Justia.com Opinion Summary: Defendant, 14-years-old at the time of the offense, was convicted of first-degree intentional homicide and physical abuse of a child for the death of a 13-year-old. At issue was whether defendant's sentence of life imprisonment without parole was cruel and unusual in violation of the Eighth Amendment of the United States Constitution and Article I, Section 6 of the Wisconsin Constitution and, in the alternative, whether defendant's sentence should be modified. The court affirmed the sentence, applying a two-step approach employed by the United States Supreme Court in Graham v. Florida, and held that defendant failed to demonstrate that there was a national consensus against sentencing 14-year-olds to life imprisonment without parole when the crime was intentional homicide and that, in the exercise of its own independent judgment, the punishment was not categorically unconstitutional. The court also held that defendant's sentence was not unduly harsh or excessive; that defendant had not demonstrated clear and convincing evidence that the scientific research on adolescent brain development to which he referred constituted a "new factor;" and that defendant had not demonstrated by clear and convincing evidence that the circuit court actually relied on the religious beliefs of the victim's family when imposing defendant's sentence. Accordingly, the court affirmed defendant's sentence of life imprisonment without parole.
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2011 WI 33
SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
2008AP1139
State of Wisconsin,
Plaintiff-Respondent,
v.
Omer Ninham,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
2009 WI App 64
Reported at: 316 Wis. 2d 776, 767 N.W.2d 326
(Ct. App. 2009-Published)
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
May 20, 2011
January 5, 2011
Circuit
Brown
John D. McKay
ABRAHAMSON, C.J., dissents (opinion filed).
BRADLEY, J., joins dissent.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner there were briefs by
Frank M. Tuerkheimer of Godfrey & Kahn, S.C., and Bryan
Stevenson of Equal Justice Initiative, and oral argument by
Bryan Stevenson.
For the plaintiff-respondent the cause was argued by Sally
L. Wellman, assistant attorney general, with whom on the brief
was J.B. Van Hollen, attorney general.
Amicus curiae briefs were filed on behalf of Legal
Assistance to Institutionalized Persons Project by Byron C.
Lichstein and the Frank J. Remington Center, Madison, Counsel
for Wisconsin Association of Criminal Defense Lawyers by Robert
R. Henak, Jake L. Remington and Henak Law Office, S.C.,
Milwaukee, Wisconsin Psychiatric Association and the Wisconsin
Psychological Association by G. Michael Halfenger, Linda M.
Annoye, Kellen C. Kasper and Foley & Lardner, LLP, Milwaukee,
and Wisconsin Council on Children and Families by Sarah A. Huck,
Christopher
Milwaukee.
R.
Bub
and
Reinhart
2
Boerner
Van
Deuren,
S.C.,
2011 WI 33
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2008AP1139
(L.C. No.
1999CF523)
STATE OF WISCONSIN
:
IN SUPREME COURT
State of Wisconsin,
FILED
Plaintiff-Respondent,
MAY 20, 2011
v.
A. John Voelker
Acting Clerk of Supreme
Court
Omer Ninham,
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals.
¶1
ANNETTE KINGSLAND ZIEGLER, J.
Affirmed.
This is a review of a
published decision of the court of appeals, State v. Ninham,
2009 WI App 64, 316 Wis. 2d 776, 767 N.W.2d 326, which affirmed
an
order
of
the
Brown
County
Circuit
Court1
denying
the
defendant's post-conviction motion for sentencing relief under
Wis. Stat. § 974.06 (2007-08).2
¶2
A jury convicted the defendant Omer Ninham (Ninham) of
first-degree intentional homicide and physical abuse of a child
1
2
The Honorable John D. McKay presided.
All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.
No.
2008AP1139
for the death of 13-year-old Zong Vang (Vang).
Ninham was 14
years
circuit
old
at
the
time
of
the
offense.
The
court
sentenced Ninham to life imprisonment without the possibility of
parole.3
¶3
arguing
Ninham mounts a categorical constitutional challenge,
that
sentencing
a
14-year-old
to
life
imprisonment
without parole is cruel and unusual in violation of the Eighth
Amendment
of
the
United
States
Constitution
Section 6 of the Wisconsin Constitution.
and
Article
I,
In the alternative,
Ninham seeks sentence modification on the grounds that (1) his
sentence
is
unduly
harsh
and
research regarding adolescent
excessive;
brain
(2)
development
new
scientific
constitutes
a
new factor that frustrates the purpose of the sentence; and (3)
the circuit court relied on an improper factor when imposing the
sentence.
We disagree with Ninham on all four grounds, and
accordingly, we affirm the decision of the court of appeals.
¶4
First, we hold that sentencing a 14-year-old to life
imprisonment without the possibility of parole for committing
intentional homicide is not categorically unconstitutional.
We
arrive at our holding by applying the two-step approach employed
by the United States Supreme Court, most recently in Graham v.
3
On March 24, 2000, a jury found Ninham guilty of firstdegree intentional homicide and physical abuse of a child. The
crimes were committed on September 24, 1998, when Ninham was 14
years and 10 months old. Ninham was 16 years and 4 months old
when he was convicted of the crimes.
On June 29, 2000, when
Ninham was sentenced for his conviction, he was 16 years and 7
months old.
2
No.
Florida, 130 S. Ct. 2011 (2010).
2008AP1139
First, we conclude that Ninham
has failed to demonstrate that there is a national consensus
against sentencing a 14-year-old to life imprisonment without
parole
when
the
crime
is
intentional
homicide.
Second,
we
conclude in the exercise of our own independent judgment that
the punishment is not categorically unconstitutional.
¶5
In
regard
to
Ninham's
second
argument,
we
conclude
that his sentence of life imprisonment without the possibility
of
parole
is
not
unduly
harsh
and
excessive.
Under
the
circumstances of this case, Ninham's punishment is severe, but
it is not disproportionately so.
¶6
Third, we conclude that Ninham has not demonstrated by
clear and convincing evidence that the scientific research on
adolescent brain development to which he refers constitutes a
"new factor."
While the studies themselves may not have been in
existence at the time of Ninham's sentencing, the conclusions
they reached were widely reported.
¶7
Fourth, we conclude that Ninham has not demonstrated
by clear and convincing evidence that the circuit court actually
relied upon the religious beliefs of Vang's family when imposing
Ninham's sentence.
I. FACTUAL BACKGROUND
¶8
We
understanding
describe
that
this
the
facts
horrific
adequately be reduced into words.
of
and
this
case
senseless
with
crime
an
cannot
The terror experienced by the
victim and the hurt suffered by his family and friends is, in a
word, unimaginable.
3
No.
¶9
2008AP1139
On September 24, 1998, around dusk, 13-year-old Vang
was bicycling home along Webster Avenue in Green Bay, Wisconsin.
Vang's older brother had sent Vang to the grocery store for
tomatoes.
Vang was returning home on his bicycle, carrying a
plastic grocery bag filled with tomatoes, when he was approached
by
five
juveniles:
14-year-old
Crapeau (Crapeau), 13-year-old
Ninham,
Jeffrey
13-year-old
P.,
14-year-old
Richard
Amanda
G., and 14-year-old Christin J.
¶10
Ninham and the other four juveniles did not know or
recognize Vang.
Moreover, by all accounts, Vang never said or
did anything to provoke the five juveniles.
Rather, at the
time, Crapeau was upset with his mother and "wanted to fight or
see a fight."
with
this
Consequently, Crapeau said to Ninham, "Let's mess
kid,"
and
Ninham
responded,
"'I
got
your
back,'
meaning he would back [Crapeau] up in a fight."
¶11
Ninham and Crapeau began by verbally taunting Vang,
while the other three juveniles "egg[ed]" them on.
Crapeau's
assaults
escalated
into
physical
Ninham and
attacks.
Crapeau
bumped into Vang's shoulder and yanked his bicycle away from
him.
Crapeau also grabbed Vang's grocery bag out of his hands
and threw it in the direction of St. Vincent's Hospital, located
along the same street.
When Vang asked for his bicycle back,
Ninham punched Vang, knocking him down.
¶12
Vincent's
Vang got up and started running towards the nearby St.
Hospital
parking
ramp.
All
five
juveniles
chased
after Vang, eventually catching up to him on the top, or fifth
floor, of the parking ramp.
When they caught up to him, Crapeau
4
No.
punched Vang in the face.
2008AP1139
Vang repeatedly asked why they were
trying to hurt him and pleaded with them to leave him alone.
Instead, Ninham and Crapeau began pushing Vang back and forth
between them, in a game Jeffrey P. referred to as "chicken."
Ninham punched Vang in the chest as he pushed him back and
forth.
¶13
Ninham
then
pinned
parking ramp's concrete wall.
Ninham's
grasp,
Crapeau
Vang
by
his
wrists
against
the
While Vang squirmed to get out of
again
punched
Vang
in
the
face.
According to Crapeau, Vang was crying and screaming, "'Let me
go.'"
¶14
With Ninham still holding Vang by his wrists, Crapeau
grabbed Vang's ankles.
Ninham and Crapeau then began swinging
Vang back and forth out over the parking ramp's concrete wall——a
drop that measured nearly 45 feet to the ground.
Vang was
crying and screaming, begging Ninham and Crapeau not to drop
him.
While swinging Vang out over the wall, Crapeau let go of
Vang's feet and told Ninham to "[d]rop him."
Ninham let go of
Vang's wrists, and in Crapeau's words, Vang "just sailed out
over the wall."
¶15
Steven
At the same time, approximately 8:00 p.m., bystander
Heraly
was
in
his
vehicle
exiting
the
St.
Vincent's
Hospital parking ramp when he heard what sounded like a "bag of
wet cement hitting the pavement."
¶16
Vang landed on his back on the parking ramp's paved
exit lane, 12 feet from the base of the ramp.
5
No.
¶17
2008AP1139
Rescue personnel, dispatched at 8:03 p.m., detected a
faint pulse from Vang.
Vang was transported to St. Vincent's
Hospital where physicians were unable to revive him.
¶18
An autopsy revealed that Vang suffered a blunt impact
to his head and trunk and died from craniocerebral trauma due to
a fall from height.
¶19
Ninham and the other four juveniles never checked on
Vang's condition and instead ran from the scene.
Still, the
Green Bay Police Department was able to focus its investigation
on the five juveniles after some of them, in particular, Jeffrey
P. and Amanda G., indicated to relatives and police that they
knew who was responsible for Vang's death.
¶20
In his statement to police, Jeffrey P. described how
Ninham stood for several seconds looking over the edge of the
wall at Vang below.
"Don't say nothing.
Ninham then looked at Jeffrey P. and said,
Better not say shit."
II. PROCEDURAL POSTURE
¶21
On June 14, 1999, Ninham was charged with first-degree
intentional
homicide
in
violation
of
Wis.
Stat.
§ 940.01(1)
(1997-98) and physical abuse of a child contrary to Wis. Stat.
§ 948.03(2)(b) (1997-98), both as a party to a crime under Wis.
Stat.
§ 939.05
(1997-98).4
The
4
charge
of
first-degree
The State charged Crapeau with the same offenses, but he
was tried separately. Crapeau's case is not before us.
6
No.
intentional
homicide
On
Ninham
to
the
jurisdiction
of
See Wis. Stat. § 938.183(1)(am) (1997-98).5
criminal court.
¶22
subjected
2008AP1139
October
13,
1999,
prior
to
trial
on
the
aforementioned charges, the State charged Ninham with one count
of threat to a judge in violation of Wis. Stat. § 940.203(2)
(1999-00)
and
three
counts
of
intimidation
of
violation of Wis. Stat. § 940.43(3) (1999-00).
alleged
that
while
Ninham
was
detained
in
a
witness
in
The complaint
Brown
County's
juvenile detention facility, he threatened the life of Judge
Richard J. Dietz, the circuit court judge then presiding over
Ninham's case.
The complaint further alleged that upon learning
of the other juveniles' statements to police, Ninham threatened
to conduct a "drive by" of Jeffrey P.'s house, to "rape and
kill" Amanda G., and to arrange for the killing of Crapeau's
sister.
¶23
On
the
initial
charges
of
first-degree
intentional
homicide and physical abuse of a child, Ninham's case proceeded
to a four-day jury trial.
