Life Sentences, Long Sentences Imposed on Youth Need 2nd Look

Decades of research from the fields of criminology and adolescent brain science find that the decisions made in youth — even very unwise decisions — do not crystallize criminality. Instead, as young people age and mature they develop the capacity to make different choices.

Fortunately, more informed policies have begun to replace the punishments that proliferated during the 1990s when fear of “superpredators” and calls for “adult time, adult crime” dominated youth crime policy. The incarceration rate for youth in juvenile and adult systems soared then. Today, youth incarceration in juvenile facilities is now half its level of 20 years ago. Driven by the work of advocates, legislators, researchers and judges, many now readily acknowledge that the juvenile justice system should be used sparingly and only for those who truly need confinement.

Based mostly on the adolescent brain science discoveries that concluded that executive functioning is not fully developed until adulthood, in 2005 the Supreme Court ruled in Roper v. Simmons that the death penalty for juveniles violated the 8th Amendment. The Supreme Court has taken up the issue of severe sanctions for juveniles three more times since then, and as a result there are restrictions in the use of life without the possibility of parole (LWOP) for juveniles.

Changing public sentiment regarding the wisdom of sending young people to adult prisons has led policymakers in many states to revise misguided policies in this area. Many juveniles who would otherwise be languishing in adult prisons are now either in juvenile confinement facilities that are better designed for their needs or have been diverted from confinement altogether. In 2015, the number of juveniles held in adult prisons declined to less than 1,000, an 82 percent drop from the peak year in 1997.

These reforms have not resulted in any adverse public safety outcomes. Crime continues to be at historic lows.

Despite these advances, more than 9,000 people who were convicted as youth still do not stand to benefit from reforms either in the juvenile system or of the restrictions on punishments in the adult system. The Sentencing Project recently released a national study on the prevalence of life sentences nationwide, disaggregated by crime of conviction, race and ethnicity, gender and juvenile status. We obtained data from the states and federal Bureau of Prisons on the number of people serving three categories of life sentences: life with the possibility of parole (LWP), LWOP and virtual or de facto life sentences that amount to terms of 50 years or more. We learned that 1 in 7 prisoners is serving one of these sentences and that nearly 6 percent of the lifer population was under 18 at the time of the crime.

Aside from the roughly 2,300 individuals serving JLWOP there are approximately 7,000 juveniles who are serving parole-eligible life sentences around the country. For them, a statutory mandate or judicial decision has determined that spending the rest of their life in prison is reasonable if parole is not granted sooner. In New York, Georgia and Texas, more than 600 people sentenced for crimes in their youth have parolable life sentences. In California, which leads the nation in the category of life sentences, a notable 2,700 individuals are serving parole-eligible life for a crime committed under age 18.

In addition to the 7,000 juveniles serving life with parole, nationwide 2,000 individuals are serving de facto life sentences of 50 years or more for crimes committed when they were less than 18 years old. Louisiana reports 600 virtual lifers who were juveniles when their crime occurred and Texas reports nearly 450 such individuals.

The crimes committed by these juveniles were typically serious: 82 percent of lifers with the possibility of parole have been convicted of a homicide, and for half of these the crime was a first-degree murder. Among those serving de facto life for crimes committed as juveniles, 56 percent were convicted of a homicide and 94 percent were convicted of violent crime, including 22 percent for aggravated assault.

As with all life sentences, racial disproportionality is evident. African-American youth comprise more than half (53 percent) of the parolable and virtual life sentences, slightly less than their composition among the JLWOP population (63 percent). Overall, youth of color make up 81 percent of those serving life and virtual life sentences.

Some states stand out in the proportion of life and virtual life sentences being served by those who were young at the time of the crime. In Wisconsin, for instance, more than 11 percent of the life-sentenced population was a juvenile at the time of the crime. And while a first opportunity for parole comes after “only” 20 years in Wisconsin, we know from mounting research in parole politics and practices that rates of granting parole have fallen, particularly for those convicted of serious crimes and serving lengthy sentences. In Georgia, which in 2016 reported 600 people serving parole-eligible life sentences for crimes committed in their youth, the first opportunity for parole does not occur for 25 to 30 years. In Tennessee, the first parole hearing occurs only after a minimum of 51 years.

The requirement set forth in Graham v. Florida of a “meaningful opportunity for release based on demonstrated maturity and rehabilitation” has shined a bright light on parole systems’ capacity and willingness to afford a second look, and when this should occur. In June, the Supreme Court ruled in Virginia et al. v. Dennis LeBlanc (582 US ___[2017]) that Virginia’s “geriatric release” mechanism provided a sufficiently meaningful opportunity for release. Geriatric release allows review for those 60 years old and older; this means that LeBLanc and other people in his position will wait more than 40 years before being considered for release.

