MONSTER UNDER THE BED: THE NIGHTMARE OF LEAVING JUVENILE LIFE SENTENCES UP TO THE PAROLE BOARD.
"It is true, we shall be monsters, cut off from all the world.... You accuse me of murder; and yet you would, with a satisfied conscience, destroy your own creature. Oh, praise the eternal justice of man!" -Mary Shelley, Frankenstein (1)
At bedtime, monsters invoke fear in children across the world. (2) These imagined creatures hide in closets and lurk under beds, baring fangs and claws, waiting for darkness to fall. (3) They survive on blood, flesh, and fear. (4) Monsters, according to some, are real--in fact, society often labels the worst juvenile delinquents as monsters; creatures void of innocence and purity. (5) The reality is that the child is not the monster. (6) Rather, the monster is a juvenile justice system that allows children to live a nightmare and remain in prison until they die. (7)
When sentencing juveniles convicted of serious crimes, courts often impose lengthy sentences with the possibility of parole. (8) The parole system has long been a discretionary tool available to sentencing courts for criminals who might have the capacity to reenter society at some point. (9) Ultimately, parole boards hold the authority to decide if release is appropriate and what conditions to impose, along with the power to revoke release with misbehavior. (10) Despite abolishment of the federal system in part due to its predisposal to pitfalls, state parole systems have survived." States use parole for several reasons: (1) parole allows relief from lengthy sentences mandated by law; (2) parole works as a "release mechanism" in crowded prisons; and (3) the prospect of parole serves as an incentive for current inmates to follow the rules. (12)
Throughout the past decade, United States Supreme Court decisions shifted to find that certain sentences for juvenile offenders, namely life sentences without parole, constitute "cruel and unusual punishment." (13) With such holdings, the Supreme Court has repeatedly emphasized the mitigating circumstances to be considered in sentencing youth and implemented certain constitutional constraints for states to follow. (14) Citing compelling research, the Court determined that juvenile offenders should be rehabilitated and eventually released. (15) Research also indicated that lack of maturity, impulsiveness, and susceptibility to external pressures lead to juvenile delinquency. (16) As delinquents progress into adulthood, most offenders indicate a low risk of recidivism; nevertheless, many of these individuals remain incarcerated, serving life sentences for the crimes they committed as youths. (17)
Two cases decided by the South Dakota Supreme Court in 2017, State v. Charles (18) and State v. Jensen, (19) show the Court's recent misapplication of the United States Supreme Court "trilogy" of juvenile sentencing decisions. (20) After Miller v. Alabama (21) found mandatory life sentences without parole for juveniles convicted of homicide unconstitutional, juveniles previously sentenced to mandatory life sentences had the opportunity to have their sentences corrected. (22) The recent Charles and Jensen decisions revisit the late-1990s homicide sentences of two boys, each of whom had been sentenced to mandatory life in prison without parole at age 14. (23) Although the 2017 decisions are the focus of this comment, the earlier decisions are referenced briefly for factual and procedural purposes. (24)
In 1999, 14-year-old Daniel Charles was found guilty of the murder of his stepfather. (25) After applying to have his sentence corrected, the trial court resentenced Charles to 92 years in prison. (26) Similarly, in 1996, Paul Jensen, a 14-year-old, received a life sentence without the possibility of parole after a jury convicted him of first-degree murder and kidnapping of a taxi driver. (27) After Montgomery v. Louisiana (28) held that Miller applied retroactively, Jensen filed a motion to correct his sentence, where the trial court resentenced him to two concurrent, 200-year sentences for the convictions. (29)
Both Charles and Jensen appealed separately to the South Dakota Supreme Court to argue the constitutionality of their corrected sentences. (30) Issuing the Charles decision in late-March and Jensen in mid-April of 2017, the Court affirmed both appellants' new sentences despite having release dates far beyond their natural lifespans. (31) Accordingly, Charles and Jensen, who are now ages 33 and 36 respectively, will potentially remain in prison until their deaths for the crimes they committed as young teenagers. (32) The sole chance they have at a life outside of prison walls lies in the hands of the South Dakota Parole Board. (33) Rather than complying with the Miller requirement that "a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles[,]" the South Dakota Supreme Court released the trial court from its judicial duty of sentencing by passing the power onto the parole board. (34) Equally problematic is that South Dakota courts have failed to comply with the United States Supreme Court's trilogy of juvenile cases that repeatedly emphasize that courts must consider juveniles differently in sentencing. (35) Consisting of three cases several years apart, each trilogy holding advanced juvenile sentencing: Roper v. Simmons (36) banned death sentences for juveniles; Graham v. Florida (31) deemed life sentences without the possibility of parole for juvenile offenders not convicted of homicide unconstitutional; and Miller v. Alabama found mandatory life sentences without the possibility of parole for juvenile offenders unconstitutional. (38) Rather than following the national trend, South Dakota has chosen a path that keeps former juvenile delinquents behind bars and allows parole boards to inherit the responsibility--and risk--of "returning dangerous offenders to the community[.]" (39)
This comment first presents detailed facts and procedural history of State v. Charles and State v. Jensen. (40) Next, this comment discusses parole boards, their purpose, and their pitfalls. (41) Third, this comment surveys United States Supreme Court trends in juvenile sentencing and the Supreme Court trilogy. (42) An overview of South Dakota cases from the past several years follows. (43) Thereafter, this comment addresses policy issues in South Dakota regarding juvenile sentencing and the major revamp of the juvenile justice system in the State. (44) The following Parts analyze sentencing as a judicial question (45) and the mitigating factors of youth required in juvenile sentencing. (46) Finally, this comment concludes by summarizing the issue of leaving juvenile sentences to the parole board. (47)
A. MAKING A MURDERER: THE EVENTS TEADING UP TO TEENAGERS SERVING LIFELONG PRISON SENTENCES.
By committing heinous crimes as teenagers, Charles and Jensen destroyed their futures before they began. The following facts derive from the initial appeals the boys made to the South Dakota Supreme Court. (48)
1. Daniel Charles: The Battered Boy
In the summer of 1999, 14-year-old Daniel Charles lived with his stepfather on a ranch by Opal, South Dakota. (49) Charles's mother and stepfather were divorced, but he continued to live with his stepfather due to his mother's frequent travel for work. (50) Charles alleged physical and verbal abuse by his stepfather. (51) On July 23, following an incident where his stepfather hit him in the head, Charles pointed a rifle at his stepfather's head and pulled the trigger, instantly killing him. (52) He then dragged the body to the garage, cleaned blood off the sidewalk, and called his mother, telling her that his stepfather had not come home. (53) His mother called 911, and police recovered the body. (54) Charles initially told police that the rifle accidentally fired while he was fox hunting, but he later changed his story. (55) Charles also purported to officers that he thought the rifle was unloaded. (56)
Upon transfer to adult court, a jury convicted Charles of first-degree murder, and he was sentenced to life in prison. (57) In 2001, Charles appealed to the South Dakota Supreme Court, where his conviction was upheld. (58) Following Miller, Charles applied to have his sentence corrected. (59) During a three-day hearing in October of 2015, the same judge from Charles's initial trial presided over the resentencing hearing. (60) The court resentenced Charles to 92 years in prison. (61)
Charles argued five issues on appeal from the Fourth Judicial Circuit in Meade County, South Dakota, four contesting the constitutionality of his sentence. (62) In its opinion filed March 29, 2017, written by Justice Wilbur, the South Dakota Supreme Court affirmed on all issues. (63) Charles is parole eligible at age 60 in 2045, but he could remain in prison until his death. (64)
2. Paul Jensen: The Taxi Tyrant
On January 26, 1996, around midnight, 14-year-old Paul Dean Jensen, Jr. and a friend, 16-year-old Shawn Springer, requested a taxi ride from a hotel. (65) The boys asked that the driver, Michael Hare, take them to Fort Pierre on gravel roads. (66) The dispatcher attempted to call Hare's cellphone, but Hare did not respond directly to the call. (67) The dispatcher instead overheard the boys demanding that Hare give them money. (68) Jensen instructed Hare to exit the cab at gunpoint. (69) He then shot Hare once in the chest and twice more in the head to kill him. (70)
While driving back to town in the cab, the boys crossed paths with a police officer who had been alerted about the robbery. (71) A chase ensued, and the snowy roads ultimately caused the cab to crash into a snow bank. (72) Officers approached and arrested the boys. (73) Later, at a Juvenile Corrections Center in Rapid City, Jensen boasted to other inmates that he had shot a taxi driver three times and that the robbery and murder were planned. (74)
The trial court granted the State's motion to transfer 14-year-old Jensen to adult court. (75) A jury trial returned a first-degree murder conviction, along with other charges, resulting in a life sentence in prison. (76) Jensen appealed to the South Dakota Supreme Court, where his conviction was affirmed. (77)
Following the United States Supreme Court holding in Miller, a motion by Jensen prompted the Sixth Judicial Circuit Court in Stanley County, South Dakota, to hold a resentencing hearing to correct his sentence. (78) The circuit court resentenced Jensen to two concurrent, 200-year sentences for first-degree murder and kidnapping. (79) Jensen appealed the sentence to the South Dakota Supreme Court. (80) In an opinion written by Chief Justice Gilbertson, filed on April 19,2017, the Court affirmed the sentence imposed by the circuit court. (81) Jensen is parole eligible at age 39 in 2021, but like Charles, Jensen could remain in prison until his death. (82)
While Jensen and Charles's sentences are particularly harsh for juvenile sentences, interpretations of the juvenile trilogy vary largely across the country because the issue of de facto life sentences, or a sentence that functions as the equivalent of a life sentence, was not explicitly approached in the United States Supreme Court's holdings. This resulted in an ad hoc collection of holdings and interpretations. (83) A number of courts address the issue using a "spirit" approach, meaning the court recognizes that in the spirit of the holdings of the trilogy cases, de facto life sentences are barred. (84) On the other hand, some courts rely on the "letter of the law" approach, looking to exactly what the Supreme Court said and applying the trilogy technically, often allowing substantial term-of-years sentences. (85) Until the Supreme Court expressly clarifies whether de facto life sentences are barred, state courts will continue to interpret the law differently.
