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Court of Appeals rejects constitutional challenges to juvenile’s life sentence

State v. Antonio D. Barbeau, 2016 WI App 51; case activity (including briefs)

Barbeau killed his great-grandmother when he was 14 years old, and eventually pled no contest to first-degree intentional homicide, which carries an automatic life sentence. When imposing such a sentence, the court must make a decision as to extended supervision: it can either deny any possibility of ES, or it can set a date at which the person becomes eligible, though such date must occur after the person has served at least 20 years. Wis. Stat. § 973.014(1g).

In Barbeau’s case, both parties and the court were confused, believing the court was required to determine eligibility for parole, rather than ES, as under pre-1999 law. The court did so, setting a date approximately 35 years out. Barbeau moved for sentence modification, alleging that the fact that the statute instead calls for an ES determination constitutes a new factor justifying an earlier eligibility date of 20 years. The court of appeals doesn’t agree, finding, despite procedural differences between parole and discretionary release to ES, that the two determinations are “functionally and substantively the same.” (¶19).

Barbeau also makes three arguments that the Wisconsin statutory scheme is unconstitutional as applied to children:

First, that [it] is unconstitutional because it imposes a life sentence and one option does not allow for extended supervision at all. Second, that the mandatory minimum of twenty years’ imprisonment … is “categorically unconstitutional” when it is “applied to children.” … Third and finally, he argues that the statutory scheme for release on extended supervision “does not afford a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” This is because in deciding whether an offender should be released on extended supervision, a court may consider only whether the offender is a danger to the public [and] an offender is not guaranteed the right to a hearing or a right to counsel.


The court of appeals first holds Barbeau lacks standing to bring either of his first two claims, because he did not receive either life without the possibility of release (¶24) or the mandatory minimum of which he complains (¶34).

The court nevertheless goes ahead and decides both constitutional issues, despite their not being presented, and without giving any convincing reasons for doing so. Actually, as to the second, it gives no reason at all other than that the constitutional determination provides an “alternative holding”; as to the first, the court says it is addressing Barbeau’s challenge because our supreme court rejected a “similar, but slightly different, categorical challenge” five years ago, in State v. Ninham, 2011 WI 33, 333 Wis. 2d 335, 797 N.W.2d 451. (¶25).

The thrust of the discussion of that first claim is to declare that Ninhams holding–that a juvenile’s discretionary LWOP sentence was not unconstitutional–survives Miller v. Alabama, 132 S. Ct. 2455 (2012), which held statutes mandating such sentences to violate the Eight Amendment. (¶¶26-32). Which may be, strictly speaking, true, but is not particularly salient, given the more recent decision in Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Montgomery made Miller’s rule retroactive, but perhaps more importantly cast it as prescribing fairly narrow circumstances under which a juvenile could ever receive an LWOP sentence, as noted in our post on that case. Whether Ninham’s broad approval of Wisconsin’s statutory scheme (or any particular LWOP sentence) survives Montgomery is the more interesting question, and is not addressed here.

As to the claim that all mandatory minimums are unconstitutional as applied to children, the court of appeals finds support lacking in the recent SCOTUS decisions and declines to join the Iowa Supreme Court in finding such a rule in the state Constitution. (¶¶34-44).

Barbeau’s third claim concerns Wis. Stat. § 302.114(5)(cm), which will govern the court’s decision whether to release him to ES once he has served his 35 years. It forbids the court to grant release “unless the inmate proves, by clear and convincing evidence, that he or she is not a danger to the public.” Barbeau contends that making danger to the public the only criterion for release violates Graham v. Florida, 560 U.S. 48 (2010), which required, in nonhomicide cases, that a juvenile offender be given “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” The court of appeals responds that

Whether an inmate is no longer a danger to the public is obviously informed by whether that inmate has matured and been rehabilitated. In other words, contrary to Barbeau’s contention, there is more than “only one criterion for the release determination;” that criterion subsumes other inquiries.


The court declines to address, as undeveloped, Barbeau’s additional argument that the statue is unconstitutional because it fails to provide counsel or the guarantee of a hearing for the eventual ES determination. Perhaps something to keep in mind, especially as we reach the 20-year anniversary of Truth in Sentencing and, therefore, the first possible ES eligibility dates for those sentenced to life under the regime.

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