This and other lengthy terms of imprisonment stand to violate the spirit if not the letter of the recent court rulings. They also conflict with recent recommendations of the American Law Institute, a respected body of legal scholars and law practitioners that proposes a review after 10 years for any juveniles sentenced to terms longer than this.

Revised state laws for sentencing juveniles are being developed in the aftermath of the Supreme Court rulings. It is important to include in these considerations all youth with life and lengthy terms; their potential for reform and maturation is just as likely as for those sentenced to life without parole.

Ashley Nellis, Ph.D., is a senior research analyst at The Sentencing Project and the author of numerous research reports on life sentences, most recently “Still Life: America’s Increasing Use of Life and Long-Term Sentences.”

Notion that “Kids are Different” Takes Hold in Youth Justice Policy Reform

2005 – Roper v. Simmons: U.S. Supreme court rules that it is cruel and unusual punishment to impose the death penalty on people for crimes committed when they were younger than 18.

“[F]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” Roper v. Simmons, 543 U. S. 551, 570 (2005). 

2010 – Graham v. Florida: U.S. Supreme Court rules that life-without-parole sentences imposed on children for non-homicide offenses are unconstitutional.

“‘(J)uvenile offenders cannot with reliability be classified among the worst offenders.’ “ Graham v, Florida, 130 S. Ct. 2011, 2026 (2010), quoting Roper, 543 U.S., at 573.“Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults. Id. 

2011 -- J.D.B. v. North Carolina: U.S. Supreme Court establishes that youth status matters in areas of youth justice beyond the context of harsh sentencing policies when it imposed the requirement that law enforcement officials must consider the age of a suspect in determining whether Miranda warnings should be issued.

“Children generally are less mature and responsible than adults; they often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them; and they are more vulnerable or susceptible to . . . outside pressures than adults.  J.D.B. v. North Carolina, 131 S. Ct. 2394, 2403 (2011) (internal quotation marks omitted).

2012 – Miller v. Alabama: U.S. Supreme Court rules that the imposition of a mandatory life without parole sentence on someone convicted of a crime as a child violates the 8th Amendment ban on cruel and unusual punishment.

“Youth is more than a chronological fact. It is a time of immaturity, irresponsibility, impetuousness[,] and recklessness. It is a moment and condition of life when a person may be most susceptible to influence and to psychological damage.  And its signature qualities are all transient.” Miller v. Alabama, 132 S. Ct. 2455, 2467 (2012) (internal quotation marks omitted).    

If there was uncertainty seven years ago when the U.S. Supreme Court abolished the death penalty for children, or in 2010 when it ruled that life-without-parole sentences imposed on youth for non-homicide crimes are unconstitutional, it should be clear by now that this is a new day for youth justice reform.

Our nation’s highest court has held three times in the last three years that child status is relevant to matters of justice and the law. The message that “kids are different” has been established by the Court, scientific research and, increasingly, among liberal and conservative policymakers alike. As a result, the parameters for how we treat children in the U.S. justice system are forever changed.

Just as we consider the unique characteristics of young people when making decisions about when they are allowed to volunteer for military for service, drive, serve on juries or register to vote, we also must consider these differences in the context of youth justice policies. Laws that treat children like adults and ignore relevant factors related to their status as children — their lessened culpability, their unique vulnerability to peer pressure, their lack of understanding of the consequences of their actions and impulse control, and their particular capacity for rehabilitation— can no longer be justified.

The Court has scaled back some of the misguided policymaking of the 1980s and 1990s, when upticks in crime among youth led criminologists and other opinion leaders to predict a major wave of violent crime by “juvenile superpredators.” Policymakers reacted with fear-based “tough on crime” policy reforms making it easier to try children as adults and making more extreme sentences available to them.

These juvenile crime waves never materialized, and the superpredator theory has been debunked and acknowledged as inaccurate by the same criminologists who brought credibility to it. In addition, many of those criminologists have since emphasized the need for rehabilitation rather than harsh penalties to appropriately hold youth accountable and improve public safety.  This is the direction in which the pendulum is now swinging.

Policymakers and opinion leaders across the political spectrum have recently called for age-appropriate reforms to laws that ignore the differences between children and adults. These have included the New York Times, President Jimmy Carter, and conservative former lawmakers Newt Gingrich and Pat Nolan. Earlier this month, the Attorney General’s Task Force on Children Exposed to Violence, which is co-chaired by Joe Torre, Major League Baseball Executive Vice President of Baseball Operations, recommended in its report that the United States “stop treating juvenile offenders as if they were adults, prosecuting them as adults in adult courts, incarcerating them as adults, and sentencing them to harsh punishments that ignore their capacity to grow.” (See Recommendation 6.9, page 124).

