If you had to sum up the U.S. Supreme Court’s recent history in cases related to juvenile offenders, one two-word phrase would suffice: What about…?
2007: What about juveniles sentenced to death? The court put the kibosh on that in Roper v. Simmons.
2010: What about juveniles sentenced to life without parole (LWOP) for non-homicides? It put a stop to that with Graham v. Florida.
2012: What about juveniles who are sentenced to LWOP for homicide cases because a state law requires that punishment? No more of that, the court ruled in Miller v. Alabama.
2015: What about juveniles who were already sentenced to LWOP because of automatic sentencing? Yesterday, the court cleared that up with Montgomery v. Louisiana, which makes its ruling in Miller retroactive.
So in the span of eight years, the high court has banned the death penalty and severely limited the ability of judges to sentence juveniles to life without the possibility of parole. And every time it ruled, the majority seemed to keep the door open for another widening of the scope.
That may be the case again with Montgomery. The majority makes clear in its decision that while no formal process of fact-finding is imposed on courts, they must make a clear distinction between juveniles who exhibit “transient immaturity” and those whose crimes reflect “permanent incorrigibility” or “irreparable corruption.”
Translation: LWOP is cruel and unusual for juveniles in the “transient immaturity” lot. LWOP could be appropriate for the latter group, but not by virtue of an automatic sentencing scheme. A judge and/or jury has to decide it’s appropriate.
That in essence draws yet another new line in the sand. Now, juveniles whose crimes reflect “transient immaturity” not only can’t receive an automatic LWOP sentence; they cannot receive one, period.
Surely, the court must know how murky that water is, because one judge might see immaturity where another sees an irredeemable predator. It is easy to see where case law might once again push an Eighth Amendment question back toward the high court.
The water becomes even murkier when you consider Montgomery’s language about how states can handle retroactivity through either re-sentencing or permitting the offender to be considered for parole. Here is the language on parole:
Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflect only transient immaturity — and who have since matured — will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.
In our mind, the clause highlights the challenge with a litmus test about the context of the juvenile’s offense. Take a prisoner who was sentenced to LWOP as a juvenile after committing a litany of violent crimes, including the homicide he is in for. At this parole hearing, he can show that he earned a college degree in prison, mentors younger offenders, maintains a relationship with family.
Another prisoner sentenced to LWOP as a juvenile was involved in a homicide, coerced into it by older teens, and had barely any record before the act. In prison, he’s struggled with drugs and joined a prison gang for protection.
Which one deserves the shot at parole again?
Yet another question the court might deal with one day is the very definition of a meaningful chance at parole. In the aftermath of the 2010 Graham ruling, YSI heard from lawyers in Florida that juvenile LWOP recipients were being re-sentenced to 60 or 70 years in lieu of LWOP. Hardly a tectonic shift in sentencing policy.
These issues aside, there is no question that the Supreme Court cases prompted action below. Since the 2012 Miller ruling, nine states including Texas have banned LWOP altogether for juvenile offenders, bringing the total number of non-LWOP states to 14. Another five states including California have extremely narrow parameters for the use of LWOP.
During an eight-year period where advocates had high hopes for juvenile reforms led by the legislative and executive branch, the court has been the lead actor.
