Petition for Writ of Certiorari — Charles Kunta Lewis, Jr., Petitioner v. Michigan

No. ______________________

______________________________

IN THE

SUPREME COURT OF THE UNITED STATES

______________________________

CHARLES KUNTA LEWIS, JR. – PETITIONER

v.

STATE OF MICHIGAN – RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO

Michigan Supreme Court

__________________________________________________

PETITION FOR WRIT OF CERTIORARI

Mary Chartier

Chartier & Nyamfukudza, P.L.C.

Attorney for Petitioner – Pro Bono Counsel

2295 Sower Boulevard

Okemos, MI 48864

517.885.3305

mary@cndefenders.com

QUESTION PRESENTED

I.

The Constitution prohibits punishments that are cruel and unusual. In

addition to the crime committed, the juvenile offender’s age must also be

taken into account when crafting a sentence. This Court has found that

laws that fail to take a defendant’s youthfulness into account are flawed.

Was the sentence given to Mr. Lewis unconstitutional because it violated

the prohibition against cruel and unusual punishment when his youthful

attributes were not taken into consideration at sentencing due to the

mandatory minimum sentence of 25 years that had to be imposed?

i

List of Parties

All parties appear in the caption of the case on the cover page.

ii

TABLE OF CONTENTS

Question Presented

List of Parties

Table of Contents

Index to Appendices

Table of Authorities

Opinions Below

Jurisdiction

Constitutional and Statutory Provisions Involved

Statement of the Case

Reasons for Granting the Petition

I. Mr. Lewis was unconstitutionally sentenced because his juvenile

status was not properly taken into account.

A. The trial court improperly revoked Mr. Lewis’ probation and

sentenced him as an adult.

B. M.C.L. 769.25(9) does not comply with the constitutional

mandates articulated by this Court because it does not provide

Mr. Lewis with a meaningful opportunity for release.

C. Recent research involving human brain development,

specifically the juvenile brain, provided the foundation that this

Court used to guide its holdings on juvenile sentencings.

D. The recent developments in brain science are influencing this

Court’s opinions by proving the differences between adult and

juvenile minds and their decision-making processes.

E. The Constitution requires that courts consider the attendant

characteristics of youth when sentencing a juvenile.

F. Michigan’s statute precludes courts from considering the

attendant characteristics of youth and engaging in

individualized sentencing.

G. The sentence given to Mr. Lewis is unconstitutional because it

violates the prohibition against cruel and unusual punishment.

Conclusion

Table of Exhibits

iii

i

ii

iii

iv

v

vi

vii

viii

1

2

2

3

11

12

16

17

18

21

24

25

INDEX TO APPENDICES

Exhibit A

Order Denying Motion for Resentencing, dated 04/06/2018

Exhibit B

Psychiatric Evaluation, dated 10/21/2016

Exhibit C

Court of Appeals Unpublished Opinion, dated 07/09/2019

Exhibit D

Michigan Supreme Court Order, dated 04/29/2020

iv

TABLE OF AUTHORITIES

Cases

Atwell v. Florida, 197 So. 3d 1040 (Fla. 2017)

Eddings v. Oklahoma, 455 U.S. 104; 102 S. Ct. 869; 71 L. Ed. 2d 1 (1982)

Graham v. Florida, 560 U.S. 48; 130 S. Ct. 2011; 176 L. Ed. 2d 825 (2010)

Iowa v. Lyle, 854 N.W.2d 378 (Iowa 2014)

Iowa v. Null, 836 N.W.2d 41 (Iowa 2013)

JDB v. North Carolina, 564 U.S. 261; 131 S. Ct. 2394; 180 L. Ed. 2d 310

(2011)

Johnson v. Texas, 509 U.S. 350; 113 S. Ct. 2658; 125 L. Ed. 2d 290 (1993)

Miller v. Alabama, 567 U.S. 460; 132 S. Ct. 2455; 183 L. Ed. 2d 407 (2012)

New Jersey v. Zuber, 152 A.3d 422 (N.J. 2017)

Ohio v. Moore, 76 N.E.3d 1127 (Ohio 2016)

Roper v. Simmons, 543 U.S. 551; 125 S. Ct. 1183; 161 L. Ed. 2d 1 (2005)

Strickland v. Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674

(1984)

Washington v. Houston-Sconiers, 391 P.3d 409 (Wash. 2017)

23

11

passim

22, 23

23

12

11, 16

passim

23

23

passim

20, 21

22

Constitutional Provisions

US Const, amend V

US Const, amend XIV

U.S. Const, amend VIII

17

17

Statutory Provisions and Court Rules

MCL 769.25(9)

MCL 771.7

passim

passim

4, 18

Other Authorities

Sarah-Jayne Blakemore, Imaging brain development: The adolescent

brain, NeuroImage, 2012

B.J. Casey, et al., Imaging the developing brain: what have we learned

about cognitive development?, Trends Cog. Sci., March 2005

B.J. Casey, et al., Structural and functional brain development and its

relation to cognitive development, Bio. Psych., 2000

Laurence Steinburg & Elizabeth S. Scott, Less Guilty by Reason of

Adolescence, Am. Psychol., December 2003

v

14, 15

12, 13

13, 14

13, 14,

15

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment below.

Opinions Below

The order of the Michigan Supreme Court is unpublished. It is attached as

Appendix D.

vi

Jurisdiction

The date on which the Michigan Supreme Court decided Mr. Lewis’ case was

April 29, 2020. No petition for rehearing was filed. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

vii

Constitutional and Statutory Provisions Involved

Eighth Amendment

viii

STATEMENT OF THE CASE1

This case involves the tragic death of Shayla Johnson and the subsequent

conviction and sentencing of Charles Lewis, who was a juvenile at the time of Ms.

