in the united states district court for the eastern ... · ann arbor, mi 48104 . 734.996.5620 ....

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION HENRY HILL, et al., Plaintiffs, vs. RICK SNYDER, et al., Defendants. /

Case No. 5:10-cv-14568 Hon. John Corbett O’Meara Magistrate Judge R. Steven Whelan

DEBORAH A. LaBELLE (P31595) 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620 RONALD J. REOSTI (P19368) 23880 Woodward Ave. Pleasant Ridge, MI 48069 248.691.4200 DANIEL S. KOROBKIN (P72842) MICHAEL J. STEINBERG (P43085) ACLU Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 313.578.6824 STEVEN M. WATT EZEKIEL R. EDWARDS BRANDON BUSKEY American Civil Liberties Union Foundation 125 Broad St., 17th Floor New York, NY 10004 212.517.7870 Attorneys for Plaintiffs

MARGARET A. NELSON (P30342) ANN M. SHERMAN (P67762) CHRISTINA M. GROSSI (P67482) JOSEPH T. FROEHLICH (P71887) Michigan Department of Attorney General Public Employment, Elections & Tort Division P.O. Box 30736 Lansing, MI 48909 517.373.6434 Attorneys for Defendants

__________________________________________________________________

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT, DECLARATORY JUDGMENT AND PERMANENT INJUNCTION

Case 2:10-cv-14568-MAG-RSW ECF No. 181 filed 01/16/18 PageID.2515 of 34

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NOW COME Plaintiffs, on behalf of a putative class of youth whose

mandatory life-without-parole sentences were vacated as unconstitutional by the

United States Supreme Court in Montgomery v. Louisiana, and who are now

subject to the terms of M.C.L. § 769.25a, the statute intended to bring Michigan

into compliance with Miller v. Alabama and Montgomery. In support of their

motion, Plaintiffs state as follows:

1. On December 20, 2017, the Sixth Circuit reversed this Court’s

dismissal of Counts IV, V and VI of Plaintiffs’ Second Amended Complaint for

failure to state a claim and remanded this case “for expeditious resolution” of

Plaintiffs’ claims. Hill v. Snyder, 878 F.3d 193 (6th Cir. 2017) (Dkt. 179).

2. On January 16, 2018, the Sixth Circuit issued its mandate. (6th Cir.

Dkt. 34).

3. There are no facts in dispute as to Plaintiffs’ Count V, which asserts

that M.C.L. § 769.25a(6) retroactively deprives Plaintiffs of earned good time and

disciplinary credits in violation of the Ex Post Facto Clause. (Pls.’ 2d Am.

Compl., Dkt. 130, Count V, Pg ID 1630).

4. Plaintiffs seek summary judgment on Count V, a declaration that

M.C.L. § 769.25a(6) is unconstitutional, and a permanent injunction requiring

Defendants to calculate Plaintiffs’ earned good and disciplinary time and to

consider Plaintiffs for parole review based on their recalculated earliest release

date.


3

5. Plaintiffs have detailed the basis for summary judgment, declaratory

and injunctive relief on Count V in the attached brief and supporting affidavits.

Over 250 Plaintiffs and class members earned good time and disciplinary time

during their lengthy incarceration under a sentence that has been held to constitute

cruel and unusual punishment by subjecting children to a mandatory life-without-

parole sentence. Miller v. Alabama; Montgomery v. Louisiana. Over 50 have

already been resentenced. Parole consideration for this group is being delayed by

Defendants’ enforcement of M.C.L. § 769.25a(6), which retroactively strips them

of the credit they earned for good behavior while serving their unconstitutional

sentences.

6. Plaintiffs also seek partial summary judgment on Count VI, which

addresses Defendants’ policy of refusing to provide recommended rehabilitative

programming to the Plaintiff class in violation of their Eighth and Fourteenth

Amendment rights to a meaningful opportunity for release. (Pls.’ 2d Am. Compl.,

Dkt. 130, Count VI, Page ID 1631-32).

7. Plaintiffs are being denied programming that has been listed as

required for them to complete prior to parole, based solely on Defendants’ policy

of continuing to treat Plaintiffs as serving a life sentence that has been vacated as

unconstitutional.

8. There are no factual disputes that such programming is being denied

nor that the withholding of such programming impacts Plaintiffs’ opportunity to


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obtain a meaningful and realistic opportunity for parole by demonstrating

rehabilitation.

9. Contemporaneously with this motion, Plaintiffs are seeking immediate

consideration of this matter to prevent the ongoing constitutional treatment of

Plaintiffs and denial or delay of their opportunity for release, and class certification

to ensure that this Court’s summary judgment order will be applied to all similarly

situated individuals who were sentenced to life without parole as children and are

now subject to M.C.L. § 769.25a.

10. On January 16, 2018, at 10:30 a.m., Plaintiffs contacted counsel for

Defendants, Margaret Nelson, and detailed the basis for Plaintiffs’ motion and

relief requested, seeking concurrence which was not obtained.

WHEREFORE, Plaintiffs request entry of partial summary judgment as to

Counts V and VI, together with declaratory and injunctive relief as detailed in

Plaintiffs’ brief in support hereto.

