PEOPLE v STOVALL

Docket No. 162425. Argued March 2, 2022 (Calendar No. 3). Decided July 28, 2022.

In 1992, Montez Stovall pleaded guilty in the Wayne Circuit Court to second-degree 

murder, MCL 750.317, and to possession of a firearm during the commission of a felony (felonyfirearm), MCL 750.227b. Defendant fatally shot two men in 1991 when he was a juvenile, and he 

pleaded guilty in exchange for the dismissal of first-degree murder charges. Pursuant to the plea 

agreement, defendant was sentenced to life in prison with the possibility of parole (parolable life) 

for murder, to be served consecutively to the mandatory two-year sentence for felony-firearm. 

Defendant moved to withdraw his plea in 1993, but the trial court denied the motion. Defendant 

later filed multiple motions for relief from judgment, which were also denied. In 2017, defendant 

again moved for relief from the judgment, arguing that his plea was illusory and that his sentences 

violated the Eighth Amendment of the United States Constitution pursuant to Miller v Alabama, 

567 US 460 (2012), and Montgomery v Louisiana, 577 US 190 (2016), because his sentences

effectively denied him a meaningful opportunity for release. The trial court, Kelly Ramsey, J.,

denied the motion, and the Court of Appeals denied leave to appeal. Defendant sought leave to 

appeal in the Supreme Court, which remanded the case to the Court of Appeals as on leave granted. 

504 Mich 892 (2019). On remand, the Court of Appeals, SAWYER and METER, JJ. (GLEICHER, 

P.J., dissenting), affirmed the decision of the trial court. 334 Mich App 553 (2020). Defendant 

again sought leave to appeal in the Supreme Court, and the Supreme Court granted the application. 

507 Mich 938 (2021).

In an opinion by Chief Justice MCCORMACK, joined by Justices BERNSTEIN, CAVANAGH,

and WELCH, the Supreme Court held:

A sentence of life in prison with the possibility of parole for a defendant who committed 

second-degree murder while a juvenile constitutes cruel or unusual punishment and therefore 

violates Const 1963, art 1, § 16.

1. Defendant’s successive motion for relief from judgment was not barred by MCR 

6.502(G)(2) because it was based on a retroactive change in law. A retroactive change in the law 

must serve only as a foundation or base for a defendant’s claim to overcome the procedural bar in 

the court rule. A narrower reading of the rule requiring that the defendant’s claims fall squarely 

within a retroactive change in law would effectively merge the procedural hurdle in MCR 

Michigan Supreme Court

Lansing, Michigan

Syllabus Chief Justice:

Bridget M. McCormack

Justices:

Brian K. Zahra

David F. Viviano

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh

Elizabeth M. Welch

This syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader.

Reporter of Decisions:

Kathryn L. Loomis
6.502(G)(2) with the merits inquiry in MCR 6.508(D), rendering one of those provisions nugatory. 

Because Miller and Montgomery served as the foundation or base for defendant’s challenges to 

the constitutionality of his sentences, his motion was based on a retroactive change in law sufficient 

to overcome the procedural bar in MCR 6.502(G).

2. A defendant may be entitled to withdraw a guilty plea if the plea bargain was illusory, 

meaning that the defendant received no benefit from the agreement. Contrary to defendant’s 

assertion here, it was not the case that he received no benefit from the plea agreement. Without a 

plea agreement, defendant could nevertheless have been sentenced to life without the possibility 

of parole if he had been convicted of first-degree murder; he just would have been entitled to a 

Miller hearing after Montgomery was decided in 2016. Defendant received the benefit for which 

he bargained: the possibility of being paroled that a conviction of first-degree murder might not 

have allowed.

3. The Eighth Amendment of the United States Constitution provides that “cruel and

unusual punishments” shall not be inflicted on criminal defendants. In Miller, the Court held that 

mandatory sentences of life without the possibility of parole violate the Eighth Amendment and 

that a sentencing court must have discretion to sentence a juvenile offender to a lesser sentence 

after considering the mitigating qualities of youth. Defendant’s Eighth Amendment challenge to 

his sentences under Miller failed; under Montgomery, a parolable life sentence for a juvenile 

offender does not violate the Eighth Amendment. However, the Michigan Constitution is different 

from the Eighth Amendment. Const 1963, art 1, § 16 bars “cruel or unusual punishments,” and

the textual difference between the Eighth Amendment and Const 1963, art 1, § 16 called for a 

broader interpretation of the Michigan prohibition than its federal counterpart. When determining 

whether a sentence is cruel or unusual, the trial court relies on a test set forth by the Michigan 

Supreme Court in People v Bullock, 440 Mich 15 (1992), which assesses: (1) the severity of the 

sentence imposed compared to the gravity of the offense, (2) the penalty imposed for the offense 

compared to penalties imposed on other offenders in the same jurisdiction, (3) the penalty imposed 

for the offense in Michigan compared to the penalty imposed for the same offense in other states, 

and (4) whether the penalty imposed advances the penological goal of rehabilitation. As applied 

to this case, regarding the first and second factors of the test, a parolable life sentence is the most 

severe penalty that can be imposed for second-degree murder, and it is particularly severe when 

imposed on a juvenile. The severity of the sentence was heightened by the fact that juveniles who 

committed second-degree murder could receive the same sentence as juveniles who committed

first-degree murder with less process than the juveniles convicted of the more serious crime, 

because sentencing courts were not required to consider the mitigating qualities of youth before 

imposing sentence on a juvenile offender convicted of second-degree murder. Further, the 

Michigan Legislature, in enacting MCL 769.25 and MCL 769.25a, chose not to make parolable 

life the applicable sentence for juveniles who commit first-degree murder. Because this sentence 

was not on the table for the most serious crime a juvenile could commit, permitting it for a less 

serious offense was disproportionate and therefore cruel or unusual. Considering the third Bullock

factor, the clear national trend was toward treating juveniles less harshly than adults and extending 

Miller beyond the context of mandatory life without the possibility of parole, with many states not 

allowing parolable life sentences for adult or juvenile offenders. Therefore, the third Bullock factor 

supported finding a parolable life sentence for a juvenile who committed second-degree murder to 

be cruel or unusual. Regarding the fourth Bullock factor, although a parolable life sentence may 
advance the penological goal of rehabilitation in theory, the question for juvenile offenders was 

whether such a sentence provided a meaningful opportunity to obtain release based on 

demonstrated maturity and rehabilitation. Parolable life sentences for juveniles do not advance 

the sentencing goal of rehabilitation because prisoners who have received this sentence are given 

lower priority for participation in educational and rehabilitative programming, which is especially 

necessary for juvenile offenders, and because a juvenile convicted of second-degree murder could 

receive a meaningful opportunity for release after a longer period of incarceration than the 

maximum sentence served by a juvenile convicted of first-degree murder. Finally, whether the 

Parole Board practically considered whether to grant parole to an offender serving a parolable life 

sentence was subject to changing executive branch policies. An offender’s meaningful opportunity 

to gain release is to be measured in terms of the offender’s demonstrated maturity and 

rehabilitation and should not be subject to the whims of executive branch policy. Under the test 

in Bullock, a parolable life sentence for a defendant who committed second-degree murder as a 

juvenile violated Const 1963, art 1, § 16.

Sentence for second-degree murder conviction vacated and case remanded to the Wayne 

Circuit Court for further proceedings.

Chief Justice MCCORMACK, concurring, wrote separately to address Justice ZAHRA’s 

suggestion that the Supreme Court should revisit its caselaw interpreting Const 1963, art 1, § 16. 

The Supreme Court has long held that the textual difference between the federal and state 

constitutional provisions means that Article 1, § 16 provides slightly broader protection than the 

Eighth Amendment. Justice ZAHRA would hold that Article 1, § 16 only prohibited punishments 

that would have been considered cruel or unusual in 1963. In fact, it was likely that the original 

meaning of the prohibition in Article 1, § 16 was to consider standards of decency over time. 

Additionally, the United States Supreme Court had already implemented its “evolving standards 

of decency” approach to interpreting the Eighth Amendment when the state Constitution was 

ratified, so the fact that the ratifiers used the same words as the Eighth Amendment in Article 1, 

§ 16 but with a more flexible conjunction indicated that they did not intend to reject the approach 

of the United States Supreme Court. Further, the assumption that, by trying to understand the 

text’s original meaning, judges could set aside their own policy preferences was flawed. 

“Original” understandings of constitutional provisions were subject to differing interpretations, 

and allowing judges to reconsider long-settled precedent in order to consider the original meanings 

of constitutional provisions would render stare decisis irrelevant.

Justice ZAHRA, dissenting, joined by Justice VIVIANO (except as to footnote 9) and Justice 

CLEMENT (except as to footnotes 24 and 25), agreed with the majority that defendant’s plea and 

sentencing agreements were not illusory or invalid and that defendant had entered into them 

knowingly, voluntarily, and intelligently. However, he disagreed that defendant’s parolable life 

sentences constituted cruel or unusual punishment under Const 1963, art 1, § 16. In Montgomery, 

the Supreme Court explicitly approved of parolable life sentences for juvenile homicide offenders 

as a remedy for the mandatory life sentences held unconstitutional under Miller. Miller mandated 

only that the sentencing court consider an offender’s youth and attendant characteristics before 

imposing life without the possibility of parole. Because defendant did not receive life without the 

possibility of parole, his Eighth Amendment challenge lacked merit. Justice ZAHRA further 

asserted that the Michigan Constitution did not support defendant’s claim that his sentences were 
constitutionally disproportionate pursuant to the test set forth by the Michigan Supreme Court in 

People v Lorentzen, 387 Mich 167 (1992), and Bullock. First, the severity of a parolable life 

sentence was proportionate to the gravity of a second-degree murder conviction. Second-degree 

murder was the second-most serious crime a person could commit under Michigan law, so it was 

logical that it was punishable by the second-most serious punishment, a parolable life sentence. 

With regard to the second factor, parolable life was not an uncommon sentence for serious crimes 

committed in Michigan, and Michigan law penalized some nonhomicide offenses with parolable 

life sentences, demonstrating that this punishment was not constitutionally disproportionate for 

homicides. Third, parolable life sentences were common in other states, and the majority opinion 

inappropriately relied on the law in jurisdictions that extended Miller to de facto life sentences, 

which was not what was at issue here. Fourth, defendant’s sentences served the penological goal 

of rehabilitation because he was eligible for parole after 10 years and able to be reconsidered for 

parole every five years after that. Therefore, none of the factors in the Lorentzen/Bullock test 

supported the conclusion that a parolable life sentence was constitutionally disproportionate when 

imposed on a juvenile homicide offender, so defendant did not show that his sentence violated the 

Eighth Amendment or Const 1963, art 1, § 16. The majority opinion’s application of the 

Lorentzen/Bullock factors was flawed in several respects. First, the majority conflated sentences 

of parolable life with nonparolable life sentences and rendered the distinction made between the 

two sentences by the Montgomery Court meaningless. Next, the majority improperly secondguessed the Legislature’s policy decisions by using the Legislature’s chosen Miller remedy, MCL 

769.25 and MCL 769.25a, as a justification for finding parolable life sentences constitutionally

disproportionate. Further, the facts of defendant’s case demonstrate why his parolable life 

sentences are not more severe than the term-of-years sentences imposed under MCL 769.25 and 

MCL 769.25a. Finally, the majority based its contention that parolable life sentences for juvenile 

homicide offenders do not advance the penological goal of rehabilitation on its assertion that those 

sentenced to parolable life had less access to rehabilitative programming than those serving termof-years sentences and on its assertion that the decision to grant parole is subject to the changing 

policies of the Parole Board. But the Parole Board was now required to consider the distinctive 

attributes of youth recognized in Miller, and the Board’s policy directives required it to give 

prisoners who were denied parole a notice of decision setting forth the factors the Board considered 

and the corrective actions the prisoner could take to improve the probability of being granted parole 

in the future. Therefore, those sentenced to parolable life had the tools necessary to maximize 

their prospects for release. Miller applied only to life-without-parole sentences and required only 

a meaningful opportunity to obtain release. Because Montgomery concluded that parolable life 

sentences provided this meaningful opportunity, Justice ZAHRA would not have entertained 

defendant’s request to redefine what constituted a meaningful opportunity. In this case and the 

other sentencing cases decided at the same time, the majority departed from the Court’s past 

jurisprudence and improperly usurped the role of the Legislature.

Justice VIVIANO, dissenting, joined Justice ZAHRA’s dissent except as to footnote 9. Justice 

VIVIANO disagreed with the majority and with Justice ZAHRA’s statement in footnote 9 that 

defendant had satisfied the procedural requirements to file a successive motion for relief from 

judgment under MCR 6.502(G). The majority held that defendant’s motion satisfied the 

procedural bar in MCR 6.502(G) because it was “based on a retroactive change in law.” But 

defendant relied on Miller and Montgomery, both of which are inapplicable to defendants 

sentenced to life with the possibility of parole. Reliance on an inapplicable holding was not a true 
basis or foundation to satisfy the court rule, and the majority’s holding would allow defendants to 

satisfy the procedural requirements by citing a case with retroactive effect, regardless of whether 

the cited caselaw actually entitled them to any relief. The relief requested by defendant in his 

motion did not depend on recognition of the rule announced in Miller and made retroactive in 

Montgomery, and the majority’s interpretation of MCR 6.502(G) would incentivize criminal 

defendants to file increasingly meritless successive motions for relief from judgment, which would 

further burden already backlogged trial courts. Additionally, even if defendant could overcome 

the procedural bar in the court rule, his constitutional argument would nevertheless fail for the 

reasons stated by Justice ZAHRA.

Justice CLEMENT, dissenting, joined Justice ZAHRA’s dissent except as to footnotes 24 and 

25 and except insofar as Justice ZAHRA’s dissent conflicted with her opinion in People v Boykin, 

___ Mich ___; ___ NW2d ___ (2022) (Docket Nos. 157738 and 158695) (CLEMENT, J., concurring 

in part and dissenting in part).
 FILED July 28, 2022 

S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN, 

Plaintiff-Appellee, 

v No. 162425

MONTEZ STOVALL,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH 

MCCORMACK, C.J. 

We consider whether the defendant’s life sentence with the possibility of parole for 

second-degree murder, imposed for a crime committed when he was a juvenile, violates 

Article 1, § 16 of the Michigan Constitution. That provision, unlike its federal counterpart, 

forbids cruel or unusual punishment, and our test from People v Lorentzen, 387 Mich 167; 

194 NW2d 827 (1972), and People v Bullock, 440 Mich 15, 33-34; 485 NW2d 866 (1992), 

governs our review. Applying that test, we conclude that the defendant’s sentence violates 

Michigan Supreme Court

Lansing, Michigan

OPINION Chief Justice:

Bridget M. McCormack 

Justices:

Brian K. Zahra 

David F. Viviano 

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh

Elizabeth M. Welch
2

the prohibition against cruel or unusual punishment in Const 1963, art 1, § 16, so we 

reverse the Court of Appeals, vacate the defendant’s sentence, and remand to the Wayne 

Circuit Court for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

In 1991, while he was a juvenile, the defendant fatally shot two men. He pled guilty 

in 1992 in two separate files to one count each of second-degree murder, MCL 750.317,

and possession of a firearm during the commission of a felony (felony-firearm), MCL 

750.227b, in exchange for the dismissal of first-degree murder charges. The plea deal also 

included a sentence agreement for life in prison with the possibility of parole (parolable 

life) for murder, consecutive to the mandatory two-year term for felony-firearm. In 1993, 

the defendant moved to withdraw his plea. The trial court denied that motion. The Court 

of Appeals affirmed, and this Court denied leave to appeal in 1994. Defendant 

subsequently filed multiple motions for relief from judgment, none of which succeeded.