As we look to the New Year, I am heartened that the notion that “kids are different” is taking hold. Policymakers who have been reticent to do so are realizing now that it is time to rethink policies that require youth to be tried and sentenced as adults and those that allow children to be incarcerated in adult jails and prisons, without consideration of their unique characteristics as children. Such policies are no longer tolerable. I am hopeful we can learn from the advances of the last decade and that this new day, and the new year, will bring about meaningful practices and policies that hold youth accountable for the harm they have caused in age-appropriate ways that help to rehabilitate them and prepare them for reintegration into society.

California Legislature Can Do More to Help Kids

California has always been ahead of the curve. Fresh on the heels of the Supreme Court ruling in Miller v. Alabama, which prohibits mandatory juvenile life without parole sentences (JLWOP), the California Supreme Court announced that a 110-year sentence for a non-homicide crime was the equivalent of juvenile life without parole and thus unconstitutional in the case of People v. Caballero. Caballero, who was 16 at the time his crimes occurred, would have had to serve 110 years in prison before even having the possibility of going before a parole board.

The California Court’s opinion, released August 16th 2012, relies heavily on the reasoning put forth by the United States Supreme Court two years earlier in Graham v. Florida, where it flatly prohibited a JLWOP sentence for a non-homicide crime. The Caballero Court noted that developments in psychology show fundamental differences between juvenile and adult minds, that a life without parole sentence serves a very limited penological purpose for juveniles, and that children have the greatest possibility of rehabilitation. Of particular note to those in similar shoes as Rodrigo Caballero, the Court stated that those serving de facto sentences may file a writ of habeas corpus in trial court allowing mitigating evidence to be presented in order to be resentenced.

Relegated to a footnote, the Court opined, “We urge the Legislature to enact legislation establishing a parole eligibility mechanism that provides a defendant serving a de facto life sentence without possibility of parole …” Although the Court’s wishes would help those already serving de facto JLWOP sentences, legislative changes to California’s existing sentencing schemes would ensure that all juveniles receive fair sentences.

Often de facto JLWOP sentences are created through the combination of two mechanisms: mandatory sentencing and consecutive sentencing -- both are legislative creations. Mandatory minimum sentences mean that once there has been a finding of guilt, the penalty has already been determined by a statute created by the legislature. Judges are deprived of the opportunity to tailor punishments, and cannot take mitigating information, such as a defendant’s background or role in the crime, into account at sentencing.

Consecutive sentences distinguish between more than one crime and assign punishment for each. These sentences are then served one after the other. While this sounds like a fair system, it can play out in unreasonable ways. A juvenile who approaches a group of three people and asks for their money is charged with three separate counts of robbery, and is given an individual sentence for each count, which they will serve one after another. In this scenario, our kid could get 10 years for each count, and would serve 30. Should he have a gang or weapon enhancement, this time would be added and would also have to be served consecutively -- which could turn that 30 years into 60.

Consecutive sentences are hardly a U.S. invention. However what sets the United States apart is the lack of regulation surrounding these consecutive sentences. Over three-quarters of the countries in the world regulate consecutive sentences by allowing the sentences to be served at the same time, capping the sentences at a certain amount of years or merely enhancing the most serious offense.

These global practices recognize that uncapped consecutive sentences can lead to prison terms that are out of step with severity of the crime.

Likewise, mandatory minimum sentences are common practice worldwide -- they establish a framework that ensures that sentences for similar crimes are the same across the jurisdiction. Although mandatory minimums are a part of the laws of most countries, the severity of the United States mandatory minimums stand out in stark contrast. The majority of countries allow for judges to exercise their discretion within the mandatory terms -- so the fact that the perpetrator was a juvenile from a rough home can play a part in sentencing.

The combination of these legislative enactments has resulted in extremely long-term sentences -- much like Rodrigo Caballero’s 110-year sentence. Caballero received mandatory sentences of 15, 25, 15, 20, 15 and 20 years, all to be served one after the other for crimes that occurred in a single incident. Rodrigo Caballero did not kill a single person.

The interplay of these legislative enactments has resulted in these far reaching consequences, some that the Legislature may not have actually intended. This very issue was mentioned by the Supreme Court in Miller v. Alabama, where, while discussing juvenile life without parole, the Court noted “… it is impossible to say whether a legislature had endorsed a given penalty for children.”

In the wake of Caballero, California should continue to be progressive. The Legislature should not only enact specific parole eligibility mechanisms for juveniles serving de facto life without parole sentences but should also focus on reworking the existing statues that created these sentences in the first place.