At trial, Ninham's defense was that
he was not there on the parking ramp on the evening of September
24, 1998, and even if he was, he did not intend to drop Vang
5
Wisconsin Stat. § 938.183(1)(am) (1997-98) provides, in
relevant part, that "courts of criminal jurisdiction have
exclusive original jurisdiction over . . . (am) [a] juvenile who
is alleged to have attempted or committed a violation of
s. 940.01 . . . on or after the juvenile's 10th birthday, but
before the juvenile's 15th birthday."
7
No.
from the edge.6
2008AP1139
On March 24, 2000, the jury convicted Ninham of
both first-degree intentional homicide and physical abuse of a
child.
6
Ninham provided varying statements to police regarding his
involvement with and knowledge of Vang's death.
Ninham first
claimed that he and Vang were friends and had been "hoodyhopping," or stealing hood ornaments, together on the parking
ramp when two people in a Cadillac chased them, thinking Ninham
and Vang stole their hood ornament.
Ninham told police that
those two people might have killed Vang. Ninham later retracted
that statement, admitting it was not true.
Ninham then told
police that he was in the area of St. Vincent's Hospital on
September 24, 1998, because he wanted to visit his brother's
baby. Ninham claimed, however, that he never made it inside the
hospital and instead went over to his sister's house, where he
drank heavily and was picked up for underage drinking and put
into "detox." Ultimately, Ninham denied being anywhere near the
St. Vincent's Hospital parking ramp on September 24, 1998.
In his closing argument, however, Ninham's counsel did not
deny that Ninham was on the parking ramp with Vang and actually
conceded the charge of physical abuse of a child:
[I]n terms of the abuse of a child, I'm not going to
argue that. I think obviously there was some pushing
back and forth, some punching going on. I don't know
specifically when.
There's been a little bit of
disagreement as to who hit who and so forth, but I
think that's a given.
I think he helped in that. I
think Omer participated in that.
But the question, and the tough question, is
whether or not Omer Ninham formed the intent at age 14
to, in fact——in fact, kill Zong Vang.
And it is our
position, and I can't state it more strongly, that he
did not, in fact, form that intent.
Whether Ricky
Crapeau did or not is not necessary, but he did not.
Nor did he know what Ricky Crapeau was going to do.
Bad judgment?
Bad juvenile?
Bad a lot of
things. But I don't think you can saddle Omer Ninham
at this point from the facts and evidence on this
record with intentional homicide.
8
No.
¶24
2008AP1139
The circuit court conducted a sentencing hearing on
June 29, 2000.
At the outset of the hearing, the State moved to
dismiss the single count of threat to a judge and three counts
of intimidation of a witness but asked that all four charges be
read in.7
¶25
The circuit court granted the State's motion.
The
pre-sentence
investigation
(PSI)
revealed
that
Ninham, by then 16 years old, continued to deny any involvement
in Vang's homicide.
Furthermore, the PSI explained that "[b]y
all accounts, [] Ninham emanates from an extremely dysfunctional
family structure," in which both of his parents and several of
his
siblings
violence.
engage
in
severe
The PSI described
substance
Ninham
as
abuse
a
and
"serious
domestic
substance
abuser" who snorted cocaine on a weekly basis and, since grade
school, drank alcohol every day, often alone, and usually to the
point of unconsciousness.
The PSI also revealed that Ninham, a
member of the Menominee Indian Tribe, claimed to have a newfound
interest in Native American spirituality.
¶26
In
addition,
the
PSI
described
the
devastated by the loss of their son and brother.
Vang
family
as
Vang's parents
indicated that they fled Laos and Thailand because they believed
that the United States would be a safer and more prosperous
7
See Wis. Stat. § 973.20(1g)(b) (1999-00):
"Read–in crime" means any crime that is uncharged
or that is dismissed as part of a plea agreement, that
the defendant agrees to be considered by the court at
the time of sentencing and that the court considers at
the time of sentencing the defendant for the crime for
which the defendant was convicted.
9
No.
country
to
raise
their
children;
however,
2008AP1139
according
to
the
Vangs, they fled evil only to discover it in a different place.
Vang's parents further expressed that they had lost faith in the
basic goodness of people and that their remaining children are
fearful of leaving the safety of their home.
¶27
Relevant
to
this
case,
at
the
sentencing
hearing,
Vang's brother, Seng Say Vang (Seng Say), gave a statement on
behalf of Vang's family and friends.
court
to
impose
imprisonment
ultimatum
1998."
on
Ninham
[Ninham]
the
maximum
parole,
without
as
Seng Say asked the circuit
"the
same
had
given
to
sentence
brutal
Zong
on
and
of
life
merciless
September
24th,
Seng Say then articulated to the circuit court a belief
held by his family's Hmong culture:
In 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.
Therefore, we ask the Court, who is the only one to
have the power to set free the spirit of our beloved
son, brother, and friend, Zong, to go in peace by
bringing Omer Ninham and his accomplices to justice.
¶28
Ninham also spoke at sentencing.
He told the circuit
court that he was sorry about Vang's death, but "[t]here wasn't
nothing I could do.
I wasn't there.
that until the day I die.
I'm going to keep saying
I was not there, and that's the
honest truth."
¶29
As to the count of first-degree intentional homicide,
the circuit court sentenced Ninham to life imprisonment without
the possibility of parole.
For the count of physical abuse of a
10
No.
child,
the
circuit
court
sentenced
Ninham
to
2008AP1139
five
years
circuit
court
imprisonment, consecutive to the life sentence.
¶30
In
imposing
Ninham's
sentence,
the
considered three primary factors: the gravity of the offense,
the
character
public.
offense
The
of
the
offender,
and
the
need
to
protect
the
First, the circuit court regarded the gravity of the
as
"beyond
circuit
description"
court
noted
and
that
indisputably
"horrific."
offense
had
the
has
an
indescribable impact on Vang's family and friends and on the
Green Bay community.
offender,
the
discussion
that
Second, concerning the character of the
circuit
Omer
court
"concede[d]
Ninham
is
a
for
child"
the
but
sake
of
nevertheless
described Ninham as "a frightening young man." The circuit court
acknowledged that Ninham derives from a dysfunctional family but
refused to let that excuse Ninham's conduct, explaining that
Ninham
is
"a
doing . . . ."
child
of
Third,
the
the
street
circuit
who
court
knew
what
reasoned
he
was
that
the
community needs to be protected from Ninham: "Society needs to
know, and especially this community needs to know, that you can
send your child to the grocery store and expect to see him
again."
¶31
In addition, the circuit court expressed amazement at
the fact that Ninham continued to deny even being there on the
evening of Vang's
alcohol
was
nearly
death.
a
The
daily
circuit
part
of
court
Ninham's
recognized
existence
that
but
declined to view that as an excuse for his behavior, finding
11
No.
2008AP1139
that Ninham chose not to take advantage of the opportunities he
had to turn away from negative influences.
¶32
Finally, the circuit court commented on what it deemed
"an interesting clash of cultures":
I find it incredibly interesting and somewhat
significant that not only am I being asked to impose a
sentence in this matter, which is my obligation and my
responsibility, but I'm being asked to release a soul.
I have
to comment
on
that
because
that's
an
interesting clash of cultures, and it's what we're all
about as a people.
We have to deal with those
cultures and those clashes as positively as we can.
And everything I know about you, Omer, and
everything I've gleaned about you from your——from the
information that's been provided to me, you dealt with
those things [o]ppositionally. You weren't willing to
let
those
cultures
and
those
different
ideas
intermingle. It had to be your way or no way at all.
That's too bad.
And it's that attitude that you're
going to have to change. . . .
I would hope that you[] turn to spirituality.
Native American spirituality gives you something to
build on in that regard. It had better because I can
tell you right now if your attitude and your
ruthlessness and the perception that you have of your
relationship to the community in which you are going
to find yourself continues as it is, you're in for a
real tough ride.
¶33
for
On November 16, 2000, Ninham filed an initial motion
post-conviction
relevant here.
relief,
the
substance
of
which
is
not
The circuit court denied Ninham's motion, and in
an unpublished decision, the court of appeals affirmed.
See
State v. Ninham, No. 2001AP716-CR, unpublished slip op. (Wis.
Ct. App. Dec. 4, 2001).
12
No.
¶34
On
March
1,
2005,
the
United
States
2008AP1139
Supreme
Court
decided Roper v. Simmons, 543 U.S. 551 (2005), concluding that
"[t]he Eighth and Fourteenth Amendments forbid imposition of the
death penalty on offenders who were under the age of 18 when
their crimes were committed."
¶35
Id. at 578.
Following the decision in Roper, on October 18, 2007,
Ninham filed a motion for sentencing relief under Wis. Stat.
§ 974.06, arguing that his sentence of life imprisonment without
parole
violates
United
States
Wisconsin
the
Eighth
and
Constitution
Constitution.
and
In
Fourteenth
Article
the
I,
Amendments
of
the
Section
of
the
alternative,
on
6
three
other
grounds, Ninham asked the circuit court to modify his sentence
to make him eligible for parole.
scientific
evidence
constitutes
a
new
relating
factor
to
that
Ninham argued that (1) new
adolescent
is
relevant
brain
to
development
the
sentence
imposed; (2) his sentence is unduly harsh and excessive; and (3)
when sentencing Ninham, the circuit court improperly considered
the religious beliefs of the victim's family.8
¶36
The circuit court denied Ninham's motion, declining to
modify his sentence.
With respect to the constitutionality of
sentencing a 14-year-old to life imprisonment without parole,
the circuit court stated that it was bound to uphold the law as
it currently
stands.
The
circuit
8
court
determined
that
the
Ninham's
2007
post-conviction
motion
also
included
arguments
that
his
initial
post-conviction
counsel
was
ineffective and that he is entitled to a new trial in the
interest of justice.
However, Ninham did not pursue those
arguments on appeal, and accordingly, we do not address them.
13
No.
holding
in
Roper,
which
concerns
the
2008AP1139
constitutionality
of
subjecting a juvenile to capital punishment, is inapposite to
Ninham's case.9
¶37
The
circuit
court
similarly
rejected
alternative arguments for sentence modification.
Ninham's
claimed
perceive
any
scientific
new
factor,
significant
evidence
cited
the
circuit
distinctions
by
Ninham
and
In regard to
court
between
the
Ninham's
failed
the
to
"new"
psychological
evidence on adolescents cited by the Supreme Court in Thompson
v. Oklahoma, 487 U.S. 815 (1988) (plurality opinion), 12 years
before Ninham was sentenced.
In addition, the circuit court
concluded that Ninham's sentence of life imprisonment without
9
Alternatively, the circuit court denied Ninham's motion on
the grounds that Ninham was procedurally barred from raising his
constitutional challenge for the first time in a subsequent
post-conviction
motion
under
Wis.
Stat.
§ 974.06.
See
§ 974.06(4); State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-82,
517 N.W.2d 157 (1994) ("[I]f the defendant's grounds for relief
have been finally adjudicated, waived or not raised in a prior
postconviction motion, they may not become the basis for a
sec. 974.06 motion.
The language of subsection (4) does not
exempt a constitutional issue from this limitation, unless the
court ascertains that a 'sufficient reason' exists for either
the failure to allege or to adequately raise the issue in the
original, supplemental or amended motion.").
The circuit court
noted that Ninham's § 974.06 motion neither addressed the
procedural bar under § 974.06(4) nor provided any reasons as to
why he failed to raise the constitutional challenge in his prior
post-conviction motion.
The court of appeals did not address whether Ninham's
constitutional challenge was procedurally barred under EscalonaNaranjo. Likewise, given the significance of the constitutional
question before us, we choose not to resolve the issue on
procedural grounds and instead proceed to the merits.
14
No.
2008AP1139
parole, while severe, was not unduly so, given the gravity of
the
crime
and
sentencing.
Ninham's
aggravating
conduct
while
awaiting
Finally, the circuit court determined that it did
not improperly rely on the spiritual beliefs of Vang's family
when sentencing Ninham; rather, according to the circuit court,
it merely noted and appropriately considered the particular loss
experienced by Vang's family and friends.
¶38
circuit
for
On March 3, 2009, the court of appeals affirmed the
court's
sentencing
order denying
relief.
Ninham's
Ninham,
316
post-conviction
Wis. 2d 776.
motion
Like
the
circuit court, the court of appeals concluded that the Supreme
Court's decision in Roper does not support Ninham's argument
that
sentencing
a
14-year-old
parole is unconstitutional.
appeals
rejected
"unusual"
under
argument
Eighth
statistics
Ninham
provided
homicide:
"Ninham's
crime
extreme brutality. . . .
life
Id., ¶4.
