This week, the Supreme Court will hear a case testing whether the Eighth Amendment's ban on cruel and unusual punishment prohibits sentencing a teen to life in prison without parole for a nonhomicide crime. Punishment is generally deemed "cruel" if it's more than "graduated and proportional." It is constitutionally "unusual" if imposed so infrequently "that a national consensus has developed against it." (Click here to follow Dahlia Lithwick).
The seeds for this particular constitutional challenge were sown in Justice Anthony Kennedy's majority opinion in a 2005 case, Roper v. Simmons, banning capital punishment for juveniles. That case hinged on the growing national consensus against executing teens, bolstered by scientific studies finding teenage brains to be underdeveloped in ways that make their owners less culpable than adults. The question for the court this time is not just whether teens are really different than adults, but whether being sentenced to die in prison is truly different from being sentenced to die there by lethal injection.
The court ordered two different Florida cases to be argued on the same day—suggesting it may resolve each one differently (the court may simply find that age 13 is too young for life without parole but 17 is not). In Joe Sullivan's case, he and two accomplices robbed a 72-year-old woman, then he and a confederate allegedly returned to her home and raped her. Sullivan was tried in adult court and sentenced to life without parole. He was 13. Terrance Jamar Graham tried to rob a restaurant with two accomplices. He was charged as an adult, pled guilty to armed burglary charges, and received one year behind bars and three years probation. But when he violated probation, Graham was sentenced, without trial, to life without parole. He was 17. In both cases the sentencing judges were certain these boys were beyond hope or help.
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The cases force Justice Kennedy, once more the court's likely decisive vote, to confront the neurological and behavioral science he relied upon in Roper. Writing there for five justices, Kennedy found teens prone to "impetuous and ill-considered actions and decisions" and concluded "that the character of a juvenile is not as well formed as that of an adult."
That same neuroscience has been deployed again in this case. A dramatic friend-of-the-court brief submitted by a group of former juvenile offenders, including Tony-nominated actor Charles Dutton and former Wyoming senator Alan Simpson, argues that "it is fundamentally inhumane to give up on a youthful offender." Detailing Dutton's youthful conviction for manslaughter and Simpson's early experiments with arson and guns, the brief contends that teenagers are risk-takers by nature; some are just unluckier than others: "Had circumstances been different—had [Simpson] not been fortunate regarding where his stolen bullets struck or what was damaged by his arson—he might have been jailed for the rest of his life."
On the other side of the case, the state of Florida focuses not on the unseen mysteries of the teenage brain, but on the fact that "death is different." Advocates for life without parole argue that courts should stay out of the brain-science business. Just last week an Italian judge reduced an adult murderer's prison sentence based on evidence that his genes were linked to his violent behavior. Sentencing based on someone's genes or frontal cortex is a complicated business—one that might be used to extend sentences rather than just shorten them.
Another highly controversial strand in Kennedy's Roper analysis was what he described as "the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty." A reported 2,574 juveniles in the United States are serving life without parole. Sullivan's lawyers now argue that "the United States stands alone in sentencing children to die in prison without hope of ever winning release," an argument which will likely send the court's conservative wing into orbit, since they consider consulting foreign law tantamount to consulting Bazooka Joe comics.
Kennedy's willingness to cite foreign practices—which triggered calls for his impeachment after Roper—could be a factor this time too. The outcome of these complex cases may well turn on whether Kennedy believes a teenager can possibly attain, as he put it in Roper, "a mature understanding of his own humanity" in a prison cell to which his jailers have thrown away the key.
Most of the approximately 2,100 individuals sentenced as juveniles to life without the possibility of parole now have a chance for release in the wake of recent Supreme Court decisions. The choice to allow teenagers to receive the harshest available sentence is not shared among all states. Twenty states and the District of Columbia have banned life sentences without the possibility of parole for juveniles; in a handful of other states, no one is serving the sentence.
Following the 2012 U.S. Supreme Court ruling in Miller v. Alabama states and the federal government are required to consider the unique circumstances of each juvenile defendant in determining an individualized sentence. Montgomery v. Louisiana, a 2016 decision, ensures that the decision applies retroactively. For juveniles, a mandatory life sentence without the possibility of parole is unconstitutional.
Research on adolescent brain development confirms the commonsense understanding that children are different from adults in ways that are critical to identifying age appropriate criminal sentences. This understanding – Justice Kennedy called it what “any parent knows” – was central to four recent Supreme Court decisions excluding juveniles from the harshest sentencing practices. The most recent, Montgomery, emphasized that the use of life without parole (mandatorily or not) should only be reserved for those juveniles whose offenses reflected “irreparable corruption,” a ruling that Justice Scalia (in dissent) wrote may eventually “eliminat[e] life without parole for juvenile offenders.”
