SCOWIS Approves LWOP for 14-Year-Old Killers

Today, in State v. Ninham, 2011 WI 33, the Wisconsin Supreme Court approved the sentence of life without possibility of parole for fourteen-year-olds who are convicted of first-degree intentional homicide.  The decision rests on a narrow reading of the U.S. Supreme Court’s landmark holding last year in Graham v. Florida, in which the Court outlawed LWOP for juveniles convicted of nonhomicide crimes.  Since Graham, lower courts across the country have been wrestling with the implications of the decision for other categories of offenses and offenders.

Ninham’s challenge was framed as a categorical challenge to the use of LWOP against fourteen-year-olds.  As such, the challenge was appropriately assessed by the Wisconsin Supreme Court using the two-prong analysis of Graham, (1) determining whether there is a national consensus against the challenged practice, and (2) exercising independent judgment as to whether the practice constitutes an unconstitutionally severe punishment.

As to the first prong, although a large majority of states authorize LWOP for fourteen-year-olds, the sentence is in practice very infrequently imposed:

Ninham informs us that he is currently the only person in Wisconsin serving a sentence of life without parole for a crime committed at the age of 14, and furthermore, nationwide, only 73 juveniles age 14 or younger, deriving from just 18 states, have been sentenced to life without parole.  (¶ 56)

On the face of things, this evidence of national consensus differs little from the evidence found sufficient in Graham.  The Wisconsin court, however, was unpersuaded:

¶57 We appreciate the fact that 14-year-olds are rarely sentenced to life imprisonment without parole. However, we disagree with Ninham that the rarity with which the sentence is imposed is necessarily demonstrative of a national consensus against the sentence. Rather, it is equally likely that 14-year-olds are rarely sentenced to life without parole because they rarely commit homicide and, more to the point, rarely commit homicide in the same horrific and senseless fashion as Ninham. Ninham does not point to any data which would lead us to believe otherwise. In short, Ninham has failed to demonstrate that there is a national consensus against sentencing a 14-year-old to life imprisonment without parole for committing intentional homicide.

Of course, the court is just speculating here about the underlying incidence of homicide by fourteen-year-olds, but I suppose the point is that the burden was on Ninham to produce the data.  What I find a bit more curious is the assertion that other fourteen-year-olds “rarely commit homicide in the same horrific and senseless fashion as Ninham” — this seems an odd invocation of the specific facts of Ninham’s case in the context of what was framed as a categorical challenge.  I don’t recall such a maneuver in Graham or in any of the U.S. Supreme Court’s other recent categorical-challenge cases.

In any event, having found no national consensus against the challenged practice, the Wisconsin court proceeded to exercise its own judgment.  In this regard, Graham’s holding rested on the double mitigation of (1) an offense committed by a juvenile, who is presumptively less culpable than an adult due to the incomplete development of various intellectual capacities; and (2) a nonhomicide offense.  Although Ninham could not rely on the second form of mitigation, here’s the interesting jurisprudential question raised by his challenge: whether being not only a juvenile, but a particularly young juvenile, could count as the same sort of double mitigation that Graham says precludes LWOP.  This sort of distinction would not be new to Eighth Amendment law: for several years, the Court banned the death penalty for juveniles under age sixteen, but permitted it for older juveniles.

The Wisconsin court, however, didn’t bite:

¶74 We do not disagree that, typically, juvenile offenders are less culpable than adult offenders and are therefore generally less deserving of the most severe punishments. See Graham, 130 S. Ct. at 2026 (citing Roper, 543 U.S. at 569-70). Furthermore, we do not dispute Ninham’s argument that, on average, the younger the juvenile offender, the more his or her culpability diminishes. However, the constitutional question before us does not concern only the typical 14-year-old offender. Rather, the question before us concerns all 14-year-old offenders, typical or atypical, who commit intentional homicide. Given these facts, we disagree with Ninham that Roper and Graham lead to the conclusion that 14-year-olds who commit intentional homicide are categorically less deserving of life imprisonment without parole.

It’s doubtless correct that there are some “atypical” fourteen-year-olds who are pretty darn mature.  The question is whether the existence of these fourteen-year-olds means that the court should refuse to adopt a general rule prohibiting LWOP for all fourteen-year-olds.  In Graham, the Supreme Court spent a good bit of time discussing the pro’s and cons of bright-line rules, and I’m a bit surprised that the Ninham court did not seem to engage with this aspect of the Supreme Court decision.  Here’s what Graham says:

Categorical rules tend to be imperfect, but one is necessary here. . . .

