Life Without Parole (LWOP) for Minors

1. Life Without Parole (LWOP)for Minors Class 11

2. The Scalia Challenge in Roper • “It is also worth noting that, in addition to barring the execution of under-18 offenders, the United Nations Convention on the Rights of the Child prohibits punishing them with life in prison without the possibility of release. If we are truly going to get in line with the international community, then the Court’s reassurance that the death penalty is really not needed, since “the punishment of life imprisonment without the possibility of parole is itself a severe sanction,”… gives little comfort.”

3. Roper v. Simmons • Court recognizes three general differences between juveniles and adults: • A lack of maturity and an underdeveloped sense of responsibility are more characteristic of youth. • Juveniles are more vulnerable and susceptible to negative influences and outside pressures, including peer pressure. • The character of a juvenile is not as well formed as that of an adult. • Juveniles are “categorically less culpable” than adult criminals • Fear of mistakes in culpability

4. Roper v. Simmons • Court Concludes: • Whether viewed as an attempt to express the community’s moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult. • Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity. • When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.

5. Kennedy’s Provocative Comments in Roper re JWLOP • Justice Kennedy’s opinion in Roper toyed with the notion that for adolescents, a natural life sentence is on the same proportionality plane as a death sentence. • “…the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person.” • “…[w]hen a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity” (emphasis added) • “To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person”

6. Social and Political Context • LWOP has always been a sentencing option, but the frequency with which it is imposed has increased significantly in recent decades • Over the past three decades, the political climate has increasingly embraced “get tough” criminal justice policies. • Mandatory LWOP sentences • Three-Strikes Laws • As a result, an estimated 10% of offenders in state/federal prisons are serving life sentences • Of those serving life sentences, 25% are serving LWOP sentences.

7. Social and Political Context • LWOP has also been instrumental as an alternative to the death penalty • Studies show jurors are more reluctant to impose a death sentence when given an alternative to sentence a capital offender to LWOP • LWOP has been crucial to whatever progress has been made against the death penalty

8. Current State Laws • State LWOP Statutes: • Currently, 42 states allow LWOP to be imposed on juvenile offenders • 11 states have varying minimum ages under 14 • 11 states have lower age limits of 14 • 3 states set age limit at 15 • 3 states set age limit at 16 • The remaining 14 states set no minimum age limit • In 26 states, LWOP is mandatory for anyone convicted of first-degree murder. • The District of Columbia is the only jurisdiction without a death penalty that specifically exempts under-18 offenders from its harshest sanction: life imprisonment without parole (See, D. C. Code §22—2104 (West 2001)).

9. Recent Legislative Efforts • In 2006, Colorado lawmakers eliminated JLWOP and other particularly long sentences for youth offenders, giving judges the ability to periodically re-examine a youth offender’s progress in prison • Several Florida lawmakers recently introduced a bill to ensure parole for some children sixteen and years old and younger sentenced to life • Neither provision passed Senate committee hearings • Michigan, California, Mississippi, and Illinois all have abolition bills in the state legislature. • Following Roper v. Simmons, Texas passed law allowing jurors to impose LWOP in capital cases. • The question remains whether the rate of juvenile LWOP sentences per juvenile homicide arrest will exceed the rate of juvenile death sentences prior to Roper

10. National Statistics* • An estimated 2,225 juvenile offenders are serving LWOP in the U.S. • 16% between 13-15 years old • 59% sentenced to LWOP are first-time offenders • 93% were convicted of murder • An estimated 26% were convicted of accountability offenses (felony murder) • The remaining 8% include: • Rape • Kidnapping • Other violent crimes • Convictions under repeat offender laws (Three-Strikes Laws) _____________________________________________ * Human Rights Watch report, October 2005

14. Trends • Although juvenile LWOP sentences have declined in absolute numbers in recent years, the proportion of LWOP sentences imposed on juveniles has increased relative to the total number of youth arrested • Felony murders account for many JWLOP sentences, but hardly all • Decrease from 152 in 1996 to 54 in 2003 • In 1990, 2,234 juvenile offenders were convicted of murder and 2.9% were sentenced to LWOP • By 2000, the murder conviction rate had dropped by nearly 55% (1,006), but the percentage of juvenile offenders receiving LWOP increased by 216% • States with mandatory JLWOP have highest JWLOP sentencing rates • Little relationship to juvenile homicide rates or juvenile homicide arrest rates

15. Racial Disparities • Nationally, black youth are ten times more likely to be sentenced to LWOP than white youth. • In some states the ratio is greater: • In California, black youth are 22.5 times more likely to receive a LWOP sentence than white youth. • In Michigan, black youth are 12.4 times more likely than white youth to receive a LWOP sentence. • In Pennsylvania, Hispanic youth are ten times more likely to be sentenced to LWOP than white youth.