B. PAROLE BOARDS: THE "UNWANTED CHILD" (86)
Parole boards serve the purpose of determining if parole-eligible offenders are ready for early release. (87) While society often perceives parole as a tool to let criminals out earlier than they deserve, the opposite can also occur, and an unlikablc applicant may never gain the board's approval. (88) No standard guidelines exist, leaving the parole board to rely on a "gut feeling" about granting or denying release. (89) For example, parole board members in South Dakota may consider subjective factors, including attitude, character, and "total personality." (90) Overall, parole has turned into an unreliable and unpredictable process, subject to biases and prejudices. (91)
A new parole system implemented in South Dakota addressed issues with the parole board by eliminating appearances in front of the board. (92) Courts now sentence prisoners under either the old or new system, depending on when they committed their crime. (93) For those sentenced under the old system, release is at the complete discretion of the parole board. (94) For prisoners sentenced under the new parole system, release is guaranteed as long as the prisoner behaves while in prison. (95) Prisoners like Charles and Jensen were sentenced under the old parole system; therefore, appearance and approval by the parole board is mandatory for release. (96) While the parole system gives Charles and Jensen hope for release at some point, it also serves as a reminder that they may remain incarcerated indefinitely.
C. RECENT SUPREME COURT TRENDS: NOT MONSTERS NOR MINIATURE ADULTS
Over the past decade, the United States Supreme Court has increasingly distinguished juvenile and adult offenders. (97) Prior to 2005, the Court was hesitant to sentence juveniles differently than adults, reasoning that certain heinous offenses deserved the harshest punishment. (98) Following significant research, society began to recognize that juvenile offenders were less culpable and more likely to reform. (99)
1. The Trilogy
Three United States Supreme Court cases decided in the past decade regarding juvenile sentencing are referred to as the trilogy: Roper v. Simmons, Graham v. Florida, and Miller v. Alabama). (100)
a. Christopher Simmons: The Death Sentence Delinquent
In the 2005 landmark decision of Roper v. Simmons, death sentences for crimes committed by juveniles were held to be unconstitutional. (101) Seventeen-year-old Christopher Simmons, along with two friends, planned a burglary and murder in Missouri. (102) He successfully executed his plan to break into a residence, tie up the victim, and throw her off a bridge to drown. (103) Tried as an adult, a jury found Simmons guilty of murder and recommended a death sentence, adopted by the trial court. (104) After the Missouri Supreme Court agreed to set aside the death sentence and resentence Simmons to life in prison without the possibility of parole, the United States Supreme Court granted certiorari and affirmed, finding that death sentences should only be allowed for the worst offenders with the "extreme culpability" that makes them deserving of capital punishment. (105) The Court further noted that because of the differences between juveniles and adults, juveniles cannot reliably be considered the worst criminals. (106)
b. Terrance Graham: The Incorrigible Imp
The concept that certain sentences for juvenile offenders violates the Eighth Amendment continued to expand in the 2010 case of Graham v. Florida. (107) In this case, Terrance Graham, a child born to crack-addicted parents, had numerous run-ins with the law as a teenager. (108) At age 16, Graham pled guilty in adult court to armed burglary and attempted armed robbery. (109) He promised to turn his life around, and the trial court sentenced him to concurrent three-year terms of probation. (110) Shortly after, Graham was arrested again after participating in a home invasion robbery. (111) For violating his probation, Graham faced a maximum sentence of life in prison. (112) At age 19, the trial court sentenced Graham to the maximum sentence, life imprisonment, for the crimes he had committed while a juvenile. (113) The United States Supreme Court granted certiorari and reversed, finding life sentences without the possibility of parole unconstitutional for juvenile offenders not convicted of homicide. (114)
The Graham court repeatedly emphasized its conclusion: "Life without parole is an especially harsh punishment for a juvenile." (115) But Graham did not provide an absolute guarantee of eventual freedom, adding that states need not release juveniles during their natural lives. (116) Despite its caveat, Graham was yet another step toward fair sentencing for young offenders and the recognition that juvenile offenses should not, by default, dictate that an individual is "incorrigible." (117)
c. Evan Miller: The Misled Murderer
The trend in juvenile sentencing continued in the 2012 case of Miller v. Alabama. (118) Fourteen-year-old Evan Miller, a foster child with crack-addicted parents, hit a neighbor with a baseball bat following a dispute. (119) Miller then lit the neighbor's house on fire, and the neighbor died from his injuries. (120) State law mandated a life sentence with no exception; thus, Miller was bound to die in prison, regardless of whether the trier thought a lesser punishment more appropriate. (121)
The United States Supreme Court granted certiorari and reversed, holding that mandatory life sentences without the possibility of parole for juvenile offenders are unconstitutional. (122) The Miller court relied largely on precedent in justifying its decision, reminding that the Constitution requires juveniles to be considered differently in sentencing. (123) The Court reasoned, "[I]n imposing a State's harshest penalties, a sentencer misses too much if he treats every child as an adult." (124) Notably, the Court expressly stated "a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest penalty for juveniles." (125) Nevertheless, many courts today allow parole boards to determine if punishments should function as life sentences. (126)
A fourth case, Montgomery v. Louisiana, followed the trilogy and clarified the split decisions between states regarding whether Miller should apply to sentences prior to its holding. (127) The Court found that it did apply retroactively, providing pre-Miller defendants relief from their life without parole sentences. (128)
D. SOUTH DAKOTA'S FIRST ATTEMPT TO APPLY MILLER: "[IT] MAY BE A LIFE SENTENCE, BUT IT MAY NOT BE" (129)
The South Dakota Supreme Court's first opportunity to apply Miller occurred in State v. Springer. (130) Recall that Shawn Springer was Jensen's 16-year-old accomplice. (131) Springer plead guilty to kidnapping in exchange for testimony against Jensen. (132) The trial court sentenced him to 261 years in prison with parole eligibility after serving 33 years. (133) In October of 2012, after the release of the Miller decision, Springer filed pro se to have an illegal sentence corrected. (134) He argued that under the juvenile trilogy, his sentence was unconstitutional because it was a de facto life sentence. (135) The trial court denied his motion, and Springer appealed. (136)
On appeal, the South Dakota Supreme Court recognized that in sentencing juveniles, courts must consider the "mitigating qualities of youth" as set out by Miller. (137) However, the Court rejected Springer's argument that Miller applies to his sentence because "[n]either Graham nor Miller explicitly held that they apply to the functional equivalent of life without parole (i.e. "de facto" life sentences)." (138) The Court emphasized that Miller's application only extended to juveniles who received mandatory life sentences without parole, concluding that these cases did not apply to Springer. (139) Springer argued that his sentence was a de facto life sentence because of the South Dakota Supreme Court's holding in State v. Semrad: (140) "[P]arole eligibility estimates are not part of the defendant's sentence because the power to parole is an executive act, not a judicial one." (141) The Court deemed this argument to be without merit. (142) Springer then cited to persuasive holdings in other jurisdictions regarding de facto life sentences, but the Court quickly distinguished Springer from these cases. (143) After clarifying that under Graham, a "meaningful opportunity to obtain release" simply meant "a realistic one[,]" the Court declined to use Springer to adopt or craft any new rules. (144) The Court affirmed Springer's 261-year-sentence; Springer is currently 38 and will be eligible for parole at age 49 in 2029. (145)
E. THROWING AWAY THE KEY: TOUGH-ON-CRIME SOCIETY PRESSURES TO KEEP THE MONSTERS LOCKED UP
