Jan. 7, 2011 – In a case that has potential for U.S. Supreme Court review, the Wisconsin Supreme Court may decide whether sentencing children 14-and-under to life in prison with no possibility of parole is cruel and unusual under the Eighth Amendment.
On Jan. 5, the Wisconsin Supreme Court heard oral argument in State v. Ninham, a case involving a juvenile, Omer Ninham, who was sentenced to life imprisonment without the possibility of parole after he was convicted of first degree intentional homicide.
Ninham was 14 years old in 1998 when he and four accomplices knocked 13-year-old Zong Vang off his bicycle without provocation and chased him to the fifth story of a parking ramp in Green Bay, then pushed him over the edge to his death.
At court proceedings after his arrest, Ninham threatened a judge, intimidated three witnesses, and threatened to rape and kill one female juror and to “make sure it’s a slow death.”
After a jury found Ninham guilty of first degree intentional homicide in March of 2000, Brown County Circuit Court Judge John McKay reviewed the totality of circumstances to render a life sentence with no parole.
But now the Equal Justice Initiative is defending Ninham, arguing that juveniles 14-and-under who commit any crime, even intentional homicide, receive cruel and unusual punishment if sentenced to life in prison with no possibility of parole.
Defense attorney Bryan Stevenson, an Alabama attorney admitted to Wisconsin pro hac vice, argued that scientific evidence about 14-year-olds determines that they cannot be fully culpable for their actions because their brains are not fully developed at that stage.
“What magnetic resonance imaging tells us is that [children 14-and-under] are undeveloped in the parts of the brain that are relevant to assessing culpability and impulsivity. That’s a fact, and that’s not going to change,” Stevenson argued to the court. “The judge said [Ninham] was irretrievably damaged in a way that he could never recover, never be reformed, and that’s simply not true.”
Stevenson argued that sentencing any juvenile 14-and-under to life without parole, for any crime, should be prohibited under Wisconsin law. In the alternative, he argued that the circumstances in Ninham’s case warrant a modified sentence.
He did not argue that Ninham should be released at some point in time, only that it should be possible for him to be released in the future if it is determined that he is rehabilitated.
“The evidence about Omer, his background and circumstances, combined with what we now know and understand about child status and developmental status … dictates that his sentence should be modified,” Stevenson argued.
But Assistant District Attorney Sally Wellman vehemently disagreed, stating that for intentional homicide, “the state has the right to exact retribution, even on a 14-year-old.”
Justice Ann Walsh Bradley asked Wellman if her argument would be different in the case of a 10-year-old convicted of intentional homicide.
“No,” Wellman said. “We do not believe the Constitution requires or gives this court any basis to draw that categorical line for the crime of intentional homicide.”
The Eighth Amendment to the U.S. Constitution, and Article I, section 6 of the Wisconsin Constitution, protect individuals from cruel and unusual punishment.
The state argues that neither the U.S. nor the Wisconsin constitutions prohibit the Wisconsin legislature from choosing to allow sentencing courts to sentence juveniles to life imprisonment without the possibility of parole for first degree intentional homicide, and Wisconsin statute allows courts to sentence juveniles over the age of nine to a sentence of life without parole.
However, the defense argues that children 14 and younger are a distinct group of juveniles for whom a sentence of life imprisonment without parole is unconstitutional. The defense cites Roper v. Simmons, 543 U.S. 551 (2005), and Graham v. Florida, 130 S. Ct. 2011 (2010), as the leading cases to support its assertion.
In Graham, the U.S. Supreme Court held that the Eighth Amendment prohibits a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime. In Roper, the U.S. Supreme Court held that offenders under the age of 18 cannot be sentenced to death.
The defense argues that in determining whether the court should adopt a categorical rule exempting juveniles 14-and-under from a life sentence with no parole, it must consider “objective indicia of society’s standards … to determine whether there is a national consensus against the sentencing practice at issue.” Roper, 543 U.S. at 563.
Stevenson said there are 73 instances in 18 states across the country in which juveniles 14-and-under have been sentenced to life without parole for intentional homicide, and that is insufficient to establish the kind of consensus necessary to uphold such a sentence.
In Roper, Stevenson said, there were 72 juveniles in 20 states that were sentenced to death. In Graham, there were 130 juveniles sentenced to life without parole for a nonhomicide offense.
“The unusualness of the sentence puts the argument and the question presented in this case very much in line with the cases that the [U.S. Supreme] Court has found to violate the Eighth Amendment,” Stevenson said. He said the class of individuals under the age of 14 must have a “meaningful possibility of release” or else the sentence is unconstitutional.
But Wellman said, “we don’t think the people of Wisconsin and the legislature of Wisconsin are required to take the chance or make the assumption or to give a 14-year-old the opportunity to show he has ‘grown out of’ committing this kind of horrific homicide.”
Whatever the conclusion of the Wisconsin Supreme Court, the case has potential for the U.S. Supreme Court, which has not decided whether it is cruel and unusual to sentence a juvenile aged 14 or under to life without parole for the crime of intentional homicide.