KALAMAZOO, MI — The attorney for a Kalamazoo juvenile lifer says last year's U.S. Supreme Court ruling coupled with a federal judge's decision in August make it clear — his client is entitled to a sentence that takes no chance of parole off the table.

“It is Mr. McDade’s position that this Court cannot sentence him to life without parole, even after a hearing that considers factors listed in (Miller v. Alabama) to be considered when sentencing a juvenile,” Attorney Keith Turpel wrote in a memorandum he filed Sept. 9 in Kalamazoo County Circuit Court on behalf of Dallas Augusta McDade Jr.

“… As Miller stated, a state does not have to guarantee eventual freedom but must provide some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.

This cannot be done a sentencing or re-sentencing hearing. It must be handled by a parole board.”

McDade, 20, is scheduled to be re-sentenced Monday by Kalamazoo Circuit Judge Alexander C. Lipsey. The hearing comes a little less than three months after the Michigan Court of Appeals overturned McDade's sentence of mandatory life without parole in the July 2010 shooting death of Eric Lamont Jenkins, 38. At the time of Jenkins' slaying, McDade was 17.

Evidence at McDade’s trial in 2011 showed that he shot Jenkins and another man in the 1100 block of Washington Avenue after he became frustrated with a third man who disappeared with McDade’s marijuana and money.

In re-sentencing McDade, Lipsey will have Turpel’s arugment to consider, as well as that of Assistant Prosecutor Kathy Lawton who said in an Aug. 30 memo to the court that Supreme Court justices in the Miller case gave lower courts seven factors to consider when re-sentencing juvenile lifers, among them the offender’s age at the time of the offense, their previous criminal history and the extent of their participation in the offense that led to their life sentence.

Lawton argues that prior to Jenkins’ slaying, “McDade was given every opportunity to be a productive member of society” and failed.

The June 19 ruling by the Court of Appeals was in line with a 5-4 opinion by the U.S. Supreme Court in June 2012 that invalidated "juvenile lifer" sentencing schemes as a form of cruel and unusual punishment that fail to consider the potential for cognitive and character development in young people.

McDade, who is one of more than 350 Michigan prisoners serving mandatory life terms for violent crimes they committed as minors, is one of the first juvenile lifers in the state to be re-sentenced since the Supreme Court issued its opinion.

McDade’s previous attorney, Donald Soppanos, filed an appellate brief with the Court of Appeals on June 14, 2012, just 11 days before the Supreme Court issued its ruling in Miller v. Alabama.

The state appeals court has previously rejected retroactivity for offenders who have exhausted the traditional appeals process, stating that the Supreme Court ruling was “procedural and not substantive in nature and does not compromise a watershed ruling.”

However, the court recently has ordered resentencing hearings for some juvenile lifers whose cases, like McDade’s, are still on direct appeal.

In addition to the Miller case and two other Supreme Court cases, Turpel also contends that Lipsey has to order a sentence for McDade that gives him a chance at parole because of a ruling in August by U.S. District Judge John Corbet O'Meara who ordered that all of the state's juvenile lifers should have a chance at parole.

“Judge O’Meara’s decision … specifically applies Miller and its forebearers to the parole statute in the state of Michigan and declares it unconstitutional as applied to those who were under the age of 18 at the time of the commission of the crime,” Turpel said in the Sept. 9 memorandum.

“… Mr. McDade’s position is that the parole board at some some in the future must review these items as well as an individual’s reformation while incarcerated.”

In her memo, Lawton contends that leading up to July 2010 when Jenkins was killed, McDade compiled a lengthy juvenile record that began when he was 13 and included convictions for theft, home invasion, vehicle theft, and possession/use of a BB gun. McDade also had an adult record that included a felony drug conviction and he was on bond in a separate felony case that he had just been in court for the day before Jenkins was killed.

“It meant nothing to him to carry a weapon, participate in a drug deal and shoot at unarmed persons while he was under court supervision,” Lawton said.

Lawton also says that McDade underwent 26 months of treatment that provided him with several services, including counseling, drug screenings, educational services and family intervention. However, Lawton says McDade “didn’t seem to benefit from any of the services” and “continued to use illegal controlled substances, continued to engage in criminal behavior, and clearly never addressed his anger issues, as evidenced by an unprovoked shooting.”

Lawton points out that as a ward of the court until 2009, he tested positive for marijuana 15 times and a substance-abuse assessment that showed he had a marijuana dependence and oppositional defiant disorder.

Additionally, she says that there are differences in McDade’s case when compared to Miller v. Alabama. Among them, she says, were that McDade had no co-defendants in his case and “acted alone” when he shot and killed Jenkins.

“McDade was an adult for purposes of criminal charging and the cold-blooded nature of the incident, as well as multiple victims, left little room for negotiation,” Lawton said. “… He acted alone, with reckless disregard for human life. He intended to kill and ignored repeated pleas to reconsider what he was doing.

“He was angry and someone was going to pay.”

Rex Hall Jr. is a public safety reporter for MLive/Kalamazoo Gazette. You can reach him at rhall2@mlive.com. Follow him on Twitter.