# Kelly v. Brown > Court of Appeals for the Seventh Circuit · March 16, 2017 · 851 F.3d 686 URL: https://www.frixlaw.com/law-library/cases/8414564 ## Case - **Full name:** McKinley KELLY, Applicant v. Richard BROWN - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** March 16, 2017 - **Citations:** 851 F.3d 686; 2017 U.S. App. LEXIS 4700; 2017 WL 1026121 - **Precedential status:** Published - **Opinion:** Dissent by Posner - **Judges:** Manion, Posner, Wood - **Cited by:** 23 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8414564 ## How later opinions describe it (automated extraction) - holding that prisoner who’s first opportunity at release at age 70 faced de facto life sentence - noting that the life expectancy for a juvenile offender serving a life sentence in a Michigan correctional facility is 50.5 years - holding 16-year-old who would first be eligible for parole at 70 did not receive de facto life sentence - rejecting claim that 110-year sentence for two murders committed by juvenile when he was sixteen violated Miller v. Alabama ## Opinion text POSNER, Circuit Judge, dissenting. When McKinley Kelly was 16 years old, he shot and killed two people. Tried and convicted in an Indiana state court of the two 'murders, he was sentenced to 110 years in prison. Even if, as the State says, Kelly will be eligible for parole when he is 70, he nevertheless is effectively serving a life sentence. The ACLU of Michigan reports that the average life expectancy of an inmate sentenced to life in prison is 58 years; for African-Americans like Kelly the average life expectancy is 56; and for juveniles sentenced to life the average is 50½ years. See ACLU of Michigan, “Michigan Life Expectancy Data for Youth Serving Natural Life Sentences,” April 2013, http:// fairsentencingofyouth.org/wp-content/ uploads/2010/02/Michigan-Life-Expeetancy-Data-Youth-Serving-Life.pdf (visited March 15, 2017, as were the other websites in this opinion). Kelly claims that his sentence is unconstitutional and that he therefore is entitled to be resentenced. We should authorize the district court to accept a second petition for a writ of habeas corpus from Kelly, to enable the validity of his claim to be determined. The Supreme Court, in Miller v. Alabama, 567 U.S. 460 , 132 S.Ct. 2455, 2469 , 183 L.Ed.2d 407 (2012), outlawed statutes that require judges to impose a life sentence without parole on a juvenile offender, defined as anyone who committed the crime (or. crimes) before his eighteenth birthday. Miller requires judges to give special consideration to the fact of youth and how it reflects on the culpability of the offender. For “children are constitutionally different from adults for purposes of sentencing ... because juveniles have diminished culpability and greater prospects for reform.” Id. at 2464. “[Yjouth is more than a chronological fact. It is a time of immaturity, irresponsibility, impetuousness, and recklessness. It is a moment and condition of life when a person may be most susceptible to influence and to psychological damage. And its signature qualities are all transient.” Id. at 2467 (citations omitted); see also id. at 2468; Montgomery v. Louisiana, — U.S. -, 136 S.Ct. 718, 734 , 193 L.Ed.2d 599 (2016). In 2015 the Department of Justice released data from a 7-year longitudinal study of more than 1,300 “serious juvenile offenders” — those who had committed felony-level violent, property, or drug crimes. See Laurence Steinberg et al., “Psychosocial Maturity and Desistance From Crime in a Sample of Serious Juvenile Offenders,” Office of Juvenile Justice and Delinquency Prevention, March 2015, www. ojjdp.gov/pubs/248391.pdf; Melissa Sick-mund and Charles Puzzanchera, eds., “Juvenile Offenders and Victims: 2014 National Report,” Ch. 3, National Center for Juvenile Justice, December 2014, www. ojjdp.gov/ojstatbb/nr2014/downloads/NR 2014.pdf. The Justice Department study revealed that more than 90 percent of juvenile offenders grow out of such antisocial behavior by young adulthood and do not re-offend after their first contact with a court — and that regardless of the sanction imposed on the child. Even after matching the subjects with the gravity of their offenses — whether they were incarcerated, placed in residential facilities, put on probation, or received community-based services — the vast majority did not re-offend; instead they grew up. Thomas A. Loughran et al, “Studying Deterrence Among High-Risk Adolescents,” August 2015, Office of Juvenile Justice and Delinquency Prevention, www.ojjdp.gov/pubs/ *689 248617.pdf. Researchers conclude that “most juvenile offending is, in fact, limited to adolescence” and that “the process of maturing put of crime is linked to the process of maturing more generally, including the development of impulse control and future orientation.” Steinberg et al., supra, at 1. The “signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside,” and generally does. Roper v. Simmons, 543 U.S. 551, 570 , 125 S.Ct. 1183 , 161 L.Ed.2d 1 (2005), quoting Johnson v. Texas, 509 U.S. 350, 368 , 113 S.Ct. 2658 , 125 L.Ed.2d 290 (1993). As a result of these insights, nineteen states now prohibit imposing a life sentence without parole on a juvenile, The Sentencing Project, “State Advances in Criminal Justice Reform, 2016,” p. 4, January 2017, www.sentencingproject.org/ publications/state-advances-criminal-justice-reform-2016; the incarceration of juveniles in both adult and juvenile facilities has fallen, Ashley Nellis & Marc Mauer, “What We Can Learn from the Amazing Drop in Juvenile Incarceration,” January 24, 2017, www.themarshallproject. org/2017/01/24/what-we-can-learn-from-the-amazing-drop-in-juvenile-inearceration#.tWDqrzgtg; and likewise the number of homicides committed by juveniles, “OJJDP Statistical Briefing Book,” Office of Juvenile Justice and Delinquency Prevention, May 2016, www. ojjdp.gov/ojstatbb/offenders/qa03105.asp? qaDate=2014. Consistent with these trends, the Supreme Court concluded in Miller that a life sentence is unconstitutional for all but the “rare juvenile offender whose crime reflects irreparable corruption.” Miller v. Alabama, supra, 132 S.Ct. at 2469 , quoting Roper v. Simmons, 543 U.S. 551, 573 , 125 S.Ct. 1183 , 161 L.Ed.2d 1 (2005); see also Montgomery v. Louisiana, supra, 136 S.Ct. at 733-34 . Yet in sentencing Kelly the trial judge said, only one thing relating to his youth when he committed the murders: “The mitigating factors, as far as Mr. Kelly is concerned, is [the judge meant ‘are’] the fact that he’s 17 years old right now and [was] 16 years [old] at the time he committed this offense.” So cursory a statement does not evidence the deliberate reflection on Kelly’s character that would be necessary to conclude that he is “irretrievably depraved” and his “rehabilitation is impossible.” Roper v. Simmons, supra, 543 U.S. at 570 , 125 S.Ct. 1183 ; Montgomery v. Louisiana, supra, 136 S.Ct. at 733 . As far as the record reflects, Kelly is a typical youthful offender. We do not know the details of the fight that resulted in his shooting two people, but the judge found that the killings were not planned and were tragic for everyone involved, including Kelly. The judge mused that there “have always been disagreements among young people” and that what would have been a fist fight or a knife fight in years past, today has elevated consequences because of the ubiquity of guns; not the stuff of a crime demonstrating the complete depravity and irredeemability of Kelly. We should allow him to pursue his Miller claim in the district court, which should conduct a hearing to determine whether he is or is not incorrigible. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8414564. Public record. Not legal advice.