We certify these appeals to determine whether Wisconsin case law regarding life sentences without parole for juvenile murderers comports with recent pronouncements from the United States Supreme Court, and whether the sentencing courts in these cases adequately considered the mitigating effect of the defendants’ youth in accord with those Supreme Court pronouncements.
The “recent pronouncements” of the Supreme Court are, of course, the series of cases holding that certain sentencing schemes that apply to adult offenders violate the Eighth Amendment when applied to juveniles because of the differences in cognitive development between children and adults.
After first barring the death penalty for juvenile offenses in Roper v. Simmons, 543 U.S. 551 (2005), and then life-without-release sentences for nonhomicide offenses in Graham v. Florida, 560 U.S. 48 (2010), the Court held in Miller v. Alabama, 567 U.S. 460 (2012), that the Eighth Amendment forbids sentencing schemes that mandate life in prison without the possibility of release for juvenile offenders. Finally, in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court held Miller applies retroactively. Montgomery also elaborated on its reasoning in Miller, holding that even if a sentencing court considers a child’s age, a life-without-release sentence violates the Eighth Amendment for a child whose crime reflects “unfortunate yet transient immaturity,” as such a sentence is inappropriate except where the child is so irreparably corrupt that rehabilitation is impossible. 136 S. Ct. at 733-34. (The amicus brief filed by the Remington Center in Walker’s case has a handy summary of the cases, with more detail.)
Wisconsin courts have addressed the constitutionality of sentencing juveniles to life without release in two cases. State v. Ninham, 2011 WI 33, 333 Wis. 2d 335, 797 N.W.2d 451, held that a life sentence without release for a 14-year-old who committed homicide did not categorically constitute cruel and unusual punishment, but that was before Miller and Montgomery. (See our post here.) Then came State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, which concluded that life-without-release sentences imposed under a system where the court has discretion to grant or deny release are okay under Miller. But as we noted in our post on that case, Barbeau didn’t consider the impact of Montgomery, which had been decided a few months earlier and which, again, described Miller as narrowing the circumstances that would justify imposing a life-without-release sentence on a juvenile.
Thus the certification. The court of appeals can’t overrule or disregard Ninham and Barbeau. Further, there’s a split in other states as to the reach of Miller and effect of Montgomery, with most of them holding that Miller‘s reasoning applies to discretionary life sentences. (Certification at 8-10). In addition, Walker was given a parole eligibility date, but he’ll be 95 years old when that rolls around, so his case presents yet another issue that has split other courts: Whether a de facto life sentence is governed by Miller and Montgomery and, if so, how long a sentence has to be to qualify as a de facto life sentence. (Certification at 3, 10).
As the court of appeals aptly points out, these are “matters of considerable statewide importance and constitutional dimension, … they are likely to recur because Montgomery made Miller’s holding retroactive,” and “sentencing courts would benefit greatly from definitive guidance on the degree to which they must review the factors identified in Miller [regarding how children are different from adults and how those difference counsel against life in prison], 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.” (Certification at 11).