Johnson’s death. (Tr. I, 3-4; Tr. VIII, 10.) Mr. Lewis was found guilty of participating

in the unfortunate series of events that led to Ms. Johnson’s death and, at the

conclusion of his trial, Mr. Lewis received a delayed sentence from the trial court. (S.

I, 6.) He was placed at a boys’ training school. (S. I, 6.) In explaining to Mr. Lewis

what would occur if he did not successfully comply with the rules of his supervision,

the trial court told Mr. Lewis that there was a difference between a bump while being

supervised and a pothole. (S. I, 7.) On February 15, 2017, the trial court ultimately

found that Mr. Lewis’ alleged violations were more akin to “potholes” and sentenced

Mr. Lewis to 2 years in prison for possession of a firearm during a felony with zero

days of credit. (S. II, 107.) For the two counts of home invasion, Mr. Lewis received a

sentence of 10 to 20 years. (S. II, 107.) For both counts of assault with intent to rob

while armed, Mr. Lewis received a sentence of 10 to 20 years. (S. II, 107-108.) For

first-degree murder, Mr. Lewis received a sentence of 25 to 60 years. (S. II, 108.) He

received credit for 2,399 days. (S. II, 108.) All sentences, other than the felony firearm

charge, were to run concurrently. (S. II, 208.)

1 For ease of reference, transcripts will be delineated as follows:

Tr. I – Trial, day one, 01/23/2012

Tr. VIII – Trial, day eight, 02/01/2012

S. I – Sentencing, 04/13/2012

S. II – Sentencing, 02/15/2017

R.H. – Review hearing, 08/09/2016

1

Mr. Lewis then filed a claim of appeal on March 27, 2017, from the final

judgment that entered on February 15, 2017. (Claim of Appeal, 3/27/17.) After the

claim of appeal was filed with the Court of Appeals, Mr. Lewis filed a motion for

resentencing with the Ingham County Circuit Court. (Motion for Resentencing,

2/6/18.) A motion hearing was held on April 3, 2018, and an order denying that motion

was signed on April 6, 2018. (Exh. A.) The Court of Appeals issued an unpublished

opinion affirming Mr. Lewis’ sentence on July 9, 2019. (Exh. C.) Mr. Lewis filed an

application with the Michigan Supreme Court that was denied. (Exh. D.)

REASONS FOR GRANTING THE PETITION

I.

Mr. Lewis was unconstitutionally sentenced because his juvenile status

was not properly taken into account.

Children are constitutionally and developmentally different than adults. This

Court has now recognized and established that “children [under 18] are

constitutionally different from adults for purposes of sentencing.” Miller v. Alabama,

567 U.S. 460, 471; 132 S. Ct. 2455; 183 L. Ed. 2d 407 (2012). Developments in science

show considerable differences between the brains of children and adults. “[T]he

distinctive attributes of youth diminish the penological justifications for imposing the

harshest sentences on juvenile offenders, even when they commit terrible crimes.” Id.

at 472.

Under this Court’s precedent, a court must have the opportunity to consider

mitigating circumstances before imposing a penalty on juveniles. Mitigating

circumstances for youth include a lack of maturity, an underdeveloped sense of

responsibility, limited control over their environment, and the capacity for change.

2

Id. This Court has mandated that juveniles be provided “‘some meaningful

opportunity to obtain release based on demonstrated maturity and rehabilitation.’”

Id. at 479, quoting Graham v. Florida, 560 U.S. 48, 75; 130 S. Ct. 2011; 176 L. Ed. 2d

825 (2010). The trial court erred in sentencing Mr. Lewis as an adult, and the state

appellate courts erred in affirming this sentence. Mr. Lewis’ sentence does not

provide a meaningful opportunity for release, which violates the Eighth Amendment

against cruel or unusual punishment, and his prior counsel provided ineffective

assistance of counsel in not challenging the constitutionality of this sentence.

Mr. Lewis’ status as a juvenile at the time of the crime was not taken into

account, as well as his exceptional performance at the juvenile-justice facility during

his delayed sentence and probation, and the mitigating factors surrounding his

alleged probation violations. Further, Mr. Lewis’ sentence does not accurately reflect

his personal involvement in and the mitigating circumstances surrounding the

original offense because of the mandatory minimum sentence that the trial court was

required to give. This mandatory minimum sentence is unconstitutional.

A. The trial court improperly revoked Mr. Lewis’ probation and sentenced him as

an adult.

The mandate of individualized sentencing for juveniles facing the most serious

penalties requires courts to consider a juvenile’s lessened culpability and greater

capacity for change. Miller, 567 U.S. at 465. To ignore this is to deny due process to

juveniles convicted of crimes. In Miller, this Court recognized the lack of maturity

and underdeveloped sense of responsibility underlying the recklessness and

impulsivity typified by juveniles. Id. Further, their lack of well-formed characters was

3

pivotal. Id. This Court explained that common sense, science, and social science

buttress its decision. Id. Juveniles are different from adults because of their capacity

for change and because of their decreased level of culpability.

In Michigan, under M.C.L. 771.7, a trial court has the option of sentencing a

juvenile who violates probation to a range of punishments, from counseling to thirty

days in jail to a prison sentence under the Michigan Department of Corrections. But,

as further analyzed in Section D., M.C.L. 769.25(9) strips the court of discretion when

sentencing a juvenile who has been convicted of first-degree murder and who has

violated probation. Further, regardless of the unconstitutional nature of M.C.L.