The defendant filed this successive motion for relief from judgment in 2017, arguing 

that his plea was illusory and his sentences violate the Eighth Amendment of the United

States Constitution under Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407

(2012), and Montgomery v Louisiana, 577 US 190; 136 S Ct 718; 193 L Ed 2d 599 (2016), 

because he is effectively being denied a meaningful opportunity for release. The trial court 

denied the motion, concluding that despite the fact that the Parole Board is following 

stricter procedures than when the defendant entered into his plea, he still has a chance to

be released, and his plea was not illusory. The Court of Appeals denied leave to appeal. 
3

The defendant appealed here, and this Court remanded the case to the Court of 

Appeals as on leave granted. People v Stovall, 504 Mich 892 (2019). On remand, a 

majority of the Court of Appeals affirmed the decision of the trial court in a published 

opinion. People v Stovall, 334 Mich App 553; 965 NW2d 264 (2020). Judge GLEICHER

dissented and would have remanded for a resentencing hearing consistent with Miller

because she concluded that the defendant is serving a de facto sentence of life without the 

possibility of parole (LWOP) with no individualized consideration of the characteristics of 

youth. Id. at 572-580 (GLEICHER, P.J., dissenting).

The defendant again appealed here, repeating his same arguments. We granted 

leave to appeal and directed the parties to address

(1) whether the defendant’s parolable life sentences for second-degree 

murder were the result of an illusory plea bargain; (2) whether the 

defendant’s sentences violate the prohibition against “cruel and unusual 

punishments” found in the Eighth Amendment to the United States 

Constitution, and/or the prohibition against “cruel or unusual punishment” 

found in Const 1963, art 1, § 16, where he was under the age of 18 at the time

of the offenses; (3) whether the Parole Board’s “life means life” policy 

renders the defendant’s sentences unconstitutional under Miller v Alabama, 

567 US 460 (2012), and Montgomery v Louisiana, 577 US 190 (2016); (4) 

whether, pursuant to Miller and Montgomery, the trial court was required to 

take the defendant’s youth into consideration when accepting his plea and 

ruling on his motion for relief from judgment; and (5) whether the Parole 

Board is similarly required to take his youth into consideration when

evaluating him for release on parole.

People v Stovall, 507 Mich 938 (2021). In light of our rulings below, we decline to address 

issues (3), (4), and (5) from our grant order.
4

II. PROCEDURAL BAR IN MCR 6.502(G)

The prosecution argues that the defendant’s successive motion for relief from 

judgment is barred by MCR 6.502(G) because the defendant’s motion is not “based on a 

retroactive change in law.” See MCR 6.502(G)(2). We disagree; as Justice CLEMENT said 

in her concurring statement in People v Manning, 506 Mich 1033, 1038 (2020) (CLEMENT,

J., concurring), the retroactive change in law must only serve as a “foundation” or “base” 

for a defendant’s claim to overcome the procedural bar in MCR 6.502(G)(2). Reading the 

rule more narrowly to require that the defendant’s claims fall squarely within a retroactive 

change in law would effectively merge the procedural hurdle in MCR 6.502(G)(2) with the 

merits inquiry in MCR 6.508(D), rendering one of those provisions nugatory. Manning,

506 Mich at 1039 (CLEMENT, J., concurring), quoting Apsey v Mem Hosp, 477 Mich 120, 

127; 730 NW2d 695 (2007) (“[N]o word should be treated as surplusage or made 

nugatory.”).

Because Miller and Montgomery serve as the “foundation” or “base” for the 

defendant’s challenges to the constitutionality of his sentences, his motion is “based on a 

retroactive change in law” and therefore overcomes the procedural bar in MCR 6.502(G).1

 1 The defendant also argues that his motion involves a “claim of new evidence that was not 

discovered before the first such motion [for relief from judgment],” satisfying the other 

exception to the procedural bar in MCR 6.502(G). See MCR 6.502(G)(2). Given our 

conclusion that the defendant’s motion is “based on a retroactive change in law,” we 

decline to address this argument. 
5

III. ANALYSIS

A. ILLUSORY PLEA

The defendant first asserts that his plea was illusory because he believed that 

pleading guilty to second-degree murder was the only way to avoid spending his life in 

prison, but under Miller and Montgomery, mandatory LWOP was outside the power of the 

state to impose. “A defendant may be entitled to withdraw a guilty plea if the bargain on 

which the plea was based was illusory, meaning that the defendant received no benefit from 

the agreement.” People v Harris, 224 Mich App 130, 132; 568 NW2d 149 (1997). 

We disagree with the defendant that he received no benefit from his plea agreement. 

As the prosecution notes, the defendant could have still been sentenced to LWOP had he 

been convicted of first-degree murder; he just would have been entitled to a Miller hearing 

in 2016, after Montgomery was decided. So the defendant still received the benefit for 

which he bargained: the possibility of being paroled that a first-degree murder conviction 

might not have allowed. Thus, it is not the case that “the defendant received no benefit 

from the agreement.” Harris, 224 Mich App at 132.2

 2 Defendant’s citation of People v Bollinger, 224 Mich App 491, 493; 569 NW2d 646 

(1997), is nominally on point but ultimately distinguishable. In Bollinger, the defendant 

pled guilty to avoid a habitual-offender enhancement that the state lacked any authority to 

enforce. Id. at 491-492. Thus, in both that case and this one, the defendant pled guilty to 

avoid a penalty that the prosecutor did not have the authority to pursue. But in Bollinger, 

the prosecutor agreed as part of the plea agreement to forgo prosecuting the defendant as a 

habitual offender, but it lacked any authority to do so because its habitual-offender notice 

was not timely filed. Id. at 492-493. Here, the prosecutor could have still sought a firstdegree murder conviction and LWOP even if the defendant had been prosecuted after 

Miller; LWOP simply would not have been mandatory. 
6 

B. CONSTITUTIONALITY OF PAROLABLE LIFE SENTENCE 

Whether a defendant’s sentence constitutes cruel and/or unusual punishment under 

the Eighth Amendment of the United States Constitution or Article 1, § 16 of the Michigan 

Constitution are questions of constitutional law that we review de novo. People v 

Lockridge, 498 Mich 358, 373; 870 NW2d 502 (2015). That means that we review them 

independently, with no required deference to the trial court. People v Beck, 504 Mich 605, 

618; 939 NW2d 213 (2019). 

The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor 

excessive fines imposed, nor cruel and unusual punishments inflicted.” US Const, Am 

VIII. In Miller, the United States Supreme Court held that mandatory LWOP sentences 

for juveniles violate the Eighth Amendment. Rather, a sentencer must have discretion to 

impose a lesser sentence on a juvenile after considering “the mitigating qualities of youth.” 

Miller, 567 US at 476, quoting Johnson v Texas, 509 US 350, 367; 113 S Ct 2658; 125 L 

Ed 2d 290 (1993). The Court noted “three significant gaps between juveniles and adults”: 

(1) Children have a lack of maturity and an underdeveloped sense of responsibility, leading 

to recklessness, impulsivity, and risk-taking; (2) children are more vulnerable to negative 

influences and outside pressures from their family and peers, have limited control over 

their own environment, and lack the ability to extricate themselves from horrific, crimeproducing settings; and (3) a child’s traits are less fixed than those of an adult, and a child’s 

actions thus are less likely to be evidence of irretrievable depravity. Miller, 567 US at 471. 

In Montgomery, the Court held that Miller announced a substantive rule of 

constitutional law; therefore, it applied retroactively to cases on collateral review. 
7 

Defendant’s challenge to his parolable life sentence under the Eighth Amendment 

fails—Montgomery tells us so explicitly. See Montgomery, 577 US at 212 (“A State may 

remedy a Miller violation by permitting juvenile homicide offenders to be considered for 

parole, rather than by resentencing them.”). The United States Supreme Court wouldn’t 

offer up a Miller remedy that it believed violated the Eighth Amendment. And if there 

were any doubt, Jones v Mississippi, 593 US ___; 141 S Ct 1307; 209 L Ed 2d 390 (2021) 

eliminated it. See id. at ___; 141 S Ct at 1314 (rejecting the argument that “Miller requires 

more than just a discretionary sentencing procedure”); id. at ___; 141 S Ct at 1321 (“Miller

held that a State may not impose a mandatory life-without-parole sentence on a murderer 

under 18.”). 

The Michigan Constitution, however, is different. Article 1, § 16 of the Michigan 

Constitution provides that “[e]xcessive bail shall not be required; excessive fines shall not 

be imposed; cruel or unusual punishment shall not be inflicted; nor shall witnesses be 

unreasonably detained.” The Michigan Constitution, therefore, forbids unusually 

excessive imprisonment. Lorentzen, 387 Mich at 172. In Bullock, 440 Mich at 30-35, this 

Court held that the textual difference between Michigan’s prohibition on “cruel or unusual 

punishment” and the Eighth Amendment’s bar on “cruel and unusual punishments,” the 

historical circumstances when the Eighth Amendment was ratified, and longstanding 

Michigan precedent called for a broader interpretation of Michigan’s prohibition against 

“cruel or unusual punishment” than the Supreme Court’s interpretation of the federal 

counterpart. 

The Court applied a four-part test adopted in Lorentzen, 387 Mich 167, for 

determining whether a sentence is cruel or unusual. Bullock, 440 Mich at 33-34. That test
8 

assesses (1) the severity of the sentence imposed compared to the gravity of the offense, 

(2) the penalty imposed for the offense compared to penalties imposed on other offenders 

in Michigan, (3) the penalty imposed for the offense in Michigan compared to the penalty 

imposed for the same offense in other states, and (4) whether the penalty imposed advances 

the penological goal of rehabilitation. Bullock, 440 Mich at 33-34, citing Lorentzen, 387 

Mich at 176-181. That test also governs whether the defendant’s parolable life sentence 

violates Const 1963, art 1, § 16.

As for the first and second Bullock factors (which go hand in hand here), a parolable 

life sentence is the most severe penalty that can be imposed for second-degree murder.3 

 

3 A trial court could impose a long term-of-years sentence that would theoretically deprive 

a defendant of any chance of being paroled during their lifetime. But such a defendant, 

unlike a parolable lifer, would have an early release date and therefore be given higher 

priority for scarce rehabilitative and educational programming. See generally In re Parole 

of Elias, 294 Mich App 507, 530-531; 811 NW2d 541 (2011) (describing how a prisoner’s 

participation in programming is considered in the parole guidelines); see also People v 

Johnson, unpublished per curiam opinion of the Court of Appeals, issued June 18, 2019 

(Docket No. 344322), pp 8-9 (“[P]arolable lifers do not get the benefit of the parole 

guidelines until after an interview with a member of the parole board, after the sentencing

judge or the judge’s successor has had an opportunity to register any objections, and after 

a public hearing of the type contemplated for prisoners seeking pardon or commutation.”). 

The defendant asserts, and the prosecution does not dispute, that his parole guidelines have 

never been scored. 

Other considerations also make a term-of-years sentence less harsh than a life

sentence. For example, a prisoner subject to a term-of-years sentence is generally considered 

for parole at no more than two-year intervals, but a parolable lifer is reviewed only at fiveyear intervals after serving 15 years of their sentence. Compare Michigan Department of 

Corrections, Parole Process, PD 06.05.104 (April 1, 2022), p 5, ¶ AA (providing for parole 

review “at intervals not to exceed 24 months” except in limited circumstances), available at 

<https://www.michigan.gov/documents/corrections/PD040122_06_05_104_750614_7.pdf> 

[https://perma.cc/T345-7QLN], with MCL 791.234(8)(b) (providing that a prisoner 

sentenced to imprisonment for life is reviewed for parole after serving 15 years of their 
9 

MCL 750.317. And it is particularly severe when imposed on a juvenile, given the 

important mitigating ways that children are different from adults. While second-degree 

murder is a grave offense, the law recognizes graver yet. 

The severity of the sentence is also heightened by the fact that unlike courts 

sentencing juveniles who commit first-degree murder, sentencing courts who sentenced 

defendants like Mr. Stovall—those convicted of second-degree murder committed while 

they were juveniles—have not been required to consider the mitigating qualities of youth 

identified in Miller before imposing sentence. But see People v Boykin, ___ Mich ___, 

___; ___ NW2d ___ (2022) (Docket No. 157738); slip op at 13 (courts sentencing juveniles 

who commit murder must consider the mitigating characteristics of youth when exercising 

their discretion to impose any sentence). In other words, while juveniles who commit firstdegree murder will always receive a significant procedural safeguard before being 

sentenced to die in prison, see People v Taylor, ___ Mich ___; ___ NW2d ___ (2022) 

(Docket No. 154994); slip op at 8, defendants like Mr. Stovall who commit second-degree 

murder as juveniles are at risk to serve precisely the same sentence without that safeguard.4 

 

sentence “and every 5 years thereafter”). We express no opinion on whether a long term-ofyears sentence imposed on a juvenile would violate Const 1963, art 1, § 16. 

4 This failure is not mitigated by the Parole Board’s recent adoption of provisions requiring 

the board to consider the mitigating characteristics of youth, i.e., the Miller factors, when 

considering a defendant for parole. See PD 06.05.104, p 3, ¶ N. While the Parole Board’s 

consideration of these mitigating characteristics is certainly in harmony with recent 

advances in the way we understand how youth impacts behavior and culpability, Miller

requires that sentencing courts consider the mitigating characteristics of youth before 

imposing a discretionary sentence on juveniles who would otherwise be subject to a 

mandatory LWOP sentence. Having the Parole Board consider those characteristics 

decades later in deciding whether to grant parole to the defendant is a doubly watered-
10 

That is, they may receive the same sentence with less process although they have been 

convicted of a less serious offense. 

As a practical matter, a parolable life sentence for second-degree murder is often 

more severe than the minimum sentences now given to most juveniles who commit firstdegree murder: 25 to 40 years. In enacting MCL 769.25 and MCL 769.25a, the 

Legislature chose not to make a parolable life sentence the applicable sentence for 

juveniles who commit first-degree murder, even though the United States Supreme Court 

blessed parolable life as a constitutionally permissible means of accommodating its 

decision in Miller. See, e.g., Miller, 567 US at 489; Montgomery, 577 US at 212. When

a sentence is not on the table for the most serious offense a juvenile can commit, see 

People v Carp, 496 Mich 440, 514; 852 NW2d 801 (2014) (“[F]irst-degree murder is 

almost certainly the gravest and most serious offense that an individual can commit under 

the laws of Michigan[.]”), cert gtd and opinion vacated sub nom on other grounds Carp 

v Michigan, 577 US 1186 (2016), permitting it for a less serious offense is

disproportionate and therefore cruel or unusual. 

Comparing the maximum penalty that the Legislature allows to be imposed against 

a juvenile convicted of first-degree murder to the maximum penalty it allows to be 

imposed against a juvenile convicted of second-degree murder is also instructive. See, 

e.g., People v Babcock, 469 Mich 247, 263; 666 NW2d 231 (2003) (explaining that the 

Legislature roots both minimum and maximum sentences in the principle of 

proportionality). Without the safeguards of (1) the prosecution timely moving the trial 

 

down version of what Miller requires and is no substitute for the judiciary’s responsibility 

to ensure that sentences are constitutionally proportionate when they are imposed. 
11 

court to sentence a juvenile convicted of first-degree murder to LWOP; (2) the trial court 

conducting a hearing focused on the Miller factors; and (3) the trial court determining that 

the particular offender deserves LWOP, the maximum release date for a juvenile convicted 

of first-degree murder is typically 60 years. See MCL 769.25(4) or (9); MCL 

769.25a(4)(c). 

