Rick
Wershe’s struggle to win his freedom after 27 years in prison for a non-violent
drug offense committed when he was 17 has moved to the Michigan Supreme Court. In
September, the Wayne County, Michigan judge assigned to his case agreed he
deserved to be re-sentenced in light of significant changes over the years to
Michigan’s drug laws and sentencing guidelines related to similar convictions.
The Wayne County prosecutor is vigorously fighting Wershe’s re-sentencing,
insisting he was sentenced to life and should stay in prison for life. Thus the
case is now before Michigan highest court. Here’s what the lawyers are arguing
about.
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| The Michigan Supreme Court |
The court argument about whether Rick Wershe can be
re-sentenced to time-served after 27 years in prison comes down to whether
prison sentences can be changed or modified as the times and the laws and public
attitudes change or whether a prison sentence meted out under the laws of the
time must never, ever be changed because it was legal at the time. Wayne County
Circuit Court judge Dana Hathaway believes Wershe can and should be
re-sentenced. The Wayne County prosecutor vehemently disagrees.
The Wayne County prosecutor’s office is squandering money
and staff resources trying to keep Wershe in prison even though everyone else
in Michigan sentenced to life in prison for a non-homicide drug crime committed
as a juvenile has been paroled.
Prosecutor Kym Worthy, who never misses an opportunity to
whine that Wayne County doesn’t give her a budget sufficient to prosecute bad
people who need to be behind bars, is wasting her budget dollars in a desperate
effort to keep Rick Wershe in prison until he dies. Yet a prison official where
Wershe is serving time says if there were such a thing as a model prisoner,
Wershe would fit the description.
Worthy has admitted, in response to a Michigan Freedom of
Information Act request from me, that records do not exist to support
claims by her predecessor, Mike Duggan, now the mayor of Detroit, that Wershe
was a drug lord with a gang that had a habit of getting themselves killed when they
weren’t busy slinging dope or making God-fearing witnesses against Wershe disappear.
A 2003 Duggan letter to the Michigan Parole Board argued Wershe should remain
in prison the rest of his life as a menace to society for various alleged crimes
Worthy now admits aren’t supported by any records in the prosecutor’s office
files.
It is the elephant in the room no one wants to talk about
for fear all hell would break loose if a serious effort is made to find out the
truth about the legend of White Boy Rick, as Wershe came to be known in the
media. That legend is largely responsible for the inertia in releasing him from
prison. No one wants to be the one to release a legendary menace to society, even if the legend was built on a pile of lies.
As her fight to keep this one man in prison until he dies
plays out before the Michigan Supreme Court, the court battle isn’t about a
vendetta against a white FBI informant in the mostly black Detroit drug world
aided by police and political corruption or about the shaky and shady evidence
used to condemn Rick Wershe to a life in prison.
Wait! Haven’t you told us Rick Wershe admits he was working
to become a cocaine wholesaler?
Well, yes. That’s absolutely true. He did this after law
enforcement recruited him at age 14 to become a confidential drug informant,
then kicked him to the curb once they made their big case after he helped them
achieve success. Wershe was about 16 or so and a school dropout because he was so busy playing
drug world spy, he turned to the only trade he knew; the one law enforcement
taught him. He set out to become a dope dealer.
In his 1988 drug trial the Detroit Police could not and
did not produce any evidence that Wershe’s fingerprints or palm prints were on
the cocaine he was accused of having in his possession. Don’t forget: Wershe
wasn’t charged with conspiracy or racketeering. He was charged with possession
with intent to distribute over 650 grams of cocaine.
Hmm, you might say. Did Detroit narcs plant the box of
dope they “found” in a neighborhood back yard about half an hour after Rick
Wershe was arrested, dope they claimed belonged to Rick Wershe even though
there was nothing tying him to the box of cocaine? I am shocked. Shocked! To
think you might have such a thought about these brave and honorable men in blue
who risked their lives to make the mean streets safe from bad hombres like
17-year old Rick Wershe. But I digress. Let’s get back to the pending battle
before the Michigan Supreme Court.
