State of South Carolina, Respondent, v. Conrad Lamont Slocumb, Petitioner.
Appellate Case No. 2015-002031
THE STATE OF SOUTH CAROLINA In The Supreme Court
Filed April 3, 2019
JUSTICE KITTREDGE
Opinion No. 27877; Heard December 12, 2018; RELIEF DENIED
IN THE ORIGINAL JURISDICTION
RELIEF DENIED
Tara Dawn Shurling, of the Law Office of Tara Dawn Shurling, P.A., of Columbia, for Petitioner.
Attorney General Alan Wilson and Assistant Attorney General Mark R. Farthing, both of Columbia, for Respondent.
Chief Appellate Defender Robert Micheal Dudek, Appellate Defender Susan Barber Hackett, Appellate Defender Laura Ruth Baer, all of Columbia, for Amicus Curiae, South Carolina Division of Appellate Defense.
John H. Blume, III and Lindsey Sterling Vann, both of Columbia, for Amicus Curiae, Justice 360 & Cornell Juvenile Justice Project.
Executive Director James Hugh Ryan, III, of Columbia, for Amicus Curiae, South Carolina Commission on Indigent Defense.
Joseph M. McCulloch, Jr., of Columbia, and Seth P. Waxman, of Washington, DC, for Amicus Curiae, The South Carolina State Conference of the National Association for the Advancement of Colored People.
Alexandra V.B. Gordon, Aidan Synnott, Anne O‘Toole and Agbeko C. Petty, all of New York, NY, for Amicus Curiae, South Carolina Public Defender Association and South Carolina Criminal Association of Criminal Defense Lawyers.
Following rounds of direct appeals and collateral proceedings, Slocumb now contends an aggregate 130-year sentence for multiple offenses committed on multiple dates violates the Eighth Amendment to the United States Constitution, as extrapolated from the principles set forth in the United States Supreme Court‘s (Supreme Court) decisions in Graham v. Florida1 and Miller v. Alabama,2 among others. We acknowledge ostensible merit in Slocumb‘s argument, for it is arguably a reasonable extension of Graham and Miller. Yet precedent dictates that only the Supreme Court may extend and enlarge the protections guaranteed by the United States Constitution. Once the Supreme Court has drawn a line in the sand, the authority to redraw that line and broaden federal constitutional protections is limited to our nation‘s highest court. Because the decision to expand the reach and protections of the Eighth Amendment lies exclusively with the Supreme Court, we are constrained to deny Slocumb relief.
I.
In 1992, when he was thirteen years old, Slocumb accosted a high school teacher in the school parking lot and forced her into her car at gunpoint, directing her to drive to a wooded area. Slocumb unsuccessfully attempted to force the teacher
Three years later, while returning from an off-site medical visit, Slocumb escaped from custody for a total of forty-five minutes. In the short time he was free, he ran to a nearby apartment complex, located a lone woman, and forced his way into her apartment. Once inside, Slocumb claimed he had a gun and demanded the woman turn over her car keys, money, jewelry, cigarettes, beer, and a change of clothes. After the woman complied with his demands, Slocumb forced her to undress, said “I‘m going to have some sex,” and, after reminding her he was armed, proceeded to rape her. The woman nonetheless continued to resist, whereupon Slocumb forced her to stand and touch her toes as he raped her from behind. After the rape, Slocumb left the apartment and was apprehended in the parking lot by law enforcement.
After a jury trial and multiple rounds of direct appeals, post-conviction relief applications, and resentencing hearings, Slocumb was ultimately sentenced to life without parole for burglary in the first degree, thirty years’ imprisonment for CSC-1st, thirty years’ imprisonment for kidnapping, fifteen years’ imprisonment for robbery (as a lesser-included offense to armed robbery), and five years’ imprisonment for escape, the sentences to be served consecutively.
Subsequently, in 2010, the United States Supreme Court handed down its decision in Graham v. Florida, in which it held the Eighth Amendment to the United States Constitution prohibited courts from sentencing a juvenile offender convicted of a nonhomicide offense to life without parole. 560 U.S. at 82. Slocumb immediately filed a federal habeas action, requesting his life sentence for burglary be vacated pursuant to Graham. The federal district court granted him relief and remanded the case to the circuit court for resentencing on the burglary charge alone.
