Sentencing – Life without Parole for Juveniles – Cruel and Unusual Punishment
Sentence of life without parole imposed on juvenile (Ninham was 14 when he committed the crime) upheld, against eighth amendment, cruel-and-unusual challenge. The statutory scheme subjected Ninham to life without parole:
¶42 The Wisconsin legislature has determined that a juvenile who commits first-degree intentional homicide on or after the juvenile’s tenth birthday is subject to the criminal penalties provided for that crime. See Wis. Stat. § 938.183(1)(am), (1m) (1997-98). A person who commits first-degree intentional homicide is guilty of a Class A felony, Wis. Stat. § 940.01(1) (1997-98), the penalty for which is life imprisonment, Wis. Stat. § 939.50(3)(a) (1997-98). When a court sentences a person to life imprisonment for a crime committed on or after July 1, 1988, but before December 31, 1999, the court must make a parole eligibility determination. Wis. Stat. § 973.014(1) (1997-98). If the crime was committed on or after August 31, 1995, but before December 31, 1999, the court may choose the option of no parole eligibility. § 973.014(1)(c) (1997-98).
He was indeed deemed ineligible for parole, and he argues that the statutory scheme is “categorically unconstitutional” under the 8th amendment when the crime was committed by a 14-year-old. This argument asks whether the punishment falls within one of two categories: (1) “those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted” in 1791; or (2) punishment inconsistent with “‘evolving standards of decency that mark the progress of a maturing society.'” See Ford v. Wainwright, 477 U.S. 399, 405-06 (1986) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)), ¶46. The 1st category isn’t implicated, only the 2nd, raising a threshold question of whether a “national consensus” exists against the challenged practice, ¶50. Such a consensus does exist against life without parole for a nonhomicide offense, ¶53, citing Graham v. Florida, 130 S.Ct. 2011 (2010)
¶54 Turning to the case now before us, we must determine whether there is a national consensus against sentencing a 14-year-old to life imprisonment without the possibility of parole for committing intentional homicide. …
¶55 Ninham concedes that the vast majority of states permit 14-year-olds to be sentenced to life without parole for homicide crimes. …
¶56 As Ninham points out, however, our analysis cannot end there; pursuant to Graham, it is possible that “an examination of actual sentencing practices in jurisdictions where the sentence in question is permitted by statute discloses a consensus against its use.” 130 S. Ct.at 2023. Here, Ninham argues that the rarity with which sentences of life without parole are imposed upon 14-year-olds demonstrates a national consensus against such sentences. Ninham informs us that he is currently the only person in Wisconsin serving a sentence of life without parole for a crime committed at the age of 14, and furthermore, nationwide, only 73 juveniles age 14 or younger, deriving from just 18 states, have been sentenced to life without parole.
¶57 We appreciate the fact that 14-year-olds are rarely sentenced to life imprisonment without parole. However, we disagree with Ninham that the rarity with which the sentence is imposed is necessarily demonstrative of 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. Ninham does not point to any data which would lead us to believe otherwise. In short, Ninham has failed to demonstrate that there is a national consensus against sentencing a 14-year-old to life imprisonment without parole for committing intentional homicide.
This doesn’t conclude the issue; rather, the court must exercise “independent judgment” as to the challenged sentencing practice, taking into account: culpability of 14-year-olds who commit intentional homicide, severity of life without parole, and advancement of legitimate penology goals, ¶¶59-83. The court determines that the punishment is proportionate to the crime. Of particular note: “Ninham argues … that that 14-year-olds cannot reliably be classified among the worst offenders for which this state reserves life imprisonment without parole,” ¶73. The court, however, rejects the idea “the conclusion that 14-year-olds who commit intentional homicide are categorically less deserving of life imprisonment without parole,” ¶74.
It’s doubtless correct that there are some “atypical” fourteen-year-olds who are pretty darn mature. The question is whether the existence of these fourteen-year-olds means that the court should refuse to adopt a general rule prohibiting LWOP for all fourteen-year-olds. In Graham, the Supreme Court spent a good bit of time discussing the pro’s and cons of bright-line rules, and I’m a bit surprised that the Ninham court did not seem to engage with this aspect of the Supreme Court decision. …
The court’s analysis is “categorical” … except when it’s not. (For that matter, Professor O’Hear’s blog is well worth reading on a regular basis for its trenchant sentencing policy and caselaw analysis.) As to the crime itself, the court’s opening recitation of facts tells you pretty clearly where the court is going to end up:
¶8 We describe the facts of this case with an understanding that this horrific and senseless crime cannot adequately be reduced into words. The terror experienced by the victim and the hurt suffered by his family and friends is, in a word, unimaginable.
(The court, to be sure, doesn’t apply the facts to its “categorical” analysis, but they are certainly horrific.)
Sentencing – Harsh and Excessive Review
Ninham argues his sentence of life without parole was harsh and excessive in light of his youth (14 years old) and the “extreme abuse” he suffered along with his alcohol dependence.
