In Detroit Prosecutor Race, a Stark Contrast on Whether Children Should Serve Life in Prison

Wayne County Prosecutor Kym Worthy has taken a hardline approach toward people who have been sentenced to life without parole as minors. Her challenger in the Aug. 4 primary says no children should be sentenced to life.

It’s been almost two decades since Mario Smith made a decision he deeply regrets. He was 17 years old and impulsive and had been raised in a home marked by poverty and domestic abuse. One day in August 2001, he was caring for a friend’s 9-month-old daughter, who was agitated and upset. He wanted her to stop crying, so he hit her in the stomach. The baby stopped breathing and died from her injuries. Smith was convicted of felony murder, which carried a mandatory sentence of life without parole. 

As he has grown into an adult in prison, he has reckoned with the pain he caused. 

“If I had three wishes, all three would be to take back what I’ve done,” Smith said in a recent phone call with a criminal justice reform advocate that was shared with The Appeal: Political Report. He has completed all the anger management and other educational programs offered to him by the prison, and he hasn’t had a disciplinary infraction in many years. “I did that not because I was forced to, but because it was a choice that I made in becoming a man,” he said on the call.

Smith was one of more than 350 people in Michigan who were sentenced as children to mandatory life without the possibility of parole when, in 2016, a Supreme Court decision compelled prosecutors to reconsider all such sentences on a case-by-case basis. But prosecutors in Michigan have resisted change. 

Wayne County’s Kym Worthy is one of the prosecutors who have taken a hardline approach. When faced with these juvenile lifers’ resentencing hearings, her office originally recommended that courts reaffirm the life sentence in 43 percent of 144 cases, including Smith’s. 

After running unopposed for over a decade, Worthy is facing a stiff challenge in the Aug. 4 Democratic primary from a criminal defense lawyer who opposes all juvenile life without parole sentences.

Victoria Burton-Harris, Worthy’s first primary challenger since she was appointed in 2004, is campaigning on a promise to end juvenile life in prison. She told the Political Report that she views Worthy’s handling of juvenile lifers, and her repeated claims that she is reviewing the cases, as “cruel and callous.”

In a statement, Worthy told the Political Report that her office has held 95 resentencing hearings for juvenile lifers, and 64 of them have been released.

“My office has been working diligently to ensure that each and every juvenile murderer convicted in Wayne County receives an individualized sentencing hearing,” she said. “We can only go as quickly as the defense and the courts will allow.” 

When Smith’s sentence was up for reconsideration in 2018, Worthy’s office filed a motion seeking a new sentence of life without parole. Smith’s public defender eventually negotiated with Worthy’s office, and Smith agreed to a 30-year minimum settlement, which means he will be locked up until at least 2031. At his resentencing hearing, a judge praised his efforts to rehabilitate himself and said he would be a great asset to his community. 

“My thing is, if I’m a great asset today, why must I wait another 11 years before I’m able to show that?” Smith said in his call with Jacqueline Williams, a program associate with American Friends Service Committee’s Michigan Criminal Justice Program who routinely speaks with incarcerated people and shared recordings of the calls with the Political Report.

Since Smith was sent to die behind bars, the law on the sentencing of children has changed significantly. Based on a growing understanding of children’s brains, the U.S. Supreme Court outlawed mandatory life sentences without the possibility of parole for minors in 2012. (The Court left the door open for minors to receive life without parole at the discretion of judges, who often listen to prosecutors’ recommendations, in cases that reflect “irreparable corruption” rather than “transient immaturity.”) In 2016, the Court made that decision retroactive, ruling that people who automatically received life without parole sentences as children need to be given a “meaningful opportunity” for release and prompting dozens of states to hold resentencing hearings.

As of last year, nearly 200 of Michigan’s juvenile lifers are still waiting for resentencing. Together, Michigan, Pennsylvania, and Louisiana now account for about two-thirds of juvenile life without parole cases, according to the Sentencing Project.

In 2016, when Michigan’s prosecutors had to submit resentencing recommendations, they requested continued life sentences for 66 percent of the state’s juvenile lifers, according to a Detroit Free Press analysis. 

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Worthy’s challenger, Burton-Harris, told the Political Report that, if she were elected prosecutor this year, she would upend the incumbent’s approach. “It is not acceptable, no longer an option, that we resentence to life,” she said.

She said she would make it a priority to bring relief to juvenile lifers and recommend that they be granted a new sentence that would allow for a release. “I’m committed to not just reviewing them but bringing them home,” she said. The only instance in which she would consider resentening to life in prison is if a person has committed new murders in prison while an adult.

