State v. Slocumb , 426 S.C. 297 ( 2019 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
State of South Carolina, Respondent,
v.
Conrad Lamont Slocumb, Petitioner.
Appellate Case No. 2015-002031
IN THE ORIGINAL JURISDICTION
Opinion No. 27877
Heard December 12, 2018 – Filed April 3, 2019
RELIEF DENIED
Tara Dawn Shurling, of the Law Office of Tara Dawn
Shurling, P.A., of Columbia, for Petitioner.
Attorney General Alan Wilson and Assistant Attorney
General Mark R. Farthing, both of Columbia, for
Respondent.
Chief Appellate Defender Robert Micheal Dudek,
Appellate Defender Susan Barber Hackett, Appellate
Defender Laura Ruth Baer, all of Columbia, for Amicus
Curiae, South Carolina Division of Appellate Defense.
John H. Blume, III and Lindsey Sterling Vann, both of
Columbia, for Amicus Curiae, Justice 360 & Cornell
Juvenile Justice Project.
Executive Director James Hugh Ryan, III, of Columbia,
for Amicus Curiae, South Carolina Commission on
Indigent Defense.
Joseph M. McCulloch, Jr., of Columbia, and Seth P.
Waxman, of Washington, DC, for Amicus Curiae, The
South Carolina State Conference of the National
Association for the Advancement of Colored People.
Alexandra V.B. Gordon, Aidan Synnott, Anne O'Toole
and Agbeko C. Petty, all of New York, NY, for Amicus
Curiae, South Carolina Public Defender Association and
South Carolina Criminal Association of Criminal
Defense Lawyers.
JUSTICE KITTREDGE: At the age of thirteen, petitioner Conrad Slocumb
kidnapped and sexually assaulted a teacher before shooting her in the face and
head five times and leaving her for dead. Three years later, following his guilty
plea for the first set of crimes, he escaped from custody and raped and robbed
another woman in a brutal manner before being apprehended again. For these two
sets of crimes, Slocumb received an aggregate 130-year sentence due to the
individual sentences being run consecutively.
Following rounds of direct appeals and collateral proceedings, Slocumb now
contends an aggregate 130-year sentence for multiple offenses committed on
multiple dates violates the Eighth Amendment to the United States Constitution, as
extrapolated from the principles set forth in the United States Supreme Court's
(Supreme Court) decisions in Graham v. Florida1 and Miller v. Alabama,2 among
others. We acknowledge ostensible merit in Slocumb's argument, for it is arguably
a reasonable extension of Graham and Miller. Yet precedent dictates that only the
1
560 U.S. 48 (2010) (prohibiting courts from imposing a sentence of life without
the possibility of parole on a juvenile offender convicted of a nonhomicide
offense).
2
567 U.S. 460 (2012) (holding mandatory life without parole sentences for
juveniles convicted of homicide offenses violated the Eighth Amendment's
prohibition against cruel and unusual punishments).
Supreme Court may extend and enlarge the protections guaranteed by the United
States Constitution. Once the Supreme Court has drawn a line in the sand, the
authority to redraw that line and broaden federal constitutional protections is
limited to our nation's highest court. Because the decision to expand the reach and
protections of the Eighth Amendment lies exclusively with the Supreme Court, we
are constrained to deny Slocumb relief.
I.
In 1992, when he was thirteen years old, Slocumb accosted a high school teacher
in the school parking lot and forced her into her car at gunpoint, directing her to
drive to a wooded area. Slocumb unsuccessfully attempted to force the teacher
into the woods before grabbing her, squeezing her breast, and digitally penetrating
her vagina through her clothing. He then shot the teacher in the face and head five
times and drove off in her car, leaving her on the side of the road. Miraculously,
the teacher survived and identified Slocumb as the perpetrator. Eventually,
Slocumb pled guilty to criminal sexual conduct in the first degree (CSC-1st) in
exchange for the remaining charges being nol prossed and was sentenced to thirty
years' imprisonment.
Three years later, while returning from an off-site medical visit, Slocumb escaped
from custody for a total of forty-five minutes. In the short time he was free, he ran
to a nearby apartment complex, located a lone woman, and forced his way into her
apartment. Once inside, Slocumb claimed he had a gun and demanded the woman
turn over her car keys, money, jewelry, cigarettes, beer, and a change of clothes.
After the woman complied with his demands, Slocumb forced her to undress, said
"I'm going to have some sex," and, after reminding her he was armed, proceeded to
rape her. The woman nonetheless continued to resist, whereupon Slocumb forced
her to stand and touch her toes as he raped her from behind. After the rape,
Slocumb left the apartment and was apprehended in the parking lot by law
enforcement.
After a jury trial and multiple rounds of direct appeals, post-conviction relief
applications, and resentencing hearings, Slocumb was ultimately sentenced to life
without parole for burglary in the first degree, thirty years' imprisonment for CSC-
1st, thirty years' imprisonment for kidnapping, fifteen years' imprisonment for
robbery (as a lesser-included offense to armed robbery), and five years'
imprisonment for escape, the sentences to be served consecutively.
Subsequently, in 2010, the United States Supreme Court handed down its decision
in Graham v. Florida, in which it held the Eighth Amendment to the United States
Constitution prohibited courts from sentencing a juvenile offender convicted of a
nonhomicide offense to life without parole. 560 U.S. at 82. Slocumb immediately
filed a federal habeas action, requesting his life sentence for burglary be vacated
pursuant to Graham. The federal district court granted him relief and remanded
the case to the circuit court for resentencing on the burglary charge alone.
On remand, Slocumb requested the circuit court not only resentence him on the
burglary charge, but also vacate the remaining eighty-year aggregate sentence for
the other crimes and resentence him on all of the charges in accordance "with the
spirit and intent of" Graham and Miller. Acknowledging that a de facto life
sentence3 is not expressly prohibited under Graham or Miller, Slocumb invited the
circuit court to follow the spirit of Graham and Miller and find his aggregate term-
of-years sentence was impermissible under the Eighth Amendment. In addition,
Slocumb asserted even if his new burglary sentence were run concurrently to his
eighty-year aggregate sentence for the remaining crimes, the eighty-year sentence
would also not provide him with a meaningful opportunity for release, as specified
in Graham, because he would be incarcerated long past his projected life
expectancy.