¶85 The standard for determining whether a punishment is cruel and unusual in a particular case is the same under both federal and Wisconsin law. See State v. Pratt, 36 Wis. 2d 312, 321-23, 153 N.W.2d 18 (1967). “‘[W]hat constitutes adequate punishment is ordinarily left to the discretion of the trial judge. If the sentence is within the statutory limit, appellate courts will not interfere unless clearly cruel and unusual.'” Id. at 322 (quoting Hayes v. United States, 238 F.2d 318, 322 (10th Cir. 1956)); see also State v. Taylor, 2006 WI 22, ¶19, 289Wis. 2d 34, 710 N.W.2d 466. A sentence is clearly cruel and unusual only if the sentence is “so ‘excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.'” State v. Paske, 163 Wis. 2d 52, 69, 471 N.W.2d 55 (1991) (quoting Pratt, 36 Wis. 2d at 322).
¶86 Under these circumstances, we simply cannot say that Ninham’s sentence of life imprisonment without parole is so disproportionate to the crime he committed “‘as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper.'” Id.(quoting Pratt, 36 Wis. 2d at 322). There is no question that Ninham’s punishment is severe, but it is not disproportionately so. The manner in which Ninham took Vang’s life was horrific and senseless. The severity of the homicide was only compounded by the fact that Ninham refused to take any responsibility and in fact threatened the lives of the other juveniles who did. That Ninham was just 14 years old at the time of the offense and suffered an indisputably difficult childhood does not, as he contends, automatically remove his punishment out of the realm of proportionate. The circuit court was well within its statutory authority to sentence Ninham to life imprisonment without parole, and we will not interfere with its exercise of discretion.
Sentencing – New Factor
Scientific research on adolescent brain development didn’t support new factor-based sentence modification, “because the conclusions reached by the studies were already in existence and well reported by the time Ninham was sentenced in 2000,” ¶91.
¶93 Moreover, even assuming that the conclusions reached by these MRI studies were not known to the circuit court at the time of Ninham’s sentencing, Ninham still has not shown by clear and convincing evidence that the conclusions reached by the studies are “highly relevant to the imposition of [Ninham’s] sentence,” see Rosado, 70 Wis. 2d at 288 (emphasis added), and in particular, the circuit court’s findings regarding Ninham’s culpability and recidivism. As previously explained, see Part III.A.2.b.i. supra, the generalizations concluded within these scientific studies are insufficient to support a determination about the culpability of a particular 14-year-old who commits intentional homicide, in this case, Ninham. Likewise, the studies’ conclusion that adolescents “almost universally” grow out of their impulsive and risky behavior tells us virtually nothing about Ninham’s likelihood to relapse into criminal behavior. This point is made clear by the fact that the studies to which Ninham refers do not concern the development of incarcerated juveniles in particular. In short, Ninham has failed to prove by clear and convincing evidence that this scientific research regarding adolescent brain development constitutes a new factor for purposes of modifying Ninham’s particular sentence.
An excellent scholarly analysis by Colleen Marion argues that construing Ninham to bar categorically new factor-based modification on the basis of scientific breakthroughs re: adolescent brain development would violate the principle of individualized sentencing review:
This comment argues that recent studies on adolescent brain development could meet the “new factor” test. These studies uncover the physiological reasons why many adolescents exercise poor judgment and engage in risky behavior. Adolescent brain science may be new and highly relevant to a sentence, thus qualifying as a “new factor” warranting sentence modification. … In State v. McDermott, the Wisconsin Court of Appeals did just that when it summarily rejected a brain science “new factor” claim, stating that the argument “ignores reality, and, in essence, puts the old wine of human experience in the new bottles of recent research and labels the entire package as ‘new.’ As we have seen, Ninham rejected this false labeling.” To accept this reading of Ninham is to discard the principle that “new factor” sentence modification should be decided on a case-by-case basis. Moreover, it flies in the face of recent United States Supreme Court cases that wholly affirm the legal relevance of new adolescent brain studies and reject the notion that common sense can substitute for science.
Sentencing – Improper Factor – Religious Views
¶96 We agree with Ninham that a circuit court may not base its sentencing decision upon the defendant’s or the victim’s religion. However, in this case, Ninham has failed to demonstrate by clear and convincing evidence that the circuit court actually relied upon the religious views of Vang’s family when imposing Ninham’s sentence. There is no doubt that the circuit court’s comment on “being asked to release a soul” was a reference to the statement provided by Vang’s brother, Seng Say, in which he informed the court that “[i]n our Hmong culture we believe that the spirit of a murdered person cannot be set free to go in peace until the perpetrators be brought to justice.” However, other than pointing out the link between the circuit court’s comment and Seng Say’s statement, Ninham offers no argument to support the circuit court’s actual reliance upon the Vangs’ Hmong beliefs. Rather, when the circuit court’s comment is considered in context, it is clear that the circuit court was not actually relying upon the Vangs’ religious beliefs but instead was merely commenting on Ninham’s character, namely, his intolerance of other cultures and his negative attitude ….
The leading, not to say only, case in this area remains State v. Fuerst, 181 Wis. 2d 903, 913, 512 N.W.2d 243 (Ct. App. 1994) (“the court is not permitted to consider a defendant’s beliefs system and religious activities without a relevant relationship between those beliefs and the criminal activity”) – not discussed by the court here, therefore unaffected by the decision.