State v. Taylor G.

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 STATE v. TAYLOR G.—DISSENT

EVELEIGH, J., dissenting. I respectfully dissent. I
disagree with part I of the majority opinion and, in
particular, the majority’s interpretation of Roper v. Sim-
mons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1
(2005), Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011,
176 L. Ed. 2d 825 (2010), and Miller v. Alabama,
U.S. , 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
I disagree with the majority’s conclusion that the
rationales of Roper, Graham, and Miller—that juvenile
offenders are constitutionally different than adults
because of their decreased culpability—apply with less
force when the sentence imposed is not the death pen-
alty or life without parole. Indeed, the majority omits
language in Miller that expressly precludes its analysis:
‘‘[N]one of what [Graham] said about children—about
their distinctive (and transitory) mental traits and envi-
ronmental vulnerabilities—is crime-specific.’’ Miller v.
Alabama, supra, 132 S. Ct. 2465. In my view, and in the
view of the Supreme Court of Iowa in State v. Lyle,
854 N.W.2d 378 (Iowa 2014), neither the crime nor its
mandatory minimum punishment should be a factor in
a sentencing court’s ability to comply with the eighth
amendment to the United States constitution and, there-
fore, a sentencing court possesses discretion to fashion
a constitutionally permissible sentence, even if that sen-
tence departs downward from a mandatory minimum
sentence. In Miller, the United States Supreme Court
agreed that a juvenile’s features are ‘‘evident in the
same way, and to the same degree’’ regardless of the
crime or the punishment. Miller v. Alabama, supra,
2465. Additionally, I disagree with the majority’s conclu-
sion that a sentencing court always retains constitution-
ally sufficient sentencing discretion merely because it
is free to impose a sentence harsher than the mandatory
minimum set by the legislature.
Instead, I would conclude that the eighth amend-
ment’s prohibition against cruel and unusual punish-
ment precludes imposition of any mandatory minimum
sentence on a juvenile offender because such offender’s
status triggers the requirement of individualized, fully
discretionary sentencing. Therefore, I respectfully
dissent.
In part I of this opinion, I review the decisions of the
United States Supreme Court in Roper, Graham, and
Miller, and detail how those cases were applied by the
Supreme Court of Iowa in Lyle. In part II of this opinion,
I discuss the analysis proffered by the majority. In part
III of this opinion, I explain how Roper, Graham, and
Miller should have dictated a different outcome in the
present case.
I
 In Roper, Graham, and Miller, the United States
Supreme Court examined juvenile sentencing through
the lens of the eighth amendment to the United States
constitution. In those cases, the court declared uncon-
stitutional the imposition on juvenile offenders of the
death penalty; Roper v. Simmons, supra, 543 U.S. 568;
life without parole for nonhomicide offenses; Graham
v. Florida, supra, 560 U.S. 82; and mandatory life with-
out parole for homicide offenses. Miller v. Alabama,
supra, 132 S. Ct. 2465. The court so concluded because
of the marked physiological and psychological differ-
ences between juveniles and adults and, accordingly,
the reduced penological justifications associated with
sentencing juveniles as adults. The court’s jurispru-
dence in these three cases leads to the inescapable
conclusion, adopted by the Supreme Court of Iowa in
State v. Lyle, supra, 854 N.W.2d 378, that individualized,
fully discretionary sentencing of juvenile offenders,
including the ability to depart downward from a manda-
tory minimum sentence, is the only way to comport with
the eighth amendment’s strictures and appropriately
account for the ways in which juveniles differ from
adults.
A
The United States Supreme Court’s trilogy of juvenile
sentencing cases explored the multitude of reasons why
‘‘children are constitutionally different from adults for
purposes of sentencing.’’ Miller v. Alabama, supra, 132
S. Ct. 2464.
The first of these cases, Roper v. Simmons, supra, 543
U.S. 568, highlighted the differences that exist between
juveniles and adults when it concluded that the death
penalty could not constitutionally be applied to juvenile
offenders. The court noted ‘‘[t]hree general differences
between juveniles under [eighteen] and adults . . . .
First, as any parent knows and as the scientific and
sociological studies . . . confirm, ‘[a] lack of maturity
and an underdeveloped sense of responsibility are
found in youth more often than in adults and are more
understandable among the young. These qualities often
result in impetuous and ill-considered actions and deci-
sions.’ ’’ Id., 569. Second, ‘‘juveniles are more vulnerable
or susceptible to negative influences and outside pres-
sures, including peer pressure.’’ Id. ‘‘The third broad
difference is that the character of a juvenile is not as
well formed as that of an adult.’’ Id., 570.
The court in Roper noted that ‘‘[t]he susceptibility of
juveniles to immature and irresponsible behavior means
‘their irresponsible conduct is not as morally reprehen-
sible as that of an adult.’ . . . The reality that juveniles
still struggle to define their identity means it is less
supportable to conclude that even a heinous crime com-
mitted by a juvenile is evidence of irretrievably
depraved character. From a moral standpoint it would
be misguided to equate the failings of a minor with
those of an adult, for a greater possibility exists that a
minor’s character deficiencies will be reformed. Indeed,
‘[t]he relevance of youth as a mitigating factor derives
from the fact that the signature qualities of youth are
transient; as individuals mature, the impetuousness and
recklessness that may dominate in younger years can
subside.’ . . . [See L. Steinberg & E. Scott, ‘‘Less Guilty
by Reason of Adolescence: Developmental Immaturity,
Diminished Responsibility, and the Juvenile Death Pen-
alty,’’ 58 Am. Psychologist 1009, 1014 (2003)] (‘For most
teens, [risky or antisocial] behaviors are fleeting; they
cease with maturity as individual identity becomes set-
tled. Only a relatively small proportion of adolescents
who experiment in risky or illegal activities develop
entrenched patterns of problem behavior that persist
into adulthood’).’’ (Citation omitted.) Roper v. Sim-
mons, supra, 543 U.S. 570.
The Supreme Court in Roper concluded that ‘‘[t]he
differences between juvenile and adult offenders are
too marked and well understood to risk allowing a
youthful person to receive the death penalty despite
insufficient culpability. An unacceptable likelihood
exists that the brutality or cold-blooded nature of any
particular crime would overpower mitigating argu-
ments based on youth as a matter of course, even where
the juvenile offender’s objective immaturity, vulnerabil-
ity, and lack of true depravity should require a sentence
less severe than death. . . . It is difficult even for
expert psychologists to differentiate between the juve-
nile offender whose crime reflects unfortunate yet tran-
sient immaturity, and the rare juvenile offender whose
crime reflects irreparable corruption. . . . As we
understand it, this difficulty underlies the rule forbid-
ding psychiatrists from diagnosing any patient under
[eighteen] as having antisocial personality disorder
. . . . If trained psychiatrists with the advantage of
clinical testing and observation refrain, despite diagnos-
tic expertise, from assessing any juvenile under [eigh-
teen] as having antisocial personality disorder, we
conclude that [s]tates should refrain from asking jurors
to issue a far graver condemnation—that a juvenile
offender merits the death penalty.’’ (Citations omitted.)
Id., 572–73.
Just five years later, in Graham, the Supreme Court
reaffirmed its understanding of juveniles and
expounded on its discussion of the differences between
juveniles and adults, concluding that it is unconstitu-
tional for juveniles to be discretionarily sentenced to
life without parole for nonhomicide crimes. Graham
v. Florida, supra, 560 U.S. 82. The court noted that
‘‘developments in psychology and brain science con-
tinue to show fundamental differences between juvenile
and adult minds. For example, parts of the brain
involved in behavior control continue to mature through
late adolescence.’’ Id., 68. ‘‘It follows that, when com-
pared to an adult murderer, a juvenile offender who
did not kill or intend to kill has a twice diminished
moral culpability. The age of the offender and the nature
of the crime each bear on the analysis.’’ Id., 69.
The court in Graham also cautioned that the immatu-
rity of juveniles contributes to ‘‘special difficulties
encountered by counsel in juvenile representation. . . .
[T]he features that distinguish juveniles from adults
also put them at a significant disadvantage in criminal
proceedings. Juveniles mistrust adults and have limited
understandings of the criminal justice system and the
roles of the institutional actors within it. They are less
likely than adults to work effectively with their lawyers
to aid in their defense. . . . Difficulty in weighing long-
term consequences; a corresponding impulsiveness;
and reluctance to trust defense counsel seen as part of
the adult world a rebellious youth rejects, all can lead
to poor decisions by one charged with a juvenile
offense. . . . These factors are likely to impair the
quality of a juvenile defendant’s representation.’’ (Cita-
tions omitted.) Id., 78.
Two years later, the Supreme Court yet again consid-
ered the psychological and physiological differences
between juveniles and adults in Miller, concluding that
juveniles convicted of homicide crimes cannot constitu-
tionally be sentenced to mandatory life without parole.
Miller v. Alabama, supra, 132 S. Ct. 2469. The court in
Miller explained: ‘‘The evidence presented to us in these
cases indicates that the science and social science sup-
porting Roper’s and Graham’s conclusions have
become even stronger.’’ Id., 2464 n.5. The court, quoting
an amicus brief filed by the American Psychological
Association, then noted that ‘‘[i]t is increasingly clear
that adolescent brains are not yet fully mature in regions
and systems related to higher-order executive functions
such as impulse control, planning ahead, and risk avoid-
ance . . . .’’ (Internal quotation marks omitted.) Id.,
2465 n.5. The conclusions in ‘‘Graham and Roper and
[the] individualized sentencing cases alike teach that
in imposing a [s]tate’s harshest penalties, a sentencer
misses too much if he treats every child as an adult.
. . . Indeed, [mandatory life without parole] ignores
that [the juvenile offender] might have been charged
and convicted of a lesser offense if not for the incompe-
tencies associated with youth—for example, his inabil-
ity to deal with police officers or prosecutors (including
on a plea agreement) or his incapacity to assist his own
attorneys.’’ Id., 2468. The court in Miller noted that
‘‘none of what [Graham] said about children—about
their distinctive (and transitory) mental traits and envi-
ronmental vulnerabilities—is crime-specific. Those fea-
tures are evident in the same way, and to the same
degree, when (as in both cases here) a botched robbery
turns into a killing. So Graham’s reasoning implicates
any [life without parole] sentence imposed on a juve-
nile, even as its categorical bar relates only to nonhomi-
cide offenses.’’ Id., 2465.