In response, the State stressed Graham specifically allowed a state to keep a
juvenile offender incarcerated for his entire natural life span when the offender
failed to demonstrate maturity or rehabilitation. The State informed the circuit
court that it had been contacted by the Department of Corrections (DOC) and told
that Slocumb, as an adult in his thirties, was an enormous "security risk" with a
"horrible" behavioral record, including 218 infractions over a sixteen-year period
for actions such as attacking corrections workers, possession of a weapon, and
mutilation. According to the State, the DOC's unsolicited contact was the first time
in at least twenty-three years the agency had felt it necessary to specifically advise
the State of the potential security risk posed by an inmate. 4 The State also
informed the circuit court Slocumb had failed to complete any educational courses
3
See Bunch v. United States, 685 F.3d 546, 552 (6th Cir. 2012) (describing a de
facto life sentence as one that is expressed as a lengthy term of years, causing the
defendant's eligibility for parole or release to fall outside his projected life
expectancy).
4
Similarly, the solicitor who prosecuted Slocumb for the offenses committed when
he was sixteen years old testified Slocumb was "the most violent sexual predator
[she] ha[d] ever prosecuted."
or enroll in any rehabilitative programs while incarcerated.5 The State argued
Slocumb's poor disciplinary record and failure to attempt to rehabilitate himself fell
squarely within Graham's language allowing a juvenile offender convicted of a
nonhomicide offense to be imprisoned for his natural life span. Stated differently,
Slocumb's adult prison record of continuing impulsivity and violence belies the
general premises of youth articulated in Roper v. Simmons, 6 Graham, and Miller.
Ultimately, the circuit court found the remand instructions from the federal court
encompassed only Slocumb's burglary charge. The court then resentenced
Slocumb to fifty years' imprisonment on the burglary charge, the sentence to be run
consecutively to the eighty years for the remaining charges, resulting in Slocumb
facing a 130-year aggregate sentence.
Slocumb appealed, arguing the sentence violated the spirit and letter of Graham,
but the court of appeals affirmed. Slocumb then filed a petition for a writ of
certiorari with this Court. Because the court of appeals considered only the
sentence for burglary in accordance with the limited remand instructions from the
federal district court, we denied the petition. However, because the certiorari
petition sought review of the entire 130-year sentence, we observed that the
constitutionality of the length of Slocumb's aggregate sentence in light of Graham
was more appropriately raised to this Court by way of a petition for a writ of
certiorari in our original jurisdiction. As a result, Slocumb refiled a petition for a
writ of certiorari in the Court's original jurisdiction to address whether an
aggregate sentence imposed for multiple nonhomicide offenses committed while
Slocumb was a juvenile was the equivalent of a sentence of life without the
possibility of parole, and if so, whether the aggregate sentence violated the Eighth
Amendment as interpreted by Graham. We granted the petition.
II.
In the past fourteen years, the Supreme Court issued three decisions concerning
juvenile sentencing practices: Roper v. Simmons, Graham v. Florida, and Miller v.
Alabama. We begin our analysis with a review of this trilogy of cases.
5
According to the DOC's website, Slocumb still has not earned any education
credits while incarcerated.
6
543 U.S. 551 (2005) (finding the Eighth and Fourteenth Amendments to the
United States Constitution forbid the imposition of the death penalty on juvenile
offenders).
A.
In the earliest of its three recent decisions, Roper v. Simmons, the Supreme Court
held juvenile offenders could not be sentenced to death if they were under the age
of eighteen at the time they committed their crimes. 543 U.S. at 568, 578.
Underlying the Supreme Court's holding was its belief that juveniles were
fundamentally different from adults, in that they (1) exhibited a lack of maturity
and an underdeveloped sense of responsibility, resulting in impetuous and ill-
considered actions and decisions; (2) were more susceptible to negative outside
influences such as peer pressure; and (3) had personality traits that were more
transitory and less fixed than adults. Id. at 569–70. Consequently, as the Supreme
Court explained, a juvenile's irresponsible conduct was not as morally
reprehensible as that of an adult and less indicative of an irretrievably depraved
character. Id. The Supreme Court concluded that as a result of juveniles'
diminished culpability, the penological justifications for the death penalty applied
to them with less force than to adults, and therefore the death penalty was an
ineffective and inappropriate punishment for juvenile offenders. Id. at 571.
B.
Subsequently, in Graham v. Florida, the Supreme Court expanded upon its
rationale in Roper and held the Eighth Amendment prohibited "the imposition of a
life without parole sentence on a juvenile offender who did not commit homicide."
560 U.S. at 82. As a result of the differences between juveniles and adults outlined
in Roper and the perceived moral distinction between homicide and nonhomicide
crimes, the Supreme Court concluded that, as compared to an adult murderer, a
juvenile nonhomicide offender who did not kill or intend to kill had a "twice
diminished moral culpability." Id. at 69.
Turning to the appropriate punishment for juvenile nonhomicide offenders, the
Supreme Court noted a life without parole sentence was the second most severe
penalty permitted by law and shared key features with a death sentence "that are
shared by no other sentence," most importantly, the certainty the defendant will die
in prison. Id. at 69–70. The Supreme Court discounted the penological
justifications—retribution, deterrence, incapacitation, and rehabilitation—for
sentencing a juvenile nonhomicide offender to life without parole because
juveniles have diminished culpability, are less likely to take possible punishment
into consideration when making decisions, and cannot be reliably classified as
incorrigible at a young age. Id. at 71–75.
As a result, the Supreme Court held "that for a juvenile offender who did not
commit homicide[,] the Eighth Amendment forbids the sentence of life without
parole." Id. at 74 (emphasis added). Further,
A State is not required to guarantee eventual freedom to a juvenile
offender convicted of a nonhomicide crime. What the State must do,
however, is give defendants . . . some meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation. It is
for the State, in the first instance, to explore the means and
mechanisms for compliance. It bears emphasis, however, that while
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. Those
who commit truly horrifying crimes as juveniles may turn out to be
irredeemable, and thus deserving of incarceration for the duration of
their lives. The Eighth Amendment does not foreclose the possibility
that persons convicted of nonhomicide crimes committed before
adulthood will remain behind bars for life. It does prohibit States
from making the judgment at the outset that those offenders never will
be fit to reenter society.
Id. at 75 (emphasis added).
In dissent, Justice Alito clarified his understanding of the majority's holding,
stating that "[n]othing in the Court's opinion affects the imposition of a sentence to
a term of years without the possibility of parole. Indeed, petitioner conceded at
oral argument that a sentence of as much as 40 years without the possibility of
parole 'probably' would be constitutional." Id. at 124 (Alito, J., dissenting)
(emphasis added); id. at 123 n.13 (Thomas, J., dissenting) (making a similar
observation). The majority in no way acknowledged or responded to either Justice
Alito's or Justice Thomas's statements that the majority holding did not apply to
juvenile offenders serving lengthy term-of-years sentences.
C.