17. International Standards • The U.S. is one of only a few countries that sentence juvenile offenders to LWOP • 132 countries have rejected LWOP sentences for juvenile offenders • 14 countries allow for the possibility of sentencing a juvenile offender to LWOP, but it is rarely imposed • In addition to the U.S., only Bangladesh, Israel, South Africa, and Tanzania sentence juvenile offenders to LWOP • Outside the U.S., there are currently only twelve juvenile offenders serving LWOP

18. International Standards • United Nations Convention on the Rights of the Child, [1577 U. N. T. S. 3, 28 I. L. M. 1448, entered into force Sept. 2, 1990] bans LWOP for juveniles • LWOP is explicitly banned in Austria, Ireland, Japan, Switzerland, Sweden, and the United Kingdom • In Canada, juvenile LWOP sentences are prohibited • The following treaties/resolutions prohibit juvenile LWOP: • The Convention of the Rights of the Child (signed and ratified by every country but the U.S. and Somalia) • United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) • United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Riyadh Guidelines)

19. Proportionality • “What comparison can there really be …between consigning a man to the short pang of a rapid death, and immuring him in a living tomb, there to linger out what may be a long life in the hardest and most monotonous toil, without any of its alleviation or rewards….and cut off from all earthly hope…?’” – John Stuart Mill (1868) • “A further alternative is to lengthen the sentence to the limit of life itself….This is a death sentence where the inevitable end is reached by the imperceptible stages of institutional decay instead of by one full stroke” – Alexander Patterson (1930) • Patterson study, one of the few empirical studies • Prison conditions for juveniles • Victimization

20. Proportionality (continued)….. • Death is different (Woodson v NC), but is JWLOP? • New York Times (Adam Liptak): October 3-5, 2005 • Serving Life, With No Chance of Redemption • Jailed For Life After Crimes As Teenagers • Years of Regret Follow a Hasty Guilty Plea Made At 16 • To More Inmates, Life Term Means Dying Behind Bars • Rocky Mountain News (CO): September 17-21, 2005 • Life Term Without Parole Just One Option • Growing Up In Prison • Poll Backs Sentencing Shift: System Now Requires LWOP For Some Teen Killers • Website: http://www.rockymountainnews.com

21. Case Law • The U.S. Supreme Court has consistently upheld adult life and LWOP sentences (including those imposed for drug crimes and ‘three-strikes laws’) • Harmelin v. Michigan (1991) – consistent with harm of offense, not culpabilty of offender • Ewing v. California (2003) – legislative prerogative to define proportionality • But, the Court has also recognized that juvenile status often diminishes culpability vis-à-vis death as a punishment (Woodson) • Thompson v. Oklahoma (1988) • Roper v. Simmons (2005) – Juveniles are categorically less culpable • Proportionality test here includes offender culpability • But in all the JWLOP cases, age competes with other factors, including offense seriousness, in proportionality analysis

22. State Court Decisions • Some state courts have found LWOP sentences unconstitutional when imposed on juvenile offenders • Naovarath v. State, Nevada Supreme Court (1989): • Facts: Thirteen year old sentenced to LWOP for first-degree murder for shooting man who had been sexually molesting him. • The court, pointing to the “undeniably lesser culpability of children for their bad actions, their capacity for growth, and society’s special obligation to [them],” holds that LWOP sentence constitutes severe cruel and unusual punishment. • “To adjudicate a thirteen year old to be forever irredeemable and to subject a child of this age to hopeless, lifelong punishment…is not a usual or acceptable response to childhood criminality…It is questionable whether a thirteen year old can even imagine or comprehend what it means to be imprisoned for sixty years or more.”

23. State Court Decisions • People v. Miller, Illinois Supreme Court (2002): • Facts: Fifteen year old, first-time offender sentenced to LWOP under the Illinois multiple-murder sentencing statute for his role as a passive lookout in the murder of two people. • Issue: Whether the multiple-murder sentencing statute is unconstitutional as applied to a juvenile offender convicted under a theory of accountability. • Court holds that mandatory LWOP sentence is particularly harsh, unconstitutionally disproportionate, and grossly distorts the factual realities of the case and the defendant’s personal culpability. • Miller’s sentence reduced to 50 years.

