Juvenile lifer Ray Carp

A few years ago, we tracked the Miller v Alabama case as it went to the SCOTUS to decide whether juveniles could be given life sentences. The Court said such sentences were unconstitutional but did not address whether the decision applied retroactively; i.e. to inmates long-ago convicted when they were juveniles but who still remain incarcerated several decades later.

The SCOTUS decision from last month in Montgomery v Louisiana held that the ban against life sentences for convicted juveniles does apply retroactively and in dicta, urges the states that have refused to release such convicts to parole them as soon as possible. Michigan, along with 5 other states, has refused to apply the Miller ruling retroactively, keeping all of their juvenile lifers locked-up.

A close read of the 6-3 opinion in Montgomery shows that the SCOTUS has not only retroactively applied the juvenile lifer ban to all past state and federal sentences, it also strengthened its ruling in Miller.  The legal scholar Lyle Denniston of SCOTUSBlog puts it this way:

The new decision does make Miller retroactive to cases that were final before the date of that ruling — June 25, 2012.  But it also appears to go beyond the actual scope of the Miller ruling, by strengthening the chance that a newly convicted juvenile will be able to show, at the time of sentencing, that he is not beyond rehabilitation to become a law-abiding individual.  Life without parole, the Court declared, is always unconstitutional for a juvenile unless he or she is found to be “irreparably corrupt” or “permanently incorrigible.”

The Michigan Attorney General has actively resisted applying the juvenile lifer ban retroactively. The AG asserts that the sentences were constitutional when imposed and that the focus should be on the crime victims, not the murderers.

There are approximately 350 persons in Michigan that are in a position to be re-sentenced or paroled. Among them is Raymond Carp, who perhaps has the most questionable conviction of this select group. Carp was the subject of one of our 2014 posts; his conviction, although it withstood a lengthily and withering appeal, arguably was a result of "guilt-by-association"; his co-defendant was a much older mastermind of the murder in which he was entangled.

Now, Carp, along with the other juvenile lifers here in Michigan actually stand a chance at parole.

Post #522

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Retired Oakland Circuit
Judge Edward Sosnick

By:  Timothy P. Flynn

As a young lawyer in the early 90s, I accepted an unusual professional gig.  In order to become an adjunct law professor at my law school alma mater, University of Detroit, they wanted me to first teach law and prisoners' civil rights to female inmates at the now-closed Scott Correctional Facility in Plymouth, MI, under a federally mandated education program.

What struck me about the inmate students back then were the number of women convicted of the so-called "drug lifer law".  If you were convicted of delivery of more than 650 grams of cocaine or heroin, your sentence was life without the possibility of parole.

In the late 90s, former Governor John Engler, a pretty conservative governor, signed the rescission of that law.  In doing so, the Legislature and the Governor made the rescission retroactive to the hundreds of convicts that were racking-up decades of prison time in the MDOC.  Soon after the law was executed, all of the drug-lifers were paroled with time served.

Fast forward to this week, and we see a group of retired circuit court judges calling for our state legislature to take action on the juvenile lifer law; specifically, to pass legislation making the rescission of the law retroactive to the nearly 350 inmates doing life sentences for capital convictions when they were juveniles.

What really caught my attention was that Retired Oakland Circuit Judge Edward Sosnick was among the judges signing the Freep editorial.  Judge Sosnick was a good judge.  Whenever I had a client standing before Judge Sosnick at a sentencing hearing, I always walked away thinking my client received a fair sentence.

Here is issue framed in a nutshell: SCOTUS ruled in 2012 that state juvenile lifer laws violated the Eighth Amendment's prohibition against "cruel and unusual" punishment.  In their wisdom, however, the High Court was silent as to the retroactive application of their ruling, leaving the states to figure out what to do with their aging populations of the juvenile-convicted.

Here in Michigan, the Attorney General won a legal battle a few months back at the Michigan Supreme Court in a case holding that the rescission of the juvenile lifer ban does not apply retroactively.  In arguing the case, the Michigan AG focused on the rights of the victims; most often, the families of individuals that were murdered by the juvenile lifers now so desperate for parole.