Finally, in Miller v. Alabama, the Supreme Court held that the Eighth Amendment
forbade states from imposing on juveniles mandatory sentences of life without the
possibility of parole for homicide offenses. 567 U.S. at 489. The Supreme Court
reiterated that Roper and Graham stood for the principle that juveniles are
constitutionally different from adults for sentencing purposes due to their
diminished culpability and greater prospects for reform. Id. at 471–72. Relevant
to this appeal, the Supreme Court stated:
Graham's flat ban on life without parole applied only to nonhomicide
crimes, and the Court took care to distinguish those offenses from
murder, based on both moral culpability and consequential harm. But
none of what it said about children—about their distinctive (and
transitory) mental traits and environmental vulnerabilities—is crime-
specific. . . . So Graham's reasoning implicates any life-without-
parole sentence imposed on a juvenile, even as its categorical bar
relates only to nonhomicide offenses.
Id. at 473 (bold emphasis added) (internal citations omitted).7
III.
At his resentencing hearing following the grant of federal habeas relief, Slocumb
conceded to the circuit court that Graham applied only to de jure life sentences.
Nonetheless, he now argues the general rationale underlying Graham requires us to
extend its protections to juveniles serving de facto life sentences as well. We agree
Graham's explicit holding applies to de jure life sentences alone, and its rationale
may implicate de facto life sentences. See Miller, 567 U.S. at 473 ("Graham's
reasoning implicates any life-without-parole sentence imposed on a
juvenile . . . ."). Nonetheless, several factors caution us against extending the reach
7
Subsequently, in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Supreme
Court held its decision in Miller announced a new substantive rule of federal
constitutional law and was to be applied retroactively. To receive relief, Slocumb
must establish the Graham decision applies retroactively as well. See Teague v.
Lane, 489 U.S. 288, 310 (1989). The Supreme Court has never explicitly held
Graham applies retroactively. However, using our well-established retroactivity
analysis, we conclude Graham—like Miller—applies retroactively because it sets
forth a new substantive rule that excludes a certain class of defendants (juvenile
nonhomicide offenders) from specific punishment (sentences of life without
parole). See generally Aiken v. Byars, 410 S.C. 534, 539–44, 765 S.E.2d 572,
575–77 (2014) (setting forth South Carolina's retroactivity analysis and applying it
to find discretionary life without parole sentences for juvenile homicide offenders
were unconstitutional absent individualized hearings that accounted for the
hallmark features of youth, as set forth in Miller); see also In re Williams, 759 F.3d
66, 70 (D.C. Cir. 2014) (concluding Graham applied retroactively to cases on
collateral review); Moore v. Biter, 725 F.3d 1184, 1190 (9th Cir. 2013) (same).
of Graham to provide Slocumb with relief without further input from the Supreme
Court.
A.
First, a long line of Supreme Court precedent prohibits us from extending federal
constitutional protections beyond the boundaries the Supreme Court itself has set.
See, e.g., Arkansas v. Sullivan, 532 U.S. 769, 772 (2001) (per curiam) ("The
Arkansas Supreme Court's alternative holding, that it may interpret the United
States Constitution to provide greater protection than this Court's own federal
constitutional precedents provide, is foreclosed by Oregon v. Hass, 420 U.S. 714
(1975)."); Hass, 420 U.S. at 719 & n.4 (stating that while "a State is free as a
matter of its own law to impose greater restrictions on police activity than those
this Court holds to be necessary upon federal constitutional standards," it "may not
impose such greater restrictions as a matter of federal constitutional law when this
Court specifically refrains from imposing them"). As a result, we do not believe it
is appropriate for this Court, as an inferior court, to extend federal constitutional
protections under the Eighth Amendment beyond the boundaries the Supreme
Court set in Graham. 8
Stated differently, while we are duty-bound to enforce the Eighth Amendment
consistent with the Supreme Court's directives, our duty to follow binding
precedent is fixed upon case-specific holdings rather than general expressions in an
opinion that exceed the scope of any particular holding. Vasquez v.
Commonwealth, 781 S.E.2d 920, 926 (Va. 2016), cert. denied, 137 S. Ct. 568
(2016). This is not a subtle distinction, as Chief Justice Marshall long ago
emphasized its importance to the judicial process, explaining:
It is a maxim not to be disregarded, that general expressions, in every
opinion, are to be taken in connection with the case in which those
expressions are used. If they go beyond the case, they may be
respected, but ought not to control the judgment in a subsequent suit
when the very point is presented for decision. The reason of this
maxim is obvious. The question actually before the Court is
investigated with care, and considered in its full extent. Other
8
Slocumb did not argue he would be entitled to relief under our state constitution's
cruel and unusual punishments clause. See S.C. Const. art. I, § 15 ("[N]or shall
cruel, nor corporal, nor unusual punishment be inflicted . . . ."). Accordingly, we
do not address the import of state constitutional protections on Slocumb's sentence.
principles which may serve to illustrate it[] are considered in their
relation to the case decided, but their possible bearing on all other
cases is seldom completely investigated.
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399–400 (1821) (emphasis added)
(rejecting counsel's argument that the Supreme Court should follow the reasoning
set forth in dicta in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)). The
principle enunciated by Chief Justice Marshall has particular force in this case, as a
closer examination of the Graham majority and dissenting opinions illustrate.
B.
The Graham majority began its analysis by observing that "[t]he present case
involves an issue the Court has not considered previously: a categorical challenge
to a term-of-years sentence." Graham, 560 U.S. at 61 (emphasis added). The
Supreme Court was thus presented with an opportunity to answer the very question
Slocumb now presents. Yet the Court—after a lengthy discussion of the changing
"mores of society" and "the global consensus" 9—answered a narrower question by
only "hold[ing] that for a juvenile offender who did not commit homicide[,] the
Eighth Amendment forbids the sentence of life without parole." Id. at 74. To
remove any question as to the holding in Graham, the majority concluded with:
"The Constitution prohibits the imposition of a life without parole sentence on a
juvenile offender who did not commit homicide." Id. at 82.