The Roper, Graham, and Miller cases thus chronicle
the Supreme Court’s ever strengthening conclusion that
juveniles cannot be treated as adults in the sentenc-
ing context.
B
After expounding on the physiological and psycholog-
ical differences inherent in juveniles, the decisions of
the Supreme Court in Roper, Graham, and Miller each
concluded that such differences erode much of the
penological justifications for harsh punishments on
juveniles. Specifically, the court discussed how retribu-
tion, deterrence, incapacitation, and rehabilitation may
not squarely justify harsh punishments of juveniles in
all cases. The court’s rationales over the span of years
encompassing Roper, Graham, and Miller lead to the
conclusion that an individualized, fully discretionary
sentencing is the only process by which a sentencing
court can appropriately account for the differences
inherent in juveniles.
The first penological justification, retribution, could
not be justified as ‘‘strong[ly] with a minor [charged
with a homicide offense] as with an adult. Retribution
is not proportional if the law’s most severe penalty is
imposed on one whose culpability or blameworthiness
is diminished, to a substantial degree, by reason of
youth and immaturity.’’ Roper v. Simmons, supra, 543
U.S. 571. As to nonhomicide crimes, the court in Gra-
ham noted that ‘‘retribution does not justify imposing
the second most severe penalty [of life without parole]
on the less culpable juvenile nonhomicide offender.’’
Graham v. Florida, supra, 560 U.S. 72. Even though
‘‘[s]ociety is entitled to impose severe sanctions on a
juvenile nonhomicide offender to express its condem-
nation of the crime and to seek restoration of the moral
imbalance caused by the offense . . . ‘[t]he heart of
the retribution rationale is that a criminal sentence must
be directly related to the personal culpability of the
criminal offender.’ [Tison v. Arizona, 481 U.S. 137, 149,
107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987)].’’ Graham v.
Florida, supra, 71. The personal culpability of such a
juvenile offender may be questionable given the fact
that his or her ‘‘transgression ‘is not as morally repre-
hensible as that of an adult.’ ’’ Id., 68, quoting Thompson
v. Oklahoma, 487 U.S. 815, 835, 108 S. Ct. 2687, 101 L.
Ed. 2d 702 (1988) (plurality opinion). Even with respect
to homicide crimes, retribution could not justify imposi-
tion of mandatory life without parole because a juve-
nile’s ‘‘moral culpability’’ and ‘‘blameworthiness . . .
‘[are] not as strong with a minor as with an adult.’ ’’
Miller v. Alabama, supra, 132 S. Ct. 2465, quoting Gra-
ham v. Florida, supra, 71.
The second penological justification, deterrence of
future crime committed by juveniles, ‘‘is premised on
the belief that one evaluates the consequences of one’s
actions . . . .’’ State v. Riley, 140 Conn. App. 1, 30, 58
A.3d 304 (2013) (Borden, J., dissenting). With respect
to deterrence, the United States Supreme Court ques-
tioned ‘‘whether the death penalty has a significant or
even measurable deterrent effect on juveniles . . . .
[T]he absence of evidence of deterrent effect is of spe-
cial concern because the same characteristics that ren-
der juveniles less culpable than adults suggest as well
that juveniles will be less susceptible to deterrence.’’
(Citations omitted.) Roper v. Simmons, supra, 543 U.S.
571. The court reasoned that, ‘‘[t]o the extent the juve-
nile death penalty might have residual deterrent effect,
it is worth noting that the punishment of life imprison-
ment without the possibility of parole is itself a severe
sanction, in particular for a young person.’’ Id., 572. As
with retribution, the deterrence rationale similarly did
not hold up with respect to life without parole. ‘‘Because
juveniles’ ‘lack of maturity and underdeveloped sense
of responsibility . . . often result in impetuous and ill-
considered actions and decisions,’ Johnson v. Texas,
[509 U.S. 350, 367, 113 S. Ct. 2658, 125 L. Ed. 2d 290
(1993)], they are less likely to take a possible punish-
ment into consideration when making decisions. This is
particularly so when that punishment is rarely imposed.
That the sentence deters in a few cases is perhaps
plausible . . . [but] any limited deterrent effect pro-
vided by life without parole is not enough to justify
the sentence.’’ (Citation omitted.) Graham v. Florida,
supra, 560 U.S. 72; see also Miller v. Alabama, supra,
132 S. Ct. 2465.
The third penological justification for punishment,
incapacitation, addresses recidivism. ‘‘Recidivism is a
serious risk to public safety, and so incapacitation is
an important goal.’’ Graham v. Florida, supra, 560 U.S.
72. Imposition of life without parole operates on the
‘‘assumption that the juvenile offender forever will be
a danger to society [and] requires the sentencer to make
a judgment that the juvenile is incorrigible. The charac-
teristics of juveniles make that judgment questionable.
‘It is difficult even for expert psychologists to differenti-
ate between the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juve-
nile offender whose crime reflects irreparable corrup-
tion.’ ’’ Id., 72–73, quoting Roper v. Simmons, supra,
543 U.S. 573. ‘‘Even if the [s]tate’s judgment that [a
juvenile offender] was incorrigible were later corrobo-
rated by prison misbehavior or failure to mature, the
sentence [of life without parole] was still disproportion-
ate because that judgment was made at the outset.
A life without parole sentence improperly denies the
juvenile offender a chance to demonstrate growth and
maturity. Incapacitation cannot override all other con-
siderations, lest the [e]ighth [a]mendment’s rule against
disproportionate sentences be a nullity.’’ Graham v.
Florida, supra, 73; see also Miller v. Alabama, supra,
132 S. Ct. 2465.
The last penological justification for punishment,
rehabilitation, implicates our legislature’s judgment.
The court in Graham noted that ‘‘[i]t is for legislatures
to determine what rehabilitative techniques are appro-
priate and effective.’’ Graham v. Florida, supra, 560
U.S. 73–74. Although ‘‘the fixing of prison terms for
specific crimes involves a substantive penological judg-
ment that, as a general matter, is properly within the
province of legislatures, not courts’’; (internal quotation
marks omitted) State v. Higgins, 265 Conn. 35, 63, 826
A.2d 1126 (2003), quoting Harmelin v. Michigan, 501
U.S. 957, 998, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991);
the United States Supreme Court nevertheless found
cause to second-guess the wisdom of the legislature in
imposing life without parole on nonhomicide juvenile
offenders because doing so entailed ‘‘the [s]tate mak
[-ing] an irrevocable judgment about that person’s value
and place in society. This judgment is not appropriate
in light of a juvenile nonhomicide offender’s capacity
for change and limited moral culpability.’’ Graham v.
Florida, supra, 74; see also Miller v. Alabama, supra,
132 S. Ct. 2465.
C
Year after year, the Supreme Court has chipped away
at sentences that harshly punish juveniles, but only if
those sentences—or sentencing schemes—fail to allow
a sentencing court to consider the fundamental differ-
ences of juvenile offenders before imposing the sen-
tence or to meaningfully tailor the sentence to suit those
differences. This process of erosion began with the
prohibition of the death penalty in Roper, continued
with the prohibition of life without parole for nonhomi-
cide offenders in Graham, and more recently continued
with the prohibition of mandatory life without parole
in Miller. The common theme of these cases is the need
for individualized, fully discretionary sentencing of all
juvenile offenders.
Roper, Graham, and Miller each focus on the impor-
tance of a sentencing court’s ability to weigh the factors
of youth and determine whether those factors compel
a lesser sentence. After all, ‘‘[t]he concept of proportion-
ality is central to the [e]ighth [a]mendment. Embodied
in the [c]onstitution’s ban on cruel and unusual punish-
ments is the ‘precept of justice that punishment for
crime should be graduated and proportioned to [the]
offense.’ ’’ Graham v. Florida, supra, 560 U.S. 59, quot-
ing Weems v. United States, 217 U.S. 349, 367, 30 S. Ct.
544, 54 L. Ed. 793 (1910).
A juvenile’s sentence would be disproportionate and,
thus, violate the eighth amendment if that sentence
were the product of ‘‘mandatory penalty schemes . . .
[that] prevent the sentencer from taking account of
these central considerations [of youth]. By removing
youth from the balance—by subjecting a juvenile to the
same [life without parole] sentence applicable to an
adult—these laws prohibit a sentencing authority from
assessing whether the law’s harshest term of imprison-
ment proportionately punishes a juvenile offender.
[This lack of proportionality] contravenes Graham’s
(and also Roper’s) foundational principle: that imposi-
tion of a [s]tate’s most severe penalties on juvenile
offenders cannot proceed as though they were not chil-
dren.’’ (Emphasis added.) Miller v. Alabama, supra, 132
S. Ct. 2466. ‘‘Such mandatory penalties, by their nature,
preclude a sentencer from taking account of an offend-
er’s age and the wealth of characteristics and circum-
stances attendant to it. Under these schemes, every
juvenile will receive the same sentence as every other—
the [seventeen year old] and the [fourteen year old],
the shooter and the accomplice, the child from a stable
household and the child from a chaotic and abusive
one.’’ Id., 2467–68. ‘‘By making youth (and all that
accompanies it) irrelevant to imposition of that harshest
prison sentence, such a scheme poses too great a risk
of disproportionate punishment.’’ Id., 2469.
Other state courts have similarly noted the impor-
tance of individualized, fully discretionary sentencing
of juvenile offenders. When vacating a sentence of life
without parole imposed on a juvenile convicted of first
degree murder, the Wyoming Supreme Court stated that
‘‘[t]he key to achieving proportional punishment is for
the sentencing court to inquire into the facts and cir-
cumstances surrounding the juvenile offender and the
crime.’’ Bear Cloud v. State, 294 P.3d 36, 46 (Wyo. 2013);
see also Bear Cloud v. State, 334 P.3d 132, 141–42 (Wyo.