769.25(9), the trial court improperly revoked Mr. Lewis’ probation and sentenced him

as an adult. The trial court ignored the nature of the alleged violations and took a

sweeping approach to, at most, minor violations.

Juvenile Disposition Specialist Angelo Flowers testified Mr. Lewis was

involved in individual and group therapy. (R.H., 5.) Mr. Lewis was working with him

to continue his education and find employment. (R.H., 5.) Critically, the services that

Mr. Lewis engaged in were ongoing services. (R.H., 5.) Mr. Flowers believed that Mr.

Lewis had adjusted “well overall” to his new group home placement. (R.H., 6.) He

indicated that he believed he needed more structure, such as with employment and

education. (R.H., 7.) In the last reporting period, Mr. Lewis had only one issue where

he had a bottle of urine on his person, presumably to test clean on a substance use

screen. (R.H., 7.) The incident with the urine was Mr. Lewis’ only positive screen.

4

(R.H., 9.) Every other actual urine screen before and after the “positive” test was

negative. (R.H., 9.)

Mr. Lewis had explained to Mr. Flowers that his mother’s health was failing,

and he had a drink to try and deal with his grief and pain. (R.H., 9-10.) Mr. Lewis

was not attending college classes because there was an issue with financial aid, but

this was beyond his control. (R.H., 10-11.) He had taken his placement tests on time,

even though there was an initial issue with the tests. (R.H., 10.) Mr. Lewis did

everything he possibly could to take classes at Macomb Community College, and he

was already enrolled for classes and ready for the new term to begin when the court

sentenced him to prison. (R.H., 12-13.) Mr. Flowers said that Mr. Lewis was

“absolutely” eager to go to college. (R.H., 13.) He had also needed help looking for

work, but he had received an employment offer by the time of the hearing. (R.H., 1314.)

Alexis Terry was Mr. Lewis’ therapist. (R.H., 15.) She stated that Mr. Lewis

was on track after the mistake that he made. (R.H., 15.) Mr. Lewis was initially

resistant to taking advice related to his job search, but this changed and he was no

longer resistant. (R.H., 17.) This was evidence of his ability to grow and change. Mr.

Lewis struggled to talk about his feelings surrounding his mother’s cancer at first.

(R.H., 18.) But this was changing, as Mr. Lewis matured, and the struggle to talk

about sadness and loss is common to many juveniles and adults alike.

Ms. Terry stated that she did not believe that Mr. Lewis had the potential for

violent conduct. (R.H., 21.) Mr. Lewis had no physical altercations with anyone, he

5

was not verbally aggressive, and he got along well with his peers and staff. (R.H., 21.)

Ms. Terry stated that Mr. Lewis had a low risk of re-offending. (R.H., 21.) Under the

assessment tools used, there is only a possibility of low, medium, and high risks, and

Mr. Lewis was in the lowest category. (R.H., 24.) He had a lapse in judgment, but he

was not at risk of committing another crime. (R.H., 21.)

Notably, it was reiterated that Mr. Lewis was excited about attending college.

(R.H., 27.) His counselor at the group home described him as very resilient, accepting,

and positive when things do not go his way. (R.H., 28.) He was also respectful to his

peers and to the staff at the group home. (R.H., 28.) He is a leader. (R.H., 28.) In

August 2016, Mr. Lewis had been having positive reports every quarter with the

exception of the August 2016 report, which had to do with the presumptive positive

urine screen for alcohol and his initial resistance to taking advice on the best way to

pursue employment. (R.H., 30.) However, Mr. Lewis was on the right path, and his

purported violations were not the sort that warranted a lengthy prison sentence. Trial

counsel argued vigorously for the trial court to take into account Mr. Lewis’ history

and to sentence him proportionately and as a juvenile, but the trial court ignored Mr.

Lewis’ progress and sentenced him as an adult to prison.

Mr. Lewis’ psychiatric evaluation provides further proof that the trial court

improperly sentenced Mr. Lewis. The trial court ignored the studied and reasoned

opinions of professionals. In October 2016, Mr. Lewis was evaluated by Thomas L.

Atkins, M.D., Board Certified Child and Adolescent Psychiatrist from the University

of Michigan Department of Psychiatry and Nakita Natala, M.D., also from the

6

University of Michigan Department of Psychiatry and a Child and Adolescent

Psychiatry Fellow. (Exh. B, 11.) Their recommendation after evaluating Mr. Lewis

was clear and is as follows:

Based on the above formulation and mitigating factors, we believe

Charles Lewis Jr. is capable of successful rehabilitation. It is our

professional opinion that he should continue to receive support to help

him reintegrate into society. The mitigating factors outlined by the

supreme court have strong implications in the case of Charles Lewis Jr.

Our analysis of these mitigating factors clearly demonstrate that

sentencing him as an adult would go against the principle of graduated

and proportioned justice. [Exh. B, 11.]

Their evaluation was thorough and detailed as follows:

Charles has demonstrated a strong ability to use healthy coping

skills to deal with adverse situations and an exceptional ability to grow

through the rehabilitation programs offered to him. He has remained

hopeful and resilient through the use of religion, writing poetry and

contact with family. Charles now has the ability to critically reflect on

the antecedents and consequences of the crime including his feelings of

remorse and the emotional impact the murder had on the victim’s

mother. He also described how his environment and newly formed

relationship with his father influenced his decisions. During the past

assessment, Charles seemed to idealize his father as a “good guy”

despite much evidence to the contrary. With rehabilitation and a more

mature brain, he now understands the consequences associated with

being around his dad and assesses his relationship with his dad more

realistically then he did when he was 13. He is now angry, sad, and

resentful for what his father has done to Shayla Johnson, her family,

and himself.

