Juvenile life without parole post-Miller: the long, treacherous road towards a categorical rule.

• Author: Craig, Sean

1. INTRODUCING THE "NEW" EIGHTH AMENDMENT

   For the better part of a decade, life without the possibility of parole ("LWOP") has been the United States' harshest constitutional penalty for juvenile crimes. (1) Recently, the Supreme Court has begun to subject juvenile LWOP sentences to significant Eighth Amendment scrutiny. (2) In Graham v. Florida, (3) the Court held that imposing LWOP for juvenile acts not amounting to homicide violates the Cruel and Unusual Punishments Clause. (4) Juveniles, Justice Kennedy explained, "are less deserving of the most severe punishments" because the realities of childhood and lack of maturity in adolescence make them categorically less culpable than adults for the same conduct. (5)

   Notwithstanding its seemingly universal language about juvenile culpability, Graham's insistence on distinguishing between homicide and non-homicide crimes meant that, by the summer of 2012, there were still roughly 2,500 prisoners in the United States serving LWOP for homicides they committed as juveniles. (6) Miller v. Alabama, (7) decided in June 2012, gave some of these prisoners a measure of hope. In Miller, the Court announced "children are different" (8) and, consequently, the Eighth Amendment prohibits mandatory LWOP for juvenile homicide offenders. (9) Writing for a 5-4 majority, Justice Kagan drew a direct analogy between juvenile LWOP and the death penalty. Justice Kagan concluded that juvenile LWOP sentences, like death sentences, may not be imposed without an individualized sentencing determination. (10)

   In the wake of Miller and Graham, some commentators have suggested that we now live under a "new" Eighth Amendment, (11) one where judicial scrutiny has finally slipped the shackles of the "death is different" doctrine and where proportionality could have serious teeth in non-capital cases. (12) Certainly, these cases give cause for some optimism. (13) Prior to Graham, the Supreme Court had never categorically invalidated a sentence other than death under the Cruel and Unusual Punishments Clause. (14) In just over two years, the Court did it twice. (15)

   At the same time, Miller's reasoning should give pause to those seeking to eradicate juvenile LWOP entirely and to bring the United States in line with international standards of juvenile justice. Like Graham, Miller presented a chance for the Court to unveil the blanket prohibition on juvenile LWOP many advocates seek. And, again, it became a chance not taken. (16) Instead, the Miller Court stepped away from the traditional Eighth Amendment decency analysis, entirely neglected the international community, and lashed juvenile LWOP to the death-penalty mast. In so doing, the Court signaled that a comprehensive Eighth Amendment bar against all juvenile LWOP sentences is still a long way off.

   This Note attempts to situate Miller within the Court's recent juvenile sentencing jurisprudence and predict its trajectory. Part II tells a condensed story of United States juvenile sentencing law and traces its customary decency analysis through the Court's recent decisions. Part III surveys the Miller decision and analyzes its reasoning. Part IV explores Miller's wholesale omission of international law and opinion, arguing that the Court could have (and perhaps should have) relied upon an emerging jus cogens norm against juvenile LWOP to strike down all such sentences. Finally, Part V discusses the possible ramifications of Miller's holding and reasoning for efforts to abolish juvenile LWOP. This Note reluctantly concludes that advocates may want to devote less time and energy to the constitutional litigation that has served them so well up to this point.

2. SENTENCING JUVENILES IN AMERICA: AN ABRIDGED HISTORY

   To discuss the development of juvenile sentencing in the United States it is necessary to have a two-part conversation. The first part deals with decisions that occur before any criminal charges are filed, and asks how states can escape the juvenile justice systems they created and can impose adult penalties on juvenile offenders. The second part deals with how the courts evaluate the constitutionality of juvenile sentences after sentencing.

