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.

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 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.”