A man who four decades ago became a police killer at 15 lost his bid for a new sentence at the Arkansas Supreme Court on Thursday.
The majority of the justices ruled that John Lohbauer, now 56, has already been made eligible for parole by a resentencing law enacted for those convicted as minors. The Legislature passed the law last year in order to comply with the U.S. Supreme Court's ruling that life-without-parole sentences for youths violate the U.S. Constitution.
Despite the court's ruling Thursday, Lohbauer's attorney, Patrick Benca, said the inmate has no realistic chance of being paroled.
Benca said he plans to appeal the decision to the U.S. Supreme Court. In a statement, Attorney General Leslie Rutledge praised the Arkansas court's decision and said Lohbauer's sentence does not violate the Constitution.
The state Parole Board has already heard Lohbauer's case and issued repeated denials, Benca said, despite the fact that Lohbauer was a runaway in 1977 when he shot two police officers -- one fatally -- and that his client has an "unblemished" record in prison.
None of the high court's seven justices said they would have given Lohbauer a chance at a lighter sentence.
The majority opinion by Justice Robin Wynne was joined by Chief Justice Dan Kemp and Justice Courtney Goodson.
An opinion concurring with the outcome, but with a different rationale, was signed by Justices Josephine Hart and Karen Baker.
Justice Shawn Womack dissented in part, saying he would have dismissed Lohbauer's appeal as moot under the Fair Sentencing of Minors Act, or Act 539, of 2017.
In a dissent, Justice Rhonda Wood said the court did not have enough detail about Lohbauer's 1977 plea deal and would have remanded the case for more fact-finding.
"It's totally unsurprising," said Jeff Rosenzweig, a Little Rock criminal-defense attorney who has worked on several juvenile resentencing cases. He was not involved in Lohbauer's appeal.
The Arkansas Supreme Court has already said the U.S. high court's ban on mandatory life-without-parole cases for offenders who were youths does not apply to first-degree murder convictions in Arkansas because those sentences technically carry an opportunity for parole, Rosenzweig said.
In addition to his life sentence, Lohbauer was sentenced to 40 years for crimes that included wounding a second officer, James Clark, on the day Lohbauer killed Texarkana police Lt. Ed Worrell.
According to newspaper archives, Lohbauer had run away from his home in Illinois with two other boys in 1977 and was acting as a lookout when the other boys tried to steal guns and ammunition from a Texarkana sporting goods store. When police arrived, Lohbauer shot them.
Govs. Bill Clinton and Mike Huckabee both denied pleas for clemency by Lohbauer, according to newspaper accounts of the hearings. The hearings included information about Lohbauer as an inmate who caused no trouble.
The Arkansas Parole Board even recommended Lohbauer for parole at least once, in 1992.
But Benca said the Parole Board has become so strict against granting parole to inmates with life terms that he advises his clients who are considering plea deals for a life-with-parole sentence that "you'll never see the light of day" in Arkansas.
The U.S. Supreme Court said in its 2012 Miller v. Alabama decision that minors cannot be mandated to serve life-without-parole sentences, even for murder.
Arkansas lawmakers in 2017 passed Act 539, which made former teenage killers eligible for parole after 25 years for first-degree murder and 30 years for capital murder.
After the law went into effect, some lifers with capital-murder convictions stemming from youthful crimes in the late 1990s continued to seek resentencing hearings in hopes of getting even lighter sentences. They won a victory last fall in the Arkansas Supreme Court.
However, Lohbauer's appeal will not affect those other cases, Benca and Rosenzweig said, because his sentence is for first-degree murder.
Rosenzweig said he agreed it will be tough for Lohbauer to convince the Parole Board he is worthy of release but added it's not impossible. The attorney named two other inmates -- Laura Berry and Dustin Vickers -- who were paroled as a result of Act 539.
If Lohbauer is paroled, Benca said, his client will go back to Illinois to live with his family. For now, Lohbauer is incarcerated at the Department of Correction's Tucker Unit.
Metro on 02/02/2018