High Court Ruling on Juvenile Life Without Parole Could Impact Many

Hundreds of people like Alabama’s Evan Miller are newly-eligible to appear in front of sentencing judges and perhaps parole boards, as the U.S. Supreme Court strikes down certain life sentences without parole that were handed out to juvenile offenders.

As a drug-addicted, abused, neglected minor in and out of foster care, 14-year-old Miller and a friend, killed his mother’s drug dealer in 2003 after an evening of sharing drink and drugs. Under a mandatory sentencing law that ignores mitigating factors, Alabama sent Miller to prison for life without the chance of parole.

But now minors like Miller must be allowed to present mitigating circumstances and the sentencing judge or jury must pay attention, the court ruled on July 25 in Miller v. Alabama.

“Its kind of a new procedure that I think is going to be imposed in some jurisdictions,” said Richard Broughton, Assistant Professor of Law at the University of Detroit’s Mercy School of Law.

The list of mitigating factors, he said, “is potentially limitless.” In other kinds of cases it can include a rough childhood, alcoholism, low IQ. “Anything related to the defendant’s background,” Broughton said.

A total of 22 states already do that: a defendant can present mitigating factors to the judge or jury during the sentencing.

So the ruling is immediately applicable to the other 28 states and to federal courts.

Anyone can still give a juvenile life without parole for murder, but the sentence can’t be imposed under a one-size-fits-all mandatory sentence.

Louisiana holds a few hundred of the roughly 2,500 people nationwide who might be affected by Miller, according to research by Human Rights Watch, a lobby that fights such sentences.

“You would be eligible to have the sentence overturned,” said Frank Neuner, Chairman of the Louisiana Public Defender Board. “You would have to engage an attorney to take a writ of habeas corpus or appeal to the court that sentenced you.”

It’s only the sentence that can be appealed, he emphasized, not the verdict.

States that are not compliant with Miller now must fix their statutes and in the meantime, judges must ignore the unconstitutional state law.

District attorneys “need to read the opinion, they need to make sure that judges before whom they’re practicing understand the opinion,” said Broughton. They and prosecutors can also help craft and push Miller-compliant state legislation.

But even in Miller-compliant states, judges and juries may need to make sure they pay attention to mitigating circumstances. Indeed, Judge Steve Teske, who serves in Georgia where there’s no mandatory sentencing, pointed out that the ruling “requires” the sentence to take into account how children are different. (Teske is a contributor to the opinion pages of this publication.)

“Conceivably it is possible that if there was evidence that was strong enough presented to a jury or a judge that would counsel against a sentence to a lifetime in prison but they did it anyway,” he said, that could open the door to a charge of abuse of discretion.

Jurisdictions where Miller explicitly applies:



















New Hampshire

New Jersey

North Carolina



South Carolina

South Dakota




Federal court

Maggie Lee is a reporter for The Chicago Bureau.

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Justices’ Ruling on Young Killers Eases Anxieties for Some Experts, Advocates

By Eric Ferkenhoff and Maggie Lee

The violence that stains Chicago is a long way from Washington, D.C., where the U.S. Supreme Court ruled Monday it was not just to lock up juvenile killers for life without parole in most cases. The court, reasoning children should not face what amounts to death behind bars, voted 5-4.

Monday’s decision had been anticipated since arguments were heard in March on two cases out of Alabama and Arkansas dealing with 14-year-old convicts, and won the applause of children’s and rights advocates and scorn from those who believe punishment should be equal to the crime.

“I’m feeling very good, hopeful,” said Julie Anderson, 55, whose son was convicted of murder at 15 in 1995. “We’ll see how it plays out, but my son defintely qualifiies under this ruling to have his sentence looked at again.”

She added: “And there’s so many of them, these people who were only children. Most are of color, too – something like 86 percent, and they don’t commit 86 percent of the crime.”

For Sara Totonchi, executive director of the Southern Center for Human Rights in Atlanta, the ruling carries with it an important acknowledgment by a system that for too long treated minors like the adults they had yet to become.

“I would say this is a big step forward for children,” Totonchi said. “What the court did today is recognize that there is fundamental unfairness in essentially a death in prison sentence for children.”

