Juvenile Life Without Parole: An Overview - Sentencing Project

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POLICY BRIEF: JUVENILE LIFE WITHOUT PAROLEJuvenile Life Without Parole:An OverviewThe momentum to protect youth rights in the criminal legal system is clear. Twentyfive states and the District of Columbia have banned life sentences without thepossibility of parole for people under 18; in nine additional states, no one is servinglife without parole for offenses committed before age 18.The Sentencing Project, in its national survey of life andvirtual life sentences in the United States found 1,465people serving JLWOP sentences at the start of 2020.This number reflects a 38% drop in the population ofpeople serving JLWOP since our 2016 count and a 44%drop since the peak count of JLWOP figures in 2012.1This count continues to decline as more states eliminateJLWOP.In five decisions – Roper v. Simmons (2005), Grahamv. Florida (2010), Miller v. Alabama (2012), Montgomeryv. Louisiana (2016), and Jones v. Mississippi (2021) –the Supreme Court of the United States establishesand upholds the fact that “children are constitutionallydifferent from adults in their levels of culpability”2 whenit comes to sentencing. Differences in maturity andaccountability informs the protections of the EighthAmendment’s prohibition on cruel and unusualpunishment that limits sentencing a child to die inprison.Research on adolescent brain development confirmsthe commonsense understanding that children aredifferent from adults in ways that are critical toidentifying age-appropriate criminal sentences. Thisunderstanding – Supreme Court Justice AnthonyKennedy called it what “any parent knows”3 – wascentral to the recent Supreme Court decisions excludingpeople under 18 from the harshest sentencing practices.Starting in 2005, Roper struck down the death penaltyfor people under 18. In 2010, Graham invalidated lifewithout parole sentences for people under 18 convictedof non-homicide crimes. Two years later in Miller, theCourt recognized the need to protect nearly all youthfrom life without parole sentences, regardless of thecrime of conviction. Life without parole, as a mandatoryminimum sentence for anyone under age 18 was foundunconstitutional. Montgomery, in 2016, clarified thatMiller applied retroactively. Jones reaffirmed bothMontgomery and Miller but held that a specific factualfinding of “permanent incorrigibility” at the time ofsentencing is not required for the imposition of a juvenilelife without parole sentence.Henceforth, few youth will be sentenced to life withoutthe possibility of parole. Moreover, youth sentenced toparole-ineligible life sentences in 28 states where thesentence was mandatory and the federal governmentare in the process of having their original sentencesreviewed or have been granted a new sentence, includinghundreds of individuals who have been released fromprison.SUPREME COURT RULINGSSince 2005, Supreme Court rulings have acceptedadolescent brain science and banned the use of capitalpunishment for juveniles, limited life without parolesentences to homicide offenses, banned the use ofmandatory life without parole, and applied the decisionretroactively.ROPER V. SIMMONS, 543 U.S. 551 (2005)The Supreme Court ruled that juveniles cannot besentenced to death, writing that the death penalty is adisproportionate punishment for the young; immaturitydiminishes their culpability, as does their susceptibilityto outside pressures and influences. Their heightenedThe Sentencing Project 1705 DeSales Street NW, 8th Floor Washington, D.C. 20036 sentencingproject.org1

POLICY BRIEF: JUVENILE LIFE WITHOUT PAROLEStates that have banned or limited the use of juvenile life without parole sentences, 2021Washington,D.C.Banned JLWOP, no peopleserving JLWOPBanned JLWOP, at least oneperson serving JLWOPAllow JLWOP, have zeropeople serving JLWOPAllow JLWOPSource: Data collected by The Sentencing Projectcapacity for reform means that they are entitled to aseparate set of punishments. The court also held thatthe nation’s “evolving standards of decency” showedthe death penalty for juveniles to be cruel and unusual:12 states banned the death penalty in all circumstances,and 18 more banned it for people under 18.4 The Roperruling affected 72 juveniles