In response, the State stressed Graham specifically allowed a state to keep a juvenile offender incarcerated for his entire natural life span when the offender failed to demonstrate maturity or rehabilitation. The State informed the circuit court that it had been contacted by the Department of Corrections (DOC) and told that Slocumb, as an adult in his thirties, was an enormous “security risk” with a “horrible” behavioral record, including 218 infractions over a sixteen-year period for actions such as attacking corrections workers, possession of a weapon, and mutilation. According to the State, the DOC‘s unsolicited contact was the first time in at least twenty-three years the agency had felt it necessary to specifically advise the State of the potential security risk posed by an inmate.4 The State also informed the circuit court Slocumb had failed to complete any educational courses or enroll in any rehabilitative programs while incarcerated.5 The State argued Slocumb‘s
Ultimately, the circuit court found the remand instructions from the federal court encompassed only Slocumb‘s burglary charge. The court then resentenced Slocumb to fifty years’ imprisonment on the burglary charge, the sentence to be run consecutively to the eighty years for the remaining charges, resulting in Slocumb facing a 130-year aggregate sentence.
Slocumb appealed, arguing the sentence violated the spirit and letter of Graham, but the court of appeals affirmed. Slocumb then filed a petition for a writ of certiorari with this Court. Because the court of appeals considered only the sentence for burglary in accordance with the limited remand instructions from the federal district court, we denied the petition. However, because the certiorari petition sought review of the entire 130-year sentence, we observed that the constitutionality of the length of Slocumb‘s aggregate sentence in light of Graham was more appropriately raised to this Court by way of a petition for a writ of certiorari in our original jurisdiction. As a result, Slocumb refiled a petition for a writ of certiorari in the Court‘s original jurisdiction to address whether an aggregate sentence imposed for multiple nonhomicide offenses committed while Slocumb was a juvenile was the equivalent of a sentence of life without the possibility of parole, and if so, whether the aggregate sentence violated the Eighth Amendment as interpreted by Graham. We granted the petition.
II.
In the past fourteen years, the Supreme Court issued three decisions concerning juvenile sentencing practices:
A.
In the earliest of its three recent decisions, Roper v. Simmons, the Supreme Court held juvenile offenders could not be sentenced to death if they were under the age of eighteen at the time they committed their crimes. 543 U.S. at 568, 578. Underlying the Supreme Court‘s holding was its belief that juveniles were fundamentally different from adults, in that they (1) exhibited a lack of maturity and an underdeveloped sense of responsibility, resulting in impetuous and ill-considered actions and decisions; (2) were more susceptible to negative outside influences such as peer pressure; and (3) had personality traits that were more transitory and less fixed than adults. Id. at 569-70. Consequently, as the Supreme Court explained, a juvenile‘s irresponsible conduct was not as morally reprehensible as that of an adult and less indicative of an irretrievably depraved character. Id. The Supreme Court concluded that as a result of juveniles’ diminished culpability, the penological justifications for the death penalty applied to them with less force than to adults, and therefore the death penalty was an ineffective and inappropriate punishment for juvenile offenders. Id. at 571.
B.
Subsequently, in Graham v. Florida, the Supreme Court expanded upon its rationale in Roper and held the Eighth Amendment prohibited “the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” 560 U.S. at 82. As a result of the differences between juveniles and adults outlined in Roper and the perceived moral distinction between homicide and nonhomicide crimes, the Supreme Court concluded that, as compared to an adult murderer, a juvenile nonhomicide offender who did not kill or intend to kill had a “twice diminished moral culpability.” Id. at 69.
Turning to the appropriate punishment for juvenile nonhomicide offenders, the Supreme Court noted a life without
As a result, the Supreme Court held “that for a juvenile offender who did not commit homicide[,] the Eighth Amendment forbids the sentence of life without parole.” Id. at 74 (emphasis added). Further,
A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants . . . some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment prohibits a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does prohibit States from making the judgment at the outset that those offenders never will be fit to reenter society.
Id. at 75 (emphasis added).
In dissent, Justice Alito clarified his understanding of the majority‘s holding, stating that “[n]othing in the Court‘s opinion affects the imposition of a sentence to a term of years without the possibility of parole. Indeed, petitioner conceded at oral argument that a sentence of as much as 40 years without the possibility of parole ‘probably’ would be constitutional.” Id. at 124 (Alito, J., dissenting) (emphasis added); id. at 123 n.13 (Thomas, J., dissenting) (making a similar observation). The majority in no way acknowledged or responded to either Justice Alito‘s or Justice Thomas‘s statements that the majority holding did not apply to juvenile offenders serving lengthy term-of-years sentences.
C.