Throughout the past decade, the number of juveniles who have committed serious crimes has continued to increase. (146) This, in part, is due to the rise of teenage gangs, an increased use of drugs and firearms, and a growth of violence in schools. (147) Despite the rising level of juvenile crime, Congress has worked to decrease the number of youth in juvenile institutions designed to handle this unique group of offenders, instead filtering them into the purported "better-equipped" adult system. (148)
While no clear answer exists on how to handle these youth, often coined as "hard-core delinquents," monsters, or super-predators, the public alarm regarding the threat they pose to communities and the institutions they reside in continues to rise. (149) As the number of juvenile delinquents grows, public tolerance decreases, demanding the court system to "get tough with hard-core juveniles, to incarcerate them for extended periods of time, and to funnel their cases to the criminal courts despite evidence that this approach will exacerbate the problem in the long run rather than solve it." (150) Consequently, states have shown a preference in prosecuting juvenile offenders in adult court, purporting that the juvenile system does not have appropriate sanctions. (151) To counter the "tough-on-crime" state mentalities, certain protections are now in place to safeguard juvenile offenders from receiving disproportionate sentences for their offenses. (152) Even so, many states have found loopholes around these safeguards through liberal interpretations of phrases such as "meaningful opportunity for release" and "mandatory life sentences on juveniles" are unconstitutional. (153)
F. SOUTH DAKOTA POLICY: PLANS TO REDUCE RECIDIVISM AND HOLD YOUNG OFFENDERS ACCOUNTABLE
In the past several years, South Dakota lawmakers have attempted to address the State's problem with young offenders. (154) One study showed South Dakota as having the second-highest juvenile lock-up rate in the United States. (155) With costs reaching nearly $144,000 annually per juvenile, and almost half of released youth returning to state detention centers within three years, South Dakota approached the issue focusing on cost-effective outcomes. (156)
In 2016, the South Dakota Legislature amended South Dakota Codified Law sections 22-6-1 and 23A-27-1 to comply with precedent. (157) The first amendment removed the requirement of a life sentence without parole for juvenile offenders convicted of Class A or B felonies. (158) The second amendment allowed juveniles to show evidence in mitigation of punishment, urging sentencing courts to weigh the Miller "mitigating qualities of youth." (159)
Shortly after amending its Code, South Dakota went through a complete juvenile justice reform. (160) Known as Senate Bill 73, the law focused on providing accommodations for dangerous youth in facilities while expanding local programs to "reduce recidivism and more effectively hold young offenders accountable." (161) Lawmakers projected the new policies to halve the number of juveniles in state facilities, resulting in significant savings to taxpayers. (162) Just two years after the reform, the numbers on paper appear promising. (163) But to claim that substantial budget cuts and holding juveniles responsible have been the solution to a major delinquency issue likely only embodies the fairytale ending taxpayers want to believe. (164)
Even with the United States Supreme Court trilogy and a statewide juvenile justice reform, the issues regarding the resentencing of juvenile offenders who are now adults remains unsolved and largely unaddressed in South Dakota. (165) The optimism for future juvenile offenders does not translate to those still behind bars for the crimes they committed as youth. (166) South Dakota courts are determined to keep juvenile delinquents behind bars for the foreseeable future--or at least until the parole board deems them fit to return to society. (167) The expectation afforded by Miller and Montgomery was quickly stomped on by the South Dakota Supreme Court. (168)
A. SENTENCING IS A JUDICIAL QUESTION, NOT AN EXECUTIVE ONE
1. State v. Charles
The South Dakota Supreme Court's misinterpretation of the trilogy began at the start of its analysis in Charles:
Charles begins this issue by stating, "The constitution categorically prohibits sentencing a 14-year-old child to die in prison." We disagree. The United States Supreme Court categorically barred the death penalty for juvenile offenders. But the Supreme Court has not held that the Eighth Amendment prohibits a sentence of life in prison without the possibility of parole for a juvenile homicide offender. Nor has the Supreme Court barred discretionary sentences to a lengthy term of years. (169)
Charles argued that his 92-year sentence functions as "a death-in-prison sentence." (170) He also contended that a 92-year sentence is equal to a life without parole sentence because he will not complete his sentence until he is 106-years-old. (171) The Court rejected this argument, instead interpreting the holding in Miller to mean that only mandatory life sentences without parole are barred and that discretionary sentences of life without parole are allowed. (172) Citing its holding in Springer, the Court again declined to join jurisdictions which interpreted the trilogy to include de facto life sentences, but it acknowledged the split authority on the issue. (173) The Court further rejected the argument that Charles's eligibility for parole at age 60 "is a geriatric release" and rejected that his sentence functions as a de facto life without parole sentence. (174) Relying on its interpretation in Springer, the Court interpreted the Graham requirement that juvenile offenders must have a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" to mean only that offenders are given a realistic opportunity to be released. (175) The Court further established that an opportunity to apply for parole is analogous with a "meaningful opportunity for release." (176)
Even if the parole board grants release, whether it be at age 60 or years later, Charles will only have grim prospects for a future, conflicting with the Graham requirement of a meaningful future outside of prison. (177) Other courts have opined that releasing an individual just years before his expected death falls outside the intent of the trilogy. (178) For example, the court in Casiano v. Commissioner of Corrections (179) interpreted the phrase to mean an "opportunity to truly reenter society" and have a "meaningful life outside of prison." (180) It further recognized that releasing a juvenile offender when he is over 70 only allows him a limited number of years in society based on life expectancy calculations. (181) After being incarcerated for all his young and middle-aged adult life, the offender has lost many meaningful opportunities in life, such as marrying, having a family, or completing an education. (182) The Casiano court reasoned that because juvenile offenders were likely incarcerated before having a chance to establish a life or identity, lengthy term-of-years sentences are especially harsh for them. (183)
Unlike the Casiano court, which gave careful consideration to the life juvenile offenders could sustain after prison, the South Dakota Supreme Court observed little remorse for them. (184) While it acknowledged that Charles's "penalty sits on the harsher end of the spectrum[,]" it found that the sentence was not grossly disproportionate to the offense. (185) Evidently, South Dakota adheres to the previously mentioned "letter of the law" approach in interpreting the trilogy. (186) Because the United States Supreme Court did not expressly bar de facto life sentences for juveniles or indicate specifically what a meaningful opportunity entails, the South Dakota Supreme Court presumes such sentences are constitutional. (187)
Likewise, had South Dakota adopted the Iowa Supreme Court's interpretation in Ragland which looked to the spirit of the trilogy, an arguably more just outcome for Charles would have been reached:
Thus, the rationale of Miller, as well as Graham, reveals that the unconstitutional imposition of a mandatory life-without-parole sentence is not fixed by substituting it with a sentence with parole that is the practical equivalent of a life sentence without parole. Oftentimes, it is important that the spirit of the law not be lost in the application of the law. This is one such time. The spirit of the constitutional mandates of Miller and Graham instruct that much more is at stake in the sentencing of juveniles than merely making sure that parole is possible. In light of our increased understanding of the decision making of youths, the sentencing process must be tailored to account in a meaningful way for the attributes of juveniles that are distinct from adult conduct. At the core of all of this also lies the profound sense of what a person loses by beginning to serve a lifetime of incarceration as a youth. In the end, a government system that resolves disputes could hardly call itself a system of justice with a rule that demands individualized sentencing considerations common to all youths apply only to those youths facing a sentence of life without parole and not to those youths facing a sentence of life with no parole until age seventy-eight. Accordingly, we hold Miller applies to sentences that are the functional equivalent of life without parole. (188)