Respectfully submitted,

DATED: January 16, 2018 /s/Deborah LaBelle Deborah LaBelle (P31595) Counsel for Plaintiffs

221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620 [email protected] /s/Ronald J. Reosti RONALD J. REOSTI (P19368)


mailto:[email protected]

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Counsel for Plaintiffs 23880 Woodward Ave. Pleasant Ridge, MI 48069-1133 248.691.4200 [email protected] /s/Michael J. Steinberg Michael J. Steinberg (P43085) Kary L. Moss (P49759) Daniel S. Korobkin (P72842) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 [email protected] [email protected] [email protected] /s/Steven M. Watt Steven M. Watt Human Rights Program Ezekiel Edwards Brandon Buskey Criminal Law Reform Project American Civil Liberties Union Foundation 125 Broad Street, 17th Floor New York, NY 10004 (212) 519-7870 [email protected] [email protected] [email protected]









IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

HENRY HILL, et al., Plaintiffs, vs. RICK SNYDER, et al., Defendants. /

Case No. 5:10-cv-14568 Hon. John Corbett O’Meara Magistrate Judge R. Steven Whelan

DEBORAH A. LaBELLE (P31595) 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620 RONALD J. REOSTI (P19368) 23880 Woodward Ave. Pleasant Ridge, MI 48069 248.691.4200 DANIEL S. KOROBKIN (P72842) MICHAEL J. STEINBERG (P43085) ACLU Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 313.578.6824 STEVEN M. WATT EZEKIEL R. EDWARDS BRANDON BUSKEY American Civil Liberties Union Foundation 125 Broad St., 17th Floor New York, NY 10004 212.517.7870 Attorneys for Plaintiffs

MARGARET A. NELSON (P30342) ANN M. SHERMAN (P67762) CHRISTINA M. GROSSI (P67482) JOSEPH T. FROEHLICH (P71887) Michigan Department of Attorney General Public Employment, Elections & Tort Division P.O. Box 30736 Lansing, MI 48909 517.373.6434 Attorneys for Defendants

__________________________________________________________________ BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL

SUMMARY JUDGMENT, DECLARATORY JUDGMENT AND PERMANENT INJUNCTION


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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................. iii INTRODUCTION ................................................................................................... 1 BACKGROUND AND FACTS .............................................................................. 3 ARGUMENT

I. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON COUNT V BECAUSE M.C.L. § 769.25a(6) DEPRIVES PLAINTIFFS OF EARNED GOOD TIME AND DISCIPLINARY CREDITS IN VIOLATION OF THE EX POST FACTO CLAUSE ............................................................................ 8

II. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT

ON COUNT VI BECAUSE DEFENDANTS’ POLICY EXCLUDING PLAINTIFFS FROM EXISTING REHABILITATIVE PROGRAMMING VIOLATES THEIR RIGHT TO A MEANINGFUL OPPORTUNITY FOR RELEASE ........ 15

III. THIS COURT SHOULD IMMEDIATELY ORDER

INJUNCTIVE RELIEF BECAUSE PLAINTIFFS AND CLASS MEMBERS ARE IRREPARABLY HARMED BY ANY DELAY ........................................................................................... 20

IV. CONCLUSION AND RELIEF REQUESTED ........................................... 22


iii

TABLE OF AUTHORITIES

Cases

Atwell v. State, 197 So.3d 1040 (Fla. 2016) ............................................................18

Crump v. Lafler, 657 F.3d 393 (6th Cir. 2011) ........................................................19

Graham v. Florida, 560 U.S. 48 (2010) ....................................................... 9, 17, 19

Greimen v. Hodges, 79 F. Supp. 3d 933 (S.D. Iowa 2015) .....................................19

Hill v. Snyder, 878 F.3d 193 (6th Cir. 2017) ................................................... passim

Kelly v. Brown, 851 F.3d 686 (7th Cir. 2017) .........................................................18

Lamb v. Bureau of Pardons & Paroles, 106 Mich. App. 175 (1981) .....................11

Lowe v. Dep’t of Corrs., 206 Mich. App. 128 (1994) .............................................12

Maryland Restorative Justice Initiative v. Hogan, 2017 WL 467731 (D. Md. Feb.

3, 2017) .................................................................................................................18

Miller v. Alabama, 567 U.S. 460 (2012) ......................................................... passim

Montgomery v. Louisiana, 136 S.Ct. 718 (2016) ............................................ passim

Moore v. Parole Board, 379 Mich. 624 (1967) ............................................ 5, 12, 13

People v. Hyatt, 316 Mich. App. 368 (2016) ............................................................. 4

People v. Lyons, 222 Mich. App. 319 (1997) ..........................................................12

People v. Sanders 56 N.E.3d 563 (App. Ct. Ill. 2016) ............................................18

Short v. United States, 344 F.2d 550 (D.C. 1965) ...................................................13

Starks v. Easterling, 659 F. App’x 277 (6th Cir. 2016) ...........................................17


iv

Wayne Cty. Pros. Att’y v. Mich. Dep’t of Corrs., 1997 WL 33345050 (Mich. Ct.

App. June 17, 1997) ..........................................................................................5, 13

Weaver v. Graham, 450 U.S. 24 (1981) .................................................................... 9

Wilkinson v. Austin, 545 U.S. 209 (2005) ................................................................18

Statutes

M.C.L. § 750.316 ....................................................................................................... 3

M.C.L. § 769.25a ............................................................................................. passim

M.C.L. § 769.25a(6)......................................................................................... passim

M.C.L. § 791.233b ...............................................................................................5, 11

M.C.L. § 791.234(6) .................................................................................................. 3

M.C.L. § 800.33 ...................................................................................................5, 11

M.C.L. § 800.33(14) ................................................................................................11

M.C.L. § 800.33(3) ..................................................................................................11

M.C.L. § 800.33(5) ..................................................................................................11

M.C.L. § 800.34 ...................................................................................................5, 11

Other Authorities

18 U.C. Davis J. Juv. L. & Poly 3267 (2014) ..........................................................18


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INTRODUCTION

This case is on remand from the Sixth Circuit “for an expeditious

resolution.” Hill v. Snyder, 878 F.3d 193 (6th Cir. 2017), Dkt. 179 at Pg ID 2477,

2478. On appeal, the Sixth Circuit affirmed this Court’s dismissal of Counts I and

II of Plaintiffs’ Second Amended Complaint but reversed the dismissal of Counts

IV, V and VI. On Counts V and VI, the facts are not in dispute and Plaintiffs seek

judgment as a matter of law.1 Further, because any delay in granting relief will

cause severe, immediate and irreparable harm, Plaintiffs seek immediate injunctive

relief for themselves and similarly situated class members. Motions for class

certification and for immediate consideration are being filed contemporaneously

with this motion.

Count V seeks relief under the Ex Post Facto Clause. The Sixth Circuit

essentially resolved this claim on its merits when it ruled that M.C.L. § 769.25a(6)

in an unconstitutional ex post facto law insofar as it retroactively deprives youth of

good time and disciplinary credits that were earned while serving their now-void

life sentences. Hill, Dkt. 179 at Pg ID 2471-2474. Given that there are no facts in

dispute regarding this claim, the Court should enter partial summary judgment for

Plaintiffs.

1 On Count IV, which challenges the constitutionality of the parole system to which youth are subject after being resentenced to mandatory lengthy prison sentences under M.C.L. § 769.25a, Plaintiffs intend to conduct discovery and further develop the record.


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Count VI seeks access to rehabilitative programming for the Plaintiff class

as a component of their right to a meaningful opportunity for release. Over 250

individuals whose life sentences are void as a result of Miller v. Alabama, 567 U.S.

460 (2012) and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), are still awaiting

resentencing, nearly two years after M.C.L. § 769.25a became effective. Because

the Michigan Department of Corrections continues to treat them as if they were

serving life-without-parole sentences, they are deemed ineligible for prison

programming based on the absence of a specific release date. These programs are

both necessary to demonstrate the rehabilitation and maturation necessary for their

release on parole as well as programs recommended at the time of incarceration as

necessary to complete prior to release. Here, too, there are no material facts in

dispute, as Plaintiffs challenge Defendants’ class-wide policy of continuing to treat

Plaintiffs as serving a life sentence and excluding them from programming on that

basis. Partial summary judgment in Plaintiffs’ favor is therefore appropriate on

Count VI.

Plaintiffs seek immediate class-wide injunctive relief on Counts V and VI.

Restoring good time and disciplinary credits will make them and hundreds of other

class members eligible for earlier parole consideration, and some will become

immediately eligible for parole upon relief being granted. Similarly, because many

who are awaiting resentencing could be immediately eligible for parole

consideration after they are resentenced, providing them access to rehabilitative


3

programming will have an immediate impact on whether they are able to

demonstrate the rehabilitation and maturation necessary to obtain parole as soon as

they are eligible. To avoid continued irreparable harm to Plaintiffs and other

members of the class, the Court should issue an injunction now.

BACKGROUND AND FACTS

Prior to the Supreme Court’s decision in Miller v. Alabama and Montgomery

v. Louisiana, all Plaintiffs and class members were serving mandatory life-without-

parole sentences pursuant to M.C.L. §§ 750.316 and 791.234(6). Now that these

sentences have been declared unconstitutional and void, all Plaintiffs and class

members are subject to resentencing under M.C.L. § 769.25a. Unless a Plaintiff or

class member receives another life-without-parole sentence following a

resentencing hearing pursuant to this statute, all Plaintiffs and class members have

received or will receive a minimum term of 25 to 40 years and a maximum term of

60 years. See M.C.L. § 769.25a(4)(c).

To date, no one has been resentenced to life without parole. Under M.C.L. §

769.25a(4)(b), prosecutors were required to file motions in state court to designate

which individuals they intended to seek to resentence to life without parole. “The

Supreme Court emphasized that the sentence of life without parole should be

imposed on youth offenders in only the ‘rarest’ of circumstances.” Hill, Dkt. 179

at Pg ID 2458. Astoundingly, Michigan prosecutors are seeking to reimpose this

harshest punishment in approximately 70 percent of the cases, having filed motions


4

against nearly 250 class members. However, as the Sixth Circuit noted in

recognizing the prosecutors’ actions in Michigan, “the machinery of justice has

come to a halt” and none of these resentencings has taken place. Id., Dkt. 179 at

Pg ID 2461.2 Therefore, despite it being literally impossible that 236 out of 363

children could all be the “uncommon” and “rarest” case of “irreparable

corruption,” this entire group is “stuck in carceral limbo,” continuing to serve void

life sentences with no dates established for their resentencing hearings or for their

first parole review, and without opportunity for rehabilitative programming. Id.

Resentencing hearings are proceeding for Plaintiffs and class members who

have not been designated for reimposition of life-without-parole sentences. To

date, approximately 100 class members have been resentenced to term-of-year

sentences. Of these individuals, over thirty have been paroled and the remaining

Plaintiffs are parole eligible. Twenty-two additional class members are awaiting

resentencing for a term-of-year parole eligible sentence. (Ex. 1, Affidavit of

Gonzalo Ubillus; Ex. 2, Original Mandatory JLWOP Sentence Before Dec. 15,

2 Specifically, prosecutors are opposing proceeding with Miller resentencing hearings before a judge, despite the ruling of a Michigan Court of Appeals conflicts panel (resolving a conflict between a panel holding that such hearings require a jury and a panel holding that judicial hearings were adequate) upholding the prosecutors’ position that Miller resentencing hearings shall be conducted before a judge, and there being no stay of this ruling. See People v. Hyatt, 316 Mich. App. 368 (2016). In most cases prosecutors have filed nothing but cursory notices that they intend to seek life-without-parole sentences again in these cases. Prosecutors have now delayed resentencing hearings in all such cases for nearly two years.


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1998, Resentenced and Paroled, as of 01/25/2018; Ex. 3, Original Mandatory

JLWOP Sentence Before Dec. 15, 1998, Resentenced and Not Paroled Yet, as of

01/25/2018).

Facts Relevant to Count V: Good Time and Disciplinary Credits

Plaintiffs seek a declaration, and corresponding injunctive relief, that M.C.L.

§ 769.25a(6), which retroactively deprives Plaintiffs of earned good time and

disciplinary credit upon resentencing, is unconstitutional. As recognized by

Michigan statutes, case law, and most recently the Sixth Circuit’s decision in this

litigation, all Michigan prisoners who committed offenses prior to December 15,

1998, earn good time and/or disciplinary credits—including Plaintiffs, and those

similarly situated, who were previously serving life sentences for first-degree

murder. See Hill, Dkt. 179, at Pg ID 2471-2474; M.C.L. §§ 800.33, 800.34,

791.233b. Although a prisoner with a life sentence will not always benefit from

such earned credits, state law recognizes that if a prisoner’s sentence is vacated and

they are resentenced to a term-of-years, both the time served and time earned

through good time and disciplinary credits during their life sentences are then

applied to the new term-of-year sentence, and used to calculate minimum and

maximum release dates. See Moore v. Parole Board, 379 Mich. 624, 647-48

(1967); Wayne Cty. Pros. Att’y v. Mich. Dep’t of Corrs., No. 186106, 1997 WL

33345050 (Mich. Ct. App. June 17, 1997) (Ex. 4).


6

As explained in the affidavit of Richard Stapleton, the Michigan Department

of Corrections (“DOC”) calculates a prisoner’s parole review date by applying

good time and/or disciplinary credits based on the date of the prisoner’s offense.

(Ex. 5, Affidavit of Richard Stapleton, p. 5, ¶10). It has long been the

Department’s practice to do so when a prisoner serving a life sentence

subsequently had that sentence altered to a term-of-years sentence, at which time

the earned credits would be applied to the minimum and maximum sentences. Id.

at ¶¶ 11, 12. In such a situation the prisoner’s credits earned during his or her life

sentence are calculated by a computer program using the dates of the offense, dates

of misconducts and applicable statutes to determine earliest parole dates. Id. This

computerized analysis can be easily performed for prisoners who are subject to

resentencing. Id. at ¶ 15.

Applying this methodology to Plaintiffs’ and other class members’ new

sentences will determine their parole eligibility dates, and for some Plaintiffs will

result in immediate parole eligibility. For example, as the Sixth Circuit

recognized, Plaintiff Jennifer Pruitt, who has been resentenced to 30 to 60 years

and has already served more than 25 years, would already be parole eligible based

upon her stellar institutional record. Upon a declaration of the unconstitutionality

of M.C.L. § 769.25a(6) and the entry of corresponding injunctive relief, Plaintiff

Pruitt, like many other Plaintiffs and class members, stands to benefit from

immediate or earlier parole consideration upon calculation of their good time and


7

disciplinary credits, properly applied to their new sentences.3

Facts Relevant to Count VI: Access to Rehabilitative Programming

Despite the sentences of all Plaintiff class members having been vacated

nearly two years ago by the United States Supreme Court’s decision in

Montgomery, Defendants continue to punish all Plaintiffs who have not yet been

resentenced with the same sentence deemed unconstitutional (as cruel and unusual

punishment) in Miller and Montgomery, i.e. life without parole consideration.

Prison officials treat all youth who have not yet been resentenced under M.C.L. §

769.25a as still serving a life sentence: they are still listed on the Michigan DOC

website as serving life sentences; they continue to be advised by Michigan DOC

personnel that they are ineligible for lower custody levels because they are serving

a life sentence; and they continue to be denied rehabilitative programming in

prison based solely on Defendants’ insistence that they are still “lifers.” Therefore,

Plaintiffs and all 256 subclass members who are awaiting resentencing are being

denied access to existing programming that will be required for them to have a

meaningful opportunity for release when they become eligible for parole.4

3 To date, 51 Plaintiffs who have been resentenced to a term of years are entitled to earned time credits for positive behavior, which Plaintiffs believe will result in the opportunity for immediate parole review. (See Ex. 3). 4 As demonstrated in a previously filed affidavit in this matter (Dkt. 67-4 at Pg ID 1001, ¶ 22), the standard policy of the Michigan parole board, for all prisoners, is to require completion of recommended rehabilitative programming in order to


8

ARGUMENT

I. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON

COUNT V BECAUSE M.C.L. § 769.25a(6) DEPRIVES PLAINTIFFS OF EARNED GOOD TIME AND DISCIPLINARY CREDITS IN VIOLATION OF THE EX POST FACTO CLAUSE.

The Sixth Circuit held that Plaintiffs have stated a claim that M.C.L. §

769.25a(6) violates the Ex Post Facto Clause. Hill, Dkt. 179 at Pg ID 2471-2474.

There are no facts in dispute on this claim, and Plaintiffs are entitled to summary

judgment.

M.C.L. § 769.25a(6) provides that Plaintiffs who are resentenced to a term

of years sentence “shall not receive any good time credits, special time credits,

disciplinary credits, or any other credits that reduce the defendant’s minimum or

maximum sentence.” M.C.L. § 769.25a(6). Plaintiffs’ complaint asserted that

M.C.L. § 769.25a(6), by depriving Plaintiffs of earned good time and disciplinary

credits, violates the Ex Post Facto Clause of Art. I § 10 of the United States

Constitution. (Dkt. 130, 06/20/16, Page ID 1630.)

This Court granted Defendants’ motion to dismiss Plaintiffs’ ex post facto

claim, set forth in Count V, finding that:

Assuming Plaintiffs were eligible for good time credits, such demonstrate that they are fit for release on parole. Such programming can include assaultive offender training, violence prevention programming, substance abuse programming and counseling. Defendants’ standard policy is also to exclude prisoners from most rehabilitative programming (or assign them lowest priority) if they are serving a life sentence and do not have an Earliest Release Date (“ERD”) in their prison file. (See Ex. 5, Stapleton Aff., Dkt. 67-4 at Pg ID 1001, ¶ 22.)


9

credits would have been no use to them when they were serving life sentences without possibility of parole. Accordingly, they could not be disadvantaged by the elimination of credits that were of no benefit to them under the previous sentencing scheme. Because Plaintiffs cannot show that they are disadvantaged by M.C.L. § 769.25a(6), the court will dismiss Count V on the merits.

(Dkt. 174, 02/07/17, Page ID 2441.)

The Sixth Circuit reversed, recognizing that, “The Supreme Court has long

held that retroactive elimination of credits implicates the Ex Post Facto Clause.”

Hill, Dkt. 179, at Pg ID 2471. Referencing Weaver v. Graham, 450 U.S. 24, 35-36

(1981), the Sixth Circuit held that where a new formula for earned time and

disciplinary credits constricts a prisoner’s opportunity for early release, it makes

more onerous the punishment for crimes committed before its enactment, and

therefore, runs afoul of the Ex Post Facto Clause. In reversing this Court’s

dismissal of the claim, the Sixth Circuit held that there was no dispute that M.C.L.

§ 769.25a(6) was a retroactive provision and held that, “[t]o the extent Plaintiffs

earned credits during their mandatory life sentences, the retroactive elimination

thereof is detrimental.” Id., Dkt. 179 at Pg ID 2474. The Sixth Circuit further

recognized that “the constitutionality of this deprivation is a purely legal question,”

not dependent on any one individual’s sentence. Id., Dkt. 179 at Pg ID 2475.

In light of the Sixth Circuit’s decision, there are no material disputes of fact

and Plaintiffs are entitled to judgment as a matter of law. Finding that Plaintiffs

had sufficiently alleged that M.C.L. § 769.25a disadvantaged them by eliminating


10

credits they earned during their life sentences, the Court recognized that several

statutes and case law supported Plaintiffs’ claim that they had, in fact, earned good

time and disciplinary credits during their life sentences. Defendants have argued

that Plaintiffs could not establish an Ex Post Facto violation based upon their

central argument that Plaintiffs are not disadvantaged by a retroactive application

of the statute since, “Plaintiffs necessarily suffer no retroactive increase in

punishment when they go from mandatory life without parole to discretionary life

without parole or a term of years.” (Defs.’ Br. on Appeal, 06/30/17, p. 59). The

Sixth Circuit, in rejecting this analysis and reversing this Court’s ruling on this

matter, held that Plaintiffs are clearly disadvantaged by the deprivation of their

good earned time which, absent the statute’s retroactive taking, prejudices

Plaintiffs by depriving them of credits which would earn the opportunity for early

release, and therefore, increase their punishment.

The sole remaining issue is whether Plaintiffs accumulated good time and

disciplinary credits during their prior sentence. The Sixth Circuit held that several

Michigan cases support Plaintiffs’ position in this regard. As the Sixth Circuit

recognized in its opinion, Michigan statues unambiguously provide for good time

and disciplinary credit for all prisoners based on good behavior while incarcerated.

For individuals who committed offenses prior to 1987, the Michigan statutes

provide that “all prisoners serving a sentence for a crime which was committed on

or after the effective date of this amendatory act shall be eligible to earn


11

disciplinary and special disciplinary credits.” M.C.L. § 800.33(3) (emphasis

added);5 Lamb v. Bureau of Pardons & Paroles, 106 Mich. App. 175, 180-81

(1981) (“at the outset it must be stated that all prisoners . . . are entitled to good

time credits” (emphasis added)).6 For those serving a sentence for a crime

committed on or after April 1, 1987, Michigan law also provides that all prisoners

earn automatic disciplinary credits at the rate of five days per month for each

month in which they did not receive a major misconduct. M.C.L. § 800.33(3).7

Further, M.C.L. § 791.233b(n) explicitly includes individuals serving a sentence

resulting from a conviction for first-degree homicide offenses as among those

convictions for which a prisoner is eligible to earn disciplinary credits in the

manner described in M.C.L. § 800.33(3). This statutory entitlement continued

until December 15, 1998, when prisoners whose homicide offenses occurred after

that date were no longer entitled to earn disciplinary credits or special disciplinary

credits. M.C.L. § 800.33(14); M.C.L. § 800.34(5)(a)(iii).

5 The original text of the statute also grants entitlement to such credit to “every convict who shall have no infraction of the rules of the prison or the laws of the State recorded against him…” Moreover, prisoners convicted of first and second degree homicides were specifically included as enumerated offenses for which a prison would earn disciplinary credits. M.C.L. § 800.33(5); M.C.L. § 791.233b(a) to (cc); M.C.L. § 791.233b(n) 6 There are 73 class members whose offense occurred prior to 1987 and earned good time credits under Michigan statutory law. 7 The relevant “disciplinary credit” statute also provided for disciplinary credits of two additional days per month for good institutional conduct. M.C.L. § 800.33(5).


12

As the Sixth Circuit also recognized, Michigan case law further

demonstrates that, as a matter of law, prisoners who are serving life sentences earn

good time and disciplinary credits, which can then be applied if the prisoner is later

resentenced to a minimum and maximum term of years. The Michigan Supreme

Court long ago rejected Defendants’ arguments that, absent the ability to

immediately apply earned good time to a term-of-years sentence, the Plaintiffs

should be deemed not to have earned the credits for good behavior. In Moore v.

Parole Board, 379 Mich. 624, 647-48 (1967), the Michigan Supreme Court

recognized that “the good-time statute gives good-time to any convict who behaves

himself in prison.” And, recognizing that absent a change in the traditional life

sentence for a first-degree homicide, that earned good time would not actually be

applied to reduce a sentence, the Michigan Supreme Court held that where the

individual was resentenced to a term of years, the good time earned under the prior

invalid sentence must be applied to the subsequent constitutional sentence. Moore,

supra, at 645-35; 639-42; see also Lowe v. Dep’t of Corrs., 206 Mich. App. 128,

131 (1994); People v. Lyons, 222 Mich. App. 319, 321 (1997) (when a previous

sentence is voided, the new sentence must account for any time served in regard to

the void sentence); McDonald v. Moinet, 139 F.2d 939, 941 (6th Cir. 1944)

(recognizing that upon resentencing, plaintiff was “entitled to the benefit of all

parole regulations and good-time credits” as if the new sentence had been imposed

originally).


