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If the state courts in Colorado do not modify the sentence of a man serving 108 years for crimes he committed as a juvenile, the federal appeals court based in Denver has ordered his release to comply with U.S. Supreme Court precedent.

The Supreme Court decided in 2010 that a life sentence without the meaningful possibility of parole was unconstitutional for children who committed crimes other than homicide. Seven years later, the U.S. Court of Appeals for the 10th Circuit applied that ruling to cover instances where a person was not technically serving life without parole, but who nonetheless would not realistically be released in their lifetime.

With that in mind, the 10th Circuit on Wednesday ordered that unless Colorado resentences Johnny Lee within a reasonable time to a duration allowed by the Constitution, he should be released.

Lee was 17 years old in 1999 when he and five other gang members abducted and raped a University of Colorado student in Boulder. A jury convicted him and he received a 36-year sentence for kidnapping and a 16-year sentence for conspiracy. For his two sexual assault convictions, he received two sentences of 36 years to life. In all, the prison time amounted to 108 years, during which Lee would not be eligible for parole in his lifetime.

After the U.S. Supreme Court decided the 2010 case of Graham v. Florida involving juvenile nonhomicide offenders, Lee asked Colorado state courts to review his sentence, alleging it violated the Eighth Amendment's prohibition on cruel and unusual punishment. The Court of Appeals denied his request in January 2020, saying the state Supreme Court had rejected the idea that a person's multiple sentences were illegal if they added up to lifetime imprisonment.

Later that same year, the Colorado Supreme Court declined to review Lee's appeal, although Justice Richard L. Gabriel noted he would have heard the case to decide whether, in fact, Lee's combined sentence did violate Graham. Three justices must agree to hear a case for the Court to take it up.

U.S. Supreme Court Justice Anthony M. Kennedy noted in Graham opinion that the United States, at the time, was the only country to impose lifetime sentences with no parole on child offenders who did not commit murder. "[R]etribution does not justify imposing the second most severe penalty on the less culpable juvenile nonhomicide offender," he wrote in the majority opinion.

Although the 10th Circuit held off on deciding Lee's federal writ of habeas corpus challenging his sentence while he sought relief in Colorado courts, the state has conceded that the 10th Circuit could declare Lee's prison term unconstitutional.

"The State urges us to say that if no resentencing occurs, one of Mr. Lee’s consecutive 36-year sentences for sexual assault will be deemed to run concurrently with his other sentences," wrote Judge Harris L Hartz. "Mr. Lee argues that the conditional writ should require his release if he is not timely resentenced. We agree with Mr. Lee. “

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