Moreover, she said she would also revisit old resentencing cases and in instances where Worthy’s office objected or opposed, she would instruct her prosecutors to change the office’s position. 

“It would be a written policy,” she said. “All cases that have been previously decided need to be reopened and reviewed.” 

If she were at the helm of the DA’s office, her prosecutors would never seek life without the possibility of parole sentences against minors in future cases. “THERE IS NOTHING A CHILD CAN DO TO JUSTIFY DEATH BY INCARCERATION!” she told the Political Report in an email. “We are not the worst thing we’ve ever done, and people age out of crime. Prosecutors have a responsibility to protect our children, ALL children. All people have value.” 

She says she looks forward to advocating for a state law that rules out life without the possibility of parole sentences for children, as 23 states and the District of Columbia have already done.

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When Worthy assumed office in 2004, she became the first Black female county prosecutor in Michigan. Early in her tenure, she gained national recognition as an advocate for justice when she led the prosecution of Detroit Mayor Kwame Kilpatrick. Since then, she has been praised for clearing Wayne County’s backlog of rape kits and securing murder convictions for instances of police brutality. This year, she was endorsed for re-election by prominent figures like Governor Gretchen Whitmer. 

But criminal justice reform advocates have long criticized her stance on locking children up for life. Before the Supreme Court made its decision on mandatory juvenile life sentences retroactive, Worthy argued against it, saying it would force families of crime victims to relive the tragedies. After it became retroactive, she continued to seek life sentences. Even her predecessor, former Wayne County prosecutor John O’Hair, who led the office during a time when 90 minors were locked up for life, has said that after the Supreme Court rulings, “it’s hard to imagine that a prosecutor would blithely seek life sentences again.”

Worthy’s continued desire for life sentences comes despite the known racial disparities in her county’s juvenile lifer population. Although Black people make up roughly 40 percent of Wayne County’s population, more than 90 percent of the people serving juvenile life without parole sentences were Black, according to data from 2016.

Even in cases where her office is seeking resentencing to a term of years, Worthy has been slow to file the motions, saying that the office needed time to review all of the case files, be thorough, and contact the victims. And when questioned, she won’t address the delay, said Rai LaNier, Wayne County director with Michigan Liberation Action Fund, a Michigan Liberation Action Fund, a PAC that advocates for criminal justice reform and has endorsed Burton-Harris

“She does what I like to call crime porn,” Lanier said of Worthy. “As soon as you get her up against the ropes, she wants to tell you about how a 7-year-old laid an iron on somebody. It’s always the details of the case. She hasn’t been willing to address the fact that we have the largest caseload of these LWOP cases [in Michigan].”

“It’s a blatant disregard for the highest court in the land,” Lanier added. 

Machelle Pearson is a juvenile lifer from Washtenaw County who was resentenced and released on parole in 2018 and is now an advocate for reform. She says she worries for others who will not get a fair chance at justice because of prosecutors like Worthy. 

“We want her out of office,” Pearson said. “She feels like she’s been in office so long that she’s untouchable by law, she’s untouchable by the citizens that actually vote her in there.”

As someone who is prevented from voting because he is incarcerated, Smith said Worthy feels even more untouchable.

“Once you are a convicted felon and are serving time in prison, I can no longer vote for Kym Worthy, meaning I’m no longer useful to her,” Smith said in the recording. 

His anger at the legal system is even higher now, as the coronavirus spreads rapidly through prisons across the country. In April, 60-year-old William Garrison, a juvenile lifer who was resentenced and was scheduled to come home from prison in May after nearly 44 years, died of COVID-19 in a state prison. His sister had prepared a room for him in her home and was eagerly awaiting his return.  

“He died during the pandemic because [Worthy] took too long to let him out,” Burton-Harris said. “He died waiting to come home after a decision had been made in his favor.” 

Tina Olson, the Juvenile Lifer Unit manager at the State Appellate Defender Office, said the pandemic has made her office’s representation of juvenile lifers more important than ever. “We feel an added urgency to achieve results for our clients,” she said. 

Smith, who has asthma, said he worries that he will also fall victim to the disease.

“Hopefully we all make it through this,” Smith said. “Unfortunately that’s wishful thinking because there are going to be casualties of this pandemic. Hopefully I have my second chance. I was a former juvenile and they gave me a second chance, but possibly I won’t see it.”

Explore our coverage of 2020 prosecutorial elections throughout the country.