The Meaning of Life, In Michigan: Mercy from Life Sentences Under the State Constitution
By David Shapiro, Molly Bernstein
Properly understood, the “cruel or unusual” punishment clause of the Michigan Constitution grants every person sentenced to life in prison a meaningful right to obtain release by making a convincing showing of rehabilitation. Today, however, Michigan has among the nation's largest populations of people serving both formal and de facto life sentences without any meaningful possibility of release. Michigan’s current life-sentence regime therefore violates the state constitution.
In 1850, Michigan revised its constitution to prohibit “cruel or unusual punishment” creating a contrast with the conjunctive “cruel and unusual punishments” clause of the federal Eighth Amendment. Under Michigan’s disjunctive prohibition, cruelty standing alone made a punishment “cruel” and thus unlawful. But what made a sentence “cruel”?
Our analysis of sentencing and punishment practices immediately before and after the 1850 constitutional convention sheds light on this question. Michigan abolished capital punishment in 1846, shortly before its 1850 constitutional convention. Life in prison became the punishment for crimes previously punished by death. These life sentences were “without parole” because no system of parole existed at the time. But life sentences—indeed all prison sentences— allowed a meaningful opportunity for release through a different and long-established mechanism: the pardon power. Liberal use of the pardon power was considered necessary to provide a meaningful opportunity to obtain release based on rehabilitation, thereby preventing life sentences from becoming “cruel” and thus unconstitutional. According to accompanying executive statements, mercy (in particular, to prevent death in prison) and rehabilitation were among the primary bases for granting clemency from prison terms.
This historical record shows that, at the time, truly permanent or final, inflexible punishments did not exist. Instead, for sentences both short and long, the necessity and efficacy of incarceration was always subject to review. Significant additional evidence confirms that, originally understood, it was cruel for the state to impose any punishment beyond that necessary to rehabilitate offenders—especially punishments that foreclosed the chance of rehabilitation entirely. For example, debates among delegates at the state’s 1850 constitutional convention reflect a shared understanding that the primary if not exclusive purpose of criminal sanctions was reformation, along with deep skepticism of any punishment that permanently excluded people from civil society. This rejection of permanent prison terms prevailed in Michigan for well over 100 years. Through most of the 20th century, no one in Michigan was sent to prison without a chance of release. Instead, even people technically serving “life without parole” were routinely considered for and awarded release based on rehabilitation. This longstanding practice confirms that permanent prison terms were not just needlessly cruel, but “unusual” to the point of nonexistent.
Yet today, as both executive clemency and parole grants have dwindled, Michigan has among the nation's largest populations of people serving both formal and de facto death-by-incarceration sentences, which we define as a life sentence unaccompanied by a meaningful opportunity to secure release by demonstrating rehabilitation. With a focus on the role of clemency as a meaningful form of sentence review—particularly contemporaneous with the adoption of Michigan’s “cruel or unusual” anti-punishment clause— this article adds to the body of evidence showing that, according to the original meaning of Michigan's constitution, mandating death in prison is cruel and unconstitutional.
Unpublished paper, 2024. 21p.