                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   July 21, 2016
               Plaintiff-Appellee,

v                                                                  No. 325741
                                                                   Genesee Circuit Court
KENYA ALI HYATT,                                                   LC No. 13-032654-FC

               Defendant-Appellant.


Before: SHAPIRO, P.J., and MARKEY, METER, BECKERING, STEPHENS, M.J. KELLY, and RIORDAN,
JJ.

BECKERING, J., (concurring).

        The task for this conflict panel is limited; we are asked to decide whether a judge or a
jury is to determine whether a juvenile should be sentenced to life without parole under MCL
769.25. This question presumes that the imposition of a life-without-parole sentence is
constitutionally permissible in Michigan for juvenile offenders who commit the worst homicide
offenses. I write a separate concurrence to voice my concern that this underlying premise is a
faulty one. Although the issue was raised by defendant, it is unpreserved, scantily briefed, and
better left for another day. Were we to address it, I would conclude that a sentence of life
without parole for a juvenile offender constitutes cruel or unusual punishment in violation of the
Michigan Constitution.1 Given the United States Supreme Court’s conclusions regarding the
inherent difficulties in reliably assessing whether a still-developing juvenile is irreparably
corrupt, the case-by-case individual sentencing scheme set forth in MCL 769.25 is far too
imprecise an exercise to pass muster under the Michigan Constitution. Instead, after a minimum
term of years such as that set forth in MCL 769.25(9), the determination should be left to the


1
  In People v Carp, 496 Mich 440; 852 NW2d 801 (2014), vacated Davis v Michigan, __ US __;
136 S Ct 1356; 194 L Ed 2d 339 (2016), our Supreme Court concluded that a juvenile life-
without-parole sentence was not cruel or unusual under the Michigan Constitution. However, in
light of the fact that the case was vacated, and because I believe that Carp’s analysis did not
address the problems associated with the imprecise and speculative nature of assessing
irreparable corruption when deciding whether to impose a life-without-parole sentence on an
individual who committed an offense while a minor, I voice my concerns in this concurring
opinion, if only to ask our Supreme Court to consider the issue in the future.


                                               -1-
parole board, which has the benefit of a more fully developed individual and a number of years
in which the individual can prove himself or herself worthy of parole.

        In Miller v Alabama, 576 US __; 132 S Ct 2455, 2469; 183 L Ed 2d 407 (2012), the
Supreme Court declined to expressly weigh in on the issue of whether the Eighth Amendment
required a categorical bar on life without parole for juvenile offenders. However, when one sifts
through Miller’s various warnings about: (1) how juveniles are categorically less deserving of
the harshest possible punishment that can be imposed upon them; (2) how the penological
justifications for imposing the harshest punishment dissipate when the characteristics of juvenile
offenders are considered; (3) the inherent difficulty in making determinations about a juvenile’s
character at the time of sentencing; and (4) how rarely such a sentence will be proportionate; one
could conceivably determine that a life-without-parole sentence for a juvenile offender is, at best,
constitutionally suspect, according to Miller. At the very least, to the extent that Miller left open
the window for juvenile life-without-parole sentences for the rare or uncommon juvenile, see id.
at 2469, that window should be understood to be a very narrow one.

        Nonetheless, whether life without parole for juveniles should be categorically barred by
the Eighth Amendment is not my concern in the present case. Rather, I question whether life
without parole for juveniles should be categorically barred under the Michigan Constitution,
which prohibits cruel or unusual punishment.2 Const 1963, art 1, § 16. Our Courts have
generally found that the prohibition contained in Const 1963, art 1, § 16 affords greater
protection than the Eighth Amendment and that it requires a closer inquiry of the punishment at
issue. People v Benton, 294 Mich App 191, 204; 817 NW2d 599 (2011); People v Nunez, 242
Mich App 610, 618 n 2; 619 NW2d 550 (2000).