You don’t have to have a law degree to understand the key
elements of Wershe’s appeal to the Michigan Supreme Court. You just have to
understand lawyers hate talking to each other in plain English. Take a deep
breath and read the next paragraph, even though the second sentence may set a
record for its length:
“The
present case involves an important and significant issue of law and fact. In
her opinion and order, Judge Hathaway ruled that because Mr. Wershe’s original
sentence of mandatory nonparolable (sic) life as a juvenile for a non-homicide
offense was indisputably unconstitutional under the Eighth Amendment’s ban on
cruel and unusual punishment, pursuant to subsequent decisions of the United
States Supreme Court, the proper remedy for that unconstitutionality should be
a resentencing, at this time, under the current version of Michigan’s
controlled substances law, in which the Michigan Legislature has twice reduced
the severity and eliminated the mandatory nature of the sentencing scheme which
was applicable in 1987.”
Did you get that? It is from Wershe’s appeal to the
Michigan Supreme Court. Let’s break it down. At the time Wershe was arrested in
1987 and sentenced in 1988 Michigan’s drug law stated if the amount of drugs
involved was over 650 grams (the prosecution claimed Wershe had 17 pounds of
cocaine) the sentence was mandatory life without parole. That law, one of the
harshest in the nation, was eventually overturned to allow for the possibility
of parole.
Wershe’s lawyers argue sentencing a juvenile to mandatory
life in prison for “a non-homicide offense” is cruel and unusual punishment as
prohibited by the Eighth Amendment of the U.S. Constitution, so the way to
remedy that is to re-sentence him, under current Michigan drug law, as Wayne
County Circuit judge Dana Hathaway has proposed. As the Wershe appeal notes "...the
Michigan Legislature has twice reduced the severity and eliminated the
mandatory nature of the sentencing scheme which was applicable in 1987.”
The Wayne County Prosecutor’s answer is basically what’s
done is done and it was done properly under the law that was on the books at
the time and therefore cannot and should not be modified. The fact the Michigan
legislature has modified the law and the Michigan Supreme Court has weighed in
on sentencing guidelines makes no difference to Prosecutor Kym Worthy.
“There
has been no holding, let alone a retroactive one, that parolable mandatory life
for a nonhomicide offense committed by a juvenile is unconstitutional,” Wayne
County argues in its reply to Wershe’s appeal to the Michigan Supreme Court.
The Wershe appeal says Judge Hathaway has it right,
noting: "In particular, she noted
that while Mr. Wershe’s sentence of LWOP (Life Without Parole) has been changed, due to prior case law and
the changes to the statutes, to a sentence of life with the possibility of
parole, he has never been sentenced by a judge who had discretion to impose
anything but a life sentence, regardless of Mr. Wershe’s age at the time of the
offense, the circumstances of that offense, or any other relevant
factors."
This is saying, yes, Wershe is eligible for parole under
Michigan’s revised drug law, but he was never re-sentenced under the new law.
So, yes, his sentence in 1988 was proper at the time, but no judge has formally
updated his sentence to reflect current law.
Just in case the Michigan Supreme Court justices are
persuaded by the Wershe argument about the law, Kym Worthy’s argument to the
high court shift gears at the end and says, in effect, what’s the big deal?
Wershe can get relief through parole from the Michigan Parole Board or a
commutation by the Governor and doesn’t need any interference from an uppity
trial judge in Wayne County.
"The
trial judge here is neither the governor nor the Parole Board. Defendant is
serving a sentence of life in prison, and is subject to parole
consideration...Whether he is being so afforded by the Parole Board is not a
matter for consideration as to the constitutionality of the sentence...Further,
defendant can seek a commutation of his sentence from the Governor, and is so
doing. But his sentence is constitutional,” the
Wayne County prosecutor’s brief argues.
The Wershe appeal focuses on the question of whether the
Michigan criminal justice system is a living, evolving set of principles and rules versus a rigid,
unchangeable system cast in stone:
"...the
threshold issue this Court must face, and should grant leave to appeal on, is
the definition of “retroactive change in law”... This Court should grant leave
to appeal on this important, but as yet unanswered, issue to the bench and bar,"
the
Wershe appeal states. That last phrase—bench and bar—is lawyer talk meaning
judges and lawyers, as in the State Legal Bar, not the shot-and-shell joint
over on the next block.
Barristers (lawyers) are sure to nitpick this non-lawyer
simplification, but the issue for the Michigan Supreme Court in the Richard J.
Wershe, Jr. case is retroactivity. Can and should the criminal justice system
re-consider old cases? The times and public opinion and laws enacted by the
Michigan legislature have changed since Wershe was sentenced to life in prison
in 1988. Should the now-discarded law under which he was sentenced prevail
forever or should the courts take a fresh look at his punishment in light of
changes in the law and the Michigan Supreme Court’s own rulings that sentences
need to be “proportionate” to the crime committed? That is the question.
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