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:

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Wisconsin v. Minnesota

Given the many demographic and cultural similarities between these midwestern neighbors, I’ve long been intrigued by how dramatically different the incarceration rates are in Wisconsin and Minnesota.  How is it that Wisconsin’s per capita incarceration is twice Minnesota’s?  My diligent research assistant Joe Gorndt has gathered some data to try to shed light on this problem.  First, here is the basic demographic data:

  Minnesota Wisconsin
Population (2009) 5.3 mm 5.7 mm
Age under 18 24.3% 23.6%
Age over 65 12.4% 13.2%
Over 25, HS diploma 91.1% 89.0%
Bachelor degree 31.2% 25.5%
Below poverty line 10.0% 11.1%
Foreign born 5.3% 3.6%
Unemployment 5.8% 6.1%

 

Not much to distinguish the states here.  The most notable difference seems to be the higher percentage of adults with college degrees in Minnesota, but this is hardly a dramatic difference and doesn’t seem likely to explain the imprisonment disparity.

Now take a look at the crime and criminal-justice statistics, courtesy of the National Institute of Corrections.

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Ratner: Even Osama Should Have Had Criminal Rights

Michael Ratner would have treated the pursuit of Osama bin Laden as a law enforcement matter, not as a matter of war. He would rather have seen bin Laden arrested, brought to trial, and given the rights of a criminal defendant than shot on the spot by Navy SEALS.

This almost certainly doesn’t put Ratner in the mainstream of American opinion, but it is consistent with what Ratner has advocated as president of the Center for Constitutional Rights, a New York-based non-profit organization, and as an attorney who has played key roles in defending the legal rights of prisoners at the military prison at Guantanamo Bay and in opposing interrogation techniques Ratner considers torture.

Ratner visited Eckstein Hall last week to speak to about 20 people at a lunch session of the American Constitution Society for Law and Policy, Milwaukee Lawyer Chapter.

Ratner realizes where the preponderance of American opinion lies on the killing on May 1 of bin Laden. “No one really cares whether he was lawfully killed or not,” he said. “People wanted him killed.”

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