Ninham's
the
to
was
other
unusual
without
Moreover, the court of
that
his
sentence
was
finding
unhelpful
the
juveniles
Amendment,
of
imprisonment
arrested
for
senseless
and
for
its
The statistics Ninham provides do not
establish that life without parole is a rare sentence for a
juvenile whose crimes and character are comparable to his own."
Id., ¶5.
¶39
The
court
of
appeals
also
rejected
alternative arguments for sentence modification.
Ninham's
three
The court of
appeals concluded that "[t]he brutality of Ninham's crime and
the additional offenses he committed after his arrest defeat the
argument" that his sentence is unduly harsh and excessive.
15
Id.,
No.
¶8.
2008AP1139
In addition, the court of appeals denied that Ninham had
established
a
new
factor
to
support
sentence
modification,
concluding that at the time of sentencing, the circuit court was
aware of the differences between juvenile and adult offenders,
and a new physiological explanation for those differences is
irrelevant to the sentence imposed.
Id., ¶9.
Finally, the
court of appeals rejected Ninham's argument that the circuit
court
relied
on
an
improper
factor
when
sentencing
Ninham,
finding that the religious reference was merely a comment on
Id., ¶10.
Ninham's intolerance.
¶40
Ninham petitioned this court for review.
Ninham's
petition
for
review
pending
decision in Graham, 130 S. Ct. 2011.
the
We stayed
Supreme
Court's
In Graham, the Supreme
Court held that the Eighth Amendment "prohibits the imposition
of a life without parole sentence on a juvenile offender who did
not commit homicide."
Id. at 2034.
On September 13, 2010, we
granted Ninham's petition for review.
III. ANALYSIS
¶41
Ninham seeks sentence modification to allow for the
possibility of parole.
old
to
life
violative
imprisonment
of
Constitution
Ninham argues that sentencing a 14-year-
the
and
Constitution.
Eighth
Article
without
parole
Amendment
of
I,
Section
6
is
the
of
categorically
United
the
States
Wisconsin
Alternatively, Ninham argues that his sentence
should be modified because (1) his sentence is unduly harsh and
excessive;
(2)
new
scientific
16
research
regarding
adolescent
No.
2008AP1139
brain development constitutes a new factor that frustrates the
purpose of the sentence; and (3) the circuit court relied on an
improper factor when imposing the sentence.
Ninham's
categorical
challenge,
We first address
followed
by
his
three
alternative arguments.
A. Whether Sentencing a 14-Year-Old to Life Imprisonment
Without Parole for Committing Intentional Homicide
is Categorically Unconstitutional
¶42
The
juvenile
who
Wisconsin
commits
legislature
first-degree
has
determined
intentional
that
a
on
or
homicide
after the juvenile's tenth birthday is subject to the criminal
penalties
provided
for
that
§ 938.183(1)(am), (1m) (1997-98).
crime.
See
Wis.
Stat.
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
imprisonment, Wis. Stat. § 939.50(3)(a) (1997-98).
is
life
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
§ 973.014(1) (1997-98).
determination.
Wis.
Stat.
If the crime was committed on or after
August 31, 1995, but before December 31, 1999, the court may
17
No.
choose the option of no parole eligibility.
2008AP1139
§ 973.014(1)(c)
(1997-98).10
¶43
In this case, Ninham was adjudged guilty of committing
the crime of first-degree intentional homicide on September 24,
1998, when he was 14 years old.
the
above
statutory
scheme,
Applying those circumstances to
there
is
no
question
that
the
10
On December 31, 1999, 1997 Wis. Act 283, commonly
referred to as Truth-in-Sentencing I (TIS-I), went into effect.
State v. Crochiere, 2004 WI 78, ¶5, 273 Wis. 2d 57, 681
N.W.2d 524.
TIS-I abolished parole and established instead a
determinate sentencing structure.
Michael B. Brennan & Donald
V. Latorraca, Truth-in-Sentencing, Wis. Lawyer, May 2000,
available
at
http://www.wisbar.org/AM/Template.cfm?Section=Wisconsin_Lawyer&t
emplate=/CM/ContentDisplay.cfm&contentid=49911
[hereinafter
Brennan, TIS].
Pursuant to TIS-I, an offender who commits a
felony on or after December 31, 1999, is subject to a bifurcated
sentence: (1) an initial term of confinement in prison of at
least one year; and (2) a term of extended supervision in the
community, subject to conditions established by the court and
the Department of Corrections.
Wis. Stat. § 973.01(1), (2)(b)
The offender must serve the
(1997-98); see also Brennan, TIS.
entire initial term of confinement in prison. § 973.01(4), (6)
(1997-98); see also Brennan, TIS.
However, the bifurcated sentence structure under Wis. Stat.
§ 973.01 is not applicable to an offender who commits a felony
punishable by life imprisonment. Wis. Stat. § 973.01(3) (199798).
"[W]hen a court sentences a person to life imprisonment
for a crime committed on or after December 31, 1999, the court
shall
make
an
extended
supervision
eligibility
date
determination regarding the person," in which one of the options
available to the sentencing court is no eligibility for release
to extended supervision.
Wis. Stat. § 973.014(1g)(a)3. (199798).
In 2001, the legislature modified TIS-I with the enactment
of 2001 Wis. Act 109, or Truth-in-Sentencing II (TIS-II). TISII went into effect on February 1, 2003.
Crochiere, 273
Wis. 2d 57, ¶5.
18
No.
2008AP1139
circuit court was within its statutory authority to sentence
Ninham to life imprisonment without the possibility of parole.
Notwithstanding the statutory basis for his punishment, Ninham
argues
that
sentencing
a
14-year-old
to
life
imprisonment
without parole is cruel and unusual in violation of the Eighth
Amendment
Section
6
of
of
the
United
States
the
Wisconsin
Constitution
Constitution.
and
Stated
Article
I,
otherwise,
Ninham argues that the above statutory scheme is categorically
unconstitutional when the crime was committed by a 14-year-old.11
11
The dissent contends that this case does not involve an
attack on the constitutionality of the abovementioned statutory
scheme, which authorizes a sentence of life imprisonment without
parole for a 14-year-old convicted of first-degree intentional
homicide.
Dissent, ¶107.
The dissent's contention is
contradicted by the dissent itself, which later "conclude[s]
that the Wisconsin statute allowing the imposition of a deathin-prison sentence for a homicide committed when a juvenile is
14 years old violates the constitutional prohibition of cruel
and unusual punishment." Id., ¶133.
Citing this court's decision in Tammy W-G v. Jacob T., 2011
WI 30, __ Wis. 2d __, __ N.W.2d __, the dissent further argues
that we erroneously rely on the statutory scheme's presumption
of constitutionality.
See dissent, ¶111.
We agree with the
dissent that "an as-applied challenge contains no presumption in
regard to whether the statute was applied in a constitutionally
sufficient manner."
Tammy W-G, 2011 WI 30, ¶49.
However,
Ninham's constitutional argument does not present an as-applied
challenge.
Rather, Ninham's constitutional argument presents a
categorical challenge; specifically, Ninham argues that it is
unconstitutional
to
sentence
any
14-year-old
to
life
imprisonment without parole.
In contrast, in an as-applied
challenge, the court considers whether a statute can be
constitutionally applied to the facts of the particular
defendant's case, "not hypothetical facts in other situations."
See State v. Hamdan, 2003 WI 113, ¶43, 264 Wis. 2d 433, 665
N.W.2d 785.
19
No.
¶44
The
constitutionality
of
a
statutory
question of law that we review de novo.
7,
¶11,
259
Wis. 2d 13,
657
possible,
every
N.W.2d 66.
and
presumption
if
any
constitutionality,
we
665
a
Every
Id.
legislative
As such, we will
the
exists
doubt
about
a
statute's
doubt
in
favor
of
WI
112,
¶11,
264
resolve
State
v.
N.W.2d 328
is
sustain
must
constitutionality.'"
Wis. 2d 520,
to
scheme
State v. Radke, 2003 WI
enactment is presumed constitutional.
"'indulge[]
2008AP1139
that
Cole,
(quoting
2003
Aicher
law
v.
if
Wis.
at
all
Patients
Comp. Fund, 2000 WI 98, ¶18, 237 Wis. 2d 99, 613 N.W.2d 849).
Accordingly, the party challenging a statute's constitutionality
faces a heavy burden.
the
statute
State
v.
is
The challenger must demonstrate that
unconstitutional
McGuire,
N.W.2d 227.
Id.
2010
WI
beyond
91,
a
reasonable
¶25,
328
doubt.
Wis. 2d 289,
786
In this case, Ninham faces the heavy burden of
demonstrating
that
a
punishment
approved
by
the
Wisconsin
legislature, and thus presumably valid, is cruel and unusual in
violation
of
Constitution
Constitution.
("[I]n
the
and
Eighth
Article
Amendment
I,
of
Section
the
6
of
United
the
States
Wisconsin
See Gregg v. Georgia, 428 U.S. 153, 175 (1976)
assessing
a
punishment
selected
by
a
democratically
Contrary to the dissent's belief, see dissent, ¶112, a
presumption of constitutionality is deeply relevant in this
case. As the Supreme Court made clear in Gregg v. Georgia, 428
U.S. 153, 175 (1976), the court must "presume" the validity of
"a punishment selected by a democratically elected legislature,"
and "a heavy burden rests on those who would attack the judgment
of the representatives of the people."
20
No.
elected
legislature
against
presume its validity.
the
constitutional
2008AP1139
measure,
we
We may not require the legislature to
select the least severe penalty possible so long as the penalty
selected
is
not
crime involved.
cruelly
inhumane
or
disproportionate
to
the
And a heavy burden rests on those who would
attack the judgment of the representatives of the people.").
¶45
The
Eighth
Amendment
of
the
United
States
Constitution, applicable to the States through the Fourteenth
Amendment,12 guarantees individuals protection against excessive
sanctions: "Excessive bail shall not be required, nor excessive
fines
imposed,
nor
cruel
and
unusual
punishments
inflicted."
U.S. Const. amend. VIII; see also Roper, 543 U.S. at 560; Atkins
v. Virginia, 536 U.S. 304, 311 (2002); Thompson, 487 U.S. at
818-19
&
n.1.
Constitution
Article
contains
I,
Section
substantively
6
of
the
identical
Wisconsin
language:
"Excessive bail shall not be required, nor shall excessive fines
be
imposed,
nor
cruel
and
unusual
punishments
inflicted."
Generally, we interpret provisions of the Wisconsin Constitution
12
See Robinson v. California, 370 U.S. 660, 666-67 (1962);
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947)
(plurality opinion).
The Fourteenth Amendment provides, in
relevant part:
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV, § 1.
21
No.
2008AP1139
consistent with the Supreme Court's interpretation of parallel
provisions of the federal constitution.
State v. Arias, 2008 WI
84, ¶19, 311 Wis. 2d 358, 752 N.W.2d 748.
That is particularly
true where, as here, the text of the provision in our state
constitution is virtually identical to its federal counterpart,
and
no
intended
Jennings,
(citing
difference
2002
WI
State
v.
N.W.2d 427 (1999)).
44,
¶39,
Agnello,
can
be
252
discerned.
Wis. 2d 228,
226
Wis. 2d 164,
See
647
State
v.
N.W.2d 142
180-81,
593
Thus, our analysis in this case is largely
guided by the Supreme Court's Eighth Amendment jurisprudence and
in particular, the cases concerning juvenile offenders.
¶46
The Eighth Amendment's prohibition against "cruel and
unusual punishments" flows from the basic "'precept of justice
that punishment for crime should be graduated and proportioned
to [the] offense.'"
Atkins, 536 U.S. at 311 (quoting Weems v.
United States, 217 U.S. 349, 367 (1910)).
Supreme
Court,
the
drafters
of
According to the
the Eighth Amendment
did
not
attempt to define the contours of that proportionality, leaving
to future generations of judges the task of "'discern[ing] how
the framers' values, defined in the context of the world they
knew, apply to the world we know.'"
See Thompson, 487 U.S. at
821 & n.4 (quoting Ollman v. Evans, 750 F.2d 970, 995-96 (D.C.
Cir. 1984) (en banc) (Bork, J., concurring)).
