OP-ED: Reflections on Miller v. Alabama: Roses, Thorns and Buds

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Tamar Birckhead newTo generate some (hopefully) meaningful conversation around our dinner table, I have begun to use a tool that my daughters picked up at one of their summer camps: “Rose, thorn and bud.” We each describe a good thing from our day (the rose), followed by a lousy thing (the thorn), and then conclude with something we are looking forward to (the bud). The exercise enables each person to share several different moments from the past 12 hours with the rest of the family; it doesn’t require too much effort or contemplation, and it is relatively light-hearted. In fact, not infrequently the rose is the dinner itself and the bud is the dessert. The discussion that follows rarely leads to anything profound, but the ritual forces us to pause, consider the day’s events and make an effort to connect.

Imagine my surprise when I attended the annual convening of the Campaign for the Fair Sentencing of Youth (CFSY) in November and the same prompt was used. A group of about 40 of us — lawyers and advocates, family members of those serving juvenile life without parole sentences (JLWOP), and former juvenile lifers — had been divided into geographical regions and were seated around tables in a small meeting room at the Hyatt Hotel near Union Station in Washington, D.C. “Please share a rose, thorn, and bud since the last convening,” the facilitator at my table directed, “and consider how things have changed.”

For most of us this meant reflecting on the impact of the 2012 U.S. Supreme Court decision in Miller v. Alabama that ended mandatory JLWOP and required individualized sentencing hearings. While it was a promising opinion by the Court, it was not the decision many of us hoped would end, once and for all, life imprisonment for juvenile offenders.

As we took our turns, it was clear that the past year had meant different things to each of us — with many thorns among us. For the mom of a young man serving JLWOP whose new sentencing hearing resulted in the imposition of the same sentence, the Miller decision represented dashed hopes.

For a father whose state had ruled that Miller did not apply retroactively, it meant complete devastation. For a former juvenile lifer who had been released, there was the rose of freedom but the thorns of guilt and sadness for his friends who were still — and would likely remain — incarcerated.

When it was my opportunity to speak, I shared what I am perhaps best equipped to offer to the discussion: perspective on the broader legal landscape and how quickly it has shifted to reflect an enlightened view of adolescent culpability and capacity, as well as an endorsement of the proportionate sentencing of youth.

I recalled that only eight years ago, it was legal in the United States to put juvenile defendants to death, but that Roper v. Simmons ended that practice when the Supreme Court ruled that it violated the Eighth Amendment prohibition on cruel and unusual punishment.

I reminded folks that only three years ago, it was legal to sentence juveniles to LWOP for non-homicides, but that Graham v. Florida ended that practice as well.

And while Miller v. Alabama didn’t impose a flat ban on JLWOP, the decision did require that before such a sentence may be imposed as punishment for homicide, the offender’s age, background, mental and emotional development must be considered. Likewise, the Court specifically emphasized that the offender’s immaturity, impetuosity and failure to appreciate risks and consequences — basic hallmarks of youth — must also be taken into account.

One year later, there aren’t many roses, but then again, thorns exist to protect the flower’s petals and blossoms from those who try to graze on them. It’s not a perfect analogy, to be sure, but there is cause for feeling optimistic, for hoping that the bud is the celebration we will have at next year’s CFSY convening, when we will be one step closer to ending the practice of sentencing children to die in prison.

 

Tamar R. Birckhead is associate professor of law and interim director of clinical programs at the University of North Carolina School of Law.

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Tamar Birckhead

Tamar Birckhead is an associate professor of law at the University of North Carolina at Chapel Hill and a criminal defense attorney with more than 20 years of experience. She is a faculty supervisor of the UNC Juvenile Justice Clinic, an academic program in which third-year law students defend children charged with criminal offenses in juvenile delinquency court. Professor Birckhead’s research interests focus on issues related to juvenile justice policy and reform, criminal law and procedure, and indigent criminal defense; her scholarship has been published in numerous law journals, and she co-edited the third edition of a law school casebook, Children, Parents, and the Law, with Professor Leslie J. Harris. She also regularly writes commentary, which has been published in the Los Angeles Times, and she recently launched the Juvenile Justice Blog. Prior to joining the UNC faculty in 2004, Professor Birckhead practiced for 10 years as a public defender, representing indigent criminal defendants in the Massachusetts trial and appellate courts and in federal district court in Boston. Professor Birckhead has defended clients in a wide variety of criminal cases, from violent felony offenses in state court to acts of terrorism in federal court. Among her clients was Richard Reid, the attempted "Shoe Bomber" prosecuted in the First Circuit under the U.S.A. Patriot Act. Licensed to practice in North Carolina, New York, and Massachusetts, Professor Birckhead has been a frequent lecturer at continuing legal education programs across the United States as well as a faculty member at the Trial Advocacy Workshop at Harvard Law School. She received her B.A. degree in English literature with honors from Yale University and her J.D. with honors from Harvard Law School, where she served as Recent Developments Editor of the Harvard Women's Law Journal.