on death row in 12 states.5Between 1976 and the Roper decision, 22 defendantswere executed for crimes committed before age 18.6GRAHAM V. FLORIDA, 130 S.CT. 2011 (2010)Having banned the use of the death penalty for juvenilesin Roper, the Court left the sentence of life withoutparole as the harshest sentence available for offensescommitted by people under 18. In Graham v. Florida,the Court banned the use of life without parole forjuveniles not convicted of homicide. The ruling appliedto at least 123 prisoners – 77 of whom had beensentenced in Florida, the remainder in 10 other states.7As in Roper, the Court pointed to the rare imposition ofa particular punishment to prove that the punishmentis unusual.8U.S. Supreme Court precedent recognizes that nonhomicide offenses do not warrant the most seriouspunishment available.9 “The concept of proportionalityis central to the Eighth Amendment,” wrote JusticeKennedy. 10 Thus, having denied the maximumpunishment for all people under 18 (life without parole),the Court ruled that the harshest punishment must belimited to the most serious category of crimes (i.e.,those involving homicide).The Court called life without parole “an especially harshpunishment for a juvenile A 16-year-old and a 75-yearold each sentenced to life without parole receive thesame punishment in name only.”11 Limiting the use ofThe Sentencing Project 1705 DeSales Street NW, 8th Floor Washington, D.C. 20036 sentencingproject.org2

POLICY BRIEF: JUVENILE LIFE WITHOUT PAROLElife without parole did not guarantee such individualswould be released; it guaranteed a “meaningfulopportunity” for release.MILLER V. ALABAMA AND JACKSON V.HOBBS, 132 S.CT. 2455 (2012)Following Roper’s exclusion of the death penalty forjuveniles and Graham’s limitation on the use of lifewithout parole, approximately 2,500 people were servingsentences of life without parole for crimes committedas juveniles, all of whom were convicted of homicide.12Adolescence is marked by“rashness, proclivity for risk, andinability to assess consequences.”In 2012, deciding Miller and Jackson jointly, the U.S.Supreme Court held that, for people under 18, mandatorylife without parole sentences violate the EighthAmendment. Writing for the majority, Justice Kaganemphasized that judges must be able to consider thecharacteristics of young defendants in order to issuea fair and individualized sentence. Adolescence ismarked by “transient rashness, proclivity for risk, andinability to assess consequences,” all factors that shouldmitigate the punishment received by juveniledefendants.13MONTGOMERY V. LOUISIANA 136 S.CT. 718(2016)The Miller ruling affected mandatory sentencing lawsin 28 states and the federal government. Statesinconsistently interpreted Miller’s retroactivity. SupremeCourts in fourteen states ruled that Miller appliedretroactively14 while those of seven other states ruledthat Miller was not retroactive.15 In addition, California,Delaware, Nebraska, Nevada, North Carolina, andWyoming passed sentencing legislation for peopleunder 18 that applied retroactively as of 2014.16The question was settled by the U.S. Supreme Court inthe case of 68-year old Henry Montgomery17, who hadbeen imprisoned in Louisiana with no chance of parolesince 1963 and called a “model member of the prisoncommunity.”18 Justice Kennedy, writing for a 6-3 majority,noted that the Court in Roper, Graham, and Miller foundthat “children are constitutionally different from adultsin their level of culpability.”19 Moreover, the severestpunishment must be reserved “for the rarest of juvenileoffenders, those whose crimes reflect permanentincorrigibility.”20States can remedy the unconstitutionality of mandatoryjuvenile life without parole sentences by permittingparole hearings rather than resentencing theapproximately 2,100 people whose life sentences wereissued mandatorily.21,22JONES V. MISSISSIPPI 593 U.S. (2021)Brett Jones is among the thousands of people whowere eligible to apply for a new sentence followingMiller and Montgomery. Despite the progress he hadattained while imprisoned,23 the state of Mississippireissued his life-with-parole sentence in 2015, whichJones challenged because there had been no findingof “permanent incorrigibility.” Writing on behalf of a 6-3majority, Associate Justice Brett Kavanaugh upheldMiller and Montgomery’s requirement that “youthmatters in sentencing” (as such, mandatory life withoutparole sentences remain unconstitutional for youth),but also held that a separate and specific factual findingof “permanent incorrigibility” was not required tosentence a person who was under 18 at the time oftheir offense to life without parole.24LEGISLATIVE RESPONSES TO JLWOPSince 2012, 32 states and the District of Columbia havechanged their laws for people under 18 convicted ofhomicide, mostly by banning life without parole forpeople under 18, but also eliminating life without parolefor felony murder or re-writing penalties that were struckdown by Graham. Twenty-five of the 32 reforms, plusthat of the District of Columbia, banned life withoutparole for people under 18; the other seven stateslimited its application. All but five of the states thatbanned life without parole for people under 18 hadpreviously required it in the same circumstances.These new laws provide mandatory minimums rangingThe Sentencing Project 1705 DeSales Street NW, 8th Floor Washington, D.C. 20036 sentencingproject.org3

POLICY BRIEF: JUVENILE LIFE WITHOUT PAROLEfrom a chance of parole after 15 years (as in Nevadaand West Virginia) to 40 years (as in Nebraska). Twentyfive states still allow life without parole as a sentencingoption for juveniles.In most states, the question of virtual life sentences– a term of years that exceeds life expectancy but notlife without parole – has yet to be addressed. There are1,716 people serving such lengthy terms, such as BobbyBostic of Missouri, hypothetically parole-eligible at age112 for offenses committed at age 16.25PEOPLE SERVING JUVENILE LIFEWITHOUT PAROLE SENTENCESThirty-one states and the District of Columbia do nothave any prisoners serving life without parole for crimescommitted as juveniles, either due to laws prohibitingthe sentence or because there are no individuals servingthe sentence at this time.CHILDHOOD EXPERIENCESThe life experiences of those sentenced to life asjuveniles varies, but they are often marked by verydifficult upbringings with frequent exposure to violence;they were often victims of abuse themselves. JusticeKagan, in Miller, ruled that Alabama and Arkansas erredbecause a mandatory sentencing structure does not“tak[e] into account the family and home environment.”26The petitioners in those cases, Kuntrell Jackson andEvan Miller, both 14 at the time of their crimes, grewup in highly unstable homes. Evan Miller was a troubledchild; he attempted suicide four times, starting at age6.27 Kuntrell Jackson’s family life was “immers[ed] inviolence: Both his mother and his grandmother hadpreviously shot other individuals.”28 His mother and abrother were sent to prison. The defendant in Graham,Terrance Graham, had parents who were addicted tocrack cocaine.29 Similarly, in Jones, Justice Sotomayor’sdissent noted that “Brett Jones was the victim ofviolence and neglect that he was too young to escape.”30In 2012, The Sentencing Project released findings froma survey of people sentenced to life in prison as juvenilesand found the defendants in the above cases were notunusual.31 79% witnessed violence in their homes regularly 32% grew up in public housing Fewer than half were attending school at the time oftheir offense 47% were physically abused 80% of girls reported histories of physical abuse and77% of girls reported histories of sexual abuseRACIAL DISPARITIESRacial disparities plague the imposition of JLWOPsentences. Sixty-two percent of people serving JLWOP,among those for whom racial data are available, areAfrican American. While 23% of juvenile arrests formurder involve an African American suspected of killinga white person, 42% of JLWOP sentences are for anAfrican American convicted of this crime. White juvenileoffenders with African American victims are only abouthalf as likely (3.6%) to receive a JWLOP sentence astheir proportion of arrests for killing an African American(6.4%).32COST OF LIFE SENTENCESAside from important justice considerations, thefinancial cost of JLWOP sentences is significant. A lifesentence issued to a juvenile is designed to last longerthan a life sentence issued to an older defendant.Housing juveniles for a life sentence requires decadesof public expenditures. Nationally, it costs over 33,000per year to house an average prisoner. This cost roughlydoubles when that person is over 50.33 Therefore, a50-year sentence for a 16-year old will cost upwardsof 2.25 million.WHAT MAKES YOUTH DIFFERENT?In amici briefs written on behalf of the defendants inRoper, Graham, Miller, and Montgomery organizationsrepresenting health professionals, such as the AmericanAcademy of Child Adolescent Psychiatry and theAmerican Psychological Association, explained currentresearch on immature brains. In Miller, Justice Kagannoted that adolescence is marked by “immaturity,impetuosity, and failure to appreciate risks andThe Sentencing Project 1705 DeSales Street NW, 8th Floor Washington, D.C. 20036 sentencingproject.org4

POLICY BRIEF: JUVENILE LIFE WITHOUT PAROLEconsequences,” all factors that limit an adolescent’sability to make sound judgments. Justice Kagan citedGraham and J. D. B. v. North Carolina34 in noting thatjuvenile defendants are at a substantial disadvantagein criminal proceedings; they are less able than adultsto assist in their own defenses (working constructivelywith counsel) and they are likely to respond poorly tothe high pressures of interrogation.Even before Roper, states routinely recognizeddifferences between juveniles and adults in othercontexts. Almost every state prohibits juveniles fromvoting, buying cigarettes and alcohol, serving on juries,and getting married without parental consent. Teenagers’drivers licenses are typically restricted through age 18.The Graham decision emphasized the importance ofgiving juvenile offenders a chance to becomerehabilitated. These individuals have a substantialcapacity for rehabilitation, but many states deny thisopportunity: approximately 62% of people sentencedto life without parole as juveniles reported notparticipating in prison programs35 in large part due tostate prison policies that prohibit their participation orlimited program availability. They typically receive fewerrehabilitative services than others in prison.36MOMENTUM FOR REFORMUnder current Supreme Court precedent, curbs onjuvenile life without parole sentences do not guaranteerelease. Rather, Supreme court holdings and the reformspassed in response to those holdings by statelegislatures provide an opportunity for individualizedreview before a parole board or a judge for a newsentence, taking into consideration the uniquecircumstances of each defendant.The Sentencing Project supports a 20-year maximumsentence for nearly all individuals convicted of crimes.37This recommendation recognizes that the age of massincarceration in America led to extreme and overly harshsentences that are often unjust and counterproductiveto public safety. It applies to all people in prison, notonly those sentenced in their youth. Some recentreforms are beginning to align with this recommendationas states recognize that extreme sentences areoutdated, unnecessary and inhumane. For example,both West Virginia38 and the District of Columbia39 offeropportunities for release after 15 years with a parolehearing or a chance to apply to a court for a newsentence, respectively. Maryland, Nevada, New Jersey,and Virginia allow for the possibility of release after 20years. All incarceration should further the goals ofrehabilitation and reintegration.In Montgomery, the Court ruled that “allowing thoseoffenders to be considered for parole ensures thatjuveniles whose crimes reflected only transientimmaturity – and who have since matured – will notbe forced to serve a disproportionate sentence inviolation of the 8th Amendment.”40The District of Columbia41 and Washington State42 haveextended Miller’s guidance to people under age 25 and21, respectively, with the understanding that older andyounger adolescents alike should not be sentenced todie in prison. Additional legislation for people under 21has progressed elsewhere.In many other countries the period before a mandatedsentencing review is 10 to 15 years, and 10 years priorto a second look is recommended by the American LawInstitute’s Model Penal Code.43 If adequate rehabilitationhas not occurred during these years in prison, as decidedby experts, the individual may remain in prison and theircase should be reviewed again in another few years.Nor is it