California Ruling Bans Youth Sentences Beyond Life Expectancy

One hundred years ago yesterday, Virginia’s governor was “besieged” with pleas for clemency for 17-year-old Virginia Christian, scheduled to die that day in the state’s electric chair for murder. A century later, the California Supreme Court scheduled an opinion on a latter-day juvenile defendant facing what some say is a similar sentence.

The century makes a difference in treatment of underage criminals.

Christian, a black young woman, was headed to the electric chair in 1912 for “the murder of Mrs. Ida Virginia Belote, a frail white woman aged 72 years,” after a dispute over laundry the girl had not returned. According to a century-old story in the New York Times, the murder weapons were a poker, a cuspidor and a towel.

As a 16-year-old in 2007, Rodrigo Caballero shot at three members of a rival gang, injuring one and missing the other two. He was convicted of three counts of attempted murder plus firearms and gang charges by a Los Angeles County jury and sentenced to a total 110 years’ imprisonment.

Christian went to her death, Gov. William Mann having “decided there was no basis for interfering.”

But Caballero’s 110-year sentence is unacceptable, says California’s high court, because it effectively means he would be in custody until his own death.

Caballero’s attorney used the 2010 Graham v. Florida U.S. Supreme Court decision. It found life without parole sentences for juveniles convicted of crimes besides murder amounts to cruel and unusual punishment. It found that juveniles are less mature and less culpable than adults, thus require a “meaningful opportunity” for rehabilitation and parole.

“Graham imposes a ‘flat ban’ on such sentences,” that is, juvenile life without parole, wrote state Associate Justice Kathryn Werdegar in her concurring opinion.

“Like a sentence of life without parole, a prison sentence of such length that it cannot be served within an offender’s lifetime similarly denies his or her ‘right to reenter the community,’” she wrote, quoting Graham.

Attorney David Durchfort represented Caballero and has other clients who are serving decades-long terms, though less than 110 years. He will argue that the ruling applies to sentences that a person could possibly outlive. “We believe the [state] Supreme Court at the end of its decision made clear that each juvenile is going to present a different set of facts,” said Durchfort, “so I believe this decision applies to persons who are technically parole-eligible before they die.”

Life expectancy in prison is shorter than on the outside, he mentioned.

The ruling sends Caballero back to his trial court for resentencing, and retroactively applies to similar cases.

The case is important because it appears to be the first time a state’s high court has struck down a virtual life sentence by citing both Graham and a subsequent case concerning murder defendants.

A case similar to Caballero’s is pending in Florida’s high court, and in lower courts in other states. Though all states abide by their own laws, judges and attorneys may peek into the Caballero docket for arguments.

Juveniles are at a disadvantage in adult courts, Durchfort said. They are unsophisticated, immature and inexperienced. He predicted that one day state legislatures will begin to require periodic review of inmates who were convicted as minors. He could see a special review council or sentencing judges checking in with such inmates every few years.

Photo from City of Ventura's City Manager's Blog

For Kids in Courtrooms, the United States Is Still Cruel and Unusual

Despite the recent Supreme Court ruling in Miller v. Alabama, the United States will remain the only country in the world to sentence children to spend their lives in prison. Like countries worldwide, our laws prohibiting children from marrying, voting and drinking recognize that those under the age of 18 are categorically different from adults -- a difference we fail to apply to their treatment under criminal law.

Enshrined in laws in 28 states and in federal court, children in the United States could be transferred to adult court, tried as adults, and subject to mandatory sentencing schemes. In the Miller decision the Court ruled that a mandatory sentence of life without parole is unconstitutional when applied to juveniles for homicide crimes. Under this decision, judges in all U.S. courts are required to take into account factors such as the defendant’s age, background, involvement in the crime, and possibility of rehabilitation before issuing a sentence.

This confirms what the vast majority of countries around the globe have done all along. A new study by the Center for Law and Global Justice at the University of San Francisco found that 84 percent of countries take into account the age of the offender at trial, leaving the United States as the lone Western country that does not follow this practice. Most countries also cap sentences for kids at 20 years or less, or reduce the degree of the crime to one that carries a much lighter sentence. Paired with its 2010 Graham v. Florida decision banning juvenile life without parole sentences for non-homicide crimes, Miller suggests the Supreme Court may not be satisfied with our outlier status.

However, the Supreme Court did not reference international practice or treaty obligations in Miller, and did not completely ban the possibility of juvenile life without parole. Instead, they merely hoped that the sentence would be “uncommon.”

