Dec. 7, 2011 – Last month, the U.S. Supreme Court granted certiorari in two cases to decide whether sentencing juveniles age 14 or younger (under age 15) to life in prison with no possibility of parole is unconstitutional in homicide cases. A future ruling could overturn recent Wisconsin precedent on the same issue.

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

Omer Ninham, now 28, was convicted of first-degree intentional homicide in 2000 for intentionally dropping a 13-year-old boy off the edge of a multi-story parking garage in Green Bay. Ninham, sentenced to life without parole, was 14 when the murder occurred.

Ninham’s lawyer – Bryan Stevenson of the Alabama-based Equal Justice Initiative – is the same lawyer that will represent the juvenile defendants in two consolidated cases before the U.S. Supreme Court, Miller v. Alabama and Jackson v. Hobbs.

In Ninham, Stevenson argued that sentencing a juvenile to life without parole for homicide committed when just 14 years old violates the Eighth Amendment to the U.S. Constitution and Art. I, Section 6, of the Wisconsin Constitution. Both prohibit cruel and unusual punishment.

The U.S. Supreme Court has inched toward greater leniency in juvenile sentencing over the last 23 years. In 1988, the Court prohibited death penalty sentences for juveniles who commit crimes before the age of 16.¹ Seventeen years later, in 2005, it prohibited death penalty sentences for juveniles who commit crimes before the age of 18.²

Last year, the nation’s high court ruled in Graham v. Florida, 130 S. Ct. 2011 (2010), that life without parole sentences are unconstitutional if imposed for nonhomicide offenses committed when a person is under age 18.³ That holding, approved by five of the nine justices, moved the U.S. one step closer to 193 other countries, which have ratified an international treaty forbidding life without parole sentences for juveniles under age 18 for any crime.⁴

Now the U.S. Supreme Court will decide whether life without parole sentences are banned for homicide offenders who are under age 15 when the crime occurs. A ruling that such sentences are categorically unconstitutional could upend laws in 36 states, including Wisconsin.

Wisconsin law

Under Wisconsin statute, persons ages 10 and older are subject to adult treatment for first-degree intentional homicide with a corresponding penalty of life imprisonment.⁵ Sentencing courts may sentence such offenders to life without the possibility of release.⁶

According to the Wisconsin Supreme Court’s opinion in Ninham, 44 states and the federal government permit life without parole sentences for juvenile homicide offenders,⁷ and 36 states permit such sentences for offenders who were under age 15 at the time of the crime.⁸

Omer Ninham (pictured), convicted for first degree intentional homicide in 2000, is currently serving a life sentence with no possibility of release. Ninham was 14 years old when he killed a 13-year-old boy in Green Bay. The Wisconsin Supreme Court recently upheld the sentence, but the U.S. Supreme Court will soon decide whether sentencing juveniles under 15 to life with no possibility of release is unconstitutionally cruel and unusual. Photo credit: Reprinted by permission, Green Bay Press-Gazette.

Of the approximately 2,500 juveniles currently serving life without parole sentences for homicide in the U.S., 73 were under 15 when the crime occurred.⁹

Under Eighth Amendment jurisprudence, defense counsel must first prove there is a national consensus against the sentencing practice at issue to be successful in banning it.¹⁰

In Ninham, Stevenson argued that juveniles under age 15 are rarely sentenced to life without parole, even though 36 states allow the sentence, demonstrating a national consensus against the practice. He noted that Ninham is currently the only person in Wisconsin who is serving a life without parole sentence for a crime committed when under the age of 15.

But the majority court in Ninham disagreed with the argument that such numbers translate to 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,” Justice Annette Ziegler wrote.

Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley disagreed: “The extreme infrequency with which death-in-prison sentences are imposed on children for homicides committed when 14 years old or younger demonstrates that there is a national consensus against such sentences,” the chief justice wrote in her dissent.

In the pending U.S. Supreme Court cases, differing justices may have similar responses. But even if a national consensus against the practice is not shown, the nation’s high court can still use its independent judgment to decide whether the punishment violates the U.S. Constitution.

Independent judgment

In exercising independent judgment, the U.S. Supreme Court will consider the culpability of the offender given the severity of the crime. The defense will likely argue that juveniles who commit homicide under age 15 are less culpable than older offenders, and thus less deserving of life without parole sentences.

In Graham, the U.S. Supreme Court ruled that a juvenile’s diminished capacity to think and reason like adults make them less deserving of life without parole sentences for nonhomicide crimes. But whether the same is true for homicide crimes is a different question.

“The Graham decision makes a big deal about the distinction between homicide and nonhomicide crimes, so the defendants in these new cases may face a very skeptical bench as they attempt to blur that distinction,” said Marquette University Law Professor Michael O’Hear, who currently teaches criminal procedure and authors a blog on life sentences.

“The defense will have to emphasize that 14-year-olds are significantly less mature than older juveniles in terms of cognitive abilities, impulse control, and susceptibility to peer pressure.”

O’Hear says the U.S. Supreme Court’s decision in J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011), could help the defendant’s argument. “There is some good language in the majority’s opinion about the limitations and vulnerability of children and suggestions that distinctions ought to be made within a class of juveniles based on age,” O’Hear said.

The Wisconsin Supreme Court in Ninham rejected the argument, put forth by Stevenson, that developments in psychology and brain science show that juveniles under age 15 are never culpable enough to deserve life without parole sentences for homicide.

“[W]e are not convinced that 14-year-olds who commit homicide have the same diminished moral culpability as those juvenile offenders who do not commit homicide,” Justice Ziegler wrote in the majority opinion.

But the Wisconsin Supreme Court minority (Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley) disagreed: “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,” the chief justice wrote in her dissent.

Other distinctions

If the U.S. Supreme Court does not completely accept the argument that all homicide offenders under age 15 should be categorically excluded from life without parole sentences, O’Hear says the Court could draw a categorical distinction based on the type of homicide committed.

For instance, the 14-year-old defendant in Jackson was sentenced to life without parole on a felony-murder theory. The defendant didn’t actually commit the murder, but an accomplice shot a store attendant while both were in the act of committing armed robbery.¹¹

In Miller, the 14-year-old defendant was convicted of murder after he helped beat a man to unconsciousness in the man’s trailer home then set the trailer on fire with intent to kill.

“Jackson was a relatively low culpability murder defendant, so his case may invite the Court to draw distinctions based on the severity of the homicide crime,” said O’Hear, also noting the Court could abandon categorical distinctions altogether in favor of case-by-case review. 

Conclusion

If the U.S. Supreme Court accepts the Wisconsin Supreme Court minority view, Ninham would be eligible for resentencing. But life with a possibility of release doesn’t mean Ninham or any other juvenile homicide offender would ever be released. It’s just a possibility.

Based on the 6-3 Graham decision, it is likely that at least four justices – Clarence Thomas, Antonin Scalia, Samuel Alito Jr., and Chief Justice John Roberts – would reject a rule that all life without parole sentences for homicide offenders under age 15 are unconstitutional.

Roberts wrote a concurring opinion in Graham, concluding the sentence was unconstitutional. But he disagreed that a categorical rule should apply to bar such sentences in all cases for juveniles under age 18, instead arguing for a case-by-case analysis. Justice Elena Kagan has since replaced Justice John Paul Stevens, who joined the majority in Graham.

“I don’t think that Kagan’s replacement of Stevens will affect the outcome,” said O’Hear, noting that Justice Kagan was in the majority in J.D.B. v. North Carolina.

Endnotes