Charles was sincere in his recount of his impulsive decision to

leave his job after receiving a call that his mother was dying. Charles is

able to describe, with regret, that he acted impulsively and desperately

when faced with the likelihood of his mom’s imminent death. Given that

his mom provided essential support throughout his life, we assert that

the fear of losing her temporarily impacted his judgement. With time to

reflect, he now easily acknowledges his mistake and is angry with

himself for compromising the progress he has made.

Charles was far more engaged and analytical today than he was

when interviewed four and half years ago. Judge Economy gave him the

opportunity to benefit from a robust rehabilitation program. Charles

7

gratefully and enthusiastically participated in this opportunity. Even

several years later, he can recall and use the lessons taught to him in

rehabilitation programs and his insight and judgment have progressed

substantially. Charles is also altruistic and wants young people to learn

from his story. He has solidified his love of learning; testimony from his

teacher, his graduation as valedictorian, his cosmetology certificate, and

his continued college education all attest to that. Charles has realistic

goals and believes that if given the chance, education and skill will allow

him to live a productive and peaceful life in society. [Exh. B, 10.]

Mr. Lewis’ psychological evaluation further highlights what this Court was

concerned about when sentencing a juvenile offender and what the trial court ignored.

The evaluation states the following:

The development and functioning of the adolescent brain has

major impacts on behavior. The changes that occur in the brain in

adolescence result in the emotional areas of the brain being more

developed than the regulating parts of the brain when compared to adult

brains. Prior to puberty, there is a surge in nerve cell growth and

connections within the brain. This surge results in an increase in gray

matter and “potential thinking power;” however, the new gray matter is

poorly organized. From the onset of puberty until the early 20s, the

brain “rewires” or reorganizes itself using two mechanisms. Connections

in nerve cells that are not often used are “pruned” or die off in a process

called neural pruning. In a second process called myelination, nerves

and nerve connections that fire together are selectively covered in a fatty

material called Myelin. Myelin strengthens the connection between

nerves and strengthens the transmission of information. This process

occurs at a slow and steady rate, starting at the back of the brain and

working towards the prefrontal cortex (part of the brain located behind

the forehead). There are consequences to having the prefrontal cortex be

the last region of the brain to fully mature. The prefrontal cortex allows

the brain to process more complex information, exercise better

judgment, problem solve, and regulate behavior. These processes

collectively are called executive functions.

This normal but uneven maturation process leaves young people

(approximately ages 12-22) vulnerable to being overly influenced by

other parts of the brain. For example, the reward seeking circuitry of

the brain, influenced by increasing dopamine receptors and hormones,

is very active and results in riskier and more “thrill seeking” behavior.

Young people are still capable of sound decision making but it takes

more concentration and energy. Environmental distraction, such as the

8

presence of peers, can often make the required level of concentration for

proper executive functioning unobtainable. [Exh. B, 8-9.]

As it specifically relates to Mr. Lewis, the evaluator stated the following:

Charles’ prefrontal cortex was developing through this uneven

maturation process at the time of Shayla’s murder and undoubtedly

played a role in his behavior that night. When he was 13, he was

infatuated with his father, excited that he was finally a part of his life

and fixated on forming a relationship with him. Spending all his time

with his dad was novel and emotionally satisfying. His more emotional

brain was not well regulated by his underdeveloped prefrontal cortex

which would have helped him better assess the risks and identify his

dad’s behavior patterns as dangerous.

Charles describes only one positive male role model in his life

(maternal uncle) prior to his incarceration. He grew up knowing his

father was in prison and in an environment surrounded by peers, adults,

siblings and caretakers who engaged in criminal behavior. We strongly

believe that these childhood experiences impacted his social

development and normalized criminal behavior for him. These

circumstances conditioned Charles to be more tolerant of criminal

behavior and placed him in a position of little power or influence on the

night of the crime. That night, Charles was the only child present among

7 men including his father. Charles was being told to go somewhere by

his long absent father; a man with whom Charles was desperate to

please and establish a relationship with. Charles was too young and

immature to extricate himself from the situation. He could not speak

against what little he knew about his father’s plan, he could not get

himself safely back to his mother’s house, nor could he stay behind at a

stranger’s house alone. Charles indicated that he was repulsed and

frightened by the way Shayla was treated and, despite his powerless

situation and young age, chose to leave the house alone. Charles reports

having had no knowledge of a kidnapping plan or the atrocity that was

about to occur and yet he had already decided to separate himself from

the group. At the time of Shayla’s death Charles states he was panicked

and running away.

At the time of the murder and initial sentencing, Charles was not

old enough to be a reliable witness and was less likely to be offered an

acceptable plea agreement. Additionally, his age was largely responsible

for his distorted and idealized view of his father. This distortion and his

immaturity caused him to focus primarily on protecting his father rather

than thinking about the consequences the murder would have on his

own future. [Exh. B, 9-10.]

9

When sentenced to prison, Mr. Lewis did not just exhibit the potential for

change—he clearly exhibited that he had already changed and would continue to do

so. He had graduated with his high school diploma, and he was valedictorian of his

class. (Exh. B, 2.) He had realistic plans to graduate from college. (Exh. B, 2.) He had

completed numerous programs that help him with decision-making and the difficult

issues that he has had to deal with because of his life circumstances. (Exh. B, 2.)

Mr. Lewis described his decision-making when leaving the group home without

permission to see his dying mother. (Exh. B, 3.) His mother was his greatest support,

and he received a call that she was on life support and would pass away soon. (Exh.