2014) (‘‘[w]e hold that the teachings of [Roper, Graham,
and Miller require] sentencing courts to provide an
individualized sentencing hearing to weigh the factors
for determining a juvenile’s ‘diminished culpability’ ’’).
As I discuss subsequently in this opinion, a similar con-
clusion was reached by the Supreme Court of Iowa in
State v. Lyle, supra, 854 N.W.2d 378. See part I D of
this opinion.
In order to comply with the eighth amendment’s stric-
tures, in my view, this court must find unconstitutional
all mandatory minimum sentences imposed upon juve-
niles tried as adults, for such mandatory sentences can
never properly take into account the effect of juvenile
differences on the culpability of the juvenile and, thus,
the proportionality of the sentence imposed. See Miller
v. Alabama, supra, 132 S. Ct. 2470 (‘‘[w]e have by now
held on multiple occasions that a sentencing rule per-
missible for adults may not be so for children’’). After
all, a juvenile’s decreased culpability neither depends
on the crime charged; see id., 2465 (‘‘[N]one of what
[Graham] said about children—about their distinctive
[and transitory] mental traits and environmental vulner-
abilities—is crime-specific. Those features are evident
in the same way, and to the same degree, when [as in
both cases here] a botched robbery turns into a kill-
ing.’’); nor the particular penalty imposed. See id., 2471
(‘‘Our decision does not categorically bar a penalty for
a class of offenders or type of crime—as, for example,
we did in Roper or Graham. Instead, it mandates only
that a sentencer follow a certain process—considering
an offender’s youth and attendant characteristics—
before imposing a particular penalty. And in so requir-
ing, our decision flows straightforwardly from our prec-
edents: specifically, the principle of Roper, Graham,
and our individualized sentencing cases that youth mat-
ters for purposes of meting out the law’s most serious
punishments.’’).
It is therefore clear to me that the rationales of Roper,
Graham, and Miller mandate that a sentencing court
be permitted to give effect to the protections afforded
by the eighth amendment with individualized, fully dis-
cretionary sentencing of juvenile offenders, which
include, if warranted, the ability to depart downward
from a mandatory minimum sentence. The United
States Supreme Court’s jurisprudence requiring individ-
ualized, fully discretionary sentencing applies to all
juvenile offenders with equal force, regardless of the
crimes for which such offenders are convicted and the
punishments associated therewith.
D
The Supreme Court of Iowa has concluded, as I
would, that the rationales of Roper, Graham, and Miller
render unconstitutional all mandatory minimum senten-
ces imposed on juvenile offenders. State v. Lyle, supra,
854 N.W.2d 403–404. The defendant in Lyle, a juvenile
at the time of his offense, had been charged as an adult
with second degree robbery after a fight in a high school
parking lot.1 Id. He challenged an Iowa statute that
precluded his eligibility for parole until he had served
a minimum of seven-tenths of the sentence imposed.
Id. The Supreme Court of Iowa held that the mandatory
minimum sentence statute, as applied to juveniles, vio-
lated the juvenile defendant’s right to be free from cruel
and unusual punishment pursuant to the Iowa constitu-
tion, which mirrors the language of the federal eighth
amendment in that it provides that ‘‘[e]xcessive bail
shall not be required; excessive fines shall not be
imposed, and cruel and unusual punishment shall not
be inflicted.’’ (Internal quotation marks omitted.) Id.,
383. In coming to its conclusion, the court ‘‘follow[ed]
the federal analytical framework’’ for eighth amend-
ment jurisprudence, though it relied upon the Iowa con-
stitution’s ‘‘prohibition against cruel and unusual
punishment in reaching [its] conclusion.’’ Id., 384.
The Supreme Court of Iowa began by interpreting
the precedents set by Roper, Graham, and Miller, par-
ticularly the framework under which to analyze the
defendant’s eighth amendment challenge to the manda-
tory minimum sentence. The court identified two lines
of United States Supreme Court precedent: (1) cases
addressing the proportionality of a sentence of impris-
onment for a term of years given all the circumstances
in a particular case; see, e.g., Harmelin v. Michigan,
supra, 501 U.S. 957; Solem v. Helm, 463 U.S. 277, 103
S. Ct. 3001, 77 L. Ed. 2d 637 (1983); and (2) cases imple-
menting proportionality by imposing a categorical
restriction on a certain type of punishment, on the basis
of (A) the nature of the offense; see, e.g., Kennedy v.
Louisiana, 554 U.S. 407, 128 S. Ct. 2641, 171 L. Ed. 2d
525 (2008); (B) the characteristics of the offender; see,
e.g., Roper v. Simmons, supra, 543 U.S. 551; Atkins v.
Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335
(2002); or, (C) as in Graham and Miller, the sentencing
practice implicating the characteristics of the offender.
State v. Lyle, supra, 854 N.W.2d 385–86; see Graham
v. Florida, supra, 560 U.S. 61 (‘‘[H]ere a sentencing
practice itself is in question. This case implicates a
particular type of sentence as it applies to an entire
class of offenders . . . .’’); see also Miller v. Alabama,
supra, 132 S. Ct. 2471. The court in Lyle categorized
the defendant’s challenge to the mandatory minimum
sentence, as applied to juveniles, into that last category:
‘‘a categorical challenge to a [term of years] sentence
based on the underlying sentence practice.’’ State v.
Lyle, supra, 385.
The court in Lyle then synthesized Roper, Graham,
and Miller, as well as its own jurisprudence interpreting
those three cases. See State v. Ragland, 836 N.W.2d
107, 109–10 (Iowa 2013) (unconstitutional sixty year
sentence); State v. Pearson, 836 N.W.2d 88, 96 (Iowa
2013) (unconstitutional thirty-five year sentence); State
v. Null, 836 N.W.2d 41, 45 (Iowa 2013) (unconstitutional
fifty-two year sentence). Though recognizing that the
sentences involved in Roper, Graham, and Miller had
been the state’s harshest penalties—the death penalty
and life without parole—the Supreme Court of Iowa
interpreted Roper, Graham, and Miller as requiring the
invalidation of ‘‘a sentence with parole that is the practi-
cal equivalent of a life sentence without parole.’’
(Emphasis added.) State v. Ragland, supra, 121. In its
view, the rationales of Roper, Graham, and Miller did
not cease to apply merely because of the label attached
to any particular sentence: ‘‘[T]here was no meaningful
difference between a mandatory [life without parole]
sentence—commanding the juvenile to spend the
entirety of his life in prison and then die there—and a
sentence styled as a mere mandatory term of years that,
as a practical matter, would obtain the same result.’’
State v. Lyle, supra, 854 N.W.2d 395. The court contin-
ued: ‘‘While emerging neuroscience painted a compel-
ling picture of the juvenile’s diminished culpability ‘in
the context of the death penalty and [life without parole]
sentences, [we recognized that the same reasoning] also
applies, perhaps more so, in the context of lesser penal-
ties as well.’ ’’ Id., 396, quoting State v. Pearson,
supra, 98.
It followed that, if the court in Lyle truly recognized
the veracity of the rationales of Roper, Graham, and
Miller, ‘‘children are constitutionally different from
adults for purposes of sentencing’’ because of their
diminished culpability; Miller v. Alabama, supra, 132
S. Ct. 2464; with respect to sentences that fell short
of the state’s harshest sentences, the court must also
recognize these same rationales during ‘‘the sentencing
of juveniles according to [other] statutorily required
mandatory minimums [because they, too, do] not ade-
quately serve the legitimate penological objectives in
light of the child’s categorically diminished culpability.’’
State v. Lyle, supra, 854 N.W.2d 398. ‘‘[T]he [United
States] Supreme Court has emphasized [in Miller] that
nothing it has said [about juveniles] is ‘crime-specific,’
suggesting the natural concomitant that what it said is
not punishment-specific either.’’ Id., 399.
Therefore, the court in Lyle concluded, it was the
defendant’s status as a juvenile and not the sentence’s
label or length that triggered the constitutional protec-
tions of Roper, Graham, and Miller. ‘‘We must comply
with the spirit of Miller . . . and to do so requires us
to conclude [that its] reasoning applies to even a short
sentence that deprives the [sentencing] court of discre-
tion in crafting a punishment that serves the best inter-
ests of the child and of society.’’ Id., 402; see also Miller
v. Alabama, supra, 132 S. Ct. 2470 (‘‘We have by now
held on multiple occasions that a sentencing rule per-
missible for adults may not be so for children. . . . So
if . . . ‘death is different,’ children are different too.
Indeed, it is the odd legal rule that does not have some
form of exception for children.’’ [Citations omitted;
emphasis in original.]).
The court in Lyle, like the United States Supreme
Court in Roper, Graham, and Miller, then analyzed the
penological justifications for sentencing juveniles to
mandatory terms, concluding that, ‘‘[s]imply put,
attempting to mete out a given punishment to a juvenile
for retributive purposes irrespective of an individual-
ized analysis of the juvenile’s categorically diminished
culpability is an irrational exercise.’’ State v. Lyle, supra,
854 N.W.2d 399. As for deterrence, ‘‘[i]f a juvenile will
not engage in the kind of cost-benefit analysis involving
the death penalty that may deter [him or her] from
committing a crime, there is no reason to believe a
comparatively minor sentence of a term of years subject
to a mandatory minimum will do so.’’ Id. Finally, ‘‘[r]eha-
bilitation and incapacitation can justify criminally pun-
ishing juveniles, but mandatory minimums do not
further these objectives in a way that adequately pro-
tects the rights of juveniles within the context of the
constitutional protection from the imposition of cruel
and unusual punishment for a juvenile.’’ (Emphasis in
original.) Id.
 ‘‘Mandatory minimum sentences for juveniles are
simply too punitive for what we know about juveniles’’;
id., 400; because ‘‘our constitutional prohibition against
cruel and unusual punishment . . . stirred by what we
all know about child development demands some assur-
ance that imprisonment is actually appropriate and nec-
essary. There is no other area of the law in which our
laws write off children based only on a category of
conduct without considering all background facts and
circumstances.’’ Id., 401. Therefore, ‘‘[m]andatory mini-
mum sentencing results in cruel and unusual punish-
ment due to the differences between children and
adults. This rationale applies to all crimes, and no princi-
pled basis exists to cabin the protection only for the
most serious crimes.’’ Id., 402.