        My concerns about the imprecise nature of determining whether a juvenile offender—
who, it must be remembered, is not immune from punishment because of his youth—stem from
our increasing scientific knowledge regarding the human brain and our recognition that a
juvenile is different from an adult because of his or her diminished culpability and greater
capacity for reform, and from the idea that the characteristics of youth make a determination of
irreparable corruption or permanent incorrigibility exceedingly difficult. As to the first point,
United States Supreme Court precedent concerning juveniles makes clear that juveniles often
lack the same degree of culpability that adult offenders possess. Juveniles lack maturity and are
often more prone to reckless behavior and risk-taking. See Miller v Alabama, 576 US __; 132 S
Ct 2455, 2464; 183 L Ed 2d 407 (2012). And, as noted by the Court in Miller, juveniles are
subject to influences—such as a home environment from which the juvenile cannot normally
extricate himself or herself—in a way not typically experienced by adults. Id. Finally, juvenile
offenders, because of their various stages of cognitive development, often have a greater capacity
for reform than adult offenders. Id. Stated differently, juveniles inherently have a certain degree
of malleability due to their immaturity that adults lack. As a result it would be “misguided”



2
  I am not the first to opine that lifetime imprisonment of a juvenile offender violates the
Michigan Constitution. See People v Eliason, 300 Mich App 293, 332-336; 833 NW2d 357
(2013) (Gleicher, J., concurring in part and dissenting in part).


                                                -2-
morally “to equate the failings of a minor with those of an adult, for a greater possibility exists
that a minor’s character deficiencies will be reformed.” Roper v Simmons, 543 US 551, 570; 125
S Ct 1183; 161 L Ed 2d 1 (2005). Thus, juveniles should be treated differently from adults for
purposes of sentencing, particularly in regard to the imposition of the most serious punishment
that can be imposed on juvenile offenders: life without parole. Life without parole for juveniles
is a punishment, it must be noted, that caused the Court in Graham and Miller to break rank from
the longstanding idea that “death is different” when it comes to making comparisons between
different types of punishment, and inspired the Court to liken life-without-parole sentences for
juveniles to the death penalty for adult offenders. See Miller, 132 US at 2463; Graham v
Florida, 560 US 48, 69-71; 130 S Ct 2011; 176 L Ed 2d 825 (2010).

        As to my second and greater concern, the difficult nature of making individual
determinations about juvenile offenders can be gleaned from a comprehensive reading of Roper,
Graham, and Miller. Starting in Roper, 543 US at 569, the Supreme Court recognized that the
characteristics of youth “demonstrate that juvenile offenders cannot with reliability be classified
among the worst offenders.” (Emphasis added). This proclamation was based, in large part, on
studies related to the death penalty and juveniles which led the Court in Roper to remark that
“[i]t is difficult even for expert psychologists to differentiate between the juvenile offender
whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose
crime reflects irreparable corruption.” Roper, 543 US at 573. As the point is made in the
majority opinion in the instant case, if this determination is difficult for a trained psychologist,
how much more difficult is it for a sentencing judge or an appellate court on review?

        The idea that the characteristics of youth make difficult, if not impossible, accurate
determinations about a juvenile’s capacity for change continued in Graham and Miller. In
Graham, 560 US at 68, the Court noted pertinent research explaining that “parts of the brain
involved in behavior control continue to mature through late adolescence.” Id. (citations
omitted). This continued development and pliable nature of juveniles necessarily makes it
difficult to reliably classify a juvenile as being the rare juvenile who is incapable of change. See
id. The Court in Graham, 560 US at 77-78, felt so strongly about the difficulty of distinguishing
“the few incorrigible juvenile offenders from the many that have the capacity for change” that it
rejected—in the case of nonhomicide juvenile offenders—a case-specific sentencing scheme
similar to that implemented in MCL 769.25,3 and decided that because a determination about the
juvenile’s character was so difficult to make, it would instead impose a categorical ban on life
without parole in nonhomicide cases.




3
  While it could be argued that the Supreme Court in Miller gave its blessing to such a scheme
for juveniles who commit homicide offenders, it should be noted that the question of whether
there should be a categorical ban on life without parole for juvenile homicide offenders was not
before the Miller Court, and the Court expressly declined to consider the issue. Miller, 132 S Ct
at 2469.