Finally, in Miller v. Alabama, the Supreme Court held that the Eighth Amendment forbade states from imposing on juveniles mandatory sentences of life without the possibility of parole for homicide offenses. 567 U.S. at 489. The Supreme Court reiterated that Roper and Graham stood for the principle that juveniles are constitutionally different from adults for sentencing purposes due to their diminished culpability and greater prospects for reform. Id. at 471-72. Relevant to this appeal, the Supreme Court stated:
Graham‘s flat ban on life without parole applied only to nonhomicide crimes, and the Court took care to distinguish those offenses from murder, based on both moral culpability and consequential harm. But none of what it said about children—about their distinctive (and transitory) mental traits and environmental vulnerabilities—is crime-specific. . . . So Graham‘s reasoning implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.
Id. at 473 (bold emphasis added) (internal citations omitted).7
At his resentencing hearing following the grant of federal habeas relief, Slocumb conceded to the circuit court that Graham applied only to de jure life sentences. Nonetheless, he now argues the general rationale underlying Graham requires us to extend its protections to juveniles serving de facto life sentences as well. We agree Graham‘s explicit holding applies to de jure life sentences alone, and its rationale may implicate de facto life sentences. See Miller, 567 U.S. at 473 (”Graham‘s reasoning implicates any life-without-parole sentence imposed on a juvenile . . . .“). Nonetheless, several factors caution us against extending the reach of Graham to provide Slocumb with relief without further input from the Supreme Court.
A.
First, a long line of Supreme Court precedent prohibits us from extending federal constitutional protections beyond the boundaries the Supreme Court itself has set. See, e.g., Arkansas v. Sullivan, 532 U.S. 769, 772 (2001) (per curiam) (“The Arkansas Supreme Court‘s alternative holding, that it may interpret the United States Constitution to provide greater protection than this Court‘s own federal constitutional precedents provide, is foreclosed by Oregon v. Hass, 420 U.S. 714 (1975).“); Hass, 420 U.S. at 719 & n.4 (stating that while “a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards,” it “may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them“). As a result, we do not believe it is appropriate for this Court, as an inferior court, to extend federal constitutional protections under the Eighth Amendment
Stated differently, while we are duty-bound to enforce the Eighth Amendment consistent with the Supreme Court‘s directives, our duty to follow binding precedent is fixed upon case-specific holdings rather than general expressions in an opinion that exceed the scope of any particular holding. Vasquez v. Commonwealth, 781 S.E.2d 920, 926 (Va. 2016), cert. denied, 137 S. Ct. 568 (2016). This is not a subtle distinction, as Chief Justice Marshall long ago emphasized its importance to the judicial process, explaining:
It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other
principles which may serve to illustrate it[] are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400 (1821) (emphasis added) (rejecting counsel‘s argument that the Supreme Court should follow the reasoning set forth in dicta in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)). The principle enunciated by Chief Justice Marshall has particular force in this case, as a closer examination of the Graham majority and dissenting opinions illustrate.
B.
The Graham majority began its analysis by observing that “[t]he present case involves an issue the Court has not considered previously: a categorical challenge to a term-of-years sentence.” Graham, 560 U.S. at 61 (emphasis added). The
Underscoring its narrow holding and the rarity of sentencing juvenile nonhomicide offenders to life without the possibility of parole, the Graham majority discussed in detail the number of juveniles nationwide who were serving de jure life
sentences, counting 123 affected individuals. Id. at 62-64. Significantly, the Supreme Court excluded from its calculations the number of juveniles serving de facto life sentences due to a lengthy term of years. See id.; id. at 113 n.11 (Thomas, J., dissenting) (noting the majority opinion “exclude[d] from its analysis all juveniles sentenced to lengthy term-of-years sentences (e.g., 70 or 80 years’ imprisonment),” and finding the omission anomalous because “such a long sentence[] effectively denies the offender any material opportunity for parole,” akin to the de jure life sentences the majority found prohibited). The Supreme Court made no attempt to quantify whether sentencing juveniles to de facto life sentences was “quite rare[],” as it did with those
Similarly, Justices Thomas and Alito both separately noted their understanding of the Graham majority‘s holding to exclude lengthy term-of-years sentences—statements which the majority failed to acknowledge or rebut. See id. at 124 (Alito, J., dissenting) (“Nothing in the Court‘s opinion affects the imposition of a sentence to a term of years without the possibility of parole.“); id. at 113 n.11, 123 n.13 (Thomas, J., dissenting). Given the dissenting Justices’ contemporaneous understanding of the reach of the majority decision—to which the majority did not respond—and because we are being asked to extend the explicit reach of Graham and find new Eighth Amendment protections, we decline Slocumb‘s invitation to broaden Graham‘s holding.11
C.
