¶ 101. (dissenting). The Eighth Amendment cruel and unusual punishment issue before this court is easy to state and difficult to decide. The question before the court is the constitutionality of imposing a death-in-prison sentence on a 14-year-old juvenile boy who committed an intentional, brutal, senseless, grotesque, reprehensible murder of a 13-year-old innocent stranger.
¶ 102. In Wisconsin, both the adult offender and the juvenile offender (10 years old or older) who have committed first degree intentional homicide are treated the same: the maximum penalty is a death-in-prison sentence, that is, life in prison without the possibility of parole. The circuit court need not impose this maximum sentence. It did in the present case.
¶ 103. A death-in-prison sentence is the most severe penalty authorized in Wisconsin. This penalty means that "whatever the future might hold in store for *391the mind and spirit of [the young juvenile], he will remain in prison for the rest of his days."1 A death-in-prison sentence is an especially severe punishment, made harsher for a young juvenile 14 years old or younger because of the increased time and proportion of life that the juvenile will serve in prison.2
¶ 104. I conclude, as has the United States Supreme Court, that the differences between juveniles and adults mean that juvenile offenders "cannot with reliability be classified among the worst offenders." Roper v. Simmons, 543 U.S. 551, 569 (2005); see also Graham v. Florida, 130 S. Ct. 2011, 2026 (2010).3 Retribution is a legitimate penological goal, but retribution "must be directly related to the personal culpability of the criminal offender." Graham, 130 S. Ct. at 2028. "[T]he case for retribution is not as strong with a minor as with an adult." Graham, 130 S. Ct. at 2028 (quoting Roper, 543 U.S. at 569-70). Accordingly, I conclude, as the nonparty brief of the Wisconsin Council on Children and Families urges, that the United States Supreme Court's analysis in Roper and Graham supports the holding that a juvenile cannot be sentenced to life without parole for a homicide committed when 14 years old or younger.
¶ 105. I discuss first the presumption of constitutionality and second the constitutional issue presented.
*392I
¶ 106. The majority opinion relies heavily on the presumption of constitutionality. I conclude that no presumption of constitutionality applies in the present case.
¶ 107. This case does not involve, as the majority opinion claims, an attack on the constitutionality of Wis. Stat. § 938.183(l)(am), which provides that courts of criminal jurisdiction have original jurisdiction over "a juvenile who is alleged to have attempted or committed a violation of s. 940.01... on or after the juvenile's 10th birthday." Nor does this case involve an attack on the constitutionality of the first-degree homicide statute, Wis. Stat. § 940.01, or the penalties that apply to that statute.
¶ 108. Instead, this case involves a challenge to the application of those statutes to a category of individuals, namely a challenge to a death-in-prison sentence for a juvenile who committed an intentional homicide when 14 years old or younger.
¶ 109. A "categorical challenge" is, in my opinion, an "as applied" challenge. Stating the challenge as a categorical challenge is just a different way of stating an "as applied" challenge. In other words, the present case can be denominated a "categorical challenge" or can be denominated an "as applied" challenge. They are the same in the present case. The former challenge is stated as a challenge to the application of the statutes to all 14-year-olds who commit intentional homicide. The latter challenge is stated as a challenge to the application of the statutes to Ninham solely because he was 14 years old when he committed intentional homicide. Of course, a decision saying that the statutes cannot be *393applied to Ninham solely because he is 14 years old would apply to all other 14-year-olds who commit intentional homicide.
¶ 110. According to Tammy W.-G. v. Jacob T., 2011 WI 30, ¶ 49, 333 Wis. 2d 273, 797 N.W.2d 854 (in which I join Justice Bradley's dissent), "no presumption [of constitutionality exists] in regard to whether the statute was applied in a constitutionally sufficient manner." (emphasis added). Rather, the constitutional analysis to be applied, according to Tammy W.-G., to "an as-applied challenge" "differs from case to case, depending on the constitutional right at issue."
¶ 111. The majority's reliance (¶ 44) on a strong presumption of constitutionality of the statute is therefore contrary to Tammy W.-G., 2011 WI 30, ¶ 49, and Roper, 543 U.S. at 563. On the basis of Tammy W.-G., the majority should be holding that no presumption of constitutionality applies in the present case.