                                                -3-
        The concern noted in Roper and Graham still remains: it is exceedingly difficult, given
the qualities of youth, to make a reliable determination regarding whether a juvenile is truly
incorrigible and incapable of change. This concern led the Court in Miller, 132 S Ct at 2467, to
remark that proportionate life-without-parole sentences, to the extent they could even be
imposed, would be “uncommon” and “rare,” because “youth is more than a chronological fact,”
and “its signature qualities are all transient.” Miller, 132 S Ct at 2467. Furthermore, the studies
on which Roper, Graham, and Miller relied have continued validity and applicability, leading the
American Psychology Association, which filed an amicus brief in Miller, to posit that “ ‘[t]he
positive predicative power of juvenile psychotherapy assessments . . . remains poor.’ ” State v
Sweet, __ NW2d __ (Iowa, 2016) (Docket No. 14-0455), slip op at 35 (citation omitted).

         Given the difficulty of predicting when a juvenile is truly incapable of change and thus
deserving of a life-without-parole sentence, the admitted lack of reliability in a case-by-case
sentencing approach, and the significance of the sentencing decision, I believe that the
imposition of life-without-parole sentences on juveniles is far too speculative and that it is cruel
or unusual under the Michigan Constitution. In this regard, I find particularly compelling
Roper’s warning that the type of classification required by MCL 769.25 cannot be done with
reliability by a trained psychologist, let alone a sentencing court. I also find compelling that the
Supreme Court in Graham, 560 US at 77-78, expressly rejected a case-by-case approach, albeit
in the context of non-homicide offenses, for determining when life without parole would be
appropriate for juveniles. The fact that the sentence at issue in the present case involves a
homicide offense does not mean that the determination to be made with regard to the juvenile
offender’s character, i.e., his immaturity, depravity, vulnerability to outside influence,
culpability, or capacity for change, is markedly less difficult. Nor, for that matter, does the fact
that the conviction involves a homicide offense necessarily take account of “special difficulties
encountered by counsel in juvenile representation,” that were noted by Graham—such as the fact
that juveniles generally mistrust adults, including defense counsel, have limited understanding of
the criminal justice system, are less generally less capable of weighing the long-term
consequences of plea offers, and are likely less capable of assisting with their own defense—that
further illustrate the problems inherent in a case-by-case approach such as the one at issue in this
case. See Graham, 560 US at 78-79. In short, the fact that the instant case involves a homicide
offense does nothing to dispel the concerns that led the Court in Graham to reject the type of
case-by-case sentencing approach that is currently in effect under MCL 769.25. On this point,
the Miller Court explained that although Graham’s ban on life without parole applied in
nonhomicide cases:

       none of what [Graham] said about children—about their distinctive (and
       transitory mental traits and environmental vulnerabilities—is crime specific.
       Those features are evident in the same way, and to the same degree when . . . a
       botched robbery turns into a killing. So Graham’s reasoning implicates any life-




                                                -4-
       without-parole sentence imposed on a juvenile, even as its categorical bar relates
       only to nonhomicide offenses. [Miller, 132 S Ct at 2465 (emphasis added).4]

Thus, simply arguing that the instant case is different from Graham because it involves a
homicide offense ignores that which is most pertinent in determining whether the punishment is
cruel or unusual for juveniles: that being, that the characteristics of youth and its attendant
circumstances make juveniles constitutionally different for purposes of sentencing, and it is
extremely difficult to determine, with any degree of reliability, which juveniles are truly
deserving of life without parole. Such a sentence necessarily concludes at the outset that the
individual who committed a crime when he or she was a minor will be corrupt at the age of 20,
30, 40, 50, 60, 70, and at every age for that matter until they die.

