“The adolescent’s mind works differently from ours. Parents know it. This Court has said it. Legislatures have presumed it for decades or more. And now, new scientific evidence sheds light on the differences.”¹

In a series of four cases decided from 2005 to 2016, the U.S. Supreme Court incorporated evidence about adolescent development into the Constitutional principle that “children are constitutionally different from adults for purposes of sentencing” because they have “diminished culpability and greater prospects for reform.² “Youth and its attendant characteristics” must be considered at sentencing, the Court held, even for children convicted of the most heinous murders.³

The Supreme Court’s recognition that children (that is, individuals under age 18 at the time of the crime) are different has led many states to revisit the sentencing of children in adult criminal courts. Indeed, 21 states and the District of Columbia have banned sentences of life without the possibility of parole for children,⁴ three state supreme courts have held that their state constitutions prohibit life-without-parole sentences for children,⁵ and resentencing proceedings continue throughout the country.

So far, Wisconsin has not followed suit. This article offers data about those individuals who are serving life-without-parole sentences for homicides committed when they were under 18 years old, summarizes the major relevant Supreme Court decisions, and offers thoughts for reform.⁶ Such reform would align Wisconsin with the Supreme Court’s decisions and would constitute a step toward reducing mass and disparate incarceration in Wisconsin.

Juvenile ‘Lifers’ in Wisconsin

In Wisconsin, a life sentence is mandatory for persons convicted of homicide. Judges, however, have discretion to set dates for offenders to be considered for release on parole or extended supervision. Currently, Wisconsin prisons hold 127 men serving life sentences for homicides committed when they were under 18 years old.⁷

Eight of those “juvenile lifers” were sentenced to life in prison with no possibility for parole or extended supervision. But they are not the only child offenders who will die in prison. Three others will not become eligible for release for 100 years, and eight more will not be eligible for 60 years or more – long after the average life expectancy, especially for an incarcerated person. Another 14 will serve at least 50-59 years, making them about retirement age before they first become eligible for release.⁸

While the number of these prisoners is small, the number of years they will serve in prison is huge. If they live on average 50 years after initial incarceration, the state will spend more than $1.9 million each for costs of imprisonment, assuming the current cost per prisoner remains constant.⁹ Together, these 33 men will have served at least 550 years in prison, at a cost of almost $64 million.

The child offenders serving life with no release eligibility for 50 or more years are all men, and they are disproportionately people of color. In 2000, 89.9 percent of Wisconsin’s population was white, but 76 percent of child offenders with 50 years or more until release eligibility are people of color. Eighteen are African-American, eight are white, three are Native American, and four are Latino.¹⁰

Most of these 33 men suffered significant trauma as children – being victims of physical or sexual abuse or neglect; witnessing domestic violence; having parents or older siblings who abuse substances, have mental illness, or are engaged in crime; or some combination. This is consistent with national data showing that 79 percent of those serving life-without-parole sentences witnessed violence in their homes regularly, and 47 percent were physically abused.¹¹

This history of trauma is relevant because the U.S. Supreme Court has held that traumatic backgrounds are “particularly relevant” for child offenders. “Just as the chronological age of a minor is a relevant mitigating factor of great weight, so must the background and mental and emotional development of a juvenile defendant be duly considered” in assessing culpability.¹² Children who have suffered trauma “cannot be presumed to operate even at standard levels for adolescents.”¹³

Most of these 33 men suffered significant trauma as children – being victims of physical or sexual abuse or neglect; witnessing domestic violence; having parents or older siblings who abuse substances, have mental illness, or are engaged in crime; or some combination.