We do not deny the obvious—Slocumb‘s 130-year sentence is a de facto life sentence. The Graham Court acknowledged this was the question presented, but it chose not to answer the term-of-years sentencing issue, notwithstanding the dissenting opinions nipping at the heels of the majority on this very question.12
See Graham, 560 U.S. at 63 (“The instant case concerns only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense.” (emphasis added)).15
Chief Justice Roberts noted this exact distinction in his concurrence in Graham, stating that while he agreed the Graham defendant could not be constitutionally sentenced to life without parole—and, thus, he concurred in the majority‘s result—the categorical bar against de jure life sentences for all juvenile nonhomicide
offenders was an unnecessarily broad holding. Id. at 94 (Roberts, C.J., concurring). In particular, Chief Justice Roberts opined de jure life sentences would be appropriate for other “especially heinous or grotesque” crimes, such as in the case of a seventeen-year-old offender who raped an eight-year-old girl and left her to die buried under 197 pounds of rocks. Id. at 95 (Roberts, C.J., concurring). As Chief Justice Roberts stated,
D.
For all of these reasons, we decline to extend Graham‘s explicit holding based solely on the general rationale underlying the opinion without further input from the Supreme Court as to how the Eighth Amendment applies to situations where a juvenile nonhomicide offender commits multiple crimes against multiple victims at multiple points in time.16 As explained by the United States Court of Appeals for the Sixth Circuit, a contrary result would lead to a number of unanswered questions:
At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: twenty, thirty, forty, fifty, some lesser or greater number? Would gain time be taken into account? Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria? Does the number of crimes matter? There is language in the Graham majority opinion that suggests that no matter the number of offenses or victims or type
of crime, a juvenile may not receive a sentence that will cause him to spend his entire life incarcerated without a chance for rehabilitation, in which case it would make no logical difference whether the sentence is
“life” or 107 years. Without any tools to work with, however, we can only apply Graham as it is written.
Bunch, 685 F.3d at 552 (citation omitted); Vasquez, 781 S.E.2d at 928 (explaining that answering this list of questions with any degree of specificity “would require a proactive exercise inconsistent with our commitment to traditional principles of judicial restraint“). As the Sixth Circuit concluded, “[I]f the Supreme Court has more in mind, it will have to say what that is.” Bunch, 685 F.3d at 553 (citation omitted) (internal alteration marks omitted).
IV.
The Roper-Graham-Miller trilogy has resulted in much confusion and conflicting opinions in ascertaining the reach of the Eighth Amendment in the sentencing of juveniles. See Appendix, infra (showing there is an approximately even split of authority on whether the Eighth Amendment, as interpreted in Graham and Miller, prohibits de facto life sentences). Courts have struggled in good faith in trying to determine the manner in which juveniles may be constitutionally sentenced. We are one of those courts. Rather than predict what the Supreme Court may or may not do, we believe the proper course is to respect the Supreme Court‘s admonition that lower courts must refrain from extending federal constitutional protections beyond the line drawn by the Supreme Court.
Our holding should in no way be read to signal the end of the debate on the underlying issues raised by aggregate term-of-years sentences imposed on juvenile offenders, whether for homicide or nonhomicide offenses. As the Supreme Court stated in Graham in the context of de jure life sentences for juveniles, it is for the states, in the first instance, to explore the means and mechanisms for complying with the Eighth Amendment. 560 U.S. at 75.
Many state legislatures have responded to Roper, Graham, and Miller by enacting juvenile sentencing statutes that provide juvenile offenders with a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. See State v. Null, 836 N.W.2d 41, 72 (Iowa 2013) (noting the “flurry of legislative action that has taken place in the wake of Graham and Miller“). Our General Assembly has
Specifically, the South Carolina General Assembly, with commendable foresight, has taken initial steps toward reforming juvenile sentencing practices in this state. In February 2019, the South Carolina House of Representatives introduced H. 3919 to enact the “Youth Sentencing Act of 2019.” H. 3919, 123 Leg., 1st Reg. Sess., as amended Feb. 8, 2019 (S.C. 2019), available at https://www.scstatehouse.gov/sess123_2019-2020/bills/3919.htm. In its current form, the bill would: (1) retroactively prohibit juvenile offenders from being sentenced to life without parole; (2) retroactively provide juvenile nonhomicide offenders with parole-eligibility after twenty years’ imprisonment, and juvenile homicide offenders with parole-eligibility after twenty-five years’ imprisonment; (3) allow for sentences shorter than the mandatory minimums for juvenile nonhomicide offenders; (4) ban solitary confinement for all juvenile offenders; and (5) modify South Carolina‘s geriatric release program to allow for consideration of parole-like factors for juvenile offenders, see Angel v. Commonwealth, 704 S.E.2d 386, 402 (Va. 2011) (holding Virginia‘s geriatric release program—eligibility for which requires use of “the factors used in the normal parole consideration process“—satisfied Graham‘s requirement for a meaningful opportunity for release based on demonstrated maturity and rehabilitation).