As such, the
Supreme Court has determined that a punishment is "cruel and
unusual" in violation of the Eighth Amendment if it 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
22
No.
Bill
of
Rights
was
adopted"
in
1791;
or
(2)
2008AP1139
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)).
1. Whether sentencing a 14-year-old to life imprisonment
without parole was considered cruel and unusual at the
time the Bill of Rights was adopted
¶47
life
Ninham does not argue that sentencing a 14-year-old to
imprisonment
without
parole
was
considered
unusual at the time the Bill of Rights was adopted.
cruel
and
At common
law, children ages seven and older were subjected to the same
arrest, trial, and punishment as adult offenders, In re Gault,
387 U.S. 1, 16 (1967), which means that, theoretically, even the
death penalty could have been imposed for a crime committed by a
child as young as seven years old, see Stanford v. Kentucky, 492
U.S. 361, 368 (1989), overruled by Roper, 543 U.S. at 574; see
also Thompson, 487 U.S. at 828 n.27 (reporting that a 10-yearold
child
was
hanged
Arkansas in 1885).
he
or
she
no
in
Louisiana
in
1855
and
another
in
Notably, once a child turned 14 years old,
longer
benefitted
from
the
presumption
incapacity to commit a capital, or any other, felony.
of
Stanford,
492 U.S. at 368 (citing 4 William Blackstone, Commentaries *2324); Thompson, 487 U.S. at 864 (Scalia, J., dissenting).
¶48
Given the common law understanding that 14-year-olds
were not immune from capital punishment, it is clear that Ninham
cannot
establish
that
sentencing
a
14-year-old
to
life
imprisonment without parole was considered cruel and unusual at
23
No.
the time the Bill of Rights was adopted.
prevail
that
on
his
constitutional
sentencing
parole
for
"evolving
a
committing
standards
maturing society."
to
decency
he
life
intentional
of
Therefore, in order to
challenge,
14-year-old
must
demonstrate
imprisonment
homicide
that
2008AP1139
mark
is
the
without
contrary
progress
to
of
a
See Trop, 356 U.S. at 101.
2. Whether sentencing a 14-year-old to life imprisonment
without parole for committing intentional homicide is
inconsistent with evolving standards of decency
¶49
and
In order to determine whether a punishment is cruel
unusual,
the
Supreme
Court
"look[s]
beyond
historical
conceptions to the evolving standards of decency that mark the
Graham, 130 S. Ct. at 2021
progress of a maturing society."
(internal quotations omitted); see also Trop, 356 U.S. at 100
("The basic concept underlying the Eighth Amendment is nothing
less than the dignity of man.
While the State has the power to
punish,
to
the
exercised
Amendment
within
stands
the
limits
assure
of
that
this
civilized
power
be
standards.").
Accordingly, while the standard of "cruel and unusual" remains
the same, "'its applicability must change as the basic mores of
society
change.'"
Kennedy
(2008) (quoting Furman
v.
v.
Louisiana,
Georgia,
408
554
U.S.
U.S.
238,
407,
382
419
(1972)
(Burger, C.J., dissenting)).
¶50
In cases, like this one, which implicate categorical
Eighth Amendment rules, the Supreme Court engages in a two-step
analysis.
indicia
of
First,
the
society's
Supreme
standards,
Court
as
considers
expressed
in
"'objective
legislative
enactments and state practice' to determine whether there is a
24
No.
2008AP1139
national consensus against the sentencing practice at issue."
Graham, 130 S. Ct. at 2022 (quoting Roper, 543 U.S. at 572).
Second,
notwithstanding
the
objective
evidence
of
society's
standards, the Supreme Court "determine[s] in the exercise of
its own independent judgment whether the punishment in question
violates the Constitution."
precedent
and
its
own
Id.
In this second step, guided by
interpretation
of
the
text,
history,
meaning, and purpose of the Eighth Amendment, id., the Supreme
Court
"ask[s]
whether
there
is
reason
to
disagree
with
the
judgment reached by the citizenry and its legislators," Atkins,
536 U.S. at 313.
a. Whether there is a national consensus against sentencing
a 14-year-old to life imprisonment without parole for
committing intentional homicide
¶51
The
determination
of
whether
a
punishment
is
proportionate to the offense under evolving standards of decency
is best informed by "objective evidence of how our society views
a particular punishment today."
Penry v. Lynaugh, 492 U.S. 302,
331 (1989), overruled by Atkins, 536 U.S. 304; see also Atkins,
536
U.S.
at
312
(providing
that
the
evolving
standards
of
decency "should be informed by objective factors to the maximum
possible extent" (internal quotations omitted)).
Court
regards
legislatures
as
the
the
legislation
"'clearest
evidence of contemporary
enacted
and
values.'"
(quoting Penry, 492 U.S. at 331).
most
by
The Supreme
the
nation's
reliable
objective
Atkins,
536
U.S.
at
312
However, to better inform its
national consensus inquiry, the Supreme Court has looked beyond
25
No.
legislation to actual sentencing practices.
2008AP1139
See Graham, 130 S.
Ct. at 2023.
¶52
For example, in Roper, in concluding that there is a
national
consensus
against
imposing
the
death
penalty
upon
juvenile offenders, the Supreme Court noted that 30 of the 50
states
prohibit
the
punishment:
12
states
reject
the
death
penalty altogether, and 18 states——while otherwise maintaining
the death penalty——exclude juveniles from its reach.
543 U.S.
at 564.
In addition, the Supreme Court emphasized that "even in
the
States
20
without
a
formal
prohibition
juveniles, the practice is infrequent."
Id.
on
executing
In the ten years
preceding Roper, only three states had executed prisoners for
crimes committed as juveniles.
¶53
Id. at 565.
More recently, in Graham, the Supreme Court determined
that a national consensus has developed against the practice of
sentencing
a
juvenile
offender
to
life
imprisonment
parole for committing a nonhomicide crime.
without
130 S. Ct. at 2026.
The Supreme Court acknowledged that the majority of states, 37
and the District of Columbia, permit sentences of life without
parole for juvenile nonhomicide offenders.
2034-35.
measures
See id. at 2023,
Nevertheless, the Court maintained that "'[t]here are
of
consensus
other
than
legislation,'"
id.
at
2023
(quoting Kennedy, 554 U.S. at 433), and that an examination of
actual
sentencing
practices
in
those
consensus against the punishment, id.
37
states
reveals
a
Specifically, the Supreme
Court noted that just 11 of the 37 states in fact impose life
without parole
sentences
upon
juvenile
26
nonhomicide
offenders,
No.
2008AP1139
and nationwide, only 123 juvenile offenders are serving life
without parole sentences for nonhomicide crimes.
Id. at 2024.
Thus, according to the Graham Court, the fact that most states
permit the punishment does not justify a conclusion that most
states deem the punishment appropriate:
[T]he many States that allow life without parole for
juvenile nonhomicide offenders but do not impose the
punishment should not be treated as if they have
expressed the view that the sentence is appropriate.
The sentencing practice now under consideration is
exceedingly rare.
And "it is fair to say that a
national consensus has developed against it."
Id. at 2026 (quoting Atkins, 536 U.S. at 316).
¶54
Turning to the case now before us, we must determine
whether there is a national consensus against sentencing a 14year-old to life imprisonment without the possibility of parole
for committing intentional homicide.
Supreme
Court's
determinative.
decision
in
Given these facts, the
Graham
is
instructive
but
not
See id. at 2023 (clarifying that the national
consensus established in Graham "concerns only those juvenile
offenders
sentenced
nonhomicide offense").
establish
a
national
sentences
for
to
life
without
parole
solely
for
a
Importantly, the State does not have to
consensus
14-year-olds
approving
who
commit
life
without
intentional
parole
homicide;
rather, Ninham bears the heavy burden of establishing a national
consensus against the punishment.
373.
See Stanford, 492 U.S. at
We conclude that Ninham has failed to meet that burden.
¶55
Ninham
concedes
that
the
vast
majority
of
states
permit 14-year-olds to be sentenced to life without parole for
27
No.
homicide
crimes.
Regarding
juvenile
offenders
2008AP1139
generally,
44
states, the District of Columbia, and the federal government
permit life without parole sentences for homicide crimes.
Graham, 130 S. Ct. at 2034-36.
See
By our calculation, 36 of those
44 states permit life without parole sentences for offenders who
were 14 years old or younger at the time of the offense.13
See
Amnesty International & Human Rights Watch, The Rest of Their
Lives: Life without Parole for Child Offenders in the United
States,
18
(Oct.
11,
2005),
http://www.hrw.org/en/node/11578/section/4;14 Miller v. Alabama,
No. CR-06-0741, 2010 Ala. Crim. App. Lexis 77, at *15 (Ala.
Crim. App. Aug. 27, 2010).
Notably, seven states that generally
except
from
still
juvenile
permit
offenders
the
commit homicide.
sentence
to
life
be
without
imposed
parole
upon
sentences
juveniles
Graham, 130 S. Ct. at 2023, 2035.
who
Thus,
according to the "'clearest and most reliable objective evidence
of
contemporary
values,'"
Atkins,
536
U.S.
at
312
(quoting
13
In response to a question posed at oral argument,
Ninham's
counsel
advised
the
court
that
"about
30
states . . . have transfer statutes that expose children, some
as young as 6 years of age, to sentences like life imprisonment
without parole."
14
The statistics compiled by Amnesty International and
Human Rights Watch include Colorado and exclude Alabama in the
list of states that, as of 2005, permit life without parole
sentences for offenders who were 14 years old or younger at the
time of the offense.
However, according to our research,
Alabama should be included in that list, see Miller v. Alabama,
No. CR-06-0741, 2010 Ala. Crim. App. Lexis 77, at *11-12, 26
(Ala. Crim. App. Aug. 27, 2010), and Colorado should be
excluded, see Colo. Rev. Stat. § 17-22.5-104(IV) (2010).
28
No.
2008AP1139
Penry, 492 U.S. at 331), we simply cannot say that a national
consensus has developed against the practice of sentencing a 14year-old
to
life
imprisonment
intentional homicide.
without
parole
for
committing
See Roper, 543 U.S. at 609 (Scalia, J.,
dissenting) ("Words have no meaning if the views of less than
50% of [] States can constitute a national consensus.").
¶56
As Ninham points out, however, our analysis cannot end
there; pursuant to Graham, it is possible that "an examination
of
actual
sentence
sentencing
in
question
practices
is
parole
are
the
rarity
imposed
with
upon
jurisdictions
permitted
consensus against its use."
argues that
in
by
statute
a
Here, Ninham
sentences of life without
14-year-olds
consensus against such sentences.
the
discloses
130 S. Ct. at 2023.
which
where
demonstrates
a
national
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
against the sentence.
demonstrative
of
a
national
consensus
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
29
No.
Ninham.
to
2008AP1139
Ninham does not point to any data which would lead us
believe
demonstrate
otherwise.
that
there
In
short,
is
a
Ninham
national
has
failed
consensus
to
against
sentencing a 14-year-old to life imprisonment without parole for
committing intentional homicide.
¶58
Our conclusion that no such national consensus exists,
"while 'entitled to great weight,' is not itself determinative"
of the constitutional question before us.
Id. at 2026 (quoting
Kennedy, 554 U.S. at 434).15
Because the task of interpreting
the
the
id.,
Eighth
we
Amendment
must
now
remains
exercise
our
court's
own
responsibility,
independent
judgment
see
to
determine whether it is constitutional to impose a life without
parole sentence upon a 14-year-old for committing intentional
homicide.
b. The
court's
independent
judgment
regarding
the
constitutionality of sentencing a 14-year-old to life
imprisonment without parole for committing intentional
homicide
¶59
"The
judicial
exercise
of
independent
judgment
requires consideration of the culpability of the offenders at
issue in light of their crimes and characteristics, along with
the severity of the punishment in question."
15
Id.
In addition,
See also Kennedy v. Louisiana, 554 U.S. 407, 434 (2008)
("As we have said in other Eighth Amendment cases, objective
evidence of contemporary values as it relates to punishment for
child rape is entitled to great weight, but it does not end our
inquiry. 'The Constitution contemplates that in the end our own
judgment will be brought to bear on the question of the
acceptability of the death penalty under the Eighth Amendment.'"
(quoting Coker v. Georgia, 433 U.S. 584, 597 (1977) (plurality
opinion))).
30
No.
2008AP1139
the Supreme Court "considers whether the challenged sentencing
practice serves legitimate penological goals."