13

The Moore court further explained that “[s]ince hope and post-conviction

pleas spring eternal within the incarcerated human breast, it cannot be said that

good-time credit is not at least some encouragement to them,” and ordered the

parole board to apply good time credit that had been earned while the plaintiff was

serving his subsequently vacated life sentence. See also Wayne Cty. Pros. Att’y v.

Mich. Dep’t of Corrs., 1997 WL 33345050 (Mich. Ct. App. June 17, 1997) (Ex. 4).

As the Sixth Circuit held, these cases, combined with the relevant statutes, confirm

that even prisoners serving life sentences earn good time and disciplinary credits,

which can then be applied to reduce the minimum and maximum prison terms in

the event the prisoner’s life sentence is ever vacated and a term-of-years sentence

imposed.

There are strong policy reasons why the State provides for those with life

sentences to earn credits. Short v. United States, 344 F.2d 550, 553-54 (D.C. Cir.

1965) (“[T]he purpose of the statutory good conduct allowance is to reward a

prisoner who has faithfully observed all the rules. The allowances are an important

part of the rehabilitation effort.”). The earned credits provide a cache of hope that

Plaintiffs’ positive behavior in prison will one day be a basis for earlier release—

whether as a result of resentencing after appeal, or, in this case, resentencing to a

term-of-years after the Supreme Court vacated their unconstitutional sentences. As

the Sixth Circuit recognized, the Michigan Legislature chose to provide both good

time and disciplinary credits for first-degree homicide convictions. Hill, Dkt. 179


14

at Pg ID 2472-2473. This was the law when Plaintiffs were originally sentenced,

Plaintiffs were aware they could and were accumulating these benefits based on

good behavior, and Plaintiffs relied upon the fact that good behavior would result

in an allowance for reduction of their sentences should they be successful in their

challenge to their sentences. Plaintiffs have now been successful in having their

life sentences declared unconstitutional and vacated. They are therefore entitled to

have their earned good time and disciplinary credits applied to their term-of-years

sentences.

The record evidence demonstrates that there is no issue of material fact that

would undermine the Sixth Circuit’s conclusion. In fact, the evidence shows that

Defendants have routinely applied good time and disciplinary credits, earned by

adults serving a first degree homicide sentence, when that sentence has been

altered, as a result of appeal or successful challenge, to a term-of-years sentence.

(Ex. 5, Affidavit of Richard Stapleton). Therefore, for those Plaintiffs who have

been resentenced to a term-of-years sentence, they are entitled to have their

accumulated good time and disciplinary credits applied to their sentences to

determine parole eligibility and are entitled to a judgment that M.C.L. § 769.25a(6)

violates the Ex Post Facto Clause.

Among the named Plaintiffs, Damion Todd (1986) Bosie Smith (1992),

Jemal Tipton (1987), Kevin Boyd (1996), Jennifer Pruitt (1993), and Matthew

Bentley (1998) are all eligible for earned good time and/or disciplinary credits, as


15

well as other class members who were sentenced for offenses committed prior to

December 15, 1998. Currently, there are 106 class members who have been

resentenced to a term of years, of whom 51 such individuals remain incarcerated

and have earned good time and/or disciplinary credits which could result in

reducing their minimum sentence for purposes of an earlier opportunity for parole

review. (See Ex. 3)8 Finally, there are 166 additional class members whose

offenses were committed prior to December 15, 1998, and who have not yet been

resentenced. Upon resentencing to a term of years, they will also be entitled to

have their good time and disciplinary credits calculated to establish their eligibility

for parole. (Ex. 6, Original Mandatory JLWOP Sentence (Offense Before Dec. 15,

1998), Pending Resentencing, as of 01/25/18).

II. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON

COUNT VI BECAUSE DEFENDANTS’ POLICY EXCLUDING PLAINTIFFS FROM EXISTING REHABILITATIVE PROGRAMMING VIOLATES THEIR RIGHT TO A MEANINGFUL OPPORTUNITY FOR RELEASE. As with Plaintiffs’ ex post facto claim, there is no dispute of fact regarding

Plaintiffs’ claim regarding access to rehabilitative programming. While

Defendants have repeatedly acknowledged that all Plaintiff class members’ life

sentences were voided by Montgomery (see, for example, Defs.’ Br., Dkt. 147,

Page ID 1867, 07/18/16), Defendants continue to deny Plaintiffs rehabilitative

8 There are also 40 individuals who have been paroled, and calculation of their earned time may impact the length of their parole.


16

programming based on the very sentences that were voided two years ago. It is

undisputed that the Michigan DOC (“MDOC”) has rehabilitative programming that

is recommended for prisoners who wish to obtain release on parole. It is likewise

undisputed that, during the parole consideration process, the parole board often

denies release to prisoners who have not completed rehabilitative programming

that is recommended for them. (See Ex. 5, Stapleton Aff. ¶ 22, Dkt. 67-4 at Pg ID

1001.) Additionally, it is undisputed that MDOC limits programming to “prisoners

eligible for parole,” and Defendants refuse to consider the Plaintiff class as such

prisoners. Moreover, upon determination of “eligibility,” priority for such

programming is given to prisoners based on their “earliest release date” (ERD), the

date they become eligible for parole. Finally, it is undisputed that, for Plaintiff

class members who have not yet been resentenced, Defendants’ policy is to

continue treating all such persons as serving life in prison, and thus to exclude

them from otherwise available rehabilitative programming. Even Plaintiffs who

are certain to receive term-of-year sentences because prosecutors are not seeking

reimposition of life without parole are being denied such programming because

they have no ERD specified in their prison file.