Respect for separation of powers compels us to recognize that the General Assembly is the author of our state‘s public policy for the sentencing of criminal offenders, juveniles and adults. Pending further pronouncement from the Supreme Court, we take no position in the matter, nor should our holding be construed to limit or define the parameters of the legislative discussions and response to this challenge. The judicial role is limited to answering the narrow question raised: whether the aggregate term-of-years sentence imposed on Slocumb categorically violates the Eighth Amendment pursuant to the reach of Graham. Because we find it does not, our judicial prerogative is at its end, and the process must continue in the legislature.
V.
Neither Graham nor the Eighth Amendment, as interpreted by the Supreme Court, currently prohibits the imposition of
DECLARATORY JUDGMENT ISSUED.
Appendix
I. Jurisdictions that find Graham or Miller does not apply to de facto life sentences
| United States Court of Appeals for the Fifth Circuit | United States v. Walton, 537 Fed. App‘x 430, 437 (5th Cir. 2013) (finding Graham did not apply to a lengthy term-of-years sentence). |
| United States Court of Appeals for the Sixth Circuit | Bunch v. Smith, 685 F.3d 546, 550-53 (6th Cir. 2012) (explaining Graham “did not clearly establish that consecutive, fixed-term sentences for juveniles who commit multiple nonhomicide offenses are unconstitutional when they amount to the practical equivalent of life without parole“). |
| Arizona | State v. Kasic, 265 P.3d 410, 414-16 (Ariz. Ct. App. 2011) (opining Graham only applied to juvenile offenders who committed a single nonhomicide offense and were specifically sentenced to “life without parole” rather than a term of years). |
| Arkansas | Hobbs v. Turner, 431 S.W.3d 283, 289 (Ark. 2014) (determining a juvenile nonhomicide offender had received a sentence that complied with Graham so long as the sentence was “nonlife“). |
| Colorado | Lucero v. People, 394 P.3d 1128, 1132-34 (Colo. 2017) (noting the defendant, “unlike the petitioners in Graham and Miller, did not receive a sentence of life without the possibility of parole. Rather, he received four consecutive sentences to terms of years for four separate convictions. . . . Life without parole is a specific sentence, |
| Georgia | Adams v. State, 707 S.E.2d 359, 365 (Ga. 2011) (placing emphasis on Justice Alito‘s dissent in Graham, in which he stated that “nothing in the Court‘s opinion [in Graham] affects the imposition of a sentence to a term of years without the possibility of parole,” Graham, 560 U.S. at 124 (Alito, J., dissenting) (internal alteration marks omitted)). |
| Illinois | People v. Cavazos, 40 N.E.3d 118, 139 (Ill. App. Ct. 2015) (rejecting Miller‘s express applicability to de facto life sentences and “noting that there are distinct differences between a sentence of natural life without parole and a sentence of a determinate, albeit lengthy, number of years“). But see People v. Reyes, 63 N.E.3d 884, 887-88 (Ill. 2016) (per curiam) (agreeing with the State‘s concession that Miller‘s rationale applies to mandatory term-of-years sentences that indisputably amount to life imprisonment in the case of a defendant who—because of statutory, firearm-sentencing enhancements—received the minimum possible sentence of ninety-seven years’ imprisonment). |
| Kansas | State v. Redmon, 380 P.3d 718 (Kan. Ct. App. 2016) (per curiam) (citing Bunch, 685 F.3d at 552, for the proposition that applying Graham to de facto life sentences could result in confusion and uncertainty due to unanswered questions as to what number of years constituted a de facto life sentence; whether that number should be affected by race, gender, or socioeconomic status, as those factors all affect life expectancy; and whether the number of crimes committed should be taken into account), cert. denied, Aug. 24, 2017. |
| Louisiana | State v. Brown, 118 So. 3d 332, 341-42 (La. 2013) (concluding Graham did not apply to cases in which a |
| Minnesota | State v. Ali, 895 N.W.2d 237, 242, 244-46 (Minn. 2017) (declining to extend Miller to de facto life sentences resulting from multiple crimes and/or consecutive sentences), cert. denied, 138 S. Ct. 640 (2018). |
| Mississippi | Mason v. State, 235 So. 3d 129, 134-35 (Miss. Ct. App. 2017) (holding Miller only prohibited the imposition of a sentence of life without parole on a juvenile, not the fifty-year sentence the juvenile there received, and explaining life without parole sentences are legally distinguishable from term-of-years sentences in which the offender is eligible for good-time credit and the like), cert. denied, 233 So. 3d 821 (2018). |
