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Willbanks v. Missouri Department of Corrections

Supreme Court of Missouri, En Banc

July 11, 2017


         APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Daniel R. Green, Judge

          Mary R. Russell, Judge

         Timothy S. Willbanks was 17 years old when he was charged with kidnapping, first-degree assault, two counts of first-degree robbery, and three counts of armed criminal action. He was convicted and sentenced to consecutive prison terms of 15 years for the kidnapping count, life for the assault count, 20 years for each of the two robbery counts, and 100 years for each of the three armed criminal action counts. On appeal, he argues his sentences, in the aggregate, will result in the functional equivalent of a life without parole sentence. He contends Missouri's mandatory minimum parole statutes and regulations violate his right to be free from cruel and unusual punishment as protected under the Eighth Amendment to the United States Constitution in light of Graham v. Florida, 560 U.S. 48 (2010).

         This Court holds that Missouri's mandatory minimum parole statutes and regulations are constitutionally valid under the Supreme Court of the United States's opinion in Graham. Graham held that the Eighth Amendment barred sentencing a juvenile to a single sentence of life without parole for a nonhomicide offense. Because Graham did not address juveniles who were convicted of multiple nonhomicide offenses and received multiple fixed-term sentences, as Willbanks had, Graham is not controlling. The trial court's judgment is affirmed.[1]

         Factual and Procedural Background

         Willbanks was 17 years old when he devised a plan with two other individuals to steal a car. Carrying a sawed-off shotgun, Willbanks approached a woman in the parking lot of her apartment building. After ordering her to get in the driver's seat of her car, he climbed in the back seat and directed her to drive to an ATM, where he took all the money from her account. When the victim failed to follow Willbanks's driving instructions, he became angry, ordered her to stop the car, and forced her into the trunk.

         Willbanks drove to a different location. Once he released the victim from the trunk, he took her jewelry and other belongings. Willbanks told his accomplices, who had followed in a separate car, that he wanted to shoot the victim, but they told him to leave her alone. At Willbanks's direction, the victim began to walk away from them, and as she did, Willbanks shot her four times. Willbanks and his accomplices then left her and drove away. The victim crawled for 40 minutes to get help despite injuries to her right arm, shoulder, back, and head. The victim survived the ordeal, but she was left with permanent disfigurement and irreparable injuries.

         After the victim picked Willbanks out of a photograph lineup, the police arrested him and his accomplices, and all three gave consistent confessions. A jury convicted Willbanks of one count of kidnapping, one count of first-degree assault, two counts of first-degree robbery, and three counts of armed criminal action. The trial court imposed prison sentences of 15 years for kidnapping, life imprisonment for first-degree assault, 20 years for each robbery count, and 100 years for each armed criminal action count, and set these terms to run consecutively.

         Willbanks's convictions and sentences were affirmed on direct appeal, State v. Willbanks, 75 S.W.3d 333 (Mo. App. 2002), and his motion for postconviction relief was overruled. Willbanks v. State, 167 S.W.3d 789 (Mo. App. 2005). He then filed a petition for a writ of habeas corpus in the Cole County Circuit Court, arguing his aggregated sentences amounted to the functional equivalent of a life without parole sentence and violated his Eighth Amendment rights under Graham. The trial court denied the petition, indicating the proper avenue for the relief Willbanks sought was through a declaratory judgment action.

          Accordingly, Willbanks filed another petition, in which he requested a judgment declaring that section 558.019.3[2] and 14 CSR 80-2.010, which require offenders to serve specific percentages of their sentences before they become parole-eligible, are unconstitutional as applied to him. He alleged, under the current Missouri parole statutes and regulations, he does not have a meaningful opportunity to obtain release because he does not become parole eligible until he is approximately 85 years old. Willbanks requested a hearing to present evidence in support of these allegations.

         The Department of Corrections ("DOC") answered the petition and sought judgment on the pleadings. The trial court sustained DOC's motion, finding Willbanks's case was distinguishable from Graham because Graham involved a single sentence of life without parole for one offense and Willbanks was convicted of seven separate felonies and received seven consecutive sentences as a result. Willbanks appeals.[3]

         Standard of Review

         The constitutional validity of a statute is a question of law, which this Court reviews de novo. State v. Honeycutt, 421 S.W.3d 410, 414 (Mo. banc 2013). A statute is presumed to be valid and will not be held unconstitutional absent a clear contravention of a constitutional provision. Id.

