S.Ct.: No Mandatory LWOP for Juveniles

       In Miller v. Alabama, and Jackson v. Hobbs, Nos. 10-9646 and 10-9647 (June 25, 2012), the Court held that the Eighth  Amendmentforbids a sentencing schemes that mandates life in prison without possibility of parole sentences for juveniles; “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.”

Opinion (5-4) by: Kagan, with Kennedy, Ginsburg, Breyer and Sotomayor; concurrence by Breyer and Sotomayor; dissents by (a) Roberts, Scalia, Thomas & Alito; (b) Scalia and Thomas; (c) Alito and Scalia.

       “If ‘death is different,’ children are different too.” In this pair of  cases, one on direct appeal from Alabama and one on appeal from post-conviction review from Arkansas, the Supreme Court holds that mandatory sentences of life without parole (“LWOP”) for juveniles violate the Eighth Amendment’s prohibition on disproportionate sentences.  The majority stops short of a categorical ban on juvenile LWOP sentences, but requires individualized sentencing for juveniles in a manner similar to, and expressly drawn from, capital case jurisprudence.   The two  petitioners, Miller and Jackson, were both 14 at the time of the crimes.  They were both tried as adults and were both sentenced according to mandatory LWOP statutes.  

       In its Eighth Amendment analysis, the majority relies upon Roper v. Simmons, 543 U.S. 551 (2005) (holding the juvenile death penalty unconstitutional), and Graham v. Florida, 130 S.Ct. 2011 (2010) (holding juvenile LWOP sentences for non-homicide offenses unconstitutional), to establish that juveniles, in comparison to adults, have lessened culpability and greater capacity for change, and are therefore less deserving of the most severe punishment.  Factors showing that “children are constitutionally different from adults for purposes of sentencing” include “lack of maturity,” “underdeveloped sense of responsibility,” “more vulnerable . . . to negative influences and outside pressures,” “limited control over their environment,” and a less “well-formed” character.  The majority, as in Roper and Graham, cites to science and social science research, including the development of the adolescent brain.  Quoting Graham, “Life without parole forswears altogether the restorative ideal. It reflects an irrevocable judgment about [an offender’s] value and place in society, at odds with a child’s capacity for change.” Because mandatory LWOP statutes prevent the sentencer from considering a defendant’s youth or other factors related to youth, “these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender.”

       The majority relies heavily on death penalty jurisprudence, relying upon Woodson v. North Carolina, 428 U.S. 280 (1976) (mandatory death penalty statute is unconstitutional; Eighth Amendment requires individualized sentencing); Lockett v. Ohio, 438 U.S. 586 (1978) (Eighth and Fourteenth Amendments require that a sentencer in a capital case not be precluded from considering and giving effect to mitigating factors); Johnson v. Texas, 509 U.S. 350 (1993) (the sentencer in a capital case must be allowed to consider the mitigating qualities of youth).  The majority adopts from capital cases the requirement that the sentencer consider characteristics of the offender and the circumstances of the particular offense.

       For this case specifically, the majority states that the sentencer should have considered: Jackson was not the triggerman; his age affected his understanding of risk and willingness to walk away; his “immersion in violence” includes that his mother and grandmother both shot other individuals.  Miller, whose offense was a “vicious murder,” was high on drugs and alcohol at the time of the crime; his “pathological background” included physical abuse, neglect, a substance-addicted mother, foster care, and four suicide attempts, one at kindergarten age.      

       The majority addresses one of the primary concerns of the dissenters – the lack of a legislative consensus or a rarity in sentencing to show that “evolving standards” have moved beyond juvenile LWOP sentences.  Because over 2500 people are serving juvenile LWOP sentences nationwide, and 28 states allow mandatory juvenile LWOP sentences, it would be difficult to show that a national consensus has evolved against the practice, or that the practice is “unusual.”  Instead, the majority explains that those numbers are more relevant in categorical bar cases, such as Roper, Atkins and Graham.  The Eighth Amendment cases about the mitigation requirement – i.e., non-categorical cases – are not based in numerical evidence of a national consensus.  The majority also notes that the high numbers result directly from the mandatory nature of the statutes.  Finally, the majority argues, somewhat less persuasively, that the evidence of legislative intent is weak, because juvenile transfer statutes (trying kids as adults) are separate from the adult sentencing statutes allowing for LWOP.  

Although the majority states, “We think appropriate occasions for sentencing juveniles to this harshest possible penalty with be uncommon,” the first paragraph of the opinion indicates that a mandatory sentence of life with parole would be constitutionally permissible.  

       Breyer concurs to state that in felony-murder cases where the juvenile defendant did not “kill or intend to kill,” there should be a categorical ban on LWOP.

       Roberts, in dissent, argues that juvenile LWOP is not “unusual” in an evolving standards of decency analysis, because of the 2500  people serving such sentences, and because the direction of change has been toward harsher sentencing (for both juveniles and for LWOP in general).  He disagrees that Roper and Graham can be extended to this outcome, and labels the majority a “science and policy” decision.

       Thomas, in dissent, argues that an original reading of the cruel and unusual punishment clause does not include any categorical prohibitions or a requirement of individualized sentencing, noting that the post-Furman individualized sentencing line of capital cases is wrongly decided.

       Alito, in dissent, argues against the “evolving standards of decency” analysis, saying it is not tied to any objective indicia of society’s standards, and reiterates his quibbles with the outcomes in Kennedy v. Louisiana and Graham.

Maria Pulzetti, EDPA, Capital Habeas Unit