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May 20, 2011

Wisconsin Supreme Court upholds LWOP sentence for 14-year-old murderer

As reported in this new AP piece, "Wisconsin judges can sentence 14-year-olds to life in prison without parole in homicide cases, the state Supreme Court ruled Friday in upholding a life sentence for a man who participated in a gruesome homicide when he was a teenager."  Here are more of the details of the ruling and the underlying crime that presents the setting for the latest juve LWOP debate:

In a case watched by psychiatrists, family advocates and defense attorneys, the court found that neither the U.S. nor the Wisconsin Constitution prohibits life sentences without parole for 14-year-olds in homicide cases and no national consensus has formed against such sentences.  "We ... confirm what objective evidence already informs us: Contemporary society views the punishment as proportionate to the offense," Justice Annette Kingsland Ziegler wrote for the majority.

The case stems from a crime that took place more than a decade ago in Green Bay. Omer Ninham, then 14, helped throw another teenager off a parking ramp for no apparent reason.  Ninham's attorney, Byron Stevenson of the Equal Justice Initiative, had argued that such sentences amount to cruel and unusual punishment.  He vowed to appeal to the U.S. Supreme Court....

Judges across the country rarely sentence juvenile offenders to life without parole. According to statistics compiled by the Equal Justice Initiative the Wisconsin justices cited in their opinion, 73 children 14 or younger across 18 states have received that sentence.

Last year the U.S. Supreme Court ruled such sentences for anything less than homicide was unconstitutional.... But the [Wisconsin] justices said in a 5-2 decision that Ninham failed to show that children 14 and younger deserve different constitutional status in homicide cases. The lack of homicide life sentences for children across the country doesn't signal national sentiment has turned against such sentences, only that juveniles rarely kill people, the justices said.

In Ninham's case, the punishment fit a crime that "cannot adequately be reduced into words," the opinion said.  According to court documents, 13-year-old Zong Vang was riding his bike home in September 1998 after picking up tomatoes at the grocery store for his family.  A group of five people between the ages of 13 and 14 accosted him for no reason. Ninham and another member of the group started teasing Vang, then punched him.  Vang ran into a nearby hospital parking ramp.  The group cornered him on the top floor.  Ninham and a friend seized him by the wrists and ankles.  As Vang cried and screamed, they threw him over the edge. Vang fell five stories to his death.  A bystander on the ground said he heard a sound "like a wet bag of cement hitting the pavement."...

Under Wisconsin law, anyone 10 or older accused of homicide can be tried in the adult system. A jury convicted Ninham of first-degree intentional homicide and child abuse in 2000. The other charges were dismissed but the judge was allowed to consider them at Ninham's sentencing.

First-degree intentional homicide carries a mandatory life sentence in Wisconsin.  The state does not have the death penalty. The only issue at sentencing is whether a judge will grant parole eligibility.  Brown County Judge John D. McKay gave Ninham, who was by then 16, life and denied him any chance at parole.  The judge noted Ninham had a tough family life and he snorted cocaine weekly and drank every day, usually until he passed out.  But he said the crime devastated Vang's family and the Green Bay community and described Ninham as a "frightening young man."

The full 68-page opinion in Wisconsin v. Ninham, 2011 WI 33 (Wisc. May 20, 2011) is available at this link.  Here is part of the majority opinion begins:

Ninham mounts a categorical constitutional challenge, arguing 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 and Article I, Section 6 of the Wisconsin Constitution.  In the alternative, Ninham seeks sentence modification on the grounds that (1) his sentence is unduly harsh and excessive; (2) new scientific research regarding adolescent 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. We disagree with Ninham on all four grounds, and accordingly, we affirm the decision of the court of appeals.

May 20, 2011 at 12:36 PM | Permalink

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in Italy a child (less than 18) cannot receive a life sentence

Posted by: Dott. claudio giusti, italia | May 20, 2011 1:00:33 PM

Rather makes a mockery of President Obama's fine words yesterday about the role of Human and Universal Rights in democratic societies. Hopefully the US Supreme Court will be forced to "clarify" the Constitution in favor of the Rights of the Child as embraced in International Law.

Posted by: peter | May 20, 2011 1:22:24 PM

I have to admit that throwing another boy off a parking ramp is a terrible act...But these are still kids...There minds arenot fully developed and deserve a chance to have something from life...5-20 yrs is about the range I would say is adequete for kids...It all depends on their background and how they progress when rehab'd... Of coarse these kids are going to be schooled and rehab'd and given opportunity to grow right....