         Legal Background

         The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. When reviewing whether a punishment is cruel and unusual, "courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society." Graham, 560 U.S. at 58 (citations and quotation marks omitted).

         In the last decade, the Supreme Court has issued a series of opinions concerning the constitutional validity of punishments for offenders who were younger than 18 years of age at the time they committed crimes. In Roper v. Simmons, 543 U.S. 551, 578 (2005), the Supreme Court affirmed a holding from this Court that the Eighth and Fourteenth Amendments barred the execution of juvenile offenders. Five years later in Graham, the Supreme Court held that the Eighth Amendment barred courts from sentencing juvenile nonhomicide offenders to life without parole. 560 U.S. at 75. Graham was expanded to prohibit homicide juvenile offenders from being subject to a mandatory sentence of life without parole in Miller v. Alabama, 132 S.Ct. 2455, 2464 (2012). Most recently, the Supreme Court ruled in Montgomery v. Louisiana, 136 S.Ct. 718, 732 (2016), that Miller's new substantive rule must be applied retroactively on collateral review for juvenile offenders sentenced to mandatory life without parole.


         Willbanks argues Missouri's statutes and regulations requiring offenders to serve a percentage of their total sentence before being eligible for parole are unconstitutional when applied to him as he is denied parole eligibility until past his natural life expectancy.[4] According to Willbanks, pursuant to Missouri's parole statutes and regulations, his aggregated sentences for seven nonhomicide offenses prevent him from having a "meaningful opportunity to obtain release" as required by Graham. 560 U.S. at 75.

         Willbanks's argument is misplaced as Graham concerned "juvenile offenders sentenced to life without parole solely for a nonhomicide offense." Id. at 63 (emphasis added). In Graham, the juvenile offender was convicted of two nonhomicide crimes, armed burglary and attempted armed robbery, and was sentenced to life imprisonment and 15 years for each respective charge.[5] Id. at 57. The Supreme Court held that the Eighth Amendment prohibits juvenile nonhomicide offenders from being sentenced to life without parole. Id. at 82. Importantly, "[a] State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term." Id. (emphasis added).

         Graham's facts involved (1) a juvenile offender (2) who committed a nonhomicide crime and (3) was sentenced to life without parole. Although Willbanks was younger than 18 years old at the time he committed his nonhomicide crimes, he was not sentenced to life without parole. His argument is Graham applies to him as he was convicted of multiple crimes and sentenced to multiple fixed-term periods that, in the aggregate, total more than his life expectancy. Willbanks contends, under Missouri's mandatory minimum parole statutes and regulations, his life sentence plus multiple fixed-year terms are the "functional equivalent of life without parole" because they prevent him from being eligible for parole until he is approximately 85 years old.

         Whether multiple fixed-term sentences, which total beyond a juvenile offender's life expectancy, should be considered the functional equivalent of life without parole is a question of first impression for this Court. Graham prohibits a life without parole sentence because it

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.

Id. at 79.

         Requiring inmates to serve a mandatory minimum percent of their sentence is not inherently unconstitutional. See, e.g., State v. Pribble, 285 S.W.3d 310, 314 (Mo. banc 2009) (holding that a five-year mandatory minimum parole ineligibility period does not "run[] afoul of cruel and unusual punishment"). But the Supreme Court has advised states are prohibited by the Eighth Amendment "from making the judgment at the outset that those offenders never will be fit to reenter society." Graham, 560 U.S. at 75. Yet Graham did not address juvenile offenders who, like Willbanks, were sentenced to multiple fixed-term periods of imprisonment for multiple nonhomicide offenses. Instead, Graham concerned juvenile offenders who were sentenced to life without parole for a single nonhomicide offense. Id. at 63.