Underscoring its narrow holding and the rarity of sentencing juvenile nonhomicide
offenders to life without the possibility of parole, the Graham majority discussed
in detail the number of juveniles nationwide who were serving de jure life
9
The so-called consensus against sentencing juvenile offenders to life without
parole could not be found in the laws of this country, for the vast majority of states
did not forbid such a sentence. Graham, 560 U.S. at 82–84 (including an
Appendix to the majority opinion which listed thirty-seven states, the Federal
Government, and the District of Columbia, all of which permitted de jure life
sentences for juvenile nonhomicide offenders). Undaunted, the Supreme Court
stated that "[t]he evidence of consensus is not undermined by the fact that many
jurisdictions do not prohibit life without parole for juvenile nonhomicide
offenders." Id. at 66. The Graham majority found the judgments of other nations
"not irrelevant" in determining what the United States Constitution really means,
finding persuasive "the global consensus against the sentencing practice in
question." Id. at 80 (citation omitted).
sentences, counting 123 affected individuals. Id. at 62–64. Significantly, the
Supreme Court excluded from its calculations the number of juveniles serving de
facto life sentences due to a lengthy term of years. See id.; id. at 113 n.11
(Thomas, J., dissenting) (noting the majority opinion "exclude[d] from its analysis
all juveniles sentenced to lengthy term-of-years sentences (e.g., 70 or 80 years'
imprisonment)," and finding the omission anomalous because "such a long
sentence[ ] effectively denies the offender any material opportunity for parole,"
akin to the de jure life sentences the majority found prohibited). The Supreme
Court made no attempt to quantify whether sentencing juveniles to de facto life
sentences was "quite rare[]," as it did with those who received de jure life
sentences. See id. at 64. As a result, Graham's categorical bar was limited to those
precise 123 juveniles counted by the Supreme Court and, in the future, to those
juvenile nonhomicide offenders eligible to receive de jure life sentences for their
crimes. 10
Similarly, Justices Thomas and Alito both separately noted their understanding of
the Graham majority's holding to exclude lengthy term-of-years sentences—
statements which the majority failed to acknowledge or rebut. See id. at 124
(Alito, J., dissenting) ("Nothing in the Court's opinion affects the imposition of a
sentence to a term of years without the possibility of parole."); id. at 113 n.11, 123
n.13 (Thomas, J., dissenting). Given the dissenting Justices' contemporaneous
understanding of the reach of the majority decision—to which the majority did not
respond—and because we are being asked to extend the explicit reach of Graham
and find new Eighth Amendment protections, we decline Slocumb's invitation to
broaden Graham's holding.11
10
Several other courts also have found this portion of Graham significant in
exploring the limited reach of Graham's holding. See, e.g., Bunch, 685 F.3d at
552; Lucero v. People, 394 P.3d 1128, 1133 (Colo. 2017) (en banc), cert. denied,
138 S. Ct. 641 (2018); State v. Nathan, 522 S.W.3d 881, 887 n.10 (Mo. 2017) (en
banc).
11
A number of other courts have also found the Graham majority's failure to
respond to those statements by Justices Thomas and Alito a telling sign as to the
intended reach of its decision. See, e.g., Lucero, 394 P.3d at 1133; Adams v. State,
707 S.E.2d 359, 365 (Ga. 2011); State v. Brown, 118 So. 3d 332, 336, 341 (La.
2013); Willbanks v. Dep't of Corr., 522 S.W.3d 238, 243 (Mo. 2017) (en banc),
cert. denied, 138 S. Ct. 304 (2017); Kinkel v. Persson, 417 P.3d 401, 409–10 (Or.
2018), cert. denied, 139 S. Ct. 789 (2019); Vasquez, 781 S.E.2d at 925.
C.
We do not deny the obvious—Slocumb's 130-year sentence is a de facto life
sentence. The Graham Court acknowledged this was the question presented, but it
chose not to answer the term-of-years sentencing issue, notwithstanding the
dissenting opinions nipping at the heels of the majority on this very question.12
In emphasizing that Slocumb's situation is beyond the reach of Graham, it may be
helpful to state the obvious: Slocumb's case is factually distinct from the
circumstances presented in Graham. While the juvenile offender in Graham was
convicted of a single crime and sentenced to a single sentence formally termed
"life without parole," 13 Slocumb committed multiple crimes at two different points
in time—the second set after he had escaped from custody and, in the short time he
was free, committed another strikingly similar set of crimes to the first one three
years earlier. For these crimes, Slocumb received an average per-crime sentence of
twenty-six years' imprisonment. The only reason his aggregate sentence exceeds
his life expectancy is because he committed so many crimes, not because a single
sentence is disproportionately lengthy. 14 Slocumb's case is nothing like Graham.
12
Perhaps the narrow holding of Graham was necessary to garner a fifth vote.
Regardless of the reasons, the holding of Graham is what it is and must be
respected.
13
To be precise, the juvenile in Graham was sentenced to fifteen years'
imprisonment for one crime and a term of "life imprisonment" for a second,
simultaneous crime in a jurisdiction that had abolished its parole system. Graham,
560 U.S. at 57. But see id. at 53 (describing the second crime as "a first-degree
felony carrying a maximum penalty of life imprisonment without the possibility of
parole"). We refer to the Graham defendant receiving a single life sentence for a
single crime based on the second conviction, which was the Supreme Court's sole
focus.
14
See O'Neil v. Vermont, 144 U.S. 323, 331 (1892) ("If [a defendant sentenced to
an aggregate sentence for multiple offenses] has subjected himself to a severe
penalty, it is simply because he has committed a great many such offenses. It
would scarcely be competent for a person to assail the constitutionality of the
statute prescribing a punishment for burglary on the ground that had he committed
so many burglaries that, if punishment for each were inflicted on him, he might be
kept in prison for life. The mere fact that cumulative punishments may be imposed
for distinct offenses in the same prosecution is not material upon this question. If
the penalty were unreasonably severe for a single offense, the constitutional
See Graham, 560 U.S. at 63 ("The instant case concerns only those juvenile
offenders sentenced to life without parole solely for a nonhomicide offense."
(emphasis added)).15
Moreover, Slocumb's crimes reflect a critical difference from the juvenile offender
in Graham: Slocumb shot his first victim in the face and head five times before
leaving her to die on the side of a deserted country road. The Graham majority
noted there was a moral distinction between defendants who intend to commit
homicide and nonhomicide crimes. See id. at 69 ("The Court has recognized that
defendants who do not kill, intend to kill, or foresee that life will be taken are
categorically less deserving of the most serious forms of punishment than are
murderers. . . . It follows that, when compared to an adult murderer, a juvenile
offender who did not kill or intend to kill has a twice diminished moral culpability.
The age of the offender and the nature of the crime each bear on the analysis."
(emphasis added)). While Slocumb may have had a once-diminished moral
culpability based solely on his age at the time he committed his offenses, we
cannot agree he had a twice-diminished moral culpability like the juvenile offender
in Graham.
Chief Justice Roberts noted this exact distinction in his concurrence in Graham,
stating that while he agreed the Graham defendant could not be constitutionally
sentenced to life without parole—and, thus, he concurred in the majority's result—
the categorical bar against de jure life sentences for all juvenile nonhomicide
question might be urged; but here the unreasonableness is only in the number of
offenses which the [defendant] has committed." (quotation marks omitted) (citation
omitted)).
