Most of the approximately 2,100 individuals sentenced manditorily 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-two 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. Alabama1)Miller v. Alabama, 132 S. Ct. 2455 (2012). states and the federal government are required to consider the unique circumstances of each juvenile defendant in determining an individualized sentence. Montgomery v. Louisiana,2)577 U.S. ___2016 (2016) 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”3)Roper v. Simmons, 543 U.S. 551, 569 (2005). – 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,”4)Roper at 560. a ruling that Justice Scalia (in dissent) wrote may eventually “eliminat[e] life without parole for juvenile offenders.”5)Montgomery. Dissent of Justice Scalia (slip op.) at 15.
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.6)Roper at 560. The Roper ruling affected 72 juveniles on death row in 12 states.7)Death Penalty Information Center. U. S. Supreme Court: Roper v. Simmons, No. 03-633. Between 1976 and the Roper decision, 22 defendants were executed for crimes committed as juveniles.8)Death Penalty Information Center. Facts About the Death Penalty.
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.9)Graham at 2024. As in Roper, the Court pointed to the rare imposition of a particular punishment to prove that the punishment is unusual.10)In Graham and Roper, the Court also pointed to the overwhelming international consensus against the harshest punishments.
Court precedent recognizes that non-homicide offenses do not warrant the most serious punishment available.11)Kennedy v. Louisiana, 554 U.S. 407 (2008). “The concept of proportionality is central to the Eighth Amendment,” wrote Justice Kennedy.12)Graham at 2021. 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.”13)Graham at 2028. 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, 2018
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.14)Miller at 2465.
Adolescence is marked by “rashness, proclivity for risk, and inability to assess consequences.”
Montgomery v. Louisiana 136 S. Ct. 718 (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 states15)Arkansas, Connecticut, Florida, Illinois, Iowa,Massachusetts, Mississippi, Nebraska, New Hampshire, New Jersey, Ohio, South Carolina, Texas, and Wyoming. ruled that Miller applied retroactively while those of seven other states16)Alabama, Colorado, Louisiana, Michigan, Minnesota, Montana, and Pennsylvania. ruled that Miller was not retroactive. In addition, California, Delaware, Nebraska, Nevada, North Carolina, and Wyoming passed juvenile sentencing legislation that applied retroactivity17)Rovner, J. (2014). Slow To Act: State Responses to 2012 Supreme Court Mandate on Life Without Parole.Washington, DC: The Sentencing Project. .
The question was settled by the U.S. Supreme Court in the case of 68-year old Henry Montgomery,18)Montgomery v. Louisiana, petition 14-280. who has been imprisoned in Louisiana with no chance of parole since 1963, a “model member of the prison community.”19)Montgomery Slip Op. at 21. 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.”20)Montgomery Slip Op. at 22. Moreover, the severest punishment must be reserved “for the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”21)Montgomery Slip Op. at 17.
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. 22)Montgomery Slip Op. at 21. 23)Gately, G. (2015, March 23). Supreme Court Agrees to Hear Miller Retroactivity Issue. Juvenile Justice Information Exchange.
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). Twenty-nine 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 29 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.”24)Miller at 2468. 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 6.25)Miller at 2462. Kuntrell Jackson’s family life was “immers[ed] in violence: Both his mother and his grandmother had previously shot other individuals.”26)Miller at 2468. His mother and a brother were sent to prison. The defendant in Graham, Terrance Graham, had parents who were addicted to crack cocaine.27)Graham at 2018.
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. 28)Nellis, A. (2012). The lives of juvenile lifers: Findings from a national survey. Washington, DC: The Sentencing Project.
- 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.29)Nellis, A. (2012). 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 50.30)ACLU (2012, June 13). “At America’s Expense: The Mass Incarceration of the Elderly.” 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 Carolina31)131 S.Ct. 2394 (2011) 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 programs32)Nellis, A. (2012). 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.33)Boone, B. (2015). Treating adults like children: Resentencing adult juvenile lifers after Miller v. Alabama. Minnesota Law Review, 99(3), 1159-1194.
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.”34)Montgomery Slip Op. at 21.
In many other countries the period before a mandated review is 10 to 15 years.35)American Law Institute (2010). Model penal code: Sentencing: Council draft No. 3. Philadelphia, American Law Institute. 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.
Footnotes [ + ]
|1.||↑||Miller v. Alabama, 132 S. Ct. 2455 (2012).|
|2.||↑||577 U.S. ___2016 (2016)|
|3.||↑||Roper v. Simmons, 543 U.S. 551, 569 (2005).|
|4.||↑||Roper at 560.|
|5.||↑||Montgomery. Dissent of Justice Scalia (slip op.) at 15.|
|6.||↑||Roper at 560.|
|7.||↑||Death Penalty Information Center. U. S. Supreme Court: Roper v. Simmons, No. 03-633.|
|8.||↑||Death Penalty Information Center. Facts About the Death Penalty.|
|9.||↑||Graham at 2024.|
|10.||↑||In Graham and Roper, the Court also pointed to the overwhelming international consensus against the harshest punishments.|
|11.||↑||Kennedy v. Louisiana, 554 U.S. 407 (2008).|
|12.||↑||Graham at 2021.|
|13.||↑||Graham at 2028.|
|14.||↑||Miller at 2465.|
|15.||↑||Arkansas, Connecticut, Florida, Illinois, Iowa,Massachusetts, Mississippi, Nebraska, New Hampshire, New Jersey, Ohio, South Carolina, Texas, and Wyoming.|
|16.||↑||Alabama, Colorado, Louisiana, Michigan, Minnesota, Montana, and Pennsylvania.|
|17.||↑||Rovner, J. (2014). Slow To Act: State Responses to 2012 Supreme Court Mandate on Life Without Parole.Washington, DC: The Sentencing Project.|
|18.||↑||Montgomery v. Louisiana, petition 14-280.|
|19, 22, 34.||↑||Montgomery Slip Op. at 21.|
|20.||↑||Montgomery Slip Op. at 22.|
|21.||↑||Montgomery Slip Op. at 17.|
|23.||↑||Gately, G. (2015, March 23). Supreme Court Agrees to Hear Miller Retroactivity Issue. Juvenile Justice Information Exchange.|
|24, 26.||↑||Miller at 2468.|
|25.||↑||Miller at 2462.|
|27.||↑||Graham at 2018.|
|28.||↑||Nellis, A. (2012). The lives of juvenile lifers: Findings from a national survey. Washington, DC: The Sentencing Project.|
|29, 32.||↑||Nellis, A. (2012).|
|30.||↑||ACLU (2012, June 13). “At America’s Expense: The Mass Incarceration of the Elderly.”|
|31.||↑||131 S.Ct. 2394 (2011)|
|33.||↑||Boone, B. (2015). Treating adults like children: Resentencing adult juvenile lifers after Miller v. Alabama. Minnesota Law Review, 99(3), 1159-1194.|
|35.||↑||American Law Institute (2010). Model penal code: Sentencing: Council draft No. 3. Philadelphia, American Law Institute.|