A hypothetical shows how this works. Consider Defendant A, who commits murder 

as a juvenile, is arrested on his seventeenth birthday, and is detained until he is ultimately 

convicted of first-degree murder and sentenced to a term-of-years sentence under MCL 

769.25(4) or (9). Under the statute, which imposes a 60-year maximum for first-degree 

murder, on Defendant A’s 77th birthday, he reaches his maximum discharge date and must 

be released from the Department of Corrections; the Parole Board has no discretion to keep 

Defendant A incarcerated even one more day. 

Now consider Defendant B, who also commits murder as a juvenile, is arrested on 

his seventeenth birthday, is detained until he is instead convicted of second-degree murder

and sentenced to parolable life, and who is not paroled during the first 60 years of his 

sentence. On Defendant B’s 77th birthday, unlike Defendant A, there is no guarantee that 

he will be released from the custody of the Department of Corrections. The same is true 

the next year. And the next. 

In short, in enacting MCL 769.25 and MCL 769.25a, the Legislature decided that 

the Parole Board has a limited window of authority for deciding when a juvenile convicted 

of the most serious crimes may be released. For many such offenders, the Parole Board’s 

authority extends only to their sixtieth year of incarceration. That the Parole Board’s 
12 

authority over juvenile offenders convicted of lesser offenses extends further into their term 

of incarceration is evidence of disproportionality. 

Turning to the third Bullock factor, there is a clear national trend toward treating 

juveniles less harshly than adults and extending Miller beyond just the mandatory LWOP 

context. See, e.g., McKinley v Butler, 809 F3d 908, 911 (CA 7, 2016); People v Franklin, 

63 Cal 4th 261, 276; 370 P3d 1053 (2016); Casiano v Comm’r of Correction, 317 Conn 

52; 115 A3d 1031, 1045 (2015); People v Buffer, 2019 IL 122327, ¶ ¶ 25-27; 137 NE3d 

763; State v Null, 836 NW2d 41, 71 (Iowa, 2013); State v Zuber, 227 NJ 422, 429; 152 

A3d 197 (2017); State v Kelliher, ___ NC ___; ___ SE2d ___ (2022); State v Moore, 149 

Ohio St 3d 557, 583; 2016-Ohio-8288; 76 NE3d 1127 (2016); Davis v State, 415 P3d 666; 

2018 WY 40, ¶ ¶ 44-45 (2018) (all extending Miller to sentences that are de facto life 

sentences or the functional equivalent of LWOP); see also State v Gilbert, 193 Wash 2d 

169, 175-176; 438 P3d 133 (2019) (sentencing courts must consider the mitigating 

characteristics of youth when sentencing all juveniles and may impose a lesser sentence on 

the basis of those characteristics, regardless of any sentencing statute to the contrary).

And many states authorize term-of-years sentences for second-degree murder and 

do not allow parolable life sentences—for anyone, not just juveniles.

5

 See, e.g., Ariz Rev 

Stat Ann 13-710 (providing for a minimum of 10 years and a maximum of 29 years for 

second-degree murder); Ark Code Ann 5-10-103 (providing that second-degree murder is 

a Class A felony) and Ark Code Ann 5-4-401 (providing that the punishment for Class A 

 

5 We agree with Justice ZAHRA’s dissent that “parolable life is a common sentence for 

juvenile offenders in other states,” but that’s not very relevant. The Lorentzen/Bullock test 

compares the penalty imposed for the offense in Michigan and the penalty imposed for the 

same offense in other states. 
13 

felonies is a determinate sentence of 6 to 30 years); Ga Code Ann 16-5-1 (providing for 

a 10- to 30-year sentence for second-degree murder); Iowa Code 707.3 (providing for a 

50-year maximum sentence for second-degree murder); Md Code, Crim Law 2-204 

(providing for a 40-year maximum sentence for second-degree murder); Minn Stat 609.19 

(same); New Mex Stat Ann 30-2-1 (providing that second-degree murder is a seconddegree felony resulting in the death of a human being) and New Mex Stat Ann 31-18-15(4)

(setting the punishment for second-degree felonies at 15 years in prison); Tenn Code Ann 

39-13-210 (providing that second-degree murder is a Class A felony) and Tenn Code Ann 

40-35-112 (providing that Class A felonies are subject to sentences of 15 to 60 years); 

Va Code 18.2-32 (providing for a minimum sentence of five years and a maximum 

sentence of 40 years for second-degree murder); W Va Code 61-2-3 (providing for a 10- 

to 40-year sentence for second-degree murder). 

Of the states that do authorize parolable life for second-degree murder, some have 

recognized the difference between children and adults by making children sentenced to 

parolable life eligible for parole sooner. Compare, e.g., Ore Rev Stat 144.397(1)(a) and

(2)(a) (allowing a prisoner who commits second-degree murder while a juvenile to be 

eligible for parole after 15 years) with Ore Rev Stat 163.115(5)(b) (providing that 

prisoners who commit second-degree murder must serve a minimum of 25 years in prison 

before becoming eligible for parole). For these reasons, the third Bullock factor supports

finding a parolable life sentence for a juvenile who commits second-degree murder to be 

cruel or unusual. 

Finally, although a parolable life sentence may advance the penological goal of

rehabilitation in theory, for juvenile offenders the question is whether that parolable life 
14

sentence provides a “meaningful opportunity to obtain release based on demonstrated 

maturity and rehabilitation.” Compare Montgomery, 577 US at 212, with Miller, 567 US 

at 479, quoting Graham v Florida, 560 US 48, 75; 130 S Ct 2011; 176 L Ed 2d 825 (2010). 

A lot of ground we have already covered leads us to conclude that a parolable life 

sentence for a juvenile offender convicted of second-degree murder does not advance this 

penological goal. First, prisoners who receive parolable life sentences are given lower 

priority when it comes to educational and rehabilitative programming. Access to these 

programs is vital, especially for juvenile offenders, to enhance their growth and 

rehabilitative potential. See Graham, 560 US at 74 (explaining that “[f]or juvenile 

offenders, who are most in need of and receptive to rehabilitation, the absence of 

rehabilitative opportunities or treatment makes the disproportionality of the sentence all 

the more evident”) (citation omitted). 

Second, the Legislature has made clear its intent that for juvenile first-degreemurder convictions, such a meaningful opportunity for release is generally available after

60 years unless the juvenile offender was afforded the procedural protection of a Miller

hearing. It does not rationally follow that a meaningful opportunity for release for a 

juvenile convicted of second-degree murder could come after a longer period of

incarceration than the maximum served by a juvenile convicted of first-degree murder. 

Third, and relatedly, whether the Parole Board practically considers whether to grant 

parole to an offender serving a parolable life sentence is subject to the fluctuations of 

executive branch policies. An offender’s meaningful opportunity to gain release is to be 

measured in terms of the offender’s “demonstrated maturity and rehabilitation,” not the 

whims of an executive branch policy directive instructing the Parole Board to forgo
15

consideration of all offenders serving parolable life. Miller, 567 US at 479 (quotation 

marks and citation omitted). Without further statutory limits, such as the one referred to

by the Supreme Court in Montgomery as a permissible sentencing scheme, parolable life 

does not necessarily further the sentencing goal of rehabilitation. Montgomery, 577 US at 

212, citing Wyo Stat Ann § 6-10-301(c) (noting that the Wyoming statute, which made 

juvenile homicide offenders eligible for parole after serving 25 years in prison, may be a 

constitutional sentencing scheme). 

“[T]he people of Michigan, speaking through their constitution, have forbidden the 

imposition of cruel or unusual punishments, and we are duty-bound to devise a principled 

test by which to enforce that prohibition, and to apply that test to the cases that are brought 

before us.” Bullock, 440 Mich at 41. We do that here and conclude that a parolable life 

sentence for a defendant who commits second-degree murder while a juvenile violates 

Article 1, § 16 of the Michigan Constitution. This conclusion is therefore precisely a 

determination of what the law requires and not, as the dissent asserts, an intrusion upon the 

Legislature’s authority of determining what the law should be. We have done this without 

controversy many times before and will undoubtedly do so again. See, e.g., Rafaeli, LLC 

v Oakland Co, 505 Mich 429; 952 NW2d 434 (2020) (unanimously holding that the 

defendants had committed an unconstitutional taking by retaining the surplus proceeds 

from the tax-foreclosure sales of the plaintiffs’ properties). 
16

IV. CONCLUSION

We vacate the defendant’s sentence for second-degree murder because it violates 

Article 1, § 16 of the Michigan Constitution. We remand this case to the Wayne Circuit 

Court for further proceedings consistent with this opinion. 

Bridget M. McCormack

Richard H. Bernstein

Megan K. Cavanagh

Elizabeth M. Welch
S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 162425

MONTEZ STOVALL,

Defendant-Appellant.

MCCORMACK, C.J. (concurring).

I concur in the majority opinion that I wrote.1

 I write separately to address Justice 

ZAHRA’s contention that our many prior decisions construing Article 1, § 16 of the 

Michigan Constitution, which precludes imposition of “cruel or unusual punishment,” are 

analytically unsound and that he would therefore revisit them. He finds them unsound 

because he does not believe the original meaning when ratified in 1963 included “evolving 

standards of decency.” Accepting Justice ZAHRA’s premise for argument’s sake that clear, 

unanimous original meaning is knowable, I’m not convinced that the original meaning of 

Article 1, § 16 doesn’t include evolving standards of decency; more likely, that is exactly 

what the ratifiers intended. But more importantly, his premise that clear, unanimous 

original intent can be discerned and applied by judges with superhuman neutrality to

resolve legal questions in cases like this is flawed. 

 1 By quirk of this Court’s practice, my colleagues and I can “concur” with an opinion for 

which we are the author, a step I have never taken before. But here I appreciate the 

opportunity to dedicate a separate opinion to some fundamental observations.
2 

To begin with our constitutional text. It contrasts with the corresponding provision 

in the Eighth Amendment of the United States Constitution, which prohibits “cruel and

unusual punishment.” This Court has long held that this textual difference means—not 

surprisingly given the plain meaning of conjunctions—that Article 1, § 16 provides slightly 

broader protection than the Eighth Amendment. See People v Bullock, 440 Mich 15, 30; 

485 NW2d 866 (1992); People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972). In 

those same decisions, we have also followed the United States Supreme Court’s analytical 

approach in applying the Eighth Amendment when applying Article 1, § 16. That is, we 

have agreed that the provision “must draw its meaning from the evolving standards of 

decency that mark the progress of a maturing society.” Lorentzen, 387 Mich at 179, 

quoting Trop v Dulles, 356 US 86, 101; 78 S Ct 590; 2 L Ed 2d 630 (1958). 

Justice ZAHRA, “[n]otwithstanding” this precedent, “question[s] whether the textual 

difference between the two punishment clauses is a sufficient basis to conclude that the 

Michigan Constitution provides greater protection than the Eighth Amendment.” The basis 

for his question is, he asserts, that “[d]iffering interpretative principles apply to each 

constitutional provision.” For that reason, Justice ZAHRA says that this Court was wrong 

to follow the United States Supreme Court’s approach to interpreting the Eighth 

Amendment’s prohibition against cruel and unusual punishment in light of the evolving 

standards of decency. Because his “interpretive principles,” which are simply a factual 

contention, contrast with those of the United States Supreme Court, they make Michigan’s 

constitutional protection less than, not more than, the Eighth Amendment’s. Curious. 

Justice ZAHRA therefore suggests that this Court has “gone astray” in this precedent 

(including precedent he himself joined, see People v Carp, 496 Mich 440; 852 NW2d 801 
3

(2014)), because the ratifiers of the Michigan Constitution in 1963 might not—says he—

have understood the prohibition against “cruel or unusual punishment” to consider 

society’s evolving standards of decency. He thus would instead construe Article 1, § 16’s 

prohibition against cruel or unusual punishment “ ‘to discern the original meaning 

attributed to the words of [the] constitutional provision by its ratifiers, the people, who are 

understood to have accepted the words employed in a constitutional provision in the sense 

most obvious to the common understanding and to have ratified the instrument in the belief 

that that was the sense designed to be conveyed.’ ”2

 (Citation omitted.) So far so good.

3

 

But then: “while the protection afforded under the Eighth Amendment is constantly 

evolving, the protection afforded under Const 1963, art 1, § 16, remains as it was originally 

understood at the time of ratification”; that is, he suggests that it prohibits only those 

punishments considered cruel or unusual in 1963. This step is mere assertion. Although 

the ratifiers of Const 1963, art 1, § 16 adopted language nearly identical to the Eighth 

 2 When interpreting constitutional provisions, of course this Court has often referred to the 

rule of “common understanding” to consider how the operative terms were generally 

understood at the time of ratification. See Mich United Conservation Clubs v Secretary of 

State (After Remand), 464 Mich 359, 373-374; 630 NW2d 297 (2001) (YOUNG, J., 

concurring) (collecting cases). But this has never been an exclusive tool; many of these 

same opinions make clear that courts may also consider “the circumstances surrounding 

the adoption of the constitutional provision and the purpose sought to be accomplished” 

and the desire to avoid an interpretation that creates a constitutional invalidity. See, e.g., 

State Hwy Comm v Vanderkloot, 392 Mich 159, 179; 220 NW2d 416 (1974), quoting 

Traverse City Sch Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). 

3 To emphasize, I agree with Justice ZAHRA that the ratifiers’ intent is at the core of the 

issue. The logical misstep in his argument is that it assumes the conclusion—that, in fact, 

the ratifiers intended to petrify then-existing conceptions of “cruel or unusual”

punishment—and only those—for all time. That contention requires support, which his 

argument does not provide. 
4 

Amendment, they meant, according to Justice ZAHRA, something far less. But what is the 

evidence for that? 

Justice ZAHRA simply supposes that the 1963 ratifiers understood the prohibition 

against cruel or unusual punishment to mean punishments either cruel or unusual at the 

time. That argument rests on the premise that all ratifiers (or a majority, maybe?) agreed 

exactly about what the broad phrase “cruel or unusual punishment” meant in 1963 too. 

Given that assumption, all this Court needs to do is to look back to the precise and 

unanimous 1963 meaning of “cruel or unusual punishment” and, voila, then the modern 

applications will be clear. 

But it does not follow that this Court’s consideration of the “evolving standards of 

decency” when interpreting our state’s constitutional prohibition on cruel or unusual 

punishment betrays “the original meaning attributed to the words of a constitutional 

provision by its ratifiers” as explained in recent decisions Justice ZAHRA cites. See People 

v Vaughn, 491 Mich 642, 651 n 25; 821 NW2d 288 (2012), and People v Nutt, 469 Mich 

565, 573-574; 677 NW2d 1 (2004). More plausibly, the original meaning expressed by 

those words is precisely to consider standards of decency over time. The words on their 

face suggest as much. And given that the 1963 ratification came after the United States 

Supreme Court’s “evolving standards of decency” approach to the Eighth Amendment was 

established, the ratifiers could have picked words to make very clear that they rejected the 

Supreme Court’s evolving-understanding approach. Instead, they went with the same 

words, with a more flexible conjunction tying them together. 

