The Court continued:
Given this holding, both Zuber and Comer are entitled to be resentenced. To stave off possible future constitutional challenges to the current sentencing scheme, the Court asks the Legislature to consider enacting a statute that would provide for later review of juvenile sentences that have lengthy periods of parole ineligibility.
As a threshold matter, the Court may consider Comer’s case despite his previous direct appeal and post-conviction motion because a defendant may challenge an illegal sentence at any time. R. 3:21-10(b)(5). The Eighth Amendment to the United States Constitution provides that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. Const. amend. VIII. The provision applies to the States through the Fourteenth Amendment. Article I, Paragraph 12 of the New Jersey Constitution also bars cruel and unusual punishments. N.J. Const. art. I, 12. The test for cruel and unusual punishment is generally the same under both the Federal and the State Constitutions.
Note that some states prohibit “cruel or unusual punishment” in their constitutions as opposed to “cruel and unusual punishment”. While this may be due to an oversight by the drafters who intended to otherwise copy the language of the federal eighth amendment, the distinction has been a basis to part ways with the United States Supreme Court’s interpretations.
The New Jersey Supreme Court continued:
In Roper v. Simmons, the United States Supreme Court declared capital punishment unconstitutional for juvenile offenders. The Court noted that a majority of States had rejected imposing the death penalty on juvenile offenders and stressed three general differences between juveniles and adults that, taken together, mean that the irresponsible conduct of juveniles is not as morally reprehensible as that of an adult.
Graham built on that foundation and held that the Eighth Amendment categorically forbids sentences of life without parole for juveniles convicted of non-homicide offenses. The New Jersey Supreme Court considered national sentencing practices, juveniles’ capacity to change, the nature of life-without-parole sentences, and the reality that a 16-year-old and a 75-year old each sentenced to life without parole receive the same punishment in name only.
On the one hand, it is noteworthy that the number of years that an elderly person can expect to serve on a life sentence is far less than what a juvenile can expect to serve. On the other hand, elderly people seem far less likely to commit violent crimes like homicides. Thus, the disparity between an elderly defendant’s life sentence and a juvenile’s becomes much less relevant.