         In Graham, the Supreme Court examined federal and state sentencing laws to see how many jurisdictions permitted juvenile nonhomicide offenders to receive life without parole and how many jurisdictions prohibited such punishments. Id. at 62. It also looked at the actual number of juvenile offenders serving life without parole sentences, which totaled only 123 nationwide. Id. at 64. Obviously, the number of juveniles with multiple fixed-term sentences would number in the thousands. At no point did the Supreme Court consider a juvenile offender sentenced to multiple fixed-term periods and whether such terms, in the aggregate, were equal to life without parole. In fact, Justice Alito noted in his dissent, "Nothing in the [Supreme Court's] opinion affects the imposition of a sentence to a term of years without the possibility of parole." Id. at 124 (Alito, J., dissenting) (emphasis added). Justice Thomas also pointed out in his dissent, joined by Justices Scalia and Alito, that "it seems odd that the [Supreme Court] counts only those juveniles sentenced to life without parole and excludes from its analysis all juveniles sentenced to lengthy term-of-years sentences (e.g., 70 or 80 years' imprisonment)." Id. at 113 n.11 (Thomas, J., dissenting) (emphasis added).

         Although Graham found, "[w]ith respect to life without parole for juvenile nonhomicide offenders, none of the goals of penal sanctions that have been recognized as legitimate-retribution, deterrence, incapacitation, and rehabilitation-provides an adequate justification, " id. at 71 (majority opinion) (emphasis added) (citation omitted), Willbanks and the dissent have failed to show these penological goals are not served by sentencing juveniles to multiple fixed-term sentences. The effect of an offender's age on these penological concerns is better suited for the General Assembly than this Court.

         The dissent does not fully explain the differences it perceives in the pursuit of penological goals when sentencing juvenile nonhomicide offenders to multiple fixed-term sentences as compared with sentencing adults. Nor does the dissent explain why the trial court should be stripped of its authority to decide a juvenile's sentence for multiple nonhomicide offenses that, according to Missouri's sentencing statutes, may justify lengthy consecutive terms of imprisonment. The sentencer in a case (here, the trial court) has a duty to impose a sentence on a case-by-case basis. State v. Collins, 290 S.W.3d 736, 746 (Mo. App. 2009). Additionally, "[t]rial courts have very broad discretion in their sentencing function, " id., as evidenced in section 558.026.1, which provides that multiple prison terms shall run concurrently "unless the court specifies that they shall run consecutively." (Emphasis added). Neither this Court nor the Supreme Court has ruled on the constitutional impact of consecutive sentences. See United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988).

         The General Assembly recently enacted section 558.047, RSMo 2016, which allows juvenile offenders sentenced to life without parole to apply for parole after serving 25 years. Although the dissent argues this Court should apply this statute to cases in which juvenile offenders were sentenced to multiple fixed-term sentences, the General Assembly chose to limit the statute to those juvenile offenders sentenced to life without parole. This Court declines to extend the statute beyond its terms.

         There is a split of authority among the United States Courts of Appeals regarding whether Graham applies when a juvenile nonhomicide offender is sentenced to terms of years rather than life without parole. The Fifth Circuit says it does not apply. United States v. Walton, 537 F.App'x 430, 437 (5th Cir. 2013).[6] The issue of whether the imposition of a sentence to a term of years totaling beyond a juvenile offender's life expectancy violates the Eighth Amendment was also addressed by the Sixth Circuit. In Bunch v. Smith, 685 F.3d 546 (6th Cir. 2012), the court held that a juvenile offender's multiple fixed-term sentences, totaling 89 years, did not violate the Eighth Amendment in light of Graham. Id. at 552. The Sixth Circuit acknowledged, "To be sure, [the juvenile offender's] 89-year aggregate sentence may end up being the functional equivalent of life without parole" as he will not be eligible for release until he is 95 years old. Id. at 551 & n.1.[7] The court noted, however, the Supreme Court in Graham addressed neither sentencing laws nor practices concerning juvenile nonhomicide offenders who were sentenced to multiple fixed-term periods. Id. at 552. The Sixth Circuit concluded, "This demonstrates that the [Supreme] Court did not even consider the constitutionality of such sentences, let alone clearly establish that they can violate the Eighth Amendment's prohibition on cruel and unusual punishments." Id.; see Goins v. Smith, 556 F.App'x 434, 440 (6th Cir. 2014); Starks v. Easterling, 659 Fed.App'x 277, 280 (6th Cir. Aug. 23, 2016).

