Many attorneys will not remember the brief period of time – from 1989 through 1994 – when there was an established rule precluding a sentence that was longer than an individual could reasonably be expected to serve. In 1989, the Michigan Supreme Court invalidated a sentence of 100 to 200 years imprisonment for second-degree murder, concluding that a term of years must be less than a life sentence, there must be an opportunity for parole between the minimum and maximum terms, and the sentence must be one that is possible to serve. People v (Timothy) Moore, 432 Mich 311 (1989). Five years later, the Supreme Court affirmed a sentence of 60 to 120 years imprisonment for first-degree criminal sexual conduct, concluding that the sentence was proportionate and the legislature did not intend that all defendants be eligible for parole. People v Merriweather, 447 Mich 799 (1994). Although the Merriweather decision did not, by its terms, directly overturn the Moore rule, later decisions made clear that the Moore rule was indeed dead. See People v Kelly, 213 Mich App 8, 15 (1995) (concluding Merriweather overruled Moore); People v Lemons, 454 Mich 234 (1997) (affirming sentences of 60 to 90 years for 45-year-old offender where the sentences were proportionate to the seriousness of the offense).

Why is this relevant now? It seems the debate may have resurfaced. In People v Purdle, ___ Mich App ___ (Docket No. 353821, 2/22/24), a two-member majority of the Court of Appeals (Judges Cameron and M. J. Kelly) concluded that a defendant’s age and race (i.e., a 31-year-old Black man who would be 89 years old before becoming eligible for parole) were not factors to consider with reference to the traditional goals of sentencing and those factors do not render the sentence disproportionate on the facts of the case. Judge Shapiro dissented, reasoning that a minimum term of 56 years and 8 months for second degree murder was not a sentence that could be reasonably served within the offender’s lifetime and thus “sidestepped” the requirement of parole consideration and constituted a disproportionate sentence. Mr. Purdle’s application for leave to appeal to the Supreme Court was filed on April 18, 2024, and is currently pending.

Will the Supreme Court take up the Purdle case and revive the Moore rule? There’s always the possibility, especially when the Court already once remanded to the Court of Appeals for reconsideration of the proportionality of this within-guidelines sentence. In addition, the Michigan Supreme Court is generally less conservative in criminal cases than in years past and may see the issue not from the crime-fighting lens of the 1990s but from a view that looks to harmonize relevant penalty provisions, parole laws, and indeterminate sentencing as a whole. (It may not hurt that Justice Megan Cavanagh is the daughter of retired Justice Michael Cavanagh, the latter having penned the Moore decision and defended it in dissent in Merriweather and Lemons.)

The coming months will make clear whether the Michigan Supreme Court is willing to revisit this issue. In the meantime, it may help to remember that the intended purpose of indeterminate sentencing was to permit early release of the offender upon a showing of successful rehabilitation. See In re Manaca, 146 Mich 697, 701 (1906); People v Cook, 147 Mich 127, 132 (1907); People v Lorentzen, 387 Mich 167, 179 (1972); People v Tanner, 387 Mich 683, 694 (1972) (Brennan, J., dissenting); People v Wright, 432 Mich 84, 96 n 3 (1989) (Boyle, J., concurring). See also Zalman, The Rise and Fall of the Indeterminate Sentence, 24 Wayne L Rev 45, 48-49 (1977). Does a longer than life sentence qualify as an “indeterminate sentence” within the meaning and understanding of that language as approved by the electorate in 1902, as introduced into law in 1903, as currently found in Const 1963, art 4, § 45 (“The legislature may provide for indeterminate sentences as punishment for crime and for the detention and release of persons imprisoned or detained under such sentences.”), and as referenced in MCL 769.8 (providing for indeterminate sentencing for first offense felonies) and MCL 769.9 (providing for indeterminate sentencing with a term of years)? For those serving a longer than life sentence, there’s always hope for a fresh look at our understanding of indeterminate sentencing.

Anne Yantus
Michigan Sentencing
Copyright Anne Yantus 2023

Anne Yantus is a sentence consultant working with attorneys to promote more favorable sentencing outcomes. Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office. Following her time with SADO, Anne taught a criminal sentencing course at University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC. Anne welcomes your Michigan felony sentencing questions and is happy to arrange a consultation where appropriate. Due to the volume of inquiries, the author is not able to respond to pro bono requests for assistance or analysis of individual fact situations.

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