¶60
For
example,
in
its
1988
Id.
Thompson
decision,
in
concluding that the Eighth Amendment prohibits the execution of
a person who was under 16 years of age at the time of the
offense, a plurality of the Supreme Court determined, first,
that "less culpability should attach to a crime committed by a
juvenile than to a comparable crime committed by an adult," 487
U.S.
at
835,
penalty
to
and
second,
offenders
that
15
the
years
application
old
and
of
the
younger
death
does
not
measurably contribute to the goals that capital punishment is
intended to achieve, id. at 838.
The Supreme Court observed
that the death penalty is intended to serve two principal social
purposes: retribution and deterrence.
lesser
culpability
of
the
juvenile
Id. at 836.
offender,
"Given the
the
teenager's
capacity for growth, and society's fiduciary obligations to its
children,"
the
Supreme
Court
concluded
that
the
retribution
rationale is "simply inapplicable to the execution of a 15-yearold
offender."
Id.
at
836-37.
Moreover,
concerning
the
deterrent value of the death penalty, the Court determined that
"[t]he likelihood that the teenage offender has made the kind of
cost-benefit
possibility
nonexistent."
¶61
analysis
of
that
execution
is
attaches
so
remote
any
as
weight
to
be
to
the
virtually
Id. at 837.
Seventeen
years
later,
in
Roper,
the
Supreme
Court
extended its reasoning from Thompson to hold that the Eighth
Amendment prohibits the imposition of the death penalty upon all
31
No.
juvenile offenders under the age of 18.
71.
2008AP1139
Roper, 543 U.S. at 570-
In so holding, the Supreme Court articulated three general
differences between juvenile and adult offenders: (1) juveniles
possess
a
lack
responsibility,
actions
and
of
maturity
qualities
decisions;
and
which
(2)
an
underdeveloped
often
juveniles
result
are
more
in
sense
of
impulsive
vulnerable
or
susceptible to negative influences and peer pressure; and (3) a
juvenile's character is not as well formed as that of an adult.
Id. at 569-70.
Those three differences, the Court concluded,
"demonstrate that juvenile offenders cannot with reliability be
classified
among
the
worst
punishment is reserved.
offenders"
Id. at 569.
for
which
capital
The Court then echoed its
determination in Thompson that, given the lesser culpability of
juvenile offenders, the case for retribution and deterrence is
simply not as strong with a minor as with an adult.
72.
Id. at 571-
Of significance to this case, the Supreme Court observed:
"To the extent the juvenile death penalty might have residual
deterrent effect, it is worth noting that the punishment of life
imprisonment
without
the
possibility
of
parole
severe sanction, in particular for a young person."
is
itself
a
Id. at 572.
The Supreme Court then affirmed the Missouri Supreme Court's
decision to vacate the 17-year-old defendant's death sentence
and resentence him to life imprisonment without eligibility for
parole.
¶62
See id. at 560, 578-79.
Last year, in Graham, finding no reason to reconsider
its observations in Roper regarding juveniles, see Graham, 130
S.
Ct.
at
2026,
the
Supreme
32
Court
held
that
it
is
No.
2008AP1139
unconstitutional to impose a life without parole sentence upon a
juvenile offender who did not commit homicide, id. at 2034.
¶63
Regarding the culpability of juvenile offenders, the
Graham Court noted that "developments in psychology and brain
science
continue
to
show
juvenile and adult minds."
fundamental
Id. at 2026.
differences
between
Furthermore, the Court
explicitly recognized that "defendants who do not kill, intend
to kill, or foresee that life will be taken are categorically
less deserving of the most serious forms of punishment than are
murderers."
culpability
diminished
Id.
of
at
2027.
juvenile
culpability
Considering
offenders
of
in
defendants
(1)
general
who
the
diminished
and
commit
(2)
the
nonhomicide
crimes, the Supreme Court reasoned that "when compared to an
adult murderer, a juvenile offender who did not kill or intend
to kill has a twice diminished moral culpability."
¶64
Id.
Regarding the severity of the punishment, the Graham
Court remarked on the similarities between life without parole
sentences and death sentences, noting that the comparison is
especially
juveniles.
apparent
See
id.
when
at
the
sentences
2027-28
("Life
are
without
especially harsh punishment for a juvenile. . . .
imposed
parole
upon
is
an
A 16-year-old
and a 75-year-old each sentenced to life without parole receive
the same punishment in name only.").
¶65
Finally,
the
Graham
Court
concluded
that
the
four
principal penological justifications for life without parole——
retribution, deterrence, incapacitation, and rehabilitation——are
33
No.
inadequate
to
justify
nonhomicide offenders.
¶66
First,
legitimate
imposing
upon
sentence
juvenile
See id. at 2028-30.
while
reason
the
2008AP1139
to
acknowledging
punish,
the
that
Court
retribution
explained
that
is
a
"'the
heart of the retribution rationale is that a criminal sentence
must be directly related to
criminal offender.'"
the
personal
culpability
of
the
Id. at 2028 (quoting Tison v. Arizona, 481
U.S. 137, 149 (1987)).
Reiterating that juvenile offenders who
did not commit homicide have twice diminished moral culpability,
the Court concluded that "retribution does not justify imposing
the second most severe penalty on the less culpable juvenile
nonhomicide offender."
¶67
in
Roper
because
Id.
Second, the Graham Court reaffirmed its determination
that
of
juveniles
their
responsibility.
are
less
immaturity
Graham,
130
and
S.
susceptible
to
underdeveloped
Ct.
at
2028.
deterrence
sense
of
Moreover,
according to the Supreme Court, any limited deterrent effect
provided by life without parole is outweighed by the diminished
moral responsibility of juveniles who commit nonhomicide crimes.
Id. at 2029.
¶68
Third, the Court concluded that incapacitation, or the
imprisonment
of
dangerous
criminals
for
the
purpose
of
preventing recidivism, is inadequate to justify the punishment
of
life
homicide.
without
Id.
parole
for
juveniles
who
did
not
commit
The Court reasoned that the penological theory
behind incapacitation requires the sentencer to make a judgment
that the defendant is incorrigible, or incapable of reform, but
34
No.
"[t]he
characteristics
questionable."
that
a
Id.
juvenile
juvenile's
of
juveniles
make
2008AP1139
that
judgment
Furthermore, even if the state's judgment
is
incorrigible
misbehavior
in
is
prison,
later
the
confirmed
Court
the
that
ruled
by
the
sentence of life without parole would still be disproportionate
because the judgment was made at the outset, before the juvenile
has a meaningful opportunity to demonstrate maturity.
¶69
Fourth,
penological
and
goal
finally,
of
the
Id.
Court
rehabilitation
determined
that
is
inconsistent
the
with
a
sentence of life imprisonment without parole, especially when
imposed upon a juvenile nonhomicide offender who possesses the
capacity for change and diminished moral culpability.
Id. at
2029-30.
¶70
In summary, (1) the limited culpability of juvenile
nonhomicide offenders; (2) the severity of life without parole
sentences; and (3) the Court's determination that penological
theory is inadequate to justify the punishment all led to the
Graham Court's conclusion that it is cruel and unusual to impose
a life without parole sentence upon a juvenile offender who did
not commit homicide.
¶71
Id. at 2030.
Turning to the case now before this court, we must
determine,
in
the
exercise
of
our
own
independent
judgment,
whether it is categorically unconstitutional to impose a life
without
parole
intentional
sentence
homicide.
upon
a
Stated
14-year-old
otherwise,
we
for
must
committing
determine
whether the Eighth Amendment and Article I, Section 6 of the
Wisconsin
Constitution
prohibit
35
a
sentencing
court
from
ever
No.
2008AP1139
concluding that a 14-year-old who commits intentional homicide
is deserving of life imprisonment without the possibility of
parole.
We conclude that the answer is no.
¶72
2026,
Following the approach set forth in Graham, see id. at
we
commit
first
consider
intentional
imprisonment
the
culpability
homicide
without
and
parole.
of
the
We
14-year-olds
severity
then
of
consider
who
life
whether
sentencing a 14-year-old to life imprisonment without parole for
committing
intentional
homicide
serves
legitimate
penological
goals.
i. The culpability of 14-year-olds who commit intentional
homicide and the severity of life imprisonment without
parole
¶73
Ninham argues that
the
characteristics
of
juveniles
articulated in Roper and reiterated in Graham apply with even
greater force to juveniles age 14 and younger.
out,
the
Supreme
Court
has
held
As Ninham points
that
these
general
characteristics "demonstrate that juvenile offenders cannot with
reliability be classified among the worst offenders" for which
the most severe punishment is reserved.
Roper, 543 U.S. at 569;
see also Graham, 130 S. Ct. at 2026 ("Roper established that
because
juveniles
have
lessened
culpability
deserving of the most severe punishments.").
they
are
less
It follows, Ninham
argues, that 14-year-olds cannot reliably be classified among
the
worst
offenders
for
which
this
state
reserves
life
imprisonment without parole.
¶74
are
less
We do not disagree that, typically, juvenile offenders
culpable
than
adult
36
offenders
and
are
therefore
No.
2008AP1139
generally less deserving of the most severe punishments.
See
Graham, 130 S. Ct. at 2026 (citing Roper, 543 U.S. at 569-70).
Furthermore,
we
do
not
dispute
Ninham's
argument
that,
on
average, the younger the juvenile offender, the more his or her
culpability diminishes.
before
us
offender.
old
does
not
However,
concern
the
only
constitutional
the
typical
question
14-year-old
Rather, the question before us concerns all 14-year-
offenders,
homicide.
typical
or
atypical,
who
commit
intentional
Given these facts, we disagree with Ninham that Roper
and Graham lead to the conclusion that 14-year-olds who commit
intentional homicide are categorically less deserving of life
imprisonment without parole.
¶75
In
Roper,
recognizing
that
capital
punishment,
the
most severe penalty recognized by law, must be limited to a
narrow
class
crimes
and
of
offenders
"whose
who
extreme
commit
culpability
only
the
makes
most
them
serious
'the
most
deserving of execution,'" 543 U.S. at 568 (quoting Atkins, 536
U.S. at 319), the Supreme Court concluded that the diminished
culpability
of
juvenile
offenders
renders
less deserving of the death penalty.
not,
however,
culpability
less
of
deserving
stand
for
juvenile
of
the
the
second
imprisonment without parole.
categorically
Id. at 569-71.
proposition
offenders
them
that
renders
most
them
severe
the
Roper does
diminished
categorically
penalty,
life
Indeed, the Roper Court affirmed
the Missouri Supreme Court's decision to modify the 17-year-old
defendant's
death
sentence
eligibility for parole.
to
life
imprisonment
Id. at 560, 578-79.
37
without
No.
¶76
2008AP1139
In Graham, the Supreme Court concluded that the "twice
diminished moral culpability" of (1) juvenile offenders who (2)
do
not
commit
offenders
homicide
categorically
without parole.
renders
less
that
particular
deserving
130 S. Ct. at 2027.
of
life
class
of
imprisonment
Graham does not, however,
support the argument that juvenile offenders who commit homicide
are categorically less deserving of life imprisonment without
parole.
This is because juvenile offenders who commit homicide
lack the second layer of diminished moral culpability on which
the Graham Court based its conclusion.
Simply stated, "[t]here
is a line between homicide and other serious violent offenses
against the individual. . . .
Although an offense like robbery
or rape is a serious crime deserving serious punishment, those
crimes
differ
from
homicide
crimes
in
a
moral
sense."
Id.
(internal quotations and citations omitted).
¶77
It follows, therefore, that neither Roper nor Graham
foreclose a sentencing court from concluding that a juvenile who
commits
homicide
is
sufficiently
culpable
to
deserve
life
imprisonment without the possibility of parole.
¶78
Furthermore, contrary to Ninham's contention, we are
not convinced that juveniles 14 years old and younger are a
distinct group of juveniles such that a different constitutional
analysis
applies.
Ninham
directs
us
to
developments
in
psychology and brain science tending to show that 14-year-olds,
in comparison to older teenagers, are generally less capable of
38
No.
responsible
decision-making,16
generally
possess
a
2008AP1139
heightened
vulnerability to risk-taking and peer pressure,17 and generally
have a less mature sense of self and a decreased ability to
imagine their futures.18
and
scientific
Even assuming that such psychological
research
is
constitutionally
relevant,
the
generalizations concluded therein are insufficient to support a
determination that 14-year-olds who commit homicide are never
culpable
enough
to
deserve
life
imprisonment
without
parole.
