Readers of this blog know well the series of cases beginning with Roper v. Simmons and running all the way through Montgomery v. Louisiana. The thread running through each case is that kids are different from adults and, so, should be treated differently – at least at sentencing.
But this string of cases raises as many questions as it offers answers. In Graham v. Florida, the Supreme Court barred LWOP sentences for juveniles convicted of non-homicide offenses and in Miller v. Alabama, it barred mandatory LWOP sentences for juveniles convicted of first-degree murder. But what, exactly, constitutes a sentence of life without parole? At first blush, this seems simple enough. An LWOP sentence for first-degree murder obviously qualifies. But what about a sentence of 60 years in prison? If, based on actuarial calculations, an average 16-year-old would die before serving a 60-year sentence, would that sentence qualify as the equivalent of LWOP? What about two consecutive sentences for non-homicide convictions that result in 60 years of imprisonment? As you can see, the question of what qualifies as LWOP can quickly become complicated.
But on October 6, 2020, the North Carolina Court of Appeals offered answers or, more specifically, a framework for answering this question. In State v. Kelliher, the defendant – a juvenile on the offense date – was convicted of two counts of first-degree murder. At the conclusion of a post-Miller re-sentencing hearing, the trial judge imposed two sentences of life in prison with the possibility of parole. However, the judge set the sentences to run consecutively, meaning that the defendant would not be eligible for parole until he had served 50 years in prison.
The Court first observed that the question of what constitutes LWOP had resulted in a split of authority around the country. Most courts have ruled that lengthy term-of-years sentences could give rise to 8th Amendment claims. Others have not. In Kelliher, the Court of Appeals sided with the majority of jurisdictions holding that so-called “de facto LWOP” sentences for juveniles who are capable of reform would violate the 8th Amendment. In so holding, the Court declined to rely on the “simple formalism” that a lengthy term-of-years sentence could not qualify as an LWOP sentence solely because it was not officially labeled LWOP or did not have a specific end date.
The Court then held that aggregate consecutive sentences that result in the functional equivalent of life without parole could violate the 8th Amendment. According to the Court, the focus of the Roper line of cases was “the offender, not on the crime or crimes committed.” The Court then observed that North Carolina statutes supported the view that aggregate sentences could violate the 8th Amendment. Although a defendant might be given consecutive sentences for multiple convictions, N.C. Gen. Stat. § 15A-1354(b) requires the prison system to “treat the defendant as though he has been committed for a single term[.]”
Finally, the Court held that the sentences imposed in Kelliher violated the 8th Amendment. According to the structure of the sentences, the defendant would not be eligible for parole until he had served 50 years in prison. The Court noted that the defendant was 17-years-old on the offense date and, so, would not be eligible for parole until after the retirement age of 65. The Court also noted that the General Assembly “offered some indication” of what would not amount to a de facto LWOP sentence when it granted parole eligibility after 25 years in prison for those defendants sentenced to life with parole. See N.C. Gen. Stat. §§ 15A-1340.19A and 15A-1340.19B(a)(1). In the end, the Court remanded the convictions to superior court for imposition of two concurrent sentences of life with parole.
At this point, the State will undoubtedly seek review in the Supreme Court of North Carolina. That Court may well grant it. In the meantime, the Court of Appeals has taken a side in the de facto LWOP debate.
Written by, David Andrews. David W. Andrews is an Assistant Appellate Defender in the North Carolina Office of the Appellate Defender (OAD), a division of the Office of Indigent Defense Services. OAD staff attorneys represent indigent clients in criminal, juvenile delinquency, and involuntary commitment appeals to the Court of Appeals of North Carolina and the Supreme Court of North Carolina.