The United States has consistently prided itself on its commitment to and protection of international human rights through its role at the United Nations, and in its longstanding attempts to foster democracy in other countries. Yet, how can the United States be an international example when it stops short of matching international norms when it comes to children? A glaring example of this contradiction: the United States is one of only three countries in the world that is not party to the Convention on the Rights of the Child, a major U.N. treaty which sets up legal protections for children. We share this distinction with Somalia, which lacks a formal government, and South Sudan, a newly formed country.

While the estimated 2,594 children currently serving life without parole sentences and their advocates rejoiced over the Miller ruling, others will struggle to figure out whether this ruling will affect them. In practical terms, many states have consecutive sentencing that in effect sentences a juvenile to so many years in prison that they will never be released.

Courts are currently battling with these de facto life without parole cases. The California Supreme Court is determining whether a sentence of 110 years is covered under Graham. The Supreme Court of Florida agreed to review a case to determine if a sentence of 70 years handed to a child counts as life without parole. One juvenile, challenging his case before federal court in Missouri, was sentenced to 241 years for a crime committed at the age of 16. These cases were not addressed in Miller, as they were not labeled life without parole sentences.

Will these children benefit from the ruling in Miller? Will judges recognize that a 100-year prison sentence is the same as mandatory life without parole?

Both the Miller and Graham rulings indicate that the United States is working to align its treatment of children under international law to match the practices of the rest of the world. However, if the United States is serious about keeping its position as a human rights leader on the global stage, it will eradicate juvenile life without parole sentences – regardless of the form they take.

After High Court Decisions, States Slowly Lightening Juvenile Sentences

As Supreme Court arguments from two key juvenile sentencing decisions trickle down through courts and legislatures nationwide, the heaviest sentences for juveniles may be on the verge of shedding some weight.

“Graham and Miller put a constitutional ceiling on what states can do to kids,” argues Los Angeles attorney David Durchfort, continuing, “the big question now is what’s the safe zone? How far can they [states] go in punishing kids without giving them a second chance?”

Graham and Miller, decided by the U.S. Supreme Court in 2010 and 2012 respectively, bar state laws that mandate life without parole sentences for juveniles.

In both cases, the court said children are immature from a brain chemistry point of view. Therefore they are more corrigible and less culpable than adults and cannot rightfully be sentenced to life without parole until a judge takes that youthfulness into consideration. Children, they argued, should have a meaningful chance at rehabilitation and release.

In some states, the rulings make little difference because the states have no mandatory sentencing laws.

But in others, it means a change of statute, vacated sentences and maybe a change of frame of mind.

Durchfort’s arguments for rehabilitating youthful criminals will be among the first with resonance past his own state’s borders. He’s appealing a 110-year sentence handed to Rodrigo Caballero for three counts of attempted murder for shooting at rival gang members in Los Angeles County in 2007.

Caballero was 16 years old at the time and has been diagnosed with schizophrenia.

Durchfort has appealed the sentence all the way up to the California high court, arguing that 110 years without parole is an illegal sentence under Graham, because it is the equivalent of a life sentence, never giving Caballero a meaningful chance at parole.

The court has yet to announce a date for its decision. A measure in the California Assembly, Senate Bill 9, would grant periodic review to all inmates who had been sentenced for serious crimes when they were juveniles. It’s been untouched since an amendment in July.

North Carolina, however, seems to have found a new limit to its juvenile sentences: 25 years. In July 2012, it abolished mandatory life without parole for juveniles. For felony murder, the mandatory punishment is now life, defined as a quarter-century, with the chance of parole.

“Overturning the mandatory life sentence and making it life with parole — they’re going to be able to slip under Miller,” said Raleigh criminal defense attorney M. Moseley Matheson. “I think it’s something that could be challenged, but since life with parole is 25 years [in N.C.], I think it would be a difficult argument,” he said. “I don’t think there’s going to be a problem with that.”

Nevada has tweaked laws into apparent constitutionality as well. In 2011, it erased the possibility of the death penalty for minor offenders. It also set the ceiling for juveniles convicted of non-homicide crimes to life with the possibility of parole.

In Nebraska, 26 people are serving life without parole for murders committed when they were juveniles, according to Sarah Forrest, policy coordinator for child welfare and juvenile justice at Voices for Children in Nebraska, an advocacy group.

Her organization and other advocates are reaching out to those inmates who need help filing their appeals under Miller, which, under state law, need to be filed by June, 2013.

And state code still carries now-unconstitutional mandatory sentences. “Attempts to change it have been unsuccessful,” Forrest related.

Voices for Children and other advocates are calling for a re-write that gives youth an “actual, meaningful opportunity for release,” said Forrest. Kids in adult court can get very long sentences, she said: “Sometimes its 50 years, sometimes it’s 100.”

She called that “extreme sentencing” and said her group does “not want to see juvenile life without parole replaced with virtual life.”