To some extent yes, but it has to be a harsh shock to get put away at that age...The hopelessness of it all..Its a shame things like this happen....Look at video games, how violent they are...Tv, movie cd's etc...We live in a modern dodge city, the fast lane..Kids don't sort it all out very good, I know I made just plain stupid choices and blunders...Of coarse not like the group here did....minor errors, that got correncted by a belt or no friends for the rest of the day....These kids get wacked for the rest of there life....

I would definitely say that bullying played a huge part in this episode...We do have mechanisms
arriving in schools to help, if noticed...

Posted by: Josh | May 20, 2011 2:10:49 PM

@ Josh:

Do you really think that a five-year sentence is appropriate for throwing a boy off a parking ramp to his death? Do you really think a "kid" of 14 is too young to comprehend what it means to kill, and to be dead? (I'm not talking about at a deep philosophical level; I just mean recognizing that it's not like the cartoons, where Wile E. Coyote keeps coming back to life -- that if you throw someone off a building and the person dies, there's no undoing it, the person's parents have to bury him in the ground and never get to see him again, the person who is killed never gets to grow up and have a life and family of his own, etc.)

And let's assume I agree that LWOP is an extreme sentence for 14, even for murder (as a matter of policy -- as opposed to the Eighth Amendment).

What about 17? I ask because advocates in Illinois used the example of, IIRC, a 17-year-old who raped a much younger girl (11?) and then threw her out the window or off the roof of the housing project where they lived as an example of the injustice of LWOP for under-18 offenders. Seemed like a bizarre choice of poster child.

Do you think 17-year-olds are, as a rule (or even often), unable to understand the basics of the likely consequences of throwing another human being out the window of a tall building?

And why do you think someone who (supposedly) doesn't understand this at 17 is remotely likely to get it at 27, or even 37?

Posted by: guest | May 20, 2011 3:32:11 PM

Claudio:

When you discuss what is allowed in Italy, I take it that you are referring only to Italy's official justice system?

Posted by: guest | May 20, 2011 3:34:41 PM

guest --

"When you discuss what is allowed in Italy, I take it that you are referring only to Italy's official justice system?"

Ouch!

Posted by: Bill Otis | May 20, 2011 3:58:59 PM

No, I don't think a 5 yr sentence is long enough for tossing akid off a parking ramp.. Thats why I would prefer a broad range for such events...

Reason is, some kids may never really respond positively, while others may make good behavior and attitude changes....One nver really know the full story behind some of these juvinille crimes either...Kids who may have been molested, physically abused, bullied profusely...

Anyway, that my thoughts on this sunny friday afternoon...Have a nice weekend out there and drive safe as its nice weather and many new vehicles and young motorist are on the prowl...

Posted by: Josh | May 20, 2011 5:13:38 PM

Personally i think the court got it right! this was an adult crime. Out and out MURDER! there is nothing in the constituiton that says you can't take someone who has TAKEN A LIFE and lock them up the rest of theirs!

Even if the psych's could profect thier psycho-babble i doublt two kids who could chase, assault and then tose someone off a 5 story building with no provication would ever qualify for rehab.

Posted by: rodsmith | May 20, 2011 7:19:30 PM

Why would one think that a murderer has a right to demand that society one day give him a chance to harm others?

Posted by: federalist | May 20, 2011 8:21:05 PM

The problem with the euphemism is that it elides the discussion which would follow from "We think this 8-year-old is too dangerous, so we can't let him out," e.g. "Really? An 8-year-old? Is there really no other option?" Instead we get "this 8-year-old is really a 35-year old (nod nod wink wink)." I think you do get that discussion. That's exactly the discussion that invariably follows. I don't think anyone pretends that the minor is truly older than he is.

Posted by: Florida Lemon Law | May 21, 2011 2:37:48 AM

rodsmith + federalist
Attitude and law that is based on the presumption that because you CAN do something, that makes it RIGHT, is as absurd as the thinking of dictators whose mindset tells them that, since they have the military and other security resources to impose their will, they are ENTITLED impose whatever conditions they like on the population.
The Constitution does NOT state that 14 year olds should be subject to adult law. The Constitution does NOT state that LWOP or execution is a proper punishment for murder and other serious crime. The Constitution does NOT state that those with the power to impose harsh punishment should do so, without due regard to the person as another human being.
The Law is supposed to be a sophisticated tool, capable of mercy and response to a whole range of human factors. Not a means to indulge punishment fantasies and lust, least of all on the young.
see http://www.unicef.org/crc/ - linked by my name.

Posted by: peter | May 21, 2011 3:00:52 AM

it's incredible how stupid some post can be

Posted by: Dott. claudio giusti, italia | May 21, 2011 7:48:00 AM

Federalist,
Do you mean ALL the homicides will be punish with LWOP?

