People of Michigan v. David Leroy Bennett ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
January 21, 2021
Plaintiff-Appellee,
v No. 350649
Wayne Circuit Court
DAVID LEROY BENNETT, also known as DAVID LC No. 72-055257-01-FH
LENORY BENNETT,
Defendant-Appellant,
and
MICHIGAN PROTECTION AND ADVOCACY
SERVICE INC,
Amicus Curiae.
Before: SWARTZLE, P.J., and BECKERING and GLEICHER, JJ.
GLEICHER, J. (concurring).
I fully concur with the majority opinion. Unconstrained by majority authorship, I write
separately to express my view that the Eighth Amendment also prohibits resentencing Bennett to
life without parole because of his mental illness diagnosis.
“Protection against disproportionate punishment is the central substantive guarantee of the
Eighth Amendment and goes far beyond the manner of determining a defendant’s sentence.”
Montgomery, 577 US at ___; 136 S Ct at 732-733; 193 L Ed 2d 599 (2016). The evolving
standards of decency underlying the Eight Amendment’s proportionality requirement compels me
to conclude that successfully treated mental illness cannot serve as the sole basis for imposing a
life-without-parole sentence following a Miller hearing. The Eight Amendment requires judges to
view mental illness as a fact that mitigates an offender’s culpability for committing a crime. It
logically follows that a juvenile offender’s successfully treated mental illness must be regarded as
a mitigating factor under the Eighth Amendment.
-1-
The United States Supreme Court has tethered the “evolving standards of decency”
paradigm to “objective indicia of society’s standards, as expressed in legislative enactments and
state practice[.]” Roper, 543 US at 563. Mental illness is universally recognized by courts and
legislatures as a mitigating factor in sentencing considerations. Judicial recognition that mental
illness is mitigating rather than aggravating is abundant. In Rompilla v Beard, 545 US 374, 393;
125 S Ct 2456; 162 L Ed 2d 360 (2005), the Supreme Court described that evidence of the
defendant’s mental illness that had been undiscovered by counsel “adds up to a mitigation case”
that bore no relationship to the arguments otherwise presented. Similarly, in Porter v McCollum,
558 US 30, 40; 130 S Ct 447; 175 L Ed 2d 398 (2009), the Supreme Court unanimously held that
counsel’s failure “to uncover and present any evidence of [the defendant’s] mental health or mental
impairment” during the penalty phase of his trial amounted to the ineffective assistance of counsel.
These cases represent but a handful of expressions of our society’s understanding that
mental illness is a circumstance that lessens an offender’s moral culpability. “Numerous state
legislatures and courts have concluded that certain mental and emotional states may constitute
mitigating factors. Nearly two dozen jurisdictions list as a statutory mitigating circumstance the
fact that the defendant’s capacity to appreciate the criminality of her conduct was substantially
impaired, often as a result of mental defect or disease.” Berkman, Mental Illness as an
Aggravating Circumstance in Capital Sentencing, 89 Colum L Rev 291, 296-297 (1989) (footnotes
omitted). Michigan’s “guilty but mentally ill” statute, MCL 768.36, was intended by the
Legislature to serve beneficent purposes: “(1) to ensure that criminally responsible but mentally
ill defendants obtain professional treatment in ‘the humane hope of restoring their mental health’
while incarcerated or on probation, and, correlatively, (2) to assure the public that a criminally
responsible and mentally ill defendant will not be returned to the streets to unleash further violence
without having received necessary psychiatric care after sentencing.” People v Booth, 414 Mich
343, 353-354; 324 NW2d 741 (1982). And Michigan’s Mental Health Code, MCL 330.1001 et
seq., prohibits a court from ordering a person involuntarily committed for mental health treatment
absent clear and convincing evidence that:
(a) An individual who has mental illness, and who as a result of that mental illness
can reasonably be expected within the near future to intentionally or unintentionally
seriously physically injure himself, herself, or another individual, and who has
engaged in an act or acts or made significant threats that are substantially supportive
of the expectation.
(b) An individual who has mental illness, and who as a result of that mental illness
is unable to attend to those of his or her basic physical needs such as food, clothing,
or shelter that must be attended to in order for the individual to avoid serious harm
in the near future, and who has demonstrated that inability by failing to attend to
those basic physical needs.
(c) An individual who has mental illness, whose judgment is so impaired by that
mental illness, and whose lack of understanding of the need for treatment has
caused him or her to demonstrate an unwillingness to voluntarily participate in or
adhere to treatment that is necessary, on the basis of competent clinical opinion, to
prevent a relapse or harmful deterioration of his or her condition, and presents a
-2-
substantial risk of significant physical or mental harm to the individual or others.
[MCL 330.1401(1).][1]
See also Foucha v Louisiana, 504 US 71, 77; 112 S Ct 1780; 118 L Ed 2d 437 (1992) (“[A]s a
matter of due process that it was unconstitutional for a State to continue to confine a harmless,
mentally ill person. Even if the initial commitment was permissible, ‘it could not constitutionally
continue after that basis no longer existed.’ ”).
The evolving standards of decency reflected in these statutes support that inflicting
additional punishment on people with successfully treated mentally illness violates the Eighth
Amendment. Allowing treated mental illness to aggravate Bennett’s punishment is inconsistent
with Miller’s proportionality principles and the traditional justifications for punishment. On this
ground as well as those detailed in the majority opinion, resentencing to a term of years is a
constitutional imperative.
/s/ Elizabeth L. Gleicher
1
“A judge or jury shall not find that an individual is a person requiring treatment unless that fact
has been established by clear and convincing evidence.” MCL 330.1465.
-3-