It’s been more than seven years since the U.S. Supreme Court began to chip away at life-without-parole sentences for juvenile offenders, and lower courts are still wrestling with how to apply the justices’ logic to the American criminal-justice system.
Life sentences are an American institution. According to a recent Sentencing Project report, more than 200,000 people are serving either life in prison or a “virtual” life sentence: They haven’t been explicitly sentenced to spend their natural lives behind bars, but their prison terms extend beyond a typical human lifespan. Of these prisoners, thousands were sentenced as juveniles. More than 2,300 are serving life without parole, often abbreviated LWOP, and another 7,300 have virtual life sentences. Only after they serve decades in prison do members of the latter group typically become eligible for parole.
Where these young people are is highly concentrated: The Sentencing Project found California, Georgia, Texas, and New York account for 63 percent of them. Other states have abandoned the practice altogether. At least 17 now prohibit LWOP sentences for juveniles in all circumstances, according to a recent tally by the Pennsylvania Supreme Court.
“There’s been a very effective push by a number of juvenile-justice advocates to get more and more states to completely eliminate juvenile [LWOP], even for murder,” said Douglas Berman, an Ohio State University law professor who specializes in criminal-sentencing issues. “At the legislative level, there have been more and more states coming online to completely eliminate it as a statutory matter.”
But those laws are often only prospective—they only prevent future sentences. What happens to those previously sentenced under old laws has been left to the courts, as with three cases decided in Missouri earlier this week. Lower-court judges are forced to face complex legal and moral questions about when and if it’s proper to lock people up for most of their natural life for crimes they committed as minors. As those judges reach different conclusions, each ruling increases the likelihood the Supreme Court will need to reckon with juvenile LWOP again.
At the judicial level, the ideological divide over juvenile life sentences can be traced back to the 2005 Supreme Court case Roper v. Simmons. In a 5-4 vote, the justices abolished the death penalty for defendants who were under the age of 18 years old when a crime was committed. At the time, the United States was virtually the last nation on Earth to still execute minors, continuing the practice into the early 21st century even after countries with more punitive legal systems, like China and Saudi Arabia, had abandoned it.
To support the categorical ban, Justice Anthony Kennedy grounded his majority opinion in scientific research that explained why juveniles should be spared from state-ordered death. A minor’s immaturity can lead to rash decision-making, he noted, which is why society excludes them from responsibilities ranging from jury service to marriage. They are more vulnerable to peer pressure and can lack the cognizance to avoid circumstances in which crimes occur, he observed. And, perhaps most importantly for future rulings, Kennedy noted that a young person’s character is still developing: He or she can more readily learn from mistakes and become a conscientious member of society.
Normally, the Court goes to great lengths to cordon off its death-penalty jurisprudence from the rest of American criminal law. The justices have long reasoned that “death is different” from other punishments, and that the mechanisms they impose upon it shouldn’t translate to the broader criminal-justice system. In 2010, however, the justices made a rare break from this practice and extended Roper’s logic to strike down LWOP sentences for juvenile defendants in non-homicide cases in Graham v. Florida.
“To justify [LWOP] on the assumption that the juvenile offender forever will be a danger to society requires the sentencer to make a judgment that the juvenile is incorrigible,” Kennedy wrote for a 6-3 majority, noting that the factors he described five years earlier make the strength of such a judgment “questionable.” Instead, he wrote, states must offer “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”
Justice Clarence Thomas, who led the dissenting conservatives, saw the ruling as a threat to the Constitution’s separation of powers. “Never before today has the Court relied on its own view of just deserts to impose a categorical limit on the imposition of a lesser punishment,” he wrote. “Its willingness to cross that well-established boundary raises the question whether any democratic choice regarding appropriate punishment is safe from the Court’s ever-expanding constitutional veto.”
The Court, much to Thomas’s chagrin, did not stop there. In the 2012 case Miller v. Alabama, the justices turned their attention to juvenile defendants who had committed murder. At the time, about 2,500 prisoners were serving life sentences for homicides they had committed as minors, and about 2,000 of them received those sentences under mandatory provisions of state law. In a 5-4 ruling, the Court said states could not condemn a juvenile defendant to LWOP on a mandatory basis.
The majority opinion and the dissents in Miller largely rehashed the fault lines in Graham: Justice Elena Kagan wrote for the Court that a minor’s “diminished culpability and greater prospects for reform” made mandatory sentencing inappropriate, while Thomas argued the Court was “compounding its errors” with the latest ruling against juvenile LWOP sentences. But the most important aspect of the decision was the list of factors Kagan considered in reaching it:
Mandatory [LWOP] for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.