For, unlike certain terms with more fixed and less controversial meanings, see, e.g., 

State Hwy Comm, 392 Mich at 180 (“Certainly the popular and common understanding of 
5 

the word ‘shall’ is that it denotes mandatoriness.”), the broad language “cruel or unusual 

punishment” itself conveys an understanding that this prohibition is to be applied in context 

and over time. It is far-fetched to suppose that the ratifiers of the 1963 Constitution

themselves were unanimously committed to the belief that punishments cruel or unusual 

were understood (by them) to be fixed in time, static for all humanity. Nor is there evidence 

for this Court to assume as much. The ratifiers would have naturally expected the 

application of the broad words “cruel or unusual” to be applied to reflect evolving 

conceptions of cruelty, for example, over time.4 There is no reason to assume otherwise. 

So to get where he would go, Justice ZAHRA’s argument must add text to our 

Constitution, like “. . . as we think today.” That is, Justice ZAHRA, in effect, reads the 

constitutional text to prohibit something like “cruel or unusual punishment as we think of 

those today in 1963.” The ghost modifier does all the work. 

But enough on the merits question. I write here mainly to address Justice ZAHRA’s 

claim about methodology because it feels important enough to warrant transparent 

discussion of the stakes. 

Justice ZAHRA suggests that by tacking to original meaning (as a majority of us 

understand it), we can keep judges’ subjective policy preferences out of decision-making. 

That is an alluring prospect: judges setting aside their policy preferences and instead 

 

4 Moreover, generations of Michiganders should not be prisoners of history with the 

breadth of their constitutional protections confined only to what the 1963 ratifiers would 

consider “cruel or unusual.” That is not the nature of constitutionalism in the first place. 

Constitutions often express general principles to be applied in specific cases and context 

over time. Otherwise, constitutional law reduces to a two-dimensional exercise in history 

by us non-historian judges. 
6

discerning the original meaning as understood by statesmen and stateswomen (usually 

statesmen) from generations past to guide interpretation. But this approach has three major 

flaws. 

First, it assumes implausibly that there is such a thing as an original meaning and 

that it is identifiable. Second, the approach assumes, perhaps more heroically, that judicial

efforts to discern “the” original meaning will not be impacted at all by judges’ own

experiences, perspectives, and values. Finally, Justice ZAHRA’s approach eviscerates stare 

decisis, leaving judges even more room to channel their druthers.

To take each in turn.

Constitutional provisions usually lack a fixed, definitive original meaning apparent

on the face of constitutional text that is sufficient to decide specific cases. As many have 

observed, history is complicated and contested, and neither judges nor their clerks are 

typically trained in the discipline. “Originalist source material is sometimes scarce and 

sometimes endless. It often does not specifically address the question that must be decided. 

When it does address that question, it often does so in many different voices, no one of 

which has a greater claim to authority than the others.” Primus, Limits of Interpretivism, 

32 Harv J L & Pub Pol’y 159, 170 (2009); see also Fallon, The Many and Varied Roles of 

History in Constitutional Adjudication, 90 Notre Dame L Rev 1753, 1758 (2015) (“[E]ither

the original public meaning of constitutional language or the proper application of that 

meaning to particular cases frequently cannot be identified as a matter of simple historical 

fact.”); Barrett, Originalism & Stare Decisis, 92 Notre Dame L Rev 1921, 1921 (2017) 

(“For an originalist, the meaning of the text is fixed so long as it is discoverable.”)

(emphasis added). Original understandings of constitutional provisions are therefore 
7 

subject to differing interpretations. The Many and Varied Roles of History, 90 Notre Dame 

L Rev at 1798 (“[H]istorical facts alone will frequently fail to prove the existence of an 

original intent, original understanding, or original public meaning that is sufficiently clear 

and determinate to resolve modern controversies.”); Primus, When Should Original 

Meanings Matter?, 107 Mich L Rev 165, 214 (2008) (“[T]ellingly, many of the original 

meanings that operate as clear authority in constitutional law have actually achieved that 

clarity less because the underlying originalist source material was clear than because the 

United States Supreme Court issued a decision adopting a particular reading of that source 

material as authoritative.”). 

Not surprisingly, then, judges too routinely disagree about “the” most faithful 

original meaning of constitutional provisions. See, e.g., New York State Rifle & Pistol 

Ass’n, Inc v Bruen, 597 US ___; 142 S Ct 2111; ___ L Ed 2d ___ (2022); id. at ___ (Breyer, 

J., dissenting) (disagreeing with the majority opinion over the original meaning of the 

Second Amendment of the United States Constitution); District of Columbia v Heller, 554 

US 570; 128 S Ct 2783; 171 L Ed 2d 637 (2008); id. at 636-680 (Stevens, J., dissenting)

(same); id. at 681-723 (Breyer, J., dissenting) (same); Studier v Mich Pub Sch Employees’ 

Retirement Bd, 472 Mich 642; 698 NW2d 350 (2005); id. at 672-684 (CAVANAGH, J., 

dissenting) (disagreeing over the original meaning of “accrued financial benefits” in Article 

9, § 24 of the Michigan Constitution). 

Tacking to original meaning may make it just as likely that judges’ policy 

preferences drive a result, intentionally or unintentionally, but either way less 

transparently. Indeed, as Professor Cary Franklin explained in her critique of the United 

States Supreme Court’s decision in Bostock v Clayton Co, Georgia, 590 US ___; 140 S Ct 
8

1731; 207 L Ed 2d 218 (2020), adherence to original meaning does not offer more 

objectivity than other methods of interpretation. It allows rather for disguised policy 

choices about how to interpret text, such as which bits of text to subject to textualist 

analysis; whether to consult a dictionary or a corpus linguistics database and, if so, which 

dictionary or database to use; and which definition to select—to name just a few. See 

Franklin, Living Textualism, 2020 Sup Ct Rev 119, 125 (2021) (“[O]riginal public meaning 

is a judicial construct. It is not something judges find, but something they produce—and 

something they need to produce because, in the kind of conflicts that reach the Court, there 

generally is not a single truth of the matter from a semantic standpoint.”); see also Limits 

of Interpretivism, 32 Harv J L & Pub Pol’y at 170 (“[O]riginalism is a poor strategy for 

establishing clear rules of decision in advance of particular cases.”); Choi, Computational 

Corpus Linguistics (July 1, 2022) (unpublished manuscript), p 1, available to download at 

<https://ssrn.com/abstract=4151849> (accessed July 20, 2022) [https://perma.cc/Z9USVALM] (“[T]he traditional approach to corpus linguistics encounters several problems. It 

focuses on word frequencies at the expense of subtler linguistic cues and presents no clear 

dividing line between correct and incorrect textual meanings. It also requires a variety of 

subjective and opaque judgment calls, allowing motivated interpreters to cherry-pick the 

method that supports their favored meanings.”). 

Of course, judges should consult and consider all sources and dimensions of original 

meaning in analyzing constitutional text in applying constitutional provisions to specific 

cases. But I don’t know any who don’t. Often, however, a particular textual phrase—

“cruel or unusual punishment,” for example—doesn’t allow us to resolve every application 

of that provision even if we can know what the ratifiers of the Constitution thought it meant 
9

in 1963. In such cases, judges shouldn’t pretend that we have some objective original

meaning that requires a specific result.

But Justice ZAHRA isn’t suggesting only that he would interpret Article 1, § 16

according to its original meaning (as he determines that original meaning), if called to do 

so, against a blank canvas. He would also overrule 50 years of this Court’s precedent

because, in his revisionist view, the Court’s methodology was off. When the Court has for 

50 years approached new iterations of a question governed by broad constitutional text 

with a specific analysis, it is immodest indeed to pitch that away because now, in 2022,

one can determine somehow that the ouija board has spoken and the 1963 ratifiers meant 

something else by that broad language.

Such an approach renders stare decisis irrelevant. Yet stare decisis is an important 

commitment for courts because it allows people to order their affairs consistently with the 

law’s requirements. We therefore normally require more than a majority of a court thinking 

that precedent was incorrectly decided. See Robinson v Detroit, 462 Mich 439, 463-468; 

613 NW2d 307 (2000) (discussing the other factors to be considered before overruling a 

prior decision). After all, if we fully agreed with the way a previous case was decided we 

wouldn’t need stare decisis—we’d just decide the next related question the same way. If 

stare decisis means anything, it means not every judicial decision is up for grabs from 

scratch. On the other hand, if original meaning provides a stare decisis override,

5 then it 

 5 Even committed originalists have recognized that judges should not upset settled 

expectations, even when a precedent departs from the “original” meaning of a 

constitutional provision. See, e.g., Barrett & Nagle, Congressional Originalism, 19 U Pa

J Const L 1, 1 (2016) (“Some decisions thought inconsistent with the Constitution’s 

original public meaning are so well baked into government that reversing them would 

wreak havoc.”). Justice Scalia emphasized that originalism should not be used to undo 
10

provides a platform for judges to make policy choices while claiming they are doing 

something else. (I set aside that constitutional ratifiers would be generally familiar with 

the doctrine of stare decisis and conferred constitutional judicial power in recognition of 

it. In that sense, stare decisis has an originalist element itself.)

Justice ZAHRA would apparently still overturn our longstanding doctrine applying 

Article 1, § 16 if four members of this Court, lacking historical training, divine that the 

ratifiers in 1963 had a unanimous and specific understanding of a prohibition against “cruel 

or unusual punishment” that was not to be applied over time and that did not include a 

prohibition against parolable life sentences for young people. Such new forms of judicial 

immodesty are likely to erode confidence in judicial neutrality.

Bridget M. McCormack

 

settled constitutional principles. Scalia, A Matter of Interpretation: Federal Courts & the 

Law (Princeton: Princeton University Press, 1997), pp 138-139 (“Originalism, like any 

theory of interpretation put into practice in an ongoing system of law, must accommodate 

the doctrine of stare decisis; it cannot remake the world anew. . . . [O]riginalism will make 

a difference . . . not in the rolling back of accepted old principles of constitutional law but 

in the rejection of usurpatious new ones.”). 
S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 162425

MONTEZ STOVALL,

Defendant-Appellant.

ZAHRA, J. (dissenting).

In 1991, defendant murdered two people one month before he turned 18 years old. 

Defendant fatally shot his first victim because he believed the victim had shot an

acquaintance of his. Three days later, defendant fatally shot his second victim because the 

victim’s friend had attempted to rob defendant the day before. Defendant pleaded guilty 

to two counts of second-degree murder in exchange for the dismissal of one count of firstdegree murder—a conviction for which, at the time, carried with it a sentence of mandatory 

life without parole—and an agreed-upon sentence of life with the possibility of parole

(parolable life).

1

 Defendant became eligible for parole after serving 10 years in prison.

2

 

After the Supreme Court of the United States held in Miller v Alabama3 that mandatory 

 1 Defendant also pleaded guilty to two counts of possession of a firearm during the 

commission of a felony (felony-firearm). The parolable life sentences were to be served 

consecutively to two concurrent terms of two years’ imprisonment for the felony-firearm 

convictions. See MCL 750.227b(1).

2 MCL 791.234(7)(a).

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

life without parole is unconstitutional for juvenile homicide offenders and held in 

Montgomery v Louisiana4 that Miller applied retroactively, defendant filed this successive

motion for relief from judgment seeking to withdraw his plea or, alternatively, have his 

parolable life sentences declared unconstitutional in light of Miller and Montgomery. The 

trial court denied defendant relief from the judgment, and the Court of Appeals affirmed. 

This Court granted defendant’s application for leave to appeal on a number of issues 

regarding the validity of his plea and sentencing agreement and the constitutionality of his 

parolable life sentences.

I agree with the majority opinion that defendant’s plea and sentencing agreement 

were not illusory or invalid, but instead were knowingly, voluntarily, and intelligently 

entered into by defendant. I disagree, however, with the majority opinion’s conclusion that 

defendant’s parolable life sentences constitute “cruel or unusual punishment” under Const

1963, art 1, § 16. Far from being constitutionally disproportionate, defendant’s parolable 

life sentences match the severity of his two murder convictions while still affording him a 

meaningful opportunity to be reintegrated into society. For reasons more thoroughly 

developed in this opinion, I dissent from the majority opinion’s conclusion that defendant’s 

parolable life sentences are invalid and that he is entitled to relief from judgment under 

MCR 6.508(D).

 4 Montgomery v Louisiana, 577 US 190; 136 S Ct 718; 193 L Ed 2d 599 (2016).
3

I. STANDARD OF REVIEW AND ENTITLEMENT TO RELIEF FROM JUDGMENT

A trial court’s ruling on a motion for relief from judgment is reviewed for an abuse 

of discretion.5

 “An abuse of discretion occurs when a trial court’s decision falls outside 

the range of reasonable and principled outcomes.”6

 “The proper interpretation and 

application of a court rule is a question of law that is reviewed de novo.”7

 Questions of 

constitutional law are also reviewed de novo.8

To be entitled to relief from judgment under MCR 6.508(D),9 defendant must show 

“good cause” for failing to raise the grounds for relief on appeal or in the prior motion and 

“actual prejudice” from the alleged irregularities that support the claim for relief.

10 MCR 

6.508(D)(3)(b) states that actual prejudice, in relevant part, occurs when:

(ii) in a conviction entered on a plea of guilty, . . . the defect in the 

proceedings was such that it renders the plea an involuntary one to a degree 

that it would be manifestly unjust to allow the conviction to stand;

* * *

(iv) in the case of a challenge to the sentence, the sentence is invalid.

 5 People v Hewitt-El, 501 Mich 1031 (2018).

6 People v Franklin, 500 Mich 92, 100; 894 NW2d 561 (2017) (quotation marks and 

citation omitted).

7 People v Cole, 491 Mich 325, 330; 817 NW2d 497 (2012).

8 People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011).

9 For the reasons stated in Justice CLEMENT’s concurrence in People v Manning, 506 Mich 

1033, 1036-1039 (2020), I agree with the majority opinion’s conclusion that defendant’s 

successive motion for relief from judgment is “based on a retroactive change in law that 

occurred after [defendant’s] first motion for relief from judgment” and, therefore, satisfies 

the procedural bar in MCR 6.502(G)(2). 

10 MCR 6.508(D)(3)(a) and (b).
4

II. RELEVANT LAW

The Eighth Amendment of the United States Constitution proscribes the imposition 

of “cruel and unusual punishments.”11 In Miller, the Supreme Court of the United States 

held that “mandatory life without parole for those under the age of 18 at the time of their 

crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishments.”12 

The Supreme Court reasoned that juveniles’ lack of maturity, vulnerability to negative

influence, and transitory personality traits render them “constitutionally different from 

adults for purposes of sentencing.”13 These “distinctive attributes of youth diminish the 

penological justifications for imposing” life without parole on juvenile homicide offenders, 

and “[b]y making youth (and all that accompanies it) irrelevant to imposition of that 

harshest prison sentence, [a sentencing scheme mandating life without parole for juvenile 

homicide offenders] poses too great a risk of disproportionate punishment.”14 Therefore,

the Supreme Court in Miller held that before sentencing a juvenile homicide offender to 

life without parole, a sentencing court must first have an opportunity to consider the 

distinctive attributes of youth, i.e., the Miller factors.15 The Miller Court clarified, 

 11 US Const, Am VIII.

12 Miller, 567 US 465 (quotation marks omitted).

13 Id. at 471.

14 Id. at 472, 479.

15 Those factors include: (1) “[a defendant’s] chronological age and its hallmark features—

among them, immaturity, impetuosity, and failure to appreciate risks and consequences”; 

(2) “the family and home environment that surrounds him—and from which he cannot 

usually extricate himself—no matter how brutal or dysfunctional”; (3) “the circumstances 

of the homicide offense, including the extent of his participation in the conduct and the 

way familial and peer pressures may have affected him”; (4) whether “he might have been 

charged [with] and convicted of a lesser offense if not for incompetencies associated with 
5

however, that its holding “mandate[s] ‘only that a sentencer follow a certain process—

considering an offender’s youth and attendant characteristics—before imposing’ a lifewithout-parole sentence”16 and that “ ‘[a] State is not required to guarantee eventual 

freedom,’ but must provide ‘some meaningful opportunity to obtain release based on 

demonstrated maturity and rehabilitation.’ ”17

In Montgomery, the Supreme Court held that Miller applies retroactively to juvenile 

homicide offenders whose convictions and sentences were final when Miller was 

decided.18 The Supreme Court assured that

[g]iving Miller retroactive effect . . . does not require States to relitigate 

sentences, let alone convictions, in every case where a juvenile offender 

received mandatory life without parole. A State may remedy a Miller 

violation by permitting juvenile homicide offenders to be considered for 

parole, rather than by resentencing them. Allowing those offenders to be 

considered for parole ensures that juveniles whose crimes reflected only 

transient immaturity—and who have since matured—will not be forced to 

serve a disproportionate sentence in violation of the Eighth Amendment.

