In the months leading up to his release, Jose Burgos’s mind was buzzing.
For nearly three decades the Detroiter had been behind bars. It’s where he was told he'd die. But in 2018, a judge re-sentenced him. And suddenly, years of “what-ifs” no longer floated above him like some abstract daydream. They were about to become tangible realities. It was exciting, but also overwhelming.
"What does it feel like to go out to dinner with a girlfriend? What does it feel like to own your own car? What does it feel like to have your own place?" the now 45-year-old remembers asking himself, noting that some of the other questions — and hopes — he had in his early days of incarceration no longer applied after 27 years. "I had all these fantasies from when I was younger. Now I’m an adult, some of these things that I thought about at the age of 18 or 21 or 22, they were no longer age-appropriate."
This evolution in thinking — a mental transformation — is part of the reason Burgos got a second chance. Sentenced to life without parole in 1992, after killing a man in a botched drug deal at the age of 16, Burgos is one of Michigan’s 300-plus juvenile lifers. In 2012, citing developmental differences in the teenage brain, as well as the ability for rehabilitation, the United States Supreme Court (SCOTUS) ruled that it is unconstitutional to sentence a teen to life without parole, except in the rarest of circumstances, where the youth is deemed "irreparably corrupt." They doubled down on this decision in 2016, making the ruling retroactive so that those already serving such a term, like Burgos, could get a new sentence as well.
But in 2019 — a year after Burgos came home, and three-and-a-half after SCOTUS clarified that their original decision was meant to be retroactive — over half of Michigan’s juvenile lifers were still waiting to go before a judge to get a new sentence. Burgos’s homecoming was, in fact, the rarity. And this disconnect is only intensified with COVID-19, which has not only slowed the state's already protracted re-sentencing timeline but has magnified the possible repercussions.
"Now you’re in a position where what was a presumptively unconstitutional life sentence, runs the risk of being a categorically unconstitutional death sentence," said Eli Savit, the newly sworn-in Washtenaw County Prosecutor.
According to a recent analysis by the Marshall Project, the Michigan Department of Corrections (MDOC) ranks fourth — after the Federal prison system, California and Texas — for COVID-19 infections in prisons. Close quarters and an already high prison population have made the state's prisons a tinderbox for the virus. Since the start of the pandemic over 20,000 individuals — half the state's inmates — have tested positive for COVID-19. And as of last week, over 120 prisoners have died from the virus, including one juvenile lifer — William Garrison — who died in April, weeks before was set to be released on parole.
"They waited so long, all these years they had this hope of coming home, some type of life and now this whole COVID situation. It’s just, it’s not right," said Burgos, who now works for the Michigan Appellate Defender Office helping currently incarcerated juvenile lifers come up with re-entry plans.
"A lot of them," he continued, "are worried that they’re even going to make it to get re-sentenced."
This fear underscores a peculiar predicament waiting-juvenile lifers find themselves in: While SCOTUS has deemed their sentence unconstitutional until they go before a judge for a final sentence-determination, their official prison status reads as "non-parolable LIFE."
The repercussions of this friction are amplified with COVID-19, as MDOC says it is attempting to send more parole-eligible people home to curb the virus — and, more specifically, it makes delineations between those who have died that were parole-eligible and those who have mandatory sentences.
"We don't have the ability to release them even if we wanted to, whether there is a pandemic or not," MDOC spokesperson Chris Gautz told 7 Action News last month when explaining that of the then-99 inmates that had died, 52 of them had mandatory life-sentences, and therefore could not have been eligible for release.
"Lawmakers or advocates if they’re saying we need to release more people they should be talking to lawmakers to change the laws to enable us to do that," Gautz continued at the time.
For juvenile lifers in Michigan, however, this statement is not so simple. SCOTUS did already weigh in on the matter. The law — and unconstitutionality of the sentence — has already been determined. It's now about scheduling when changes in a sentence can happen. And making sure, with COVID-19, that it's not too late.
"I don’t think the Supreme Court could have emphasized it anymore," said Savit, who is part of a growing trend of reformist prosecutors, "that this sentence is really only reserved for the rarest of circumstances."
"These folks are in prison for a crime that they committed when they were very young, and now run the very real risk — by virtue of how prisons are set up — of catching COVID, of potentially dying," he continued. "I think it exacerbates the profound injustice that has come up by our failure, frankly, to move quickly on juvenile re-sentencing."
