The attorney for a prisoner sentenced to 50 years of incarceration with no hope of parole asked the Illinois Supreme Court on Tuesday to rule that such sentences amount to cruel and unusual punishment that violates the U.S. Constitution.

At issue is the sentence of Dimitri Buffer, who was 16 years old in 2009 when he shot into a vehicle on Chicago’s South Side killing Jessica Bazan, 25. Since his conviction, the U.S. Supreme Court has ruled that sentencing schemes requiring automatic life terms without the possibility of parole for juveniles are unconstitutional.

Since then, courts nationwide have struggled with determining which sentences amount to de facto life terms for juveniles, a distinction that can trigger additional sentencing protections.

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The Illinois Appellate Court in 2017 overturned the 50-year sentence handed down by Circuit Judge Thaddeus Wilson, ruling that Buffer’s prison term, 25 years for the murder plus a mandatory 25 years for using a firearm, was the equivalent of life. The three-judge panel ordered the case back down to the trial court for a new sentencing hearing, one that would take into consideration Buffer’s immaturity and youth at the time of the offense. The state then appealed.

Buffer’s attorney, Assistant Appellate Defender Christopher Gehrke, urged the high court on Tuesday during arguments in Springfield to uphold the appellate court decision, contending the sentence amounts to a life term of imprisonment, offering Buffer no real opportunity to reenter society.

Abigail Blachman / Injustice Watch

Gehrke argued that the court should consider whether the sentence allows for anything more than the possibility of leaving prison alive.

The state argued that because Buffer’s sentence is survivable, it is not the equivalent of a life term.

Assistant Attorney General Gopi Kashyap said during the arguments that the court should focus only on whether a 50-year sentence constitutes a life term that affords Buffer probable survival, and not on policy questions that should be left to the legislature like what sentences are best suited for juveniles or what type of post-incarceration life the sentence provides.

“If you’re not releasing a juvenile in their 70s or 80s then it’s not life without parole,” Kashyap said. Buffer would be released at age 66.

She said that there was still disagreement on this issue nationwide, including from state to state and within jurisdictions.

Gehrke, however, contended that several states have found 50 year sentences without the chance at parole to be unconstitutional, and contended the state was wrongly arguing that it would be constitutional if prisoners sentenced for juvenile crimes were released as senior citizens, without the opportunity for a meaningful existence. “Guaranteed death is not how the law has evolved,” Gehrke said.

The attorneys also sparred over whether it was necessary for the justices to draw a bright line deciding how many years constitutes a de facto life sentence for juveniles.

Kashyap highlighted the importance of the justices drawing the bright line, as she noted that at least 44 cases were pending before the Illinois Supreme Court in which juveniles with sentences between 43 and 78 years were currently challenging their prison terms as de facto life sentences.

“I urge the court to give us some finality,” Kashyap said, urging that the line be drawn higher than 50 years. “Give us an answer. Everyone is waiting.”

In May, Injustice Watch reported that there are at least 167 juvenile offenders in Illinois prisons set to serve sentences of 50 years or more before becoming eligible for release.

Gehrke said the courts should say in this case that 50 years was too long to meet constitutional muster, but said he was not urging the court to draw a bright line. He conceded in response to questions from justices that challenges from defendants with shorter sentences than Buffer would likely follow if the courts fail to draw a line.

He said the decision of where to draw the line should be left to the legislature, which has already signaled that a 40 year sentence for a juvenile convicted of killing a police officer is an acceptable sentence.

A series of recent U.S. Supreme Court decisions encouraging more lenient sentencing of juveniles have caused courts in Illinois and across the country to reevaluate some of the lengthy prison terms given to youthful offenders.

In 2012, the U.S. Supreme Court ruled that sentencing schemes creating automatic life sentences for juvenile offenders are unconstitutional. Because children are different, the court found, judges must have the opportunity to consider factors of youth like poor decision making and the greater ability for change when sentencing juveniles. Another U.S. Supreme Court ruling in 2016 made that decision retroactive.

“Is the question whether or not someone can survive, or is the question what it takes to offer someone a meaningful opportunity for release?” said Shobha Mahadev, an attorney with Northwestern University’s Children and Family Justice Center. “I think Buffer will pull us closer to that answer, of what is appropriate when we’re sentencing a young person.”

Mahadev said that the time has come for the state to really look at the way it has treated young people for decades, incarcerating some for life, and to realize that maybe some mistakes were made.

Scott Main, another attorney with Northwestern University’s Children and Family Justice Center, said that cases like Buffer’s show an understanding of the evolving standards of decency. For the juvenile issue, he said, it is an “amazing moment” in time here in Illinois.

“Both the legislature and the courts are looking at this population and recognizing what we’ve been doing in the 80s, 90s, and early aughts was wrong and we need to come up with a fair system,” Main said.

In 2016, a state law went into effect requiring judges to consider youthful attributes as mitigating factors for offenders under the age of 18. That law also allows judges leeway in deciding whether to dole out previously mandatory sentence enhancements for the use of firearms for juveniles. And a bill was sent to the governor last year that, if signed into law, would give incremental parole opportunities to new offenders under 21.

Mahadev said the state has shown a willingness to keep revisiting this issue and to continue defining the contours of U.S. Supreme Court rulings on juvenile sentencing locally.

The Illinois Supreme Court has recently heard several other cases that dealt with youthful offenders’ lengthy prison sentences with no opportunity for parole: