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  • WisBar News
    March 16, 2018

    Supreme Court May Revisit Life Sentences Without Parole for Juveniles

    Joe Forward

    Kids and Jail

    March 16, 2018 – The Wisconsin Supreme Court may hear a case to determine whether Wisconsin law comports with recent decisions by the U.S. Supreme Court when it comes to sentencing juveniles to life in prison with no chance for parole.

    The Wisconsin Court of Appeals recently certified two consolidated cases to the state supreme court. Both involve defendants who were convicted of murder as juveniles.

    Curtis Walker was convicted for shooting a police officer, in 1994, when he was 17 years old. Prosecutors alleged Walker, a gang member, was part of an ambush on a randomly selected police officer, a criminal act inspired by rap song lyrics.

    He was sentenced to life in prison with possibility of parole after 75 years, a de facto life without parole sentence since he would not be eligible for release until his 90s.

    Omer Ninham, convicted of first-degree murder in 1998, was 14 years old when he and an accomplice dropped a 13-year-old victim off a multi-story parking garage. The sentencing court imposed of sentence of life in prison with no possibility of parole.

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

    Ninham, through attorney Bryan Stevenson of the Equal Justice Initiative in Alabama, had argued that sentencing juveniles to life without parole sentences violate federal and state constitutional provisions that prohibit cruel and unusual punishment.

    In 2012, the U.S. Supreme Court considered whether life without parole sentences should be banned for homicide offenders who are under age 18 when the crimes occur.

    In Miller v. Alabama, 132 S. Ct. 2455 (2012), a 5-4 majority held that states cannot mandate life without parole sentences for juvenile offenders because such mandates don’t allow the court to assess mitigating factors unique to children, such as immaturity, family and home environment, and the possibility of rehabilitation.

    But the ruling did not expressly prohibit discretionary decisions to impose life without parole sentences when the crime reflects “irreparable corruption.”

    Under Wisconsin law, sentencing courts have discretion to sentence juveniles to life without parole sentences, so Ninham’s sentence seemed intact after Miller.

    But Ninham and Walker now argue that Miller, together with a subsequent decision, Montgomery v. Louisiana, 136 S. Ct. 718 (2016), prohibit discretionary life sentences.

    The state appeals court, in its certification to the supreme court, notes that the U.S. Supreme Court, since Miller, has remanded cases for reconsideration even though the sentences were discretionary, and “jurisdictions are split on the questions of whether Miller applies only to mandatory life sentences.” In Montgomery, the U.S. Supreme Court made Miller retroactive, applying to juveniles sentenced before 2012.

    The Montgomery Court, the panel noted, “further concluded that Miller barred the sentence of life without parole for all but the rarest of youth, where the child is so irreparably corrupt that rehabilitation is impossible.”

    The sentencing court had described Ninham – who showed little remorse during trial proceedings and threatened a judge and others – as a “ruthless young man.”

    But in 2007, when Ninham was 23 years old, a neuropsychologist concluded that Ninham no longer suffered from the severe behavioral issues that dominated his youth and the prognosis for successful re-entry into the community was good.

    In a postconviction motion, Ninham argued that his sentence violates Miller and Montgomery, which reserves life without parole sentences for youths who cannot be rehabilitated. The circuit court denied the motion, noting the sentence was discretionary.

    Similarly, Walker argues that his sentence is inconsistent with Miller and Montgomery and the sentencing court failed to consider the mitigating effects of his youth.

    In its certification, the appeals court noted that it has no authority to disregard holdings of the Wisconsin Supreme Court, including its 2011 decision in Ninham,” regardless of advances in the science of adolescent brain development or other research.

    “Moreover, it is unclear whether Miller and Montgomery require such undermining of the holdings in Ninham and Barbeau,” referring to State v. Barbeau, 2016 WI App 51.

    In Barbeau, a 2016 decision, the court of appeals ruled that Miller does not provide a basis for relief for discretionary sentences that are warranted by the circumstances. Both the Wisconsin Supreme Court and the U.S. Supreme Court denied review.

    The certification to the Wisconsin Supreme Court in the consolidated cases of State v. Walker and State v. Ninham explain why the supreme court should decide.

    “[S]entencing courts would benefit greatly from definitive guidance on the degree to which they must review the factors identified in Miller, and the extent to which, if any the prospect for the juvenile’s rehabilitation takes precedence over other legitimate sentencing considerations, such as general deterrence,” the certification states.

    The appeals court noted the issue as a matter of “considerable statewide importance and constitutional dimension,” especially because Miller’s holding is retroactive. The Wisconsin Supreme Court will hear the case if a majority of justices agree to hear it.



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