Ragland, who had been convicted of first-degree murder at age 17 and sentenced to mandatory life in prison, was resentenced following Miller and found immediately eligible for parole. (189) The Iowa Supreme Court reasoned that in the spirit of the trilogy, a sentence functioning as a life sentence is a life sentence. (190) It maintained that the possibility of parole alone for juvenile offenders was not sufficient under the trilogy; juvenile offenders must be guaranteed release. (191) The court recognized that because of the lessened culpability and impulsiveness of youth as indicated by data, justice does not allow juvenile offenders to die in prison. (192) Accordingly, Ragland received another meaningful chance at life. (193)
Unfortunately, because South Dakota opted for the technical "letter of the law" approach, South Dakota juvenile offenders may never have a chance to rejoin society. (194) No argument Charles made convinced the South Dakota Supreme Court to reverse the arguably unconstitutional sentence in the spirit of the trilogy. (195) As a result, Charles is left to the mercy of the parole board in determining whether he should ever be released. (196)
2. State v. Jensen
Jensen's arguments received similar dismissal by the South Dakota Supreme Court. Looking to other jurisdictions for support, specifically the Florida Supreme Court's holding in Atwell v. State, (197) Jensen argued that a parole release date slotted years after a natural life span conflicts with Supreme Court precedent. (198) The South Dakota Supreme Court recognized that Jensen, who was sentenced under the old parole system, might remain in prison until his release date at age 116 if the parole board continuously denies release. (199) However, this was a risk the Court was willing to take. (200)
Jensen contended that giving the parole board full discretion in deciding if he receives a life sentence without parole was unconstitutional. (201) He pointed to a statement made by the sentencing court that "it was not as equipped as the parole board to decide when to release Jensen." (202) Consequently, the trial court left Jensen's ultimate sentence at the parole board's discretion. (203) In response, the higher Court declined to take on the issue:
[I]t is not this Court's role to judicially legislate the parole process. The intersection of the parole process and imprisoned juvenile offenders in South Dakota is an issue best left to be examined by the Legislature. The issue is significant indeed. But here, the absence of legislation mandating that our parole board consider the Miller factors does not render Jensen's concurrent, 200-year sentences unconstitutional under the Eighth Amendment. (204)
It further reasoned that because the sentencing court did indeed impose a sentence, the parole board would not be deciding Jensen's sentence. (205) This ignores the reality that the parole board had the authority to decide whether Jensen will be released at age 39 or die in prison. (206)
Once again, the South Dakota Supreme Court's affirmation will allow the parole board to make major decisions regarding a juvenile's life sentence. (207) At the parole board's discretion, Jensen may die in prison. (208)
B. CHILDREN ARE DIFFERENT: THE PAROLE BOARD MUST CONSIDER MITIGATING YOUTH FACTORS
1. State v. Charles
In affirming the sentencing court's statements, the South Dakota Supreme Court disregarded "the mitigating qualities of youth" consideration required by Miller. (209) The Court found no issue with the sentencing court's focus on the crime rather than Charles's progress. (210) The sentencing court referred to the murder as a "premeditated, deliberate, intentional, sniper killing" and relied heavily on its knowledge of the 14-year-old boy who had been tried 20 years prior. (211) Rather than considering Charles's diminished culpability and potential for reform, the court prioritized his shortcomings. (212) The inadequate application of the Miller factors and that Charles had been involved in ongoing rehabilitation and prison programs while demonstrating significant maturity were largely disregarded. (213) Again declining to follow Iowa's lead in Ragland, the South Dakota Supreme Court failed under the trilogy. (214)
2. State v. Jensen
In Jensen, the South Dakota Supreme Court again found that the Miller factors were sufficiently considered in sentencing, despite suspect statements about the culpability of children. (215) Even with a statement directly inconsistent with Miller, "Youth simply isn't an excuse or a way to excuse a criminal offense[,]" the Court concluded that the sentencing court had fully and correctly considered Jensen's sentence under Miller., (216) In response, the Court pointed out that Jensen's youth made him constitutionally different than an adult. (217) However, it rejected that the sentencing court had not fully considered Jensen's age. (218) It found compliance with Miller in the sentencing court briefly discussing that Jensen matured since conviction, had a potential for rehabilitation, and had served a sentence that "amounted to sufficient retribution." (219) The South Dakota Supreme Court failed to address that while the sentencing court may have recognized the Miller factors briefly, the 200-year-sentence did not align with Miller? (220)
In Atwell, the Florida Supreme Court remanded a decision for resentencing after recognizing that the lower court had not sufficiently considered the mitigating factors of youth. (221) The court also found significant that the parole board would not consider these factors in determining release. (222) Jensen emulated this argument, maintaining that since the parole board does not have to adhere to the Miller factors, he would not receive proper consideration at his parole hearing. (223) The Atwell court recognized that largely leaving the length of juvenile sentences up to the parole board fails to provide the individualized sentencing required and expected by Miller, noting that "[t]he current parole process similarly fails to take into account the juvenile status at the time of the offense, and effectively forces juvenile offenders to serve disproportionate sentences of the kind forbidden by Miller.," (224)
The South Dakota Supreme Court rejected the Atwell court's reasoning. (225) Concluding that no jurisdictionally relevant precedent requires the parole board to consider youth-related characteristics in deciding release, the Court declined to follow Atwell or accept Jensen's arguments. (226) Notwithstanding other jurisdictions mandating parole boards to consider the mitigating factors at parole hearings for juvenile offenders, the South Dakota Supreme Court firmly obeyed the letter of the law. (227) As such, when Jensen applies for parole, his Constitutional rights will be violated as he is considered as the adult sitting before them. (228) This certainly was not what the United States Supreme Court intended with the trilogy. (229)
In the novel Frankenstein, Ms. Shelley insightfully noted, "When one creature is murdered, another is immediately deprived of life[.]" (230) When a juvenile is convicted of murder, his entire life is destroyed. Despite research confirming that juveniles who commit heinous offenses are generally not monsters, society still labels them accordingly. (231) Rather, kids convicted of homicide typically come from broken and impoverished homes, have been subject to abuse, and demonstrate severe immaturity and recklessness. (232) Even after making a deadly mistake, studies indicate that delinquents are likely to successfully reform and rehabilitate. (233)
While the spirit of the trilogy urges courts to take heed in sentencing juveniles to die in prison, the letter of the law has allowed South Dakota to technically apply the holdings in a manner that leaves the fate of several juvenile offenders at the complete discretion of the parole board. (234) Instead of mandating that trial courts impose definite sentences within natural life spans, as the spirit of the trilogy mandates, the South Dakota Supreme Court has excused courts from their duties by affirming that parole boards, "the product of unfettered discretion[,]" should decide whether young offenders will die in prison. (235) In the spirit of the trilogy, the uncertainty of Charles's and Jensen's futures is cruel and unusual punishment in itself.