        I believe that the concerns noted by the Court in Miller, Graham, and Roper are
applicable in the case at hand. These cases essentially teach us that a sentencing court is, to a
large degree, guessing, based on information that is widely recognized as unreliable given the
malleability of a juvenile’s still-developing brain, whether the juvenile is capable of reform.
This is not to fault the sentencing judge tasked with trying to decide whether to impose life
without parole. I have no doubt that sentencing courts exercise the utmost care and
professionalism in determining whether this particular punishment, or any punishment, is
appropriate and proportionate. The constitutional concern I see is not one of a lack of diligence
or professionalism, however, but is one involving the very nature of the inquiry that is to be
made in deciding whether to impose life without parole on juvenile offenders. A sentencing
judge being tasked with determining whether to impose a life-without-parole sentence is faced
with an arduous task. Simply put, as the United States Supreme Court has repeatedly warned,
this task requires an inquiry that is based on poor predictors and one that cannot be made with a
sufficient degree of reliability, based on a juvenile’s still-developing sense of maturity and, in
general greater capacity for reform. And this task, it must be remembered, carries with it the
exceedingly high risk of imposing a disproportionate sentence that violates the juvenile’s
constitutional rights. As noted in Montgomery v Louisiana, __ US __; 136 S Ct 718, 734; 193 L
Ed 2d 599 (2016), “[e]ven if a court considers the child’s age before sentencing him or her to a
lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime
reflects unfortunate yet transient immaturity.” Montgomery, 136 S Ct at 734.

       Thus, I note my concerns that the speculative nature inherent in imposing a life-without-
parole sentence on juvenile homicide offenders renders the punishment cruel or unusual under
the Michigan Constitution. If the imposition of the harshest possible penalty available under the
law cannot be done with any degree of reliability given the offender being a minor about whom
the court must predict his or her entire future, how can the sentence not be rendered either cruel
due to guesswork or unusually unfair? By their very chronological status as minors, juvenile



4
  Again, while the Court in Miller was cognizant of these very concerns, it declined to expressly
weigh in on the issue of whether a juvenile life-without-parole sentence was cruel and unusual
under the United States Constitution, but it nevertheless went out of its way to emphasize how
truly rare this type of sentence would be constitutionally proportionate.


                                               -5-
offenders spend more time in prison for a life-without-parole offense than any adult, yet they
were minors when they committed their offense, and as such, were in a categorically less
culpable class of offenders according to our United States Supreme Court. How could such a
speculative, roll-of-the-dice approach to meting out the most serious punishment on a group of
offenders who are categorically less culpable not be cruel or unusual? One need only examine
his or her own character, judgment, maturity level, impetuosity, and susceptibility to influence at
the ages of 14,5 15, 16, and 17 years of age and contrast these same traits as they exist at the age
of 40 on up, as that marks the age range a juvenile offender will be after completing only the
bare minimum 25 years for a minimum sentence under MCL 769.25(9). While juvenile
offenders are certainly deserving of punishment for their offenses, the task of accurately pegging
the rare individual who is truly irreparably corrupt is simply too imprecise and speculative to
pass constitutional muster under Michigan’s constitution.

         Turning to the instant case, the Miller hearing that took place for defendant Hyatt serves
as a prime illustration of the lack of reliability involved in making a determination about a
juvenile’s still-forming character. The psychologist who testified in this case had a Ph.D. in
educational and clinical psychology and had been a practicing psychologist for approximately 40
years. Yet, when pressed on cross-examination whether she thought defendant Hyatt was
capable of change, she admitted “I have no way of predicting whether he is going to be able to
change his course. . . . I cannot say with certainty that he, that he’s totally unredeemable.” I
highlight this not as an indictment on the doctor’s qualifications or abilities, but to point out that
the doctor admitted the same concerns noted above: even a trained psychologist has essentially
no way of knowing what would become of defendant Hyatt’s character—or that of any other
juvenile, for that matter—in the future or whether he has the capacity to change at some point in
his lifetime.