The most striking commonality of Wisconsin child offenders serving sentences of life with no release eligibility for 50 or more years is the date of sentencing. Sentencing data show a spike in life-without-parole sentencing of children in the 1990s and early 2000s. Seven of the eight men who have no possibility of parole and all 11 who are eligible for release after 60 years or more were sentenced between 1990 and 2002. Since 2002, only one child offender has been sentenced to life without parole, none to life with release eligibility delayed 60 years or more, and only four to life with release eligibility delayed from 50-59 years.¹⁴

The spike in juvenile-life-without parole sentencing in Wisconsin in the 1990s and early 2000s was part of a national phenomenon, based on a now-disproved theory that increases in crime were the work of a generation of “tens of thousands of severely morally impoverished juvenile superpredators.”¹⁵ A criminologist publicly predicted, “unless we act today, we’re going to have a blood bath when these kids grow up.”¹⁶ During this era, most states, including Wisconsin, enacted laws expanding the number of juveniles subject to adult criminal court jurisdiction and increasing sentences.¹⁷

The predictions during the mid-1990s that thousands of juvenile “superpredators” would soon appear and threaten public safety did not materialize. The proponents of these predictions later disavowed their theory, noting that juvenile crime had instead decreased, and that recent scientific evidence and empirical data invalidated the juvenile superpredator myth.¹⁸ At about the same time the superpredator myth was fading, neuroscientists discovered through brain-imaging technology that the parts of the human brain involved in decision-making were not fully developed until after age 18.

Supreme Court Decisions on Extreme Sentences for Children

In 2005, the U.S. Supreme Court decided the first of four major cases involving the sentencing of juveniles. Roper v. Simmons¹⁹ considered whether the death penalty violated the Eighth Amendment prohibition on cruel and unusual punishment when applied to children who were under age 18 at the time of the crime. In an amicus brief, the American Medical Association and the American Psychiatric Association described adolescents’ “disabilities in areas of reasoning, judgment and control of their impulses.” They explained:

“Adolescents as a group, even at the age of 16 or 17, are more impulsive than adults. They underestimate risks and overvalue short-term benefits. They are more susceptible to stress, more emotionally volatile, and less capable of controlling their emotions than adults. … Behavioral scientists have observed these differences for some time. Only recently, however, have studies yielded evidence of concrete differences that are anatomically based. Cutting-edge brain imaging technology reveals that regions of the adolescent brain do not reach a fully mature state until after the age of 18.”²⁰

The Court found that argument persuasive. It held that the death penalty was cruel and unusual punishment for children. Its decision was based in part on “three general differences between juveniles under 18 and adults” that it found to be significant to sentencing:

• “A lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” Therefore, their conduct “is not as morally reprehensible as that of an adult.”

• “[J]uveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” Therefore, “juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment.”

• “[T]he character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed.” Therefore, “a greater possibility exists that a minor’s character deficiencies will be reformed.”²¹

Those differences are relevant to sentencing, the Court held, because the differences between adult and juvenile minds weaken the penological justifications for sentencing juveniles to death. The Court concluded that “the case for retribution is not as strong with a minor as with an adult,” because “culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and maturity.” With regard to deterrence, the Court held that “the same characteristics that render juveniles less culpable suggest as well that juveniles will be less susceptible to deterrence.”²²

The next two cases to reach the Supreme Court challenged the constitutionality of life-without-parole sentences for children under age 18. In the first, Graham v. Florida,²³ decided in 2010, the Court held that a life-without-parole sentence is cruel and unusual punishment for children who have not committed a homicide. In the second, Miller v. Alabama,²⁴ decided in 2012, the Court held that mandatory life-without-parole sentences, even for homicide, are cruel and unusual sentences for children.

At about the same time the superpredator myth was fading, neuroscientists discovered through brain-imaging technology that the parts of the human brain involved in decision-making were not fully developed until after age 18.