Supreme Court Rulings
Since 2005, Supreme Court rulings have accepted adolescent brain science and banned the use of capital punishment for juveniles, limited life without parole sentences to homicide offenders, banned the use of mandatory life without parole, and applied the decision retroactively. In 2012, the Court ruled that judges must consider the unique circumstances of each juvenile offender, banning mandatory sentences of life without parole for all juveniles; in 2016, this decision was made retroactive to those sentenced prior to 2012.
Roper v. Simmons, 543 U.S. 551 (2005)
The Supreme Court ruled that juveniles cannot be sentenced to death, writing that the death penalty is a disproportionate punishment for the young; immaturity diminishes their culpability, as does their susceptibility to outside pressures and influences. Lastly, their heightened capacity for reform means that they are entitled to a separate set of punishments. The court also held that the nation’s “evolving standards of decency” showed the death penalty for juveniles to be cruel and unusual; 12 states banned the death penalty in all circumstances, and 18 more banned it for juvenile offenders. The Roper ruling affected 72 juveniles on death row in 12 states. Between 1976 and the Roper decision, 22 defendants were executed for crimes committed as juveniles.
Graham v. Florida, 130 S. CT. 2011 (2010)
Having banned the use of the death penalty for juveniles in Roper, the Court left the sentence of life without parole as the harshest sentence available for offenses committed by people under 18. In Graham v. Florida, the Court banned the use of life without parole for juveniles not convicted of homicide. The ruling applied to at least 123 prisoners – 77 of whom had been sentenced in Florida, the remainder in 10 other states. As in Roper, the Court pointed to the rare imposition of a particular punishment to prove that the punishment is unusual.
Court precedent recognizes that non-homicide offenses do not warrant the most serious punishment available. “The concept of proportionality is central to the Eighth Amendment,” wrote Justice Kennedy. Thus, having denied the maximum punishment for all juvenile offenders (life without parole), the Court ruled that the harshest punishment must be limited to the most serious category of crimes (i.e., those involving homicide).
The Court called life without parole “an especially harsh punishment for a juvenile … A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only.” Limiting the use of life without parole did not guarantee such individuals would be released; it guaranteed a “meaningful opportunity” for release.
States that have banned or limited the use of juvenile life without parole sentences, 2017
Miller v. Alabama and Jackson v. Hobbs, 132 S. Ct. 2455 (2012)
Following Roper’s exclusion of the death penalty for juveniles and Graham’s limitation on the use of life without parole, approximately 2,500 offenders were serving sentences of life without parole for crimes committed as juveniles, all of whom were convicted of homicide-related offenses.
In 2012, deciding Miller and Jackson jointly, the U.S. Supreme Court held that, for juveniles, mandatory life without parole sentences violate the Eighth Amendment. Writing for the majority, Justice Kagan emphasized that judges must be able to consider the characteristics of juvenile defendants in order to issue a fair and individualized sentence. Adolescence is marked by “transient rashness, proclivity for risk, and inability to assess consequences,” all factors that should mitigate the punishment received by juvenile defendants.
Adolescence is marked by “rashness, proclivity for risk, and inability to assess consequences.”
Montgomery v. Louisiana 577 U.S. ___(2016)
The Miller ruling affected mandatory sentencing laws in 28 states and the federal government. States inconsistently interpreted Miller‘s retroactivity. Supreme Courts in fourteen states ruled that Miller applied retroactively while those of seven other states ruled that Miller was not retroactive. In addition, California, Delaware, Nebraska, Nevada, North Carolina, and Wyoming passed juvenile sentencing legislation that applied retroactivity.
The question was settled by the U.S. Supreme Court in the case of 68-year old Henry Montgomery, who has been imprisoned in Louisiana with no chance of parole since 1963, a “model member of the prison community.” Justice Kennedy, writing for a 6-3 majority, noted that the Court in Roper, Graham, and Miller found that “children are constitutionally different from adults in their level of culpability.” Moreover, the severest punishment must be reserved “for the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”
States can remedy the unconstitutionality of mandatory juvenile life without parole sentences by permitting parole hearings rather than resentencing the approximately 2,100 people whose life sentences were issued mandatorily.
Legislative Responses to Miller
Since 2012, 28 states and the District of Columbia have changed their laws for juvenile offenders convicted of homicide (including felony murder). All but four had previously required life without parole in these circumstances. These new laws provide mandatory minimums ranging from a chance of parole after 15 years (as in Nevada and West Virginia) to 40 years (as in Texas and Nebraska). Thirty states still allow life without parole as a sentencing option for juveniles. In most states, the question of virtual life without parole has yet to be addressed.