ERICA L. RAMSTAD ([dagger])
([dagger]) J.D. Candidate 2019, University of South Dakota School of Law; B.A. English, 2016, South Dakota State University. Thank you to the Vol. 64 Board of Editors for making Law Review fun; to Mrs. Bargmann, my second-grade teacher, who first sparked my love for writing; to Nathan and Emma, my cheerleaders; and to my parents, who always checked for monsters under my bed. My interest in juveniles, particularly delinquency in kids from broken homes, inspired this article. To the kids who arc serving life sentences, never give up hope.
(1.) MARY WOLLSTONECRAFT SHELLEY, FRANKENSTEIN 79, 115 (1823).
(2.) See generally MONSTERS, INC. (Pixar Animation Studios 2001) (demonstrating the fear of monsters in children).
(5.) See THEY CALL US MONSTERS (BMP Films 2016) (documenting three juvenile offenders who are serving life sentences for murder).
(8.) Michael D. Norman, Discretionary Justice: Decision Making in a State Juvenile Parole Board, 37 Juv. & FAM.CT.J. 19, 19-20(1984).
(9.) Id. at 20.
(10.) Id. The federal parole system was abolished under the Sentencing Reform Act of 1984, eliminating parole for offenders who committed a crime after November of 1987. Monica Steiner, Is There a Federal Parole System?, NOLO (2018), https://www.nolo.com/legal-encyclopedia/is-federal-parole-system.html.
(11.) See Norman, supra note 8, at 20 (describing the parole system as the "unwanted child" because the decisions are "the product of unfettered discretion resulting in decisions that are arbitrary, capricious and often discriminatory"); Sarah French Russell, Review for Release: Juvenile Offenders. State Parole Practices, and the Eighth Amendment, 89 IND. L. J. 373, 376 (2014) (stating that "[m]any parole boards follow unwritten and unpublished rules on significant matters").
(12.) Norman, supra note 8, at 20. See also Sonia Mardarewich, Certainty in a World of Uncertainty: Proposing Statutory Guidance in Sentencing Juveniles to Life without Parole, 16 SCHOLAR 123, 124 (2013) (arguing that there should be framework in sentencing juveniles).
(13.) See, e.g., Roper v. Simmons, 543 U.S. 551 (2005) (holding that death sentences are unconstitutional for crimes committed by juveniles); Graham v. Florida, 560 U.S. 48 (2010) (holding that life sentences without parole for juveniles who have not committed a homicide are unconstitutional); Miller v. Alabama, 567 U.S. 460 (2012) (holding that mandatory life sentences without parole for juveniles are unconstitutional). The United States Supreme Court takes issue with juvenile life sentences because "a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender." Graham, 560 U.S. at 70. Cases prior to the 2000s treat juveniles like adults in sentencing. See, e.g., State v. Pilcher, 655 So. 2d 636 (La. Ct. App. 1995) (holding that a life sentence without possibility of parole for 15-year-old murderer was not unconstitutional under the Eighth Amendment); Swinford v. State, 653 So. 2d 912 (Miss. 1995) (upholding trial court's sentence of life imprisonment for 14-year-old who aided and abetted murder); State v. Garcia, 1997 ND 60, 561 N.W.2d 599, cert, denied, 522 U.S. 874 (1997) (holding that a life sentence without possibility of parole for a 16-year-old did not violate Eighth Amendment); State v. Massey, 803 P.2d 340 (Wash. Ct. App. 1990) (finding no reason to create a distinction between a 13-year old juvenile and an adult who are sentenced to life imprisonment without parole for first degree aggravated murder); Stanford v. Kentucky, 492 U.S. 361 (1989) (upholding death penalty for juveniles who were sixteen and seventeen when they committed murder); State v. Foley, 456 So. 2d 979 (La. 1984) (affirming life sentence without parole of fifteen-year-old convicted of rape); White v. State, 374 So. 2d 843 (Miss. 1979) (upholding a sixteen-year-old's sentence of life imprisonment without parole for armed robbery).
(14.) Miller, 567 U.S. at 476.
(15.) Graham, 560 U.S. at 68-69. The Graham Court noted that "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds...[in] parts of the brain involved in behavior control[.]" Id. at 68. It also noted that "[j]uveniles are more capable of change than are adults[.]" Id.
(17.) Roper, 543 U.S. at 570. Studies also indicate that "[o]nly a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior[.]" See also Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 AM. PSYCHOLOGIST 1009, 1014 (2003) (commenting on the idea that juveniles have less experience with control over their environment).
(18.) (Charles II), 2017 SD 10, 892 N.W.2d 915.
(19.) (Jensen II), 2017 SD 18, 894 N.W.2d 397.
(20.) See Roper, 543 U.S. at 578 (holding that death sentences are unconstitutional for crimes committed by juveniles); Graham, 560 U.S. at 82 (holding that life sentences without parole for juveniles who have not committed a homicide are unconstitutional); Miller, 567 U.S. at 465 (holding that mandatory life sentences without parole for juveniles are unconstitutional). See generally Perry L. Moriearty, The Trilogy and Beyond, 62 S.D. L. REV. 539 (2017) (commenting on the three trilogy cases).
(21.) 567 U.S. 460 (2012).
(22.) Id. at 465.
(23.) Charles II, 2017 SD 10, [paragraph] 1, 892 N.W.2d at 917; Jensen II, 2017 S.D. 18, [paragraph] 1, 894 N.W.2d at 398.
(24.) State v. Charles (Charles I), 2001 SD 67, 628 N.W.2d 734; State v. Jensen (Jensen I), 1998 SD 52, 579 N.W.2d 613.
(25.) Charles I, 2001 SD 67, [paragraph] 2, 628 N.W.2d at 735.
(26.) Charles II, 2017 SD 10, [paragraph] 1, 892 N.W.2d at 917.
(27.) Jensen I, 1998 SD 52, [paragraph][paragraph] 1, 17, 579 N.W.2d at 615-16.
(28.) 136 S. Ct. 718 (2016).
(29.) Jensen II, 2017 SD 18, [paragraph] 1, 894 N.W.2d at 398.
(30.) Id.; Charles II, 2017 SD 10, [paragraph] 1, 892 N.W.2d at 917.
(31.) See Charles II, 2017 SD 10, [paragraph] 11, 892 N.W.2d at 920 ("[Charles's] 92-year sentence is equivalent to a sentence of life without parole because he will be 106 years old before he completes his entire sentence"); Jensen II, 2017 SD 18, [paragraph] 13, 894 N.W.2d at 401 ("Jensen could remain in prison until his presumptive release date at age 116 (well beyond his natural life)").
(32.) Charles II, 2017 SD 10, 892 N.W.2d 915; Jensen II, 2017 SD 18, 894 N.W.2d 397.
(33.) The Board of Pardons and Paroles consists of nine appointed members: three appointed by the Governor, three by the Attorney General, and three by the South Dakota Supreme Court. SOUTH DAKOTA DEP'T OF CORRECTIONS, https://doc.sd.gov/parole/ (last visited Oct. 1, 2018). An attorney must be one of the appointees from each authority. Id.
(34.) Miller v. Alabama, 567 U.S. 460, 489 (2012) (emphasis added).
(35.) See Roper v. Simmons, 543 U.S. 551, 569 (2005) (stating that "differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders"); Graham v. Florida, 560 U.S. 48, 69 (2010) (stating that "when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability"); Miller, 567 U.S. at 471 (stating that "children are constitutionally different from adults for purposes of sentencing...[b]ecause juveniles have diminished culpability and greater prospects for reform").
(36.) 543 U.S. 551, 578 (2005).
(37.) 560 U.S. 48, 82 (2010).
(38.) Miller, 567 U.S. at 465.
(39.) Norman, supra note 8, at 20.
(40.) See infra Part II A (providing the facts and procedural history of State v. Charles and Stale v. Jensen).
(41.) See infra Part II B (discussing parole boards).
(42.) See infra Pan II C (discussing United States Supreme Court sentencing trends).
(43.) See infra Part II D (discussing South Dakota cases).
(44.) See infra Part II E (discussing South Dakota policy issues).
