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State v. Omer Ninham, 2008AP1139, Wis SCt rev granted 9/13/10

decision below: 2009 WI App 64; for Ninham: Frank M. Tuerkheimer; Bryan Stevenson; Rebecca Kiley

Issues (from Table of Pending Cases):

Whether Roper v. Simmons, 543 U.S. 551 (2005) and Graham v. Florida, 130 S.Ct. 2011 (2010) are applicable to revise the sentence of a defendant whose crime(s) were committed as a juvenile.

Whether the sentence constitutes cruel and unusual punishment under state and federal constitutions.

Ninham got life without parole for first-degree intentional homicide, committed as a 14-year-old. Roper says that the 8th A doesn’t support the death penalty for a juvenile; Graham, that it doesn’t support juvenile life without parole for a non-homicide. Can you mesh these principles such that juvenile life without parole is impermissible altogether, even for a homicide? Such that juvenile life without parole is tantamount to capital punishment? The court of appeals answered no, at least with respect to Roper‘s reach, the decision having been handed down before Graham:

¶4        The Court’s reasoning in Roper was based “in large measure on the ‘special force’ with which the Eighth Amendment applies when the state imposes the ultimate punishment of death.” United States v. Mays, 466 F.3d 335, 340 (5th Cir. 2006) (citing Roper, 543 U.S. at 568-69). The reasoning of Roper applies with only limited force outside the context of capital punishment. See United States v. Feemster, 483 F.3d 583, 588 (8th Cir. 2007). The Roper Court recognized that children have an underdeveloped sense of responsibility that often results in impetuous and ill-considered actions and decisions. Roper, 543 U.S. at 569. Therefore, children are not as morally reprehensible as adults for committing the same offenses. In addition, children are more vulnerable or susceptible to negative influences and peer pressure. Id. The Court also recognized that the character of a child is not as well formed as an adult and there is a greater possibility that a minor’s character deficiencies will be reformed.  Id. at 570. However, these are factors the sentencing court should weigh when determining parole eligibility. Roper does not support the proposition that a sentence to life without parole for acts committed by a fourteen-year-old is always inappropriate regardless of the depravity of the crime, the juvenile’s character and the need to protect the public.

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