Brittany Ripper Explains
TOPIC TWO:
The Applicability of Miller v. Alabama to All Juvenile Life Without Parole Sentences
In the case, Miller v. Alabama (2012), the United States Supreme Court held that mandatory sentences of life without parole for juveniles are unconstitutional under the Eighth Amendment. The Miller decision has had a profound effect on juvenile life without parole cases. Should Miller apply to discretionary and de facto life without parole sentences, or only mandatory life without parole sentences? Brittany Ripper explains:
Miller should apply to both discretionary and de facto juvenile life without parole sentences (term-of-years sentences that exceed life expectancy), in addition to mandatory juvenile life without parole sentences. This contention is supported by the United States Supreme Court’s opinion in Montgomery v. Louisiana (2016), where the Court explained that Miller’s holding is applicable not only to juveniles sentenced to life without parole on a mandatory basis, but to all non-incorrigible juveniles (juveniles who can be rehabilitated). Since the requirement that only incorrigible juveniles can be sentenced to life without parole was essential to Montgomery’s holding that Miller was retroactive, the holdings of Miller and Montgomery should be applicable to juveniles sentenced to discretionary and de facto life without parole, as well as those sentenced to life without parole on a mandatory basis.
In Miller v. Alabama (2012), the U.S. Supreme Court held that a juvenile cannot receive the punishment of life without parole on a mandatory basis because there is no opportunity for the sentencer to consider the mitigating characteristics of youth. In Montgomery v. Louisiana (2016), the Court held that Miller’s ban on mandatory life without parole sentences for juveniles was retroactive, meaning that juveniles who were sentenced to mandatory life without parole prior to the Miller case had to be resentenced or made eligible for parole. While some states had already applied Miller retroactively prior to the Montgomery decision, others had maintained that Miller only applies to juveniles sentenced after Miller was decided (Hoesterey, 2017; Kingston, 2016; Tikhomirov, 2019). While Montgomery settled the issue of whether Miller was retroactive, it also created a set of uncertainties among state and federal courts, including whether Miller applies to discretionary life without parole sentences and de facto life without parole sentences.
Many jurists argue that in addition to making the Miller holding retroactive, the Montgomery holding expanded the Miller holding (Hoesterey, 2017; Kingston, 2016; Tikhomirov, 2019). However, others would argue that Montgomery did not expand Miller; it simply reiterated Miller’s holding. Supporters point to Montgomery’s language stating that only incorrigible juveniles can be sentenced to life without parole, as well as its holding that Miller is retroactive, when arguing for Miller’s applicability to all juvenile life without parole sentences. In Montgomery, the Court explained that Miller’s holding was a substantive rule, which makes the holding retroactive. In order to constitute a substantive rule, the rule must prohibit a type of punishment for an entire class of individuals. The class at issue in Miller and Montgomery are juveniles who can indeed be rehabilitated. Therefore, if Miller did not involve a substantive rule, the Montgomery Court would not have held that Miller’s holding was retroactive.
Moreover, if only incorrigible juveniles can be sentenced to life without parole, the sentences of those serving discretionary life without parole and de facto life sentences must be reviewed to ensure that these juveniles are truly incorrigible. Indeed, the Supreme Court will soon hear a case where the issue is whether an explicit finding of incorrigibility is required before a juvenile can be sentenced to life without parole. The case, Jones v. Mississippi, is scheduled for oral argument on November 3rd (SCOTUSblog, 2020).
However, there are some jurists who oppose the argument that Miller applies to all non-incorrigible juveniles, as well as to juveniles sentenced to discretionary and de facto life without parole sentences. In fact, the incorrigibility determination and discretionary life without parole issues were extensively discussed at oral argument before the Supreme Court in the now moot case of Mathena v. Malvo, a case where a Virginia jury sentenced Lee Boyd Malvo to life without parole after considering either life in prison or death. The Virginia and U.S. governments argued that the consistent use of the word “mandatory” in the Miller opinion meant Miller’s holding was exclusively reserved for mandatory life without parole sentences. In the academic literature, in support of her argument that Miller prohibits life without parole for all non-incorrigible juveniles, Hoesterey (2017) points to the fact that the Montgomery opinion uses the word “incorrigible” eight times. Additionally, she argues that many courts had to reverse their own decisions after Montgomery, as they interpreted Miller and Montgomery to apply to all cases of juvenile life without parole, not just mandatory cases of life without parole. Thus, jurists have come up with creative ways to argue about the application of Miller, and further guidance from the Supreme Court is needed to resolve these arguments.
