This past month, the US Supreme Court heard oral arguments in Miller v. Alabama and Jackson v. Hobbs, two cases challenging the constitutionality of sentences of life without parole for children convicted of homicide. As JURIST reported, many questions centered on the appropriate age limit for a constitutional prohibition on these sentences. The Court has to look no further than its recent precedent to find the answer: 18.
The cases before the Court challenge the constitutionality of life without parole sentences for two individuals, Evan Miller and Kuntrell Jackson, who were 14 at the time they committed their crimes. Miller was automatically sentenced to life without parole by a judge after he and another youth assaulted a neighbor and set fire to his home, leading to the neighbor's death. Jackson was involved in an attempted robbery of a video store, during which another youth participating in the robbery shot and killed a store clerk. Although Jackson did not pull the trigger, an Arkansas jury convicted him of felony murder, which carried an automatic sentence of life without parole.
Bryan Stevenson of the Equal Justice Initiative represented Miller and Jackson in their appeals. The briefs filed with the Court posed narrow constitutional questions based on the facts of each case, but Stevenson also argued for a categorical ban on sentences of life without parole for youth who are under the age of 18 at the time of their offenses. Various amici took the same position. Additionally, editorials and opinion pieces in the Los Angeles Times, the New York Times and other newspapers throughout the country further urged the justices to hold the practice unconstitutional for youth 17 and under.
During oral argument, the Court peppered Stevenson and the respondents' attorneys with questions about how it could craft a holding that would square with the Eighth Amendment prohibition on cruel and unusual punishment and past precedent. Stevenson offered ways of issuing a narrow decision based on the facts of the cases on appeal, but he made it clear that he was not retreating from the argument that the Constitution calls for a categorical ban on these sentences for crimes committed by children under the age of 18.
Stevenson was right to stand by that rule. In a series of recent holdings, the Court has recognized that a child's status as a minor is a critical factor in constitutional analyses. In 2005, the Court in Roper v. Simmons struck down the imposition of the death penalty for crimes committed under the age of 18 as cruel and unusual punishment under the Eighth Amendment. Five years later, in Graham v. Florida, the Court struck down sentences of life without parole for non-homicide crimes committed under the age of 18 as cruel and unusual punishment. Also, this past year in JDB v. North Carolina, the Court held that police must consider a child's age when determining whether he or she is "in custody" for the purposes of administering Miranda warnings under the Fifth Amendment.
In both Roper and Graham, the Court relied on three key differences between adolescents and adults when establishing its precedent. First, a juvenile's "lack of maturity and an underdeveloped sense of responsibility" often leads to "ill-considered" behavior. As the Court noted, this is the reason why states restrict certain privileges, such as voting and jury service, to those 18 and older. Second, youth are more "susceptible to negative influences and outside pressure" and do not have the same ability as adults to avoid situations that may lead to delinquency. Finally, research shows that youth's personalities are still developing. Thus, it is particularly harsh to mete out a punishment based on the premise that a child is beyond hope of reforming his or her behavior at any point in the future.
At various points in the arguments, justices from the liberal and conservative sides of the Court grappled with the idea of a bifurcated rule that would ban any life without parole sentences for homicide offenders under a certain age, but that would permit them for older youth so long as they were not mandatory. Justice Kennedy, who cast the deciding votes and wrote the opinions in Roper and Graham, questioned how the Court could justify a bifurcated rule under its past precedents. The exchanges with the Court and with Justice Kennedy in particular centered on avoiding a decision that would appear unprincipled.
However, it is abandoning the age limit established in past precedent and the reasoning supporting it that would be unprincipled. The Court should not jettison the logic behind its previous decisions simply because of the nature of the offenses here. Roper and Graham were decisions grounded in the fundamental differences between children and adults. Those differences do not disappear simply because of the nature of the offense for which a youth is charged or convicted. Indeed, in Graham the Court noted that "criminal procedure laws that fail to take defendants' youthfulness into account at all" are "flawed." Yet, an estimated 85 percent of all youth behind bars for life are there because of mandatory sentencing procedures that preclude consideration of a defendant's age or other circumstances.
Advocates have taken a logical and careful approach to appeals regarding the Eighth Amendment and youth. Roper, the first in this line of recent cases, eliminated the death penalty for any crime for an individual who was under the age of 18 at the time of the offense. Graham extended that logic to sentences of life without parole for crimes less than homicide. The cases before the Court present the opportunity for a narrow ruling that would remove a subset of youth from eligibility for life without parole. For example, the Court could exclude youth younger than a certain age, or youth who are not directly involved in the act of killing (as was the case with Miller). However, the cases also present the opportunity to exclude all youth under age 18. For the reasons described above, the Court will be on solid ground if it chooses to do so.
During oral arguments, the Court also expressed concerns about invalidating state laws that permit sentences of life without parole for youth under the age of 18 for homicide. In support of the states that had sentenced Miller and Jackson to life without parole, the National District Attorneys Association filed an amicus brief [PDF]. Their brief characterized the petitioners' position as an assault on states' rights that would threaten to create a "National Code of Juvenile Justice."
However, in Graham, the Supreme Court did not find it a barrier that a majority of jurisdictions permitted the practice of sentencing children to life without parole for non-homicide crimes. The Court, noting that "actual sentencing practices are an important part of the Court's inquiry into consensus," emphasized the rarity of such sentences, even among jurisdictions that permitted it.
That inquiry should lead the Court to the same conclusion here. From 1971 to 2009, 5,283 children age 14 and under were identified as known homicide offenders. Yet, data presented by the petitioners suggests that approximately 80 children age 14 and younger are currently serving sentences of life without parole for homicide a mere 1.5 percent of that total. Thirty-two states have never sentenced anyone that young to life without parole. Nor do the numbers change significantly when looking at all youth under the age of 18. In oral argument, Justice Kennedy noted that there were 2,300 individuals serving life without parole for homicides committed under the age of 18. That number is just 5.1 percent of all identified youth homicide offenders from 1971 to 2009.
The argument about states' rights also misses an important point. When challenges are brought against a particular state law that is out of sync with practices elsewhere, defenders of the law commonly respond by saying that individuals have the freedom to move to another jurisdiction where the law is different. Youth do not have that type of mobility. Indeed, the Court acknowledged that fact in Roper when it stated "that juveniles have less control, or less experience with control, over their own environment." This fact, along with the rarity of life without parole sentences for youth under the age of 18, should lead the Court to find that the practice violates the Eighth Amendment's prohibition on cruel and unusual punishment.
I spent the first two years of my legal career working with incarcerated children. During that time, I met youth charged with crimes ranging from fights at school to first-degree murder. The details of clients' life histories and the circumstances of their offenses varied widely. Yet I saw that all of my clients had one thing in common: they were kids.
When rendering its decision this summer, I hope that the Supreme Court sees things the same way.
Jason Szanyi is a staff attorney at the Center for Children's Law and Policy, a public interest law and policy organization focused on reform of juvenile justice and other systems that affect troubled and at-risk children, and protection of the rights of children in those systems. He previously served as an attorney and Skadden Fellow with the Public Defender Service for the District of Columbia's Juvenile Services Program.
Suggested citation: Jason Szanyi, Sentencing Children to Die in Prison is Cruel and Unusual Punishment, JURIST - Hotline, Apr. 9, 2012, http://jurist.org/hotline/2012/04/jason-szanyi-juvenile-sentencing.php.
This article was prepared for publication by Stephen Zumbrun, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at email@example.com