[19] 

In response to Miller, our Legislature enacted MCL 769.25 and MCL 769.25a, 

which provide relief to juvenile homicide offenders who committed certain crimes that, 

 

youth—for example, his inability to deal with police officers or prosecutors (including on 

a plea agreement) or his incapacity to assist his own attorneys”; and (5) “the possibility of 

rehabilitation.” Id. at 477-478.

16 Jones v Mississippi, 593 US ___; 141 S Ct 1307, 1314; 209 L Ed 2d 390 (2021)

(emphasis added), quoting Miller, 567 US at 483.

17 Miller, 567 US at 479, quoting Graham v Florida, 560 US 48, 75; 130 S Ct 2011; 176 L 

Ed 2d 825 (2010) (holding that the Eighth Amendment bars life without parole for a 

juvenile convicted of a nonhomicide offense).

18 Montgomery, 577 US 190.

19 Id. at 212 (citation omitted; emphasis added).
6

before Miller, would have mandated life without parole.

20 Under those statutes, if the 

prosecution seeks a life-without-parole sentence, the sentencing court is required to 

conduct a hearing to consider the Miller factors and specify on the record the aggravating 

and mitigating circumstances that the court considered in imposing its sentence.

21 If the 

prosecution does not seek a life-without-parole sentence, the sentencing court must 

sentence the defendant to a term of years, in which the minimum sentence is between 25 

and 40 years’ imprisonment.

22 Notably, MCL 769.25 and MCL 769.25a do not list seconddegree murder as an eligible offense triggering either a Miller hearing or a term-of-years 

sentence. Those statutes also do not address juvenile homicide offenders sentenced to 

parolable life. 

Finally, the Michigan Constitution provides that “cruel or unusual punishment shall 

not be inflicted.”23 “The textual difference between the federal constitutional protection 

and the state constitutional protection is of consequence and has led this Court to conclude 

that Article 1, § 16 provides greater protection against certain punishments than its federal 

counterpart . . . .”24 Our precedent provides that each punishment clause contains a 

 20 MCL 769.25a was enacted in anticipation that Miller would apply retroactively. It 

applies to juvenile homicide offenders who were sentenced to mandatory life without 

parole prior to Miller and provides essentially the same substantive relief as MCL 769.25. 

21 MCL 769.25(6), (7); MCL 769.25a(4)(b).

22 MCL 769.25(9); MCL 769.25a(4)(c). 

23 Const 1963, art 1, § 16 (emphasis added).

24 People v Carp, 496 Mich 440, 519; 852 NW2d 801 (2014), cert gtd and opinion vacated 

sub nom on other grounds Carp v Michigan, 577 US 1186 (2016). Notwithstanding this 

statement in Carp, I question whether the textual difference between the two punishment 

clauses is a sufficient basis to conclude that the Michigan Constitution provides greater

protection than the Eighth Amendment. Differing interpretative principles apply to each 
7 

 

constitutional provision. The Supreme Court of the United States has stated that “[t]o 

determine whether a punishment is cruel and unusual, courts must look beyond historical 

conceptions to the evolving standards of decency that mark the progress of a maturing 

society.” Graham, 560 US at 58 (quotation marks and citations omitted). In interpreting 

the Michigan Constitution, however, “[o]ur goal in construing our Constitution is to discern 

the original meaning attributed to the words of a constitutional provision by its ratifiers, 

the people, who are understood to have accepted the words employed in a constitutional 

provision in the sense most obvious to the common understanding and to have ratified the 

instrument in the belief that that was the sense designed to be conveyed.” People v Vaughn, 

491 Mich 642, 651 n 25; 821 NW2d 288 (2012) (quotation marks and citations omitted). 

Our task is to give effect to the meaning of the constitutional text that “the people who 

ratified the text in 1963 gave to it,” not “the meaning we as judges would prefer, or even 

the meaning the people of Michigan today would prefer[.]” People v Nutt, 469 Mich 565, 

574 n 7; 677 NW2d 1 (2004) (quotation marks and citation omitted). In other words, while 

the protection afforded under the Eighth Amendment is constantly evolving, the protection 

afforded under Const 1963, art 1, § 16 remains as it was originally understood at the time 

of ratification. 

It appears, however, that our caselaw concerning Const 1963, art 1, § 16 has gone 

astray by unthinkingly adopting the federal “evolving standards of decency” principle 

when it, in fact, conflicts with our general rule of constitutional interpretation. In People 

v Lorentzen, 387 Mich 167, 178-179; 194 NW2d 827 (1972), this Court appeared to 

incorporate the “evolving standards of decency” principle in deciding whether a sentence 

was constitutionally proportionate under both the United States and Michigan 

Constitutions, explaining that “[t]he decency test . . . looks to comparative law for 

guidelines in determining what penalties are widely regarded as proper for the offense in 

question.” See People v Coles, 417 Mich 523, 530; 339 NW2d 440 (1983) (stating that, 

under Lorentzen’s analysis, “the definition of cruel or unusual punishment becomes a 

flexible one, changing with the evolving standards of decency as expressed by similar penal 

statutes”), overruled in part on other grounds by People v Milbourn, 435 Mich 630 (1990). 

This Court in People v Bullock, 440 Mich 15, 33-35; 485 NW2d 866 (1992), simply 

accepted Lorentzen’s proportionality analysis without first questioning whether its 

adoption of the “evolving standards of decency” principle conflicted with our traditional 

method of constitutional interpretation. 

In sum, while this Court has stated that the textual difference between the Eighth 

Amendment and Const 1963, art 1, § 16 leads to greater protection under the latter, it did 

so without consideration of the materially different interpretative methods applicable to 

each provision. Given this, I question whether the above cases interpret Const 1963, art 1, 

§ 16 correctly and whether the ratifiers of the Michigan Constitution in 1963 understood 

the “cruel or unusual punishment” clause to provide greater protection than what the Eighth 

Amendment currently provides under our society’s evolving standards of decency. 
8

 

Accordingly, I would revisit whether the textual difference between Const 1963, art 1, § 16 

and the Eighth Amendment translates into a greater protection under the Michigan 

Constitution.

Rather than give any meaningful response to my criticisms regarding the precise 

legal question before this Court—i.e., the constitutional validity of a parolable life sentence 

for a juvenile homicide offender who specifically agreed to that sentence—Chief Justice 

MCCORMACK responds to this footnote with a 10-page diatribe expressing, among other 

things, her opposition to original-meaning jurisprudence. Chief Justice MCCORMACK

claims my understanding of how we interpret the Michigan Constitution is “simply a 

factual contention.” Ante at 2 (MCCORMACK, C.J., concurring). Curious, considering this 

Court has consistently recognized that the Michigan Constitution is to be interpreted in 

accordance with “ ‘the text’s original meaning [according] to the ratifiers, the people, at 

the time of ratification.’ ” Rafaeli, LLC v Oakland Co, 505 Mich 429, 456; 952 NW2d 434 

(2020), quoting Wayne Co v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004). See 

also Woodland v Mich Citizens Lobby, 423 Mich 188, 219; 378 NW2d 337 (1985) 

(“ ‘Constitutions do not change with the varying tides of public opinion and desire; the will 

of the people therein recorded is the same inflexible law until changed by their own 

deliberative action. They [the courts] must construe them as the people did in their 

adoption, if the means of arriving at that construction are within their power.’ ”) (ellipsis 

omitted), quoting People ex rel Bay City v State Treasurer, 23 Mich 499, 506 (1871) 

(opinion of the Court by COOLEY, J.); Mich Farm Bureau v Secretary of State, 379 Mich 

387, 390-391; 151 NW2d 797 (1967) (“[T]he all important duty of the judiciary when 

constitutional provisions are brought up for interpretation and application . . . is to 

ascertain as best the Court may the general understanding and therefore the uppermost or 

dominant purpose of the people when they approved the provision or provisions thus 

brought up.”); Burdick v Secretary of State, 373 Mich 578, 584; 130 NW2d 380 (1964) (“It 

is a fundamental principle of constitutional construction that we determine the intent of the 

framers of the Constitution and of the people adopting it. . . . [W]e should endeavor to 

place ourselves in the position of the framers of the Constitution, and ascertain what was 

meant at the time. . . . It could not mean one thing at the time of its adoption, and another 

thing today, when public sentiments have undergone a change. It is therefore essential that 

we determine the intent of [a constitutional] provision by reference to the state of the law 

or custom previously existing, and by the contemporaneous construction, rather than 

attempt to test its meaning by the so-called advanced or liberal views obtaining among a 

large class of the community at the present day.”) (quotation marks and citations omitted).

Chief Justice MCCORMACK now rejects our lodestar principle of constitutional 

interpretation, despite frequently subscribing to this standard as the appropriate method of 

constitutional interpretation in Michigan. See, e.g., League of Women Voters of Mich v 

Secretary of State, 508 Mich 520, 535; ___ NW2d ___ (2022) (“Our primary goal in 

construing a constitutional provision is to give effect to the intent of the people of the state 
9

 

of Michigan who ratified the Constitution, by applying the rule of common understanding. 

We locate the common understanding of constitutional text by determining the plain 

meaning of the text as it was understood at the time of ratification.”) (quotation marks and 

citation omitted); Taxpayers for Mich Constitutional Gov’t v Michigan, 508 Mich 48, 60-

61; 972 NW2d 738 (2021) (same); Rafaeli, 505 Mich at 456; (same); Paquin v City of St

Ignace, 504 Mich 124, 129-130; 934 NW2d 650 (2019) (same); Citizens Protecting 

Michigan’s Constitution v Secretary of State, 503 Mich 42, 61; 921 NW2d 247 (2018) 

(same); Adair v Michigan, 497 Mich 89, 101-102; 860 NW2d 93 (2014) (same). See also 

In re House of Representatives Request for Advisory Opinion Regarding Constitutionality 

of 2018 PA 368 & 369, 505 Mich 884, 886 (2019) (CLEMENT, J., concurring, joined by 

MCCORMACK, C.J.) (“When construing the Michigan Constitution, our primary goal is to 

give effect to the intent of the people of the state of Michigan who ratified the Constitution, 

by applying the rule of common understanding. Generally, we locate the common 

understanding of constitutional text by determining the plain meaning of the text as it was 

understood at the time of ratification . . . .”) (cleaned up); People v Cain, 498 Mich 108, 

132; 869 NW2d 829 (2015) (VIVIANO, J., dissenting, joined by MCCORMACK, C.J.) (“In 

interpreting the constitutional phrase ‘trial by jury,’ the guiding principle is to give the text 

the meaning it was understood to have at the time of its adoption by the people.”) (quotation 

marks and citation omitted). My willingness to revisit our precedent interpreting Const 

1963, art 1, § 16 is not, as the Chief Justice suggests, a frivolous request to overturn caselaw 

contrary to stare decisis. If anything, respecting stare decisis would demand adherence to 

our longstanding principle of constitutional interpretation discussed above, which dates 

back to at least 1871. Apparently, the Chief Justice is only concerned about stare decisis 

when it serves her interests. 

Further, Chief Justice MCCORMACK embraces a cafeteria-style approach to 

constitutional interpretation, in which she picks any method that arguably supports her 

view. See ante at 3 n 2 (MCCORMACK, C.J., concurring). Chief Justice MCCORMACK’s 

freewheeling approach to constitutional interpretation is simply not sound. The various 

interpretive tools used in the cases cited by the Chief Justice work toward a single purpose: 

to determine the original understanding of the ratifiers. Again, this Court has long held 

that our “primary objective” in interpreting a constitutional provision is to determine the 

text’s original meaning according to the common understanding of the people at the time 

of ratification. Rafaeli, 505 Mich at 456 (quotation marks and citation omitted). And the 

Chief Justice concedes, as she must, that “ ‘the circumstances surrounding the adoption of 

the constitutional provision and the purpose sought to be accomplished’ ” are helpful in 

accomplishing our objective. Ante at 3 n 2 (MCCORMACK, C.J., concurring), quoting State 

Hwy Comm v Vanderkloot, 392 Mich 159, 179; 220 NW2d 416 (1974). For example, we 

have repeatedly recognized that contemporary sources, such as the constitutional 

convention debates, the Address to the People, and dictionaries in circulation at the time of 

ratification may aid us in ascertaining how the constitutional text was commonly 

understood according to the people when they ratified it. See People v Tanner, 496 Mich 
10

proportionality component making criminal sentences subject to appellate review.

25 In 

People v Lorentzen and People v Bullock, this Court set forth a four-prong test to assess 

 

199, 224-226; 853 NW2d 653 (2014); League of Women Voters, 508 Mich at 537 n 7

(looking to dictionaries “more contemporaneous with the ratification of the [Michigan] 

Constitution” in interpreting Const 1963, art 2, § 9).

Chief Justice MCCORMACK also attributes to me many things not expressed or 

implied in this footnote. For example, Chief Justice MCCORMACK asserts it is my position 

that “[a]lthough the ratifiers of Const 1963, art 1, § 16 adopted language nearly identical 

to the Eighth Amendment, they meant . . . something far less.” Ante at 3-4 (MCCORMACK, 

C.J., concurring). It is plainly obvious to any reasonable person that I make no such 

assertion in this footnote. I simply question whether this Court was correct when it 

concluded without significant analysis that Article 1, § 16 provides greater protection than 

that provided under the Eighth Amendment. This is not a novel concept. Multiple 

commentators have observed that the phrases “cruel and unusual” and “cruel or unusual” 

were used interchangeably in early American history, with both formulations capturing the 

same meaning. See, e.g., Stacy, Cleaning Up the Eighth Amendment Mess, 14 Wm & Mary 

Bill Rts J 475, 503-504 (2005); Bessler, The Anomaly of Executions: The Cruel and 

Unusual Punishments Clause in the 21st Century, 2 Brit J Am Legal Stud 297, 313 (2013); 

Casale & Katz, Would Executing Death-Sentenced Prisoners After the Repeal of the Death 

Penalty Be Unusually Cruel Under the Eighth Amendment?, 86 Conn B J 329, 336 (2012). 

And, as Justice RILEY noted in her partial dissenting opinion in Bullock, there is no 

evidence that “the replacement of the conjunctive ‘and’ by the disjunctive ‘or’ supports the 

argument that the drafters of the state constitution intended for this Court to interpret the 

phrase differently from the meaning that the United States Supreme Court has given the 

Eighth Amendment.” Bullock, 440 Mich at 58-61 (RILEY, J., concurring in part and 

dissenting in part).

