It seems like only a week ago that the Supreme Court held that "youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole." The "characteristics of youth, and the way they weaken rationales for punishment, can render a life-without-parole sentence disproportionate." The "transient rashness, proclivity for risk, and inability to assess consequences" that are associated with youth fundamentally lessen a "child's 'moral culpability' and enhance the prospect that, as the years go by and neurological development occurs, his 'deficiencies will be reformed.'"
Come to think of it, it actually was only a week ago, in Miller v. Alabama. That case reaffirmed the Court's decision in Graham that such youthful offenders "are less deserving of the most severe punishments" and extended that precedent even to homicide offenses.
Enter today's decision, Bunch v. Smith. Eleven years ago, when he was 16 years old, Mr. Bunch participated in a horrific robbery and rape. When he was sentenced, the judge stated that "I just have to make sure that you don't get out of the penitentiary," because "it would be a mistake to have you back in society." Because he was a youthful offender who was fundamentally less culpable than an adult and "less deserving of the most severe punishments," this one should go back on habeas review, right?
Well, no. You see, the sentencing judge chose to accomplish locking Mr. Bunch up for life by giving him eight consecutive ten-year sentences, followed by nine additional years. All parties agree that Mr. Bunch will be 95 before he is eligible for release -- a statistically improbable age for most humans, and especially for those in the state prison system. The Sixth Circuit today appears to have determined that the constitutional principles announced in Graham, Roper, and Miller are entirely determined by how the sentencing judge gives life without parole, not whether.
The following is speculation, but it seems as though the opinion was written before the Miller decision was released and then revised with a single paragraph at the end to incorporate Miller. Despite some very helpful language in Miller, the Sixth Circuit did not believe that "youth matters" enough to affect a "virtual life sentence" like the one at issue here.
Does this opinion dash the hopes of all those serving virtual life sentences? Is the whole Graham discussion arguably dicta in light of the discussion of Teague? Will the Supreme Court weigh in once again? I'd love to hear any thoughts in the comments. In the mean time, hats off to the Ohio Public Defender's Office for a hard-fought battle. Hopefully this won't be the end of it.