(45.) See infra Part III A (analyzing sentencing as a judicial question).
(46.) See infra Part III B (analyzing the mitigating factors of youth).
(47.) See infra Part IV (concluding the comment).
(48.) Charles I, 2001 SD 67, 628 N.W.2d 734; Jensen I, 1998 SD 52, 579 N.W.2d 613.
(49.) Charles I, 2001 SD 67, [paragraph] 2, 628 N.W.2d at 735.
(52.) Id. [paragraph] 4, 628 N.W.2d at 736.
(53.) Id. [paragraph] 5, 628 N.W.2d at 736.
(54.) Id, [paragraph][paragraph] 5-6, 628 N.W.2d at 736.
(55.) Id. [paragraph] 7, 628 N.W.2d at 736.
(56.) Id. [paragraph] 8, 628 N.W.2d at 736.
(57.) Id. [paragraph] 9, 628 N.W.2d at 736.
(58.) Id. [paragraph] 1, 628 N.W.2d at 735.
(59.) Charles II, 2017 SD 10, [paragraph] 1, 892 N.W.2d 915, 917.
(60.) Id. [paragraph] 3, 892 N.W.2d at 917.
(61.) Id. [paragraph] 4, 892 N.W.2d at 918.
(62.) Id. [paragraph] 8, 892 N.W. 2d at 919.
(63.) Id. [paragraph] 1, 892 N.W.2d at 917.
(64.) Id. [paragraph], 11, 892 N.W.2d at 920.
(65.) Jensen I, 1998 SD 52, [paragraph] 3, 579 N.W.2d 613, 615.
(66.) Id. [paragraph][paragraph] 11-12, 579 N.W.2d at 616.
(67.) Id. [paragraph] 12, 579 N.W.2d at 616.
(69.) Id. [paragraph] 13, 579 N.W.2d at 616.
(71.) Id. [paragraph] 14, 579 N.W.2d at 616.
(73.) Id. [paragraph] 15, 579 N.W.2d at 616.
(74.) Id. [paragraph] 16, 579 N.W.2d at 616.
(75.) Id. [paragraph] 17, 579 N.W.2d at 616.
(76.) Id. Interestingly, the parole issue, or lack thereof, was addressed in a footnote by the 1998 Jensen court:
Jensen argues that the public would be shocked to learn that he "must now spend the rest of his life in prison without any chance of freedom." However, the public, acting through its elected representatives has decided that murder mandates the sentence that Jensen received. Moreover, the characterization of his plight as "without any chance of freedom" is not entirely accurate. There is always the chance the legislature will pass new laws that will lessen Jensen's term in prison. The governor also has the power to commute a life sentence to a lesser sentence that includes the possibility of parole.
Id. [paragraph] 62, 579 N.W.2d at 624 n. 1.
(77.) Id. [paragraph] 70, 579 N.W.2d at 625.
(78.) Jensen II, 2017 SD 18, 894 N.W.2d 397.
(79.) Id. [paragraph] 1, 894 N.W.2d at 398.
(80.) Id. [paragraph] 7, 894 N.W.2d at 399.
(81.) Id. [paragraph] 1, 894 N.W.2d at 398.
(82.) Id. [paragraph] 6, 894 N.W.2d at 399.
(83.) Daniel Jones, Technical Difficulties: Why a Broader Reading of Graham and Miller Should Prohibit De Facto Life without Parole Sentences for Juvenile Offenders, 90 ST. JOHN'S L. REV. 169, 170-71 (2016).
(84.) Id. at 171.
(86.) See Norman, supra note 8, at 20 (calling parole boards the "unwanted child" of the justice system).
(87.) Id. at 19-20.
(88.) See William W. Berry III, Life-with-Hope Sentencing: The Argument for Replacing Life-Without-Parole Sentences with Presumptive life Sentences, 76 OHIO ST. L. J. 1051, 1055-56 (2015) (noting that "the perception that offenders served significantly less time than the length of their sentences because of lenient parole boards resulted in many states abolishing parole"). See generally ADAM BENFORADO, UNFAIR: THE NEW SCIENCE OF CRIMINAL INJUSTICE (2015) (explaining that hidden biases below our conscious awareness can result in criminal injustice).
(89.) See generally BENFORADO, supra note 88 (purporting that something as simple as a certain facial feature or single word choice can create bias).
(90.) S.D.C.L. [section] 24-13-7(2018).
(91.) Norman, supra note 8, at 20.
(92.) S.D.C.L. [section] 24-15A (2018).
(93.) Jensen II, 2017 SD 18, [paragraph] 5, 894 N.W.2d 397, 399.
(96.) Jensen also received a "good time" release date, but it is not until 2097--well past his natural lifespan.
(97.) E.g., Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48 (2010); Miller v. Alabama, 567 U.S. 460 (2012). "[C]hildren cannot be viewed simply as miniature adults." Miller, 567 U.S. at 481.
(98.) See Stanford v. Kentucky, 492 U.S. 361, 380 (1989) (finding capital punishment for juvenile offenders constitutional). The trend shifted following Atkins v. Virginia, which barred the death penalty for mentally disabled offenders. 536 U.S. 304, 321 (2002).
(99.) Miller, 567 U.S. at 471.
(100.) Roper, 543 U.S. 551; Graham, 560 U.S. 48; Miller, 567 U.S. 460. See generally Moriearty, supra note 20 (presenting further analysis on the cases).
(101.) Roper, 543 U.S. at 578.
(102.) Id. at 556.
(103.) Id. at 556-58.
(104.) Id. at 558. Despite defense counsel's argument that Simmons' age should make "a huge difference to [the jurors] in deciding just what exactly sort of punishment to make[,]" the jury recommended a death sentence. Id.
(105.) Id. at 568.
(106.) Id. at 569. The Court specified three general differences between juvenile and adult offenders. Id. The first difference is a lack of maturity, which often leads to impulsive decisions. Id. The next difference is that juveniles are more likely to give in to peer pressure and other "negative influences." Id. Finally, the character of a youth is not as developed as in adults. Id. at 570.
(107.) Graham v. Florida, 560 U.S. 48 (2010). See U.S. CONST, amend. VIII (prohibiting cruel and unusual punishments).
(108.) Graham, 560 U.S. at 53-55.
(109.) Id. at 53-54.
(110.) Id. at 54.
(111.) Id. at 55.
(112.) Id. at 56. State law mandated that the minimum sentence Graham could receive was five years. Id. Graham's lawyer requested the minimum. Id. The presentence report recommended Graham receive four years in prison, and the state recommended a total of 45 years. Id. Since the state had abolished its parole system, Graham had no possibility of release. Id. at 57.
(113.) Id. A Florida appellate court affirmed that his violent offenses "were not committed by a pre-teen, but a seventeen-year-old who was ultimately sentenced at the age of nineteen" and that Graham "was incapable of rehabilitation." Id. at 58.
(114.) Id. at 78-79. The Court commented:
Terrance Graham's sentence guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes. The State has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was child in the eyes of the law. This the Eighth Amendment does not permit.
Id. at 79. The Court also recognized the unlikeliness of self-improvement for young defendants sentenced to life imprisonment without parole: "[the sentence] means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days." Id. at 70 (citation omitted).
(115.) Id. The Court added that "Graham deserved to be separated from society for some time...but it does not follow that he would be a risk to society for the rest of his life....A life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity." Id. at 73. See, e.g., Sullivan v. Florida, 560 U.S. 181 (2010) (cert, granted but later dismissed) (sentencing a thirteen-year-old to a life sentence without parole for sexual battery).
(116.) Graham, 560 U.S. at 74. "[W]hile 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...[i]t does prohibit States from making the judgment at the outset that those offenders never will be fit to reenter society." Id. at 75.