With a jump in crime in some cities, including Chicago where nearly 20 people were shot, beaten and stabbed to death last weekend, the calls for a major crackdown on crime – including that perpetrated by and against juveniles – has risen among some.

Here, for example, Chicago police have changed hours and assignments to deal with an escalating homicide rate. The department has pleaded with residents to turn in guns as part of a regular exchange program that police hope will quiet the shootings, and Mayor Rahm Emanuel has been out front in trying to decriminalize possession of small amounts of marijuana to free officers to address more serious and violent crime while he proposes to rewrite stiff gun ordinances that have been overruled by the courts.

These moves are part of a wider push against crime that has some experts worried that lawmakers would be pressed to react swiftly and put the brakes on reforms that are starting to relax some of the harsh laws of the 1980s and 1990s.

“If anything the recent spike in juvenile crime proves that tough on crime measures have little or no effect,” said Steven A. Drizin, the head of the Center on Wrongful Convictions at Northwestern University’s Law School and the former supervising attorney at the Bluhm Legal Clinic’s Children and Family Justice Center. “We have some of the toughest juvenile justice laws on the books — automatic transfer at 15, mandatory minimum sentences, gun enhancements, and truth in sentencing, LWOP, all of which apply with full force to juveniles convicted as adults.

“These laws have been on the books for several decades. They have no deterrent effect on juveniles because most do not know about them, they tend to be impulsive decision makers, and because juveniles are being armed by adult gang members to carry out their dirty work.”

If there is an uptick in juvenile crime – and some would caution it’s more hype than reality – Drizin said the blame belongs more with “economic conditions, instability in the drug markets, easy access to guns, and gang warfare than with tough penalties. Toughening juvenile laws is misdirected because it does nothing to the adult gang leaders who recruit and arm juveniles.”

All the more reason that Monday’s court ruling settled anxiety in some circles.

“The most immediate effect [locally] will be on the nearly 100 juvenile offenders who are serving life without parole sentences in Illinois,” Drizin said, adding that most of the sentences handed down under the old law will have to be revisited. “But the Supreme Court’s decision today may require changes to any sentencing schemes in Illinois that automatically mandate sentences for youth and prevent courts from considering youth as a mitigating factor in sentencing.

“There are many such sentences in Illinois — automatic transfer of juveniles to adult court, mandatory minimum sentences for juvenile offenders, 15-20-25 year gun enhancements, ‘truth in sentencing’ for youthful offenders, and life without the possibility of parole of juvenile offenders, to name a few.”

It’s a long list, and Drizin and other legal experts figure the court challenges to other laws, including, he said, “to the application of the ‘felony murder’ doctrine to juvenile offenders — based on the concurring opinion — will no doubt follow from this decision.

Monday’s decision came on the same day the high court gutted Arizona’s controversial immigration law, and rights advocates and conservative groups alike were busy sending out news releases praising and condemning the court’s actions. But mostly the decision on JLWOP was positive, as fears of a retreat to harsh laws that swelled the prison population by some 600 percent over a generation were somewhat eased.

“Kids by the nature have a harder time appreciating the long-term consequences of the decisions they make,” said Shoba Mahadev, a clinical assistant professor at Northwestern’s Children and Family Justice Center, adding that about 80 percent of the juveniles facing life without parole in Illinois were given mandatory sentences . “It is something that anyone would struggle to adjust to for life in prison with no hope to earning your leave.”

“It basically is the third leg of the stool that says you cant be sentenced to life without parole for even a homicide if you’re a juvenile,” said Georgia attorney McNeill Stokes.

In the two precedent cases, Roper and Graham, The U.S. Supreme Court found it unconstitutional, in the first, to sentence juveniles to the death penalty. In the second they struck down life without parole for non-homicide cases.

“It’s a continuation of the decisions of the U.S. Supreme Court that recognizes that juveniles cannot be treated the same as adults,” he said.

For Anderson, the decision is perhaps a telling turning point in this country’s justice system. For so long, she said, the system didn’t get that kids were kids – “they’re not miniature adults or short adults, they’re kids.”

Her son, who was accused of being the shooter and was remanded to adult court at 15 and got a mandatory sentence, is now 32. Seventeen years gone – much of it on lockdown – and now she’s hopeful.

“There was such a backlash [against crime] with these laws that treated kids like small adults when my son was convicted,” she said. “We understand that elderly think different, and other parts of government understand that children are different. Why didn’t the courts? Maybe now they will.”

Eric Ferkenhoff is the editor of The Chicago Bureau.

Maggie Lee is a reporter for The Chicago Bureau.


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Supreme Court Forbids Mandatory Life Sentences Without Parole for Juveniles

UPDATED Tuesday, 9:23 a.m.: WASHINGTON - Advocates for juvenile justice reform applauded the U.S. Supreme Court’s landmark 5-to-4 ruling yesterday that children under 18 could not be handed life imprisonment sentences without hope of release – even if convicted of murder – without taking into account their age and other extenuating circumstances at the time of the crime.

“Held: The Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders,” read the majority opinion written by Justice Elena Kagan, which combined the court’s ruling on two cases, Jackson v. Hobbs and Miller v. Alabama.

Chief Justice John Roberts wrote the dissenting opinion, joined by Justices Samuel Alito, Antonin Scalia and Clarence Thomas, sharply disagreeing that such sentences constituted cruel and unusual punishment for what were “heinous” crimes to society.

“Put simply, if a 17-year-old is convicted of deliberately murdering an innocent victim, it is not ‘unusual’ for the murderer to receive a mandatory sentence of life without parole,” Roberts wrote. Kagan responded in a footnote to her opinion that she finds it ironic that the dissenters are holding a 14-year-old’s actions to the same standard as a 17-year-old’s, given that the main finding of the majority is that courts must take individual circumstances into account before deciding on a sentence.

Bryan Stevenson of the Montgomery, Ala.-based Equal Justice Initiative, who separately argued both petitions in front of the Supreme Court in March, said he was delighted by the ruling. “We think the court has made an incredibly important step forward in what I regard as one of the incredibly large tragedies in the American criminal justice system,” he said. “Some of the people affected by this decision have been in prison for over 40 years.”

The vast majority of the 2,500 people serving life sentences without parole for crimes committed while they were less than 18 years old are in states with mandatory sentencing laws, Stevenson said. When judges are provided discretion by the law, he said, they usually choose a less harsh punishment.

Both Miller v. Alabama and Jackson v. Hobbs dealt with 14-year-old boys who had been handed life sentences without parole under Arkansas and Alabama laws that mandated the sentence regardless of the defendant’s unique situation.

Jackson v. Hobbs concerned 14-year-old Kuntrell Jackson, who decided to rob a video store with friends but who entered the store just shortly before his friend fatally shot the video store clerk. Jackson was sentenced to life without parole because of his involvement in the crime, even though he said he did not know his friend had a gun and intended to use it.

Miller v. Alabama involved another 14-year-old, Evan Miller, who along with a friend robbed and beat a neighbor with a baseball bat after a night of drinking, then set his trailer on fire, killing him.

A 2005 ruling by the court, in Simmons v. Roper, banned the death penalty for minors, and another, for Graham v. Florida in 2010, banned life-without-parole sentences for juveniles who committed crimes other than homicide. Yesterday’s ruling extended that ban to mandatory life-without-parole sentences even for those minors who are convicted of homicide-related crimes. However, the ruling does not explicitly void the sentences for Jackson and Miller, but instead sends their cases back to a lower trial court for a rehearing.

Both Roper and Graham had acknowledged that children lacked the maturity and judgment of adults, that children were capable of reform, and that children could not be given an adult punishment without consideration of their minor status, Stevenson said in his oral arguments for Jackson v. Hobbs in front of the court.

“They're not thinking three steps ahead; they're not thinking about consequences; they're not actually experienced enough with the world to understand how they deal with their frustrations in the same way that an adult is,” Stevenson said. “And so, their judgments about what they intend to do, their declarations, mean something very, very different.”

As children’s brain development is not “crime-specific,” he said, using language that Justice Kagan echoed in her own opinion, those juveniles convicted of homicides should be given the same consideration as those convicted of non-homicide crimes.

For the hundreds of other individuals in jail who believe they are now eligible for a reduced sentence, Stevenson said, the next step will vary from state to state: Some states offer remedies and others even deny such inmates the right to a lawyer.

Although the court did not bar juveniles from ever receiving a life sentence without parole, Justice Kagan’s opinion made clear that the court expected “this harshest possible penalty” to be rarely applied, given that children’s brains were different from adults’ and given the difficulty in deciding whether a youth’s crimes stemmed from “unfortunate but transient immaturity” or from “irreparable corruption.”

Nancy Gannon Hornberger, executive director of the Washington D.C.-based Coalition for Juvenile Justice, a national network of citizen advisers who work with state agencies on preventing delinquency and juvenile crime, praised the ruling, saying it allowed juveniles to be held accountable for their actions while leaving room for compassion and rehabilitation.

The decision to extend the ban to mandatory sentencing for all youth under 18 surprised some court-watchers, who had expected the court to extend the ban only to youth who had not actually committed the murder themselves, or to those who committed the crime when they were as young as 14.

The sticking point, as justice after justice questioned Stevenson during oral arguments earlier this year, was at which age the court should draw the line at a ban on life without parole, and how that line could be justified.

“It actually makes more sense that they did not pick a random age,” said Nadia Seeratan, a senior staff attorney and policy advocate at the National Juvenile Defender Center.

Given the court’s past findings about children’s brain development, she said, “They’ve followed and stayed consistent with those decisions.”

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BREAKING: Supreme Court Strikes Down Juvenile Mandatory LWOP

Updated: 12:07 p.m. In a 5-4 decision issued Monday morning, the Supreme Court ruled the Eighth Amendment prohibits mandatory sentences of life without possibility of parole for juveniles (JLWOP). The decision stems from two cases—Jackson v Hobbs and Miller v Alabama—involving 14-year-olds convicted of murder and sentenced to mandatory life terms.

Justice Elena Kagan wrote the majority opinion, holding that mandatory JLWOP violates the Eighth Amendment’s prohibition of cruel and unusual punishment, citing as precedent Roper v Simmons.

“That right ‘flows from the basic “precept of justice that punishment for crime should be graduated and proportioned,” to both the offender and the offense,’ ” Kagan wrote.

Chief Justice John Roberts wrote the dissenting opinion.

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 Give Juveniles the Chance to Prove They Have Changed

I suppose it was difficult to imagine Louis Perez changing course. He was only 14 years old when I met him in a probation camp, and yet, he seemed entrenched in the deepest, lethal absence of hope. Unable at that young age to transform his pain of abuse, abandonment and torture, he seemed set on a path doomed to transmit his pain forever.

Now, almost 20 years later, after considerable prison time and having been stuck in a desperate cycle of gang violence and drugs, Louis runs things for me at Homeboy Industries, the nation's largest gang rehab and re-entry program.

It shouldn't surprise us that children and teenagers aren't the same people once they become adults.

Kids grow and have an infinite capacity for redemption. They change and respond to positive attention and are able, ultimately, to inhabit the truth of who they are: exactly what God intended when he made them.

In recent years, the United States Supreme Court has recognized adolescents' enormous capacity for change. Every parent knows the treacherous waters of their kid's adolescence: immaturity, testing, peer pressure and a susceptibility to negative influences. If you add to this "normal" phase abandonment, torture, abuse and violence, then what a teenager has to carry becomes even more of a burden. The court struck down the death penalty for juveniles and life imprisonment without parole sentences for most juvenile offenses because it recognized juveniles as less morally responsible for their wrongdoing than adult offenders. But every parent knows this.

The court sees that a juvenile has this great capacity to be transformed, and so rehabilitation is not just hoped for and possible, but it is what adults have come to expect from teenagers -- they will move beyond this immature, sometimes alarming moment into a fully mature adult.

Only a fool would have tried to predict the full trajectory of Louis' troubled youth. It turned out he was able to become a productive citizen, law-abiding member of the community, father, husband and a mentor at Homeboy Industries to the younger "homies" trying to imagine their futures instead of planning their funerals.

Starting Tuesday, the court will hear oral arguments in Jackson v. Hobbs and Miller v. Alabama, two cases that ask the court to decide whether it is constitutional to sentence children as young as 14 to die in prison. Anyone familiar with kids -- parents, teachers and others who work with them -- knows that a 14-year-old is irresponsible, immature, impulsive and vulnerable in ways adults simply are not. Change is the task of every teenager. We don't just nurture that change, but we honor the capacity and bright promise of its certainty.

Louis is no longer that "knucklehead kid" he was at 14. He has moved assuredly to a place of extraordinary healing and a stance of generative goodness and wholeness that would not have seemed possible at 14. He was held accountable for his actions, for sure, but what a waste of life, time and resources, if he had been condemned at 14 to a life without the possibility of hope and redemption.

We measure the health of our society in exactly those ways we treat our children and seek to shape them into healthy adults. For those kids who have found themselves gravitating to trouble, we offer hope, guidance and the endless possibility of rehabilitation. We remain the only country on the planet that sentences children to die in prison. We all agree that we are better than that.


This op-ed originally appeared in the National Catholic Reporter

U.S. Supreme Court Heard Key Juvenile Cases Tuesday

Story by John Kelly and Ryan Schill

Today, the Supreme Court will hear oral arguments in two murder cases that resulted in mandatory life without parole (LWOP) sentences for juvenile offenders, both of whom were 14 at the time of crime. At the heart of both cases is the question of the constitutionality of sentencing a minor to die in prison.

Below is a primer with everything you need to know about Tuesday’s oral arguments, and what events led up to them.

The issue

Life without the possibility of parole, which has the common shorthand of LWOP, is the most severe penalty other than death that is handed down to convicts. A prisoner who receives an LWOP sentence will never have the opportunity to become a free citizen again, regardless of his or her attempts to rehabilitate in prison.

More stories:

OP-ED: The High Court Should Hold to Constitutional Principle and End Juvenile Life Without Parole

There are 49 states that allow prisoners to serve life sentences without a chance at parole; only Alaska mandates some opportunity for release. In some of those states, such as Florida, a life sentence has become an inherent LWOP sentence because the state has no parole system in place.

Aside from Alaska, according to The Campaign for the Fair Sentencing of Youth, there are six other states that already prohibit LWOP sentences for juvenile offenders: Colorado, Kansas, Kentucky, Montana, New Mexico, and Oregon. Another five - Maine, New Jersey, New York, Vermont, and West Virginia – do not currently have any offender serving an LWOP sentence for a crime committed as a juvenile.

The federal government also permits juveniles to receive LWOP sentences, according to the Campaign, and there are approximately 36 federal inmates who have received LWOP for crimes they committed before the age of 18.

Cases currently before the Court

Kuntrell Jackson

The Court will first hear arguments in Jackson v. Hobbs, in which the offender, Kuntrell Jackson, did not commit the homicide for which he received a life sentence without parole. Jackson and two older boys quickly schemed a plan to rob a video store while walking together through their neighborhood on Nov. 18, 1999, just 17 days past Jackson’s 14th birthday. He was unaware one of his friends was hiding a shotgun in his coat until just before the robbery.

Jackson remained outside while the other two boys entered the store, not following inside until just before one of his friends

shot the clerk, who had refused to give them money. The three immediately fled without taking anything from the store.

Jackson was eventually convicted of capital murder for his involvement in the homicide, a crime that, under Arkansas law where the murder occurred, carries a mandatory life sentence without parole regardless of any mitigating factors.

Miller v. Alabama will be argued in tandem with Jackson v. Hobbs and involves Evan Miller who, in 2003 at age 14, robbed and beat an older neighbor with a friend. The two boys drank and smoked pot with Miller’s neighbor in his trailer until he passed out, at which point they stole money from his wallet. But while they tried to slide the neighbor’s wallet back into his pants, the neighbor jumped up and grabbed Miller by the throat. Miller’s friend then hit the neighbor in the head with a baseball ball freeing Miller who began to punch the neighbor repeatedly in the face before grabbing the bat himself and continuing the attack.

Evan Miller

The pair left but returned soon after to clean up the blood. As they departed a second time they set the trailer on fire to hide the crime. The neighbor, unable to move after the attack, died in the fire. Miller was convicted of murder and received a mandatory life sentence without parole.

What came before

Two previous rulings by the Supreme Court laid the groundwork for Tuesday’s oral arguments. The high court abolished the death penalty for minors in 2005, and in 2010 eliminated LWOP sentences for juveniles convicted of non-homicides.

In the 2005 case, Simmons v. Roper, Christopher Simmons was sentenced to death for a murder committed in 1993, when he was 17. The jury found Simmons guilty of breaking into a Missouri woman’s home, binding her feet and hands with duct tape and then throwing her off a bridge, drowning her in the river below.

In a 2005 ruling on the case, the Supreme Court deemed capital punishment to be unconstitutional for anyone under the age of 18, citing the Eighth Amendment’s prohibition against cruel and unusual punishments and the “evolving standards of decency what mark the progress of a maturing society.” Writing for the majority, Justice Anthony Kennedy pointed to the “comparative immaturity and irresponsibility of juveniles.”

In 2010, the Supreme Court took another step in Graham v. Florida, using the case to strike down life sentences without the possibility of parole for all non-homicide crimes committed by juveniles. The case involved Terence Graham, who was arrested for a 2003 home invasion robbery when he was 16. The offense was a violation of the terms of his probation from a plea agreement in an earlier armed robbery conviction. A Florida judge sentenced Graham to life, a sentence that inherently carries no opportunity for parole in the state, which abolished parole in 1983.

Christopher Simmons

The high court found life sentences without parole for juveniles convicted of non-homicide crimes to be unconstitutional, deeming it in violation of the cruel and unusual clause of the Eighth Amendment. Justice Kennedy, again writing for the majority, said the State must provide the offender with “some realistic opportunity to obtain release” before the end of their sentence but is not bound to guarantee the offender’s release.

What might happen: The court’s attention to the Roper case followed its longstanding mantra that “death is different.” Graham effectively took the court’s actions on juvenile sentencing to a new realm: that youths are different. Now, the high court must go back to contemplating whether death is different, but this time it will be the death of a homicide victim, not a convict.

It is entirely possible that the train stops here, and the court decides not to infringe upon the ability of states to impose LWOP on juveniles that are convicted of homicides. Should the court choose to limit juvenile LWOP sentences in homicide cases, it could do so in several ways:

-A complete ban on LWOP for juveniles. This would require that all states develop some sort of parole system for all juvenile offenders convicted of life sentences.

-A ban on LWOP for juveniles below the age of 15. There are only 73 current LWOP inmates who were convicted for crimes they committed when they were 14, and nine others who were convicted when they were younger.

Justices have explored the idea of bright-line rulings that would distinguish younger juveniles from older ones in two recent cases – Graham and JDB v. North Carolina, which dealt with police questioning – but decided against it in both cases.

-Judicial review of juvenile LWOP usage in mandatory sentencing schemes. In both cases, the court’s list of “questions presented” includes references to the constitutionality of sentencing juveniles to LWOP under mandatory sentencing schemes that categorically preclude consideration of the offender’s age.

Such a ruling would seem to fall in line with Chief Justice John Roberts’ suggestion during the Graham oral arguments that requiring review of LWOP in all juvenile cases would be more practical than a categorical ban on the sentence for certain offenses.

One concern the justices may harbor in regard to this result would be setting the precedent of subjecting mandatory sentencing to mitigating factors. A mandate that judges consider age as a factor opens up mandatory sentencing schemes to similar challenges for parties claiming exception.

-A ban on LWOP for juveniles who did not commit the act that resulted in homicide. Some of the inmates doing LWOP sentences for juvenile offenses, including Jackson, were convicted of homicide because they were present for the action that precipitated a homicide.

This is the key difference between the two cases taken up by the court today. Both cases question the constitutionality of LWOP for young teens, specifically those subjected to mandatory sentencing schemes, but only Jackson’s case presents a separate question about the fairness of LWOP for a juvenile involved indirectly with a homicide.

Who we're talking about: There are approximately 2,570 offenders serving LWOP for offenses they committed as a minor. There appears to be no good estimate on how many of those offenders are in for homicides they caused directly and how many are offenders who were present for a crime that included another offender killing someone.

Where this matters most: As mentioned, all but seven states allow for juveniles to die in prison. But judges in five states take advantage of the LWOP option for juveniles far more often than colleagues in other states. Nearly two-thirds of the offenders (1,638 of 2,570) currently serving an LWOP sentence for a juvenile crime are in California (250), Louisiana (332), Pennsylvania (444), Michigan (346) and Florida (266).

