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May 23, 2017

Colorado Supreme Court rules Graham and Miller do not limit aggregate term-of-years sentence

Yesterday I noted in this post a Minnesota Supreme Court ruling from last week that resisted extending the Supreme Court's recent limits on LWOP sentences for juvenile offenders to aggregate lengthy sentences for multiple crimes.  Perhaps exactly as I was writing that post, the Colorado Supreme Court handed down a similar ruling in Lucero v. Colorado, No. 13SC624 (Colo. May 22, 2017) (available here). Here is a key passage from the start of the majority opinion in Lucero:

[W]e hold that neither Graham nor Miller applies to an aggregate term-of-years sentence, which is the sentence Lucero challenges. In Graham, the U.S. Supreme Court held unconstitutional a life without parole sentence imposed on a juvenile for a single nonhomicide offense. 560 U.S. at 57, 82. In Miller, the Court held that a sentence of “mandatory life without parole for those under the age of 18 at the time of their crimes” violates the Eighth Amendment. 132 S. Ct. at 2460. Life without parole is a specific sentence, distinct from sentences to terms of years. Lucero was not sentenced to life without parole.  Rather, he received multiple term-of-years sentences for multiple convictions.  Therefore, Graham and Miller are inapplicable to, and thus do not invalidate, Lucero’s aggregate sentence.

The concurring opinion in Lucero notes that a significant number of state supreme courts and other courts have held that the Eighth Amendment rule articulated in Graham "extends to cases in which a juvenile offender receives the functional equivalent of an LWOP sentence." At some point (though I have no idea when), the U.S Supreme Court will have to clarify whether and how Graham nor Miller limit the imposition of sentences other than LWOP.

May 23, 2017 at 01:36 PM | Permalink


Perhaps Miller, Graham, etc. will be limited to minors who've committed a single homicide, but not to anyone who's found guilty of multiple homicides or multiple homicides at different events.
The law has to be harsh enough that every city doesn't turn into Chicago, because people don't trust the government to lock people up for good. (Like the Hatfields and the McCoys)

Posted by: Lady Liberty and Mistress Justice | May 23, 2017 2:23:26 PM

Can we get rid of the sex-offender registry?


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Posted by: is a landline a landmine? | May 23, 2017 2:38:41 PM

"Life without parole is a specific sentence, distinct from sentences to terms of years"

Form over substance.

Posted by: Daniel | May 23, 2017 3:17:47 PM

I concur with Daniel. The law, as interpreted by these judges, is an ass.

Posted by: peter | May 23, 2017 3:58:34 PM

The Ohio Supreme Court recently said the opposite in the Brandon Moore case. Looks like a conflict is shaping up that the US Supremes might want to step in and resolve.

Posted by: Cleveland Attorney | May 24, 2017 10:26:33 AM

I took a quick look at some of the states. A lot of the cases are fact-specific turning on a finding that the sentence in that case is not really a de facto life without parole and that the defendant has a meaningful chance at release (albeit at age 55 or age 60 or age 65). A lot of the cases also seem to question whether the issue is the age at parole eligibility or how long the inmate has to serve before becoming eligible for parole. In other words, given that Miller and Graham seem to turn on the age at the time of the offense not at the time of sentencing and that it's possible for a "cold case" to be charged decades after the offense, would the age of a defendant at sentencing transform what would have been a valid sentence if imposed when the defendant was nineteen into an invalid sentence if imposed when the defendant is forty at the time of sentencing.

Posted by: tmm | May 24, 2017 11:19:05 AM

Yes, I know of a case where the death sentence was reversed decades after being improperly directed by a judge (who had overruled the lesser recommendation of a jury) and a 60 year sentence, with parole, substituted. After 30 years and at the point of parole (he had an exemplary prison behavior record), two more sentences were stacked by the prosecution resulting (after an appeal reduction!) in a new total sentence of 130 years! How can such judicial behavior possibly be justified?

Posted by: peter | May 25, 2017 1:29:06 AM

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