Posted by: Dott. claudio giusti, italia | May 21, 2011 7:49:36 AM

peter --

"The Constitution does NOT state that LWOP or execution is a proper punishment for murder and other serious crime."

That is correct. It draws no conclusion on the subject, leaving it to legislation to do so. Legislation in most of the states and the federal government provides for the option of the DP for first degree murder.

"The Constitution does NOT state that those with the power to impose harsh punishment should do so, without due regard to the person as another human being."

The principal reason defense counsel is permitted to go into virtually anything as mitigating -- including rank, unadulterated appeals to emotion -- is precisely to give due regard to the defendant as another human being. This is also the principal reason the law forbids the wanton infliction of pain during the execution. It's not that we like the guy.

"The Law is supposed to be a sophisticated tool, capable of mercy and response to a whole range of human factors."

It is and does. This is the principal reason the DP is not imposed much more frequently than it is. But that the law should be CAPABLE of mercy does not mean that irrational leniency MUST be shown in every case.

"Not a means to indulge punishment fantasies and lust, least of all on the young."

You can do a good deal better than this sort of unworthy "argument." Do you honestly think Kent and I and guest and numerous others here favor the DP to "indulge punishment fantasies and lust?" If you do, then, not to put too fine a point on it, you're nuts. If you don't, why continue to publish smears like that? The notion that the huge majority in this country that favors the DP does so out of "punishment fantatsies" is just nonsense, and arrogant, risible nonsense to boot.

Posted by: Bill Otis | May 21, 2011 8:58:03 AM

The really laughable thing is that this murderer is unlikely to spend the rest of his life behind bars. Yeah, his sentence is LWOP, but criminals have a way of getting out. Do you really think he's going to spend 60 years in prison? I don't.

Posted by: federalist | May 21, 2011 9:50:58 AM

Bill-
"Legislation in most of the states and the federal government provides for the option of the DP for first degree murder." - except that the US Supreme Court could rule it cruel & unusual punishment under the Constitution as a result of evolving State and International standards of decency.
"The principal reason defense counsel ....." - But as has been shown many, many times, the standard of defense counsel has often fallen below acceptable standards because those selected by the Courts to represent the accused in a capital case may be disinterested, incompetent, overloaded with cases, or so poorly resourced as to represent a liability rather than an asset. Even if that were not so today, and of course there are many attorneys who deserve the greatest praise and respect for their work, there are many inmates remaining on death row whose opportunity to prove innocence has been lost, and/or whose life chance has been destroyed by that history (not to mention those who have already lost their lives).
"But that the law should be CAPABLE of mercy does not mean that irrational leniency MUST be shown in every case." - there is nothing irrational about recognizing that a 14 year old should not be judged irredeemable, or that the actions of one, however heinous, cannot be assessed in comparative adult terms. There are many people in this world, including in the US, who have committed murder and who today are free and leading full and meaningful lives without danger to others. There are even those who would be called celebrities, amongst their number. There is never an excuse for an excess of punishment that would condemn a 14 year old to a lifetime without purpose, hope and opportunity behind bars (nor most others). There can be no better description of cruel and unusual punishment.
"Do you honestly think Kent and I and guest and numerous others here favor the DP to "indulge punishment fantasies and lust?" - I referred to the repetitive and seemingly inevitable reaction of those who scream foul at the slightest indication of leniency, and who poor scorn on those who attempt with justice, to exercise it. Whether you see yourself, Kent or guest as amongst these is for you alone to judge. For myself, I certainly made no judgment. But anyone who lives by the creed "an eye for an eye", and demands that the law be reflective of it, has certainly strayed into the realms of moral fantasy and more.
The "huge majority" that favor the dp in the US do so because their world is remote from its reality. As they learn of the failings of just process; of the alternative means of protection demonstrated by other countries and indeed other US States; of the crazy lottery of who gains a death sentence and who does not; of the unjustifiable cost to the economy and other services .... so they understand that it is time to move forward and abandon the death penalty.

Posted by: peter | May 21, 2011 11:07:21 AM

To me, the fallacy of the "leniency" argument comes down to this. Those who argue it think "child" refers to age.

It does not. A "child" does not throw another human being off a parking ramp. A "child" does not rape an 11 year old and throw her off the roof of a housing project. Indeed, a "child" does not even have these thoughts. Those are the thoughts, inclinations, and actions of adults. They had one intention, to kill another human being.

Now, we can argue for years about what made these people adults at such a young age. I sure have my theories. However, it does not change the fact that they became adults the moment they indulged those thoughts, even when they had them. And, an adult 14 year old is as dangerous as an adult 34 year old.

The rest is nothing but the moral preening of those who caused the problem in the first place by resisting traditional standards of behavior.