The court in Lyle thus concluded that its mandatory
transfer statute requiring certain juveniles to be tried as
adults, combined with mandatory minimum sentences,
did not allow judges ‘‘to carefully consider all of the
circumstances of each case to craft an appropriate sen-
tence and give each juvenile the individual sentencing
attention [he or she] deserve[s] and our constitution
demands.’’ Id., 403. The court in Lyle interpreted Gra-
ham and Miller as ‘‘properly read to support a new
sentencing framework that reconsiders mandatory sen-
tencing for all children.’’ Id., 402. Allowing a sentencing
court to depart downward from a mandatory minimum
sentence, the court reasoned, ‘‘carries with it the advan-
tage of simultaneously being more flexible and respon-
sible to the demands of justice than outright prohibition
of a particular penalty while also providing real and
substantial protection for the offender’s right to be sen-
tenced accurately according to [the juvenile’s actual]
culpability and prospects for rehabilitation.’’ Id., 386.
Finally, the court concluded by noting that its deci-
sion did not prohibit the imposition of sentences set
forth by the legislature. Contrary to claims that invalida-
tion of mandatory minimum sentences imposed on juve-
niles would cause upheaval in the criminal courts,
‘‘juveniles can still be sentenced to long terms of impris-
onment, but not mandatorily.’’ Id., 401. ‘‘[T]he holding
in this case does not prohibit judges from sentencing
juveniles to prison for the length of time identified by
the legislature for the crime committed, nor does it
prohibit the legislature from imposing a minimum time
that youthful offenders must serve in prison before
being eligible for parole. [The constitution] only prohib-
its the one-size-fits-all mandatory sentencing for juve-
niles. Our constitution demands that we do better for
youthful offenders—all youthful offenders, not just
those who commit the most serious crimes.’’ Id., 403.
The court thus ordered the resentencing of the defen-
dant in Lyle ‘‘so a judge can at least consider [another]
sentencing option . . . .’’ Id. ‘‘On remand, judges will
do what they have taken an oath to do. They will apply
the law fairly and impartially, without fear. They will
sentence those juvenile offenders to the maximum sen-
tence if warranted and to a lesser sentence if war-
ranted.’’ Id., 404.
II
Having set forth the relevant precedent, I now turn
to the analysis proffered by the majority. The majority
begins by discussing the well established principle that,
in sentencing, juvenile offenders are constitutionally
different from adults because of their lesser culpability.
The majority then, however, distinguishes Roper, Gra-
ham, and Miller from the present case, concluding that
there was no eighth amendment violation because
‘‘[t]he defendant’s sentences not only were far less
severe than the sentences at issue in Roper, Graham
and Miller, but [they also] were consistent with the
principle of proportionality at the heart of the eighth
amendment protection because the mandatory mini-
mum requirements, while limiting the trial court’s dis-
cretion to some degree, still left the court with broad
discretion to fashion an appropriate sentence that
accounted for the defendant’s youth and immaturity
when he committed the crimes.’’ The majority then
undertakes an analysis of the defendant’s eighth amend-
ment claim that is neither a gross disproportionality
analysis nor a categorical analysis.
I respectfully disagree with the majority opinion for
several reasons. First, I disagree with the majority’s
conclusion that Roper, Graham, and Miller are distin-
guishable because neither the death penalty nor life
without parole are at issue in the present case. Second,
I disagree with the majority’s contention that the trial
court retained constitutionally sufficient discretion
merely because the trial court retained discretion to
sentence the defendant, Taylor G., to a longer term of
imprisonment. Third, I would have analyzed this claim
using the categorical approach set forth in Graham and
followed in Miller by considering objective indicia of
society’s standards, as expressed in legislative enact-
ments and state practice, and whether, in this court’s
own independent judgment, the punishment in question
violates the constitution in light of the standards elabo-
rated by controlling precedents and by the United States
Supreme Court’s understanding and interpretation of
the eighth amendment’s text, history, meaning, and pur-
pose. See e.g., State v. Lyle, supra, 854 N.W.2d 378;
Ellmaker v. State, 329 P.3d 1253 (Kan. App. 2014).
I address each of these points in turn.
A
I first disagree with the majority’s conclusion that
Roper, Graham, and Miller are distinguishable from
the present case merely because the defendant’s punish-
ment—a term of years—is less severe than the senten-
ces at issue in Roper, Graham, and Miller (i.e., not
the death penalty or life without parole). The majority
explains that, in Roper, Graham, and Miller, the United
States Supreme Court ‘‘concluded there was a constitu-
tional violation because the sentences consisted of
death or life imprisonment without the possibility of
parole, the two most severe punishments courts are
able to impose.’’ I respectfully disagree. In Roper, Gra-
ham, and Miller, the court concluded that there had
been constitutional violations because ‘‘ ‘objective indi-
cia of society’s standards, as expressed in legislative
enactments and state practice’ ’’ determined that there
was a ‘‘national consensus against the sentencing prac-
tice at issue’’—namely, the practice of sentencing juve-
niles pursuant to sentencing schemes crafted for
adults—and because the court, in its independent judg-
ments and guided by ‘‘ ‘the standards elaborated by
controlling precedents and by the [c]ourt’s own under-
standing and interpretation of the [e]ighth amendment’s
text, history, meaning, and purpose,’ ’’ determined that
the punishments at issue violated the constitution. Gra-
ham v. Florida, supra, 560 U.S. 61.
Roper, Graham, and Miller did not hinge their analy-
ses of the eighth amendment’s protections solely on
the severity of the punishment involved. See id. (‘‘a
threshold comparison between the severity of the pen-
alty and the gravity of the crime does not advance the
analysis’’). To be sure, ‘‘the severity of the punishment
in question’’; id., 67; informed the analysis, but it was
not dispositive as the majority would suggest. The court
in Miller expressly noted that the trigger for heightened
eighth amendment protection in these juvenile cases
is not the severity of the punishment, but rather the
‘‘ ‘offender’s age’ . . . .’’ Miller v. Alabama, supra, 132
S. Ct. 2462, citing Graham v. Florida, supra, 560 U.S.
76; see State v. Allen, 289 Conn. 550, 585, 958 A.2d 1214
(2008) (‘‘[t]he eighth amendment affords heightened
significance to the ‘diminished culpability’ of juve-
niles’’); see also Miller v. Alabama, supra, 2470 (‘‘We
have by now held on multiple occasions that a sentenc-
ing rule permissible for adults may not be so for chil-
dren. . . . So if . . . ‘death is different,’ children are
different too. Indeed, it is the odd legal rule that does not
have some form of exception for children.’’ [Citations
omitted; emphasis in original.]). The court in Miller
expressly stated that ‘‘none of what [Graham] said
about children—about their distinctive (and transitory)
mental traits and environmental vulnerabilities—is
crime-specific.’’ Miller v. Alabama, supra, 2465.
In my view, because it is the juvenile offender’s age
that triggers the United States Supreme Court’s specific
eighth amendment analysis and heightened eighth
amendment protection, and because neither the charac-
teristics of juveniles nor the eighth amendment’s protec-
tions differ on the basis of the crime charged, it follows
that the eighth amendment’s protections with respect
to juvenile offenders do not differ on the basis of the
punishment imposed. ‘‘[T]he Supreme Court has
emphasized [in Miller] that nothing it has said [about
juveniles] is ‘crime-specific,’ suggesting the natural con-
comitant that what it said is not punishment-specific
either.’’ State v. Lyle, supra, 854 N.W.2d 399, quoting
Miller v. Alabama, supra, 132 S. Ct. 2465. A juvenile’s
traits bear on his or her culpability regardless of the
crime charged, which then bears on the proportionality
of the sentence imposed: ‘‘[a juvenile’s] features are
evident in the same way, and to the same degree’’
regardless of the crime committed. Miller v. Alabama,
supra, 2465. As the Supreme Court of Iowa concluded,
I, too, would conclude that the same is true regardless
of the range of punishment to which a juvenile is
exposed. See State v. Lyle, supra, 402 (recognizing its
duty to ‘‘comply with the spirit of Miller . . . and
[noted that doing] so requires us to conclude [its] rea-
soning applies to even a short sentence that deprives
the [sentencing] court of discretion in crafting a punish-
ment that serves the best interests of the child and of
society’’). Neither the crime, nor its mandatory mini-
mum punishment should bear on a sentencing court’s
ability to comply with the eighth amendment or, there-
fore, a sentencing court’s discretion to fashion a consti-
tutionally permissible sentence, even if that sentence
departs downward from a mandatory minimum
sentence.
Nevertheless, the majority concludes that the sen-
tence in the present case, not being one of those two
most severe penalties, does ‘‘not implicate the factors
deemed unacceptable in Roper . . . .’’ The majority
then defines the ‘‘factors’’ the court in Roper ‘‘deemed
unacceptable’’ in imposing the death penalty on juvenile
offenders as ‘‘the futility of rehabilitation and the perma-
nent deprivation of all hope to become a productive
member of society, both of which occur when the court
is prevented from taking a second look at the incarcer-
ated offender’s demonstrated growth and maturity.’’ I
respectfully disagree with the majority’s analysis of
Roper.
The court in Roper utilized the ‘‘factors’’ identified
by the majority—factors illustrating why the death pen-
alty is so severe—in discussing why, categorically, a
sentencing court’s discretionary imposition of the
death penalty on a juvenile offender should be barred.
The sentencing scheme at issue in Roper was not man-
datory in nature, but rather a discretionary one that
allowed a judge or jury to decide, on a case-by-case
basis, that a harsher—indeed, the harshest—penalty
should be imposed on a juvenile defendant despite the
defendant’s youth. The court concluded that, although
sentencing courts could undertake case-by-case analy-
ses before imposing the death penalty on juvenile
offenders, and although sentencing courts generally
‘‘seek with diligence and professionalism to take
account of the human existence of the offender and
the just demands of a wronged society’’; Graham v.