         The solution to this complex problem is relatively simple: let the parole board do its job.
Let the parole board, which will have the benefit of full cognitive development through
adulthood, as well as years of institutional records and behavior, make the decision. Rather than
asking a sentencing court to essentially make its best guess based on information that is
admittedly not adequate for the task at hand, why not allow the parole board, which has the
benefit of time, incarceration records, and further cognitive development by the juvenile, make
the decision? However, this is not to suggest, in any fashion, that a juvenile should be
guaranteed parole. Rather, the only entitlement is that the individual, who entered prison while
still a child, should have the chance to show that he or she is capable of reform, and has indeed
demonstrated the requisite level of reform to merit consideration for parole. As stated in
Graham, 560 US at 75, juveniles should be given “some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.” If a juvenile offender is truly the
rare individual who is irreparably corrupt, that condition will surely manifest itself and be
verified during the lengthy term of incarceration the individual will have served before becoming
parole-eligible. Likewise, determining whether the individual, now with the benefit of further


5
 Or even younger than 14, for that matter, as Michigan law allows for juveniles younger than 14
years of age to be tried as adults. See MCL 712A.2d; MCL 712A.4.


                                                 -6-
cognitive development and maturation, is capable of reform and change will be far less
speculative at this point in time. Allowing the parole board to make this determination gives a
juvenile a chance at parole after his or her character is more fully formed, rather than at a time
when that character is, by all accounts, “a work in progress.” Sweet, __ NW2d __; slip op at 55.

        I am not alone in adhering to this view. Recently, the Iowa Supreme Court, which has
written rather extensively on a variety of juvenile life-without-parole issues post-Miller,
concluded that the Iowa Constitution, which mirrors the United States Constitution and bars
cruel and unusual punishment, forbids a case-by-case approach and categorically bars the
imposition of life-without-parole sentences for juveniles. In this regard, the Iowa Court
concluded “that the enterprise of identifying which juvenile offenders are irretrievable at the time
of trial is simply too speculative and likely impossible given what we now know about the
timeline of brain development and related prospects for self-regulation and rehabilitation.”
Sweet, __ NW2d __; slip op at 50 (emphasis added). As noted by the Iowa Supreme Court,
studies on the timeline and phenomenon of juvenile brain development explain that “smart
adolescents sometimes do really stupid things.” Id. at 51-52, citing Laurence Steinberg, Age of
Opportunity: Lessons from the New Science of Adolescence 69 (2014).6 And, remarked the Iowa
Court, the Miller factors are themselves “fraught with risks,” of misapplication, because some
factors could necessarily be viewed as weighing in favor of life without parole and against it at
the same time.7 All of this leads back to the original point: it is extremely problematic to require



6
  It is not until the third and final phase of brain development, which takes place “into the early
twenties,” when individuals “ ‘get better at controlling their impulses, thinking about the long-
term consequences of their decisions, and resisting peer pressure.’ ” Id., quoting Sternberg, at
71.
7
    As an example, the Court asked:
          . . . what significance should a sentencing court attach to a juvenile offender’s
         stable home environment? Would the fact that the adolescent offender failed to
         benefit from a comparatively positive home environment suggest he or she is
         irreparable and an unlikely candidate for rehabilitation? Or conversely, would the
         offender’s experience with a stable home environment suggest that his or her
         character and personality have not been irreparably damaged and prospects for
         rehabilitation are therefore greater?

                                              * * *

                 A similar quandary faces courts sentencing juvenile offenders who have
         experienced horrendous abuse and neglect or otherwise have been deprived of a
         stable home environment. Should the offenders’ resulting profound character
         deficits and deep-seated wounds count against the prospects for rehabilitation and
         in favor of life-without-the-possibility-of-parole sentences under the Miller
         framework? Or should sentencing courts view the deprivation of a stable home
         environment as a contraindication for life without the possibility of parole

                                                -7-
a sentencing court to make “speculative up-front decisions on juvenile offenders’ prospects for
rehabilitation because they lack adequate predictive information supporting such a decision.” Id.
at 54. “[T]he risk of error” in determining whether a life-without-parole sentence is
proportionate “is unacceptably high” at the time of sentencing; this high risk of error caused the
Iowa Supreme Court to impose a categorical ban on life-without-parole sentences for juveniles.
Id. at 51. According to the Iowa Supreme Court, a sentencing court:

       cannot apply the Miller factors in any principled way to identify with assurance
       those very few adolescent offenders that might later be proven to be irretrievably
       depraved. In short, we are asking the sentencer to do the impossible, namely, to
       determine whether the offender is “irretrievably corrupt” at a time when even
       trained professionals with years of clinical experience would not attempt to make
       such a determination. [Id.]


