State v. Kelliher

NC Constitution Article I, § 27 (“cruel or unusual punishments”)

James Kelliher was 17 when he pleaded guilty to two counts of first-degree felony murder for participating in a robbery where his co-defendant killed two people. He received consecutive sentences of life without parole. After the U.S. Supreme Court banned mandatory life without parole sentences for youth under 18, Kelliher was resentenced to two consecutive 25-year terms, making him parole-eligible after a total of 50 years. The Court of Appeals concluded that because the trial court had found that Kelliher was “neither incorrigible nor irredeemable,” 50 years with no parole-eligibility amounted to a de facto life sentence in violation of the 8th Amendment.

The prohibition on “cruel or unusual punishment” in the North Carolina Constitution article I, section 27, is distinct from and broader than the 8th Amendment, and North Carolina courts are not bound by federal court interpretations of “cruel and unusual” when analyzing analogous state constitution claims.

It is a violation of both the 8th Amendment and the North Carolina Constitution to sentence a child who, like Kelliher, has been determined to be “neither incorrigible nor irredeemable” to life without parole. Further, a sentence or aggregated sentences that require a child to serve more than 40 years before becoming parole-eligible is a de facto LWOP sentence.

The Court rejected a lockstep interpretation of analogous state and federal constitutional provisions, reasoning that North Carolina courts should interpret the state constitution “to give effect to the choices the people of North Carolina made in constructing and adopting North Carolina’s own Constitution reflecting North Carolinians’ own aspirations and concerns.” In doing so, it repudiated an earlier case, State v. Green, 348 N.C. 588 (1998), which suggested that the cruel and/or unusual clauses would be analyzed the same for child defendants. “Green’s time has passed,” wrote Justice Anita Earls, calling its reasoning “starkly inconsistent” with current understanding of adolescent development.

The court reasoned that 40 years before parole eligibility is de facto LWOP, and must be treated like a formal LWOP sentence, because such a lengthy sentence deprives the child the opportunity to demonstrate rehabilitation and to establish a meaningful life outside of prison.

The Court’s ruling has particular significance for children convicted of more than one first-degree murder charge, as the statutory minimum in North Carolina’s “Miller fix” law is 25 years. The 40-year threshold requires multiple sentences to run concurrently for children not found to be irredeemable.