kipkinkelhands.jpg

Kipland P. Kinkel, then 15, shows his hands to police after his arrest May 21, 1998. (Springfield Police Department) In November 1999, he was sentenced to 111 years and eight months in prison without the possibility of parole for fatally shooting his parents, William Kinkel, 59, and Faith Kinkel, 57, two Thurston High School students, Mikael Nickolauson, 17, and Ben Walker, 16, wounding 25 other Thurston High students and lunging at an officer with a knife once in custody.

(Springfield Police Department)

The Oregon Court of Appeals on Wednesday affirmed a Marion County judge's ruling that Kipland P. Kinkel's sentence of nearly 112 years in prison doesn't violate the Eighth Amendment's ban on cruel and unusual punishment.

Kinkel, at age 15, killed his parents in their Springfield home on May 20, 1998, and then went on a rampage the next morning at Thurston High School, where he fatally shot two students and wounded 25 others in the cafeteria.

Kinkel, now 33, is being held at the medium-security Oregon State Correctional Institution in Salem.

The state's appellate court ruled that Kinkel already had challenged his sentence as cruel and unusual in an earlier appeal and to relitigate the same argument isn't allowed under state statute.

"Where a petitioner did, in fact, earlier raise a ground - even unsuccessfully - ORS 138.550 (2) and (3) bar that ground for relief from being raised in a later post-conviction petition, the Oregon Court of Appeals ruling said. "Having raised those arguments before the trial court and on direct appeal, he cannot 'claim that he could not reasonably have raised them.' ''

Kinkel appealed a 2013 decision by a Marion County circuit judge who found that earlier case law from both the U.S. Supreme Court and the 9th U.S. Circuit Court of Appeals regarding juvenile life sentences didn't necessarily apply to Kinkel's case.

The nation's top court in 2012 ruled that certain mandatory life sentences without the possibility of parole for juveniles violated the Constitution's ban on cruel and unusual punishment. Earlier this year, the Supreme Court justices said that ruling in Miller v. Alabama could be applied retroactively to inmates convicted before the decision was issued.

In 2013, two state lawyers convinced the Marion County judge that the circumstances in Kinkel's case were far different.

They successfully argued that the Miller case doesn't apply to Kinkel because his sentence wasn't based on a mandatory "life without parole" statute. Kinkel received a long sentence - not a mandatory life sentence - from a Lane County judge who exercised his discretion and considered Kinkel's age, they said.

"Even if Miller were to be applied retroactively to certain cases on collateral review, Kinkel was not facing a mandatory sentence of life without parole, he did not receive such a sentence and the sentencing court actually exercised its discretion when sentencing'' him, Assistant Attorney Generals Laura Cadiz and Samuel Kubernick wrote in 2013.

Kinkel lawyer Andy Simrin had argued that his client's sentence of 111 years and eight months without the possibility of parole essentially amounts to a life sentence because it's longer than the life expectancy of any human.

The Oregon Court of Appeals didn't spend time evaluating whether Kinkel's sentence was cruel and unusual, but instead found that Kinkel's lawyers already had made that argument and couldn't do so again.

The appeals court did note that Kinkel's lawyers urged the trial court at Kinkel's sentencing to consider his age and mental illness, presenting testimony that he "exhibited psychotic symptoms that correlated with the features of paranoid schizophrenia.''

Before trial, Kinkel abandoned an insanity defense and accepted a plea deal to serve 25 years for shooting his parents, William Kinkel, 59, and Faith Kinkel, 57, and Thurston students Mikael Nickolauson, 17, and Ben Walker, 16.

But the deal allowed a Lane County judge to tack on 40 months for each of 26 attempted murder counts for wounding the other students and lunging at an officer with a knife once in custody. Kinkel was sentenced in November 1999.

Simrin, after meeting with Kinkel in prison Wednesday morning, said he plans to petition to the Oregon Supreme Court for review. He said he believes the state appellate court got it wrong and that his client shouldn't be barred from arguing that his practical life sentence violates the Eighth Amendment, citing the new case law.

"In his original state appeal, the state public defender made a one sentence Eighth Amendment argument in a footnote, that the sentence was disproportionate with the crime,'' Simrin said. "The argument now is different because the legal analysis is different under Miller.''

Simrin argued that his client can be rehabilitated, and has shown he can be properly medicated for schizophrenia. "He's completely harmless,'' Simrin said.

He and Kinkel discussed the appellate court decision for about five minutes, Simrin said.

"He handles everything pretty matter-of-factly,'' Simrin said. "He took it right in stride.''

-- Maxine Bernstein

mbernstein@oregonian.com

503-221-8212

@maxoregonian