         Furthermore, although the speculative nature of imposing life-without-parole sentences
on juveniles is enough to raise serious concerns about the constitutionality of such sentences
under the Michigan Constitution, it should be noted, as it regards the practice of permitting life-
without-parole sentences for juveniles, Michigan appears to be in danger of standing on the
wrong side of history. In the wake of Miller, a growing number of states have decided to
prohibit, or in some cases, not seek, life-without-parole sentences for juveniles. See, e.g., Mills,
et al, Juvenile Life Without Parole in Law & Practice: Chronicling the Rapid Change Underway,
65 Am U L Rev 535, 552, 560 (2016); The Sentencing Project, Juvenile Life Without Parole: An
Overview, available at http://www.sentencingproject.org/publications/juvenile-life-without-
parole/ (accessed June 29, 2016); Equal Justice Initiative, Philadelphia District Attorney
Declares         Life-Without-Parole       Sentences       Inappropriate        for      Juveniles,
http://www.eji.org/philadelphia-da-says-life-without-parole-inappropriate-for-juveniles
(accessed June 28, 2016); Equal Justice Initiative, Utah Joins Growing Number of States That
Have Abolished Juvenile Life Without Parole Sentences, http://www.eji.org/node/1243 (accessed
June 28, 2016); News Center 1, South Dakota Bans Life-Without-Parole Sentences for Youth,
http://www.newscenter1.tv/story/31497823/south-dakota-bans-life-without-parole-sentences-for-
youth (accessed June 15, 2016); The Campaign for the Fair Sentencing of Youth, States that Ban
Life     Without      Parole   for     Children,    <http://fairsentencingofyouth.org/reports-and-
research/sentenceeliminated/> (accessed July 6, 2016).8 In evaluating the cruel and/or unusual
nature of a punishment, it must be noted that it is not necessarily the number of states that

       because only time will tell whether maturation will come with age and treatment
       in a structured environment? [Id. at 51-53.]
8
  There is also an effort currently underway in the United States District Court for the Eastern
District of Michigan to ban life-without-parole sentences for juvenile offenders. See The Detroit
News,       Federal       Judge      Stops      Juvenile       Lifer     Sentencing     Process,
http://www.detroitnews.com/story/news/local/michigan/2016/07/07/michigan-juvenile-
resentencing/86810456/ (accessed July 8, 2016). See also Hill v Snyder, unpublished decision of
the Eastern District of Michigan (Docket No. 14568), issued January 30, 2013, vacated and
remanded on other grounds, 821 F3d 763 (2016).


                                                -8-
authorize a particular penalty that is of importance, but “the consistency of the direction of
change” is to be examined as well. Atkins, 536 US 304, 315; 122 S Ct 2242; 153 L Ed 2d 335
(2002) (emphasis added). The number of states eliminating life-without-parole sentences in light
of Miller leaves one fearing that Michigan, one of a handful of states responsible for the most
juvenile life-without-parole sentences, see Juvenile Life Without Parole in Practice, 65 Am U L
Rev at 571-572, is on the wrong side of the recent direction of change. This is particularly so in
light of reluctance in states such as Pennsylvania to seek juvenile life-without-parole sentences,
given that Pennsylvania was, along with Michigan, one of only a few states responsible for a
majority of juvenile life-without-parole sentences. See Juvenile Life Without Parole in Practice,
65 Am U L Rev at 571-572. This recent trend illustrates that the island on which Michigan sits
with regard to this particular sentencing practice is becoming increasingly lonelier.

