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Is simply mentioning a defendant’s young age enough to satisfy Miller v. Alabama?

McKinley Kelly v. Richard Brown, 7th Circuit Court of Appeals No. 17-1244, 3/16/17

Two judges on the Seventh Circuit apparently think so, based on their rejection of Kelly’s motion to file a second federal habeas petition so he can challenge his sentence under Miller v. Alabama, 132 S. Ct. 2455 (2012) (mandatory life sentence for juvenile offenders is unconstitutional).

Kelly was 16 when he committed two murders in Indiana. He was facing a presumptive sentence of 55 years on each, though that could be reduced or increased by 10 years based on mitigating or aggravating circumstances, and the sentences could be concurrent or consecutive; thus, Kelly faced a sentencing range of 45 to 130 years. (Slip op. at 2). The state judge sentenced him to 110 years, and he’ll be eligible for parole at age 70. (Slip op. at 1).

Two court of appeals judges hold that the sentencing court was afforded significant discretion in fashioning an appropriate sentence and in fact considered Kelly’s age in mitigation, so “Kelly was afforded all he was entitled to under Miller.” (Slip op. at 4). Judge Posner disagrees, saying Kelly should get a hearing to determine whether he is “incorrigible” as required by the controlling case law:

…[T]he Supreme Court concluded in Miller that a life sentence is unconstitutional for all but the “rare juvenile offender whose crime reflects irrepa‐ rable corruption.” Miller v. Alabama, supra, 132 S. Ct. at 2469, quoting Roper v. Simmons, 543 U.S. 551, 573 (2005); see also Montgomery v. Louisiana, supra, 136 S. Ct. at 733–34. Yet in sentencing Kelly the trial judge said only one thing relating to his youth when he committed the murders: “The mitigating factors, as far as Mr. Kelly is concerned, is [the judge meant “are”] the fact that he’s 17 years old right now and [was] 16 years [old] at the time he committed this offense.” So cursory a statement does not evidence the deliberate reflection on Kelly’s character that would be necessary to conclude that he is “irretrievably depraved” and his “rehabilitation is impossible.” Roper v. Simmons, supra, 543 U.S. at 570; Montgomery v. Louisiana, supra, 136 S. Ct. at 733. As far as the record reflects, Kelly is a typical youthful offender. We do not know the details of the fight that resulted in his shooting two people, but the judge found that the killings were not planned and were tragic for everyone involved, including Kelly. The judge mused that there “have always been disagreements among young people” and that what would have been a fist fight or a knife fight in years past, today has elevated consequences because of the ubiquity of guns; not the stuff of a crime demonstrating the complete depravity and irredeemability of Kelly. (Dissent at 7-8).

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