Case in point, in other contexts, psychologists have promoted
scientific
evidence
conclusions
about
that
arrives
14-year-olds,
at
namely,
the
that
precise
they
opposite
understand
social rules and laws and possess the ability to take moral
responsibility for their actions.
See Roper, 543 U.S. at 617-18
(Scalia, J., dissenting) (explaining that in an amicus brief
filed in Hodgson v. Minnesota, 497 U.S. 417 (1990), the American
Psychological Association cited numerous psychological treatises
and
studies
juveniles
tending
are
mature
to
demonstrate
enough
to
that
decide
14
and
whether
to
15-year-old
obtain
an
16
See, e.g., B. Luna, The Maturation of Cognitive Control
and the Adolescent Brain, in From Attention to Goal-Directed
Behavior 249, 252-56 (F. Aboitiz & D. Cosmelli eds., 2009).
17
See, e.g., Laurence Steinberg, Adolescent Development and
Juvenile Justice, 5 Ann. Rev. Clinical Psychol. 459, 466 (2009);
Laurence Steinberg, Risk-Taking in Adolescence: New Perspectives
from Brain and Behavioral Science, 16 Current Directions in
Psychol. Sci. 55, 56-58 (2007).
18
See, e.g., Laurence Steinberg & Elizabeth Cauffman,
Maturity of Judgment in Adolescence, 20 L. & Human Behav. 249,
255 (1996).
39
No.
abortion without parental involvement).
2008AP1139
In summary, Ninham has
failed to demonstrate that 14-year-olds who commit intentional
homicide
cannot
reliably
be
classified
among
those
offenders
deserving of life imprisonment without parole.
ii. Whether sentencing a 14-year-old to life imprisonment
without parole for committing intentional homicide
serves legitimate penological goals
¶79
Relying in large part on the Supreme Court's analysis
in Graham,
Ninham maintains
that
none
recognized penological justifications
of
are
the
four
adequate
imposing life without parole upon a 14-year-old.
generally
to justify
However, as
previously described, much of the Graham Court's analysis on
penological theory was based upon the twice diminished moral
culpability of juvenile offenders who commit nonhomicide crimes.
See,
e.g.,
becomes
commit
130
even
S.
weaker
homicide.");
nonhomicide
Ct.
at
2028
("The
with
respect
to
id.
at
offenders'
2029
diminished
case
a
juvenile
("[I]n
moral
[for
retribution]
who
of
light
did
juvenile
responsibility,
not
any
limited deterrent effect provided by life without parole is not
enough to justify the sentence.").
As we just explained, we are
not convinced that 14-year-olds who commit homicide have the
same diminished moral culpability as those juvenile offenders
who
do
not
commit
homicide.
Accordingly,
we
conclude
that
sentencing a 14-year-old to life imprisonment without parole for
committing
intentional
penological
incapacitation.
goals
of
homicide
serves
retribution,
the
legitimate
deterrence,
and
See Harmelin v. Michigan, 501 U.S. 957, 999
40
No.
2008AP1139
(1991) (Kennedy, J., concurring) ("[T]he Eighth Amendment does
not mandate adoption of any one penological theory.").
¶80
First,
retribution,
as
"'an
expression
of
society's
moral outrage at particularly offensive conduct,'" Thompson, 487
U.S. at 836 (quoting Gregg, 428 U.S. at 183), is a legitimate
penological
without
justification
parole
homicide.
criminal
upon
a
for
imposing
14-year-old
a
who
sentence
commits
of
life
intentional
"'The heart of the retribution rationale is that a
sentence
must
be
directly
related
the
personal
Graham, 130 S. Ct. at
culpability of the criminal offender.'"
2028 (quoting Tison, 481 U.S. at 149).
to
While juvenile offenders
are generally less culpable than adult offenders and therefore
generally less deserving of the most severe punishments, id. at
2026,
the
imposing
case
a life
for
retribution
without parole
increases
sentence
with
upon
a
respect
to
juvenile who
intentionally takes the life of another, see id. at 2028.
¶81
Second, as the Supreme Court recognized in Roper, "the
punishment
of
life
imprisonment
without
the
possibility
of
parole is itself a severe sanction, in particular for a young
person" and thus serves as an adequate deterrent to potential
juvenile homicide offenders.
¶82
Third, and
adequately
parole
543 U.S. at 572.
finally,
we
justifies
imposing
the
upon
14-year-old
homicide.
We
sentencing
court
recognize
to
make
conclude
punishment
juveniles
that
a
that
who
of
commit
incapacitation
judgment
that
incapacitation
the
life
without
intentional
requires
defendant
the
is
incorrigible, and the nature of juveniles generally make that
41
No.
judgment a difficult one.
Nevertheless,
we
cannot
2008AP1139
See Graham, 130 S. Ct. at 2029.
preclude
sentencing
courts
from
ever
making a judgment that a 14-year-old who commits intentional
homicide is forever dangerous.
Court,
while
unfortunate
capable
yet
of
juveniles
transient
committing
corruption."
juveniles,
many
As recognized by the Supreme
commit
immaturity,"
a
crime
that
Roper, 543 U.S. at 573.
a
sentence
crimes
of
life
the
that
rare
"reflects
"reflect[]
juvenile
is
irreparable
In the case of those rare
imprisonment
without
parole
measurably contributes to the legitimate goal of incapacitation.
¶83
In summary, in the exercise of our own independent
judgment,
we
conclude
that
sentencing
a
14-year-old
to
life
imprisonment without the possibility of parole for committing
intentional homicide is not categorically unconstitutional.
We
therefore confirm what objective evidence already informs us:
contemporary society views the punishment as proportionate to
the offense.
B. Whether Ninham's Sentence is Unduly Harsh and Excessive
¶84
Ninham argues that even if we conclude that it is not
categorically unconstitutional to sentence a 14-year-old to life
imprisonment without parole for committing intentional homicide,
he is still entitled to sentence modification on the grounds
that his particular punishment is cruel and unusual in violation
of
the
Eighth
Amendment
Wisconsin Constitution.
and
Article
I,
Section
6
of
the
Specifically, Ninham argues that his
sentence of life imprisonment without parole is unduly harsh and
excessive because his culpability was diminished, both by the
42
No.
2008AP1139
fact that he was just 14 years old at the time of the offense
and
by
the
fact
that
extreme
abuse
and
alcohol
dependence
resulted in his underdevelopment.
¶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.
321-23,
153
N.W.2d 18
See State v. Pratt, 36 Wis. 2d 312,
(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,
289 Wis. 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
Ninham's
Under these circumstances, we simply cannot say that
sentence
of
life
imprisonment
without
parole
is
so
disproportionate to the crime he committed "'as to shock public
sentiment
and
violate
the
judgment
concerning what is right and proper.'"
Wis. 2d at 322).
of
reasonable
people
Id. (quoting Pratt, 36
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.
43
The
No.
2008AP1139
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.
14
years
old
at
the
indisputably
difficult
automatically
remove
proportionate.
authority
parole,
of
the
childhood
his
offense
does
punishment
not,
out
and
as
of
suffered
he
the
an
contends,
realm
of
The circuit court was well within its statutory
to
and
time
That Ninham was just
sentence
we
will
Ninham
not
to
life
interfere
imprisonment
with
its
without
exercise
of
discretion.
C. Whether a New Factor Warrants Sentence Modification
¶87
Ninham also argues that he is entitled to sentence
modification
on
the
grounds
that
new
scientific
research
regarding adolescent brain development constitutes a new factor
that
frustrates
the
purpose
of
his
sentence.
Specifically,
Ninham directs us to magnetic resonance imaging (MRI) studies,
apparently unavailable at the time Ninham was sentenced, which
tend to show that the brain is not fully developed early in
childhood and that making impulsive decisions and engaging in
risky
behavior
is
an
inevitable
part
of
adolescence.19
The
studies further explain, according to Ninham, that as the brain
matures,
adolescents
almost
impulsive and risky behavior.
universally
grow
out
of
their
In addition, Ninham informs us
19
See, e.g., L.P. Spear, The Adolescent Brain and AgeRelated Behavioral Manifestations, 24 Neurosci. & Biobehav. Rev.
417, 421 (2000); N. Dickon Reppucci, Adolescent Development and
Juvenile Justice, 27 Am. J. Community Psychol. 307, 319 (1999).
44
No.
2008AP1139
that a growing body of research suggests that alcohol causes
more
damage
to
developing
teenage
brains
than
previously
thought.20
According to Ninham, this new scientific research on
adolescent
brain
development
undermines
the
circuit
court's
findings regarding Ninham's culpability and recidivism.
¶88
In
order
to
prevent
the
continuation
of
unjust
sentences, the circuit court has inherent authority to modify a
sentence.
State v. Trujillo, 2005 WI 45, ¶10, 279 Wis. 2d 712,
694 N.W.2d 933.
"However, a circuit court's inherent authority
to modify a sentence is a discretionary power that is exercised
State v. Crochiere, 2004 WI 78,
within defined parameters."
¶12,
273
Wis. 2d 57,
681
N.W.2d 524.
Included
within
those
defined parameters is the circuit court's inherent authority to
modify a sentence based upon the showing of a new factor.
Id.
In Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975),
this court defined what constitutes a "new factor":
[T]he phrase "new factor" refers to a fact or set of
facts highly relevant to the imposition of sentence,
but not known to the trial judge at the time of
original sentencing, either because it was not then in
existence or because, even though it was then in
existence, it was unknowingly overlooked by all of the
parties.
¶89
The
defendant
bears
the
burden
of
demonstrating
clear and convincing evidence that a new factor exists.
v.
Franklin,
However,
the
148
Wis. 2d 1,
existence
of
a
9-10,
new
20
434
factor
N.W.2d 609
does
not
by
State
(1989).
necessarily
See, e.g., Katy Butler, The Grim Neurology of Teenage
Drinking, N.Y. Times, July 4, 2006, at F1.
45
No.
entitle the defendant to sentence modification.
Wis. 2d 712,
¶11.
Rather,
whether
sentence
2008AP1139
Trujillo, 279
modification
is
warranted is left to the sound discretion of the circuit court.
Id.
In determining whether to exercise its discretion to modify
a sentence on the basis of a new factor, the circuit court may,
but
is
not
required
to,
consider
whether
the
frustrates the purpose of the original sentence.
new
factor
See State v.
Harbor, 2011 WI 28, ¶¶48-52, __ Wis. 2d __, __ N.W.2d __.
¶90
Whether a new factor exists is a question of law that
Trujillo, 279 Wis. 2d 712,
this court reviews independently.
¶11.
However, even if we determine that a new factor exists, we
will not overrule a circuit court's decision regarding sentence
modification unless the circuit court erroneously exercised its
discretion.
¶91
Id.
In
this
case,
we
conclude
that
Ninham
has
not
demonstrated by clear and convincing evidence that a new factor
exists.
Assuming that the MRI studies themselves were not in
existence at the time Ninham was sentenced, we agree with the
circuit court that the studies still do not constitute "a fact
or set of facts highly relevant to the imposition of sentence,
but not known to the trial judge at the time of the original
sentencing," Rosado, 70 Wis. 2d at 288, because the conclusions
reached
by
the
studies
were
already
in
existence
and
well
the
same
throughout
this
Supreme
Court
reported by the time Ninham was sentenced in 2000.
¶92
Supreme
opinion.
This
Court
In
point
is
best
jurisprudence
Thompson,
a
made
we
1988
46
have
by
considering
followed
decision,
the
No.
2008AP1139
referred to a 1978 report by a task force on sentencing young
offenders to make clear that "the Court ha[d] already endorsed"
the proposition that juvenile offenders under the age of 16 are
less culpable than adult offenders:
The basis for this conclusion is too obvious to
require extended explanation.
Inexperience, less
education, and less intelligence make the teenager
less able to evaluate the consequences of his or her
conduct while at the same time he or she is much more
apt to be motivated by mere emotion or peer pressure
than is an adult.
487 U.S. at 834-35.
In Roper, the Supreme Court adopted that
reasoning of the Thompson Court and applied it to all juvenile
offenders under the age of 18.
See Roper, 543 U.S. at 570-71.