Florida, supra, 560 U.S. 77; a categorical bar against
imposition of the death penalty was necessary because
even ‘‘expert psychologists [struggle] to differentiate
between the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juve-
nile offender whose crime reflects irreparable corrup-
tion.’’ Roper v. Simmons, supra, 543 U.S. 573; id., 572–73
(‘‘[t]he differences between juvenile and adult offenders
are too marked and well understood to risk allowing a
youthful person to receive the death penalty despite
insufficient culpability’’).
The court in Roper thus deemed unacceptable any
likelihood that, despite a discretionary sentencing
scheme that allowed a sentencing court to impose the
most severe penalty—the death penalty—after a careful
review of all of the particular circumstances in a particu-
lar case, a sentencing court could still get it wrong.
Put another way, categorically barring the discretionary
imposition of the harshest penalty on juveniles was
constitutionally necessary because, although discre-
tionary sentencing works most of the time, the court’s
confidence in the sentencing court’s ability to accu-
rately and correctly gauge the juvenile’s culpability in
every case in which it discretionarily imposed the harsh-
est penalty was outweighed by the risk of disproportion-
ate punishment imposed on a juvenile in even one case,
given the severity of the penalty and the difficulty in
accurately identifying a juvenile’s culpability. Thus, the
‘‘factors’’ cited by the majority militated in favor of
removing the discretion of any sentencing court to
impose the upper limit of the range to which a juvenile
is exposed, the state’s harshest penalty, in order to
avoid the possibility of a disproportionate sentence.
It does not follow, however, that the lack of such
‘‘factors’’ in the present case—because the harshest
penalties are not at issue and thus there is no impermis-
sible risk of discretionarily imposing the harshest penal-
ties—means that under Roper, Graham, or Miller the
United States Supreme Court would refuse to vest sen-
tencing courts with the discretion to modify mandatory
minimum sentences downward in order to avoid the
impermissible imposition of overly harsh, even if not
the harshest, penalties. The court’s cases do not support
such a conclusion. This case is not about usurping dis-
cretion from the sentencing court, as was the case in
Roper and Graham, to impose a penalty at the upper
limits of the total penalty to which the defendant is
already exposed; instead, this case is about granting
a sentencing court the discretion that it otherwise lacks
to impose a lesser sentence than the sentence to which
the defendant is mandatorily exposed by the legislature.
In other words, where Roper prevents a sentencing
court from getting it wrong by imposing the harshest
penalty in a discretionary sentencing scheme, Miller
empowers a sentencing court to get it right by vesting
it with the discretion to impose a lesser penalty in a
mandatory sentencing scheme. See Miller v. Alabama,
supra, 132 S. Ct. 2469 n.8 (‘‘Our holding requires fact-
finders . . . to take into account the differences
among defendants and crimes. By contrast, [mandatory]
sentencing schemes . . . altogether preclude consid-
ering [the] factors [of youth].’’). In my view, the United
States Supreme Court’s categorical bans on species of
punishments, despite the availability of discretionary
sentencing in those cases, only bolsters the argument
for discretionary sentencing in the present case: the
court would not have taken the harshest penalty off
the table and then have precluded a sentencing court’s
ability, on a case-by-case basis, to exercise any discre-
tion in the other direction—the direction of a lesser
penalty—should the sentencing court determine, after
carefully undertaking an analysis of the juvenile’s matu-
rity, that a lesser sentence were warranted in order to
avoid an eighth amendment violation.
The majority does state that ‘‘deprivation of liberty
for any amount of time, including a single year, is not
insignificant . . . .’’ I agree. See Gonzalez v. Commis-
sioner of Correction, 308 Conn. 463, 482–83, 68 A.3d
624 (2013) (‘‘there is nothing more critical than the
denial of liberty, even if the liberty interest is one day
in jail’’). The majority thereafter implies, however, that
it cannot safeguard against the deprivation of liberty
in this case because of the factual differences between
the present case and Roper, Graham, and Miller. The
majority implies that the rationales of Roper, Graham,
and Miller—that juvenile offenders are constitutionally
different than adults because of their decreased culpa-
bility—apply with less force when the sentence
imposed is not the death penalty or life without parole.
I respectfully disagree. See part I of this opinion; see
also Furman v. Georgia, 408 U.S. 238, 329, 92 S. Ct.
2726, 33 L. Ed. 2d 346 (1972) (Marshall, J., concurring)
(‘‘[p]erhaps the most important principle in analyzing
‘cruel and unusual’ punishment questions is one that is
reiterated again and again in the prior opinions of the
[c]ourt: i.e., the cruel and unusual language ‘must draw
its meaning from the evolving standards of decency
that mark the progress of a maturing society’ ’’); State
v. Lyle, supra, 854 N.W.2d 396 (‘‘emerging neuroscience
paint[s] a compelling picture of the juvenile’s dimin-
ished culpability ‘in the context of the death penalty
and [life without parole] sentences, [and] it also applies,
perhaps more so, in the context of lesser penalties as
well’ ’’), quoting State v. Pearson, supra, 836 N.W.2d 98.
If this court truly recognizes the veracity of the ratio-
nales of Roper, Graham, and Miller—that ‘‘children are
constitutionally different from adults for purposes of
sentencing’’ because of their diminished culpability;
Miller v. Alabama, supra, 132 S. Ct. 2464; then this court
must also recognize these same rationales in the present
case despite the fact that the sentence at issue is not
the harshest sentence possible. The discretionary sen-
tencing requirement set forth in Miller, meant to mean-
ingfully account for the mitigating qualities of youth, is
equally applicable to all mandatory sentences, regard-
less of their label or length, ‘‘which by definition remove
a judge’s or jury’s discretion . . . .’’ Id., 2471 n.10.
Applying Miller to the present case would not pre-
clude sentencing courts from imposing sentences on
juvenile offenders that adhere to the once mandatory
sentences propounded by the legislature. Applying
Miller merely permits sentencing courts to do so, or
not, in their full discretion and in accordance with our
eighth amendment jurisprudence giving effect to what
we know about juveniles.
B
I next disagree with the majority’s conclusion that
the defendant’s eighth amendment challenge fails
because the sentencing court retained constitutionally
sufficient discretion ‘‘to choose from a wide range of
sentencing possibilities that equaled or exceeded the
minimum term of imprisonment.’’ A sentencing court’s
mere ability to impose a sentence harsher than the
mandatory minimum does not satisfy the mandates of
Roper, Graham, and Miller, which require that a sen-
tencing court take into consideration a juvenile’s unique
characteristics in each case and, if warranted, depart
downward from a mandatory minimum sentence in
order to give effect to its consideration of the juvenile’s
youth. Moreover, it does not comport with our state
constitution, which affords greater rights for eighth
amendment purposes than the federal constitution.
The majority claims that the sentencing court had
sufficient discretion to take the defendant’s qualities of
youth into account because it could have sentenced the
defendant to a greater penalty than that to which he
had been sentenced. This argument—that discretion to
sentence above the floor renders the floor less
important under the constitution—has already been
explicitly rejected by the United States Supreme Court
in an analogous context.
In Alleyne v. United States, U.S. , 133 S. Ct.
2151, 2160, 186 L. Ed. 2d 314 (2013), the United States
Supreme Court discussed whether the sixth amendment
required a prosecutor to prove, beyond a reasonable
doubt, facts with respect to a sentencing enhancement
that increased the mandatory minimum sentence to
which a defendant was already exposed. The court in
Alleyne noted that, in a prior case, it had drawn ‘‘a
distinction between ‘facts increasing the defendant’s
minimum sentence and facts extending the sentence
beyond the statutory maximum,’ ’’ concluding that facts
increasing the minimum sentence by way of a sentenc-
ing enhancement needed only to be proven by a prepon-
derance of the evidence. Id., 2158, quoting Harris v.
United States, 536 U.S. 545, 566, 122 S. Ct. 2406, 153 L.
Ed. 2d 524 (2002). In Harris, the court had reasoned
that, where the facts authorizing the defendant’s origi-
nal sentencing range, without regard to any sentencing
enhancements, were proven beyond a reasonable
doubt, a sentencing court, in its discretion, could
impose a sentence in the middle of such range. Harris
v. United States, supra, 563. Accordingly, under Harris,
if a sentencing enhancement, proven only by a prepon-
derance of the evidence, subsequently raised the man-
datory minimum sentence and such minimum were in
the middle of the range already authorized by the origi-
nal sentencing range, there would be no sixth amend-
ment violation because the new sentencing range
‘‘merely limited the judge’s ‘choices within the author-
ized range.’ ’’ Alleyne v. United States, supra, 2157–58,
quoting Harris v. United States, supra, 567.
The court in Alleyne held that Harris had been
wrongly decided. Alleyne v. United States, supra, 133
S. Ct. 2158. The court concluded that, pursuant to the
sixth amendment, the floor of a sentencing range mat-
tered just as much to the defendant as the ceiling in
giving effect to the protections afforded by the constitu-
tion. See id., 2161–62 (‘‘It is impossible to dissociate
the floor of a sentencing range from the penalty affixed
to the crime. . . . [It is an] obvious truth that the floor
of a mandatory range is as relevant to wrongdoers as
the ceiling.’’ [Citations omitted.]). Although raising the
floor ‘‘merely limited the judge’s choices within the
authorized range’’; id., 2157–58; it was ‘‘impossible to
dispute that . . . increasing the legally prescribed
floor aggravate[s] the punishment. . . . Elevating the
low-end of a sentencing range heightens the loss of
liberty associated with the crime: the defendant’s
‘expected punishment has increased as a result of the
narrowed range’ and ‘the prosecution is empowered,
by invoking the mandatory minimum, to require the
judge to impose a higher punishment than he might
wish.’ ’’ (Citations omitted; emphasis altered.) Id., 2161.
In the present case, the majority agrees that ‘‘[a]ll
mandatory minimum sentences limit, to some extent,
the discretion of courts to craft a sentence that accounts
for the special characteristics of the offender and the
offense. Even mandatory minimum sentences of one
or two years limit the discretion of courts by precluding
the imposition of lesser sentences on offenders
regarded as deserving of a lesser penalty because of
compelling mitigating factors.’’ Nevertheless, the major-
ity reasons that, because mandatory minimum senten-
ces allow for the imposition of longer sentences, adult
courts sentencing juvenile offenders have sufficient dis-
cretion ‘‘to choose from a wide range of sentencing
possibilities that [equal] or [exceed] the minimum term
of imprisonment.’’ According to the majority, that the
sentencing court in the present case chose the most
lenient sentence possible, even though ‘‘the defendant
was subject to a maximum sentence of fifty-five years
incarceration on all charges,’’ does not indicate that the
defendant was subjected to cruel and unusual pun-
ishment.