(117.) Id. at 76. Arguably, Miller overruled this caveat. See, e.g., Miller v. Alabama, 567 U.S. 460 (2012) (holding that mandatory life sentences without parole for juveniles are unconstitutional). A strong dissent in Graham emanates the pre-2000 attitude that encouraged harsh juvenile sentencing: "[T]here is virtually no indication that the Cruel and Unusual Punishments Clause originally was understood to require proportionality in sentencing." Graham, 560 U.S. at 99 (Thomas, J., dissenting). Justice Thomas further argued, "The integrity of our criminal justice system depends on the ability of citizens to stand between the defendant and an outraged public and dispassionately determine his guilt and the proper amount of punishment based on the evidence presented." Id. at 118. In Justice Stevens' concurrence, he recognized that "[s]ociety changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time[.]" Id. at 85.
(118.) 567 U.S. 460(2012).
(119.) Id. at 467-68.
(120.) Id. This decision consolidated the cases of two 14-year-old defendants who were convicted of murder and received life sentences without parole. The other petitioner, 14-year-old Kuntrell Jackson, robbed a store with several other boys, which resulted in the clerk being shot and killed. Id. at 465-66.
(121.) Id. at 466. Prior to Miller, 29 jurisdictions had life-without-parole sentences mandatory for some juveniles convicted of murder in adult court. Id. at 482.
(122.) Id. at 489.
(123.) Id. at 471.
(124.) Id. at 477. See also Johnson v. Texas, 509 U.S. 350, 367 (1993) (noting that those sentencing should be able to consider the "mitigating qualities of youth"); Eddings v. Oklahoma, 455 U.S. 104, 115 (1982) (stating that "youth is more than a chronological fact"); J.D.B. v. North Carolina, 564 U.S. 261, 274 (2011) (stating that "children cannot be viewed simply as miniature adults").
(125.) Miller, 567 U.S. at 489 (emphasis added).
(126.) E.g., Charles II, 2017 SD 10, 892 N.W.2d 915; Jensen II, 2017 SD 18, 894 N.W.2d 397.
(127.) Montgomery v. Louisiana, 136 S. Ct. 718, 735-36 (2016).
(129.) State v. Springer, 2014 SD 80, [paragraph] 19, 856 N.W.2d 460, 467 (emphasis omitted).
(130.) Id. [paragraph] 6, 856 N.W.2d at 463. This was also the only opportunity before Charles and Jensen. Springer was also decided prior to the holding in Montgomery that Miller applied retroactively.
(131.) Jensen I, 1998 SD 52, [paragraph] 3,579 N.W.2d 613, 615. Accordingly, the facts are the same. Id.
(132.) Springer, 2014 SD 80, [paragraph] 3, 856 N.W.2d at 461.
(133.) Id. [paragraph] 5, 856 N.W.2d at 462. The trial judge stated, "I am going to impose a sentence in this case that may be a life sentence, but it may not be." Id. [paragraph] 5, 856 N.W.2d at 462. Springer would be parole eligible at age 49 if he "convince[d] someone in the future that [he could] be trusted to be back out of prison." Id. [paragraph] 5, 856 N.W.2d at 463.
(134.) Id. [paragraph] 7, 856 N.W.2d at 463.
(135.) Id. [paragraph] 9, 856 N.W.2d at 463.
(136.) Id. [paragraph] 7,856 N.W.2d at 463.
(137.) Id.[paragraph] 14, 856 N.W.2d at 465. The Court recognized "a shift in the nation's moral tolerance" regarding sentencing juvenile offenders in adult court. Id. [paragraph] 13, 856 N.W.2d at 465.
(138.) Id. [paragraph] 15, 856 N.W.2d at 466.
(139.) Id. [paragraph] 16, 856 N.W.2d at 466.
(140.) 2011 SD 7, 794 N.W.2d 760.
(141.) Springer, 2014 SD 80, [paragraph] 17, 856 N.W.2d at 467.
(142.) Id. [paragraph] 19, 856 N.W.2d at 467. Nevertheless, the Court commented, "We are not implying that a lengthy term-of-years sentence, like the 261 -year sentence here, can never be a de facto life sentence." Id. [paragraph] 25, 856 N.W.2d at 470 n.8.
(143.) See People v. Caballero, 282 P.3d 291, 293 (Cal. 2012) (holding that a de facto life sentence is one where the defendant's parole eligibility date falls outside of the defendant's life expectancy); State v. Ragland, 836 N.W.2d 107, 119 (Iowa 2013) (holding that Miller applies "not only to mandatory life sentences without parole, but also to the practical equivalent of life-without-parole sentences").
(144.) Springer, 2014 SD 80, [paragraph][paragraph] 23, 25, 856 N.W.2d at 469-70 (emphasis omitted). The Court noted, "Springer did not receive life without parole or a de facto life sentence because he has the opportunity for release at age 49." Id. [paragraph] 25, 856 N.W.2d at 470.
(145.) Id. [paragraph] 5, 856 N.W.2d at 462-63.
(146.) RAYMOND L. MANELI.A, THE HARD-CORE JUVENILE OFFENDER 1 (1977); Steven D. Levitt, Juvenile Crime and Punishment, 106 J. POL. ECON. 1156, 1156 (1998). Approximately one in five arrests is a juvenile. Brian A. Jacob & Lars Lefgren, Are Idle Hands the Devil's Workshop? Incapacitation, Concentration and Juvenile Crime, NAT'L BUREAU OF ECON. RES. 1, 1 (2003), http://www.nber.org/papers/w9653.
(147.) MANELLA, supra note 146, at 1.
(148.) Id. at 4; THE PEW CHARITABLE TRUSTS, PUBLIC SAFETY PERFORMANCE PROJECT: SOUTH DAKOTA'S 2015 JUVENILE JUSTICE REFORM 1-2 (2016) [hereinafter South Dakota Reform].
(149.) MANELLA, supra note 146, at 5; Levitt, supra note 146, at 1157. The Roper court responded to state pressures to punish juveniles to the extent of the law: "[w]hether viewed as an attempt to express the community's moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult." Roper v. Simmons, 543 U.S. 551, 571 (2005).
(150.) MANKLLA, supra note 146, at 4.
(151.) E.g., Graham v. Florida, 560 U.S. 48 (2010). In sentencing the juvenile to life for a nonhomicide, the trial court stated: "I don't see where any further juvenile sanctions would be appropriate. I don't see where any youthful offender sanctions would be appropriate." Id. at 57. On review, the Graham court recognized that
Many States have chosen to move away from juvenile court systems and to allow juveniles to be transferred to, or charged directly in, adult court under certain circumstances. Once in adult court, a juvenile offender may receive the same sentence as would be given to an adult offender, including a life without parole sentence.
Id. at 66-67. See also Miller v. Alabama, 567 U.S. 460, 486(2012) (recognizing that "some of those States set no minimum age for who may be transferred to adult court... thus applying life-without-parole mandates to children of any age--be it 17 or 14 or 10 or 6"). Many states require a child convicted in juvenile court to be released by age 21, which explains why states prefer to prosecute hard-core offenders in the adult system. Id. at 488.
(152.) See generally Joanna Cohn Weiss, Tough on Crime: How Campaigns for Stale Judiciary Violate Criminal Defendants' Due Process Rights, 81 N.Y.U. L. REV. 1101 (2006) (describing how states focused on being tough-on-crime can result in injustice).
(153.) State v. Springer, 2014 SD 80, [paragraph][paragraph] 13, 23, 856 N.W.2d 460, 465, 469.
(154.) South Dakota Reform, supra note 148, at 1.
(156.) Id. See JUVENILE JUSTICE REINVESTMENT INITIATIVE, http://jjri.sd.gov/ (last visited Oct. 1, 2018) (stating that one of the goals of the reform was to "reduce costs by investing in proven community-based practices while saving residential facilities for more serious offenders").
(157.) S.D.C.L. [section] 22-6-1 (2018); S.D.C.L. [section] 23A-27-1 (2018).
(158.) State v. Springer, 2014 SD 80, [paragraph] 14, 856 N.W.2d 460, 465.
(160.) See generally South Dakota Reform, supra note 148 (overhauling South Dakota's juvenile justice system).