In both Miller and Graham, the Court repeated and relied on the three general differences between children and adults described in Roper. Both decisions also revisited penological justifications for sentencing, concluding again that the case for retribution is not as strong for a juvenile as for an adult, and that juveniles are less susceptible to deterrence than are adults. The Graham Court also concluded that the penological goal of incapacitation did not justify a life-without-parole sentence because it would “require an assumption that the juvenile offender forever will be a danger to society,” contrary to the fact that “incorrigibility is inconsistent with youth.”²⁵

In 2012, when Miller was decided, 33 states mandated life-without-parole sentences for persons convicted of intentional homicide. As such, Miller was a major development in sentencing juveniles. (As noted above, Wisconsin requires a life sentence but does not mandate life without the opportunity for release eligibility. The sentencing court has the discretion to set a release eligibility date.) The Court in Miller did not, however, decide whether its decision was retroactive to the thousands of child offenders already in prison under mandatory life-without-parole sentences. That question reached the U.S. Supreme Court in 2016 in Montgomery v. Louisiana.²⁶

In Montgomery, the Court held that Miller was a substantive Constitutional holding requiring retroactive application. Miller “did more than require a sentencer to consider a juvenile offender’s youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of ‘the distinctive attributes of youth.’ Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects ‘unfortunate yet transient immaturity,’” the Court held.²⁷ A sentencing hearing where “youth and its attendant characteristics” are considered as sentencing factors, the Court said, “gives effect to Miller’s substantive holding.”²⁸

Application of Graham, Miller and Montgomery in State Courts

Three questions about life-without-parole sentences for child offenders – all relevant to Wisconsin – are the subject of most recent appellate litigation:

1. Do Miller and Montgomery govern discretionary imposition of life-without-parole sentences on children?

2. Do the Graham and Miller decisions apply to “de facto” life-without-parole sentences, for example sentences delaying release eligibility for 50-100 years or more?

3. What substantive and procedural requirements apply to sentencing hearings of child offenders?

Until the decision in Montgomery, state appellate courts were divided about whether Miller applied to discretionary life-without-parole sentences. However, since Montgomery, seven state supreme courts have considered the issue, and six have concluded that Miller requires a sentencing court to “take into account how children are different and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”²⁹ Only one has concluded otherwise.³⁰

As to “de facto” sentences, most state appellate courts have held that a single sentence deferring eligibility for parole for 50 years or more is a “de facto” life sentence.³¹ State court decisions are more mixed when it comes to release eligibility of less than 50 years³² and when the lengthy delay in release is the result of multiple consecutive sentences.³³

As of this writing, no national consensus exists on which substantive and procedural protections at a sentencing hearing meet Constitutional standards. Some states have held that a court’s review of the distinctive characteristics of children is sufficient, while others require a specific court finding that the child is not one whose crime reflects “unfortunate yet transient immaturity.” Decisions about procedural requirements such as the burden of proof and the standard of proof also are mixed.³⁴

Application of Graham, Miller, and Montgomery in Wisconsin Courts

The Wisconsin Supreme Court’s only decision on the constitutionality of a life-without-parole sentence was in 2011, in State v. Ninham.³⁵ In that case, decided after Graham v. Florida, but before Miller v. Alabama and Montgomery v. Louisiana, the Wisconsin Supreme Court held that Omer Ninham’s life-without-parole sentence was not unconstitutionally cruel and unusual because Graham did not apply to homicide offenders.

In March 2018, the Wisconsin Court of Appeals certified two cases to the supreme court, asking the court to address the three questions set forth above – application of Graham, Miller, and Montgomery to discretionary sentences and de facto life sentences, and substantive and procedural requirements at sentencing. The supreme court declined to take jurisdiction, and the two cases are awaiting decision by the court of appeals.³⁶ Meanwhile, the court of appeals has issued an unpublished decision rejecting a claim that a 16-year-old’s sentence delaying parole eligibility for 77 years was unconstitutional. It reasoned that it was bound by the Wisconsin Supreme Court’s decision in Ninham. A petition for review in that case is pending.³⁷

In 2016, the court of appeals issued a published decision rejecting a claim that Wisconsin’s homicide sentencing statute was facially unconstitutional because it allowed life-without-parole sentences for juveniles and included a 20-year mandatory minimum sentence.³⁸

Possible Reforms in Wisconsin

Two major avenues for reforming sentencing of children are available in Wisconsin. First, the supreme court could accept review of one or more pending appellate cases challenging existing life-without-parole sentences and address the three issues set forth by the court of appeals in its certification decision.