| Missouri | Willbanks v. Mo. Dep‘t of Corr., 522 S.W.3d 238, 243-46 (Mo. 2017) (en banc) (determining Graham did not apply when the lengthy sentence being challenged was an aggregate term-of-years that resulted from multiple convictions, as evidenced by Justice Alito‘s dissent in Graham, as well as Justice Thomas‘s observation in dissent that the Graham majority “exclude[d] from its analysis all juveniles sentenced to lengthy term-of-years sentences (e.g., 70 or 80 years’ imprisonment),” Graham, 560 U.S. at 113 n.11 (Thomas, J., dissenting)), cert. denied, 138 S. Ct. 304 (2017). |
| New York | People v. Aponte, 981 N.Y.S.2d 902, 905 (Sup. Ct. 2013) (determining Miller and Graham applied only to sentences of life without parole, and because the defendant remained technically parole-eligible despite “the prospect that the aggregate mandatory minimum periods of imprisonment may preclude him from ever being paroled,” his sentence was not unconstitutional). |
| Oregon | Kinkel v. Persson, 417 P.3d 401, 409-13 (Or. 2018) (“To date, the [Supreme] Court has not extended its holdings in Roper, Miller, and Graham to lesser minimum sentences |
| Tennessee | State v. Merritt, No. M2012-00829-CCA-R3CD, 2013 WL 6505145, at *6 (Tenn. Crim. App. Dec. 10, 2013) (finding the defendant‘s sentence of 225 years’ imprisonment was the equivalent of a life sentence, but that Graham did not apply to de facto life sentences, only to those actually termed “life imprisonment without the possibility of parole“). |
| Texas | Teinert v. State, No. 01-13-00088-CR, 2014 WL 554677, at *3 (Tex. App. Feb. 11, 2014) (explaining the holding in Graham was “narrowly tailored” to address sentences of life imprisonment without the possibility of parole for juveniles, and that Graham did not apply to “a sentence less severe than life“); Diamond v. State, 419 S.W.3d 435, 439-41 (Tex. App. 2012) (refusing to overturn a ninety-nine year sentence for aggravated robbery because the sentence was within the statutory range authorized by the state legislature, and failing to respond to the dissent‘s charge that such a sentence violated Graham). |
| Virginia | Vasquez v. Commonwealth, 781 S.E.2d 920, 925-26 (Va. 2016) (stating Graham did not address “multiple term-of-years sentences imposed on multiple crimes that, by virtue of the accumulation, exceeded the criminal defendant‘s life expectancy“; and declining to grant “precedential treatment to the ‘reasoning’ in Graham” because “the duty to follow binding precedent is fixed upon case-specific holdings, not general expressions in an opinion that exceed the scope of a specific holding“), cert. denied, 137 S. Ct. 568 (2016). |
| Wisconsin | State v. Williams, 842 N.W.2d 536 (Wis. Ct. App. 2013) (per curiam) (finding Miller inapplicable to a juvenile who would not be eligible for parole until he had served 101 |
II. Jurisdictions that find Graham or Miller applies to de facto life sentences
| United States Court of Appeals for the Seventh Circuit | McKinley v. Butler, 809 F.3d 908, 911 (7th Cir. 2016) (finding that because the defendant was sentenced to a de facto life sentence, “the logic of Miller applies“). |
| United States Court of Appeals for the Ninth Circuit | Moore v. Biter, 725 F.3d 1184, 1194 (9th Cir. 2013) (determining that a de facto life sentence was irreconcilable with Graham‘s mandate for juvenile nonhomicide offenders to be provided a meaningful opportunity to reenter society). |
| United States Court of Appeals for the Tenth Circuit | Budder v. Addison, 851 F.3d 1047, 1053-60 (10th Cir. 2017) (finding a sentence requiring the juvenile nonhomicide offender to serve 131.75 years before becoming eligible for parole violated the spirit and letter of Graham), cert. denied, 138 S. Ct. 475 (2017). |
| California | People v. Caballero, 282 P.3d 291, 295 (Cal. 2012) (holding a sentence requiring the offender to serve over 100 years before becoming parole-eligible did not allow the offender to demonstrate growth and maturity in an effort to secure release, in contravention of Graham‘s dictate). |
| Connecticut | Casiano v. Comm‘r of Corr., 115 A.3d 1031, 1044 (Conn. 2015) (explaining the focus in Graham and Miller “was not on the label of a life sentence, but rather on whether a juvenile would, as a consequence of a lengthy sentence without the possibility of parole, actually be imprisoned for the rest of his life” (citations omitted) (internal quotation marks omitted)). |