The Nebraska Legislature reconvenes in January, Forrest’s next chance to lobby for any rewrite. “I’d say it’s going to be an uphill battle,” she said.

And it’s not clear that any code changes in any state would be retroactive.

Most of the 100 Illinois juveniles sentenced to mandatory life without parole for murder are in his jurisdiction, said Jeff Howard, deputy assistant public defender, county operations in Cook County, the center of Chicago.

“We have some pending post-conviction cases that Miller impacts,” he said. In other words, after some defendants were convicted, but before they could be sentenced, Miller cut the state’s right to apply mandatory life without parole. Litigation will tell if those cases get the benefit of Miller or not.

Juveniles Convicted of Homicides: Will The U.S. Supreme Court Take the Next Logical Step?

WASHINGTON, D.C. --  “Why is life without parole categorically different? How about 50, 60, 70 years?  As close to death as possible? How are we to know where to draw those lines?”  Justice Antonin Scalia was first out of the box to fire questions at defendant’s attorney Bryan Stevenson.

However, on the first day of Spring in the city of cherry blossoms, all eyes and ears within the U.S. Supreme Court were focused on Justice Anthony Kennedy. Would he repeat the message of hope for young people when he so eloquently wrote for the majority two years earlier in Graham v. Florida: “Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.” (Before Graham, the Court’s decision in Roper v. Simmons had ruled the death penalty for juveniles unconstitutional.)

Relying upon scientific evidence that kids are different from adults because their brains hadn’t fully developed and thus lacked impulse control and judgment, the Graham decision held life without parole sentences for juveniles convicted of crimes other than homicides to be cruel and unusual punishment, thus unconstitutional. Would the Court reach the same holding for juveniles convicted of homicides, or will “death is different” trump “kids are different”?

In a nutshell, the eight justices who asked questions on Tuesday struggled with all kinds of criminal justice concepts:  mandatory sentences, transfers to adult court, minimum age limits, individualized sentencing, mitigation evidence and society’s need for punishment and retribution for juveniles who commit murders.

Defendant’s attorney Bryan Stevenson, the executive director of the Equal Justice Initiative, led with his best argument by trying to build upon the momentum of Graham and Roper saying that “deficits in maturity, judgment and decision making found in juveniles are not crime specific.”

But Justice Kennedy seemed reserved and somewhat muted, even when he focused on the “mandatory” aspect of most states’ life without parole statutes for aggravated murders?

“What’s a trial judge supposed to do?” he questioned. “Bring in social scientists or stories of rehabilitation?” He asked both sides – Stevenson and attorneys for the states of Alabama and Arkansas --  what they were arguing for: a categorical ban on life without parole sentencing for juveniles, or an end to the “mandatory” requirement, giving the trial court discretion.

Justices John Roberts and Samuel Alito seemed focused on the concepts of a national consensus, as 39 states utilized the sentence for juveniles and thousands of juveniles convicted of murder were imprisoned across the country. Justice Alito also added that “I’m not sure of the cruel and unusual point, but rather it might be a due process argument, as the defense can’t point out mitigating factors if it’s a mandatory sentence.”  Justice Roberts also found a “state of mind” argument for juveniles, whereby juries will look at the requisite intent, and may not convict of murder” but a lesser crime.

Justice Sonia Sotomayor saw differences between the Miller and Jackson defendants. (Miller, high on drugs and alcohol, started a house fire that ultimately killed his neighbor. Jackson, who’d just turned 14 and also grew up in a gang-ridden neighborhood, was convicted under a “felony murder” theory as he never touched the firearm used to kill the store clerk during a robbery.) “Not every juvenile is equal and not every murder is equal,” she said, summing up both sides of today’s argument.

Justice Stephen Bryer worried aloud about minimum age: “Is there no constitution minimum age for life without parole sentencing?  Can this happen at 10?  At eight?  Is it totally up to the states?” Justice Scalia jumped in again: “What is the minimum? Do we just pluck age out of the air? Is it the age of reason? If you say nine, 10 or 12, I’ll say why not 14.”

I attended the oral argument as one of a dozen retired juvenile judges who signed on to an Amicus Curiae brief in support of the defendants Evan Miller and Kuntrell Jackson in cases arising out of Alabama and Arkansas, respectively. I cheered the earlier Graham decision and hoped its rationale would carry forward in the Miller and Jackson cases.

But, I left the Court today convinced that the decision was not going to be as clear cut as Roper or Graham, but hoped, as an amici, that mandatory life without parole sentences for juveniles would be stuck down and that the Court just might tackle the difficult task of setting minimum age exceptions.