         Seventeen other state supreme courts have considered this issue. Five of them have reached the same conclusion as this Court and held that Graham and Miller do not apply to prohibit multiple fixed-term sentences for juvenile offenders. Lucero v. People, 394 P.3d 1128, 1133 (Colo. 2017) ("Multiple sentences imposed for multiple offenses do not become a sentence of life without parole, even though they may result in a lengthy term of incarceration. Life without parole is a specific sentence, imposed as punishment for a single crime, which remains distinct from aggregate term-of-years sentences resulting from multiple convictions."); State v. Brown, 118 So.3d 332, 342 (La. 2013); State v. Ali, 895 N.W.2d 237, 246 (Minn. 2017); State v. Springer, 856 N.W.2d 460, 470 (S.D. 2014), cert. denied, 135 S.Ct. 1908 (2015); Angel v. Commonwealth, 704 S.E.2d 386, 402 (Va. 2011). The remaining 12 state supreme courts that have considered this issue have held that, at some point, without uniform agreement as to when, aggregate sentences and parole ineligibility for juvenile offenders constitutes cruel and unusual punishment.[8]

         The dissent mischaracterizes this Court's opinion as stating it lacks the power or authority to extend the Supreme Court's holding in Graham. Rather, this Court, absent guidance from the Supreme Court, should not arbitrarily pick the point at which multiple aggregated sentences may become the functional equivalent of life without parole. The dissent argues such line drawing is "unavoidable, " but "has not been an obstacle to the Supreme Court's recognition of categorical rules." Slip op. at 41 n.26. It points to Graham's holding that created a categorical rule for offenders who were under the age of 18 at the time of their offense. This argument fails to address the fact that Graham itself concluded the age of 18 was an appropriate demarcation line for the imposition of life without parole because "18 is the point where society draws the line for many purposes between childhood and adulthood." Graham, 560 U.S. at 50 (quoting Roper, 543 U.S. at 574). There is no similar clear demarcation line at which point juvenile offenders' time in prison denies them meaningful opportunity to obtain release. As the Sixth Circuit opined in Bunch:

At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: twenty, thirty, forty, fifty, some lesser or greater number? Would gain time be taken into account? Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria? Does the number of crimes matter? There is language in the Graham majority opinion that suggests that no matter the number of offenses or victims or type of crime, a juvenile may not receive a sentence that will cause him to spend his entire life incarcerated without a chance for rehabilitation, in which case it would make no logical difference whether the sentence is "life" or 107 years. Without any tools to work with, however, we can only apply Graham as it is written.

Bunch, 685 F.3d at 552 (quoting Henry v. State, 82 So.3d 1084, 1089 (Fla. Dist. Ct. App. 2012), decision quashed, 175 So.3d 675 (Fla. 2015)). Likewise, this Court applies Graham as written and declines to extend its holding.

         Over the last decade, the Supreme Court has stated that youth affects the penological considerations for the following: capital punishment, Roper, 543 U.S. at 571; mandatory life without parole for homicide offenders, Miller, 132 S.Ct. at 2464; and life without parole for nonhomicide offenders, Graham, 560 U.S. at 75. But the Supreme Court has not held that multiple fixed-term sentences totaling beyond a juvenile offender's life expectancy are the functional equivalent of life without parole. Warning of "frequent and disruptive reassessments of [the Supreme Court's] Eighth Amendment precedents, " the Supreme Court has not looked positively upon lower courts issuing various rulings without precedence from the Supreme Court.[9] Roper, 543 U.S. at 594 (O'Connor, J., dissenting). "[C]lear, predictable, and uniform constitutional standards are especially desirable" in the area of the Eighth Amendment. Id. Extending the Supreme Court's holdings beyond the four corners of its opinions is clearly disfavored.

         The Supreme Court has never held that consecutive lengthy sentences for multiple crimes in excess of a juvenile's life expectancy is the functional equivalent of life without parole. The dissent acknowledges that its analysis is an extension of the law. Without direction from the Supreme Court to the contrary, this Court should continue to enforce its current mandatory minimum parole statutes and regulations by declining to extend Graham.