| Florida | Henry v. State, 175 So. 3d 675, 680 (Fla. 2015) (opining “that the Graham Court had no intention of limiting its new categorical rule to sentences denominated under the exclusive term of ‘life in prison‘“). |
| | Carter v. State, 192 A.3d 695, 725 (Md. 2018) (determining the Eighth Amendment must prohibit de facto and de jure life sentences alike because “[o]therwise, the Eighth Amendment proscription against cruel and unusual punishment in the context of a juvenile offender could be circumvented simply by stating the sentence in numerical terms that exceed any reasonable life expectancy rather than labeling it a ‘life’ sentence“). |
| Montana | Steilman v. Michael, 407 P.3d 313, 319 (Mont. 2017) (“A strict application of the State‘s argument would mean that a sentence that inarguably would not allow for the offender to ever be released could not be considered a life sentence so long as the sentence is expressed in years. Logically, the requirement to consider how ‘children are different’ cannot be limited to de jure life sentences when a lengthy sentence denominated in a number of years will effectively result in the juvenile offender‘s imprisonment for life.” (emphasis added)), cert. denied, 138 S. Ct. 1999 (2018). |
| Nevada | State v. Boston, 363 P.3d 453, 458 (Nev. 2015) (concluding its holding—that Graham applied to de facto life sentences—“best addresse[d] the concerns enunciated by the U.S. Supreme Court and this court regarding the culpability of juvenile offenders and the potential for growth and maturity of these offenders,” but recognizing that such a holding “raise[d] complex and difficult issues, not the least of which [wa]s when will aggregate sentences be determined to be the functional equivalent of a sentence of life without the possibility of parole“). |
| New Jersey | State v. Zuber, 152 A.3d 197, 212, 214 (N.J. 2017) (“To be clear, we find that the force and logic of Miller‘s concerns apply broadly: to cases in which a defendant commits multiple offenses during a single criminal episode; to cases in which a defendant commits multiple offenses on different occasions; and to homicide and nonhomicide cases.“; but rejecting the notion that sentencing judges should rely on general life-expectancy tables when determining the point at which a term-of-years sentence |
| New Mexico | Ira v. Janecka, 419 P.3d 161, 163, 166 (N.M. 2018) (determining the Eighth Amendment required consideration of “the cumulative impact of consecutive sentences on a juvenile,” but that because the juvenile defendant would become eligible for parole at the age of sixty-two, he had already received a meaningful opportunity for release pursuant to Graham). |
| Ohio | State v. Moore, 76 N.E.3d 1127, 1140 (Ohio 2016) (”Graham cannot stand for the proposition that juveniles who do not commit homicide must serve longer terms in prison than the vast majority of juveniles who commit murder, who, because of Miller, are all but assured the opportunity to demonstrate maturity and rehabilitation at a meaningful point in their sentences.“), cert. denied, 138 S. Ct. 62 (2017). We note the defendant in this case received a resentencing hearing, whereas his co-defendant—who was the subject of the Sixth Circuit‘s decision in Bunch—failed to receive similar relief. |
| Pennsylvania | Commonwealth v. Foust, 180 A.3d 416, 433-34, 436 (Pa. Super. Ct. 2018) (finding the logical inference of Miller was to prohibit de facto life sentences, but holding the impermissible de facto life sentence must be the result of a single term-of-years sentence, because otherwise “it would open the door to volume sentencing discounts in cases involving multiple juvenile homicide offenses. Juvenile perpetrators convicted of multiple homicides would routinely be subject to concurrent terms of imprisonment if the Commonwealth was unable to sustain its burden of proof under Miller . . . and juvenile offenders would receive volume discounts for their crimes.“), cert. requested, Mar. 23, 2018. |
| Washington | State v. Ramos, 387 P.3d 650, 661 (Wash. 2017) (“Regardless of labeling, it is undisputed that [the juvenile |
| Wyoming | Bear Cloud v. State, 334 P.3d 132, 141-42 (Wyo. 2014) (holding the teachings of Roper, Graham, and Miller require an individualized sentencing hearing when the juvenile defendant receives an aggregate, de facto life sentence, and stating, “To do otherwise would be to ignore the reality that lengthy aggregate sentences have the effect of mandating that a juvenile ‘die in prison’ without consideration of his youth and its attendant characteristics (quoting Miller, 567 U.S. at 465)). |