If the supreme court determined that the principles and requirements of Miller and Montgomery apply to discretionary sentencing and that a 77-year delay in parole eligibility is a “de facto” life sentence, it could provide guidance to courts throughout Wisconsin about the sentencing of juveniles post-Miller and Montgomery.

Second, the state legislature could enact legislation that would prohibit life-without-parole sentences for children, establish sentencing considerations that meet the standards of Graham, Miller, and Montgomery, and create a sentence review hearing for child offenders to give them a meaningful opportunity for release. The U.S. Supreme Court suggested this approach in Montgomery, saying that its decision did not require states to relitigate their life-without-parole sentences. Instead, a state could remedy Miller violations “by permitting juvenile homicide offenders to be considered for parole.”³⁹

The state legislature could enact legislation that would prohibit life-without-parole sentences for children, establish sentencing considerations that meet the standards of Graham, Miller, and Montgomery, and create a sentence review hearing for child offenders to give them a meaningful opportunity for release.

Across the country, states have enacted laws establishing parole or release hearings after a certain number of years, regardless of the terms of a juvenile’s sentence. In West Virginia, for example, juvenile offenders are statutorily eligible for parole after 15 years. In Nevada, statutory eligibility for parole is set at 15 years for crimes other than homicides, and 20 years for homicides. Wyoming, cited by the Supreme Court in Montgomery, provides for parole eligibility after 25 years; California establishes eligibility at 15, 20, or 25 years, depending on the crime.⁴⁰

With regard to this kind of legislation, the Montgomery Court concluded:

“Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States …. Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition – that children who commit even heinous crimes are capable of change.”⁴¹

Conclusion

Four decisions by the U.S. Supreme Court – Roper,Graham, Miller, and Montgomery – have fundamentally altered the sentencing of juveniles convicted of serious crimes in adult court. The Court recognized that children are constitutionally different from adults and said that states must give a juvenile offender some meaningful opportunity for release based on demonstrated maturity and rehabilitation. It remains to be seen how Wisconsin’s courts and the Wisconsin Legislature respond to these decisions for juveniles now serving life sentences and in future cases.

Endnotes

¹ Amicus Brief of the American Medical Association, American Psychiatric Association, et al. in Roper v. Simmons, 543 U.S. 551 (2005), page 2.

² Miller v. Alabama, 567 U.S. 460, 471 (2012).

³ Montgomery v. Louisiana, 136 S. Ct. 718, 735 (2016).

⁴ See Josh Rovner, “Juvenile Life Without Parole: An Overview,” Oct. 22, 2018.

⁵ Diatchenko v. District Attorney, 1 N.E.3d 270 (Mass. 2013); State v. Sweet, 879 N.W.2d 811 (Iowa 2016); State v. Bassett, 428 P.3d 343 (Wash. 2018).

⁶ A note on terminology: The term used nationally to describe life sentences in which the individual will not be eligible for release from prison during his or her lifetime is “life without parole,” abbreviated to LWOP. In Wisconsin, most individuals described in this article are serving sentences pre-dating Dec. 31, 1999, when the first phase of truth-in-sentencing became effective. Under truth-in-sentencing, what was previously called parole is now called “extended supervision.” In this article, when the term life without parole is used, it should be interpreted to include eligibility for both parole and extended supervision.

⁷ Data provided to the Remington Center, U.W. Law School, by the Wisconsin Department of Corrections (DOC), describing inmate populations as of Aug. 31, 2018.