B, 3.) He received the call on a Sunday and the next day was Labor Day. (Exh. B, 3.)

He was concerned that waiting and following the rules would cause him to miss his

last chance to say good-bye to his mother and be with her when she died. (Exh. B, 3.)

So he left the group home without permission, so that he could be present when his

mother passed away on September 11. (Exh. B, 3.) Before his mother’s funeral, he

was arrested while he was staying at his cousin’s home. (Exh. B, 3.) While Mr. Lewis’

choice was an impulsive one, it is certainly an understandable one. He wanted to see

his mother one last time before she passed away and for her to hear from him that he

loved her and that he was grateful that he was her son. Mr. Lewis’ decision arose

from compassion and love, and now he is being punished by a lengthy prison sentence

because of it.

The evaluators stated that Mr. Lewis’ reaction to his mother’s death was

appropriate. (Exh. B, 7.) His prognosis was good because he has demonstrated

10

positive coping strategies. (Exh. B, 7.) Notably, Mr. Lewis has the capacity to feel

connected to and care for others. (Exh. B, 7.) The October 2016 evaluation highlighted

an important characteristic about Mr. Lewis—his resilience. (Exh. B, 7-8.) His ability

to navigate through his childhood and all the other stressors in his life show this

important quality. (Exh. B, 7-8.) Yet the trial court considered none of this when

sentencing Mr. Lewis as an adult. Mr. Lewis’ actions were not the “potholes” that the

court referenced, and the court improperly revoked Mr. Lewis’ juvenile probation and

sentenced him as an adult to spend decades in prison. This sentence violates the

fundamental due process principles from the United States and Michigan

Constitutions that a sentence must be individualized and proportionate to the offense

and the offender.

B. M.C.L. 769.25(9) does not comply with the constitutional mandates articulated

by this Court because it does not provide Mr. Lewis with a meaningful

opportunity for release.

This Court has unequivocally stated that whatever sentence is imposed on a

juvenile offender, the juvenile must be afforded a “‘meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation.’” Miller, 567 U.S. at 479,

quoting Graham, 560 U.S. at 75. This Court has stated what science now knows—

immaturity, irresponsibility, impulsivity, and recklessness are signature qualities of

youth, and they are transient in nature. Johnson v. Texas, 509 U.S. 350, 368; 113 S.

Ct. 2658; 125 L. Ed. 2d 290 (1993). A minor’s background as well as his mental and

emotional development must be duly considered in assessing his culpability. Eddings

v. Oklahoma, 455 U.S. 104, 116; 102 S. Ct. 869; 71 L. Ed. 2d 1 (1982); Miller, 567 U.S.

11

at 477. Children are not just miniature adults. JDB v. North Carolina, 564 U.S. 261,

274; 131 S. Ct. 2394; 180 L. Ed. 2d 310 (2011). And a sentencing court must take into

account how children are different when sentencing a juvenile. Miller, 567 U.S. at

480. A sentencing court must “follow a certain process—considering an offender’s

youth and attendant characteristics—before imposing a particular penalty.” Id. at

483. “[Y]outh matters for purposes of meting out the law’s most serious punishments.”

Id.

C. Recent research involving human brain development, specifically the juvenile

brain, provided the foundation that this Court used to guide its holdings on

juvenile sentencings.

This Court’s decisions related to juvenile offenders are based on “common

sense—on what ‘any parent knows’—[and] on science and social science.” Miller, 567

U.S. at 471; see also Roper v. Simmons, 543 U.S. 551, 569; 125 S. Ct. 1183; 161 L. Ed.

2d 1 (2005). According to this Court, “those findings—of transient rashness, proclivity

for risk, and inability to assess consequences—both lessened a child’s ‘moral

culpability’ and enhanced the prospect that, as the years go by and neurological

development occurs, his ‘deficiencies will be reformed.’” Miller, 567 U.S. at 472, citing

Graham, 560 U.S. at 68, quoting Roper, 543 U.S. at 570.

In accord with this Court’s precedent, recent developments in technology have

enabled scientists to make major advances in researching human brain development,

especially juvenile brain development. The bulk of the advances in human brain

development research have been made in the past 16 years. Science has now shown

that the prefrontal cortex is the last part of the brain to mature, continuing

12

development throughout adolescence and into early adulthood. B.J. Casey, et al.,

Imaging the developing brain: what have we learned about cognitive development?,

Trends Cog. Sci., March 2005, at 104. The growth and development of the prefrontal

cortex has been found to directly correlate with behavioral performance. Id. at 106.

The prefrontal cortex controls processes such as working memory, response

inhibition, and attention allocation. B.J. Casey, et al., Structural and functional brain

development and its relation to cognitive development, Bio. Psych., 2000, at 244. As

the prefrontal cortex matures, so do higher cognitive abilities. B.J. Casey, et al.,

Imaging the developing brain: what have we learned about cognitive development?,

Trends Cog. Sci., March 2005, at 106.

Matured cognition allows a person to filter through irrelevant information,

apply accurate information to the situation, and react appropriately. Id. Since the

prefrontal cortex continues to develop for decades, a juvenile brain may not be able

to fully comprehend and control inappropriate actions. Id. An underdeveloped

prefrontal cortex is more sensitive to multiple responses to one stimulus and has more

difficulty choosing from the competing sources. Id. at 107. The prefrontal cortex also

plays a part in long-term planning while making judgment calls. Laurence Steinburg

& Elizabeth S. Scott, Less Guilty by Reason of Adolescence, Am. Psychol., December

2003, at 1013.