        Finally, even if a categorical ban is off the table in light of Carp, I would be remiss not to
note, in light of the same concerns raised above, what I view as significant holes in MCL
769.25’s implementation of the Miller decision. Even if the Michigan Constitution does not
compel a categorical ban on the imposition of juvenile life-without-parole sentences, the
concerns inherent with sentencing juveniles to life-without-parole sentences do not suddenly
diminish. It is not as if the unreliable and unreasonably difficult task of determining which
juvenile offenders are truly incorrigible and incapable of change vanishes by rejecting a
categorical ban on life without parole for juveniles. Those concerns must be addressed, or our
courts risk the arbitrary and capricious imposition of juvenile life-without-parole sentences.

        The legislative response to Miller in MCL 769.25 does not go far enough in addressing
these concerns. The Supreme Court’s decision in Miller announced the destination that is
required by the Eighth Amendment—individualized sentencing that limits the imposition of life-
without-parole sentences to only those rare individuals who are irreparably corrupt—but did little
to address how to arrive at that destination. The Court even recognized as much in Montgomery
v Louisiana, __ US __; 136 S Ct 718, 734-735; 193 L Ed 2d 599 (2016), where the Court stated
that Miller was largely a substantive rule, and the responsibility for implementing procedures to
comply with Miller was left to the states. Miller, it could be said, set forth the minimum that
must be done. The response in Michigan, MCL 769.25, offers little in the way of procedural
requirements beyond the bare minimum that Miller articulated. The statute requires a hearing at
which the trial court is to consider the “Miller factors,” but otherwise is silent, save for
announcing that the trial court can hold a hearing and consider evidence, and that any victims
shall be given the right to appear or make a statement. See MCL 769.25(6)-(7). Essentially, the
statute requires a sentencing court to “do Miller” and nothing more.

        In order to implement Miller in a way that affords meaning and substance to the decision,
we must provide sentencing courts with more direction, guidance, and information to guide the
sentencing process. While the ultimate determination as to what procedures should be employed
is not before the Court in this conflict case, I offer a few, brief suggestions. Drawing on
comparisons to death penalty cases first made in Graham and repeated in Miller, the
employment of a defense team which includes two attorneys, a mitigation specialist, and an
investigator, as is done in death penalty cases, may go some distance towards alleviating the
difficulties inherent in determining whether a juvenile is irreparably corrupt. See Drinan,
Juvenile Sentencing Post-Miller: Preventive & Corrective Measures, 2015 Wis L Rev 203, 209-
210 (2015). See also The Campaign for the Fair Sentencing of Youth, Trial Defense Guidelines:

                                                 -9-
Representing       a    Child     Client    Facing      a    Possible     Life      Sentence,      <
http://fairsentencingofyouth.org/wp-content/uploads/2015/03/Trial-Defense-Guidelines-
Representing-a-Child-Client-Facing-a-Possible-Life-Sentence.pdf> (accessed July 6, 2016).9
Further, provisions could be made for a sentencing court to hear testimony from a variety of
expert witnesses in a way that shines further light on some of the subjects that mark the
determination to be made with so much uncertainty. These include, to name a few, subjects such
as juvenile brain development, immaturity, intellectual capacity, susceptibility to influences such
as peer pressure and family pressure, the effect of the juvenile’s background, if any, and the
capacity for reform. See Trial Defense Guidelines, p 20. As noted by the Iowa Supreme Court
in Sweet, __ NW2d __; slip op at 46, when it briefly considered how to attempt to accurately
sentence juveniles to life-without-parole sentences in a way that could pass constitutional muster
under the Eighth Amendment: “the process for making the determination of which offenders are
most culpable would be resource intensive, require expert testimony, and would not be a matter
left to the unguided discretion of the sentencer.” The process described by MCL 769.25 is not
resource intensive, makes no mention of expert testimony, and places little restrictions, if any, on
the discretion of the sentencer. Those defects, which the majority opinion goes some distance
toward remedying, should, in my opinion, be addressed.



                                                             /s/ Jane M. Beckering
                                                             /s/ Douglas B. Shapiro




9
 These guidelines are modeled after the ABA Guidelines for the Appointment and Performance
of Defense Counsel in Death Penalty Cases.


                                               -10-
