Kip Kinkel uses landmark U.S. Supreme Court ruling to challenge sentence

By Maxine Bernstein, The Oregonian, April 26, 2013

Almost 15 years after he fatally shot his parents and then went on a shooting rampage at Thurston High School, Kipland P. Kinkel is asking a state judge to throw out his nearly 112-year sentence based on a landmark ruling last summer by the U.S. Supreme Court.

Kinkel was 15 when he gunned down his parents in their Springfield home on May 20, 1998, and then killed two students and wounded 25 others at the school the next morning.

WATCH – Kip Kinkel, then 15, is taken on a walk-through of Thurston High School.

Shortly before he was to go to trial, Kinkel abandoned an insanity defense and accepted a plea deal to serve 25 years for shooting his parents, William Kinkel, 59, and Faith Kinkel, 57, and two Thurston High School students, Mikael Nickolauson, 17, and Ben Walker, 16. But the deal also allowed a Lane County judge to tack on 40 months for each of the 26 attempted murder counts Kinkel faced for wounding the other students and lunging at an officer with a knife once in custody.

The judge sentenced him in November 1999 to 111 years and eight months without the possibility of parole.

Although Kinkel, now 30, was thought to have exhausted his appeals in state court, his attorney filed a new petition citing last June’s Supreme Court opinion that struck down mandatory life sentences without parole for two 14-year-old boys.

Kip Kinkel at 30

Kip Kinkel at 30

The high court ruled 5-4 in Miller v. Alabama that the mandatory true life sentences for the boys — tried as adults and convicted of murder — violated the Eighth Amendment’s ban on cruel and unusual punishment.

The court left open the possibility that minors under age 18 still could be sentenced to life without parole — but only if the sentencing judge makes a finding that the penalty is appropriate, weighing the defendant’s character and details of the crime.

Juvenile justice experts around the country and in Oregon say they expect many attorneys to submit challenges by the June 25 deadline — but not only for youths facing mandatory life terms. They believe the Supreme Court decision could apply to “discretionary” life sentences handed down by a judge or jury even when their states don’t require it or to virtual life sentences like Kinkel’s.

U.S. Supreme Court

The ruling stemmed from petitions by Evan Miller and Kuntrell Jackson, both 14 at the time of their crimes. Jackson was with two older boys when the three tried to rob an Arkansas video store in 1999. Jackson was there when one of the older boys shot and killed a store clerk. Jackson was convicted of felony murder.

In 2003, Miller and an older boy beat a 52-year-old neighbor in Alabama after the three had spent the evening smoking marijuana and playing drinking games. The youths then set fire to the man’s home and he died of smoke inhalation. Miller was convicted of first-degree murder.
In striking down their mandatory life-without-parole sentences, U.S. Supreme Court Justice Elena Kagan wrote in the majority opinion that “such a scheme prevents those meting out punishment from considering a juvenile’s lessened culpability and greater capacity for change.”

“Based on the majority opinion, I think it’s fair to say that the Supreme Court disfavors life without parole sentences and expects that to be imposed only after careful and full consideration of the attributes and characteristics of the youth,” said Marsha Levick, deputy director and chief counsel of the Juvenile Law Center, a national public interest law firm for children based in Philadelphia.

Oregon defense attorneys also are considering citing the ruling to challenge the state’s mandatory minimum sentences for juveniles in less serious crimes.

“What a lot of people here are hoping for is that we can use the reasoning in Miller to attack juvenile Measure 11 sentencing,” said Lane Borg, president of the Oregon Criminal Defense Lawyers Association. “Everybody is just a buzz about that case right now.”

Only 15 at the time

Nationally, about 2,100 juveniles are serving mandatory life sentences without parole. Another 400 are serving life sentences without parole at the discretion of a judge or jury, according to the Juvenile Law Center.

In Oregon, seven inmates sentenced as juveniles are serving life in prison without parole and another three are like Kinkel, juveniles who were tried as adults and sentenced to 80 years or more, according to state corrections records.