The sentencing court rejected this claim in its
entirety:
‘‘[The Prosecutor]: And your discretion overall,
Judge, is ten to fifty [years].
‘‘The Court: I don’t know—I’m not certain whether
looking at other charges is—as sort of extending my
discretion is an appropriate analysis though. If I’m look-
ing at the constitutionality of a sentence available under
a particular charge, to say that my discretion has only
been marginally narrowed, because there’s other
charges that I could give consecutive time on, might
not be on the mark.’’
The majority’s logic did not prevail in the context
of the sixth amendment; see Alleyne v. United States,
supra, 133 S. Ct. 2162–63 (rejecting analogous argu-
ment); it follows that, with respect to juveniles, it cannot
prevail here, in the context of the eighth amendment.
The mandatory transfer statute automatically transfer-
ring the defendant from juvenile court—where the court
had no sentencing floor—to adult court—where a sen-
tencing floor of ten years of incarceration was automati-
cally imposed without regard to the defendant’s
individual characteristics—raised the floor of the sen-
tencing range and ‘‘ ‘require[d] the judge to impose a
higher punishment than he might wish.’ ’’ Id., 2161. This
violates the mandates of the United States Supreme
Court’s juvenile sentencing jurisprudence of Roper,
Graham, and Miller. See Miller v. Alabama, supra, 132
S. Ct. 2466 (‘‘[T]he mandatory penalty schemes at issue
here prevent the sentencer from taking account of these
central considerations [of youth]. By removing youth
from the balance—by subjecting a juvenile to the same
. . . sentence applicable to an adult—these laws pro-
hibit a sentencing authority from assessing whether the
[sentence] proportionately punishes a juvenile
offender.’’); see also id., 2471 n.10 (‘‘mandatory sentenc-
ing schemes . . . by definition remove a judge’s or a
jury’s discretion’’).
Imposing a floor to which the juvenile defendant
would not otherwise have been subject, despite Miller’s
mandate to consider ‘‘an offender’s youth and attendant
characteristics—before imposing a particular penalty’’;
Miller v. Alabama, supra, 132 S. Ct. 2471; ‘‘alter[s] the
prescribed range of sentences to which a defendant is
exposed and do[es] so in a manner that aggravates the
punishment.’’ Alleyne v. United States, supra, 133 S.
Ct. 2158. In both Alleyne and the present case, the
sentencing courts desired and yet were precluded from
sentencing their defendants below the newly raised sen-
tencing floors. This ‘‘[elevation of] the low-end of a
sentencing range heightens the loss of liberty associated
with the crime’’; id., 2161; and renders such sentences
unconstitutional.
I would remand this case for resentencing and allow
the sentencing court to depart downward from the man-
datory minimum sentence it was constrained to impose.
The United States Supreme Court’s jurisprudence
empowers a sentencing court to depart downward from
a mandatory minimum sentence when sentencing a
juvenile offender. The court, in Harmelin v. Michigan,
supra, 501 U.S. 996, concluded that the eighth amend-
ment contained no guarantee of proportionality with
respect to a mandatory minimum sentence and that a
sentencing court could not depart downward from a
mandatory minimum sentence. Miller, however, explic-
itly carved out an exception to this rule for juvenile
offenders. ‘‘Harmelin had nothing to do with children
and did not purport to apply its holding to the sentenc-
ing of juvenile offenders. We have by now held on multi-
ple occasions that a sentencing rule permissible for
adults may not be so for children. . . . So if (as Har-
melin recognized) ‘death is different,’ children are dif-
ferent too. . . . Our ruling thus neither overrules nor
undermines nor conflicts with Harmelin.’’ (Citations
omitted.) Miller v. Alabama, supra, 132 S. Ct. 2470. After
Miller, sentencing courts were therefore empowered to
depart downward from mandatory minimum sentences
imposed on juveniles, which, in some cases, may be
the only way a sentence imposed on a juvenile will
comport with the eighth amendment. Cf. People v. Hill,
192 Mich. App. 102, 105, 119, 480 N.W.2d 913 (1991)
(‘‘[t]he mandatory minimum is a barrier; it is not a
[straightjacket]’’), appeal denied, 439 Mich. 922, 480
N.W.2d 909 (1992).
In the present case, in light of the remarks of the
sentencing court set forth more fully in part III of this
opinion, it is reasonable to conclude that the sentencing
court would have departed downward from the manda-
tory minimum sentence. The sentencing court stated
that, ‘‘based on its reading of [Roper, Graham, and
Miller] and those cases’ interpretation of the eighth
amendment, [the sentencing court] therefore feels con-
strained pursuant to those mandatory minimum senten-
ces to impose a sentence in this case which is consistent
with the provisions of those mandatory statutes.’’ In my
view, the eighth amendment empowers the sentencing
court in the present case to depart downward from
the mandatory minimum sentence; this court should
accordingly remand the case for resentencing.
C
Lastly, I disagree with the framework applied by the
majority to resolve the defendant’s eighth amendment
claim. The majority does not fully undertake either a
gross disproportionality analysis or a categorical analy-
sis, though its analysis appears to lean more toward
a gross disproportionality analysis of the defendant’s
sentence, ‘‘comparing the gravity of the offense and the
severity of the sentence.’’ Graham v. Florida, supra,
560 U.S. 60; see also State v. Higgins, supra, 265 Conn.
62–65 (applying same analysis). I respectfully disagree
with the majority’s analysis of the defendant’s claim.
As discussed previously in part I D of this opinion,
there are generally two lines of eighth amendment juris-
prudence: (1) cases addressing the proportionality of
a term of years sentence given all the circumstances
in a particular case; and (2) cases implementing propor-
tionality by imposing a categorical restriction on a cer-
tain type of punishment, on the basis of (A) the nature
of the offense, (B) the characteristics of the offender,
or, (C) as in Graham and Miller, the sentencing practice
implicating the characteristics of the offender. State v.
Lyle, supra, 854 N.W.2d 385–86; see Graham v. Florida,
supra, 560 U.S. 61 (‘‘[H]ere a sentencing practice itself
is in question. This case implicates a particular type of
sentence as it applies to an entire class of offenders
. . . .’’); see also Miller v. Alabama, supra, 132 S. Ct.
2471.
A claim under the first category requires gross dispro-
portionality review which ‘‘compar[es] the gravity of
the offense and the severity of the sentence.’’ Graham
v. Florida, supra, 560 U.S. 60. This type of review is
appropriate if no categorical eighth amendment restric-
tions apply. See Adams v. State, 288 Ga. 695, 701, 707
S.E.2d 359 (2011). A claim under the second category—
a categorical challenge to a certain type of punishment
on the basis of the sentencing practice—requires a dif-
ferent type of review that includes an analysis of objec-
tive indicia of society’s standards, as expressed in
legislative enactments and state practice, and consider-
ation, in this court’s own independent judgment, of
whether the punishment in question violates the consti-
tution in light of the standards elaborated by controlling
precedents and by the Supreme Court’s understanding
and interpretation of the eighth amendment’s text, his-
tory, meaning, and purpose. See Miller v. Alabama,
supra, 132 S. Ct. 2470.
The majority’s analysis appears to blend the two stan-
dards, though it leans more toward gross dispropor-
tionality review. After describing the defendant’s crime,
the majority analyzes the severity of the defendant’s
sentence, concluding that, ‘‘[i]n Graham, the court
made clear that juveniles convicted of nonhomicide
crimes, such as the crimes committed by the defendant
in the present case, are not immune from very harsh
punishments . . . merely because of their youth when
they committed the crimes. . . . [I]t is clear that the
court in Graham did not disapprove of lengthy senten-
ces for juvenile offenders convicted of nonhomicide
crimes . . . . In the present case, the trial court’s deci-
sion to impose a sentence for first degree sexual assault
that did not exceed the mandatory minimum and to
allow the sentences for fourth degree sexual assault
and risk of injury to be served concurrently with the
sentence for first degree sexual assault was based on
its consideration of the defendant’s relative youth and
immaturity when he committed the crimes . . . . The
sentences were therefore consistent with the principle
of individualized sentencing and proportionality articu-
lated in Roper, Graham and Miller, and did not consti-
tute cruel and unusual punishment under the eighth
amendment.’’ (Citations omitted.) If the majority indeed
applied a gross disproportionality analysis, however, it
did not indicate whether its review of the crime commit-
ted and the sentence imposed led to an inference of
gross disproportionality, as is required by our jurispru-
dence. See State v. Higgins, supra, 265 Conn. 63–65
(comparing sentence under review with sentences for
other crimes, both within this jurisdiction and in other
states, only if review of crime and sentence led to infer-
ence of gross disproportionality).
Moreover, while the case specific gross dispropor-
tionality analysis set forth in Harmelin might have been
appropriate for an adult’s as applied eighth amendment
challenge, it is not appropriate in the present case. See
Miller v. Alabama, supra, 132 S. Ct. 2470 (‘‘Harmelin
had nothing to do with children and did not purport to
apply its holding to the sentencing of juvenile offenders.
. . . So if [as Harmelin recognized] ‘death is different,’
children are different too. Indeed, it is the odd legal
rule that does not have some form of exception for
children.’’ [Citations omitted; emphasis in original.]);
Graham v. Florida, supra, 560 U.S. 77 (‘‘Another possi-
ble approach would be to hold that the [e]ighth [a]mend-
ment requires courts to take the offender’s age into
consideration as part of a case-specific gross dispropor-
tionality inquiry, weighing it against the seriousness of
the crime. . . . [E]ven if we were to assume that some
juvenile nonhomicide offenders might have ‘sufficient
psychological maturity, and at the same time demon-
strat[e] sufficient depravity,’ . . . it does not follow
that courts taking a case-by-case proportionality
approach could with sufficient accuracy distinguish the
few incorrigible juvenile offenders from the many that
have the capacity for change.’’ [Citation omitted.]). The
challenge in Miller is identical to the challenge in the
present case: ‘‘The cases before us implicate . . . cate-
gorical bans on sentencing practices based on mis-
matches between the culpability of a class of offenders
and the severity of a penalty.’’ Miller v. Alabama,
supra, 2463.