¶ 112. Moreover, a presumption of constitutionality is not relevant in the present case, in which the constitutional right at issue is the Eighth Amendment prohibition against cruel and unusual punishment. In cases involving categorical challenges under the Eighth Amendment, a court exercises its own independent judgment, considering the culpability of the offender and the nature of the offense, the relationship of the challenged sentencing practice to penological goals, and society's evolving standards of decency. Roper, 543 U.S. at 563-64; Graham v. Florida, _ U.S. _, 130 S. Ct. 2011, 2022 (2010). How can there be a presumption of constitutionality when the court is not only exercising its own independent judgment but doing so on the basis of, inter alia, evolving standards of decency?
*394¶ 113. Thus, in contrast to the majority, I conclude that no presumption of constitutionality applies in the present case.
¶ 114. I turn now to the constitutional issue presented.
II
¶ 115. The Eighth Amendment, applicable to the States through the Fourteenth Amendment, provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
¶ 116. The Eighth Amendment's prohibition against cruel and unusual punishment is amorphous. Cruel and unusual punishment is not defined or delineated in the federal Constitution. Rather, the United States Supreme Court has declared that what constitutes cruel and unusual punishment changes with society's views: The Eighth Amendment's protection against cruel and unusual punishment "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society."4 Thus the Eighth Amendment's prohibition against cruel and unusual punishment is not a constant. The prohibition is constantly evolving, reflecting the changes in society.
¶ 117. Over the last decade, the United States Supreme Court has been developing the "evolving standards of decency" central to the analysis of the Eighth Amendment for juveniles and those whose intellectual capacity is not that of an adult.
¶ 118. The United States Supreme Court has categorically prohibited a death penalty sentence for indi*395victuals whose intellectual functioning is in a low range. Atkins v. Virginia, 536 U.S. 304 (2002).
¶ 119. The United States Supreme Court has categorically prohibited a death penalty sentence for juveniles who committed their crimes before the age of 18. Roper v. Simmons, 543 U.S. 551 (2005).5
¶ 120. The United States Supreme Court has categorically prohibited a death-in-prison sentence for juveniles (under 18 years) who committed non-homicide crimes. Graham v. Florida, 130 S. Ct. 2011 (2010).
¶ 121. A next logical question is whether a death-in-prison sentence for a juvenile who committed an intentional homicide crime is categorically prohibited.6 The United State Supreme Court has yet to take up the following issue: whether a death-in-prison sentence for a juvenile 14 years old or younger who committed an intentional homicide is categorically prohibited.
¶ 122. The United States Supreme Court has recognized that juvenile offenders are less culpable than adult offenders and generally the younger the juvenile offender, the more his or her culpability diminishes.7 See also majority op., ¶ 74.
¶ 123. The task of interpreting the Eighth Amendment remains the court's task. "The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the *396severity of the punishment in question. In this inquiry the Court also considers whether the challenged sentencing practice serves legitimate penological goals."8
¶ 124. Recognizing that juveniles have less culpability than adults and so are less deserving of the most severe punishments, the United States Supreme Court has declared unconstitutional under the Eighth Amendment severe penalties imposed on juveniles.9 "The juvenile should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential." Graham, 130 S. Ct. at 2032.
¶ 125. Case law and the research on which case law is based teach that there are marked differences between juvenile offenders and adult offenders in their cognitive abilities.10 "The difference in mental development between a child and an adult... is a major premise of the United States Supreme Court's decisions in Roper and in Graham . . . ,"11 Juveniles, and especially young juveniles, categorically have lessened culpability.12 The nonparty brief of the Wisconsin Psychiatric and the Wisconsin Psychological Associations, recognizing this marked and well understood differ*397ence, advises that "[w]ell accepted psychology and psychiatry studies, including those upon which Roper and Graham relied in holding that juveniles cannot be deprived of their liberty irretrievably, require that the judgment sentencing Omer Ninham to life imprisonment without parole be vacated."
