State v. Kelliher, 2022-NCSC-77, ___ N.C. ___ (Jun. 17, 2022)

This Cumberland County case came before the Supreme Court on discretionary review of the opinion of the Court of Appeals, 273 N.C. App. 616 (2020). The defendant, James Kelliher, pled guilty to two counts of first-degree murder for crimes committed when he was 17 years old in 2001. He received consecutive sentences of life without parole. After the Supreme Court of the United States decided Miller v. Alabama, 567 U.S. 460 (2012), the defendant was resentenced to consecutive sentences of life with the possibility of parole after 25 years, which would make him parole eligible after 50 years, when he will be 67 years old. The Court of Appeals concluded that because the trial court had found that Kelliher was “neither incorrigible nor irredeemable,” the lengthy period he would have to serve before being eligible for parole was a de facto sentence of life without parole in violation of the Eighth Amendment.

After the Court of Appeals decided the case but before it was heard before the Supreme Court of North Carolina, the Supreme Court of the United States decided Jones v. Mississippi, 141 S. Ct. 1307 (2021) (summarized here), holding that no specific findings are required to authorize a sentence of life without parole for a defendant who was a juvenile at the time of the offense. The decision in Jones prompted the State to argue before the Supreme Court that the defendant’s federal and state constitutional claims lacked merit.

The Court held that it violates the Eighth Amendment and article I, section 27 of the state constitution to sentence a juvenile defendant who, like Kelliher, has been determined to be “neither incorrigible nor irredeemable” to life without parole. The Court rejected the State’s argument that Jones repudiated the substantive Eighth Amendment rule of Miller and Montgomery v. Louisiana, 577 U.S. 190 (2016). Rather, Jones merely established that the Eighth Amendment does not require a sentencing court to make a specific finding that a juvenile homicide offender is permanently incorrigible before sentencing him or her to life without parole. Jones did not change the rule from Miller and Montgomery that a sentence of life without parole is unconstitutional for a defendant found to be “neither incorrigible nor irredeemable.”

The Court next considered whether Kelliher’s lengthy aggregate parole-eligibility period amounted to a de facto sentence of life without parole. The Court observed that the focus of the United States Supreme Court’s Eighth Amendment jurisprudence as applied to youthful defendants has been on “the nature of the offender, not the circumstances of the crime.” Slip op. ¶ 42. Therefore, the Court concluded, the underlying rule should not differ between sentences arising from a single offense and those arising from multiple offenses. Applying that principle, the Court concluded that Kelliher’s 50-year aggregate parole eligibility period is a de facto sentence of life without parole within the meaning of the Eighth Amendment to the United States Constitution.  

The Court went on to conclude that article I, section 27 of the North Carolina Constitution offers even broader protection for the defendant than the Eighth Amendment in this context. The Court disavowed a prior case, State v. Green, 348 N.C. 588 (1998), in which it had said that cruel and/or unusual punishment claims under article I, section 27 and the Eighth Amendment had historically been analyzed the same. Analyzing that broader protection in light of a clear majority of other jurisdictions to have considered the issue, the Court concluded that a 50-year parole eligibility period deprived the defendant of a meaningful opportunity to be released. In answer to the ultimate question of “how long is too long” under the state constitution, the Court “identif[ied] forty years as the threshold distinguishing a permissible sentence from an impresmissible de facto life without parole sentence for juveniles not found to be irredeemable.” Slip op. at ¶ 68. That number was informed by data from the United States Sentencing Commission, which has defined any sentence of 470 months (39 years and 2 months) or longer as a de facto life sentence in light of the average life expectancy of an inmate, as well as employment and retirement data from North Carolina.

The Court clarified that its interpretation of what constitutes cruel or unusual punishment as applied to a juvenile offender does not extend to adult offenders.

Having concluded that a 50-year parole-eligibility period constituted an impermissible de facto life without parole sentence, the Court remanded the case to the trial court with instructions to enter two concurrent sentences of life with the possibility of parole after 25 years, as that would be the only sentencing option that would not run afoul of the Court’s 40-year parole-eligibility threshold.

The Chief Justice, joined by Justice Berger and Justice Barringer, dissented, writing that North Carolina’s post-Miller statutory scheme for sentencing juvenile defendants, including the authority to impose consecutive sentences, complies with the federal and state constitutions, and that the consecutive sentences imposed here were not improper.