Development patterns within the prefrontal cortex indicate that these

cognitive processes are still not fully developed well into late adolescence, which

signifies that juveniles cannot fully understand the long-term consequences of their

13

decisions. Id. White matter, which affects how the brain functions and learns by

relaying communication across the brain, steadily increases within the brain

throughout adolescence and into adulthood. Sarah-Jayne Blakemore, Imaging brain

development: The adolescent brain, NeuroImage, 2012, at 399. However, grey matter,

which is associated with processing and cognition, decreases gradually throughout

adolescence and early adulthood. Id. at 400. This is believed to coincide with a

decrease in synapses, which transmit information between neurons. Id. As a person

ages and is exposed to his environment for longer, synapses are pruned away and

remaining synapse connections are strengthened. B.J. Casey, et al., Structural and

functional brain development and its relation to cognitive development, Bio. Psych.,

2000, at 246. The remaining synapses are strengthened due to repeatedly being

exposed to situations and learning the appropriate response. Id. The pruning of

synapses not relevant to situations a person is exposed to creates a faster and more

appropriate response because competing and inappropriate reactions are now

weakened and suppressed. Id.

It is well-known that adolescence is a period of life that involves risk-tasking

and inappropriate behavior, which can contribute to criminal activity. Id. Because

the brain is still developing during this period of life, juveniles who commit offenses

are certainly capable of rehabilitation. Sarah-Jayne Blakemore, Imaging brain

development: The adolescent brain, NeuroImage, 2012, at 404. Unlike adults,

juveniles involved in criminal acts are still developing their own personal identity,

rather than displaying actual bad character. Laurence Steinburg & Elizabeth S.

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Scott, Less Guilty by Reason of Adolescence, Am. Psychol., December 2003, at 1009.

Even if a juvenile’s cognitive processes have matured close to an adult’s, the juvenile

still has not likely had enough experience within his environment to make

appropriate decisions the way an adult would. Id. at 1012.

Advances in neuroimaging methods, such as magnetic resonance imaging

(MRI), have rapidly revealed new scientific discoveries. Laurence Steinburg &

Elizabeth S. Scott, Less Guilty by Reason of Adolescence, Am. Psychol., December

2003, at 1012. Scientists have since conducted solid studies on the juvenile brain and

its continued development. Id. These studies challenged the assumption that most of

the brain’s development concluded in early childhood. In one study, researchers used

MRI to obtain images during participants’ lifespans to monitor brain development

and growth. Sarah-Jayne Blakemore, Imaging brain development: The adolescent

brain, NeuroImage, 2012, at 399. These images revealed that the brain continues to

develop for multiple decades. Id.

Studies now show that bad decisions on a juvenile’s part are not indicative of

a “bad person,” but instead of an underdeveloped brain that has the ability to mature

and learn from wrongdoing. Laurence Steinburg & Elizabeth S. Scott, Less Guilty by

Reason of Adolescence, Am. Psychol., December 2003, at 1013. This evidence is

critical for courts to consider when sentencing a juvenile and when laws are being

written about mandatory minimum sentences for juveniles. This science has been

ignored in Michigan.

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D. The recent developments in brain science are influencing this Court’s opinions

by proving the differences between adult and juvenile minds and their

decision-making processes.

Multiple opinions from this Court have been influenced by developments in

juvenile brain science. In Roper, 543 U.S. at 556, the defendant committed firstdegree murder at the age of 17. He was convicted and sentenced to death after he had

turned 18. Id. This Court held that the Eighth and Fourteenth Amendments prohibit

executing an offender who was under the age of 18 at the time of the crime. Id. at 568,

578. This Court cited numerous studies concluding that as an individual matures,

risky behavior or illegal activities tend to cease. Id. at 570. Studies confirm that

juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility[,]’”

which often leads to impulsive decisions. Id. at 569, quoting Johnson, 509 U.S. at 367.

This Court again looked at the difference between juveniles and adults in

Graham, where the defendant was sentenced to probation for crimes committed when

he was 16 years old, one being armed burglary. Graham, 560 U.S. at 53. It was found

that he committed additional crimes while on probation, thus violating his probation.

Id. at 54-55. The trial court revoked his probation and sentenced him to life in prison

for the armed burglary. Id. at 57. This was a life with the possibility of parole

sentence, but there was no practical possibility of release due to Florida abolishing

its parole system. Id. This Court held that the Eighth Amendment prohibits

sentencing a juvenile offender who did not commit homicide to life without parole and

an offender who demonstrates growth, maturity, and rehabilitation must be provided

a meaningful opportunity to obtain release. Id. at 74-75. “[D]evelopments in

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psychology and brain science continue to show fundamental differences between

juvenile and adult minds. For example, parts of the brain involved in behavior control

continue to mature through late adolescence. . . . Juveniles are more capable of change

than are adults, and their actions are less likely to be evidence of ‘irretrievably

depraved character’ than are the actions of adults.” Id. at 68.

This Court noted in Miller, 567 U.S. at 471-472, that its decision was supported

by the scientific studies regarding juvenile brain development that it previously cited

in Roper and Graham. Courts from around the country, including this Court, have all

recognized that a juvenile’s brain requires courts to provide for a meaningful

opportunity for release based on the juvenile’s growth, maturity, and rehabilitation

as he ages. This cannot occur in Michigan because of the mandatory minimum

sentence that must be imposed.

E. The Constitution requires that courts consider the attendant characteristics of

youth when sentencing a juvenile.