As the retired trial judges know, however, not all of those 350 convicted juvenile lifers were cold-blooded juvenile murders; some of those convictions were based on sketchy evidence; some of the juveniles had highly attenuated involvement in the murders for which they were convicted.  Also notable in the legal battle were the 110 former prosecutors and trial judges that filed an amicus brief in the Michigan Supreme Court case calling for retroactive application of the rescission.

Here at the Law Blogger, we'd bet that each of the judges that signed the Freep editorial calling for retroactive application of the rescission of the juvenile lifer ban presided over some of the trials of the convicted lifers.  We'd also bet that the retired judges occasionally saw juveniles charged, tried, and acquitted on capital offenses, dodging the bullet of a life sentence without the possibility of parole.

If the group of 350 juvenile lifers, believed to be the largest in the nation, have any chance at parole, it will have to come from the Michigan Legislature as the highest courts have spoken.

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Juvenile Lifer Raymond Carp

In 2012, the SCOTUS ruled in Miller v Alabama that state laws providing for life sentences for juveniles were unconstitutional.  Michigan is believed to have the most juvenile lifers in the nation; 350 prisoners convicted of life sentences when they were juveniles, all waiting to die in prison.

The juvenile lifer issue has become a hot-button topic for both the appellate courts and the legislature here in Michigan.  The consolidated cases decided this week by the Michigan Supreme Court, known as People v Carp, et al, squarely
addressed the narrow issue of whether the SCOTUS ruling in Miller should be applied retroactively.

If Miller's ban on mandatory life sentences for juveniles is applied retroactively, then the 350 juvenile lifers in MDOC prisons would have a shot at parole.  The retroactive application of Miller has also been the focus of cases in federal courts in Michigan, with one federal judge in Detroit last year ordering the MDOC to come up with a plan to address parole for this group of convicts.

Of course this comes as horrible news to people like Barbara Hernandez, doing a life sentence for her ancillary role in a 1991 murder right here in Pontiac, MI.  On the other hand, Attorney General Bill Schuette, whose office argued the case for the State of Michigan, hailed the decision as a victory for the families of murder victims.

No doubt, the attorneys for the three defendants in the consolidated cases will now petition to the SCOTUS for further appellate review, seeking clarification as to the retroactivity of Miller.  The remaining 350 juvenile lifers will continue to sit on the edge of their stainless steel racks awaiting final decision on their fate.

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Juvenile Lifer Raymond Carp

By:  Timothy P. Flynn

Oral argument is scheduled in the Michigan Supreme Court for March 6th in the juvenile lifer case of People v Raymond Carp to determine whether the SCOTUS decisions banning state juvenile lifer laws should get retroactive application.  One of the interesting amicus briefs filed in the case comes from several hundred Ann Arbor high school students.


In May 2006, Raymond Carp was only 15 years old when his half brother attacked and killed their mother's friend with a knife in her home.  Carp was present, but the evidence that he participated in the murder was sketchy at best.

In the weeks immediately following the murder, the accused attempted suicide and reported to having a recurring inescapable nightmare: seeing his brother murder their mother's friend over and over again.  Carp's jury conviction was affirmed by the Michigan Court of Appeals; the Michigan Supreme Court agreed to consider the case last year in order to assess whether the SCOTUS ban on juvenile lifer laws should receive retroactive application here in Michigan.

With the oral arguments in this much-anticipated case only a few weeks away, the High Court's decision to allow the collective student body of a Michigan high school to file an amicus brief has garnered some additional media attention for Mr. Carp's plight.  The amicus brief, from Ann Arbor's Father Gabriel Richard High School, was filed last Friday and signed by 450 high school students.

We here at the Law Blogger have read this brief and note that it raises some very compelling arguments for the retroactive ban of Michigan's juvenile lifer law.  Perhaps the most interesting aspect of the Gabriel Richard brief is the true and honest perspective of the teenager; the brief is written in unabashed teen fashion and does not masquerade as the product of a legal scholar progeny from the AP history class.

This blog applauds the Supreme Court's decision to allow this collective voice to be a part, however small, of this case.  We will monitor the oral argument and report back on the High Court's decision.

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We here at the Law Blogger [the attorneys of Clarkston Legal, also known as Karlstrom Cooney] would like to thank our loyal readers and those that follow this blog.

