August 1, 2012 – Although the U.S. Supreme Court recently banned, as cruel and unusual, mandatory sentencing laws that put juvenile offenders in prison for life with no possibility of parole for murder, Wisconsin’s sentencing laws are not directly implicated by the ruling.

In one of its final cases of the term, the U.S. Supreme Court decided Miller v. Alabama, 567 U.S. __ (2012), a consolidated case in which two 14-year-olds were convicted on murder charges and sentenced to life without the possibility of parole under mandatory state sentencing laws.

Their attorney, Alabama lawyer Bryan Stevenson, argued that such sentences violate the Eighth Amendment’s prohibition against cruel and unusual punishment under the U.S. Constitution.

Stevenson made that same argument in State v. Ninham, 2011 WI 33 (May 20, 2011), citing the U.S. and Wisconsin constitutions. Stevenson had argued that Omer Ninham, 14 years old in 1998 when he killed a 13-year-old in Green Bay, should at least have the possibility of parole.

But 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.” Months after that decision, the High Court took Miller.

Holding in Miller Does not Overrule Ninham

In Miller, a U.S. Supreme Court majority (5-4) held that states cannot statutorily prescribe mandatory life without parole sentences for individuals under 18 years old, even for homicide.

It based its decision on procedural grounds, namely, that courts must consider someone’s “youth and attendant characteristics” at sentencing. Mandatory sentencing “prevents those meting out punishment from considering a juvenile’s ‘lessened culpability’ and ‘greater capacity for change,’” wrote Justice Elena Kagan for the five-justice majority.

Miller adds a new protective layer to previous rulings that prohibit death penalty sentences for juveniles,¹ or life without parole sentences for juveniles not convicted of a homicide crime.²

But the Miller ruling does not prohibit states from imposing “discretionary” life without parole sentences for murder, according to Madison criminal defense lawyer Dean Strang. Specifically, Strang said the U.S. Supreme Court stopped short of saying that any sentence of life without parole for a juvenile is categorically unconstitutional, meaning Wisconsin’s law remains intact.

“The U.S. Supreme Court in Miller held only that a statutorily-mandated sentence of life without parole for a juvenile homicide defendant violates the Eighth Amendment,” said Strang, of Hurley Burish & Stanton S.C. “That amendment requires at least that the sentencer have discretion to impose a lesser sentence. In Wisconsin, the sentencer does.”

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.³ Sentencing courts have discretion to sentence such offenders to life without the possibility of release.⁴

The sentencing judge in Ninham used that discretion to prohibit the possibility of Ninham’s parole. 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.

The Ninham facts were particularly heinous. Ninham and his friends started bullying a 13-year-old boy, Zong Vang, and chased him up a five-story parking garage. They tormented him before Ninham and another boy dangled Vang by his ankles and dropped him over the building’s edge.

In court proceedings, Ninham showed little remorse. Before trial, he 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.

Based on numbers from the Wisconsin Office of Justice Assistance, Stevenson’s brief claimed that of the 1,153 juveniles arrested in Wisconsin for murder since 1995, only Ninham had been sentenced to life in prison without parole for a homicide committed under the age of 15.

Unconstitutional if Mandatory

In Miller, the state laws at issue were mandatory: Any juvenile who committed a homicide crime was subject to a nondiscretionary life without parole sentence. But the U.S. Supreme Court said that “sentencers must be able to consider the mitigating factors of youth.”

“Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it,” wrote Justice Kagan for the majority, noting things such as immaturity and family dysfunction.

According to the Miller opinion, 29 jurisdictions have mandatory life without parole sentences that can be applied to juveniles who commit murder.⁵ Federal law allows it: “Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life.⁶

Approximately 2,500 prisoners are serving life without parole sentences for crimes committed under the age of 18, some 2,000 because of mandatory sentencing laws. These numbers led the dissenting judges to conclude that such sentences are not “unusual” at all.

“Such tangible evidence of societal standards enables us to determine whether there is a ‘consensus against’ a given sentencing practice,” Chief Justice John Roberts wrote for the dissent, joined by Justices Alito, Scalia, and Thomas. “If there is, the punishment may be regarded as ‘unusual.’ But when, as here, most States formally require and frequently impose the punishment in question, there is no objective basis for that conclusion.”

Michael O’Hear, a criminal law professor at Marquette University Law School, says Miller could potentially extend to other cases in which an offender suffers from some type of mental illness but isn’t necessarily insane. On the other hand, O’Hear also points out that even though Miller has an opportunity to be resentenced, the judge may impose the same sentence.

“[S]entencing judges remain free to give [life without parole] to juvenile killers as long as they are not required to do so by operation of statute,” O’Hear wrote in a recent faculty blog post, “Miller’s Unanswered Questions and the Future of the Eighth Amendment.”

Joe Forward is the legal writer for the State Bar of Wisconsin.

Endnotes

¹ Roper v. Simmons, 543 U.S. 551 (2005).

² Graham v. Florida, 130 S. Ct. 2011 (2010). 

³ Wis. Stat. § 938.183(1)(am). 

⁴ Wis. Stat. § 973.014(1). 

⁵ For an example, see Mo. Rev. Stat. § 565.020. 

⁶ 18 U.S.C. §§ 1111(b), 5032 (juveniles as young as 13 years-old can be prosecuted as an adult for murder).