INCORRIGIBLE STUDENTS: A CRIMINAL OXYMORON?

• Author: Lewry, Shannon

INTRODUCTION

Compulsory education laws and juvenile life sentences without the possibility of parole are fundamentally incompatible. Behind each state's compulsory education law, which often demands school attendance until the age of seventeen or eighteen, is an assumption that all children live in a state of dependency upon educators for their cognitive and social development, until they reach adulthood. Behind states' authorization of juvenile-life-without-parole sentences, in contrast, is an assumption that children under the age of eighteen are susceptible to "irreparable corruption" and "incorrigibility," such that no rehabilitative measure, educational program, or support system could possibly restore their potential to reenter society as free, productive members of a democracy. If youth education is compulsory, even for youths in prison, and a primary purpose of education is to prepare youths to be successful, active members of their communities, compulsory education laws and juvenile-life-without-parole sentences cannot rationally coexist. This Note suggests that youth advocates might be wise to capitalize on the conflict between education law and criminal law as they urge state legislatures to eliminate juvenile-life-without-parole sentences from state criminal codes.

The Note proceeds in two Parts. The remainder of the Introduction presents a closed door: the Supreme Court's hesitancy, to date, to find juvenile-life-without-parole sentences unconstitutional under the Eighth Amendment. After exploring the contours of the closed Door, the Introduction turns to an open window: education law. This, I argue, may be wielded to attack the lawfulness of juvenile-life-without-parole sentences on wholly non-constitutional grounds. The Introduction concludes with remarks regarding this Note's relevance and timeliness. Part I tracks the Note's central argument, premise by premise, that state compulsory education laws and juvenile-life-without-parole sentences are wholly incompatible. Part II anticipates objections to the argument, responds, and attempts to fill any lingering logical gaps. I then conclude by suggesting contexts beyond the scope of this Note in which the relationship between compulsory education laws and prisoners' rights might prove useful.

1. The Door

   As of late 2017, it is not unconstitutional to impose a life sentence without the possibility of parole on a juvenile criminal defendant. (1) Although the Constitution requires states to reserve this sentence as punishment for youths whose crimes reflect "irreparable corruption" (2)--categorically excluding all nonhomicide defendants (3)--judges and juries in most states still have authority to impose life-without-parole sentences on juvenile homicide defendants at their discretion. (4)

   The Court's recent discussions of juvenile-life-without-parole ("JLWOP") sentences has revealed, or at least reiterated, rich judicial commentary on juvenile culpability, maturity, and development. Justice Kennedy's admonishment of mandatory JLWOP sentences in Miller v. Alabama, for example, turned on the "distinctive attributes of youth...[:] immaturity, recklessness, and impetuosity," among others. (5) Miller highlighted the plurality's intuitive notion that "incorrigibility is inconsistent with youth." (6) While this sentiment alone could serve as grounds for holding that JLWOP sentences are entirely unconstitutional under the Eighth Amendment, not just for nonhomicide defendants, the broader issue of JLWOP's constitutionality has not yet been squarely presented to the Court. At the very least, it is evident that the Court finds in juvenile defendants "greater prospects for reform" than in their adult counterparts. (7)

   The body of juvenile punishment cases arising under the Eighth Amendment, which "turn[ ] on the characteristics of the offender," has produced a set of "categorical rules... for defendants who committed their crimes before the age of 18." (8) The Court uses a two-part test to determine whether it should establish a new categorical rule governing criminal sentencing practices under the Eighth Amendment. First, the Court asks "whether there is a national consensus against the sentencing practice at issue"; this is an objective inquiry. (9) Second, the Court asks whether, guided by "its own independent judgment" and by the principles of stare decisis, the punishment in issue seems cruel and unusual. (10) Within this framework, the Court has categorically prohibited mandatory JLWOP sentences (Miller v. Alabama), (11) JLWOP sentences for youths who commit crimes other than homicide (Graham v. Florida), (12) and juvenile capital punishment (Roper v. Simmons). (13)