   1. The Rise and Ramifications of Juvenile Courts

      For roughly the first half of the nation's history, there was no separate system of juvenile justice in the United States. (17) Rather, the states universally tried children and teens in the same courts as adults and theoretically exposed them to the same penalties. (18) According to Craig S. Lerner, however, children under fourteen were often shielded from criminal liability by a rebuttable presumption that they lacked the capacity to act with the requisite mens rea. (19) Prosecutors could overcome the presumption with a showing of sufficient malice, applying the Latin maxim malitia supplet cetatem (20) (literally, "malice supplies age" (21)). The question of what weight to give to the offender's youth was determined by the sentencer on a case-by-case basis. (22)

      With the advent of juvenile courts, came development of distinct juvenile punishment. Some punishments, such as detention in juvenile facilities, are analogous to adult criminal penalties. (23) Many juvenile courts, however, sentence juveniles with kid gloves, employing creative alternatives to institutional detention, such as: group therapy, (24) halfway houses, (25) and limiting the ability of the delinquent juvenile to associate with certain persons. (26) Philosophical opposition to lengthy detention is so strong that when courts decide to commit an offender to a juvenile institution, the Uniform Juvenile Court Act (27) limits individual terms to two years, renewable only after a hearing. (28)

      Following the explosion of juvenile, violent crime rates in the 1980s and 1990s, almost all states sought to impose harsher criminal penalties on exceptionally violent youths. (29) The response to these so-called "superpredators" (30) was a proliferation of statutes permitting them to be prosecuted as adults. (31) While these state laws operate in different ways, (32) they all act to divest juvenile courts of jurisdiction and expose youths to adult sentencing schemes (33) with many states adopting mandatory sentencing around the same time as these jurisdictional statutes. (34) Indeed, in many states it is still possible for juveniles charged with violent offenses to be mandatorily tried in adult court and to receive mandatory adult penalties. (35) Permitting youths to ride this fast track to states' harshest criminal penalties can pervert the entire concept of juvenile justice. (36)

   2. Evolving Standards of Decency

      The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (37) The Court currently understands the Cruel and Unusual Punishments Clause to contain a "narrow proportionality principle." (38) That is, not every sentence that seems excessively harsh qualifies as cruel and unusual. Traditionally, the Court has employed a bifurcated mode of proportionality analysis, applying much stricter rules for capital sentences--leading to the axiom, "death is different." (39) By contrast, when facing a term of incarceration, an offender must show that her sentence is "grossly disproportionate" to implicate Eighth Amendment protections. (40)

      In Trop v. Dulles, (41) a plurality of the Court first announced the test for whether a death sentence is unconstitutionally disproportionate--whether that sentence offends "the evolving standards of decency that mark the progress of a maturing society." (42) The relevant, evolving standards are those of the present. (43) Present standards are demonstrated by objective evidence, to the greatest extent possible. (44) To identify these standards, the Court developed a two-pronged mode of analysis for death penalty cases. First, the Court looks for evidence of national consensus against the punishment in domestic "legislative enactments and state practice." (45) In light of this evidence, the Court then makes "its own independent judgment whether the punishment in question violates the Constitution." (46)

      1. The Decline of Objective Evidence of National Consensus

         In recent years, the Court has applied "evolving standards of decency" to strike down more juvenile sentencing schemes. At the same time, it has encountered increasingly weak evidence of national consensus against those schemes, at least in terms of legislation. In Thompson v. Oklahoma, (47) late 1980s tough-on-crime boom case, the Court held that states may not execute juveniles for crimes committed before the offender turned sixteen. (48) The Thompson Court reviewed a death sentence that was to be imposed on fifteen-year-old William Thompson for the murder of his brother-in-law. (49) Writing for the majority, Justice Stevens remarked, "there are differences which must be accommodated in determining the rights and duties of children as compared with those of adults." (50) Justice Stevens observed that states almost universally treat juveniles fifteen and younger differently than they treat adults. (51) More directly, he found that no state that set a minimum age for death-penalty eligibility permitted it for juveniles younger than sixteen. (52)

         Fourteen years after Thompson, the Court decided Atkins v. Virginia, (53) and categorically banned the death penalty for developmentally disabled offenders. (54) Donald Atkins, while legally an adult, had an IQ of fifty-nine (55) and possessed "the mental age of a child between the ages of 9 and 12." (56) For objective legislative evidence, Atkins relied both on the raw number of states that forbade capital punishment for the developmentally disabled, and the rapidly expanding list of states moving their laws in that direction. (57) In total, thirty-two states and the federal government refused to execute developmentally disabled offenders at that time, (58) seventeen states...