appropriate to eliminate life sentences in nameonly, replacing them with excessively lengthy prisonterms that can reasonably expected to last for anoffender’s entire life. There is mounting support forsuch reform in select states. Motivated by the Millerdecision, the state of California (previously home toone of the largest populations of JLWOP defendants)now affords prisoners a meaningful chance at paroleafter 15 to 25 years if their crime occurred when theywere a juvenile. Reforms are underway in other statesas well. Sentences that close the door on rehabilitationand second chances are cruel and misguided.The Sentencing Project 1705 DeSales Street NW, 8th Floor Washington, D.C. 20036 sentencingproject.org5

POLICY BRIEF: JUVENILE LIFE WITHOUT lis, A. (2021, Feb. 17). No End In Sight: America’s EnduringReliance on Life Imprisonment. The Sentencing Project.Additional notes available on file.Montgomery v. Louisiana, 136 S.Ct. 718, 736 (2016).Roper v. Simmons, 543 U.S. 551, 569 (2005).Roper at 560.Death Penalty Information Center. U. S. Supreme Court:Roper v. Simmons, No. 03-633Death Penalty Information Center. Facts About the DeathPenalty.Graham at 2024.In Graham and Roper, the Court also pointed to theoverwhelming international consensus against the harshestpunishments.Kennedy v. Louisiana, 554 U.S. 407 (2008).Graham at 2021.Graham at 2028.Nellis, A. (2017, May 3). Still life: America’s increasing use oflife and long-term sentences. The Sentencing Project. p. 17.Miller at 2465.Arkansas, Connecticut, Florida, Illinois, Iowa,Massachusetts,Mississippi, Nebraska, New Hampshire, New Jersey, Ohio,South Carolina, Texas, and Wyoming.Alabama, Colorado, Louisiana, Michigan, Minnesota,Montana, and Pennsylvania.Rovner, J. (2014, June 14). Slow to act: State responses to2012 Supreme Court mandate on life without parole. TheSentencing Project.Montgomery v. Louisiana, petition 14-280.Montgomery at 738.Montgomery at 733.Montgomery at 734.Montgomery at 736.22 Gately, G. (2015, March 23). Supreme Court Agrees to HearMiller Retroactivity Issue. Juvenile Justice InformationExchange, citing the Juvenile Law Center.23 See Brief of Petitioner, Jones v. Mississippi, No. 18-1259(June 5, 2020).24 Jones, slip. op. at 6.25 Bostic, B. (2020, April 30). A Juvenile Lifer Finds Peace in thePrison Garden. The Marshall Project.26 Miller at 2468.27 Miller at 2462.28 Miller at 2468.29 Graham at 2018.30 Jones v. Mississippi, 593 U.S. (2021) (Sotomoyor,dissenting) (slip op. at 18).31 Nellis, A. (2012). The lives of juvenile lifers: Findings from anational survey. The Sentencing Project.32 Nellis, A. (2012).33 Mai, C. and Subramanian, R. (2017). The price of prisons:Examining state spending trends, 2010-2015. Vera Institute ofJustice.34 J. D. B. v. North Carolina, 131 S.Ct. 2394 (2011).35 Nellis, A. (2012).36 Boone, B. (2015). Treating adults like children: Resentencingadult juvenile lifers after Miller v. Alabama. Minnesota LawReview, 99(3), 1159-1194.37 See Nellis, A. (2021), p. 5-6.38 West Virginia, HB 4210 (2014).39 District of Columbia, B22-255, later amended to includeyouth under the age of 25.40 Montgomery at 736.41 District of Columbia (2021). “Omnibus Public Safety andJustice Amendment Act of 2020.” (Previously B23-127.)42 In the Matter of the Personal Restraint of Kuris WilliamMonschke. (2021, March 11). Washington State.43 American Law Institute (2017). Model penal code:Sentencing: Final Draft. § 6.11AThis briefing paper was written by Josh Rovner, Senior AdvocacyAssociate at The Sentencing Project.Updated May 2021.1705 DeSales Street NW, 8th FloorWashington, D.C. 20036sentencingproject.orgThe Sentencing Project works for a fair and effective U.S. justicesystem by promoting reforms in sentencing policy, addressingunjust racial disparities and practices, and advocating foralternatives to incarceration.The Sentencing Project 1705 DeSales Street NW, 8th Floor Washington, D.C. 20036 sentencingproject.org6

POLIC BRIEF: JUVENILE LIFE WITHOUT PAROLE serving sentences of life without parole for crimes committed as juveniles, all of whom were convicted of homicide-related offenses. In 2012, deciding Miller and Jackson jointly, the U.S. Supreme Court held that, for juveniles, mandatory life without parole

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