Due process is a constitutional guarantee for all people. U.S. Const., amend. V;

U.S. Const., amend. XIV. The mandate of individualized sentencing for juveniles

facing the most serious penalties requires courts to consider a juvenile’s lessened

culpability and greater capacity for change. Miller, 567 U.S. at 465. To ignore this is

to deny due process to juveniles convicted of crimes. In Miller, this Court recognized

the lack of maturity and underdeveloped sense of responsibility underlying the

recklessness and impulsivity typified by juveniles. Id. Further, their lack of wellformed characters was pivotal. Id. This Court explained that common sense, science,

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and social science buttress its decision. Id. Juveniles are different from adults because

of their capacity for change and because of their decreased level of culpability.

Studies have shown that juveniles are not fully mature and should not be held

to the same standards as adults who have reached full maturation. The brain

continues to evolve and mature until the person reaches their mid-twenties. This

Court in Roper stated that a lack of maturity and underdeveloped sense of

responsibility in juveniles results in impetuous decisions and rash actions where

ramifications are not considered. Roper, 543 U.S. at 569. Michigan’s mandatory

sentencing law ignores this science and violates the law.

F. Michigan’s statute precludes courts from considering the attendant

characteristics of youth and engaging in individualized sentencing.

The Michigan Legislature has mandated that a sentence of 25 to 40 years with

a maximum of 60 years is required for a juvenile convicted of first-degree murder who

is not sentenced to life without the possibility of parole. M.C.L. 769.25(9). This

sentence—that requires a minimum of 25 years in prison for Mr. Lewis—ignores this

Court’s mandate that juveniles are different from adults, and it does not provide Mr.

Lewis with a meaningful opportunity for release based on demonstrated

rehabilitation.

In Mr. Lewis’ case, the statute precluded the trial court from individualizing

his sentence and considering his youth and its attendant characteristics once it

decided to sentence him as an adult to prison. This Court’s decisions are based on

“common sense—on what ‘any parent knows’—[and] on science and social science.”

Miller, 567 U.S. at 471; see Roper, 543 U.S. at 569. According to this Court, “those

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findings—of transient rashness, proclivity for risk, and inability to assess

consequences—both lessened a child’s ‘moral culpability’ and enhanced the prospect

that, as the years go by and neurological development occurs, his ‘deficiencies will be

reformed.’” Miller, 567 U.S. at 472, citing Graham, 560 U.S. at 68, quoting Roper, 543

U.S. at 570.

The extent to which his offense was the product of juvenile characteristics,

such as impulsiveness, recklessness, and an underdeveloped sense of responsibility,

was not properly factored in when the sentence was chosen because the trial court

could not do so once it chose to sentence Mr. Lewis as an adult to prison. Mr. Lewis’

purported missteps were in stark contrast to the overall progress that he was making,

but the trial court was required to sentence Mr. Lewis as an adult to a minimum of

25 years for his transgressions.

The facts showing the travesty of sentencing Mr. Lewis to prison for decades

were earlier outlined. Noteworthy facts are that Mr. Lewis was successfully involved

in ongoing individual and group therapy. (R.H., 5.) Mr. Lewis did everything he

possibly could to take classes at Macomb Community College, and he was already

enrolled for classes and ready for the new term to begin. (R.H., 12-13.) He also had

an employment offer at the time he was sentenced to prison. (R.H., 13-14.)

Mr. Lewis’ therapist stated that she did not believe that Mr. Lewis had the

potential for violent conduct. (R.H., 21.) Mr. Lewis had no physical altercations with

anyone, he was not verbally aggressive, and he got along well with his peers and staff.

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(R.H., 21.) Ms. Terry stated that Mr. Lewis had a low risk of re-offending, which is

the lowest possible category. (R.H., 21.)

Doctors from the University of Michigan stated that Mr. Lewis should not be

sentenced as an adult. (Exh. B, 11.) Sentencing Mr. Lewis as an adult would go

against the principle of graduated and proportioned justice. (Exh. B, 11.) When

sentenced by the trial court to prison, Mr. Lewis did not just exhibit the potential for

change—he clearly exhibited that he had already changed and would continue to do

so. He had graduated with his high school diploma, and he was valedictorian of his

class. (Exh. B, 2.) He also had realistic plans to graduate from college. (Exh. B, 2.)

Notably, Mr. Lewis has the capacity to feel connected to and care for others,

and he showed genuine remorse for his actions. (Exh. B, 7.) The October 2016

evaluation highlighted an important characteristic about Mr. Lewis—his resilience.

(Exh. B, 7-8.) His ability to navigate through his childhood and all the other stressors

in his life show this important quality. (Exh. B, 7-8.) Yet the trial court could consider

none of this when sentencing Mr. Lewis as an adult to prison. While it was error for

the trial court to sentence Mr. Lewis as an adult because his purported probation

violations did not rise to the level to warrant that sentence, even if the trial court did

not err in imposing an adult sentence, the requirement of a 25-year sentence is

unconstitutional. The trial court was required to impose a sentence of at least 25

years despite the tremendous demonstrated maturity and rehabilitation that Mr.

Lewis had already exhibited. This violates this Court’s mandates. The statute strips

the trial court of its rightful and constitutional authority, and trial counsel was

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ineffective in not challenging the constitutionality of the statute. There was no

strategic reason to allow Mr. Lewis to be sentenced to decades in prison, and Mr.

Lewis is indeed prejudiced as he serves this onerous sentence. See Strickland v

Washington, 466 US 668, 687-688; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

G. The sentence given to Mr. Lewis is unconstitutional because it violates the

prohibition against cruel and unusual punishment.