⁸ DOC data as of Aug. 31, 2018. Where that data is incomplete regarding release eligibility dates, Remington Center staff obtained release eligibility dates from CCAP, Wisconsin Court of Appeals decisions, clerks of court, and prison registrars.

⁹ The state spent $38,644 per inmate per year in 2015.  

¹⁰ DOC data as of Aug. 31, 2018.

¹¹ The Sentencing Project, “The lives of juvenile lifers: Findings from a national survey” (2012).

¹² Miller, 567 U.S. at 476 (quoting Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)).

¹³ Amicus brief, supra note 1, at 20-21.

¹⁴ DOC data.

¹⁵ John J. Dilulio Jr., The Coming of the Super Predators, The Weekly Standard, Nov. 27, 2995 at 23, cited in State v. Null, 836 N.W.2d 41 (Iowa 2013).

¹⁶ James Alan Fox, cited in Null, 836 N.W.2d at 53.

¹⁷ Null, 836 N.W.2d at 53-54.

¹⁸ Id. at 56.

¹⁹ Roper, 543 U.S. 551.

²⁰ Amicus brief, supra note 1, at 2-3.

²¹ Roper, 543 U.S. at 569-70.

²² Id. at 571-72.

²³ Graham v. Florida, 560 U.S. 48 (2010).

²⁴ Miller, 567 U.S. 460.

²⁵ Graham, 560 U.S. at 71-74.

²⁶ Montgomery, 136 S. Ct. 718.

²⁷ Id. at 734 (internal citations omitted).

²⁸ Id. at 735.

²⁹ Landrum v. State, 192 So.3d 459 (Fla. 2016); Luna v. State, 387 P.3d 956 (2016); People v. Holman, 91 N.E.3d 849 (Ill. 2017); State v. Valencia, 386 P.3d 392 (Ariz. 2016); Steilman v. Michael, 407 P.3d 313 (Mont. 2017); Veal v. State, 784 S.E.2d 403 (Ga. 2016); Windom v. State, 398 P.3d 150 (Idaho 2017).

³⁰ Jones v. Commonwealth, 795 S.E.2d 705 (Va. 2017).

³¹ See, e.g., Casiano v. Commissioner of Corrections, 115 A.3d 1031 (Conn. 2015); People v. Caballero, 282 P.3d 291 (Cal. 2012): People v. Reyes, 63 N.E.3d 884 (Ill. 2016); State v. Boston, 363 P.3d 453 (Nev. 2015); State v. Ragland, 836 N.W.2d 107 (Iowa 2013); Bear Cloud v. State, 334 P.3d 132 (Wyo. 2014).

³² Compare Bear Cloud v. State, 334 P.3d 132 (Wyo. 2014) with Ira v. Janecka, 419 P.3d 161 (N.M. 2018).

³³ Compare State v. Zuber, 152 A.3d 197 (N.J. 2017) and State v. Moore, 76 N.E.3d 1127 (Ohio 2016) with Willibanks v. DOC, 522 S.W. 3d 238 (Mo. 2017) and State v. Ali, 895 N.W.2d 237 (Minn. 2017).

³⁴ Compare Davis v. State, 415 P.3d 666 (Wyo. 2018) and Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) with State v. Ramos, 387 P. 3d 650 (Wash. 2017), and Garcia v. State, 903 N.W. 2d 503 (N.D. 2017).

³⁵ State v. Ninham, 2011 WI 33, 333 Wis. 2d 335, 797 N.W.2d 451.

³⁶ State v. Ninham, No. 2016AP2098 (Wis. June 11, 2018); State v. Walker, No. 2016AP1058 (Wis. June 11, 2018).

³⁷ State v. Jackson, No. 2017AP712, 2018 WL 4179078 (Wis. Ct. App. Aug. 28, 2018) (unpublished).

³⁸ State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520.

³⁹ Montgomery, 136 S. Ct. at 736.

⁴⁰ Data from the Juvenile Sentencing Project.

⁴¹ Montgomery, 136 S. Ct. at 736.