If, instead of performing a gross disproportionality
review, the majority performed a categorical review, it
omitted any analysis of objective indicia of society’s
standards, as expressed in legislative enactments and
state practice, and consideration, in this court’s own
independent judgment, of whether the punishment in
question violates the constitution in light of the stan-
dards elaborated by controlling precedents and by the
Supreme Court’s understanding and interpretation of
the eighth amendment’s text, history, meaning, and pur-
pose. See Graham v. Florida, supra, 560 U.S. 61. If the
majority had performed such a review, it would have
shown that our evolving standards no longer support
mandatory sentencing schemes for juvenile offenders.
This case is functionally identical to Miller and Lyle,
in which both courts identified the challenges as cate-
gorical and analyzed the factors including objective
indicia of society’s standards, and the like. See Miller
v. Alabama, supra, 132 S. Ct. 2463 (‘‘categorical bans
on sentencing practices based on mismatches between
the culpability of a class of offenders and the severity
of a penalty’’); State v. Lyle, supra, 854 N.W.2d 385 (‘‘a
categorical challenge to a term-of-years sentence based
on the underlying sentence practice’’).
I therefore respectfully disagree with the majority’s
analysis of the defendant’s claim.
III
The sentencing of the defendant in the present case
illustrates all of the reasons why this court should
adhere to the rationales of Roper, Graham, and Miller
and allow sentencing courts to depart downward from
mandatory minimum sentences when sentencing juve-
nile offenders.
The defendant was fourteen and fifteen years old
during the series of events leading up to his convictions.
A clinical forensic psychologist testified at the defen-
dant’s sentencing, noting that the defendant had had a
difficult upbringing based on ‘‘the number of disrup-
tions in it, [and] the number of traumatic events that
occurred in it . . . .’’ The psychologist detailed the
defendant’s placements in foster care beginning at age
two, and allegations that the defendant had been physi-
cally abused, neglected, and mistreated. The sentencing
court agreed that this was ‘‘another case, it sounds to
me, where the abused becomes the abuser.’’
As described in Graham and Miller, and with hind-
sight as a lens, the sentencing court heard testimony
about how the defendant might have ‘‘impair[ed] the
quality of [his own] representation.’’ See Graham v.
Florida, supra, 560 U.S. 78. The defendant rejected mul-
tiple plea offers, exhibiting a ‘‘[d]ifficulty in weighing
long-term consequences; a corresponding impul-
siveness; and reluctance to trust defense counsel . . .
[that] lead to [his] poor decisions.’’ Id.; see Miller v.
Alabama, supra, 132 S. Ct. 2468 (‘‘[mandatory sentenc-
ing ignores the reality] that [the juvenile offender] might
have been charged and convicted of a lesser offense
if not for incompetencies associated with youth—for
example, his inability to deal with . . . prosecutors
(including on a plea agreement) or his incapacity to
assist his own attorneys’’ [emphasis added]).
The defendant in the present case may indeed have
impaired his own representation by virtue of his youth:
the defendant’s mother noted that ‘‘[the defendant had
been] offered a plea deal by [the prosecutor] and he
refused that plea deal. What person in their right mind
doesn’t take a year and a half, two years knowingly
knowing they could get fifty-five years? Does that make
any sense to anybody? But I could not talk him into
taking a plea deal. No one could talk him into taking
it . . . .’’ The defendant’s father also mentioned the
defendant’s rejection of the plea offers: ‘‘[The defen-
dant] had a couple of chances of taking the plea deals.
I wish he took them now.’’ The defendant’s attorney
addressed the issue ‘‘about there being an offer and
[the defendant] rejecting it, and I would say that is
precisely the problem with having fourteen year olds
and fifteen year olds in adult court facing the conse-
quences of twenty, twenty-five years maximum incar-
ceration on one count with ten years mandatory
minimums. They’re idiots. They’re kids. They don’t
make rational decisions. If they did, we wouldn’t be
here.’’
The defendant, armed with the hindsight that comes
only after a few years of maturity, yet still only nineteen
years old, addressed the sentencing court: ‘‘Your Honor,
I’d like to point out that at the time that I was accused
of this stuff, I was a kid. I still am a kid. I’m sorry. I
was offered two years and a half or however long it
was and thinking about that is, like—thinking about it
now is crazy, but it was just back then I was so focused
on the fact that I was going to become some kind of
monster. I was going to become a sex offender. I was
going to become someone that you Google online and
there they are. And I didn’t want to become that type
of person because that’s not who I am. I was offered
two years and three months and now I’m facing ten
years. I mean, it’s just such a huge gap. It’s not fair.
That is my whole young life. I mean, I’m sorry this all
happened, but I didn’t want to go to a trial. I mean, I
wanted to prove my innocence, Your Honor, and I
wasn’t found innocent. I don’t know what else to say.’’
Even if the sentencing court had specifically found
that the defendant in the present case had materially
impaired the quality of his own defense because of his
youth, the majority expressly prevents the sentencing
court from acting on such a finding. The sentencing
court expressly noted that ‘‘we can . . . disagree on
what youth means, [but] I think we would all agree that
the defendant is not particularly experienced in the
criminal justice system and the decision that he [made
to go to trial instead of plead] was a difficult one.’’ The
majority, instead, acquiesces to the realities identified
in Graham and Miller, and exhibited in the present
case, that a juvenile defendant very well might have
been charged with a lesser offense or received or taken
a plea if he or she had not failed to adequately aid
in his or her defense because of the incompetencies
of youth.
Even if the defendant had not been offered a plea
deal, the appropriateness of his punishment cannot be
established by reference to the judgment of our legisla-
ture. This court should not acquiesce to the use of
mandatory minimum sentences on juvenile offenders
because such minimums were crafted to punish adult
offenders. This violates the United States Supreme
Court’s mandate ‘‘that a sentencer follow a certain pro-
cess—considering an offender’s youth and attendant
characteristics—before imposing a particular penalty.’’
Miller v. Alabama, supra, 132 S. Ct. 2471; see also id.,
2473 (imposition of mandatory penalties on juveniles
having been mandatorily transferred to adult court
‘‘ ‘does not indicate that the penalty has been endorsed
through deliberate, express, and full legislative consid-
eration’ ’’); Graham v. Florida, supra, 560 U.S. 67
(‘‘[T]he fact that transfer . . . laws make [adult senten-
ces] possible for some juvenile nonhomicide offenders
does not justify a judgment that many [s]tates intended
to subject such [juvenile] offenders to [adult] sentences.
. . . [States with these transfer laws] should not be
treated as if they have expressed the view that the
[adult] sentence is appropriate.’’ [Citation omitted.]);
State v. Lyle, supra, 854 N.W.2d 403 (‘‘[the constitution]
prohibits the one-size-fits-all mandatory sentencing for
juveniles’’). Such mandatory sentences ‘‘overpower mit-
igating arguments based on youth as a matter of course,
even where the juvenile offender’s objective immatu-
rity, vulnerability, and lack of true depravity should
require a sentence less severe . . . .’’ (Emphasis
added.) Roper v. Simmons, supra, 543 U.S. 573. As
the defendant’s attorney noted, neither ‘‘justice [n]or
anybody is served by taking a [thirteen year old] and
fourteen year old boy and saying to him that you have
to be incarcerated as an adult in an adult correctional
facility . . . .’’
With respect to the penological justifications of the
defendant’s sentence, the defendant, seemingly having
lacked the maturity to prepare his defense, can hardly
be said to have possessed the maturity to appreciate
his actions at the time of the offenses. As for deterrence,
juveniles ‘‘are less likely to take a possible punishment
into consideration when making decisions [and] [t]his
is particularly so when that punishment is rarely
imposed.’’ Graham v. Florida, supra, 560 U.S. 72; see
also State v. Lyle, supra, 854 N.W.2d 399 (‘‘[A] deter-
rence rationale is actually even less applicable when
the crime [and concordantly the punishment] is lesser
[than that of Graham or Miller]. If a juvenile will not
engage in the kind of cost-benefit analysis involving the
death penalty that may deter them from committing a
crime, there is no reason to believe a comparatively
minor sentence of a term of years subject to a manda-
tory minimum will do so.’’ [Emphasis in original.]).
Despite the rarity of the sentence imposed in the present
case,2 despite the decreased deterring effect of this sen-
tence on others, and despite the mandates of Roper,
Graham, and Miller requiring this court to ‘‘take into
account how children are different, and how those dif-
ferences counsel against’’ a mandatory sentence; Miller
v. Alabama, supra, 132 S. Ct. 2469; the majority never-
theless finds no reason to question the soundness of the
penological justification of the sentence. The majority
precludes the sentencing court from considering that
the defendant’s sentence may do little to deter future
juvenile offenders from committing the same crime.
As for retribution for the crime charged, the majority
agrees that a juvenile’s culpability may indeed be lesser
than that of an adult.3 See Id., 2465; Graham v. Florida,
supra, 560 U.S. 68; Roper v. Simmons, supra, 543 U.S.
571. Nevertheless, the majority believes that, despite a
juvenile offender’s categorically decreased culpability,
a sentencing court’s discretion to impose a greater sen-
tence than a mandatory minimum sentence sufficiently
safeguards a juvenile’s constitutional right to propor-
tionate punishment. No matter that a sentencing court,
to adequately proportion the punishment to the juve-
nile’s actual culpability, wishes instead to depart down-
ward from the mandatory minimum sentence.
With respect to incapacitation, the majority precludes
the sentencing court from being able to impose a sen-
tence that would incapacitate the juvenile defendant
on the basis of his actual proclivities for future crime
in light of the characteristics of his youth and any dem-
onstrated maturity brought on by just a few years of
time. Instead, the majority acquiesces to a sentence
that incapacitates the juvenile defendant on the basis
of the length of time an adult should be incapacitated.