Finally, and of most relevance to the "new factor" issue before
us, in Graham, a 2010 decision, the Supreme Court observed that
"[n]o
recent
observations
data
in
provide
reason
Roper
to
about
reconsider
the
the
Court's
nature
of
juveniles. . . . [D]evelopments in psychology and brain science
continue to show fundamental differences between juvenile and
adult minds."
130 S. Ct. at 2026 (emphasis added).
Thus, as
plainly recognized by the Graham Court, the "new" scientific
research regarding adolescent brain development to which Ninham
refers only confirms the conclusions about juvenile offenders
that the Supreme Court had "already endorsed" as of 1988.
See
Thompson, 487 U.S. at 835.
¶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
47
No.
and
convincing
evidence
that
the
conclusions
2008AP1139
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
Ninham
which
refers
do
not
concern
incarcerated juveniles in particular.21
failed
to
prove
by
scientific
research
constitutes
a
new
clear
the
development
In short, Ninham has
and
convincing
evidence
regarding
adolescent
brain
factor
for
purposes
of
of
that
this
development
modifying
Ninham's
particular sentence.
D. Whether the Circuit Court Relied on an Improper Factor
When Imposing Ninham's Sentence
21
See, e.g., Barry Holman & Jason Ziedenberg, The Dangers
of Detention: The Impact of Incarcerating Youth in Detention and
Other
Secure
Facilities,
2-3
(Nov.
28,
2006),
http://www.justicepolicy.org/research/1978 ("[T]here is credible
and significant research that suggests that the experience of
detention may make it more likely that youth will continue to
engage in delinquent behavior, and that the detention experience
may increase the odds that youth will recidivate, further
compromising public safety.").
48
No.
¶94
Finally,
Ninham
seeks
sentence
2008AP1139
modification
on
the
grounds that the circuit court relied on an improper factor when
imposing his sentence.
circuit
court
Specifically, Ninham argues that the
improperly
based
religious views of Vang's family.
Ninham's
sentence
on
the
Ninham directs us to the
point in the sentencing transcript in which the circuit court
noted,
"I
find
it
incredibly
interesting
and
somewhat
significant that not only am I being asked to impose a sentence
in this matter, which is my obligation and my responsibility,
but I'm being asked to release a soul."
¶95
Our review of a sentencing determination is limited to
whether the circuit court erroneously exercised its discretion.
State
v.
Harris,
N.W.2d 409.
A
2010
circuit
WI
79,
court
¶30,
326
Wis. 2d 685,
erroneously
exercises
786
its
discretion when it "imposes its sentence based on or in actual
reliance upon clearly irrelevant or improper factors."
defendant
bears
the
burden
of
demonstrating
by
Id.
The
clear
and
convincing evidence that the circuit court actually relied upon
an improper factor when imposing the defendant's sentence.
Id.,
¶34.
¶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
49
No.
2008AP1139
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:
I'm being asked to release a soul. I have to comment
on that because that's an interesting clash of
cultures, and it's what we're all about as a
people. . . .
And everything I know about you, Omer, and
everything I've gleaned about you from your——from the
information that's been provided to me, you dealt with
those things [o]ppositionally. You weren't willing to
let
those
cultures
and
those
different
ideas
intermingle. It had to be your way or no way at all.
The character of the offender is among the primary factors that
a circuit court must consider when imposing a sentence.
163 Wis. 2d at 62.
Paske,
In addition, to the extent that the circuit
court commented on the unique and particularized impact felt by
Seng
Say
and
consideration:
crime
affected
considerations
his
"'A
family,
statement
their
that
that
from
lives
a
is
judge
too
the
an
victims
relevant
must
50
was
take
appropriate
about
to
into
one
how
the
of
the
account
at
No.
sentencing——the gravity of the crime.'"
2008AP1139
State v. Gallion, 2004
WI 42, ¶65, 270 Wis. 2d 535, 678 N.W.2d 197 (quoting State v.
Voss, 205 Wis. 2d 586, 595, 556 N.W.2d 433 (Ct. App. 1996)).
IV. CONCLUSION
¶97
First, we hold that sentencing a 14-year-old to life
imprisonment without the possibility of parole for committing
intentional homicide is not categorically unconstitutional.
We
arrive at our holding by applying the two-step approach employed
by the United States Supreme Court, most recently in Graham, 130
S. Ct. 2011.
demonstrate
sentencing
First, we conclude that Ninham has failed to
that
is
a
14-year-old
a
there
national
to
life
consensus
imprisonment
when the crime is intentional homicide.
against
without
parole
Second, we conclude in
the exercise of our own independent judgment that the punishment
is not categorically unconstitutional.
¶98
In
regard
to
Ninham's
second
argument,
we
conclude
that his sentence of life imprisonment without the possibility
of
parole
is
not
unduly
harsh
and
excessive.
Under
the
circumstances of this case, Ninham's punishment is severe, but
it is not disproportionately so.
¶99
Third, we conclude that Ninham has not demonstrated by
clear and convincing evidence that the scientific research on
adolescent brain development to which he refers constitutes a
"new factor."
While the studies themselves may not have been in
existence at the time of Ninham's sentencing, the conclusions
they reached were widely reported.
51
No.
2008AP1139
¶100 Fourth, we conclude that Ninham has not demonstrated
by clear and convincing evidence that the circuit court actually
relied upon the religious beliefs of Vang's family when imposing
Ninham's sentence.
By
the
Court.—The
decision
affirmed.
52
of
the
court
of
appeals
is
No.
¶101 SHIRLEY
S.
ABRAHAMSON,
C.J.
2008AP1139.ssa
(dissenting).
The
Eighth Amendment cruel and unusual punishment issue before this
court is easy to state and difficult to decide.
The question
before the court is the constitutionality of imposing a deathin-prison sentence on a 14-year-old juvenile boy who committed
an
intentional,
brutal,
senseless,
grotesque,
reprehensible
murder of a 13-year-old innocent stranger.
¶102 In Wisconsin, both the adult offender and the juvenile
offender (10 years old or older) who have committed first degree
intentional homicide are treated the same: the maximum penalty
is a death-in-prison sentence, that is, life in prison without
the possibility of parole.
this maximum sentence.
The circuit court need not impose
It did in the present case.
¶103 A death-in-prison sentence is the most severe penalty
authorized in Wisconsin.
This penalty means that "whatever the
future might hold in store for the mind and spirit of [the young
juvenile], he will remain in prison for the rest of his days."1
A death-in-prison sentence is an especially severe punishment,
made
harsher
for
a
young
juvenile
14
years
old
or
younger
because of the increased time and proportion of life that the
juvenile will serve in prison.2
¶104 I conclude, as has the United States Supreme Court,
that
the
differences
between
juveniles
and
adults
mean
that
juvenile offenders "cannot with reliability be classified among
1
Naovarath v. State, 779 P.2d 944, 944 (Nev. 1989).
2
Graham v. Florida, 130 S. Ct. 2011, 2027-28 (2010).
1
No.
the
worst
(2005);
offenders."
see
(2010).3
also
Graham
Retribution
retribution
Roper
"must
v.
is
be
a
v.
Simmons,
Florida,
130
legitimate
directly
S.
U.S.
Ct.
to
551,
2011,
penological
related
culpability of the criminal offender."
2028.
543
2008AP1139.ssa
2026
goal,
the
569
but
personal
Graham, 130 S. Ct. at
"[T]he case for retribution is not as strong with a minor
as with an adult."
Graham, 130 S. Ct. at 2028 (quoting Roper,
543 U.S. at 569-70).
Accordingly, I conclude, as the nonparty
brief of the Wisconsin Council on Children and Families urges,
that the United States Supreme Court's analysis in Roper and
Graham supports the holding that a juvenile cannot be sentenced
to life without parole for a homicide committed when 14 years
old or younger.
¶105 I discuss first the presumption of constitutionality
and second the constitutional issue presented.
I
¶106 The majority opinion relies heavily on the presumption
of
constitutionality.
I
conclude
that
no
presumption
of
constitutionality applies in the present case.
¶107 This case does not involve, as the majority opinion
claims,
an
attack
§ 938.183(1)(am),
on
which
the
constitutionality
provides
3
that
of
courts
Wis.
of
Stat.
criminal
The three general differences are: (1) juveniles have a
lack of maturity and an underdeveloped sense of responsibility
resulting in impetuous and ill-considered actions and decisions;
(2) juveniles are more susceptible to negative influences and
outside pressures; and (3) the character of a juvenile is not as
well formed as that of an adult.
Roper v. Simmons, 543 U.S.
551, 569-70 (2005).
2
No.
2008AP1139.ssa
jurisdiction have original jurisdiction over "a juvenile who is
alleged
to
have
attempted
or
committed
a
violation
of
940.01 . . . on or after the juvenile's 10th birthday."
s.
Nor
does this case involve an attack on the constitutionality of the
first-degree
homicide
statute,
Wis.
Stat.
§ 940.01,
or
the
to
the
penalties that apply to that statute.
¶108 Instead,
application
of
this
those
case
statutes
involves
to
a
a
challenge
category
of
individuals,
namely a challenge to a death-in-prison sentence for a juvenile
who
committed
an
intentional
homicide
when
14
years
old
or
younger.
¶109 A "categorical challenge" is, in my opinion, an "as
applied"
challenge.
Stating
the
challenge
as
a
categorical
challenge is just a different way of stating an "as applied"
challenge.
In other words, the present case can be denominated
a "categorical challenge" or can be denominated an "as applied"
challenge.
They are the same in the present case.
The former
challenge is stated as a challenge to the application of the
statutes to all 14-year-olds who commit intentional homicide.
The latter challenge is stated as a challenge to the application
of the statutes to Ninham solely because he was 14 years old
when he committed intentional homicide.
saying that the
statutes
cannot
be
Of course, a decision
applied
to
Ninham
solely
because he is 14 years old would apply to all other 14-year-olds
who commit intentional homicide.
¶110 According to Tammy W.-G. v. Jacob T., 2011 WI 30, ¶49,
___
Wis. 2d ___,
___
N.W.2d ___
3
(in
which
I
join
Justice
No.
Bradley's
exists]
dissent),
in
regard
"no
to
presumption
whether
the
[of
statute
2008AP1139.ssa
constitutionality
was
applied
constitutionally sufficient manner." (emphasis added).
in
a
Rather,
the constitutional analysis to be applied, according to Tammy
W.-G., to "an as-applied challenge" "differs from case to case,
depending on the constitutional right at issue."
¶111 The majority's reliance (¶44) on a strong presumption
of constitutionality of the statute is therefore contrary to
Tammy W.-G. 2011 WI 30, ¶49, and Roper 543 U.S. at 563.
On the
basis of Tammy W.-G., the majority should be holding that no
presumption of constitutionality applies in the present case.
¶112 Moreover,
a
presumption
of
constitutionality
is
not
relevant in the present case, in which the constitutional right
at issue is the Eighth Amendment prohibition against cruel and
unusual punishment.
under
the
Eighth
independent
In cases involving categorical challenges
Amendment,
judgment,
a
court
considering
exercises
its
own
the
culpability
of
the
offender and the nature of the offense, the relationship of the
challenged
sentencing
practice
to
penological
society's evolving standards of decency.
goals,
and
Roper, 543 U.S. at
563-64; Graham v. Florida, ___ U.S. ___, 130 S. Ct. 2011, 2022
(2010).
when
the
How can there be a presumption of constitutionality
court
is
not
only
exercising
its
own
independent
judgment but doing so on the basis of, inter alia, evolving
standards of decency?
¶113 Thus, in contrast to the majority, I conclude that no
presumption of constitutionality applies in the present case.
4
No.
2008AP1139.ssa
¶114 I turn now to the constitutional issue presented.
II
¶115 The Eighth Amendment, applicable to the States through
the Fourteenth Amendment, provides:
"Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted."
¶116 The Eighth Amendment's prohibition against cruel and
unusual punishment is amorphous.
is
not
defined
or
delineated
Cruel and unusual punishment
in
the
federal
Constitution.
Rather, the United States Supreme Court has declared that what
constitutes cruel and unusual punishment changes with society's
views:
The
unusual
punishment
standards
society."4
Eighth
of
Amendment's
"draw[s]
decency
that
protection
its
mark
meaning
the
against
from
progress
cruel
the
of
and
evolving
a
maturing
Thus the Eighth Amendment's prohibition against cruel
and unusual punishment is not a constant.
The prohibition is
constantly evolving, reflecting the changes in society.