         The trial court did not err in finding Missouri's mandatory minimum parole statutes and regulations do not violate Willbanks's Eighth Amendment rights. The judgment is affirmed.

          Fischer, C. J, Wilson and Powell, JJ, concur; Stith, J, dissents in separate opinion filed; Draper and Breckenridge, JJ, concurin opinion of Stith, J.


          Laura Denvir Stith, Judge

         I respectfully dissent. As the majority acknowledges, Graham v. Florida, 560 U.S. 48 (2010), held that sentencing nonhomicide juvenile offenders to life without the possibility of parole (LWOP) categorically violates the Eighth Amendment because it offers juvenile offenders no meaningful opportunity for release. Sentencing juvenile offenders to an aggregate term of years that is so long they are likely to die in prison identically gives these juveniles no meaningful opportunity for release. For this reason, the Seventh, Ninth, and Tenth Circuits have held Graham must be applied to de facto LWOP aggregate sentences if they do not give the juvenile offender a meaningful opportunity for release. Twelve of the seventeen state supreme courts to decide the issue - including, just in the last few months, the supreme courts of Illinois, New Jersey, Ohio, and Washington - agree the imposition of lengthy aggregate sentences that are the functional equivalent of LWOP violates the juvenile's Eighth Amendment rights because the sentences do not allow a meaningful opportunity for release under the principles set out in Graham and Miller v. Alabama, 132 S.Ct. 2455 (2012).[1]

         The majority nonetheless says it would be inappropriate, and looked on with "disfavor" by the Supreme Court, for this Court to apply Graham's principles to Willbanks' sentence before the Supreme Court requires this Court to do so, even if this dissent is correct that aggregate sentences are the functional equivalent of LWOP. Respectfully, it is this Court's job to determine whether established constitutional principles require us to grant relief to the petitioner, as even one of the state cases on which the majority relies has recognized.[2] To do so does not require extending existing law but merely applying Graham to new facts, something courts do every day. As the Tenth Circuit said in applying Graham to aggregate sentences, "the Court's holding [in Graham] applies, not just to the factual circumstances of Graham's case, but to all juvenile offenders who did not commit homicide, and it prohibits, not just the exact sentence Graham received, but all sentences that would deny such offenders a realistic opportunity to obtain release." Budder v. Addison, 851 F.3d 1047, 1053 (10th Cir. 2017). This Court should so hold also, by joining the many well-reasoned decisions holding the Supreme Court did not intend to place form - the label of LWOP - over substance. A sentence that results in no meaningful opportunity for release during the juvenile's lifetime is the functional equivalent of LWOP. These sentences violate the constitutional principles underlying Graham and Miller and are invalid. The juvenile must be allowed a meaningful opportunity for release.

         The majority does not so much deny that some length of aggregate sentence will be found to be too long under Graham; rather, it says we cannot know what length is too much and, therefore, should just let all sentences stand until the Supreme Court expressly tells us how much is too much. Respectfully, the Supreme Court has done so already in telling us juveniles must have a "meaningful opportunity for release" prior to death. While the Supreme Court did not set out a specific length of years the juvenile must be afforded the opportunity to live outside prison, we do know keeping the juvenile in prison beyond his life expectancy is too long. Yet, that is what the majority is approving in this case, in which Willbanks received a sentence beyond his life expectancy.

         In any event, the legislature already has determined at what point parole consideration should be offered; this Court merely needs to follow its lead. In response to Miller, Missouri's legislature adopted section 558.047, RSMo 2016, which provides juvenile offenders sentenced to LWOP may apply for parole after 25 years. This Court has held it will apply this new statute to all juvenile offenders regardless of whether convicted before or after Montgomery v. Louisiana, 136 S.Ct. 718 (2016), as revised (Jan. 27, 2016). Like other states facing this issue, this Court similarly can apply time limits identical to those set out in section 558.047 to juvenile offenders who are serving de facto LWOP through their aggregate sentences. The majority's uncertainty as to where to draw the line when determining if a sentence is too long for aggregate juvenile offenders thereby becomes moot.[3]

         The majority also writes as if courts can ignore the essential distinction mandated by the Supreme Court between sentences that are constitutional if imposed on adults and sentences that are not constitutional if imposed on juveniles. The majority says, because judges in cases involving adults can impose consecutive sentences, judges must be able to do so in the case of juveniles. Therefore, the majority seems to conclude, if a judge in a juvenile case simply avoids expressly labeling the sentences as "life without possibility of parole, " there is no constitutional limitation, even if the judge knowingly imposes the functional equivalent of life without parole by aggregating consecutive sentences in such a way the juvenile will not have a meaningful opportunity for release before his or her death.