To illustrate, as recently as last month, class member Lynn McNeal, who has

served nearly 30 years for an offense committed when he was 17, and for whom

the prosecutor is not seeking to reimpose a life sentence, was denied a request to

complete his programming recommended by his formal entry recommendations.


17

(Ex. 7). Thus, as a result of Defendants’ policy, hundreds of Plaintiff class

members are being denied access to the rehabilitative programming they will need

to demonstrate suitability for release on parole.

This treatment violates Plaintiffs’ right to a meaningful opportunity for

release. In Graham v. Florida, 560 U.S. 48 (2010) and Miller v. Alabama, the

Supreme Court held that, in situations where life without the possibility of parole is

unconstitutional, youth must be given “a meaningful opportunity to obtain release

based on demonstrated maturity and rehabilitation.” Miller v. Alabama, 567 U.S.

460, 479 (2012) (quoting Graham v. Florida, 560 U.S. 48, 75 (2010)); see also

Starks v. Easterling, 659 F. App’x 277, 281 (6th Cir. 2016) (White, J., concurring)

(“Together, Graham and Miller establish that the Eighth Amendment prohibits a

sentencing regime that mandates a term of life imprisonment for juvenile homicide

offenders without a meaningful opportunity to obtain release.”). Under M.C.L. §

769.25a(4)(c), youth who are not resentenced to life without parole receive a

mandatory sentence of sixty years in prison, with the possibility of parole after

serving a minimum sentence of 25 to 40 years. Because a 60-year sentence

significantly exceeds the expected life span of a Michigan prisoner, parole

opportunities during the prison term (after serving the minimum term of 25 to 40

years) must be meaningful and realistic.9 See id. at 283 (“Here, where Starks

9 In Michigan, the life expectancy for youth sentenced to a life sentence prior to the age of 18, the life expectancy is little more than fifty years (50.6). 18 U.C. Davis J.


18

would become eligible for release at age 68 at the earliest . . . he has been deprived

of a ‘meaningful opportunity to obtain release’ during his lifetime.”); see also

Atwell v. State, 197 So.3d 1040 (Fla. 2016) (mandatory life with the possibility of

parole violates Eighth Amendment where the parole process fails to consider

mitigating factors of youth); Maryland Restorative Justice Initiative v. Hogan,

2017 WL 467731, at *19-24 (D. Md. Feb. 3, 2017) (Ex.8) (acknowledging lack of

inherent right to release on parole, yet concluding that Graham, Miller, and

Montgomery require meaningful opportunity for release).

The meaningful opportunity requirement sounds in both the Eighth

Amendment and due process. The Eighth Amendment is implicated because,

without a meaningful opportunity for release, hundreds of youth who are not the

“rarest of children, those whose crimes reflect irreparable corruption,”

Montgomery, 136 S. Ct. at 726, will be punished with life imprisonment, a cruel

and unusual punishment directly contrary to Miller and Montgomery. The

Fourteenth Amendment is also implicated because a liberty interest entitled to due

process protection “may rise from the Constitution itself.” Wilkinson v. Austin,

545 U.S. 209, 221 (2005). That is the case here: For any child who is not found to

be the “rarest” case incapable of rehabilitation, the Eighth Amendment itself

Juv. L. & Poly 3267 (2014); Kelly v. Brown, 851 F.3d 686 (7th Cir. 2017) (Posner, J., dissenting); People v. Sanders 56 N.E.3d 563, 571 (App. Ct. Ill. 2016).


19

creates a liberty interest in release.10 In such a situation, release might never occur,

but it cannot be denied without due process of law. See Greimen v. Hodges, 79 F.

Supp. 3d 933, 945 (S.D. Iowa 2015) (recognizing due process rights for juveniles

in parole proceedings post-Graham). Release opportunities for Plaintiffs must

therefore be meaningful and realistic, and the state cannot set up arbitrary

roadblocks that unfairly prevent them from demonstrating the maturity and

rehabilitation that would entitle them to release.

Defendants’ policy excluding Plaintiffs from rehabilitative programming

violates this requirement. This Court ordered this programming be made available

to Plaintiffs over four years ago. (Dkt. 107, ¶ 8). Nothing has changed;

Defendants’ argument that Miller was not retroactive, and therefore, Plaintiffs

were not entitled to a meaningful opportunity for release, was rejected two years

ago by the Supreme Court’s ruling in Montgomery v. Louisiana, which held that

Miller is retroactive. This decision rendered Plaintiffs’ life sentences all void and

“emphasized that the sentence of life without parole should be imposed on youth

offenders in only the rarest of circumstances.” Hill, Dkt. 179 at Pg ID 2458.

Despite that clear holding, Defendants have continued to treat over 250 class

members as though they are serving life sentences—and, for that reason alone,

continue to exclude them from rehabilitative programming that is otherwise

10 Thus, it is irrelevant that the Sixth Circuit has held, in cases involving adults, that Michigan state law does not create a liberty interest in parole. See Crump v. Lafler, 657 F.3d 393 (6th Cir. 2011).


20

available to prisoners in their custody. Defendants’ arbitrary and irrational policy

excluding Plaintiffs and other class members from the very programming they will

need to demonstrate rehabilitation and maturation to obtain release denies them the

meaningful opportunity required under Miller.11

III. THIS COURT SHOULD IMMEDIATELY ORDER INJUNCTIVE

RELIEF BECAUSE PLAINTIFFS AND CLASS MEMBERS ARE IRREPARABLY HARMED BY ANY DELAY.

In granting summary judgment in Plaintiffs’ favor on Counts V and VI, the

Court should enter an injunction providing immediate relief on those claims.

Absent immediate relief, Plaintiffs will continue to suffer grave irreparable harm as

a result of Defendants’ policies and conduct.