Chief Justice MCCORMACK makes other claims that grossly mischaracterize my 

position. Rather than rebut each of her assertions, I leave it to the reader to determine 

whether this footnote merits the uncharacteristic ad hominem attack expressed by the Chief 

Justice. 

25 See Graham, 560 US at 59 (“The concept of proportionality is central to the Eighth 

Amendment.”); Harmelin v Michigan, 501 US 957, 997, 1001; 111 S Ct 2680; 115 L Ed 

2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment) 

(concluding that “the Cruel and Unusual Punishments Clause encompasses a narrow 

proportionality principle” that “forbids only extreme sentences that are ‘grossly 

disproportionate’ to the crime”), quoting Solem v Helm, 463 US 277, 288, 303; 103 S Ct 

3001; 77 L Ed 2d 637 (1983). See also Bullock, 440 Mich at 27-35 (holding that 
11

whether a sentence is constitutionally proportionate.

26 That test, which “bears a 

considerable resemblance to the federal test for proportionality,”27 requires an assessment 

of (1) the severity of the sentence imposed compared to the gravity of the offense, (2) the 

penalty imposed for the offense compared to penalties imposed on other offenders in the 

same jurisdiction, (3) the penalty imposed for the offense in Michigan compared to the 

 

Michigan’s ban on cruel or unusual punishment includes a prohibition on grossly 

disproportionate sentences), citing Lorentzen, 387 Mich at 171-181. 

However, I question the above caselaw, given the many jurists who have opined

that neither the Eighth Amendment nor Const 1963, art 1, § 16 contain a proportionality 

component. See Graham, 560 US at 99 (Thomas, J., dissenting, joined by Scalia, J.)

(“[T]he Cruel and Unusual Punishments Clause was originally understood as prohibiting 

torturous ‘methods of punishment,’ ”and “does not expressly refer to proportionality or 

invoke any synonym for that term[.]”), quoting Harmelin, 501 US at 965, 976 (opinion by 

Scalia, J., joined by Rehnquist, C.J.) (stating that the Cruel and Unusual Punishments 

“Clause disables the Legislature from authorizing particular forms or ‘modes’ of 

punishment—specifically, cruel methods of punishment that are not regularly or 

customarily employed” and does not contain a “proportionality guarantee”). See also 

People v Correa, 488 Mich 989, 990-992 (2010) (MARKMAN, J., concurring, joined by 

CORRIGAN and YOUNG, JJ.) (stating that Const 1963, art 1, § 16 does not contain a 

proportionality component; that the prohibition against cruel or unusual punishment only

forbids certain modes or methods of punishment; and “that because ‘imprisonment . . . is, 

and always has been, in this country and in all civilized countries, one of the methods of 

punishment,’ it does not violate the Cruel or Unusual Punishment Clause”) (brackets and 

emphasis omitted), quoting People v Morris, 80 Mich 634, 639; 45 NW 591 (1890); 

Bullock, 440 Mich at 48 (RILEY, J., concurring in part and dissenting in part) (“[T]he ‘cruel 

or unusual punishment’ clause was intended to prohibit inhumane and barbarous treatment 

of the criminally convicted, and does not have a proportionality component.”). Although

I am bound to follow the interpretation of the Eighth Amendment espoused by the Supreme 

Court of the United States and “to enforce the rights conferred by” that Court, People v 

Tanner, 496 Mich 199, 219 n 10; 853 NW2d 653 (2014), I would revisit this Court’s 

interpretation of Const 1963, art 1, § 16 as containing a proportionality component. See 

Manning, 506 Mich at 1034-1035 (MARKMAN, J., concurring, joined by ZAHRA, J.).

26 See Bullock, 440 Mich at 33-34; Lorentzen, 387 Mich at 176-181.

27 Carp, 496 Mich at 520. 
12

penalty imposed for the same offense in other states, and (4) whether the penalty imposed 

advances the penological goal of rehabilitation.28

III. ANALYSIS

A. ILLUSORY PLEA BARGAIN

Defendant first argues that Miller and Montgomery have rendered his plea illusory 

and invalid; that is, because mandatory life without parole for juvenile homicide offenders 

is now an unconstitutional sentence, defendant contends that his plea and sentencing 

agreement has no benefit and that he is therefore entitled to withdraw his plea. I agree with 

the majority opinion that this argument lacks merit. Defendant benefited from the plea and 

sentencing agreement at the time it was entered into by (1) avoiding a possible conviction 

of first-degree murder and a mandatory life-without-parole sentence attached to that

conviction, and (2) becoming eligible for parole after serving 10 years’ imprisonment. 

Even after Miller and Montgomery, defendant continues to benefit from the agreement by 

avoiding a life-without-parole sentence and remaining eligible for parole. As the Supreme 

Court of the United States stated in Brady v United States: 

A defendant is not entitled to withdraw his plea merely because he discovers 

long after the plea has been accepted that his calculus 

misapprehended . . . the likely penalties attached to alternative courses of 

action. More particularly, absent misrepresentation or other impermissible 

conduct by state agents, a voluntary plea of guilty intelligently made in the 

light of the then applicable law does not become vulnerable because later 

judicial decisions indicate that the plea rested on a faulty premise. A plea of 

 28 Bullock, 440 Mich at 33-34. See also Solem, 463 US at 292 (“[A] court’s proportionality 

analysis under the Eighth Amendment should be guided by objective criteria, including (i) 

the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on

other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of 

the same crime in other jurisdictions.”).
13

guilty triggered by the expectations of a competently counseled defendant 

that the State will have a strong case against him is not subject to later attack 

because the defendant’s lawyer correctly advised him with respect to the then 

existing law as to possible penalties but later pronouncements of the 

courts . . . hold that the maximum penalty for the crime in question was less 

than was reasonably assumed at the time the plea was entered.[29]

That defendant did not anticipate the Supreme Court of the United States would 

render mandatory life without parole an unconstitutional sentence for juvenile homicide 

offenders does not undermine the validity of his guilty plea, nor does it render his plea 

illusory or without any benefit. To be sure, “[s]ome element of pressure exists in every 

deal, as the tradeoff between present certainty and future uncertainty is emblematic of the 

process of plea bargaining.”30 After all, a plea agreement is a contract, and “[c]ontracts in 

general are a bet on the future.”31 But there is “no requirement in the Constitution that a 

defendant must be permitted to disown his solemn admissions in open court that he 

committed the act with which he is charged simply because it later develops . . . that the 

maximum penalty then assumed applicable has been held inapplicable in subsequent 

judicial decisions.”32 Accordingly, defendant has failed to show that he is entitled to relief 

 29 Brady v United States, 397 US 742, 757; 90 S Ct 1463; 25 L Ed 2d 747 (1970) (citation 

omitted).

30 Dingle v Stevenson, 840 F3d 171, 175 (CA 4, 2016); Brady, 397 US at 756-757 (“Often 

the decision to plead guilty is heavily influenced by the defendant’s appraisal of the 

prosecution’s case against him and by the apparent likelihood of securing leniency should 

a guilty plea be offered and accepted. Considerations like these frequently present 

imponderable questions for which there are no certain answers; judgments may be made 

that in the light of later events seem improvident, although they were perfectly sensible at 

the time.”).

31 Dingle, 840 F3d at 175. 

32 Brady, 397 US at 757.
14

under MCR 6.508(D) because there was no “defect in the proceedings . . . render[ing] the 

plea an involuntary one to a degree that it would be manifestly unjust to allow the 

conviction to stand,”33 and his plea was not otherwise illusory entitling him to withdraw 

it.34 

 33 MCR 6.508(D)(3)(b)(ii).

34 Moreover, by entering into a valid plea and sentencing agreement, defendant arguably 

waived his ability to challenge the validity of his sentence under Miller and Montgomery. 

See People v Likine, 492 Mich 367, 409; 823 NW2d 50 (2012) (“An unconditional guilty 

plea that is knowing and intelligent waives claims of error on appeal, even claims of 

constitutional dimension.”) (emphasis added). See also People v Jones, 2021 IL 126432, 

¶ 21; ___ NE3d ___ (2021) (“Fundamentally, plea agreements are contracts, and principles 

of waiver apply equally to them.”). Some courts faced with requests to extend the 

reasoning of Miller and Montgomery beyond life-without-parole sentences have held that 

a defendant’s decision to enter into a plea and sentencing agreement waives any claim that

a less-than-nonparolable-life sentence is unconstitutional under those decisions. See, e.g., 

id. at ¶ 26 (concluding that the juvenile homicide offender’s “knowing and voluntary guilty 

plea [to a 50-year sentence] waived any constitutional challenge based on subsequent 

changes in the applicable law”); Jones v Commonwealth, 293 Va 29, 45; 795 SE2d 705

(2017) (holding that defendant’s negotiated plea agreement “waived his right to challenge 

his sentence on direct appeal and, a fortiori, on collateral attack”; that his claim for relief 

under Miller and Montgomery was not “immunized from waiver principles that govern all 

other constitutional challenges”; and that “[n]othing in Montgomery undermines settled 

waiver principles”). See also Carp, 577 US at 1186 (Thomas, J., concurring, joined by 

Alito, J.) (“On remand [in light of Montgomery], courts should understand that the Court’s 

disposition of these petitions does not reflect any view regarding petitioner’s entitlement 

to relief. The Court’s disposition does not, for example, address . . . whether petitioners

forfeited or waived any entitlement to relief (by, for example, entering into a plea 

agreement waiving any entitlement to relief), or whether petitioners’ sentences actually 

qualify as mandatory life without parole sentences.”) (emphasis added). But see Malvo v 

Mathena, 893 F3d 265, 275-277 (CA 4, 2018) (declining to hold that the defendant waived 

his ability to challenge, on the basis of Miller and Montgomery, the constitutionality of his 

life-without-parole sentence imposed pursuant to an otherwise valid plea agreement), 

abrogated on other grounds by Jones, 593 US at ___; 141 S Ct at 1318-1319. Because 

defendant knowingly and voluntarily entered into his plea and sentencing agreement—a 

bargain that he continues to benefit from even after Miller and Montgomery—it is 

questionable whether this Court should further entertain his constitutional challenges to his 
15

B. CONSTITUTIONALITY OF DEFENDANT’S PAROLABLE LIFE SENTENCES

In the alternative, defendant argues that his parolable life sentences amount to cruel 

and/or unusual punishment under the United States and Michigan Constitutions. I disagree. 

There is no question that defendant’s parolable life sentences are constitutionally 

proportionate under the Eighth Amendment. The majority opinion correctly notes that 

Montgomery explicitly approved of parolable life sentences as a means for states to remedy 

Miller violations without having to “relitigate sentences.”35 More compelling, however, is 

the Supreme Court’s emphasis on the type of sentences to which Miller actually applies. 

Again, “the Miller Court mandated only that a sentencer follow a certain process—

considering an offender’s youth and attendant characteristics—before imposing a lifewithout-parole sentence.”36 Given that defendant undisputedly did not receive a lifewithout-parole sentence, his Eighth Amendment challenge lacks merit. 

Defendant’s attempt to bring in the Michigan Constitution to do what the Eighth 

Amendment cannot must also fail. Applying the four-factor test from Lorentzen and 

Bullock,

37 parolable life sentences for juvenile homicide offenders are not constitutionally 

disproportionate under Const 1963, art 1, § 16. 

 

parolable life sentences. Yet the majority opinion grants defendant relief without even 

considering this issue. 

35 Montgomery, 577 US at 212.

36 Jones, 593 US at ___; 141 S Ct at 1316 (quotation marks and citation omitted; emphasis 

added).

37 Supra at 10-12. 
16

With regard to the first factor, this Court has explained that first-degree murder—

which includes the “the premeditated taking of an innocent human life”—is the most 

serious offense under Michigan law and that the Legislature’s imposition of life without 

parole for that offense, even for juveniles, is a proportionate punishment.

38 Given that 

second-degree murder, also known as malice murder,39 would be the second most serious 

offense that a person can commit under Michigan law, it is only natural that the second 

most serious punishment, i.e., parolable life, accompany a conviction of that offense. 

Logically then, the severity of a parolable life sentence is proportionate to the gravity of a 

second-degree murder conviction.

40

With regard to the second factor, parolable life is not an uncommon sentence for 

serious crimes committed in Michigan—even for those crimes that do not involve the 

taking of an innocent person’s life. Some common, nonhomicide felonies subject to

parolable life include assault with intent to murder, armed robbery, and first-degree 

 38 Carp, 496 Mich at 514-515.

39 “Malice” is an element of second-degree murder, People v Smith, 478 Mich 64, 70; 731 

NW2d 411 (2007), and is defined as “the intent to kill, the intent to cause great bodily 

harm, or the intent to do an act in wanton and wilful disregard of the likelihood that the 

natural tendency of such behavior is to cause death or great bodily harm,” People v Goecke, 

457 Mich 442, 464; 579 NW2d 868 (1998).

40 Defendant contends, and the majority opinion suggests, that parolable life for juveniles 

is the most serious punishment because sentencers are required to conduct a Miller hearing 

before imposing life without parole. That an extra procedural step is necessary before 

imposing life without parole on a juvenile homicide offender does not alter the fact that a 

life-without-parole sentence is still a valid sentence and, therefore, remains “the law’s 

harshest term of imprisonment” for juvenile offenders. Miller, 567 US at 474. 
17

criminal sexual conduct.

41 That Michigan penalizes nonhomicide offenses with parolable 

life demonstrates that it is not a constitutionally disproportionate sentence for homicide

offenses, some of which are committed by offenders who intended to kill their victims.

As to the third factor, parolable life is a common sentence for juvenile offenders in 

other states.

42 The majority opinion’s reliance on jurisdictions that extend Miller’s 

rationale to “de facto” life sentences is inapposite. A “de facto” life sentence, also known 

as a “virtual” life sentence, is a sentence that “foreclose[s] the defendant’s release from 

prison for all or virtually all of his expected remaining life span”43 and often involves

lengthy term-of-years sentences under which the defendant is not eligible for parole until 

he or she is geriatric. Such sentences are necessarily distinct from a parolable life sentence 

in which the defendant becomes parole eligible much earlier in life.44 The de facto life-

 41 MCL 750.83; MCL 750.529(2); MCL 750.520b(2)(a). Other offenses subject to 

parolable life sentences include: first-degree arson, MCL 750.72(3); bank robbery, MCL 

750.531; carjacking, MCL 750.529a(1); first-degree child abuse, MCL 750.136b(2); and 

kidnapping, MCL 750.349(3).

42 See The Sentencing Project, Youth Sentenced to Life Imprisonment (October 2019), p 1 

(“[A]ll states allow juveniles to be sentenced to life imprisonment, and all but two states 

have persons serving a life or ‘virtual life’ sentence for a crime committed as a juvenile.”), 

available at <https://www.sentencingproject.org/publications/youth-sentenced-lifeimprisonment/> (accessed May 19, 2022) [https://perma.cc/NC9E-XX4N].

43 Williams v United States, 205 A3d 837, 844 (DC, 2019). See also State v Ramos, 187 

Wash 2d 420, 434; 387 P3d 650 (2017) (defining a “de facto life sentence” as one 

“result[ing] in a total prison term exceeding the average human life-span”).