24. Court implies Miller’s culpability was lessened to some extent because of his age. • However, the Court also notes: “Our decision does not imply that a sentence of life imprisonment for a juvenile offender convicted under a theory of accountability is never appropriate. It is certainly possible to contemplate a situation where a juvenile offender actively participated in the planning of a crime resulting in the death of two or more individuals, such that a sentence of natural life imprisonment without the possibility of parole is appropriate.”

25. State Court Decisions • State v. Standard, South Carolina Supreme Court (2003): • Facts: Fifteen year old with a prior armed robbery conviction is later convicted of first-degree burglary and grand larceny and sentenced to LWOP under South Carolina’s “Two-Strikes Law.” • Court holds that LWOP sentence is within the bounds of society’s current and evolving standards of decency because a growing minority of states impose the sentence on juvenile offenders. • Court concludes Standard’s LWOP sentence for burglary does not constitute cruel and unusual punishment. Minority of states that permit mandatory JWLOP for non-capital offenses are evidence of boundaries of decency

26. More State Court Decisions • State v Massey (1990, WA): rejected age as a factor in the proportionality analysis of a life sentence for a 13-year-old convicted of murder, narrowly defining proportionality as “only a balance between the crime and the sentence imposed.” • Workman v Kentucky (1968, KY): held that JLWOP sentences for two 15-year-old males convicted of rape “under all circumstances shocks the general conscience of society today and is intolerable to fundamental fairness.” • State v. Mitchell (MN, 1998): rejected a proportionality challenge brought by a 15-year-old who had been sentenced to natural life (albeit with parole review after 30 years). Although age was obviously a mitigating factor, the trial judge could not impose a lesser sentence since JLWOP was mandatory once the case was transferred to the criminal court, where any sentencing discount for diminished culpability was forfeited.

27. Federal Decisions • Harris v. Wright, Ninth Circuit (1996): • Facts: Fifteen year old sentenced to mandatory LWOP for felony murder. • Issue: Harris argues mandatory LWOP sentence violates Eighth Amendment and constitutes cruel and unusual punishment when imposed on an offender less than sixteen years of age. • Court rejects Harris’ claim: • Mandatory LWOP sentence does not violate “evolving standards of decency” because at least 21 states impose mandatory LWOP sentence on fifteen year old offenders. • Mandatory LWOP sentence is not disproportionate when imposed on offenders less than 16 years of age.

28. Harris v. Wright, Ninth Circuit (1996): • Judge Kozinski: “Youth has no obvious bearing…If we can discern no clear line for adults, neither can we for youths. Accordingly, while capital punishment is unique and must be treated specially, mandatory LWOP is, for young and old alike, only an outlying point on the continuum of prison sentences. Like any other prison sentence, it raises no inference of disproportionality when imposed on a murder.

29. Questions and Challenges • Does the logic of Roper extend to LWOP? • Should there be a categorical prohibition against sentencing juvenile offenders to LWOP or should sentencing be assessed on an individualized basis? • If so, where do you draw the line? • Scalia dissent: “The Court suggests no stopping point for its reasoning” • Does similar logic apply to life sentences that allow for parole and other lengthy sentences for juvenile offenders? • Does precluding juveniles from LWOP perpetuate the notion that youth always trumps culpability? • Are individual assessments an imperfect method of classifying competence and culpability? If true in juvenile death penalty jurisprudence, does it apply to other punishments?

30. Constitutional Questions • Evolving Standards? (8th Amendment ) • Commonality in practice and in statute? • International standards? • Proportionality Test • Should severity of sentence match seriousness of crime or culpability of the offender? • Reach of the statutes (non-capital cases involving juveniles?) – see Kennedy dissent in Harmelin • If the sentencing statute is validly enacted, judges can’t circumvent legislative prerogative (narrow view of constitutional test?) • Jurisprudential • Adolescents have diminished culpability, but is it diminished enough given the punishment? • How and when should age compete with other factors in a proportionality test? • Procedural • Possibilities for a “narrowing jurisprudence”? • Waiver is essential prerequisite for JWLOP sentence, should there be greater scrutiny and stricter standards given the promiscuity of waiver procedures and generally low standards?