9th Circuit Ruling Could Set School Shooting Spree Killer Free

In 1998, 15-year-old Kip Kinkel murdered his father and mother before heading to school and turning his guns on his classmates. Two students died, twenty-five were wounded, and Kinkel, after considering an insanity defense, pled guilty and was sentenced to nearly 112 years in prison.

The process leading to the plea deal raises some issues in retrospect. Three weeks before the plea deal was reached, Kinkel's medications for schizophrenia were withdrawn for purposes of a mental health examination. His appeal for a new trial, and an insanity defense, was rejected by the Oregon Supreme Court in 2011.

But insanity may not be what sets him free. The path out of prison may lie instead in recent opinions by the Supreme Court and the Ninth Circuit.

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Supreme Court: No Life for Juveniles

In a pair of cases, the Supreme Court has held, first, in Graham, that life sentences without parole for juveniles constituted cruel and unusual punishment. A year later, in a second case, that ruling was somewhat extended in Miller to murderers. Justice Alito's dissent in that case is especially relevant:

Even a 17 ½-year-old who sets off a bomb in a crowded mall or guns down a dozen students and teachers is a 'child' and must be given a chance to persuade a judge to permit his release into society.

One significant difference: Miller applies to mandatory minimum sentences of life without parole for murderers.

Ninth: Retroactivity, Maybe

Earlier this month, the Ninth Circuit ruled that the Supreme Court's "ban" on life sentences for juveniles applied retroactively, as Teague covers "rules prohibiting a certain category of punishment for a class of defendants because of their status or offense."

In that case, Roosevelt Moore had previously been sentenced to 254 years for a string of sexual assaults committed at the age of 16. The Ninth Circuit not only applied Graham retroactively, but it overruled the California Supreme Court's finding that Graham didn't apply to "term of life" sentences.

The Ninth Circuit emphasized that the label of "without parole" was unimportant. What is important is the actual possibility of parole. Because Moore had no realistic chance of parole with a 254-year sentence, Graham applied and habeas relief was granted.

Kinkel's Sentence

Kinkel's 112-year sentence seems to fit the Moore and Miller criteria.

Moore applied Graham's nonhomicide ban retroactively to juvenile offenders seeking collateral review and crucially extended that to "term of years" sentences that realistically leave no hope for parole.

As for Miller, applicability is a closer call. Though there was no strict mandatory minimum sentence, the judge did say, during sentencing, that, "Given the mandatory nature of Measure 11 sentences, I do not have the flexibility to structure any kind of long-range conditional sentence, even were it appropriate to do so, and I do not believe it is."

Limited discretion? Certainly. A mandatory minimum of life without parole? Not exactly. Does it fit within the reaches of Miller, Graham, and Moore? Quite possibly.

Kinkel's collateral review is pending now in federal court, and he recently filed for review in state court on the basis of Miller, reports The Oregonian. Both the Miller and schizophrenia issues could provide a basis for federal habeas relief, though federal deference to state judgments limits the mental health argument greatly.

Should his appeals eventually lead to habeas relief, he could be granted the new trial he previously sought.

Related Resources:

• Juvenile Life Sentences Unconstitutional Without Parole (FindLaw's Decided Blog)
• Oregon's attorney general asks judge to throw out Kip Kinkel's request for new sentencing hearing (The Oregonian)
• Doctors: Kinkel hid schizophrenia (KATU)