Personalities in play: Justice Anthony Kennedy has long been the swing voter of the high court, and in the preceding juvenile sentencing cases he swung in favor of shielding juvenile convicts. Kennedy wrote the majority opinions in both Roper and Graham.

Roberts, who was not a member of the court when Roper was decided, agreed with the majority that Graham’s LWOP sentence amounted to cruel and unusual punishment. But he disagreed with the majority that Graham’s case proved the necessity for a categorical ban on LWOP sentences for juveniles.

In a separate opinion, Roberts favored the notion that a juvenile’s age should be factored into sentencing on a case-by-case basis, a view he repeatedly expressed during oral arguments in the case last November. A “categorical conclusion is as unnecessary as it is unwise,” Roberts wrote.

Bryan Stevenson at TED2012: Full Spectrum, February 27 – March 2, 2012. Long Beach, CA. Photo: James Duncan Davidson

Arguing for both convicts in these cases is Equal Justice Initiative Executive Director Bryan Stevenson, who has without question emerged as the leader in the fight to curtail harsh sentences for juvenile offenders. Stevenson represented Joe Sullivan – now 35 and sentenced to life at 13 for rape – in a case that the court heard in tandem with the Graham case. The court did not render a decision in Sullivan v Florida, but the questions at hand in the case were resolved by Graham. EJI has been working since Graham to identify offenders with legitimate ground for relief under the ruling and help them appeal their sentences.

EJI’s LWOP work was at one time funded almost entirely by the JEHT Foundation, which was done in by Bernie Madoff’s Ponzi scheme. Recently, as JJIE has reported, a speech by Stevenson at the TED 2012 Conference this month helped garner EJI $1 million in new funding.

Alabama Solicitor General John Neiman will argue for the state in Miller, and Assistant Attorney General Kent Holt will argue for Arkansas in Jackson.

Supporters and opponents: There were notably less amicus briefs filed in tomorrow’s two cases than were filed in Graham. Among the organizations that passed on filing a brief thus far in tomorrow’s cases: The Council of Juvenile Correctional Administrators and the National Partnership for Juvenile Services.

The Juvenile Law Center filed on behalf of Miller and Jacksons, as did Amnesty International and a group of family members who have lost relatives to homicides committed by juveniles. Two of the six groups filing on behalf of states against Terence Graham filed again in support of Alabama and Arkansas: The National District Attorneys Association and the National Organization of Victims of Juvenile Lifers.

Perhaps the most interesting names on any of the amicus briefs were those of James Alan Fox and John Dilulio, who signed onto a brief filed by juvenile justice researcher Jeffrey Fagan in support of Miller and Jackson. Fox and Dilulio forecasted a rising tide of violent juvenile offenders in the mid 1990s, and are widely blamed by reform advocates for helping to prompt a wave of get-tough laws that subjected more young offenders to adult courts and sentences.


High Court to Rule on Constitutionality of Life Sentences for Minors Convicted of Murder

The U.S Supreme Court is set to hear two cases that will test the constitutionality of sentencing juveniles convicted of murder to life imprisonment without the possibility of parole.

Last month, the nation’s highest court agreed to review Miller v. Alabama and Jackson v. Hobbs, two cases involving juveniles convicted of murder, to determine whether life imprisonment sentences for minors found guilty of homicide is a violation of the Eighth Amendment’s ban on cruel and unusual punishment.

Evan Miller and Kuntrell Jackson were both found guilty of committing capital murder when they were 14.

In 2003, Miller was found guilty of beating his neighbor, Cole Cannon, with a baseball bat and subsequently setting fire to his trailer home, where Cannon died from smoke inhalation. In 1999, Jackson, then an Arkansas youth, was charged with felony murder stemming from a video store robbery, in which an accomplice shot and killed clerk Laurie Troup.

In last year’s Graham v. Florida decision, the U.S. Supreme Court ruled that life sentences for minors convicted of crimes other than murder was a violation of the United States Constitution, and in 2005, the Supreme Court ruled that executing criminals that committed crimes while under the age of 18 was a violation of the Eighth and 14th Amendments. In the majority opinion of Roper v. Simmons, Justice Anthony Kennedy wrote “from 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.”

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