44 See Restore Justice, Know More: De Facto Life Sentences

<https://restorejustice.org/about-us/resources/know-more/know-more-de-facto-life-sentences>

(accessed May 19, 2022) [https://perma.cc/SJ38-6KU5] (“De facto life sentences (also 

known as “virtual” life sentences) refer to non-life sentences that are so long the sentenced 

person will likely die or live out a significant majority of their lives before they are 

released.”) (emphasis added).
18

sentencing cases are a far cry from the circumstances here, in which defendant’s parolable 

life sentence rendered him eligible for parole after serving just 10 years in prison. And, 

even assuming defendant’s parolable life sentences can be properly labeled “de facto” life 

sentences, a number of courts have rejected the notion that Miller applies to de facto life 

sentences for juvenile homicide offenders.45 In short, Michigan is hardly an outlier in 

imposing parolable life sentences for juvenile homicide offenders. 

Finally, with respect to the fourth factor, defendant’s sentences made him eligible 

for parole after serving 10 years’ imprisonment and allow him to be reconsidered for parole 

every five years.46 His sentences therefore serve the penological goal of rehabilitation. 

They also serve “other critical penological goals, such as securing a just and proper 

punishment as determined by a self-governing people and their representatives; the general 

deterrence of other potential criminal offenders; and the individual deterrence, and 

incapacitation, of the individual offender himself.”47

Overall, none of the four Lorentzen/Bullock factors supports the conclusion that 

parolable life is a constitutionally disproportionate sentence when imposed on a juvenile 

homicide offender. Accordingly, defendant has not shown that his sentences are 

unconstitutional under either the Eighth Amendment or Const 1963, art 1, § 16 and has not 

carried his burden of proving that his sentences are invalid. Therefore, defendant has not 

 45 See State v Slocumb, 426 SC 297, 313, 315 n 17, 315-323; 827 SE2d 148 (2019) 

(collecting cases illustrating an approximately even split of authority as to whether the 

Eighth Amendment, as interpreted by Graham and Miller, prohibits de facto life sentences 

for juvenile offenders convicted of nonhomicide and homicide offenses alike).

46 MCL 791.234(7)(a) and (8)(b).

47 Manning, 506 Mich at 1036 (MARKMAN, J., concurring).
19

established actual prejudice under MCR 6.508(D) and is not entitled to relief from 

judgment.

IV. FLAWS IN THE MAJORITY OPINION’S LEGAL ANALYSIS

The majority opinion supports its application of the four Lorentzen/Bullock factors 

to defendant’s parolable life sentences with several contentions with which I do not agree. 

First, the majority opinion asserts that juvenile homicide offenders sentenced to life 

with the possibility of parole “are at risk to serve precisely the same sentence” as those 

offenders sentenced to life without the possibility of parole, and that the former group of 

offenders “may receive the same sentence with less process” than the latter group.48 It is 

wholly unreasonable to suggest that a nonparolable life sentence is the same as a parolable 

life sentence. Such an assertion flies in the face of the Montgomery Court’s guidance that 

states may remedy a Miller violation by permitting juvenile homicide offenders to be 

considered for parole and renders the distinction the Supreme Court made between 

parolable and nonparolable life sentences utterly meaningless. Further, the only “process” 

required by Miller is that sentencing courts be given the discretion to consider an offender’s 

youth and to impose a sentence less than life without parole.49 Here, defendant bargained 

for a parolable life sentence, and the sentencing court had the discretion to reject that 

sentence if it believed it was not tailored to defendant and his offenses.50 Therefore, even 

 48 Ante at 9.

49 Jones, 593 US at ___; 141 S Ct at 1318 (explaining that Miller required “a discretionary 

sentencing procedure . . . where the sentencer can consider the defendant’s youth and has 

discretion to impose a lesser sentence than life without parole”). 

50 See People v Killebrew, 416 Mich 189, 206-207; 330 NW2d 834 (1982) (“If the sentence 

bargain includes a sentence agreement, whereby the defendant agrees with the prosecuting 
20

though defendant is not entitled to relief under Miller and Montgomery, he received all the 

process that those decisions require. 

Next, the majority opinion asserts that “a parolable life sentence for second-degree 

murder is often more severe than the minimum sentences now given to most juveniles who 

commit first-degree murder: 25 to 40 years,” and purports to explain why the Legislature’s 

chosen Miller remedy, MCL 769.25 and MCL 769.25a, renders defendant’s parolable life 

sentences constitutionally disproportionate.51 The inference from the majority opinion’s 

juxtaposition of parolable life sentences and term-of-years sentences under MCL 769.25 

and MCL 769.25a is that, had the Legislature simply chosen to change all nonparolable life 

sentences for juvenile homicide offenders to parolable life sentences, such a scheme would 

be constitutionally permissible. But, because the Legislature decided to retain life without 

parole as a permissible sentence for some Michigan juvenile homicide offenders and permit 

 

attorney to plead guilty in exchange for a specific sentence disposition, the court must 

accept or reject the agreement or defer action until the judge has had the opportunity to 

consider the presentence report. . . . If the judge feels that the agreed-upon disposition will 

serve the interests of justice, he may accept the agreement. . . . However, if the judge, in 

the exercise of his discretion, finds that the bargain is not tailored to reflect the particular 

circumstances of the case or the particular offender, he shall reject the plea at that time.”). 

See also Jones, 2021 IL 126432, ¶ 27-28 (holding that the sentencing court’s authority to 

accept or reject the defendant’s plea and sentencing agreement “necessarily constituted an 

exercise of its discretion,” thereby satisfying the constitutional requirements of Miller).

51 Ante at 10. The majority also asserts a general rule that “the Parole Board’s authority 

extends only to the[] sixtieth year of incarceration” for juvenile homicide offenders 

sentenced and resentenced under MCL 769.25 and MCL 769.25a. Ante at 11. This is not 

necessarily accurate. Juvenile homicide offenders ordered to serve term-of-years sentences 

post-Miller receive a maximum sentence that “shall be not less than 60 years,” MCL 

769.25(9), while offenders benefiting from Montgomery receive a maximum sentence that 

“shall be 60 years,” MCL 769.25a(4)(c). Thus, a defendant sentenced under MCL 

769.25(9) may be subject to a lengthier maximum sentence than a defendant resentenced 

under MCL 769.25a(4)(c).
21

term-of-years sentences for others, the majority opinion concludes that parolable life 

sentences are unconstitutional for all juvenile homicide offenders. Put another way, the 

majority opinion concludes that parolable life for juvenile homicide offenders is

unconstitutional because the Legislature excludes parolable lifers like defendant from its 

chosen Miller remedy—even though those offenders do not fall within the purview of 

Miller. This is truly a remarkable conclusion, as the majority opinion usesthe Legislature’s 

chosen Miller remedy as a justification for finding parolable life sentences constitutionally 

disproportionate. This is nothing short of second-guessing the Legislature’s policy 

decisions, which we may not do.

52

In any event, the facts of defendant’s case demonstrate why his parolable life 

sentences are not more severe than the term-of-years sentences imposed under MCL 769.25 

and MCL 769.25a. Defendant’s agreed-upon sentences of parolable life allowed him to 

become eligible for parole after serving just 10 years in prison, and he remains parole 

eligible to this day. On the other hand, if defendant were entitled to the same relief as those 

offenders resentenced under MCL 769.25a, the sentencing court could impose the 

maximum term-of-years sentence of 40 to 60 years, meaning defendant would no longer 

be eligible for parole. In fact, the roughly 29 years of imprisonment that defendant has 

served up to this point is at the lower end of the 25- to 40-year allowable minimum 

sentence. And, given that defendant committed multiple murders one month shy of turning 

18 years old, it is very possible, if not likely, that he would receive the maximum 40-year 

 52 Robertson v DaimlerChrysler Corp, 465 Mich 732, 759; 641 NW2d 567 (2002) (“[O]ur 

judicial role precludes imposing different policy choices than those selected by the 

Legislature[.]”) (quotation marks and citation omitted).
22

minimum sentence were he eligible for resentencing under that scheme. In short, it is far 

from clear that defendant’s parolable life sentences are more severe—let alone 

constitutionally disproportionate—than the term-of-years sentences imposed under MCL 

769.25 and MCL 769.25a, particularly since defendant himself bargained for his parolable 

life sentences in the first place.

53

Finally, the majority opinion contends that parolable life for juvenile homicide 

offenders does not advance the penological goal of rehabilitation because parolable lifers

have less access to rehabilitative programming than offenders serving a term-of-years 

sentence and because the decision to grant parole is subject to the varying policies of the 

Parole Board. That is, the majority opinion faults the Department of Corrections and the 

Parole Board for making it difficult for parolable lifers like defendant to obtain release. A 

motion for relief from judgment challenging the constitutionality of an otherwise valid 

sentence is hardly the appropriate vehicle to launch an attack on the policies and procedures 

of the executive branch.

54 But in any event, statistics provided by the prosecution and the 

 53 Defendant speculates that he would have benefited from going to trial as charged, losing, 

and being sentenced to mandatory life without parole so that he could receive relief under 

Miller, Montgomery, and MCL 769.25a. Not only does defendant’s hindsight ignore the 

teachings of Brady, see supra at 12-13, he also fails to appreciate that life without parole 

is still a valid sentence for juvenile homicide offenders under Michigan law. See Carp, 

496 Mich at 528 (holding that neither the Eighth Amendment nor Const 1963, art 1, § 16 

categorically barred the imposition of life without parole on juvenile homicide offenders). 

Thus, while it is possible that defendant could have received a term-of-years sentence had 

he been convicted of first-degree murder and obtained relief under Miller and Montgomery, 

it is also possible that he could have received the greater—and still constitutionally 

permissible—sentence of life without parole. 

54 See People v Johnson, unpublished per curiam opinion of the Court of Appeals, issued 

June 18, 2019 (Docket No. 344322), p 9 (“The essence of defendant’s sentence 

challenge . . . is that the policies and procedures of the parole board are unconstitutional 

based on an application of Miller and Graham . . . because they deprive defendant of any 
23

Attorney General demonstrate that parolable lifers have been paroled at a reasonable rate 

in the decade since Miller and Montgomery were decided; in fact, the rate for juvenile 

parolable lifers alone from 2016 to 2021 (20.6%) is even higher than the average rate of 

parole for the general prison population during that same time period (16.67%).55 Further, 

the Michigan Department of Corrections recently amended its policy directives to now 

require the Parole Board to consider the distinctive attributes of youth recognized in 

Miller.

56 Although the Parole Board, after considering those mitigating factors, may 

nonetheless decide not to grant a juvenile parolable lifer an interview, the policy directives

require the Board to give the prisoner “a Parole Board Notice of Decision . . . that shall set 

forth the factors considered for that decision and what corrective action the prisoner may 

take to improve the probability of being granted a parole in the future.”57 Parolable lifers 

therefore have the tools necessary to maximize their prospects for release. 

Of course, as noted in the majority opinion, there is no “guarantee” that defendant 

will be released.58 Michigan law simply does not require that someone sentenced to a 

 

real possibility of parole . . . . However, invalidating defendant’s valid sentence and 

resentencing him to a term[]of years is not the answer. The appropriate vehicle in which 

to seek redress of the alleged wrong done by the parole board is a claim for relief under 42 

USC 1983 filed against the parole board.”), citing Wershe v Combs, 763 F3d 500 (CA 6, 

2014).

55 These statistics rebut defendant’s argument that the Parole Board currently employs a 

“life means life” policy. 

56 Michigan Department of Corrections, Parole Process, PD 06.05.104 (April 1, 2022), 

p 3, ¶ N, available at <https://perma.cc/T345-7QLN>.

57 Id., ¶ O.

58 Ante at 11.
24

parolable life sentence actually receive parole. Whether parole is awarded is left to the 

sound discretion of the Parole Board. Miller demands nothing more. Aside from applying 

only to life-without-parole sentences, Miller requires only a “meaningful opportunity to 

obtain release based on demonstrated maturity and rehabilitation.”59 Nowhere did the 

Supreme Court in Miller or Montgomery state that juvenile homicide offenders are

guaranteed release. Defendant had a genuine opportunity for parole when he was 

sentenced, and he still has that opportunity today. That he has not yet been granted parole 

does not mean he is deprived of a meaningful opportunity for release. Unlike the majority 

opinion, I would not entertain defendant’s request to redefine what constitutes “a 

meaningful opportunity to obtain release.”60 Montgomery already provided an answer to 

that question—parolable life, which is precisely the sentence that defendant bargained for

in exchange for pleading guilty to committing multiple murders. 

V. SUMMARY AND RAMIFICATIONS OF THE MAJORITY’S CHANGES TO THIS 

STATE’S SENTENCING JURISPRUDENCE

Today, in this case and in four other juvenile sentencing cases, a majority of this 

Court makes law and adopts rules that are only tenuously related to the caselaw being cited

in support of this action. These decisions are a radical departure from our criminalsentencing jurisprudence. At the heart of all of these decisions is Miller’s holding that 

“mandatory life without parole for those under the age of 18 at the time of their crimes 

 59 Miller, 567 US at 479 (quotation marks and citation omitted; emphasis added); 

Montgomery, 577 US at 212 (“The opportunity for release will be afforded to those who 

demonstrate the truth of Miller’s central intuition—that children who commit even heinous 

crimes are capable of change.”) (emphasis added).

60 Miller, 567 US at 479 (quotation marks and citation omitted).
25

violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ”61 A 

majority of this Court repeatedly uses the rationale of Miller to decide issues far beyond 

those related to mandatory life without parole for juvenile homicide offenders. It is 

important to briefly lay out the breadth of the majority’s holdings in all of these cases and 

the flaws in its analyses.

Less than two years ago, this Court declined to extend Miller’s reasoning to 18-

year-old homicide offenders sentenced to mandatory life without parole.62 The law has not 

materially changed in the intervening two years, but this Court’s composition has. In 

People v Parks, a bare majority of this newly comprised Court does an about-face and now 

uses the Michigan Constitution to apply Miller to such defendants who challenge their 

mandatory life-without-parole sentences on direct appeal.63 The result is that mandatory 

life without parole is now unconstitutional for 18-year-old homicide offenders in the state 

of Michigan. Rather than being based in a sound interpretation of our Constitution, much 

of the majority’s rationale is based on policy considerations that are properly within the 

purview of the Legislature, not this Court.64 It is likely only a matter of time before the 

majority again flexes its judicial policymaking power to extend Miller further,65 perhaps 

doing away with mandatory life without parole altogether.

 61 Id. at 465 (quotation marks omitted). 

62 See Manning, 506 Mich 1033.

63 People v Parks, ___ Mich ___; ___ NW2d ___ (2022) (Docket No. 162086).

64 See id. at ___; slip op at 14-21 (CLEMENT, J., dissenting, joined by ZAHRA and VIVIANO, 

JJ.).

65 See id. at ___; slip op at 19-20 (CLEMENT, J., dissenting).
26

In People v Poole, a bare majority of this Court has set the stage for applying Parks

retroactively, such that defendants who were 18 years old when they committed murder

and were later sentenced to mandatory life without parole may challenge their sentences 

through motions for relief from judgment.66 If the Court of Appeals accepts the majority’s 

invitation to extend Parks in this way, trial courts will be faced with a slew of 

resentencings. This will exhaust precious judicial resources in an untold number of cases 

and will not only open up old wounds for the families of victims, but will also subject them 

to a whole new trauma—the prospect that their loved-ones’ killers will be released from 

incarceration.

In the present case, the majority, again reading into our state Constitution, makes 

the astounding proclamation that our trial courts no longer have any discretion to sentence 

a juvenile convicted of second-degree murder to life with the possibility of parole. By 

striking down parolable life as a constitutional sentence for juvenile homicide offenders, 

the majority substitutes what the law actually requires with what the majority believes it 

should require, impermissibly usurping the Legislature’s role in making the policy 

decisions of this state. And, given the majority’s expansion of Miller to 18-year-olds in 

Parks, it may only be a matter of time before the majority further expands the class of 

defendants who may not be sentenced to parolable life.