A PRE-COVID PROBLEM?
While COVID-19 has amplified the consequences of Michigan's re-sentencing timetable, blame abounds when it comes to pinpointing what exactly caused the current backlog.
"There’s plenty of blame or responsibility to go around to the different players in the system," said Tina Olson, a defense attorney with the Michigan Appellate Defender Office.
While Olson acknowledges a number of different roadblocks she, like many defense attorneys, focuses on some of the earliest decisions in the state.
"Our starting point was so far from where it should have been," she said, referring to the fact that prosecutors in Michigan originally recommended 66% of the state's juvenile lifers to continued life without parole.
"That’s just what’s put us so far behind where we should have been all along," she continued.
Prosecutors, for their part, see the early recommendation as less black and white. They point back to the rules they were bound to.
In 2013 — following the Supreme Court's first ruling, but prior to the 2016 retroactivity decision — the Michigan legislature passed a number of laws in anticipation of a retroactivity ruling. One of them made it so prosecutors would have only 180 days to make a re-sentencing recommendation.
"We had 144 cases which is a pretty large number and a lot to get thru in six months," said Tom Dawson, who was brought on by Wayne County Prosecutor Kym Worthy in fall 2016 — after recommendations were made — to focus on the county’s juvenile lifer cases.
Under the law, recommending someone for continued life could change, but a term-of-years (a parole-eligible recommendation) was binding. Because of this, Dawson maintainsed that many prosecutors selected the harsher, but more malleable, choice in order to give themselves more time.
"If we filed a motion for life without parole that decision can always be re-looked," Dawson said, noting that while the county originally recommended 43% of its 144 juvenile lifer cases to continued life, it has since changed its recommendation on 13 cases.
"We’ve changed our mind after getting additional information, after doing a more thorough review of the case," he continued.
Still, Olson maintains the original recommendations created barriers by essentially putting juvenile lifers on tracks. Those recommended for a term of years were ushered through the system first. The 66% recommended for continued life had to wait.
She points to Burgos, who now works as a colleague of hers at the Michigan Appellate Defender Office.
One of the 13 cases Dawson subsequently changed, Burgos had to wait for all the original term-of-year cases to wrap up before he could make the case for a parole-eligible sentence again.
"I told my attorney most of the guys that the prosecutors agreed to a term of years for had already been re-sentenced so I thought now was the time to go back," Burgos said, remembering how he had to wait.
"Tom Dawson called my attorney back, he said 'After reviewing the case you know what we think your client does deserve a term of years,'" he continued. Burgos was resentenced in May 2018 and came home that October.
For those who were recommended for continued life, and did not have their recommendation change, the wait time can be even longer.
Up until June 2018, defense attorneys and prosecutors were in a stalemate over how to proceed with cases where an individual was recommended for continued life. Should a judge or a jury hear these cases? The Michigan Supreme Court ultimately decided it should be a judge. But for those two and a half years, none of the cases moved forward.
Today, under Michigan state law, a recommendation of a term of years goes directly to a judge for sentencing, while a recommendation of continued life is a much more time-consuming legal process that can involve a hearing, evidence, and witnesses. What is known as a Miller Hearing.
This hearing is critical as both Olson and Dawson point out that while they may be in disagreement over how many juvenile lifers should be recommended for continued life, ultimately the decision rests in the hand of the judge.
"At and at the end of the day the person who makes the ultimate decision is the reviewing judge," said Dawson. "They review the motion, give and grant the defendant an individualized hearing and look at everything and then make a decision."
According to Dawson, Wayne County has completed six Miller Hearings that have gone to a decision. In only two of them, the judge decided in favor of continued life.
"Four of them they have ruled against our recommendation," he said, noting that the county has 46 cases still waiting to go before a judge for a decision. Eight had been scheduled for April, May, and June of this year.
"That would have been 8 people that we could have taken care of. COVID hit and now everything is up in the air," he continued.
THE CHALLENGES WITH COVID-19
It is the urgency to get a case in front of judge — the person who can make the final determination on a re-sentence — that has intensified with COVID-19.
While defense attorneys like Olson are less understanding of the protracted timeline — maintaining that the tracks created by the original recommendations have put the state far behind others — the impact of COVID-19 is a point of agreement for both parties.