When it comes to de facto life without parole sentences, state and federal courts disagree as to whether Miller applies (Tikhomirov, 2019; United States v. Grant, 2018). In the Third Circuit Court of Appeals case, United States v. Grant (2018), a juvenile originally sentenced to mandatory life without parole was resentenced as a result of Miller. He was resentenced to 65 years in prison, which he argued constituted a de facto life sentence, as the sentence exceeded his life expectancy. The Third Circuit agreed with Grant, however, the government appealed the Third Circuit’s decision. The case was heard en banc and is still awaiting a decision. Several federal circuits have held that Miller does in fact apply to lengthy de facto life sentences. But, the Eighth Circuit Court of Appeals has held that Miller does not apply to de facto life sentences, even for non-incorrigible juveniles (United States v. Jefferson, 2016). Issues surrounding de facto life sentences are further complicated by the fact that courts do not have consistent definitions of what constitutes a de facto life sentence.
In sum, Miller’s ban on life without parole for juveniles should be applied to juveniles sentenced to life without parole on a mandatory basis and on a discretionary basis. Additionally, juveniles sentenced to term-of-years sentences that would exceed their life expectancies should be considered having been sentenced to life without parole for the purposes of Miller and Montgomery. However, lawyers can argue their positions on this issue with vigor, but only the Supreme Court can provide a beacon of light in the stormy sea that is juvenile life without parole caselaw. Hopefully the Court’s opinion in Jones v. Mississippi will provide this much needed guidance in cases moving forward.
References
Hoesterey, A. R. (2017). Confusion in Montgomery's wake: State responses, the mandates
of Montgomery, and why a complete categorical ban on life without parole for
juveniles is the only constitutional option. Fordham Urb. LJ, 45, 149.
Kingston, E. C. (2016). Validating Montgomery's recharacterization of Miller: An end to
LWOP for juveniles. U. La Verne L. Rev., 38, 23.
Mathena v. Malvo, 139 S. Ct. 1317 (2019).
Miller v. Alabama, 567 U.S. 460 (2012).
Montgomery v. Louisiana, 136 S. Ct. 718 (2016).
SCOTUSblog. (2020). Jones v. Mississippi. https://www.scotusblog.com/case-files/cases/jones-
v-mississippi/
Tikhomirov, A. (2019). A meaningful opportunity for release: Graham and Miller applied
to de facto sentences of life without parole for juvenile offenders. Boston College
Law Review, 60(9), II-332.
United States v. Grant, 887 F.3d 131 (3d Cir. 2018)
United States v. Jefferson, 816 F.3d 1016 (8th Cir. 2016)
Topic One:
Juvenile Life Sentences, Adjustment, and Rehabilitation
Prisons are stressful environments that tax a person’s capacity to cope. Some problems of adjustment are uniquely challenging for juvenile prisoners, especially juveniles serving terms of life imprisonment, sometimes without the hope of parole. Paradoxically, the prison adjustment of many juvenile lifers offers hope for rehabilitation and a second chance at life in the free world. Brittany Ripper explains:
There are many problems of prison adjustment that are uniquely faced by juvenile lifers. These problems include vulnerability to predators and prison violence generally, as well as what Crewe, Hulley, and Wright (2020) refer to as the “offence-time nexus,” which results in an exacerbation of the routine pains of imprisonment for juveniles due to their immaturity. However, despite these problems, the prison adjustment of juvenile lifers does offer hope for rehabilitation. After the initial period of incarceration, most juvenile lifers exhibit mature coping, and commit few or no disciplinary infractions (Johnson & Leigey, 2020; Cunningham, Reidy, & Sorensen, 2016; Sorensen & Cunningham, 2010.). This positive behavior behind bars can be used to support the argument that the juvenile has been rehabilitated, and thus, deserves a second chance at life in the free world.
Juvenile lifers are particularly susceptible to violence in prison because they come to prison during adolescence, a time when they are particularly vulnerable. For many juveniles, the crime for which they are incarcerated is their first ever criminal charge (Human Rights Watch & Amnesty International, 2005). Therefore, these individuals do not have experience with the prison environment. This lack of experience makes them prey for older incarcerated individuals, some of whom wish to attack younger individuals physically and/or sexually (George, 2010; Hassine, 2009). Juveniles serving time in adult facilities, which includes most juvenile lifers, are especially at risk of violence from both staff members and other incarcerated individuals (Human Rights Watch, 2012). Human Rights Watch and Amnesty International (2005) found that all of the juvenile lifers who were a part of their study had been exposed to violence while in prison. Thus, prison becomes an extension of juvenile lifers’ problematic home and community environments, where violence is also commonplace (Nellis, 2012).