Those factors have been influential on lower courts when weighing virtual LWOP sentences for juvenile defendants. “Generally speaking, I’ve seen state supreme courts that are going to steps like banning juvenile [LWOP] entirely,” said Joshua Rovner, a juvenile-justice expert at the Sentencing Project, pointing to rulings in Iowa and Massachusetts. “We also see state supreme courts striking down virtual juvenile LWOP sentences because they didn’t consider the Kagan factors [in Miller].”
That hasn’t prevented some states from trying to keep juvenile LWOP sentences intact, Rovner said. After the Graham ruling on non-homicide sentences, Virginia prisoner Dennis LeBlanc, then 34 years old, asked courts to review the LWOP sentence he received after his conviction for rape when he was 16. Virginia countered that resentencing was unnecessary because it already had a mechanism to free him: the state’s geriatric-release program, for which LeBlanc would have to be at least 60 years old to qualify. The Fourth Circuit Court of Appeals ultimately rejected that argument and ordered him resentenced last year.
In some jurisdictions that still allow juvenile LWOP sentences, state supreme courts imposed new procedural safeguards after Miller. The Pennsylvania Supreme Court mandated in June that state courts adopt a presumption against LWOP sentences for juvenile offenders in Pennsylvania v. Batts—in other words, prosecutors must prove the sentence necessary to obtain one. “To rebut the presumption, the Commonwealth bears the burden of proving, beyond a reasonable doubt, that the juvenile offender is incapable of rehabilitation,” Associate Justice Christine Donohue wrote for the court. A state prosecutor told the Pittsburgh Post-Gazette that it seemed unlikely future juvenile LWOP sentences in the state would overcome the court’s higher threshold.
Other courts have interpreted the Supreme Court’s precedents more narrowly. Missouri’s state supreme court issued three opinions on the matter this week that highlight the fissures opened up by the high court’s rulings. The first case, Carr v. Wallace, was straightforward: The court ordered a defendant resentenced because he was serving a mandatory LWOP term in violation of the U.S. Supreme Court’s decision in Miller v. Alabama.
The defendants in the other two cases weren’t as fortunate. In Willbanks v. Missouri, Timothy Willbanks challenged his sentences for kidnapping, robbery, and assault committed when he was 17 years old. He received 375 consecutive years in prison for charges related to the first two offenses, plus a life sentence for assault. Though he’d technically be eligible for parole years down the line, Willbanks argued this lengthy term amounted to an LWOP sentence, which would violate the Graham v. Florida ruling that barred such punishments for non-homicide crimes.
Not so, said the Missouri Supreme Court: The Graham ruling was aimed at LWOP sentences specifically, not aggregations of prison sentences that may result in a defendant living out the rest of his years behind bars. Plus, the court reasoned, he might be able to get out at age 85.
Judge Laura Denvir Stith dissented from the ruling, which she partially blamed on her colleagues’ “fear of censure” by the U.S. Supreme Court. She also challenged its central reasoning. “A sentence that results in no meaningful opportunity for release during the juvenile’s lifetime is the functional equivalent of LWOP,” she wrote. Stith also dissented on similar grounds in the third case, Missouri v. Nathan, in which the defendant had received an LWOP sentence for murder, plus additional decades in prison for non-homicide crimes.
Supreme Court rulings on criminal-justice matters typically don’t apply to existing sentences for both constitutional and practical reasons. After Miller, Louisiana inmate Henry Montgomery challenged his sentence by arguing Miller was more than a procedural decision, which wouldn’t qualify to apply retroactively, because it announced a new rule of constitutional law, which could be applied retroactively.
In its 2016 ruling in Montgomery v. Louisiana, the Court sided with the defendant. Kennedy, again writing for the majority, found that “prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption.” But he also offered states an alternative: “Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory [LWOP],” he noted. “A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.”
This time, the Court’s conservatives saw legalistic legerdemain at work. “This whole exercise, this whole distortion of Miller, is just a devious way of eliminating [LWOP] for juvenile offenders,” Justice Antonin Scalia wrote in what would be one of his final dissents. To him, Kennedy’s alternative suggestion was a false choice. “In Godfather fashion, the majority makes state legislatures an offer they can’t refuse: Avoid all the utterly impossible nonsense we have prescribed by simply ‘permitting juvenile homicide offenders to be considered for parole,’” he wrote. “Mission accomplished.”
Scalia correctly surmised the impact of the Court’s rulings on juvenile LWOP sentences. But he underestimated the work yet to be done, in the lower courts and the Supreme Court alike. “The splits [among the lower courts] we see and the uncertainty there is about this doctrine means, at the very least, the Court will have to return to it at some point,” Berman said.