The Eighth Amendment of the United States Constitution prohibits the

infliction of cruel and unusual punishment. The proportionality of the punishment to

the offense and the offender is the test. Graham, 560 U.S. at 59. The test is whether

the punishment exceeds that which is suitable to the crime. Id. “An offender’s age is

relevant to the Eighth Amendment, and criminal procedure laws that fail to take

defendants’ youthfulness into account at all would be flawed.” Id. at 76.

This Court’s rulings regarding sentencing practices for juvenile offenders rest

squarely on this Court’s acknowledgment and acceptance of new science. In light of

this new science, the distinctive and transitory mental traits of juvenile offenders,

when analyzed under the parameters of the Eighth Amendment’s ban on cruel and

unusual punishment, has led this Court to create the guiding principle that juvenile

offenders are “constitutionally different from adults for sentencing purposes.” Miller,

567 U.S. at 471.

“Juveniles are more capable of change than are adults, and their actions are

less likely to be evidence of ‘irretrievable depraved character’ than are the actions of

adults.” Graham, 560 U.S. at 68; see also Roper, 543 U.S. at 570. This Court went on

to say that “[f]rom a moral standpoint it would be misguided to equate the failings of

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a minor with those of an adult, for a greater possibility exists that a minor’s character

deficiencies will be reformed.” Roper, U.S. 551 at 570. In Graham, 560 U.S. at 68, it

was recognized that juveniles have lessened culpability and are less deserving of the

most severe punishments because they lack the maturity and responsibility that

adults have. They are more susceptible to negative influences and outside pressures,

and their characters are not well-formed. Id. Mr. Lewis’ sentence is unconstitutional

because his sentence does not take into account the Miller factors, including the lack

of maturity and responsibility that he had as a thirteen-year-old boy.

The Eighth Amendment guarantees stem from the fundamental precept that

a penalty should be individually proportioned to the offense and the offender. Miller,

567 U.S. at 469. The statute at issue, however, precludes the trial court from taking

into account these factors by mandating a minimum sentence of 25 years.

The Washington Supreme Court addressed the issue of statutory mandates

related to sentencing for juveniles in Washington v. Houston-Sconiers, 391 P.3d 409,

414 (Wash. 2017). The court stated that the sentencing court’s hands were not tied

because under the Eighth Amendment, sentencing courts must have absolute

discretion when sentencing juveniles in adult court. Id. The mandatory nature of the

sentence violated the Eighth Amendment. Id. at 422. The Iowa Supreme Court

reached a similar result when holding that all mandatory minimum sentences for

juveniles violate the cruel and unusual punishment clause of the Iowa Constitution.

Iowa v. Lyle, 854 N.W.2d 378, 400 (Iowa 2014). “Mandatory minimum sentences for

juveniles are simply too punitive for what we know about juveniles.” Id. The Iowa

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Supreme Court aptly noted, “the heart of the constitutional infirmity with the

punishment imposed in Miller was its mandatory imposition, not the length of the

sentence. The mandatory nature of the punishment establishes the constitutional

violation.” Id. at 401. “Miller is properly read to support a new sentencing framework

that reconsiders mandatory sentencing for all children. Mandatory minimum

sentencing results in cruel and unusual punishment due to the differences between

children and adults. This rationale applies to all crimes, and no principled basis exists

to cabin the protection only for the most serious crimes.” Id. at 402.

Historically acceptable sanctions resulting in the harshest sentences are now

under constitutional scrutiny throughout the country when applied to juvenile

offenders. The Iowa Supreme Court ruled that a juvenile offender serving a 52½ year

sentence violated Miller protections. Iowa v. Null, 836 N.W.2d 41, 71 (Iowa 2013); see

also Ohio v. Moore, 76 N.E.3d 1127, 1141 (Ohio 2016); New Jersey v. Zuber, 152 A.3d

197, 215 (N.J. 2017). Critically, in another case, a juvenile offender serving life with

parole eligibility after 25 years was not consistent with Miller because the state’s

parole policies had no protections for juvenile offenders. Atwell v. Florida, 197 So. 3d

1040, 1042 (Fla. 2017).

There is no doubt that Mr. Lewis has now experienced cruel and unusual

punishment in violation of his Eighth Amendment rights. Precedent from this Court

has established that juveniles have an expectation of release from prison if they

demonstrate maturity and rehabilitation, but Mr. Lewis’ sentence does not allow for

his demonstrated rehabilitation to constitutionally be taken into account.

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While trial counsel fought vigorously for Mr. Lewis to not be sentenced as an

adult, it was objectively unreasonable to not challenge the constitutionality of the

statute. It violates the Eighth Amendment to force a trial court to sentence a juvenile

as an adult to a minimum of 25 years without allowing the trial court the discretion

to consider the attributes of youth. Mr. Lewis has been prejudiced because he is

serving a lengthy prison sentence that violates the mandates that require courts to

consider the mitigating factors of youth. This was stripped from the trial court and

must now be rectified.

CONCLUSION

Mr. Lewis’ remorse for the loss of Ms. Johnson’s life is genuine. He lives every

day knowing that, as a juvenile, he played a role in a situation that resulted in Ms.

Johnson’s tragic and untimely death. He does not in any way intend to minimize this

loss., but his sentence is a violation of the law and unconstitutional. By requiring the

trial court to impose a minimum of 25 years in prison, the trial court was stripped of

its ability to sentence Mr. Lewis in accord with the mandates of this Court.

Respectfully submitted,

CHARTIER & NYAMFUKUDZA, P.L.C.

Dated: 09/25/2020

By: /s/MARY CHARTIER

Mary Chartier

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