15
Several other courts have found Graham and Miller distinguishable on the facts
when a juvenile offender committed multiple crimes, committed a series of crimes
at different points in time, and/or committed crimes against multiple victims. See,
e.g., Bunch, 685 F.3d at 551; State v. Kasic, 265 P.3d 410, 415 (Ariz. Ct. App.
2011); Lucero, 394 P.3d at 1132–34; Brown, 118 So. 3d at 341; Willbanks, 522
S.W.3d at 242; Kinkel, 417 P.3d 411–13; Vasquez, 781 S.E.2d at 925–26; cf.
Graham, 560 U.S. at 63 (explaining juvenile offenders who commit both homicide
and nonhomicide crimes "present a different situation for a sentencing judge than
juvenile offenders who committed no homicide" because "[i]t is difficult to say that
a defendant who receives a life sentence on a nonhomicide offense but who was at
the same time convicted of homicide is not in some sense being punished in part
for the homicide when the judge makes the sentencing determination").
offenders was an unnecessarily broad holding. Id. at 94 (Roberts, C.J.,
concurring). In particular, Chief Justice Roberts opined de jure life sentences
would be appropriate for other "especially heinous or grotesque" crimes, such as in
the case of a seventeen-year-old offender who raped an eight-year-old girl and left
her to die buried under 197 pounds of rocks. Id. at 95 (Roberts, C.J., concurring).
As Chief Justice Roberts stated, "The single fact of being 17 years old would not
afford [the offender] protection against life without parole if the young girl had
died—as [the offender] surely expected she would—so why should it do so when
she miraculously survived his barbaric brutality?" Id.
D.
For all of these reasons, we decline to extend Graham's explicit holding based
solely on the general rationale underlying the opinion without further input from
the Supreme Court as to how the Eighth Amendment applies to situations where a
juvenile nonhomicide offender commits multiple crimes against multiple victims at
multiple points in time. 16 As explained by the United States Court of Appeals for
the Sixth Circuit, a contrary result would lead to a number of unanswered
questions:
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
16
Approximately half of the courts around the country have similarly declined to
find Graham, Miller, or the Eighth Amendment bars de facto life sentences. See
Appendix, infra, Part I. However, notably, the other half of the courts around the
country who considered this issue either found Graham or Miller expressly
prohibited de facto life sentences or extended Graham's and Miller's rationale to
bar the imposition of de facto life sentences on juvenile offenders. See Appendix,
infra, Part II. We note there are three additional states who have disapproved of de
facto life sentences for juvenile nonhomicide offenders under their state
constitutions, rather than under Graham, Miller, or the Eighth Amendment. See
Appendix, infra, Part III. Two other states declined to definitively hold whether
Graham or Miller applied to de facto life sentences, but denied the juvenile
offenders relief anyway for different reasons. See Appendix, infra, Part IV.
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 (citation omitted); Vasquez, 781 S.E.2d at 928 (explaining
that answering this list of questions with any degree of specificity "would require a
proactive exercise inconsistent with our commitment to traditional principles of
judicial restraint"). As the Sixth Circuit concluded, "[I]f the Supreme Court has
more in mind, it will have to say what that is." Bunch, 685 F.3d at 553 (citation
omitted) (internal alteration marks omitted).
IV.
The Roper-Graham-Miller trilogy has resulted in much confusion and conflicting
opinions in ascertaining the reach of the Eighth Amendment in the sentencing of
juveniles. See Appendix, infra (showing there is an approximately even split of
authority on whether the Eighth Amendment, as interpreted in Graham and Miller,
prohibits de facto life sentences). Courts have struggled in good faith in trying to
determine the manner in which juveniles may be constitutionally sentenced. We
are one of those courts. Rather than predict what the Supreme Court may or may
not do, we believe the proper course is to respect the Supreme Court's admonition
that lower courts must refrain from extending federal constitutional protections
beyond the line drawn by the Supreme Court.
Our holding should in no way be read to signal the end of the debate on the
underlying issues raised by aggregate term-of-years sentences imposed on juvenile
offenders, whether for homicide or nonhomicide offenses. As the Supreme Court
stated in Graham in the context of de jure life sentences for juveniles, it is for the
states, in the first instance, to explore the means and mechanisms for complying
with the Eighth Amendment. 560 U.S. at 75.
Many state legislatures have responded to Roper, Graham, and Miller by enacting
juvenile sentencing statutes that provide juvenile offenders with a meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation.
See State v. Null, 836 N.W.2d 41, 72 (Iowa 2013) (noting the "flurry of legislative
action that has taken place in the wake of Graham and Miller"). Our General
Assembly has already begun the process of considering a legislative response to
juvenile sentencing concerns.
Specifically, the South Carolina General Assembly, with commendable foresight,
has taken initial steps toward reforming juvenile sentencing practices in this state.
In February 2019, the South Carolina House of Representatives introduced H. 3919
to enact the "Youth Sentencing Act of 2019." H. 3919, 123 Leg., 1st Reg. Sess., as
amended Feb. 8, 2019 (S.C. 2019), available at
https://www.scstatehouse.gov/sess123_2019-2020/bills/3919.htm. In its current
form, the bill would: (1) retroactively prohibit juvenile offenders from being
sentenced to life without parole; (2) retroactively provide juvenile nonhomicide
offenders with parole-eligibility after twenty years' imprisonment, and juvenile
homicide offenders with parole-eligibility after twenty-five years' imprisonment;
(3) allow for sentences shorter than the mandatory minimums for juvenile
nonhomicide offenders; (4) ban solitary confinement for all juvenile offenders; and
(5) modify South Carolina's geriatric release program to allow for consideration of
parole-like factors for juvenile offenders, see Angel v. Commonwealth, 704 S.E.2d
386, 402 (Va. 2011) (holding Virginia's geriatric release program—eligibility for
which requires use of "the factors used in the normal parole consideration
process"—satisfied Graham's requirement for a meaningful opportunity for release
based on demonstrated maturity and rehabilitation).
Respect for separation of powers compels us to recognize that the General
Assembly is the author of our state's public policy for the sentencing of criminal
offenders, juveniles and adults. Pending further pronouncement from the Supreme
Court, we take no position in the matter, nor should our holding be construed to
limit or define the parameters of the legislative discussions and response to this
challenge. The judicial role is limited to answering the narrow question raised:
whether the aggregate term-of-years sentence imposed on Slocumb categorically
violates the Eighth Amendment pursuant to the reach of Graham. Because we find
it does not, our judicial prerogative is at its end, and the process must continue in
the legislature.
V.
Neither Graham nor the Eighth Amendment, as interpreted by the Supreme Court,
currently prohibits the imposition of aggregate sentences for multiple offenses
amounting to a de facto life sentence on a juvenile nonhomicide offender. We
therefore decline to provide Slocumb relief from his 130-year sentence stemming
from his multiple and violent crimes. 17
17
As we have mentioned previously, our research indicates that jurisdictions
around the country are approximately evenly split as to whether Graham's and
DECLARATORY JUDGMENT ISSUED.