¶117 Over the last decade, the United States Supreme Court
has been developing the "evolving standards of decency" central
to the analysis of the Eighth Amendment for juveniles and those
whose intellectual capacity is not that of an adult.
¶118 The
prohibited
a
United
States
death
penalty
Supreme
sentence
Court
for
intellectual functioning is in a low range.
has
categorically
individuals
whose
Atkins v. Virginia,
536 U.S. 304 (2002).
4
Trop
opinion).
v.
Dulles,
356
U.S.
5
86,
101
(1958)
(plurality
No.
¶119 The
United
States
Supreme
Court
has
2008AP1139.ssa
categorically
prohibited a death penalty sentence for juveniles who committed
their crimes before the age of 18.
Roper v. Simmons, 543 U.S.
551 (2005).5
¶120 The
United
States
Supreme
Court
has
categorically
prohibited a death-in-prison sentence for juveniles (under 18
years) who committed non-homicide crimes.
Graham v. Florida,
130 S. Ct. 2011 (2010).
¶121 A next logical question is whether a death-in-prison
sentence for a juvenile who committed an intentional homicide
crime is categorically prohibited.6
The United State Supreme
Court has yet to take up the following issue: whether a deathin-prison sentence for a juvenile 14 years old or younger who
committed an intentional homicide is categorically prohibited.
¶122 The United States Supreme Court has recognized that
juvenile offenders are less culpable than adult offenders and
generally the younger the juvenile offender, the more his or her
culpability diminishes.7
See also majority op., ¶74.
¶123 The task of interpreting the Eighth Amendment remains
the
court's
judgment
task.
requires
"The
judicial
consideration
of
exercise
the
of
independent
culpability
of
the
5
See also Thompson v. Oklahoma, 487 U.S. 815 (1988)
(categorically prohibiting the death penalty for a crime
committed by a juvenile while under the age of 16).
6
See Adam Liptak & Lisa Faye Petak, Juvenile Killers in
Jail for Life Seek a Reprieve, N.Y. Times, Apr. 21, 2011, at
A13.
7
Graham, 130 S. Ct. at 2026; Roper, 543 U.S. at 569.
6
No.
2008AP1139.ssa
offenders at issue in light of their crimes and characteristics,
along with the severity of the punishment in question.
inquiry
the
Court
also
considers
whether
the
In this
challenged
sentencing practice serves legitimate penological goals."8
¶124 Recognizing that juveniles have less culpability than
adults and so are less deserving of the most severe punishments,
the United States Supreme Court has declared unconstitutional
under
the
Eighth
juveniles.9
"The
Amendment
juvenile
severe
should
penalties
not
be
imposed
deprived
of
on
the
opportunity to achieve maturity of judgment and self-recognition
of human worth and potential."
Graham, 130 S. Ct. at 2032.
¶125 Case law and the research on which case law is based
teach
that
there
offenders and
adult
are
marked
offenders
differences
in
their
between
cognitive
juvenile
abilities.10
"The difference in mental development between a child and an
adult . . . is
a
major
premise
of
the
United
States
Court's decisions in Roper and in Graham . . . ."11
and
especially
young
juveniles,
categorically
Supreme
Juveniles,
have
lessened
8
Graham, 130 S. Ct. at 2026 (citations omitted).
The
penological goals are retribution, deterrence, incapacitation,
and rehabilitation.
None justifies a death-in-prison sentence
for a 14-year-old child.
9
Graham, 130 S. Ct. at 2026; Roper, 543 U.S. at 569.
10
This accepted distinction has led to a continued trend in
recent years of trying fewer teenage defendants in adult courts.
See Mosi Secret, States Try Fewer Teenage Defendants in Adult
Courts, N.Y. Times, Mar. 6, 2011, at A1.
11
Missouri v. Andrews,
(Wolff, J., dissenting).
329
7
S.W.3d
369,
379
(Mo.
2010)
No.
culpability.12
2008AP1139.ssa
The nonparty brief of the Wisconsin Psychiatric
and the Wisconsin Psychological Associations, recognizing this
marked
and
well
understood
difference,
advises
that
"[w]ell
accepted psychology and psychiatry studies, including those upon
which Roper and Graham relied in holding that juveniles cannot
be deprived of their liberty irretrievably, require that the
judgment
sentencing
Omer
Ninham
to
life
imprisonment
without
parole be vacated."
¶126 Wisconsin
juveniles
under
law
the
has
age
similarly
of
15
are
recognized
that
young
unprepared
for
adult
responsibilities and should be treated as a distinct group of
juveniles in need of protection.13
¶127 The case law and the research on which the cases are
based teach that caution should be used in allowing a judge to
decide at sentencing that a young juvenile is incorrigible or
has an "irretrievably depraved character."14
is inconsistent with youth.'"15
12
"'[I]ncorrigibility
A ruling that a juvenile who
Graham, 130 S. Ct. at 2032; Roper, 543 U.S. at 572-73.
13
Juveniles under 15 years of age may be held in secure
custody only in a juvenile detention center or the juvenile
portion
of
a
county
jail.
Wis.
Stat.
§§ 302.18(7),
938.138(1m)(a).
Fourteen-year-olds are incapable of consenting to sexual
activity.
Wis. Stat. §§ 948.01, 948.02, & 948.09.
Fourteenyear-old crime victims also receive extra protections under
certain sexual offense statutes.
Wis. Stat. §§ 948.02, 948.09,
948.075, 967.04.
14
Graham, 130 S. Ct. at 2026.
15
Graham, 130 S. Ct. at 2029 (quoting
Commonwealth, 429 S.W.2d 374, 378 (Ky. 1968)).
8
Workman
v.
No.
2008AP1139.ssa
committed a homicide at the age of 14 does not have the capacity
to ever mature and reform or be reincorporated in society is
categorically untrustworthy.
"If trained psychiatrists with the
advantage of clinical testing and observation refrain, despite
diagnostic expertise, from assessing any juvenile under 18 as
having antisocial personality disorder, we conclude that States
should
refrain
from
asking
condemnation . . . ."16
jurors
to
issue
a
far
graver
More complete and accurate information
is needed about the child (and the adult that he or she may
become) because "[e]xperience has taught us to be cautious when
reaching high consequence conclusions about human nature that
seem
to
be
intuitively
correct
at
the
moment."
State
v.
Gallion, 2004 WI 42, ¶36, 270 Wis. 2d 535, 678 N.W.2d 197.
¶128 In addition to the culpability of juveniles, a court
must consider the "objective indicia of society's standards, as
expressed in legislative enactments and state practice."17
majority
opinion
concludes
that
no
national
consensus
The
exists
against sentencing a 14-year-old or younger juvenile to death in
prison for intentional homicide.
Majority op., ¶57.
I examine
the data and come to the opposite conclusion.
¶129 That
36
states
allow
a
juvenile
14
years
old
or
younger to be sentenced to death in prison for the crime of
homicide does not undermine a national consensus against the
practice.
Three states have now moved away from death-in-prison
16
Roper, 543 U.S. at 573.
17
Graham, 130 S. Ct. at 2022 (quoting Roper, 543 U.S. at
572).
9
No.
sentences for juveniles.18
2008AP1139.ssa
However, the absence of legislation
prohibiting a particular sentence is not conclusive evidence of
society's
current
legislation,
standard
"[a]ctual
of
decency.
sentencing
In
practices
part of the inquiry into consensus."
addition
are
an
to
important
Graham, 130 S. Ct. at
2023.
¶130 The
extreme
infrequency
with
which
death-in-prison
sentences are imposed on children for homicides committed when
14 years old or younger demonstrates that there is a national
consensus
states
against
are
such
serving
sentences.
a
Only
juveniles
sentence
death-in-prison
73
for
committed when 14 years old or younger.
Sixteen
states
have
a
mandatory death-in-prison
homicide.19
intentional
supplied
Wisconsin
by
the
Office
sentencing
sentences
In
contrast,
defendant's
of
Justice
brief
18
homicide
Majority op., ¶56.
statute
for
in
that
juveniles
according
based
Assistance,
on
results
that
to
commit
statistics
data
since
in
from
1995
the
1,153
juveniles were arrested in Wisconsin for murder, and only Omer
Ninham has been sentenced to life in prison without parole for a
homicide committed when 14 years old or younger.
¶131 The national data on sentencing practices analyzed in
the instant case are significantly similar to the data in Graham
regarding the imposition of sentences of life without parole for
18
California (In re Nunez, 93 Cal. Rptr. 3d 242 (Cal. Ct.
App. 2009)); Colorado (Colo. Rev. Stat. § 17-22.5-104(IV));
Texas (Tex. Penal Code Ann. § 12.31(b)(1)).
19
Andrews, 329 S.W.3d at 383 (Wolff, J., dissenting).
10
No.
juveniles who committed non-homicide crimes.
juveniles
in
11
states
were
serving
2008AP1139.ssa
In Graham, 123
life-without-parole
sentences for non-homicide cases, Graham, 130 S. Ct. at 2011,
and the United States Supreme Court found a national consensus
that a sentence of death in prison for non-homicide cases was
cruel and unusual punishment.20
¶132 Just as the United States Supreme Court determined in
Graham that there was a national consensus against juveniles
being sentenced to life without parole for non-homicide crimes,
I conclude on the basis of the infrequency with which death-inprison
sentences
are
imposed
for
homicides
committed
by
juveniles under 15 that there is a national consensus against
death-in-prison sentences for homicide crimes committed when a
juvenile is 14 years old or younger.
against
such
sentences
strongly
The national consensus
supports
the
conclusion
that
such sentences are cruel and unusual.
¶133 Applying
the
rationale
used
by
the
United
States
Supreme Court in Eighth Amendment cases, I conclude that the
Wisconsin statute allowing the imposition of a death-in-prison
sentence for a homicide committed when a juvenile is 14 years
old violates the constitutional prohibition of cruel and unusual
punishment.
This case lies on the boundaries of an evolving
standard
decency
of
that
underlies
20
the
analysis
of
Eighth
Similarly, as asserted by Ninham, the absolute numbers of
the sentence before this court are substantially comparable to
the pertinent number of sentences in Roper (72) and in Atkins
(71).
See Brief of Defendant-Appellant-Petitioner Omer Ninham
at 24-25.
11
No.
Amendment
rights.
Applying
the
analyses
the
2008AP1139.ssa
Supreme
Court
applied in Graham and Roper, consistent with the analysis the
Court
applied
Atkins21
in
and
Thompson,22
and
the
historic
recognition under Wisconsin law of the vulnerability of young
juveniles, I conclude that a death-in-prison sentence for an
intentional homicide committed when a juvenile is 14 years old
or younger is unconstitutional.
¶134 My
conclusion
is
buttressed
by
the
same
kind
of
research-based evidence that the United States Supreme Court has
relied
upon
to
declare:
(1)
juveniles
categorically
have
lessened culpability; (2) juveniles are more capable of change
than
adults
and
"irretrievably
sentencing
their
depraved
could
be
actions
are
character"
made
less
such
that
they
likely
that
are
a
to
evidence
decision
incapable
at
of
reconciliation with society; (3) penological justifications do
not support a sentence that denies all hope for reconciliation
with
society;
and
(4)
the
sentence
of
death
in
prison
is
especially harsh on young juveniles.
¶135 Just as society's standards of decency categorically
do not allow a juvenile to be sentenced to death, juveniles 14
years old or younger should not be sentenced to death in prison.
¶136 Omer
Ninham's
sentence
guarantees
he
will
die
in
prison without any meaningful opportunity to obtain release, no
matter what he might do to demonstrate that the heinous act he
committed as a 14-year-old is not representative of his true
21
Atkins v. Virginia, 536 U.S. 304 (2002).
22
Thompson v. Oklahoma, 487 U.S. 815 (1988).
12
No.
character.23
the
2008AP1139.ssa
I conclude the death-in-prison sentence subjecting
14-year-old
to
"hopeless,
lifelong
punishment
and
segregation is not a usual or acceptable response to childhood
criminality, even when the criminality amounts to murder."24
¶137 For the reasons set forth, I dissent.
¶138 I
am
authorized
to
state
that
Justice
ANN
WALSH
BRADLEY joins this dissent.
23
Graham, 130 S. Ct. at 2027; Naovarath, 779 P.2d at 944.
24
Naovarath, 779 P.2d at 947.
13
No.
1
2008AP1139.ssa
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