When confronted with an attack in prison, juveniles often respond with violence in order to show toughness and repel further attacks. Some juveniles seek the protection of a gang to avoid prison violence (Johnson & Leigey, 2020). Although gangs are an issue for both juveniles and adults in prison, juveniles are more susceptible to gangs for the exact reasons the United States Supreme Court spelled out in Roper (2005), which banned the death penalty for juveniles: they are immature and susceptible to peer pressure. Moreover, the Court in Roper mentioned that juveniles also have a harder time escaping criminogenic adults and environments, but that is exactly what a prison is: a criminogenic environment filled with individuals who have more law-breaking experience. This makes escaping a gang even harder. Additionally, the consequences of gang membership are often worse for juvenile lifers than for other incarcerated individuals. This is because gang membership can delay mature coping and lawful adaptation to prison. This longer period of bad behavior and disciplinary infractions due to gang membership can impact a juvenile lifer’s ability to obtain a second chance at life at a resentencing or parole hearing.
Juvenile lifers also experience the pains of imprisonment on a deeper level than other incarcerated individuals. Crewe, Hulley, and Wright (2020) describe these magnified pains as the “offence-time nexus.” Because they are incarcerated at a young age, juvenile lifers will experience the pains of imprisonment for a longer period of time than those who become incarcerated as adults. Additionally, due to their youth, juvenile lifers have a hard time processing the fact that they will be in prison for such a long period of time. In Crewe, Hulley, and Wright’s (2020) study of UK lifers imprisoned at a young age, they found that these individuals often experienced “shock” and “numbness” after their life sentence was announced. Thus, juvenile lifers often grieve twice: once at the beginning of their incarceration, and again after processing the gravity of their crime and the fact that they will be in prison for life. In regard to the “offence” component of the offence-time nexus, those who commit murder are often traumatized by their participation in such a heinous crime and spend much of their incarceration thinking about their actions (Crewe, Hulley, & Wright, 2020). In fact, Leigey (2015) found in her study of male lifers in the United States that most exhibit remorse for their crimes. Thus, the length of time in which juveniles will endure the pains of imprisonment, along with the difficult process they must endure in dealing with their participation in a murder, pose unique challenges to prison adjustment for juvenile lifers.
Despite the uphill battle juvenile lifers face in regard to prison adjustment, they eventually do exhibit constructive adjustment (Crewe, Hulley, & Wright, 2020; Johnson & Leigey, 2020). In Johnson and Leigey’s (2020) article describing the life-course of juvenile lifers, they write that juvenile lifers come to be productive prison citizens through various life events, or “turning points,” and/or self-interest. Crewe, Hulley, & Wright (2020) describe the period of positive adjustment as “coping-adaptation,” and write that individuals in their study often used family, education, religion, and the prospect of a future after release in order to cope maturely. If one is to measure adjustment in terms of the amount of disciplinary infractions an incarcerated individual commits, one will see that most juvenile lifers go on to commit few infractions, or desist from rule-breaking entirely (Johnson & Leigey, 2020; Cunningham, Reidy, & Sorensen, 2016; Sorensen & Cunningham, 2010.). Therefore, the fact that most juvenile lifers show positive adjustment in prison offers hope for rehabilitation in both prison and the free world.
References
Crewe, B., Hulley, S., & Wright, S. (2020). Life imprisonment from young adulthood:
Adaptation, identity and time. London. UK: Palgrave.
Cunningham, M. D., Reidy, T. J., & Sorensen, J. R. (2016). Wasted resources and gratuitous
suffering: The failure of a security rationale for death row. Psychology, Public Policy, and Law, 22(2), 185.
George, E. (2010). A woman doing life: Notes from a prison for women. New York, NY: Oxford
University Press.
Hassine, V. (2010). Life without parole: Living in prison today. New York, NY: Oxford University Press.
Human Rights Watch. (2012). Against all odds: Prison conditions for youth offenders serving life
without parole sentences in the United States. New York, NY: Human Rights Watch.
Human Rights Watch & Amnesty International. (2005). The rest of their lives: Life without
parole for child offenders in the United States. New York, NY: Human Rights Watch.
Johnson, R., & Leigey, M. (2020). The life-course of juvenile lifers: Understanding maturation and
development as Miller and its progeny guide juvenile life sentence release decisions. Journal of Criminal Justice and Law, 3(2), 29-46.
Leigey, M. E. (2015). The forgotten men: Serving a life without parole sentence. New Brunswick, NJ: Rutgers University Press.
Nellis, A. (2012). The lives of juvenile lifers: Findings from a national survey. Washington, DC: Sentencing Project.
Ripper, B., & Johnson, R. (2019). Liveable term sentences as alternatives to juvenile life without
parole. A sentencing framework based on United States v. Grant, 887 F.3d 131 (3d Cir. 2018). Journal of Criminal Justice and Law, 3(1), 58-74.
Roper v. Simmons, 542 U.S. 551 (2005).
Sorensen, J., & Cunningham, M. D. (2010). Conviction offense and prison violence: A
comparative study of murderers and other offenders. Crime & Delinquency, 56(1), 103-125.