Appendix
I. Jurisdictions that find Graham or Miller does not apply to de facto
life sentences
United States Court United States v. Walton, 537 Fed. App'x 430, 437 (5th Cir.
of Appeals for the 2013) (finding Graham did not apply to a lengthy term-of-
Fifth Circuit years sentence).
United States Court Bunch v. Smith, 685 F.3d 546, 550–53 (6th Cir. 2012)
of Appeals for the (explaining Graham "did not clearly establish that
Sixth Circuit consecutive, fixed-term sentences for juveniles who
commit multiple nonhomicide offenses are
unconstitutional when they amount to the practical
equivalent of life without parole").
Arizona State v. Kasic, 265 P.3d 410, 414–16 (Ariz. Ct. App. 2011)
(opining Graham only applied to juvenile offenders who
committed a single nonhomicide offense and were
specifically sentenced to "life without parole" rather than a
term of years).
Arkansas Hobbs v. Turner, 431 S.W.3d 283, 289 (Ark. 2014)
(determining a juvenile nonhomicide offender had
received a sentence that complied with Graham so long as
the sentence was "nonlife").
Colorado Lucero v. People, 394 P.3d 1128, 1132–34 (Colo. 2017)
(noting the defendant, "unlike the petitioners in Graham
and Miller, did not receive a sentence of life without the
possibility of parole. Rather, he received four consecutive
sentences to terms of years for four separate
convictions. . . . Life without parole is a specific sentence,
Miller's holdings apply to de facto life sentences, with some denying relief and
some granting relief. See note 16, supra; Appendix, infra. We are hopeful the
Supreme Court will resolve this question, for it seems it cannot long remain true
that federal constitutional protections vary so widely depending solely on the state
in which a juvenile offender commits his offenses.
imposed as punishment for a single crime, which remains
distinct from aggregate term-of-years sentences resulting
from multiple convictions. Neither Graham nor Miller
concerns or even considers aggregate term-of-years
sentences."), cert. denied, 138 S. Ct. 641 (2018).
Georgia Adams v. State, 707 S.E.2d 359, 365 (Ga. 2011) (placing
emphasis on Justice Alito's dissent in Graham, in which he
stated that "nothing in the Court's opinion [in Graham]
affects the imposition of a sentence to a term of years
without the possibility of parole," Graham, 560 U.S. at
124 (Alito, J., dissenting) (internal alteration marks
omitted)).
Illinois People v. Cavazos, 40 N.E.3d 118, 139 (Ill. App. Ct.
2015) (rejecting Miller's express applicability to de facto
life sentences and "noting that there are distinct
differences between a sentence of natural life without
parole and a sentence of a determinate, albeit lengthy,
number of years"). But see People v. Reyes, 63 N.E.3d
884, 887–88 (Ill. 2016) (per curiam) (agreeing with the
State's concession that Miller's rationale applies to
mandatory term-of-years sentences that indisputably
amount to life imprisonment in the case of a defendant
who—because of statutory, firearm-sentencing
enhancements—received the minimum possible sentence
of ninety-seven years' imprisonment).
Kansas State v. Redmon, 380 P.3d 718 (Kan. Ct. App. 2016) (per
curiam) (citing Bunch, 685 F.3d at 552, for the proposition
that applying Graham to de facto life sentences could
result in confusion and uncertainty due to unanswered
questions as to what number of years constituted a de facto
life sentence; whether that number should be affected by
race, gender, or socioeconomic status, as those factors all
affect life expectancy; and whether the number of crimes
committed should be taken into account), cert. denied,
Aug. 24, 2017.
Louisiana State v. Brown, 118 So. 3d 332, 341–42 (La. 2013)
(concluding Graham did not apply to cases in which a
lengthy term-of-years sentence was the result of multiple
convictions for which the sentences were imposed
consecutively).
Minnesota State v. Ali, 895 N.W.2d 237, 242, 244–46 (Minn. 2017)
(declining to extend Miller to de facto life sentences
resulting from multiple crimes and/or consecutive
sentences), cert. denied, 138 S. Ct. 640 (2018).
Mississippi Mason v. State, 235 So. 3d 129, 134–35 (Miss. Ct. App.
2017) (holding Miller only prohibited the imposition of a
sentence of life without parole on a juvenile, not the fifty-
year sentence the juvenile there received, and explaining
life without parole sentences are legally distinguishable
from term-of-years sentences in which the offender is
eligible for good-time credit and the like), cert. denied,
233 So. 3d 821 (2018).
Missouri Willbanks v. Mo. Dep't of Corr., 522 S.W.3d 238, 243–46
(Mo. 2017) (en banc) (determining Graham did not apply
when the lengthy sentence being challenged was an
aggregate term-of-years that resulted from multiple
convictions, as evidenced by Justice Alito's dissent in
Graham, as well as Justice Thomas's observation in
dissent that the Graham majority "exclude[d] from its
analysis all juveniles sentenced to lengthy term-of-years
sentences (e.g., 70 or 80 years' imprisonment)," Graham,
560 U.S. at 113 n.11 (Thomas, J., dissenting)), cert.
denied, 138 S. Ct. 304 (2017).
New York People v. Aponte, 981 N.Y.S.2d 902, 905 (Sup. Ct. 2013)
(determining Miller and Graham applied only to sentences
of life without parole, and because the defendant remained
technically parole-eligible despite "the prospect that the
aggregate mandatory minimum periods of imprisonment
may preclude him from ever being paroled," his sentence
was not unconstitutional).
Oregon Kinkel v. Persson, 417 P.3d 401, 409–13 (Or. 2018) ("To
date, the [Supreme] Court has not extended its holdings in
Roper, Miller, and Graham to lesser minimum sentences
[than life without parole]. . . . The [Supreme] Court
neither considered nor decided in Miller and Graham how
the categorical limitations that it announced for a single
sentence for one conviction would apply to an aggregate
sentences for multiple convictions."), cert. denied, 139 S.
Ct. 789 (2019).
Tennessee State v. Merritt, No. M2012-00829-CCA-R3CD, 2013 WL
6505145, at *6 (Tenn. Crim. App. Dec. 10, 2013) (finding
the defendant's sentence of 225 years' imprisonment was
the equivalent of a life sentence, but that Graham did not
apply to de facto life sentences, only to those actually
termed "life imprisonment without the possibility of
parole").