People Serving Juvenile Life Without Parole Sentences
Twenty states and the District of Columbia do not have any prisoners serving life without parole for crimes committed as juveniles, either due to laws prohibiting the sentence or because there are no individuals serving the sentence at this time. Thus, while 30 states allow the sentence, just three – Pennsylvania, Michigan, and Louisiana – account for about two-thirds of JLWOP sentences.
The life experiences of the approximately 2,100 people serving juvenile life sentences vary, but they are often marked by very difficult upbringings with frequent exposure to violence; they were often victims of abuse themselves. Justice Kagan, in the Miller ruling, ruled that Alabama and Arkansas erred because a mandatory sentencing structure does not “tak[e] into account the family and home environment.” The petitioners in the cases, Kuntrell Jackson and Evan Miller, both 14 at the time of their crimes, grew up in highly unstable homes. Evan Miller was a troubled child; he attempted suicide four times, starting at age 6. Kuntrell Jackson’s family life was “immers[ed] in violence: Both his mother and his grandmother had previously shot other individuals.” His mother and a brother were sent to prison. The defendant in Graham, Terrance Graham, had parents who were addicted to crack cocaine.
In 2012, The Sentencing Project released findings from a survey of people sentenced to life in prison as juveniles and found the defendants in the above cases were not atypical.
- 79% witnessed violence in their homes regularly
- 32% grew up in public housing
- 40% had been enrolled in special education classes
- Fewer than half were attending school at the time of their offense
- 47% were physically abused
- 80% of girls reported histories of physical abuse and 77% of girls reported histories of sexual abuse
Racial disparities plague the imposition of JLWOP sentences. While 23.2% of juvenile arrests for murder involve an African American suspected of killing a white person, 42.4% of JLWOP sentences are for an African American convicted of this crime. White juvenile offenders with African American victims are only about half as likely (3.6%) to receive a JWLOP sentence as their proportion of arrests for killing an African American (6.4%).
Cost of Life Sentences
Aside from important justice considerations, the financial cost of JLWOP sentences is significant. A life sentence issued to a juvenile is designed to last longer than a life sentence issued to an older defendant.
Housing juveniles for a life sentence requires decades of public expenditures. Nationally, it costs $34,135 per year to house an average prisoner. This cost roughly doubles when that prisoner is over 50. Therefore, a 50-year sentence for a 16-year old will cost approximately $2.25 million.
What Makes Youth Different?
In amici briefs written on behalf of the defendants in Roper, Graham, Miller, and Montgomery, organizations representing health professionals, such as the American Academy of Child Adolescent Psychiatry and the American Psychological Association, explained current research on immature brains. In Miller, Justice Kagan noted that adolescence is marked by “immaturity, impetuosity, and failure to appreciate risks and consequences,” all factors that limit an adolescent’s ability to make sound judgments. Justice Kagan cited Graham and J. D. B. v. North Carolina in noting that juvenile defendants are at a substantial disadvantage in criminal proceedings; they are less able than adults to assist in their own defenses (working constructively with counsel) and they are likely to respond poorly to the high pressures of interrogation. Even before Roper, states routinely recognized differences between juveniles and adults in other contexts. Almost every state prohibits juveniles from voting, buying cigarettes and alcohol, serving on juries, and getting married without parental consent. Teenagers’ drivers licenses are typically restricted through age 18. The Graham decision emphasized the importance of giving juvenile offenders a chance to become rehabilitated. These individuals have a substantial capacity for rehabilitation, but many states deny this opportunity: approximately 62% of people sentenced to life without parole as juveniles reported not participating in prison programs in large part due to state prison policies that prohibit their participation or limited program availability. They typically receive fewer rehabilitative services than other prisoners.
Momentum for Reform
Eliminating juvenile life without parole does not suggest guaranteed release of these offenders. Rather, it would provide that an opportunity for review be granted after a reasonable period of incarceration, one that takes into consideration the unique circumstances of each defendant. In Montgomery, the Court ruled that “allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity – and who have since matured – will not be forced to serve a disproportionate sentence in violation of the 8th Amendment.”
In many other countries the period before a mandated review is 10 to 15 years. If adequate rehabilitation has not occurred during these years in prison, as decided by experts, the individual may remain in prison and his/her case be reviewed again in another few years. Nor is it appropriate to eliminate life sentences in name only, replacing them with excessively lengthy prison terms that can reasonably expected to last for an offender’s entire life. There is mounting support for such reform in select states. Motivated by the Miller decision, the state of California (home to one of the largest populations of JLWOP defendants) now affords prisoners a meaningful chance at parole after 15 to 25 years if their crime occurred when they were a juvenile. Reforms are underway in other states as well. Sentences that close the door on rehabilitation and second chances are cruel and misguided.