Document Type
Article
Publication Date
2025
Abstract
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 through 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.
In 1850, Michigan revised its state constitution to prohibit “cruel or unusual punishment,” creating a contrast with the conjunctive “cruel and unusual punishments” clause of the federal Eighth Amendment. This disjunctive prohibition, which subsequent Michigan constitutional conventions retained, prohibits both “cruel” sentences and “unusual” sentences. We argue that under the original meaning of Michigan’s “cruel or unusual punishment” clause, life without parole sentences violate the state constitution.
Admittedly, there is no direct evidence of what would have made a sentence “cruel” for the drafters of the 1850 constitution. We therefore turn to two other sources for clues—debates surrounding a different provision of the 1850 constitution and evidence of parole and commutation practices at that time. Both sources point to the same conclusion: “cruel” punishments foreclose a meaningful opportunity for future release based on rehabilitation.
Consistent with this original understanding, Michigan rejected permanent punishments for well over 100 years after the 1850 convention. Michigan did not send people 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, making permanent incarceration “unusual” to the point of nonexistent.
Michigan today has one of the nation’s largest populations of people serving both formal and de facto life sentences without any meaningful possibility of release. Thus, as practiced in Michigan today, life sentencing is “cruel” and “unusual”—and thus doubly unlawful under the original meaning of the “cruel or unusual punishment” clause.
Recommended Citation
Bernstein, Molly and Shapiro, David, "The Meaning of Life, in Michigan: Mercy from Life Sentences Under the State Constitution" (2025). JCLC Online. 34.
https://scholarlycommons.law.northwestern.edu/jclc_online/34