         It is a fiction to suggest this is just a collateral result of sentencing the juvenile for multiple crimes. Judges impose consecutive sentences cognizant of the overall effect. The Supreme Court has taught us that sentences permissible for adults may not be permissible for juveniles and that we must look at sentences for juveniles as a whole, not sentence by sentence, as discussed below in detail. This means:

states may not circumvent the strictures of the Constitution merely by altering the way they structure their charges or sentences. Just as they may not sentence juvenile nonhomicide offenders to 100 years instead of 'life, ' they may not take a single offense and slice it into multiple sub offenses in order to avoid Graham's rule that juvenile offenders who do not commit homicide may not be sentenced to live without the possibility of parole.

Budder, 851 F.3d at 1058.

         In other words, substance, not form, should control. Whether labeled "LWOP, " the sentences imposed on Willbanks are subject to Graham's categorical rule because like formal LWOP sentences, de facto life sentences also are the "'denial of hope'" and mean "'that good behavior and character improvement are immaterial … that whatever the future might hold in store for the mind and spirit of [the defendant], he will remain in prison for the rest of his days.'" Graham, 560 U.S. at 70, quoting, Naovarath v. State, 779 P.2d 944, 944 (Nev. 1989).


         The great majority of states to reach the issue have determined the fundamental principles underlying Graham do apply to aggregate sentences, and such sentences violate the Eighth Amendment when they are of such length that they become a de facto life sentence because the juvenile offender is effectively denied release. To fully understand these courts' reasoning, it is helpful to first examine Graham itself in more depth, for it resulted in a radical change in how juvenile term-of-years sentences are reviewed. It is that radical change that provides the framework for the Supreme Court's decision in that case, as well as in Miller and Montgomery, and that requires the application of Graham's analysis to aggregate sentences such as those imposed on Willbanks.

         A. Graham Considers Whether a Category of Sentence Can Be Imposed on Juveniles, Not Whether a Particular Sentence Seems Proportionate

         Before turning to the question whether a sentence of LWOP is unconstitutional when a juvenile is convicted of a nonhomicide offense, Graham took some time to describe the two broad approaches it applies to Eighth Amendment analysis: the case-by-case approach and the categorical approach. Graham, 560 U.S. at 59.

         Prior to Graham, the Supreme Court said, it had used the case-by-case, sentence-by-sentence approach in considering the constitutional validity of term-of-years sentences, a phrase Graham uses to refer to all sentences other than death, including life sentences, both LWOP and life with parole eligibility.[4] Under the case-by-case approach, Graham said, a court considers "all of the circumstances of the case to determine whether the sentence is unconstitutionally excessive." Id. If a defendant claims his or her particular sentence is unduly harsh, "Eighth Amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence." United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988). This is true for adults even when the sentences cumulatively extend to or beyond a defendant's lifetime, what some cases refer to as "discretionary life sentences." See, e.g., McKinley v. Butler, 809 F.3d 908, 911 (7th Cir. 2016); State v. Riley, 110 A.3d 1205, 1213 (Conn. 2015), cert. denied, 136 S.Ct. 1361 (2016). This traditional analysis begins by "comparing the gravity of the offense and the severity of the sentence." Graham, 560 U.S. at 60. If the punishment seems grossly disproportional to the particular crime, the court then compares the sentence to that of others convicted of similar crimes. Id.

