Oregon says ruling's not applicable in Kinkel case

PORTLAND — A U.S. Supreme Court ruling that struck down mandatory life sentences without parole for two 14-year-olds does not apply to Kip Kinkel, the Oregon attorney general's office says in a motion to throw out the school shooter's request for a new sentencing hearing.

The attorney general's office, in documents obtained by The Oregonian newspaper, notes that Kinkel got a nearly 112-year sentence — not a mandatory life sentence — from the Lane County judge in 1999.

Kinkel was 15 when he killed his parents in their Springfield home in 1998, and then fatally shot two students and wounded 25 others at Thurston High School the next morning.

Kinkel, now 30, was thought to have exhausted his appeals in state court.

His attorney, however, filed a new petition earlier this year, citing the U.S. Supreme Court opinion Miller v. Alabama from June 2012.

The court ruled that the mandatory true life sentences for two 14-year-olds convicted of murder violated the Eighth Amendment's ban on cruel and unusual punishment.

Minors under 18 still could be sentenced to life without parole, but only if the sentencing judge makes a finding that the penalty is appropriate, weighing the defendant's character and details of the crime, the high court ruled.

Kinkel's lawyer contends his client's sentence amounts to life in prison without parole and that the sentencing judge failed to consider his age at the time.

Oral arguments are set for Sept. 12 in Salem.

Assistant Attorneys General Laura Cadiz and Samuel A. Kubernick wrote in their response to the Kinkel petition that the Miller case is not a "watershed" ruling.

In their mid-July motion, they said Oregon has no mandatory sentence of life without parole for any single crime. They added that Kinkel's trial judge was aware of the boy's age, and that the Miller case, even if it were relevant, could not apply retroactively.

Kinkel's lawyer Andy Simrin responded this month that the Supreme Court case should apply retroactively to Kinkel's case.

He cited a recent ruling by the 9th U.S. Circuit Court of Appeals that found that another significant U.S. Supreme Court ruling in 2010, known as Graham, should apply retroactively to the California case of Roosevelt Moore, who was sentenced to more than 250 years in prison for 24 non-homicide crimes committed when he was 16.

The Graham ruling found juvenile offenders cannot be sentenced to life imprisonment without parole for non-homicide offenses.

"The law is well-settled, I believe, that when there's a new principle of constitutional law announced by the U.S. Supreme Court, you can't reasonably have been expected to have anticipated that before," Simrin said.

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