{"id":13473,"date":"2011-05-20T12:22:28","date_gmt":"2011-05-20T17:22:28","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=13473"},"modified":"2011-05-20T12:28:49","modified_gmt":"2011-05-20T17:28:49","slug":"scowis-approves-lwop-for-14-year-old-killers","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/05\/scowis-approves-lwop-for-14-year-old-killers\/","title":{"rendered":"SCOWIS Approves LWOP for 14-Year-Old Killers"},"content":{"rendered":"

Today, in\u00a0State v. Ninham<\/a><\/em>, 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. \u00a0The decision rests on a narrow reading of the U.S. Supreme Court\u2019s landmark holding last year in\u00a0Graham v. Florida<\/em>, in which the Court outlawed LWOP for juveniles convicted of\u00a0nonhomicide <\/em>crimes. \u00a0Since\u00a0Graham<\/em>, lower courts across the country have been wrestling with the implications of the decision for other categories of offenses and offenders.<\/p>\n

Ninham\u2019s challenge was framed as a\u00a0categorical <\/em>challenge to the use of LWOP against fourteen-year-olds. \u00a0As such, the challenge was appropriately assessed by the Wisconsin Supreme Court using the two-prong analysis of\u00a0Graham, <\/em>(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.<\/p>\n

As to the first prong, although a large majority of states\u00a0authorize <\/em>LWOP for fourteen-year-olds, the sentence is in practice very infrequently imposed:<\/p>\n

<\/p>\n

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. \u00a0(\u00b6 56)<\/p><\/blockquote>\n

On the face of things, this evidence of national consensus differs little from the evidence found sufficient in\u00a0Graham<\/em>. \u00a0The Wisconsin court, however, was unpersuaded:<\/p>\n

\u00b657 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\u00a0Ninham. 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.<\/p><\/blockquote>\n

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. \u00a0What I find a bit more curious is the assertion that other fourteen-year-olds \u201crarely commit homicide in the same horrific and senseless fashion as Ninham\u201d \u2014 this seems an odd invocation of the specific facts of Ninham\u2019s case in the context of what was framed as a\u00a0categorical <\/em>challenge. \u00a0I don\u2019t recall such a maneuver in\u00a0Graham <\/em>or in any of the U.S. Supreme Court\u2019s other recent categorical-challenge cases.<\/p>\n

In any event, having found no national consensus against the challenged practice, the Wisconsin court proceeded to exercise its own judgment. \u00a0In this regard,\u00a0Graham\u2019s <\/em>holding rested on the double mitigation of (1) an offense committed by a <\/em>juvenile, who is presumptively less culpable than an adult due to the incomplete development of various intellectual capacities; and (2) a nonhomicide offense. \u00a0Although Ninham could not rely on the second form of mitigation, here\u2019s the interesting jurisprudential question <\/em>raised by his challenge: whether being not only a juvenile, but a\u00a0particularly\u00a0young <\/em>juvenile, could count as the same sort of double mitigation that\u00a0Graham <\/em>says precludes LWOP. \u00a0This 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.<\/p>\n

The Wisconsin court, however, didn\u2019t bite:<\/p>\n

\u00b674 We do not disagree that, typically, juvenile offenders are less culpable than adult offenders and are therefore\u00a0generally less deserving of the most severe punishments. See\u00a0Graham, 130 S. Ct. at 2026 (citing Roper, 543 U.S. at 569-70). Furthermore, we do not dispute Ninham\u2019s 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.<\/p><\/blockquote>\n

It\u2019s doubtless correct that there are\u00a0some <\/em>\u201catypical\u201d fourteen-year-olds who are pretty darn mature. \u00a0The question is whether the existence of these fourteen-year-olds means that <\/em>the court should refuse to adopt a general rule prohibiting LWOP for all fourteen-year-olds. \u00a0In\u00a0Graham<\/em>, the Supreme Court spent a good bit of time discussing the pro\u2019s and cons of bright-line rules, and I\u2019m a bit surprised that the\u00a0Ninham<\/em> court did not seem to engage with this aspect of the Supreme Court decision. \u00a0Here\u2019s what\u00a0Graham <\/em>says:<\/p>\n

Categorical rules tend to be imperfect, but one is necessary here. . . .<\/p>\n

. . .<\/p>\n

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 \u201csufficient psychological maturity, and at the same time demonstrat [e] sufficient depravity,\u201d 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\u2019s age as a mitigating factor in sentencing. The Court concluded that an \u201cunacceptable 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\u2019s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death.\u201d Id., at 573, 125 S.Ct. 1183. Here, as with the death penalty, \u201c[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive\u201d a sentence of life without parole for a nonhomicide crime \u201cdespite insufficient culpability.\u201d Id., at 572\u2013573, 125 S.Ct. 1183.<\/p>\n

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\u201312; Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory and the Role of Child\u2019s Counsel in Delinquency Cases, 81 Notre Dame L.Rev. 245, 272\u2013273 (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\u2019s representation. Cf. Atkins, 536 U.S., at 320, 122 S.Ct. 2242 (\u201cMentally retarded defendants may be less able to give meaningful assistance to their counsel\u201d). 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.<\/p>\n

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\u2019s 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 \u2013 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\u2019s crime is reinforced by the prison term.<\/p><\/blockquote>\n

130 S. Ct. at 2030-33. \u00a0It strikes me that all of these considerations could also be invoked to justify a necessarily \u201cimperfect\u201d bright-line rule distinguishing fourteen-year-olds from older juveniles.<\/p>\n

Cross posted at Life Sentences Blog<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Today, in\u00a0State 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. \u00a0The decision rests on a narrow reading of the U.S. Supreme Court\u2019s landmark holding last year in\u00a0Graham v. Florida, in which the Court outlawed LWOP for […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[80,30,24,14,75],"tags":[],"class_list":["post-13473","post","type-post","status-publish","format-standard","hentry","category-constitutional-interpretation","category-criminal-justice","category-us-supreme-court","category-criminal-law","category-wisconsin-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/13473","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=13473"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/13473\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=13473"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=13473"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=13473"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}