. . .

The case-by-case approach to sentencing must, however, be confined by some *2032 boundaries. The dilemma of juvenile sentencing demonstrates this. For even if we were to assume that some juvenile nonhomicide offenders might have “sufficient psychological maturity, and at the same time demonstrat [e] sufficient depravity,” Roper, 543 U.S., at 572, 125 S.Ct. 1183, to merit a life without parole sentence, it does not follow that courts taking a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change. Roper rejected the argument that the Eighth Amendment required only that juries be told they must consider the defendant’s age as a mitigating factor in sentencing. The Court concluded that an “unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender’s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death.” Id., at 573, 125 S.Ct. 1183. Here, as with the death penalty, “[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive” a sentence of life without parole for a nonhomicide crime “despite insufficient culpability.” Id., at 572–573, 125 S.Ct. 1183.

Another problem with a case-by-case approach is that it does not take account of special difficulties encountered by counsel in juvenile representation. As some amici note, the features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings. Juveniles mistrust adults and have limited understandings of the criminal justice system and the roles of the institutional actors within it. They are less likely than adults to work effectively with their lawyers to aid in their defense. Brief for NAACP Legal Defense & Education Fund et al. as Amici Curiae 7–12; Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory and the Role of Child’s Counsel in Delinquency Cases, 81 Notre Dame L.Rev. 245, 272–273 (2005). Difficulty in weighing long-term consequences; a corresponding impulsiveness; and reluctance to trust defense counsel seen as part of the adult world a rebellious youth rejects, all can lead to poor decisions by one charged with a juvenile offense. Aber Brief 35. These factors are likely to impair the quality of a juvenile defendant’s representation. Cf. Atkins, 536 U.S., at 320, 122 S.Ct. 2242 (“Mentally retarded defendants may be less able to give meaningful assistance to their counsel”). A categorical rule avoids the risk that, as a result of these difficulties, a court or jury will erroneously conclude that a particular juvenile is sufficiently culpable to deserve life without parole for a nonhomicide.

Finally, a categorical rule gives all juvenile nonhomicide offenders a chance to demonstrate maturity and reform. The juvenile should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential. In Roper, that deprivation resulted from an execution that brought life to its end. Here, though by a different dynamic, the same concerns apply. Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope. Maturity can lead to that considered reflection which is the foundation for remorse, renewal, and rehabilitation. A young person who knows that he or she has no chance to leave prison before life’s end has little incentive to become a responsible individual. In some prisons, moreover, the system itself *2033 becomes complicit in the lack of development. As noted above, see supra, at 2029 – 2030, it is the policy in some prisons to withhold counseling, education, and rehabilitation programs for those who are ineligible for parole consideration. A categorical rule against life without parole for juvenile nonhomicide offenders avoids the perverse consequence in which the lack of maturity that led to an offender’s crime is reinforced by the prison term.

130 S. Ct. at 2030-33.  It strikes me that all of these considerations could also be invoked to justify a necessarily “imperfect” bright-line rule distinguishing fourteen-year-olds from older juveniles.

Cross posted at Life Sentences Blog.

This Post Has 3 Comments

  1. Tom Kamenick

    “What I find a bit more curious is the assertion that other fourteen-year-olds “rarely commit homicide in the same horrific and senseless fashion as Ninham” — this seems an odd invocation of the specific facts of Ninham’s case in the context of what was framed as a categorical challenge.”

    I don’t see this as curious, but rather vital. The point the court makes is that the rarity is not evidence of consensus against the practice, but rather evidence that 14-year-olds rarely commit a crime heinous enough to justify LWOP.

  2. Robert Henak

    The Court’s analysis on this point is especially odd given that the facts of Ninham’s case demonstrate exactly the type of immaturity one would expect from a 14 year old. The offense here was not premeditated. It involved a group of teens. It was impulsive at best. And it resulted from peer pressure, with another of the group pressing Ninham to do what he was convicted of doing. The Court’s suggestion that it was somehow vastly more horrific than other intentional homicides committed by adults just makes no sense.

  3. Gene Demo

    I think this was a extremely harsh, the kid is only 14 years old. Definitely deserves punishment but life without parole is just cruel.

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