The High Court Should Hold to Constitutional Principle and End Juvenile Life Without Parole

Seven years ago, in Roper v. Simmons, the U.S. Supreme Court recognized fundamental differences between children and adults that bear directly on the issue of culpability to outlaw imposition of the death penalty for any crime committed by a defendant younger than 18. Five years later, in Graham v. Florida, it relied on the same principles to ban life sentences without parole for juveniles convicted of non-homicide offenses.

Next week, the Supreme Court will consider whether those principles must once again render a life-without-parole sentence unconstitutional for youth convicted of homicide offenses when it hears the cases of Kuntrell Jackson and Evan Miller, who were both sentenced to die in prison for crimes they committed when they were 14.  Because there is no scientific, legal or practical reason to disregard the findings in Roper and Graham, the established constitutional law must prevail and life-without-parole sentences for all teenagers, including Jackson and Miller, must be prohibited as excessive.

Life imprisonment without parole, which discounts any possibility for rehabilitation, is a severe sentence for any offender. For a teenager, it is an extraordinary punishment in both length and psychological severity. And yet sentencing laws in many states make it possible for children to be locked away forever without any opportunity for release.

In most areas of the law, minors are treated with special solicitude and graduated responsibility. State laws prevent youths under 18 from voting, serving on juries or in the military, drinking alcohol, or marrying without parental consent. These protections are in place because teenagers are biologically and psychologically different than adults. Scientific research on adolescent development bolsters the commonsense understanding that teenagers lack self-control, are vulnerable to environmental pressures, and have fewer life experiences on which to draw in evaluating the consequences of their actions.

Developmental psychologists who have methodically studied the normative development of youth have consistently found deficiencies in the decision-making capacities of youth, especially in fast-paced, stressful circumstances.  Studies in cognitive development indicate that youth often lack the capacity to process information, conceptualize future consequences and engage in logical reasoning.  More recent studies in neurological development, as cited by the American Medical Association, have confirmed that areas of the brain that control logical reasoning and responsible decision-making are the last to mature and develop.

Even when a youth’s cognitive capacity begins to approximate that of an adult, psychosocial features of adolescence – such as impulsivity, peer influence and risk-taking - continue to impede decision-making throughout adolescence.  Deficiencies in psychosocial development mean that youth are driven by circumstances and impulses, have difficulty regulating their moods and emotions, and are vulnerable to the influence of their peers.

Fortunately, adolescence is not the end of the life story.  The same immaturity and flexibility that make youth more susceptible to peer influences and other environmental circumstances also make them quite resilient and capable of remarkable change.  Because their characters are not fully formed and their capacity for change and rehabilitation is great, children are a work in progress.

It is that possibility for change, together with a national consensus against indefinite, irrevocable punishments for children and the developmental justifications for finding youth less morally and legally culpable, that led the Supreme Court to narrow the scope of constitutionally acceptable punishments for juvenile offenders over the past decade.

The logical underpinnings of Graham and Roper extend to juveniles convicted of homicide. Youth, even those who kill, are less culpable than their adult counterparts, and as Justice Kennedy wrote in Roper, “cannot with reliability be classified among the worst offenders.”  Like the death penalty, life sentences without the possibility of parole are designed to deal with the most dangerous offenders who can never be rehabilitated.  Youthful offenders will likely change and should be given an opportunity to do so.  The Court's recognition of the unique characteristics of adolescence that make a permanent, irrevocable sentence excessive and unconstitutional for a child who commits a serious felony applies equally to children convicted of a homicide.

Societal consensus supports this conclusion.  Only 79 people in the United States are serving life-without-parole sentences for homicide offenses committed by youth at age 13 and 14, in only 18 states.  The vast majority of jurisdictions nationwide (32 states and the District of Columbia) have never sentenced a child aged 13 or 14 to a life sentence without the possibility of parole.

Adolescents who commit serious crimes simply cannot be said to have fixed, irredeemable characters.  A return to this scientifically-validated view of children should compel the Supreme Court to ban juvenile life without parole for children, regardless of offense. Such a ban would ensure that children who commit even the most regrettable acts have a meaningful opportunity for reform. The Supreme Court has taken several crucial steps down this road, and it should not reverse course now.


For more background, read our primer:

JJIE: U.S. Supreme Court to Hear Key Juvenile Cases Tuesday

To read what others are saying check out the links below:

The Guardian: What JLOWP means: Life without parole, for kids

The Washington Post: Giving jailed juveniles a second chance at life

Scientific American: Your Teen's Brain: Driving Without the Brakes

The New York Times: Juveniles Don't Deserve Life Sentences

The Christian Science Monitor: Supreme Court sizes up teens who murder

The Nation: Why Life Without Parole is Wrong for Juveniles

Advocates Hopeful, Want Supreme Court to Reject Life Without Parole for Juveniles

The Supreme Court in 2010.