Texas Teinert v. State, No. 01-13-00088-CR, 2014 WL 554677,
at *3 (Tex. App. Feb. 11, 2014) (explaining the holding in
Graham was "narrowly tailored" to address sentences of
life imprisonment without the possibility of parole for
juveniles, and that Graham did not apply to "a sentence
less severe than life"); Diamond v. State, 419 S.W.3d 435,
439–41 (Tex. App. 2012) (refusing to overturn a ninety-
nine year sentence for aggravated robbery because the
sentence was within the statutory range authorized by the
state legislature, and failing to respond to the dissent's
charge that such a sentence violated Graham).
Virginia Vasquez v. Commonwealth, 781 S.E.2d 920, 925–26 (Va.
2016) (stating Graham did not address "multiple term-of-
years sentences imposed on multiple crimes that, by virtue
of the accumulation, exceeded the criminal defendant's life
expectancy"; and declining to grant "precedential
treatment to the 'reasoning' in Graham" because "the duty
to follow binding precedent is fixed upon case-specific
holdings, not general expressions in an opinion that exceed
the scope of a specific holding"), cert. denied, 137 S. Ct.
568 (2016).
Wisconsin State v. Williams, 842 N.W.2d 536 (Wis. Ct. App. 2013)
(per curiam) (finding Miller inapplicable to a juvenile who
would not be eligible for parole until he had served 101
years' imprisonment because he "was not subjected to a
mandatory life-without-parole sentence").
II. Jurisdictions that find Graham or Miller applies to de facto life
sentences
United States Court McKinley v. Butler, 809 F.3d 908, 911 (7th Cir. 2016)
of Appeals for the (finding that because the defendant was sentenced to a de
Seventh Circuit facto life sentence, "the logic of Miller applies").
United States Court Moore v. Biter, 725 F.3d 1184, 1194 (9th Cir. 2013)
of Appeals for the (determining that a de facto life sentence was
Ninth Circuit irreconcilable with Graham's mandate for juvenile
nonhomicide offenders to be provided a meaningful
opportunity to reenter society).
United States Court Budder v. Addison, 851 F.3d 1047, 1053–60 (10th Cir.
of Appeals for the 2017) (finding a sentence requiring the juvenile
Tenth Circuit nonhomicide offender to serve 131.75 years before
becoming eligible for parole violated the spirit and letter
of Graham), cert. denied, 138 S. Ct. 475 (2017).
California People v. Caballero, 282 P.3d 291, 295 (Cal. 2012)
(holding a sentence requiring the offender to serve over
100 years before becoming parole-eligible did not allow
the offender to demonstrate growth and maturity in an
effort to secure release, in contravention of Graham's
dictate).
Connecticut Casiano v. Comm'r of Corr., 115 A.3d 1031, 1044 (Conn.
2015) (explaining the focus in Graham and Miller "was
not on the label of a life sentence, but rather on whether a
juvenile would, as a consequence of a lengthy sentence
without the possibility of parole, actually be imprisoned
for the rest of his life" (citations omitted) (internal
quotation marks omitted)).
Florida Henry v. State, 175 So. 3d 675, 680 (Fla. 2015) (opining
"that the Graham Court had no intention of limiting its
new categorical rule to sentences denominated under the
exclusive term of 'life in prison'").
Maryland Carter v. State, 192 A.3d 695, 725 (Md. 2018)
(determining the Eighth Amendment must prohibit de
facto and de jure life sentences alike because "[o]therwise,
the Eighth Amendment proscription against cruel and
unusual punishment in the context of a juvenile offender
could be circumvented simply by stating the sentence in
numerical terms that exceed any reasonable life
expectancy rather than labeling it a 'life' sentence").
Montana Steilman v. Michael, 407 P.3d 313, 319 (Mont. 2017) ("A
strict application of the State's argument would mean that
a sentence that inarguably would not allow for the
offender to ever be released could not be considered a life
sentence so long as the sentence is expressed in years.
Logically, the requirement to consider how 'children are
different' cannot be limited to de jure life sentences when
a lengthy sentence denominated in a number of years will
effectively result in the juvenile offender's imprisonment
for life." (emphasis added)), cert. denied, 138 S. Ct. 1999
(2018).
Nevada State v. Boston, 363 P.3d 453, 458 (Nev. 2015)
(concluding its holding—that Graham applied to de facto
life sentences—"best addresse[d] the concerns enunciated
by the U.S. Supreme Court and this court regarding the
culpability of juvenile offenders and the potential for
growth and maturity of these offenders," but recognizing
that such a holding "raise[d] complex and difficult issues,
not the least of which [wa]s when will aggregate sentences
be determined to be the functional equivalent of a sentence
of life without the possibility of parole").
New Jersey State v. Zuber, 152 A.3d 197, 212, 214 (N.J. 2017) ("To be
clear, we find that the force and logic of Miller's concerns
apply broadly: to cases in which a defendant commits
multiple offenses during a single criminal episode; to
cases in which a defendant commits multiple offenses on
different occasions; and to homicide and nonhomicide
cases."; but rejecting the notion that sentencing judges
should rely on general life-expectancy tables when
determining the point at which a term-of-years sentence
becomes a de facto life sentence: "Those tables rest on
informed estimates, not firm dates, and the use of factors
like race, gender, and income could raise constitutional
issues."), cert. denied, 138 S. Ct. 152 (2017).
New Mexico Ira v. Janecka, 419 P.3d 161, 163, 166 (N.M. 2018)
(determining the Eighth Amendment required
consideration of "the cumulative impact of consecutive
sentences on a juvenile," but that because the juvenile
defendant would become eligible for parole at the age of
sixty-two, he had already received a meaningful
opportunity for release pursuant to Graham).
Ohio State v. Moore, 76 N.E.3d 1127, 1140 (Ohio 2016)
("Graham cannot stand for the proposition that juveniles
who do not commit homicide must serve longer terms in
prison than the vast majority of juveniles who commit
murder, who, because of Miller, are all but assured the
opportunity to demonstrate maturity and rehabilitation at a
meaningful point in their sentences."), cert. denied, 138 S.
Ct. 62 (2017). We note the defendant in this case received
a resentencing hearing, whereas his co-defendant—who
was the subject of the Sixth Circuit's decision in Bunch—
failed to receive similar relief.
Pennsylvania Commonwealth v. Foust, 180 A.3d 416, 433–34, 436 (Pa.
Super. Ct. 2018) (finding the logical inference of Miller
was to prohibit de facto life sentences, but holding the
impermissible de facto life sentence must be the result of a
single term-of-years sentence, because otherwise "it would
open the door to volume sentencing discounts in cases
involving multiple juvenile homicide offenses. Juvenile
perpetrators convicted of multiple homicides would
routinely be subject to concurrent terms of imprisonment
if the Commonwealth was unable to sustain its burden of
proof under Miller . . . and juvenile offenders would
receive volume discounts for their crimes."), cert.
requested, Mar. 23, 2018.