See State v. Lyle, supra, 854 N.W.2d 400 (‘‘[a] close
reading of Graham demonstrates the fact that the
Supreme Court views the incapacitation rationale even
more limitedly: the [c]ourt recognized Florida needed
to incapacitate the youthful offender to the extent he
‘posed an immediate risk’ of ‘escalating [his] pattern of
criminal conduct’ ’’), quoting Graham v. Florida, supra,
560 U.S. 73.
As for rehabilitation, the majority maintains that the
legislature’s judgment for how to rehabilitate an adult
offender, made at the outset of a juvenile offender’s
sentencing and without adjustment for such juvenile’s
traits, is penologically sound. Yet, the legislature’s judg-
ment about how to rehabilitate a juvenile offender, if
made on the basis of the same judgment it uses for
adult offenders, ‘‘is not appropriate in light of a juvenile
nonhomicide offender’s capacity for change and limited
moral culpability.’’ Graham v. Florida, supra, 560 U.S.
74. Imposing the same adult sentence both ignores and
perpetuates ‘‘ ‘[t]he inadequacy of the adult criminal
system to address the emotional and developmental
needs of teenagers [which] is substantiated through
research demonstrating that youth incarcerated in adult
facilities are more likely to reoffend and commit more
serious crimes than youth who are tried and treated in
the juvenile system for the same crimes.’ ’’ In re Tyriq
T., 313 Conn. 99, 132, 96 A.3d 494 (2014) (Eveleigh, J.,
dissenting), quoting Conn. Joint Standing Committee
Hearings, Judiciary, Pt. 19, 2007 Sess., p. 6096; see also
State v. Lyle, supra, 854 N.W.2d 400 (‘‘[j]uvenile offend-
ers who are placed in prison at a formative time in their
growth and formation . . . can be exposed to a life
that can increase the likelihood of recidivism’’ [citation
omitted; emphasis added]).
Unfortunately, despite the sentencing court’s own
‘‘misgivings about the appropriateness of mandatory
minimum sentences particularly within the context of
the sentencing of juvenile offenders, the court [was]
compelled, based upon its own reading of the relevant
law’’—a reading adopted by the majority—to impose a
mandatory minimum sentence that wholly ignored the
defendant’s youth despite the fact that the United States
Supreme Court ‘‘requires [us] to take into account how
children are different’’ during the sentencing process.
Miller v. Alabama, supra, 132 S. Ct. 2469. With all that
Roper, Graham, and Miller explained about how juve-
niles are constitutionally different than adults in the
sentencing context, how juveniles, categorically, may
be less culpable than adults, and how the eighth amend-
ment ‘‘mandates only that a sentencer follow a certain
process—considering an offender’s youth and atten-
dant characteristics—before imposing a particular pen-
alty’’; id., 2471; the majority would hold that the
sentencing court should be unable to adjust a juvenile
defendant’s sentence downward because of such juve-
nile’s age, in the sentencing court’s words, ‘‘even if the
defendant’s young age counseled in favor of a more
lenient sentence.’’ (Emphasis in original.)
It is reasonable to conclude that the sentencing court
would have departed downward from the mandatory
minimum sentence in light of its remarks during sen-
tencing. After hearing testimony, the sentencing court
appeared unable to justify, penologically, the sentence
the court felt constrained to impose on the basis of its
reading of the law: ‘‘Regardless of the extent to which
the state had discretion to act otherwise [in transferring
the case to the regular criminal docket pursuant to
General Statutes § 46b-127], regardless [of] the extent
that the law should be different than it is, regardless
of whether . . . there should be an age at which
offenders are . . . brought to the adult court, whatever
personal opinions may be on that subject, the court has
ruled that there is no constitutional violation in the
Connecticut sentencing scheme or in the fact that we
do authorize the transfer of certain offenses committed
by persons fourteen years . . . and older to adult
court.
‘‘What is not before me now and what has never been
before me is the question of whether . . . this was a
case that should have come here, should have stayed
here. The fact is it came here, in the court’s view . . .
so that issue was also really one that’s beyond the
court’s ability or authority to effect. It . . . is a decision
that was made by [the state’s attorney in] whom that
discretion was placed.
***
‘‘I, frankly, don’t know whether many judges have
been previously in this state confronted with a situa-
tion where an offender as young as your client at the
time of the offenses was in the position that I am now
which is to be required to impose a sentence where
there is a mandatory minimum like that which is at
issue here. So a certain part of me shares your . . .
wish to be somewhere else, but this is what I have the
duty to do.
***
‘‘[A]s I said in my . . . memorandum, I have,
frankly, certain misgivings about the appropriateness
of mandatory minimum sentences in the juvenile set-
ting. . . . So I’m not speaking out of school, so to
speak, by saying that sitting up here now with a manda-
tory minimum in place doesn’t make things easier. But
there are . . . rules that all of us have to follow and,
under our system of law, the legislature enacts the laws
and the courts are duty bound to enforce them. . . .
‘‘Of course, with a mandatory minimum, there’s a
point at which I have to impose a certain sentence. It’s
always hard to say what would be the right number of
years to compensate someone for what [the complain-
ant] went through. There’s no right number. There’s
no magic to this. But I still have to impose what the
legislature tells me to impose. I don’t have any other
choice. . . . But, very candidly, in this case, the sen-
tence that I have to impose, at least the minimum
sentence I have to impose, is set by the legislature.
***
‘‘[D]espite my own misgivings about the appropriate-
ness of mandatory minimum sentences particularly
within the context of the sentencing of juvenile offend-
ers and of the belief, as I am, that when the legislature
enacted this mandatory minimum they were not con-
templating, frankly, a fourteen year old, but probably
someone significantly older, I still feel duty bound
under my role in our criminal justice system to follow
the rules and the sentences the legislature has enacted.
But to the extent that people have asked me to be as
lenient as I can, that’s what I’m being. I’m being as
lenient as I can.’’ (Emphasis added.)
The sentencing court’s words speak volumes, elo-
quently focusing our attention on the inequities, of a
constitutional magnitude, that arise when we treat juve-
nile offenders as adults. In my view, these words
amount to a finding that the sentence imposed on the
defendant was unconstitutionally disproportionate,
constituting cruel and unusual punishment.
The majority’s review of the proportionality of the
defendant’s sentence is devoid of any mention of all
that the sentencing court saw, firsthand, to be an inap-
propriate application of our age blind mandatory mini-
mum sentences to this particular juvenile defendant. I
would agree with the majority that, in the abstract, a
ten year sentence may not be a per se cruel and unusual
punishment, and that such a punishment is certainly
less severe than those at issue in Roper, Graham, and
Miller. See Robinson v. California, 370 U.S. 660, 667,
82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962) (‘‘To be sure,
imprisonment for ninety days is not, in the abstract, a
punishment which is either cruel or unusual. But the
question cannot be considered in the abstract.’’). ‘‘Even
one day in prison would be a cruel and unusual punish-
ment’’ if the punishment did not fit the offense or the
offender. Id.
However, by stepping back and abstractly reviewing
the length of the defendant’s sentence with the length
of the sentences in Graham and Miller, the majority
fails to recognize the reality that the sentencing court
found this sentence to be disproportionate for this juve-
nile offender, after a nuanced review of all of the partic-
ular circumstances in this defendant’s case. Despite that
finding, the trial court was precluded from adjusting
the sentence downward from the mandatory minimum
sentence that the legislature had crafted for an adult
convicted of this crime to account for this juvenile
defendant’s diminished culpability. Respectfully, in my
view, this is a step backward from what was, and is, a
national trend of recognizing that juveniles cannot be
treated the same as adults when meting out pun-
ishments.
In my view, there is an inherent contradiction in the
conclusion that, on the one hand, we must protect juve-
niles convicted of the most terrible crimes from life
sentences because juveniles possess characteristics
that render them in need of our special protection, and
yet, on the other hand, these same juveniles, possessing
the same characteristics that render them in need of
our special protection, are not entitled to the same
protection on the basis of their having committed differ-
ent crimes. It was this inconsistency that the court in
Miller attempted to avoid when it stated, in no uncertain
terms, that ‘‘none of what [Graham] said about chil-
dren—about their distinctive (and transitory) mental
traits and environmental vulnerabilities—is crime-spe-
cific.’’ Miller v. Alabama, supra, 132 S. Ct. 2465.
I respectfully dissent.
1
Iowa’s mandatory transfer statute required the defendant in Lyle to be
tried and sentenced as an adult. Iowa’s transfer statute, like Connecticut’s,
requires that juveniles charged with certain enumerated crimes be automati-
cally tried and sentenced as adults. See General Statutes § 46b-127; Iowa
Code Ann. § 232.8.1 (c) (West 2015). Iowa’s transfer scheme differs with
Connecticut’s, however, in that its automatic transfer provisions become
applicable at age sixteen, compared with age fourteen in Connecticut, and
that a defendant is empowered to challenge such transfer, compared with
the defendant’s inability to challenge such transfer in Connecticut. See
General Statutes § 46b-127; Iowa Code Ann. § 803.5.2 (West 2015).
2
According to the information provided in the defendant’s appendix, for
incarcerated juvenile offenders in 2013, the defendant was the youngest
child, in terms of his age at the time of the offense, sentenced in this state
for the crime charged.
3
The majority specifically focuses, however, on ‘‘the gravity of these
offenses, the tender age of [the complainant] when they occurred, and the
likelihood that [the complainant] will suffer from the effects of the abuse
for the remainder of his life’’ in concluding that ‘‘the mandatory minimum
sentences cannot be said to be disproportionate under Roper, Graham and
Miller.’’ While these considerations make a strong case for retribution,
absent from this review is any mention of the defendant’s characteristics,
particularly the sentencing court’s clear view that the defendant’s character-
istics weighed in favor of a lesser sentence. See Graham v. Florida, supra,
560 U.S. 71 (‘‘ ‘[t]he heart of the retribution rationale is that a criminal
sentence must be directly related to the personal culpability of the criminal
offender’ ’’ [emphasis added]), quoting Tison v. Arizona, supra, 481 U.S. 149.