In Kinkel’s petition, his lawyer argues that the nearly 112-year prison term is longer than the life expectancy of any human. He urges a Marion County judge to throw out Kinkel’s sentence and order a new sentencing hearing.

“He pleaded guilty and didn’t try to evade responsibility for what he had done and asked for a lawful sentence,” attorney Andy Simrin wrote in the petition filed March 27.

Yet Kinkel’s sentence failed to consider that he was a child, only 15 at the time, Simrin said.

Oregon’s attorney general must respond by next month. The Oregon Department of Justice has successfully defended Kinkel’s sentence through multiple challenges in state court up to this point. The state Court of Appeals called Kinkel’s crimes among “the most horrific in Oregon’s history” and concluded that the judge appropriately gave greater weight to the “protection of society” in determining Kinkel’s sentence.

“We’re not going to comment on what our next steps are going to be,” said Ellen Klem, a Justice Department spokeswoman.

An attorney for a Hillsboro boy, the youngest person convicted of aggravated murder in Oregon in more than 50 years, also has cited the Supreme Court ruling in a petition to the state Court of Appeals.

In 2011, a Washington County judge found Juan Carlos Negrete-Vasquez guilty of killing another teenager on Oct. 2, 2009. Negrete-Vasquez, 13 at the time, had confessed to police that he beat the victim in the back of the head with a tire iron, stabbed him and kicked his body into the river at Steamboat Park in Cornelius. His defense lawyer at trial argued Negrete-Vasquez acted on the orders of an older co-defendant.

The judge sentenced him to life with the possibility of parole after 30 years, the mandatory minimum for juveniles convicted of aggravated murder in adult court.

His attorney, Marc D. Brown, argues that the Supreme Court was more disturbed by the “mandatory nature” of a sentence for a juvenile, than the length, because it “precludes a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it.”

So that means “any mandatory sentence imposed upon a juvenile” in Oregon could be challenged as cruel and unusual based on the Supreme Court ruling, he says.

Uphill battle

Whether the Supreme Court decision applies retroactively to juvenile life sentences is a question pending before several state Supreme Courts, including in Pennsylvania, Minnesota, Missouri and Illinois.

Kinkel’s lawyer contends that it’s relevant to Kinkel’s appeal because one of the 14-year-old boys in the Supreme Court case, Kuntrell Jackson, won before the high court nine years after he was sentenced.

LISTENKip Kinkel audio recorded May 21, 1998 (Warning: Some graphic language)

The lawyer also notes that Kinkel was just a year older than the boys in the Supreme Court case. Kinkel “was still but a child, as defined repeatedly by Oregon statutes recognizing the special need to protect those of tender years,” Simrin said.

Some experts say Kinkel will likely face an uphill battle.

Shannon Wight, associate director of Oregon’s Partnership for Safety and Justice, a nonprofit advocacy organization, said she was surprised to learn of the Kinkel petition, considering the Supreme Court addressed mandatory life sentences, not virtual life sentences.

Retired Multnomah County prosecutor Mark McDonnell said he’s not surprised by Oregon defense attorney efforts to challenge the juvenile sentences, but added, “I just think they’re reaching.”

Although Kinkel’s sentence wasn’t mandatory, his lawyer intends to argue that the judge who sentenced Kinkel believed he didn’t have much discretion.

The attorney quoted from a transcript of Lane County Circuit Judge Jack Mattison‘s sentencing: “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.”

The judge also said Kinkel’s sentence “must be much broader than the possible reformation or rehabilitation of Mr. Kinkel” and that Kinkel must pay a price for each person he riddled with bullets. He did observe that Kinkel could “make a credible case for gubernatorial clemency” and seek a shortening of his sentence under appropriate conditions.

Kinkel had filed a challenge to his sentence in federal court in 2011, saying he was mentally ill at the time of the shootings and that the trial court never should have accepted his guilty plea without ordering a mental health exam. But it’s on hold now, pending the outcome of the state petition.