(161.) Id. According to Governor Dennis Daugaard, "Senate Bill 73 represents an important step forward for juvenile justice in South Dakota. The passage of this bill will lead to less crime, lower costs for taxpayers, and better outcomes for South Dakota's youth and families." Id. Chief Justice Gilbertson commented, "The goal is to have fewer youth coming into our court system while at the same time providing more resources for our court services officers to hold juvenile probationers accountable and address their behaviors in the community, rather than in expensive residential facilities." Id.
(164.) See Juvenile Justice Reform 'on the right track' in South Dakota, BLACK HILLS FOX (Dec. 18, 2017), http://www.blackhillsfox.com/content/news/464982953.html (reporting that since 2014 "new commitments to the Department of Corrections have declined 56 percent and the number of recommitments has declined by two-thirds"). But see Angela Kennecke, Juvenile Reforms: Less Punishment = More Crime, KELOLAND NEWS (Mar. 30, 2017), http://www.keloland.com/news/article/investigates/juvenile-refonns-less-punishment-more-crinie (reporting that in 2015, 409 charges were filed against juveniles in Minnehaha County and in 2016, 605 charges were filed against juveniles). After the reform, unless the kids "[present] a danger to somebody else then [the police] don't have the ability to commit them." Id.
(165.) E.g., Charles II, 2017 SD 10, 892 N.W.2d 915; Jensen II, 2017 SD 18, 894 N.W.2d 397.
(166.) E.g., Charles II, 2017 SD 10, 892 N.W.2d 915; Jensen 11, 2017 SD 18, 894 N.W.2d 397.
(167.) E.g., Charles 11, 2017 SD 10, 892 N.W.2d 915; Jensen II, 2017 SD 18, 894 N.W.2d 397.
(168.) E.g., Charles 11, 2017 SD 10, 892 N.W.2d 915; Jensen II, 2017 SD 18, 894 N.W.2d 397.
(169.) Charles II, 2017 SD 10, [paragraph] 9, 892 N.W.2d at 919 (internal citations omitted).
(170.) Id. [paragraph] 10, 892 N.W.2d at 919.
(171.) Id. [paragraph] 11, 892 N.W.2d at 920.
(172.) Id. 112, 892 N.W.2d at 920.
(173.) Id. [paragraph] 13, 892 N.W.2d at 920. See also People v. Caballero, 282 P.3d 291, 295 (Cal. 2012) (holding that a de facto life sentence is one where the defendant's parole eligibility date falls outside of the defendant's life expectancy); State v. Ragland, 836 N.W.2d 107, 118 (Iowa 2013) (holding that Miller applies "not only to mandatory life sentences without parole, but also to the practical equivalent of life-without-parole sentences").
(174.) Charles II, 2017 SD 10, [paragraph] 11, 892 N.W.2d at 920.
(175.) Id. [paragraph] 15, 892 N.W.2d at 921.
(177.) But see id. (stating that Charles could have a meaningful life outside of prison).
(178.) E.g., Casiano v. Comm'r of Corr., 115 A.3d 1031, 1047 (Conn. 2015).
(181.) Id. at 1046.
(184.) Charles II, 2017 SD 10, [paragraph] 130, 892 N.W.2d 915, 924.
(186.) See Jones, supra note 83, at 171 (explaining the letter of the law approach).
(187.) See id. (stating that the letter of the law approach applies the law technically).
(188.) State v. Ragland, 836 N.W.2d 107, 121-22 (Iowa 2013).
(189.) Id. at 113.
(190.) Id. at 121-22.
(194.) See Charles II, 2017 SD 10, [paragraph] 30, 892 N.W.2d 915, 924 (allowing the parole board to decide release).
(195.) Id. [paragraph] 25, 892 N.W.2d at 923.
(196.) Id. [paragraph] 16, 892 N.W.2d at 921.
(197.) 197 So. 3d 1040, 1048 (Fla. 2016).
(199.) Jensen 11, 2017 SD 18, [paragraph] 13, 894 N.W.2d 397, 401. For those sentenced under the old parole system, release is at the discretion of the parole board. Id. The new parole system guarantees release without a parole board appearance if the prisoner follows prison protocol during his or her sentence. Id.
(200.) Id. [paragraph] 13, 894 N.W.2d at 401.
(201.) Id. [paragraph] 17, 894 N.W.2d at 402.
(202.) Id. [paragraph] 19, 894 N.W.2d at 402. Specifically, the sentencing court said: "Actually, that's what our parole system is. Maybe this [c]ourt doesn't sit as a parole board. The [c]ourt probably isn't well equipped to perform that function." Id. 122, 894 N.W.2d at 403.
(203.) Id. [paragraph] 19, 894 N.W.2d at 402.
(204.) Id. [paragraph] 18, 894 N.W.2d at 402.
(205.) Id. [paragraph] 22, 894 N.W.2d at 403.
(208.) Id. [paragraph] 1, 894 N.W.2d at 398.
(209.) Charles II, 2017 SD 10, [paragraph][paragraph] 4-7, 892 N.W.2d 915, 918-19.
(211.) Id. [paragraph] 22, 892 N.W.2d at 923. In its opinion, the South Dakota Supreme Court heavily cited the sentencing court. The sentencing court found it "impossible to engage the sincerity of Daniel Charles' remorse or expressions of changed behavior" and that it "did not find the characteristics of youth universally applicable to each and every juvenile, whether that juvenile is a murderer or a prodigy." Id. [paragraph][paragraph] 5, 23, 892 N.W.2d at 918, 923 (quotations omitted). It contended that "the general characteristics of youth did not cause Charles to pull the trigger" and that "Charles's murder of [his stepfather] was not 'inexorably determined by youthful brain or underdeveloped character.'" Id. [paragraph] 5, 892 N.W.2d at 918. Because Charles, then fourteen, was not a "child of tender years when he murdered his father[,]" the court concluded that "this was a cold-blooded murder, driven less by impulsivity than by a specific, long-formed intent to murder either [his stepfather] or his mother or others." Id. Ultimately, the sentencing court reasoned that the seriousness of the offense "is great, notwithstanding any lessened moral culpability associated with mitigating qualities of youth" and that "[s]ociety's not yet safe for Mr. Charles." Id. 17, 892 N.W.2d at 919.
(213.) Id. [paragraph] 3, 892 N.W.2d at 917-18.
(214.) See State v. Ragland, 836 N.W.2d 107, 119 (Iowa 2013) (holding that a juvenile offender must be released).
(215.) Jensen II, 2017 SD 18, [paragraph] 18, 894 N.W.2d 397, 402.
(216.) Id. [paragraph] 10, 894 N.W.2d at 400.
(219.) Id. 112, 894 N.W.2d at 400-01.
(220.) See generally Miller v. Alabama, 567 U.S. 460 (2012) (requiring courts to consider the mitigating factors of youth). The sentencing court felt Jensen "has a great deal yet that he needs to accomplish and to prove that he can function in society as a positive member of society[.]" Jensen II, 2017 SD 18, [paragraph] 12, 894 N.W.2d at 401.
(221.) Atwell v. State, 197 So. 3d 1040, 1048 (Fla. 2016).
(223.) Jensen II, 2017 SD 18, [paragraph] 15, 894 N.W.2d at 401.
(224.) Atwell, 197 So. 3d at 1042.
(225.) Jensen II, 2017 SD 18, [paragraph] 16, 894 N.W.2d at 402.
(227.) See generally Cal. Penal Code [section] 4801(c) (requiring the board to give weight to the offender's diminished culpability for crimes committed under age 25).
(228.) This is assuming Jensen is even granted an appearance in front of the Board.
(229.) Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48 (2010); Miller v. Alabama, 567 U.S. 460 (2012).
(230.) SHELLEY, supra note 1, at 69.
(231.) THEY CALL US MONSTERS (BMP Films 2016).
(233.) Graham, 560 U.S. at 68-69.
(234.) See Jones, supra note 83, at 171 (describing how letter of the law is a technical approach).
(235.) Norman, supra note 8, at 20.
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|Author:||Ramstad, Erica L.|
|Publication:||South Dakota Law Review|
|Date:||Mar 22, 2019|
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