May 20, 2011 – The Wisconsin Supreme Court today ruled that sentencing a 14-year-old to life imprisonment without the possibility of parole is not cruel and unusual punishment.

About 11 years ago, a jury convicted Omer Ninham of first-degree intentional homicide in the gruesome death of 13-year-old Zong Vang. The record revealed that Ninham, 14 years old at the time, dropped Vang to his ultimate death from a multi-story parking garage in Green Bay after tormenting him with friends and dangling him over the wall’s edge by Vang’s ankles.

Before trial, Ninham threatened the life of a witness and a circuit court judge, and threatened to rape another witness. A presentence investigation found that Ninham was a serious substance abuser, drank alcohol every day, and lived in an extremely dysfunctional family structure.

Noting the horrific nature of the crime and describing Ninham as a “frightening young man,” the circuit reasoned that it must protect the public in sentencing Ninham to die in prison. The circuit court and the court of appeals rejected Ninham’s sentence modification motions.

The Wisconsin Supreme Court stayed Ninham’s petition for review pending the outcome of Graham v. Florida, 130 S. Ct. 2011 (2010), a case in which the U.S. Supreme Court held the Eighth Amendment prohibits courts from imposing a life without parole sentence on juveniles who commit nonhomicide crimes.

The U.S. Supreme Court has not decided the same issue in a homicide case, and the Wisconsin Supreme Court noted that the Graham court’s analysis of the issue is “instructive but not determinative.”

But in State v. Ninham, 2011 WI 33 (May 20, 2011), the Wisconsin Supreme Court majority (5-2) – in an opinion written by Justice Annette Ziegler – held that “sentencing a 14-year old to life imprisonment without the possibility of parole for committing intentional homicide is not categorically unconstitutional.”

Chief Justice Shirley Abrahamson wrote a dissenting opinion (joined by Justice Ann Walsh Bradley), arguing that the U.S. Supreme Court cases of Graham and Roper v. Simmons, 543 U.S. 551 (2005), determine that a “juvenile cannot be sentenced to life without parole for a homicide committed when 14 years old or younger.”

Sentence constitutional

The supreme court rejected Ninham’s argument that sentencing a 14-year-old to life imprisonment with no possibility of parole violates the Eight Amendment of the U.S. Constitution and Article I, Section 6 of the Wisconsin Constitution. Both prohibit cruel and unusual punishment.

The court noted that the Wisconsin Legislature has approved the punishment by subjecting juveniles who commit first-degree intentional homicide to the same penalties as adults.

This statute is not unconstitutional beyond a reasonable doubt, the court explained, and the sentence does not constitute cruel and unusual punishment.

To arrive at this conclusion, the court considered whether the sentence comports with evolving standards of decency, examining whether there is national consensus on the issue.

“Importantly, the State does not have to establish a national consensus approving life without parole sentences for 14-year-olds who commit intentional homicide; rather, Ninham bears the heavy burden of establishing a national consensus against the punishment,” Justice Ziegler wrote. “We conclude that Ninham has failed to meet that burden.”

The supreme court noted that 36 states permit life without parole sentences for homicide cases in which the offender is 14 years old or younger. The court rejected Ninham’s argument that such sentences are rare, demonstrating a national consensus against such sentences.

“[I]t 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,” Justice Ziegler wrote.

The court ruled, in its independent judgment, that Ninham’s sentence serves legitimate penological goals of retribution, deterrence, and incapacitation. It also rejected Ninham’s argument that a life without parole sentence is reserved for the state’s worst offenders, and 14-year-olds cannot reliably be classified among the worst offenders.”

Graham and Roper do not support the argument that juvenile homicide offenders, though they may have diminished culpability, are less deserving of a life without parole sentence, the court explained.

Scientific research, assuming it is constitutionally relevant, is “insufficient to support a determination that 14-year-olds who commit homicide are never culpable enough to deserve life imprisonment without parole,” Justice Ziegler wrote.

The court also rejected Ninham’s argument that he is “entitled to sentence modification on the grounds that new scientific research regarding adolescent brain development constitutes a new factor that frustrates the purpose of his sentence.”

Dissent

Chief Justice Shirley Abrahamson wrote a dissenting opinion (joined by Justice Bradley), in which she argued that juvenile offenders can never be classified among the worst offenders and, therefore, the sentence does not relate to Ninham’s personal culpability.

The chief justice noted that the U.S. Supreme Court has categorically prohibited death penalty sentences for juveniles who commit the crime before the age of 18 and imprisonment without parole sentences for juveniles under 18 who commit nonhomicide crimes.

“The United States Supreme Court has recognized that juvenile offenders are less culpable than adult offenders,” Chief Justice Abrahamson wrote. “A ruling that a juvenile who committed a homicide at the age of 14 does not have the capacity to ever mature and reform or be reincorporated in society is categorically untrustworthy.”

Chief Justice Abrahamson also points out that Ninham is the only juvenile, among the 1,153 arrested for murder in Wisconsin since 1995, to receive a life without parole sentence. She declared that the Wisconsin statute allowing a juvenile at age 14 to be sentenced to life without parole is unconstitutional.

Attorneys

Frank M. Tuerkheimer of Godfrey & Kahn S.C., Madison, and Bryan Stevenson of the Equal Justice Initiative, represented Omer Ninham. Assistant Attorney General Sally L. Wellman represented the state.

Amicus curiae briefs were filed on behalf of the Legal Assistance to Institutionalized Persons Project, the Wisconsin Association of Criminal Defense Lawyers, the Wisconsin Psychiatric Association and the Wisconsin Psychological Association, and the Wisconsin Council on Children and Families.