As the U.S. Supreme Court prepares to hear oral arguments in the cases of two 14-year-olds sentenced to spend the rest of their lives in prison, many advocates and attorneys predict a majority of the justices will decide that life sentences for juveniles without the possibility of parole amounts to cruel and unusual punishment.

Children are “categorically different” from adults, says Andrea Dennis, associate professor at the University of Georgia School of Law, and she wants to see the Court acknowledge that.

“At a minimum,” she said, “I hope the court would reject mandatory juvenile LWOP [life without parole] sentences for all homicide crimes and require juries be allowed to consider the defendant’s youth and other factors as mitigation.”

In both cases, Jackson v. Hobbs and Miller v. Alabama, the sentences were mandatory regardless of the defendant’s age or circumstances and the judges had no discretion in sentencing.

In Jackson, a 14-year-old was convicted as an accomplice to the murder of a store clerk. He did not have a gun or pull the trigger. Miller involved a 14-year-old convicted of murder.

“It’s particularly troublesome when you can’t individualize the results,” said attorney Randee Waldman, director of the Barton Juvenile Defender Clinic at Emory University School of Law, in Atlanta. “Nobody is looking at the kids themselves.” But, she says she is “hopeful for a positive outcome” in the Supreme Court.

The appeal relies on previous decisions by the court, Roper v. Simmons and Graham v. Florida, which recognize children as developmentally different from adults. Advocates argue children are more likely to be rehabilitated because their brains do not fully develop until their early-20s.

“If children commit crimes they should be punished, but the sentence should reflect the fact that they are still developing,” said Melanie Velez, an attorney at the Southern Center for Human Rights (SCHR) in Atlanta.

But the difficulty for the courts has always been in determining when a child finishes developing and reaches maturity. In an article published in the Houston Law Review attorney and law professor Jonathan Todres writes about how society and the law tackle the question by dividing every life into two parts — childhood and adulthood.

“In reality,” Todres writes, “an individual does not cross this divide neatly at one point in time into adulthood and self-governance, but rather the law allows individuals to cross into adulthood for select activities while holding them back with respect to others,” such as voting or financial independence.

When the first juvenile courts were established in the early 20th century, he writes, “they were based on the recognition that children are different, have reduced culpability, and have greater likelihood of successful reform.”

Early on, juvenile court judges developed a system that was rehabilitative in nature, not punitive, but a rise in juvenile crime in the 1980s and 1990s lead to tougher measures and more legislation allowing children to be tried as adults for serious crimes.

Recently, the trend has started to reverse. In 2005, in the case of Roper v. Simmons, the Supreme Court ruled the death sentence was unconstitutional for juveniles, overturning a previous ruling allowing capital punishment for adolescents 16 and older. In 2010, the Court went further in Graham v. Florida, holding juveniles were only subject to life imprisonment in cases involving homicide.

“The inadequacy of penological theory to justify life without parole sentences for juvenile nonhomicide offenders, the limited culpability of such offenders, and the severity of these sentences all lead the Court to conclude that the sentencing practice at issue is cruel and unusual,” Justice Anthony Kennedy writes in the majority opinion for Graham v. Florida.

According to Velez, part of what makes a life sentence for children cruel and unusual are the prisons themselves. She says the Southern Center for Human Rights receives hundreds of letters about juveniles in prison every year.

“So much of what we hear about are the conditions in the prison,” she said. “Prisons are violent places and for individuals to serve life sentences is incredibly harsh. For children who commit crimes it would subject them to a very difficult life.”

But Waldman believes the sentence is cruel and unusual because of how rarely it is applied.

“There are very few 13 or 14-year-olds serving life without parole,” she said. “It’s disproportionately used. That’s why it is unusual.”

Civil Suit Challenges Life Without Parole for Kids

There are new legal challenges popping up across the country in the wake of the Graham v. Florida Supreme Court decision, which made life without parole sentences for juveniles unconstitutional in cases that don’t involve murder.

Unlike appeals filed in Florida and Pennsylvania, the American Civil Liberties Union is suing Michigan government officials on behalf of nine convicts who were sentenced to life in prison without possibility of parole for crimes they committed when they were minors, according to the Jurist.

Michigan law requires mandatory life sentences for certain crimes committed by kids who are 14 to 17 years old. The ACLU argues their rights have been violated because they don’t have the chance for parole by demonstrating growth or maturity.

As reported in September, the Graham decision relies on the concept that because a teen’s brain is not fully developed, he or she deserves a chance to change.

The ruling could have an impact on more than 100 cases in the state of Florida and so far five inmates have filed appeals in Pennsylvania.