Washington State v. Ramos, 387 P.3d 650, 661 (Wash. 2017)
("Regardless of labeling, it is undisputed that [the juvenile
defendant] was in fact sentenced to die in prison for
homicide offenses he committed as a juvenile. Miller
plainly provides that a juvenile homicide offender cannot
be sentenced to die in prison without a meaningful
opportunity to gain early release based on demonstrated
rehabilitation unless the offender first receives a
constitutionally adequate Miller hearing."), cert. denied,
138 S. Ct. 467 (2017).
Wyoming Bear Cloud v. State, 334 P.3d 132, 141–42 (Wyo. 2014)
(holding the teachings of Roper, Graham, and Miller
require an individualized sentencing hearing when the
juvenile defendant receives an aggregate, de facto life
sentence, and stating, "To do otherwise would be to ignore
the reality that lengthy aggregate sentences have the effect
of mandating that a juvenile 'die in prison'" without
consideration of his youth and its attendant characteristics
(quoting Miller, 567 U.S. at 465)).
III. Jurisdictions that find their state constitutions' cruel and unusual
punishments clauses bar de facto life sentences
Indiana Brown v. State, 10 N.E.3d 1, 4–8 (Ind. 2014)
(disapproving of a 150-year sentence, and imposing
instead an eighty-year sentence).
Iowa State v. Null, 836 N.W.2d 41, 69–74 (Iowa 2013)
(reaching its decision to extend Miller's principles
"independently under . . . the Iowa Constitution").
Massachusetts Commonwealth v. Perez, 106 N.E.3d 620, 623 (Mass.
2018) (explaining the state constitution prohibited
imposition of a later parole date for juvenile nonhomicide
offenders than would otherwise be available for juvenile
homicide offenders).
IV. Jurisdictions that declined to rule on the applicability of Graham or
Miller to de facto life sentences, but denied the juvenile offenders
relief anyway
Nebraska State v. Cardeilhac, 876 N.W.2d 876, 888–90 (Neb. 2016)
(rejecting—in the case of a juvenile offender who "was
sentenced to imprisonment for a minimum of 60 years to
life to be served consecutively to an 8- to 15-year sentence
in a separate robbery case that he was already serving"—
the juvenile's argument that Miller prohibited his lengthy
sentence, because, alternatively, (1) the juvenile was not
sentenced to "life without parole"; and (2) "in any event,
he received the full benefit of Miller juvenile sentencing
principles" due to his constitutionally-adequate sentencing
hearing).
South Dakota State v. Springer, 856 N.W.2d 460, 462, 470 (S.D. 2014)
(finding the juvenile offender—who would become
parole-eligible after serving thirty-three years of his 261-
year sentence—failed to "establish a rule for what
constitutes a de facto life sentence under which he is
entitled to relief"; declining the juvenile offender's
invitation for the court to craft its own rule defining the
point a term-of-years sentence becomes a de facto life
sentence; and "further declin[ing] the invitation to join
jurisdictions holding Roper, Graham, and Miller
applicable or inapplicable to de facto life sentences"
because the juvenile offender would become parole-
eligible at the age of 49 and therefore "did not receive life
without parole or a de facto life sentence" (emphasis
added)).
FEW and JAMES, JJ., concur. HEARN, J., dissenting in a separate opinion
in which BEATTY, C.J., concurs.
JUSTICE HEARN: Respectfully, I dissent. I commend the majority's scholarly and
well-written opinion and agree with much of its discussion on the trilogy of cases
decided by the United States Supreme Court concerning punishment for juvenile
offenders. However, I part company with the majority's belief that granting relief in
this case would impermissibly extend Graham. 18 Instead, as many other state
supreme courts have held, I believe an aggregate sentence that amounts to a de facto
life sentence falls within the scope of Graham.
Accordingly, I would follow the rationale of Maryland's highest court in
Carter, 19 where in a similar context, the court explained that the justification
underpinning Graham equally applies to a term-of-years sentence. Carter, 192 A.3d
at 726 (citing Graham, 560 U.S. at 71 ("With 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.")). In examining these basic
pillars of criminal law, the Carter court noted, "A distinction between [a LWOP and
a term-of-years sentence] makes no difference in terms of 'reconciliation with
society,' 'denial of hope,' the 'incentive to become a responsible individual,' a 'chance
of fulfillment outside of prison walls' or whether a prisoner 'will die in prison[.]'" Id.
at 727 (quoting Graham, 560 U.S. at 79). I agree with this observation, and therefore,
we cannot relinquish the protections provided by Graham—that Slocumb be
afforded a "meaningful opportunity to obtain release." Id. at 75. Moreover, as we
discussed in Aiken, youth has constitutional significance that must be thoroughly
considered when the government incarcerates a juvenile for life. Aiken v. Byars, 410
S.C. 534, 543, 765 S.E.2d 572, 577 (2014).
Nevertheless, I do not necessarily quarrel with the sentence in this case, as
Slocumb's offenses may very well constitute "truly horrifying" crimes that the
Graham court noted could subject a juvenile to remain in prison for life. Further,
Slocumb's extensive disciplinary history while incarcerated may demonstrate that he
is "irredeemable." See Graham, 560 U.S. at 75 ("Those who commit truly horrifying
crimes as juveniles may turn out to be irredeemable, and thus deserving of
incarceration for the duration of their lives."). However, before reaching that
conclusion, Slocumb is entitled to the protections afforded by Graham and Miller.
See Aiken, 410 S.C. at 543, 765 S.E.2d at 576–77 ("[I]t is the failure of a sentencing
court to consider the hallmark features of youth prior to sentencing that offends the
Constitution.").
Because I believe Slocumb's aggregate 130-year sentence is unconstitutional,
the next question concerns the appropriate remedy. I agree with the majority that this
18
Graham v. Florida, 560 U.S. 48 (2010).
19
Carter v. State, 192 A.3d 695 (Md. 2018).
issue is best reserved for the General Assembly because that body is better equipped
to fashion an appropriate solution in order to bring our juvenile sentencing scheme
into constitutional compliance. To accomplish this task, courts and legislatures
across the country have reached differing outcomes, including arbitrarily declaring
a specific threshold—such as a 50-year sentence, implementing a parole system,
using life expectancy tables, or a combination thereof. See Carter, 192 A.3d at 727–
30 (discussing how courts across the country have resolved this issue). At this point,
I would decline to adopt a specific approach and would delay implementation of my
ruling until January 1, 2020, to provide the General Assembly with ample time to
act in this area and to ensure our juvenile sentencing scheme complies with the
Eighth Amendment.
BEATTY, C.J., concurs.