Posted by: TarlsQtr | May 21, 2011 12:05:10 PM

Moral preening is interesting. So is social engineering (in case you wondered what Newt meant). Gingrich evidently realizes he created a monster.

Posted by: George | May 22, 2011 12:22:06 AM

Thanks for the completely irrelevant post.

I just love it when liberal Progressives bring out the Nazis to slime conservatives, when it is the Progressives whose policies come directly from the Nazi Party Platform (see universal healthcare, eugenics, physical fitness programs, and the "right" to work)and were their "friends with priviledges" in the 1920's and early 1930's.

In fact, the Socialist/Progressive axis was ahead of the Nazis in may regards. Progressive hero GB Shaw called for a "humane gas" to kill undesirables long before Hitler came up with Zyklon B. Now THAT is "social engineering."

Posted by: TarlsQtr | May 22, 2011 9:59:40 AM

TarlsQtr,

You're welcome considering how you earned it.

The Progressive policy did not come from the Nazi Platform. Instead, the Nazi platform came from Progressive policy. See Eugenics and the Nazis -- the California connection.

As far as them being "liberal" progressives, at least you imply a distinction between liberal and conservative progressives. It was conservative progressives that brought us Buck v Bell and Charles Davenport was hardly liberal. But you are right about one thing. There was a unification of some Democratic and Republican goals and history may be repeating itself, but you are wrong about Liberalism because it would not permit it.

Posted by: George | May 22, 2011 5:54:36 PM

George stated: "The Progressive policy did not come from the Nazi Platform. Instead, the Nazi platform came from Progressive policy. See Eugenics and the Nazis -- the California connection."

I think that is what they call a distinction without a difference. Today's ideological heirs to eugenics identify themselves as "liberal", "progressive", and overwhelmingly belong to the Democrat party. You will not see a conservative like Alan Keyes gushing over the murderous wench Margaret Sanger like Hillary Clinton has. Today's conservatives read Chesterton or Lewis, not the dirtbag Shaw.

"As far as them being "liberal" progressives, at least you imply a distinction between liberal and conservative progressives. It was conservative progressives that brought us Buck v Bell and Charles Davenport was hardly liberal."

Here is the difference. There are no "conservative progressives" (even if there are progressives who market themselves as conservative)today.

"But you are right about one thing. There was a unification of some Democratic and Republican goals and history may be repeating itself, but you are wrong about Liberalism because it would not permit it."

LOL I always get a laugh when chuckleheads talk about "liberal" and their grandiose interpretation of its meaning. The word "liberal" was usurped by the Progressive movement after "Progressive" fell into well-deserved disrepute.

Perfect examples of what a real liberal is are the founding fathers. A liberal today even attempting to adopt the ideological namesake of the FF's is a real hoot. Today's closest relative to a real liberal is probably a libertarian, about as far away on the spectrum from a modern "liberal" as one can get. In fact, a new phrase even had to be invented for the FF's ideology to keep the stain of modern liberalism off of them. We now refer to them as "classical liberals."

Posted by: TarlsQtr | May 23, 2011 9:21:37 AM

TarlsQtr: "I think that is what they call a distinction without a difference."

No difference? That highlights your indifference. Tell that to the 60,000 people that were sterilized in the U.S. before the Nazi party got it into second gear.

As to the rest of your post, I'll repeat what you so carefully and disingenuously left out of your quotes. "There was a unification of some Democratic and Republican goals and history may be repeating itself, but...."

Posted by: George | May 23, 2011 2:00:49 PM

George stated: "No difference? That highlights your indifference. Tell that to the 60,000 people that were sterilized in the U.S. before the Nazi party got it into second gear."

There is no indifference at all in pointing out that the ideological heirs of those that sterilized the 60,000 people are now "liberal", progressives, and Democrats.

You stated: "As to the rest of your post, I'll repeat what you so carefully and disingenuously left out of your quotes. "There was a unification of some Democratic and Republican goals and history may be repeating itself, but...."

Disingenuously? LOL You have far too high an opinion of those words and their underlying thesis. To even bring up the Nazi/Liberal/Progressive idea of "social engineering" in this thread was absurd.

If you cannot see the difference between A) incarcerating an individual who was convicted by his peers for throwing a person off a parking ramp and B) killing/sterilizing people because of religion/race/or perceived unfitness, then you may have achieved the irony of being wacky enough to be sterilized by the same monsters you correctly abhor. Be thankful there is no such thing as a time machine because Margaret Sanger and GB Shaw are looking for you.

Posted by: TarlsQtr | May 23, 2011 3:31:57 PM

The judge noted Ninham had a tough family life and he snorted cocaine weekly and drank every day

Posted by: OBEY Snapback | Jun 20, 2012 10:06:42 AM

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