         By contrast, Graham explained, when a defendant in a death penalty case claims he or she categorically is ineligible for death because of the nature of the offense or the characteristics of the offender, then the Supreme Court traditionally uses what it calls the "categorical approach." Id. at 61-62. For example, the Supreme Court held nonhomicide crimes such as rape never merit the death penalty because the category of offense just does not merit the ultimate penalty. See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 413 (2008), as modified (Oct. 1, 2008), opinion modified on denial of reh'g, 554 U.S. 945 (2008). Similarly, the Supreme Court held in Roper v. Simmons, 543 U.S. 551, 559-67, (2005), and Atkins v. Virginia, 536 U.S. 304, 321 (2002), that a state is barred from imposing the death penalty on offenders who have the characteristics of either youth or mental disability. In such cases, a court has no discretion to impose a death sentence on those categories of offenders. Such a sentence is unconstitutional, and the trial court does not have discretion to impose an unconstitutional sentence. See Hurst v. Florida, 136 S.Ct. 616, 624 (2016).

         Graham, for the first time, applied the categorical approach to a sentence other than death. It held that, while the case-by-case approach is appropriate when determining whether a particular sentencing decision is fair for a single offender, it is inadequate when the claim is that a particular type or category of sentence is unfair for a category of persons. In Graham, the defendant claimed LWOP was improper for all nonhomicide offenses committed by juveniles. To determine whether such sentences are indeed unconstitutional, the Supreme Court held it must apply the categorical approach, just as it already did in death penalty cases:

This case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes. As a result, a threshold comparison between the severity of the penalty and the gravity of the crime does not advance the analysis. Here, in addressing the question presented, the appropriate analysis is the one used in cases that involved the categorical approach, specifically Atkins, Roper, and Kennedy.

Graham, 560 U.S. at 61-62.

         In other words, because the Supreme Court has held juveniles must be placed in a special category based on the "characteristics of the offender" (their youth) and not the "nature of the offense, " it is improper in cases involving juveniles merely to weigh a particular sentence against the gravity of the offense in a particular case. Id. at 60-61. Rather, "the Court then announced a categorical rule: The constitution prohibits the imposition of a life without parole sentence on a juvenile defender who did not commit homicide." Budder, 851 F.3d 1047 (10th Cir. 2017). This categorical approach must be used to determine whether it violates the Eighth Amendment to utilize the sentencing practice being attacked for that category of offender - juveniles. Id. at 60-62.

         Graham held the unique characteristics of juveniles categorically barred the application of a LWOP sentence for a nonhomicide offense because such sentences are justified by "none of the legitimate goals of penal sanctions - retribution, deterrence, incapacitation, and rehabilitation." Id. at 50. Juvenile offenders have lessened culpability and are less deserving of the most severe punishments. Id. at 68, citing, Roper, 543 U.S. at 569. Lack of maturity and the inability to consider possible punishment make juveniles less susceptible to deterrence. Id. at 72. Because it is dubious whether the sentencer can at the outset determine that a juvenile is "irredeemable, " interest in incapacitation for fear of recidivism is diminished. Id. at 72-73. Finally, LWOP closes the door forever to furthering the goal of rehabilitation. Id. at 73-74.

         B. Sentences That Are the Functional Equivalent of LWOP Are Categorically in Violation of Graham Principles

         The majority ignores the categorical approach taken by the Supreme Court in Graham and continues to apply a term-of-years, sentence-by-sentence approach as if Graham had not changed how juvenile sentences should be analyzed; it simply ignores the lengthy discussion in Graham, and in this dissent, of the categorical approach that must be taken when reviewing juvenile sentences.

         Fortunately, other courts have followed Graham more faithfully by taking its categorical approach in considering whether Eighth Amendment principles bar the imposition of aggregate sentences that cumulatively are so long they are the functional equivalent of LWOP because they allow the juvenile offender no meaningful opportunity for release. As discussed below, the vast majority of these courts have found such aggregate sentences do violate the Eighth Amendment. The reasoning of these cases is so consistent, so persuasive, and so dispositive of the result here that this is the unusual case in which it is appropriate to at least briefly discuss these cases in turn.

         Graham itself arose in Florida, so perhaps it is not surprising that the Florida Supreme Court has studied its meaning carefully. Resolving a split in the Florida appellate courts, in Henry v. State,175 So.3d 675 (Fla. 2015), the Florida Supreme Court held in no uncertain terms that ...

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