (the
       judiciary) to judge, not on the basis of what we perceive the Eighth
       Amendment originally prohibited, or on the basis of what we perceive the
       society through its democratic processes now overwhelmingly disapproves,
       but on the basis of what we think ‘proportionate’ and ‘measurably
       contributory to acceptable goals of punishment’-- to say and mean that, is
       to replace judges of the law with a committee of philosopher-kings.
       Standford v Kentucky [492 US 361, 379; 109 S Ct 2969; 106 L Ed 2d 306,
       324 (1989)].’ [Opinion of Scalia, J., emphasis in original.]”

1
  US Const Am VIII prohibits the infliction of “cruel and unusual punishments.”
(Emphasis added.) The relevance of the distinction between “and” and “or” in the United
States and Michigan constitutions, respectively, was at issue in Bullock.
                                                                                                               4

As Justice Thomas recently explained in responding to the majority’s admittedly
“independent” “moral” determination that the constitution does not permit a juvenile
offender to be sentenced to life in prison without parole for a non-homicide offense:

             I am unwilling to assume that we, as members of this Court, are any
      more capable of making such moral judgments than our fellow citizens.
      Nothing in our training as judges qualifies us for that task, and nothing in
      Article III gives us that authority. [Graham, 130 S Ct at 2043 (Thomas, J.,
      dissenting).]

And as Justice Scalia also remarked,

             [T]he Court having pronounced that the Eighth Amendment is an
      ever-changing reflection of 'the evolving standards of decency' in our
      society, it makes no sense for the justices then to prescribe those standards
      rather than discern them from the practices of our people. [Roper v
      Simmons, 543 US 551, 616 (2005) (Scalia, J., dissenting) (emphasis in the
      original).]

“Proportionality review . . . threatens to undermine the democratic process by
preventing the legislative branch from performing one of its most basic functions--
defining crime and punishment.” Casenote: Atkins v Virginia: Nothing Left of the
Independent Legislative Power to Punish and Define Crime, 11 George Mason L Rev
805, 876 (2003).

       Because imprisonment is not a cruel or unusual method of punishment, the Court
of Appeals did not err in holding that defendant’s minimum sentence of 25 years in
prison does not violate the cruel or unusual punishment clause. For that reason, I concur
in this Court’s decision to deny leave to appeal. However, at some point, this Court
should revisit Bullock’s establishment of proportionality review of criminal sentences,
and reconsider Justice RILEY’s dissenting opinion in that case.

      CORRIGAN and YOUNG, JJ., join the statement of MARKMAN, J.

      KELLY, C.J., and CAVANAGH, J., would grant leave to appeal.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         December 16, 2010                   _________________________________________
       s1209                                                                 Clerk