III. Jurisdictions that find their state constitutions’ cruel and unusual punishments clauses bar de facto life sentences
| Indiana | Brown v. State, 10 N.E.3d 1, 4-8 (Ind. 2014) (disapproving of a 150-year sentence, and imposing instead an eighty-year sentence). |
| Iowa | State v. Null, 836 N.W.2d 41, 69-74 (Iowa 2013) (reaching its decision to extend Miller‘s principles “independently under . . . the Iowa Constitution“). |
| Massachusetts | Commonwealth v. Perez, 106 N.E.3d 620, 623 (Mass. 2018) (explaining the state constitution prohibited imposition of a later parole date for juvenile nonhomicide offenders than would otherwise be available for juvenile homicide offenders). |
IV. Jurisdictions that declined to rule on the applicability of Graham or Miller to de facto life sentences, but denied the juvenile offenders relief anyway
| | State v. Cardeilhac, 876 N.W.2d 876, 888-90 (Neb. 2016) (rejecting—in the case of a juvenile offender who “was sentenced to imprisonment for a minimum of 60 years to life to be served consecutively to an 8- to 15-year sentence in a separate robbery case that he was already serving“—the juvenile‘s argument that Miller prohibited his lengthy sentence, because, alternatively, (1) the juvenile was not sentenced to “life without parole“; and (2) “in any event, he received the full benefit of Miller juvenile sentencing principles” due to his constitutionally-adequate sentencing hearing). |
| South Dakota | State v. Springer, 856 N.W.2d 460, 462, 470 (S.D. 2014) (finding the juvenile offender—who would become parole-eligible after serving thirty-three years of his 261-year sentence—failed to “establish a rule for what constitutes a de facto life sentence under which he is entitled to relief“; declining the juvenile offender‘s invitation for the court to craft its own rule defining the point a term-of-years sentence becomes a de facto life sentence; and “further declin[ing] the invitation to join jurisdictions holding Roper, Graham, and Miller applicable or inapplicable to de facto life sentences” because the juvenile offender would become parole-eligible at the age of 49 and therefore “did not receive life without parole or a de facto life sentence” (emphasis added)). |
FEW and JAMES, JJ., concur. HEARN, J., dissenting in a separate opinion in which BEATTY, C.J., concurs.
JUSTICE HEARN: Respectfully, I dissent. I commend the majority‘s scholarly and well-written opinion and agree with much of its discussion on the trilogy of cases decided by the United States Supreme Court concerning punishment for juvenile offenders. However, I part company with the majority‘s belief that granting relief in this case would impermissibly extend Graham.18 Instead, as many other state supreme courts have held, I believe an aggregate sentence that amounts to a de facto life sentence falls within the scope of Graham.
Accordingly, I would follow the rationale of Maryland‘s highest court in Carter,19 where in a similar context, the court explained that the justification underpinning Graham equally applies to a term-of-years sentence. Carter, 192 A.3d at 726
Nevertheless, I do not necessarily quarrel with the sentence in this case, as Slocumb‘s offenses may very well constitute “truly horrifying” crimes that the Graham court noted could subject a juvenile to remain in prison for life. Further, Slocumb‘s extensive disciplinary history while incarcerated may demonstrate that he is “irredeemable.” See Graham, 560 U.S. at 75 (“Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives.“). However, before reaching that conclusion, Slocumb is entitled to the protections afforded by Graham and Miller. See Aiken, 410 S.C. at 543, 765 S.E.2d at 576-77 (“[I]t is the failure of a sentencing court to consider the hallmark features of youth prior to sentencing that offends the Constitution.“).
Because I believe Slocumb‘s aggregate 130-year sentence is unconstitutional, the next question concerns the appropriate remedy. I agree with the majority that this issue is best reserved for the General Assembly because that body is better equipped to fashion an appropriate solution in order to bring our juvenile sentencing scheme into constitutional compliance. To accomplish this task, courts and legislatures across the country have reached differing outcomes, including arbitrarily
BEATTY, C.J., concurs.