Wisconsin Supreme Court Divides on the Constitutionality of Life Without Parole Sentences for Juveniles Convicted of Homicide


A divided Wisconsin Supreme Court on Friday upheld the life-imprisonment-without-parole sentence imposed on 14-year-old Omer Ninham. Chief Justice Shirley Abrahamson concluded in the dissenting opinion that, as EJI argued, Omer’s sentence is cruel and unusual punishment that violates the Eighth Amendment.

The Wisconsin Supreme Court granted review in September 2010 to address the constitutionality of the life imprisonment without parole sentence imposed on 14-year-old Omer Ninham, a Native American child who is the only person in Wisconsin sentenced to die in prison for an offense at age 14.

At Graham v. Florida, it is cruel and unusual to sentence young teens to die in prison for any offense because the characteristics that make children less culpable than adults apply with even greater force to young adolescents like Omer.

Graham struck down death-in-prison sentences for children convicted of nonhomicide offenses, reasoning that the Eighth Amendment “forbid[s] States from making the judgment at the outset that those offenders never will be fit to reenter society.”

The Wisconsin Supreme Court agreed that “the younger the juvenile offender, the more his or her culpability diminishes.” The majority nonetheless concluded that “we cannot preclude sentencing courts from ever making a judgment that a 14-year-old who commits intentional homicide is forever dangerous.”

The dissenting justices pointed out that death-in-prison sentences imposed on 13- and 14-year-olds for homicide offenses are even more rare than the sentences struck down in Graham, and concluded that 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 against such sentences.”

Relying on “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 their actions are less likely to evidence ‘irretrievably depraved character’ such that a decision at sentencing could be made that they are incapable 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,” the dissenting justices determined that it is unconstitutional to sentence a child 14 or younger convicted of homicide to die in prison.