This is our 300th post.  Three hundred: a perfect game in bowling; an excellent batting average in the bigs; the length of Noah's Arc, in cubits, and one of this blogger's favorite movies.

We started this blog with our first post back on March 30, 2009, on the topic of a lesbian couple litigating their right to adopt a child here in Michigan.

In the four years that we've been up and running with the Oakland Press, there have been almost 160,000 page views and we've received 438 published comments.  Minor league stats in the overall blogosphere, but hopefully relevant to our local readers.

In these years we have attempted to post interesting law-related information that our readers find useful and informative.  Some of the more important topics we've covered in our posts include:

• cell phone use and texting while driving, especially where teenagers are concerned;
• the "Superdrunk" driving law;
• same-sex marriage cases from their initial filings through the recent oral arguments at SCOTUS;
• privacy laws in the Big Data era;
• Second Amendment cases at SCOTUS;
• Obamacare at SCOTUS and now that the new laws are scheduled to take effect in the workplace;
• divorce and family law developments, especially child custody matters;
• the juvenile lifer laws recently decided by SCOTUS;
• significant developments in the criminal law; and
• occasionally, high-profile cases and local personalities that have intersected with the legal system or criminal justice system.

Before we begin work on our next 300 posts, we would like to also thank the Oakland Press and its editorial staff for their support and encouragement over the years.

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Barbara Hernandez

Barbara Hernandez was convicted in 1991 of first degree murder and sentenced to life in prison; she was sixteen years old.  The facts adduced at her trial were that she coaxed her victim, a 28-year old auto mechanic, into a vacant crack-house in Pontiac where her boyfriend, or pimp, depending on who you believe, stabbed him 25-times. 

The motive: robbery to obtain funds to fuel said boy friend's raging crack habit. Sympathy rating on scale of one to five; zero.

More than 20-years after her capital conviction, views on the Hernandez case remain polarizing.  For example, in an AP article detailing the murder, the prosecutor that tried Hernandez here in he Oakland County Circuit Court recently reflected on the case she submitted to the jury.

During her years with the Oakland County Prosecutor, Donna Pendergast, now an Assistant Attorney General, tried many high profile murders.  She had this to say about Hernandez:

Contrary to her assertion that she's cowering around the corner under some sort of influence of her boyfriend, quite the contrary. She's right in the mix and the evidence shows that.  At 16 years old, when you're involved with a scheme of that (kind of) deadly ramifications, you know what you're doing.  

On the other hand, one of the now-retired investigators who took a statement from Hernandez soon after the incident, recently claimed that he no longer recalls her saying that she may have held the victim; he told the AP:  "why I testified to that; who knows?"

Although the U.S. Supreme Court recently decided in Miller v Alabama that mandatory juvenile lifer laws violate the 8th Amendment's prohibition against cruel and unusual punishment, critical aspects on the application of this decision were not addressed by the SCOTUS.  For example, recent cases percolating through the appellate courts here in Michigan address whether SCOTUS' Miller decision should be applied retroactively.

In People v Carp, the Michigan Court of Appeals recently held that the SCOTUS' Eighth Amendment ruling did not apply retroactively.  In doing so, Judge Michael J. Talbot conducted a tour de force of juvenile and capital sentencing jurisprudence, mandating lower courts with pending cases to take a juvenile offender's tender years into account; exhorting the legislature to address this perceived gap in our justice system; but nevertheless refusing to retroactively apply Miller on a collateral review.

Of course, Raymond Carp's attorneys have applied for further appellate review to the Michigan Supreme Court.  The briefs are in, with the Michigan Attorney General having just filed a brief in opposition earlier this month; and [update] an op-ed piece in the Detroit News.

Juvenile lifers recently received a big boost by a decision of United States District Court Judge John O'Meara who ruled that the SCOTUS Miller decision was retroactive for the 350 lifers convicted as juveniles and that prisoners so convicted deserved a chance at parole.

Convicts in Barbara Hernandez's position await the outcome of this decision while their lives burn-down like a candle.  Michigan's oldest juvenile lifer is 68; convicted of murder in 1962.

We here at the Law Blogger have to wonder: do murdering teens deserve a second chance in life?

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