   It is quite possible, considering the trend of pushback against harsh criminal sentences for juveniles reflected in these cases, that the Court would adopt a categorical rule against all JLWOP sentences if squarely presented with this issue. Thirty states currently authorize JLWOP sentences. (14) Yet, "just three--Pennsylvania, Michigan, and Louisiana--account for about two-thirds of JLWOP sentences," (15) and California, "home to one of the largest populations of JLWOP defendants," recently responded to Miller with sweeping reforms to its juvenile sentencing laws. (16) Moreover, abundant research suggests that juveniles are simply unfit to receive permanent prison sentences. (17) Given the overwhelming evidence that children and adolescents do not fully mature or formulate their "personalities" until at least the age of eighteen, there is a consensus, at least among members of the American Psychological and American Psychiatric Associations, that "predictions cannot be made with any accuracy" as to juvenile defendants' likelihood of recidivism. (18)

   Perhaps this evidence would be sufficient to satisfy the first prong of the Court's Eighth Amendment categorical rule test ("national consensus against the sentencing practice at issue"). (19) Perhaps the justices could also reach a consensus that JLWOP is subjectively cruel, drawing on language from Graham, Miller, and Montgomery, to satisfy the second prong of the test. State courts have recognized the Court's momentum in this direction; death to JLWOP under the Eighth Amendment might well be on the horizon. (20)

   Nonetheless, until a proper JLWOP case reaches the Supreme Court, some juvenile homicide defendants will continue to face life imprisonment for their crimes without the possibility of parole. (21) And even if a proper case does make its way to Washington, there is no guarantee that the Court will adopt a categorical rule against JLWOP. The two-part Eighth Amendment categorical-rule test is a formidable obstacle to abrogating the states' right to sentence criminals as they see fit, made even more formidable by the fact that four justices dissented from Justice Kagan's plurality opinion in Miller. (22) A prosecuting state attorney could persuasively argue, if the proper JLWOP case arose, that it is the province of the states--the "principal guardians of community safety"--to determine the lawfulness of JLWOP, not the Court. (23) The Chief Justice argued as much in his dissent in Miller, perhaps in a final effort to slow the Court's Eighth Amendment rulemaking momentum toward eliminating JLWOP altogether. (24)

   It is also entirely possible that within the next decade, legislatures in states currently issuing JLWOP sentences will choose to independently eliminate these sentences from their criminal codes. (25) Nationwide, there is a strong push among activists to eliminate JLWOP; (26) even states such as California and Louisiana have taken bold legislative steps that reflect this trend. (27) If state legislatures fail to act, perhaps sympathetic state governors could begin exercising executive clemency power to reduce JLWOP sentences at the urging of children's rights advocates across the country. (28)

   The foregoing review of JLWOP's legal status should demonstrate that, in the thirty states that still authorize it, JLWOP's fate is at best doomed and at worst uncertain. (29) It is worth asking: are these good odds good enough for juvenile defendants on trial for homicide? Arguably, no. (30)

2. The Window

   Fortunately, JLWOP's fate might not rest entirely on the Court's adoption of a new categorical Eighth Amendment rule. Education law could serve as a window--a loophole, of sorts--through which state legislatures or courts might justify eliminating JLWOP from state criminal codes while sidestepping Eighth Amendment categorical rule requirements altogether. The argument that compulsory education laws and JLWOP sentences are incompatible would proceed as follows.

   The following premises are well established (31): (A) states require children to attend school until they reach a certain statutory age; (B) among states'justifications for imposing compulsory education requirements are the fundamental goals public education is designed to achieve--preparing citizens for life as productive members of their communities, and preparing them to participate actively in a democratic society; (C) life-without-parole sentences permanently and irreversibly deprive juvenile defendants of the opportunity to become productive members of their communities or to participate actively in their own democracy. The sum of these premises suggests that JLWOP recipients, who enter prison while under the umbrella of state compulsory education laws, are required by law to prepare for futures of which the state permanently deprives them. This result is unsatisfactory. It is arguable, under this framework, that JLWOP sentences should not, and cannot, logically be imposed upon school-age children.

   Although JLWOP is legal in most states, juvenile defendants in Pennsylvania, Michigan, and Louisiana account for approximately two-thirds of the nation'sJLWOP sentence recipients, and California is home to one of the nation's largest JLWOP populations. (32) This Note...