"To say that our work has been impacted by COVID, that’s an understatement," said Olson, whose office has 69 juvenile lifer clients, across the state, waiting for a re-sentencing.
Since the spring courthouses across the state have been closed making in-person hearings impossible.
Wayne County Circuit Court expects to open the second week of February, but given the high number of cases within the MDOC system, plans are still being figured out as to how to get inmates into the courtroom.
"There’s the right to do it in person, but that right is not going to be held immediately or exercised immediately for safety reasons," said Chief Judge Timothy Kenny, who said the Wayne County Sheriff's office is currently coming up with plans for transferring inmates to the county jail for an in-person hearing.
"Somebody who’s in the jail right now who wants to be sentenced or wants to have a hearing, that’s going to be scheduled a lot more quickly," he continued, noting that an inmate will likely have to show two negative tests before being able to be transferred.
With this obstacle in mind, attorneys are forced to weigh the question of Zoom hearings. It's a technological advance that may make sense for a traffic violation appearance, but can feel more weighty for a Miller Hearing.
"Our legal system is really set up on face-to-face encounters, looking a court in the eye and telling your position a judge and then being able to look at the person and interact with them and make a decision as to what to do," said Dawson.
"Normally, I wouldn’t want to have such a serious re-sentencing hearing with a number of witnesses by video. I would normally want my client to be in the courtroom where the judge can see and hear from my client. If the victim’s family is present they can see and hear from my client. And all of those things," she said, noting that while she did recently have a Miller Hearing online that resulted in a client being granted parole, it's still a hard decision.
"You don’t know if that’s a good strategic call as an attorney," she said, noting that the position is a bit of a Catch-22. Going before a judge is the only way these individuals can become parole-eligible and escape COVID-19. But COVID-19 also means that going before a judge must happen in a less personal and clear manner. A manner that could work against her clients.
"Certain clients need their attorney with them during this experience," she said. "They’re going to have a lot of questions during the process. It’s a very emotional thing for them. So certain clients, I’ve had to make the decision we will not go forward unless I can physically be with my client."
According to Olson 33 of her office's 69 clients have been in prison for at least 25-years, the minimum sentence a juvenile lifer can be given should a judge decide in favor of a term of years. For those clients — the ones that could come home if a judge heard their case and decided against the prosecution — a Zoom hearing could feel enticing.
"If we had a hearing now, if we went in front of a judge now, and the judge decided on a term of years sentence, they could be eligible for parole at this point," she said.
It's a debate Burgos, who speaks with currently incarcerated juvenile lifers as part of his job regularly, acknowledged comes up often.
"I’ve talked to some guys who don’t mind doing it via Zoom or whatever because they’re so anxious to get the process done and over with and they're OK with that," he said. "Then you have those that think they want to be there, they want to be there and be part of the process."
While Dawson noted COVID-19 has created hazards within the prison system, he's reticent at the idea of changing any of his recommendations based on the virus.
"The COVID pandemic should not be any reason why we short circuit and deny someone justice one way or another," he said. "We are doing everything we can to make sure justice is done. That the juvenile lifers receive the justice they deserve and the family of the deceased receive the justice they deserve as well."
For Savit, the new prosecutor, it's difficult, however, to disentangle the virus from the punishment.
"The sentence that was bestowed on juvenile lifers did not include catching COVID, it did not include death, but that is the situation that we’re in right now," he said, later adding: "We know that we’re holding people far beyond the date where they continue to pose a threat to the community. It’s costing us money, it’s impacting family’s lives and it’s something that, even if that’s not something that moves you, the Supreme Court has said that we shouldn’t be doing it."
The differing views from the prosecutors highlight one of the difficulties that have come up around juvenile lifers. Despite two rulings where SCOTUS has weighed in on the sentence, interpretations of the court's intentions vary greatly. And in turn, when it comes to re-sentencings, outcomes can vary wildly from region to region. And now, with COVID-19, this is felt with the differing levels of the outbreak within the nation's various prison systems.
"What makes the difference between a juvenile lifer here in Michigan and one in Ohio or one in Pennsylvania or one somewhere else?" asked Burgos, flicking at the discrepancies between re-sentencing timelines and policies across the country. "I mean we're all the same. It's just kind of hard to understand those things."