¶ 126. Wisconsin law has similarly recognized that young juveniles under the age of 15 are unprepared for adult responsibilities and should be treated as a distinct group of juveniles in need of protection.13
¶ 127. The case law and the research on which the cases are based teach that caution should be used in allowing a judge to decide at sentencing that a young juvenile is incorrigible or has an "irretrievably depraved character."14 " '[Ijncorrigibility is inconsistent with youth.' "15 A ruling that a juvenile who committed a homicide at the age of 14 does not have the capacity to ever mature and reform or be reincorporated in society is categorically untrustworthy. "If trained psychiatrists with the advantage of clinical testing and observation refrain, despite diagnostic expertise, from assessing any juvenile under 18 as having antisocial personality disorder, we conclude that States should refrain from *398asking jurors to issue a far graver condemnation . . . ,"16 More complete and accurate information is needed about the child (and the adult that he or she may become) because "[experience has taught us to be cautious when reaching high consequence conclusions about human nature that seem to be intuitively correct at the moment." State v. Gallion, 2004 WI 42, ¶ 36, 270 Wis. 2d 535, 678 N.W.2d 197.
¶ 128. In addition to the culpability of juveniles, a court must consider the "objective indicia of society's standards, as expressed in legislative enactments and state practice."17 The majority opinion concludes that no national consensus exists against sentencing a 14-year-old or younger juvenile to death in prison for intentional homicide. Majority op., ¶ 57.1 examine the data and come to the opposite conclusion.
¶ 129. That 36 states allow a juvenile 14 years old or younger to be sentenced to death in prison for the crime of homicide does not undermine a national consensus against the practice. Three states have now moved away from death-in-prison sentences for juveniles.18 However, the absence of legislation prohibiting a particular sentence is not conclusive evidence of society's current standard of decency. In addition to legislation, "[ajctual sentencing practices are an important part of the inquiry into consensus." Graham, 130 S. Ct. at 2023.
*399¶ 130. The extreme infrequency with which death-in-prison sentences are imposed on children for homicides committed when 14 years old or younger demonstrates that there is a national consensus against such sentences. Only 73 juveniles in 18 states are serving a death-in-prison sentence for homicide committed when 14 years old or younger. Majority op., ¶ 56. Sixteen states have a sentencing statute that results in mandatory death-in-prison sentences for juveniles that commit intentional homicide.19 In contrast, according to statistics supplied by the defendant's brief based on data from the Wisconsin Office of Justice Assistance, since 1995 1,153 juveniles were arrested in Wisconsin for murder, and only Omer Ninham has been sentenced to life in prison without parole for a homicide committed when 14 years old or younger.
¶ 131. The national data on sentencing practices analyzed in the instant case are significantly similar to the data in Graham regarding the imposition of sentences of life without parole for juveniles who committed non-homicide crimes. In Graham, 123 juveniles in 11 states were serving life-without-parole sentences for non-homicide cases, Graham, 130 S. Ct. at 2011, and the United States Supreme Court found a national consensus that a sentence of death in prison for non-homicide cases was cruel and unusual punishment.20
¶ 132. Just as the United States Supreme Court determined in Graham that there was a national consensus against juveniles being sentenced to life without *400parole for non-homicide crimes, I conclude on the basis of the infrequency with which death-in-prison sentences are imposed for homicides committed by juveniles under 15 that there is a national consensus against death-in-prison sentences for homicide crimes committed when a juvenile is 14 years old or younger. The national consensus against such sentences strongly supports the conclusion that such sentences are cruel and unusual.
¶ 133. Applying the rationale used by the United States Supreme Court in Eighth Amendment cases, I conclude that the Wisconsin statute allowing the imposition of a death-in-prison sentence for a homicide committed when a juvenile is 14 years old violates the constitutional prohibition of cruel and unusual punishment. This case lies on the boundaries of an evolving standard of decency that underlies the analysis of Eighth Amendment rights. Applying the analyses the Supreme Court applied in Graham and Roper, consistent with the analysis the Court applied in Atkins21 and Thompson,22 and the historic recognition under Wisconsin law of the vulnerability of young juveniles, I conclude that a death-in-prison sentence for an intentional homicide committed when a juvenile is 14 years old or younger is unconstitutional.