In People v Taylor, a bare majority of this Court conjures a presumption against life 

without parole for juveniles convicted of first-degree murder and imposes a burden on the 

 66 People v Poole, ___ Mich ___ (2022) (Docket No. 161529).
27

prosecution to rebut this presumption by clear and convincing evidence.67 This brazen 

rewrite of the statute, enacted by the Legislature post-Miller to govern the procedures for 

sentencing juvenile homicide offenders, will drastically limit the discretion sentencing 

courts have traditionally held to impose a sentence on a defendant convicted of committing 

one of our state’s most serious crimes.

68 

Finally, in People v Boykin, the majority requires trial courts to consider the 

mitigating qualities of youth when sentencing a defendant to a term of years under MCL 

769.25 or MCL 769.25a, despite no constitutional, statutory, or precedential basis to do 

so.

69 By creating this new rule, the majority invades the role of the Legislature, ignoring 

the policy choices it made in enacting MCL 769.25 and MCL 769.25a.70

Each of these cases, standing alone, represents a significant departure from our 

jurisprudence in this area of the law. But taken as a whole, a bare majority of this Court 

(in all of the cases but Boykin) has dramatically rewritten the sentencing laws applicable to 

young people who commit society’s most heinous crimes. Defining crime and fixing 

punishment is emphatically a legislative task,71 in that it presents profound questions of 

policy and moral judgment best left for the Legislature to establish, not for a slim majority 

 67 People v Taylor, ___ Mich ___; ___ NW2d ___ (2022) (Docket No. 154994).

68 See id. at ___; slip op at 1 (VIVIANO, J., dissenting, joined by ZAHRA and CLEMENT, JJ.).

69 People v Boykin, ___ Mich ___; ___ NW2d ___ (2022) (Docket Nos. 157738 and

158695).

70 See id. at ___; slip op at 2 (ZAHRA, J., dissenting, joined by VIVIANO, J.).

71 See United States v Wiltberger, 18 US (5 Wheat) 76, 95; 5 L Ed 37 (1820) (“[T]he power 

of punishment is vested in the legislative, not in the judicial department. It is the 

legislature, not the Court, which is to define a crime, and ordain its punishment.”).
28

of this Court to prescribe by judicial fiat.72 As Michigan’s court of last resort, it is critically 

important that we honor and respect the separation of constitutional powers and limit the 

exercise of our judicial power to simply state what the law requires and not discern what 

the law should be in light of competing policy considerations. That is a duty 

constitutionally reserved for the Legislature: the state’s elected government body 

representing the will of the people. This Court undoubtedly has the final word on the 

constitutionality of a particular sentence, but by failing to check its judicial power and 

simply state what the law is, the majority denies the Legislature and the people who elect 

our legislative representatives their rightful constitutional authority to determine the 

punishment for a particular crime.

VI. CONCLUSION

Although defendant is ineligible for the constitutional relief articulated in Miller and 

Montgomery and falls outside the purview of the Michigan Legislature’s chosen Miller

remedy, the Court has inappropriately used its judicial power to fashion a remedy for 

defendant that, before today, never existed in Michigan law. Put simply, the majority 

opinion’s erroneous application of the Lorentzen/Bullock factors leads it to the flawed 

conclusion that parolable life sentences are categorically disproportionate for juvenile 

 72 See Gregg v Georgia, 428 US 153, 175; 96 S Ct 2909; 49 L Ed 2d 859 (1976) (opinion 

by Stewart, J.) (“In a democratic society legislatures, not courts, are constituted to respond 

to the will and consequently the moral values of the people.”) (brackets, quotation marks,

and citation omitted); Harmelin, 501 US at 962 (opinion by Scalia, J.) (“[T]he length of 

the sentence actually imposed is purely a matter of legislative prerogative.”) (quotation 

marks and citation omitted); id. at 998 (Kennedy, J., concurring in part and concurring in 

the judgment) (“[T]he fixing of prison terms for specific crimes involves a substantive 

penological judgment that, as a general matter, is properly within the province of 

legislatures, not courts.”) (quotation marks and citation omitted).
29

homicide offenders under Const 1963, art 1, § 16. The law does not require this result, and 

the majority’s mistaken belief that it does invades the province of the Legislature by 

displacing its quintessential role of fixing punishment.73 Because the majority opinion 

affords defendant relief from an otherwise constitutionally proportionate sentence, I 

dissent. 

Brian K. Zahra

David F. Viviano (except as to 

footnote 9)

Elizabeth T. Clement (except as to 

footnotes 24 and 25)

 73 See State v Soto-Fong, 250 Ariz 1, 10; 474 P3d 34 (2020) (“[C]ourts that have held de 

facto juvenile life sentences unconstitutional provide a cautionary tale, as they have 

invariably usurped the legislative prerogative to devise a novel sentencing scheme . . . .”).
S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 162425

MONTEZ STOVALL,

Defendant-Appellant.

VIVIANO, J. (dissenting).

To reach the merits of the constitutional issue raised by defendant concerning cruel 

or unusual punishment, the majority first holds that defendant has satisfied the procedural 

requirements to file a successive motion for relief from judgment. I disagree with that 

conclusion. I do not believe defendant has overcome the procedural bar to filing a 

successive motion for relief from judgment and write to explain why I believe it is 

unnecessary to even reach the merits of defendant’s motion.

Defendant, who pleaded guilty to two counts of second-degree murder, had 

previously filed motions for relief from judgment prior to filing the motion at issue in this 

case. Therefore, he must satisfy the procedural requirements of MCR 6.502(G), which

bars successive motions for relief from judgment unless certain exceptions apply. At the 

time defendant filed his motion for relief from judgment, MCR 6.502(G) stated:

(1) Except as provided in subrule (G)(2), regardless of whether a 

defendant has previously filed a motion for relief from judgment, after 

August 1, 1995, one and only one motion for relief from judgment may be 

filed with regard to a conviction. The court shall return without filing any 
2

successive motions for relief from judgment. A defendant may not appeal 

the denial or rejection of a successive motion.

(2) A defendant may file a second or subsequent motion based on a 

retroactive change in law that occurred after the first motion for relief from 

judgment or a claim of new evidence that was not discovered before the first 

such motion. The clerk shall refer a successive motion that asserts that one 

of these exceptions is applicable to the judge to whom the case is assigned 

for a determination whether the motion is within one of the exceptions.[1]

In his current motion for relief from judgment, defendant argued, inter alia, that his 

sentences violate the Eighth Amendment pursuant to Miller v Alabama, 567 US 460, 465; 

132 S Ct 2455; 183 L Ed 2d 407 (2012) (holding that “mandatory life without parole for 

those under the age of 18 at the time of their crimes violates the Eighth Amendment’s 

prohibition on ‘cruel and unusual punishments’ ”), and Montgomery v Louisiana, 577 US 

190; 136 S Ct 718; 193 L Ed 2d 599 (2016) (applying Miller retroactively). He claimed

these decisions were retroactive changes in law that allowed him to file a successive motion 

for relief from judgment. The trial court denied his motion, acknowledging that 

Montgomery held that Miller applies retroactively but explaining that Miller is not 

applicable to cases involving juveniles sentenced to life with the possibility of parole. 

Because Miller and Montgomery were inapplicable to defendant, the trial court declined to 

review his claims under the principles announced in those cases. Without expressly stating 

that the trial court erred in its analysis of MCR 6.502(G)(2), the Court of Appeals indicated 

that defendant’s reliance on Miller and Montgomery “tenuously” satisfied the procedural 

requirement to allow him to file a successive motion for relief from judgment. People v 

 1 MCR 6.502, as amended June 2, 1995, 449 Mich xciii (1995). This provision of the court 

rule has since been amended twice. Neither of these amendments are relevant for purposes 

of this appeal.
3

Stovall, 334 Mich App 553, 561; 965 NW2d 264 (2020). It proceeded to address the merits 

of his motion, concluding that the trial court did not abuse its discretion in denying 

defendant’s motion. 

The majority in this Court holds that defendant’s motion was “based on a retroactive 

change in law,” such that it satisfied MCR 6.502(G)’s procedural bar. The majority adopts 

the reasoning of Justice CLEMENT’s concurring statement in People v Manning, 506 Mich 

1033, 1038 (2020) (CLEMENT, J., concurring), holding that the change in law need only 

serve as a “foundation” or “base” for the defendant’s claim. Justice CLEMENT’s 

concurrence noted that Merriam-Webster’s Collegiate Dictionary (11th ed) defines the 

verb “base” as: “1: to make, form, or serve as a base for 2: to find a base or basis for—

usu[ally] used with on or upon” and that Black’s Law Dictionary (11th ed) similarly defines 

“base,” in relevant part, as “[t]o make, form, or serve as a foundation for . . . .” Manning, 

506 Mich at 1038 (CLEMENT, J., concurring).

I do not disagree with the definition of “base” that the majority applies today and 

that Justice CLEMENT applied in Manning. Rather, I disagree with how the majority applies 

that definition to defendant’s motion for relief from judgment. Reliance on a clearly 

inapplicable holding—such as the holdings of Miller and Montgomery to a defendant 

sentenced to life with the possibility of parole—is not a true basis or a foundation; rather, 

it is an illusory anchor point.2

 The majority’s interpretation of MCR 6.502(G)(2) elevates 

form over substance, allowing a defendant to satisfy the procedural requirements simply 

 2 The majority itself acknowledges that defendant’s sentence does not run afoul of Miller

and Montgomery, going so far as to say that Montgomery explicitly tells us that defendant’s 

challenge under the Eighth Amendment must fail. Ante at 7.
4

by citing a case with retroactive effect in a motion for relief from judgment, regardless of 

whether the caselaw relied on actually entitles the defendant to any relief.

Federal caselaw regarding the proper interpretation of the federal statutes governing 

habeas corpus review provides some helpful insight. Under 28 USC 2244(b)(2), a claim 

presented in a second or successive habeas corpus application must be dismissed unless 

the applicant meets certain criteria, one of which is that “the applicant [must] show[] that 

the claim relies on a new rule of constitutional law, made retroactive to cases on collateral 

review by the Supreme Court, that was previously unavailable[.]” 28 USC 2244(b)(2)(A). 

If a three-judge panel of the appropriate court of appeals is satisfied that the prisoner’s 

application has made a prima facie showing that one of the exceptions to the general rule 

against second or successive habeas corpus applications applies, it may allow the prisoner 

to file an application or motion in the district court. 28 USC 2244(b)(3)(B) and (C); 28 

USC 2255(h).

3

There is currently a split among the United States Courts of Appeals with respect to 

what “relies on” means for purposes of habeas corpus applications. See generally Means, 

Federal Habeas Manual, § 11:36 (May 2022 update). The Third Circuit has taken the most 

liberal approach, permitting a nonfrivolous extension of a rule to be certified, while leaving

the ultimate decision on the merits for the district court. See In re Hoffner, 870 F3d 301, 

 3 28 USC 2244 applies to state prisoners, while 28 USC 2255 provides a similar procedure 

for federal prisoners who seek to have their sentences vacated or set aside. Although 22 

USC 2255(h) does not contain the “relies on” language found in 28 USC 2244(b)(2), it 

contains an express reference to 28 USC 2244, and federal appellate courts have generally 

found that the “relies on” language applies to motions brought under 28 USC 2255. See, 

e.g., In re Hoffner, 870 F3d 301, 307 & n 9 (CA 3, 2017); Donnell v United States, 826 

F3d 1014, 1016 (CA 8, 2016).
5

308 (CA 3, 2017) (holding that “whether a claim ‘relies’ on a qualifying new rule must be 

construed permissively and flexibly on a case-by-case basis”). However, even the Third 

Circuit’s approach is not without limitations. The rule relied upon need not “conclusively 

decide[]” the movant’s claim, but it must “substantiate[] the . . . claim.” Id. at 309 

(quotation marks and citation omitted; first alteration in original). And while the movant 

can argue for a nonfrivolous extension of the rule, the “requested extension . . . cannot be 

so facially implausible that he is not really ‘relying’ on the new rule at all.” Id. at 311 

(quotation marks and citation omitted).4

Other circuits have taken a narrower approach. In particular, the United States Court 

of Appeals for the Eighth Circuit has rejected the argument that a movant can seek an 

extension of a new rule. In Donnell v United States, 826 F3d 1014, 1016 (CA 8, 2016), it

explained:

A claim “relies on” a new rule when it is ‘based on’ a new rule . . . . A claim 

is truly “based on” a new rule only when the new rule recognizes the right 

asserted. See Webster’s Third New International Dictionary 180 (defining 

“base” as “the fundamental part of something: ESSENCE, 

FOUNDATION”). Where a claim depends on recognition of a second new 

rule, the claim is best understood as relying on that second rule for a grant of 

relief.

I find the analysis in Donnell to be particularly persuasive, especially because the Eighth 

Circuit understood “relies on” to mean the same thing as “based on,” that latter term being

at issue in MCR 6.502(G)(2). The relief defendant requested in his motion does not depend 

on recognition of the rule announced in Miller and made retroactive in Montgomery. 

 4 The United States Court of Appeals for the Ninth Circuit, relying extensively on In re 

Hoffner, also found that requests for nonfrivolous extensions satisfy the “relies on” 

requirement. See Henry v Spearman, 899 F3d 703, 706 (CA 9, 2018).
6

Rather, it depends on a rule that even the majority agrees is not found in those cases. The 

rule that the majority relies on to grant defendant relief was not in existence at the time 

defendant filed his motion. This fact is obvious, as it is in this very case that the Court has 

created a new rule that a parolable life sentence for a juvenile who commits second-degree 

murder violates our state Constitution.

I fear that the majority’s interpretation of the court rule will incentivize criminal 

defendants to file increasingly meritless successive motions for relief from judgment, 

which will further burden our already backlogged trial courts. See People v Anderson, 508 

Mich 971, 972 (2021) (VIVIANO, J., dissenting) (acknowledging the backlog of cases due 

to the COVID-19 pandemic). Unlike even the most generous interpretations of the federal 

habeas corpus statutes, the majority has imposed no discernable limitation on how 

tangential a case may be to the relevant new rule or how great of an extension would be 

necessary in order for a defendant to be entitled to relief. As a result, the trial courts will 

struggle to apply the majority’s holding and, undoubtedly, much unwarranted 

postjudgment litigation will ensue.

I would deny leave to appeal under MCR 6.502(G). But even if defendant could 

overcome the procedural bar, I would conclude that his constitutional argument fails for 

the reasons stated by Justice ZAHRA. I therefore join Justice ZAHRA’s dissent in every 

respect other than footnote 9.5

 For these reasons, I dissent.

David F. Viviano

 5 Because the rest of my colleagues have reached this question, it is appropriate for me to 

likewise indicate my view. See In re Certified Questions, 506 Mich 332, 414 & n 21; 958 

NW2d 1 (2020) (VIVIANO, J., concurring in part and dissenting in part).
S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 162425

MONTEZ STOVALL,

Defendant-Appellant.

CLEMENT, J. (dissenting).

I join Justice ZAHRA’s dissent except for footnotes 24 and 25 and except insofar as 

it conflicts with my opinion in People v Boykin, ___ Mich ___; ___ NW2d ___ (2022) 

(Docket Nos. 157738 and 158695).

Elizabeth T. Clement