On Count V, some of the Plaintiffs and class members will become

immediately eligible for parole consideration as soon as their minimum sentences

are recalculated to include the good time and disciplinary credits they have already

11 Defendants’ purported justification for excluding Plaintiffs is undermined by the holdings in Miller and Montgomery. Because Plaintiffs have not yet been resentenced, they do not technically have ERDs in their prison files. But Defendants refuse programming to class members such as Lynn McNeal who will have a term-of-year sentence as well as nearly 250 others. As a matter of law, it cannot be the case that 250 out of 360 youth are all the rare and uncommon case of irreparable corruption. Quite the opposite, the vast majority of these youth will be made eligible for parole upon resentencing, and therefore are entitled to meaningful opportunities to demonstrate the maturity and rehabilitation that would entitle them to release. Miller, 567 U.S. at 479. Additionally, Defendants’ continued refusal to provide rehabilitative programming to Plaintiffs who face prosecutors’ attempts to reimpose life without parole sentences imperils their ability to demonstrate rehabilitation in the context of the Miller resentencing hearings themselves.


21

earned. To illustrate, and as observed in the Sixth Circuit’s opinion, Defendants’

continued enforcement of M.C.L. § 769.25a(6) means that Plaintiff Jennifer Pruitt

will not come under the parole board’s jurisdiction until August 2022. However,

as soon as that unconstitutional statute is enjoined and her earned credits are

applied to her new sentence, she will be immediately eligible for parole

consideration. Hill, Dkt. 179 at Pg ID 2473-2474. Further, as detailed in the

Affidavit of Richard Stapleton (See Ex. 5), Defendant MDOC has the capacity to

readily calculate the specific number of earned credits of these individuals by

entering their information into the time computation system. This computation is

accomplished in minutes such that the Plaintiffs and parole board could be

provided the relevant calculations on 51 subclass members almost instantly. (See

Ex. 3). Plaintiffs request that the Court order Defendants complete such

calculations within seven days to allow these former youth with good records and

earned time to promptly have their parole review and earned opportunity for

release. Defendants should further be required to calculate good time and

disciplinary credits within 48 for each Plaintiff and class member who is

resentenced to a term of years in the future.

On Count VI, some of the class members will become immediately eligible

for parole consideration as soon as they are resentenced. However, if they have

not completed recommended programming, they face barriers to be paroling.

Examples include Lynn McNeal, who could be immediately eligible for parole


22

upon resentencing but is currently excluded from recommended rehabilitative

programming because he is still being treated as a “lifer.” (See Ex. 7) Thus, any

delay in providing Plaintiffs and class members access to rehabilitative

programming is immediately prejudicial to them. Plaintiffs therefore request that

the Court order Defendants to immediately provide them with access to

rehabilitative programming, with high priority given to Plaintiffs and class

members who have served more than twenty years.

For these reasons, the Court should immediately enter class-wide injunctive

relief corresponding to its grant of partial summary judgment to Plaintiffs.

CONCLUSION AND RELIEF REQUESTED

For the foregoing reasons, Plaintiffs request that the Court order the

following relief:

(1) Grant partial summary judgment in Plaintiffs’ favor on Count V and

Count VI;

(2) Enter a judgment declaring M.C.L. § 769.25a(6) unconstitutional

under the Ex Post Facto Clause of the United States Constitution;

(3) Enter a permanent injunction prohibiting Defendants from enforcing

M.C.L. § 769.25a(6), requiring Defendants to apply good time and

disciplinary credits in calculating parole eligibility dates for prisoners

resentenced under M.C.L. § 769.25a, requiring Defendants to perform


23

the recalculations within seven days for all prisoners in their custody

who have already been resentenced and within 48 hours of any future

resentencings, and requiring the parole board to assume jurisdiction

over such prisoners at the recalculated earliest release dates;

(4) Enter a judgment declaring the Defendants’ failure to provide

reasonable access to existing rehabilitative programming to prisoners

awaiting resentencing under M.C.L. § 769.25a, on grounds that they

have not been resentenced, or do not have an earliest release date,

violates the right to a meaningful opportunity for release under the

Eighth Amendment and Due Process Clause;

(5) Enter a permanent injunction prohibiting Defendants from failing to

provide reasonable access to existing rehabilitative programming to

prisoners awaiting resentencing under M.C.L. § 769.25a, on grounds

that they do not have an earliest release date or have not been

resentenced, and ordering Defendants to immediately assign highest

priority for such programming to such prisoners who have served

more than 20 years; and

(6) Order Defendants to provide the foregoing relief on a classwide basis

in accordance with the class and subclass definitions set forth in

Plaintiffs’ renewed motion for class certification.


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Respectfully submitted,

DATED: January 16, 2018 /s/Deborah LaBelle Deborah LaBelle (P31595) Counsel for Plaintiffs

221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620 [email protected] /s/Ronald J. Reosti RONALD J. REOSTI (P19368) Counsel for Plaintiffs 23880 Woodward Ave. Pleasant Ridge, MI 48069-1133 248.691.4200 [email protected] /s/Michael J. Steinberg Michael J. Steinberg (P43085) Kary L. Moss (P49759) Daniel S. Korobkin (P72842) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 [email protected] [email protected] [email protected] /s/Steven M. Watt Steven M. Watt Human Rights Program Ezekiel Edwards Brandon Buskey Criminal Law Reform Project American Civil Liberties Union Foundation 125 Broad Street, 17th Floor New York, NY 10004







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(212) 519-7870 [email protected] [email protected] [email protected]

CERTIFICATE OF SERVICE

I hereby certify that on January 16, 2018, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing as well as via U.S. Mail to all non-ECF participants.

/s/Deborah LaBelle Deborah LaBelle (P31595)

Counsel for Plaintiffs 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 734.996.5620 [email protected]






in the united states district court for the eastern ... · ann arbor, mi 48104 . 734.996.5620 ....

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