¶ 134. My conclusion is buttressed by the same kind of research-based evidence that the United States Supreme Court has relied upon to declare: (1) juveniles categorically have lessened culpability; (2) juveniles are more capable of change than adults and their actions are less likely to evidence "irretrievably depraved character" such that a decision at sentencing *401could be made that they are incapable of reconciliation with society; (3) penological justifications do not support a sentence that denies all hope for reconciliation with society; and (4) the sentence of death in prison is especially harsh on young juveniles.
¶ 135. Just as society's standards of decency categorically do not allow a juvenile to be sentenced to death, juveniles 14 years old or younger should not be sentenced to death in prison.
¶ 136. Omer Ninham's sentence guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the heinous act he committed as a 14-year-old is not representative of his true character.23 I conclude the death-in-prison sentence subjecting the 14-year-old to "hopeless, lifelong punishment and segregation is not a usual or acceptable response to childhood criminality, even when the criminality amounts to murder."24
¶ 137. For the reasons set forth, I dissent.
¶ 138. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.Naovarath v. State, 779 P.2d 944, 944 (Nev. 1989).
Graham v. Florida, 130 S. Ct. 2011, 2027-28 (2010).
The three general differences are: (1) juveniles have a lack of maturity and an underdeveloped sense of responsibility resulting in impetuous and ill-considered actions and decisions; (2) juveniles are more susceptible to negative influences and outside pressures; and (3) the character of a juvenile is not as well formed as that of an adult. Roper v. Simmons, 543 U.S. 551, 569-70 (2005).
Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).
See also Thompson v. Oklahoma, 487 U.S. 815 (1988) (categorically prohibiting the death penalty for a crime committed by a juvenile while under the age of 16).
See Adam Liptak & Lisa Faye Petak, Juvenile Killers in Jail for Life Seek a Reprieve, N.Y. Times, Apr. 21, 2011, at A13.
Graham, 130 S. Ct. at 2026; Roper, 543 U.S. at 569.
Graham, 130 S. Ct. at 2026 (citations omitted). The penological goals are retribution, deterrence, incapacitation, and rehabilitation. None justifies a death-in-prison sentence for a 14-year-old child.
Graham, 130 S. Ct. at 2026; Roper, 543 U.S. at 569.
This accepted distinction has led to a continued trend in recent years of trying fewer teenage defendants in adult courts. See Mosi Secret, States Try Fewer Teenage Defendants in Adult Courts, N.Y. Times, Mar. 6, 2011, at A1.
Missouri v. Andrews, 329 S.W.3d 369, 379 (Mo. 2010) (Wolff, J., dissenting).
Graham, 130 S. Ct. at 2032; Roper, 543 U.S. at 572-73.
Juveniles under 15 years of age may be held in secure custody only in a juvenile detention center or the juvenile portion of a county jail. Wis. Stat. §§ 302.18(7), 938.138(lm)(a).
Fourteen-year-olds are incapable of consenting to sexual activity. Wis. Stat. §§ 948.01, 948.02, & 948.09. Fourteen-year-old crime victims also receive extra protections under certain sexual offense statutes. Wis. Stat. §§ 948.02, 948.09, 948.075, 967.04.
Graham, 130 S. Ct. at 2026.
Graham, 130 S. Ct. at 2029 (quoting Workman v. Commonwealth, 429 S.W.2d 374, 378 (Ky. 1968)).
Roper, 543 U.S. at 573.
Graham, 130 S. Ct. at 2022 (quoting Roper, 543 U.S. at 572).
California (In re Nunez, 93 Cal. Rptr. 3d 242 (Cal. Ct. App. 2009)); Colorado (Colo. Rev. Stat. § 17-22.5-104OV)); Texas (Tex. Penal Code Ann. § 12.31(b)(1)).
Andrews, 329 S.W.3d at 383 (Wolff, J., dissenting).
Similarly, as asserted by Ninham, the absolute numbers of the sentence before this court are substantially comparable to the pertinent number of sentences in Roper (72) and in Atkins (71). See Brief of Defendant-Appellant-Petitioner Omer Ninham at 24-25.
Atkins v. Virginia, 536 U.S. 304 (2002).
Thompson v. Oklahoma, 487 U.S. 815 (1988).
Graham, 130 S. Ct. at 2027; Naovarath, 779 P.2d at 944.
Naovarath, 779 P.2d at 947.