JUVENILE LIFE WITHOUT PAROLE IN NORTH CAROLINA.

• Author: Finholt, Ben

INTRODUCTION I. THE NORTH CAROLINA ADOPTION OF LWOP AND JLWOP A. North Carolina's Adoption of Juvenile Life Without Parole B. Adolescent Brain Science and U.S. Supreme Court Rulings C. The North Carolina "Miller Fix" D. Post-Miller Litigation E. Felony Murder and State v. Seam II. ANALYSIS OF NORTH CAROLINA JLWOP SENTENCING DATA, 1994-2018 A. Trends in JLWOP Sentencing B. Race and Juvenile Homicide Rates C. County-Level Patterns D. Post-Miller Reversals E. Inertia Effect in JLWOP Sentencing III. COST AND IMPLICATIONS OF MAINTAINING JLWOP IN NORTH CAROLINA A. Costs of JLWOP B. Legislative and Policy Changes to JLWOP CONCLUSION APPENDIX A: JLWOP SENTENCES IN NORTH CAROLINA APPENDIX B: LOGIT RESULTS FOR COUNTY-PREDICTORS OF JLWOP SENTENCES APPENDIX C: LOGIT RESULTS ON THE INERTIA EFFECT IN JLWOP SENTENCING INTRODUCTION

Life without parole is "an especially harsh punishment for a juvenile," as the U.S. Supreme Court noted in Graham v. Florida. (2) Ruling on the Eighth Amendment's ban on cruel and unusual punishment, the Court emphasized that "a 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only." (3) Indeed, the United States is the only country in the world that imposes juvenile life without parole sentences; such sentences are banned in every other country and prohibited by human rights treaties. (4) In the United States, there are over two thousand people still serving life without parole (LWOP) sentences for homicides they committed as juveniles. (5) Many of these individuals were sentenced during a surge in LWOP sentencing in the 1990s. (6) In the past decade, however, following several Supreme Court rulings which culminated in finding mandatory sentences of LWOP for juvenile offenders unconstitutional, juvenile LWOP (JLWOP) sentencing has declined. (7) Twenty-three states and the District of Columbia currently do not permit LWOP sentences for juvenile offenders. (8) Additionally, many states have established methods for periodic review of sentences for persons who had been sentenced to LWOP for juvenile offenses. (9) This Article aims to empirically assess the rise and then the fall in JLWOP sentencing in a leading sentencing state, North Carolina, to better understand these trends and their implications. (10)

The sentence of LWOP was authorized in only seven states prior to 1971. (11) The use of LWOP rose as the viability of the death penalty was threatened in the mid-1970s, (12) but the sentence did not become ubiquitous until the 1990s. (13) The federal government and many states enacted new statutes limiting or eliminating parole during this time period. (14) In the middle of the 1990s, state and federal lawmakers became concerned with a perception that juvenile "superpredators" were disproportionately responsible for serious crimes, and they adopted a range of measures to try more juveniles in adult criminal courts. (15) As a result, states enacted statutes permitting--and prosecutors increasingly sought--LWOP sentences for juveniles. (16) A small subset of states have long accounted for the vast majority of those JLWOP sentences; nine states have accounted for more than 80% of such sentences. (17) What is less understood is whether county-level patterns and local behaviors within states drive JLWOP sentencing.

In this Article, we examine JLWOP sentencing in North Carolina in order to better understand the patterns in sentencing and the costs of such sentences. We focus on North Carolina as a case study because, as we describe in Part I, North Carolina is one of the nine states that have imposed the majority of JLWOP sentences in the U.S. Further, North Carolina continues to retain LWOP for juvenile offenders. (18) While LWOP is no longer mandatory as a result of 2012 legislation enacted following the U.S. Supreme Court's ruling in Miller v. Alabama, the lower-age-limit for sentencing an individual to LWOP for homicide in North Carolina is thirteen years old. (19) We describe the protracted litigation that can result from the appeals taken in these cases and the reversals, including in cases in which the defendant was not the shooter or where substantial mitigating evidence was presented on appeal. One striking figure is that over one third of the juveniles sentenced to LWOP, thirty-two individuals, were convicted under a felony murder theory. (20) For example, in the case of State v. Seam, a sixteen-year-old defendant rejected a plea. He was not the shooter, and the prosecution theory was felony murder. (21) After trial, the judge sentenced him to JLWOP, unlike the actual killer, who took a plea. (22) Post-Miller, the lower-court judge readily concluded that Seam should have his sentenced reduced, but two sets of hearings and three rounds of appeals ensued before the sentence was finally reduced to life with the possibility for parole. (23)

In Part II of this Article, we examine the cases of the ninety-four juveniles in North Carolina who were sentenced to JLWOP from 1994 to present. (24) Their ages at the time of the offense ranged from thirteen to seventeen. Of those, forty-eight are currently serving LWOP sentences (one more currently has a new trial pending). (25) These cases are detailed in Appendix A. Of those juvenile offenders, forty-five have so far been resentenced to non-LWOP sentences, largely pursuant to the post-Miller legislation in North Carolina. (26) We analyze these cases using several methods: we provide detailed descriptive information about these JLWOP cases, we analyze trends in sentencing and litigation, and we undertake regression analyses of county-level patterns. First, we describe how JLWOP sentencing has declined in North Carolina markedly since its highwater mark in the late 1990s; beginning in 2011, there have been either one or no such sentences each year. Second, we describe how these JLWOP sentences were highly concentrated in a handful of counties. Such county-level research has been conducted regarding death sentences in the United States, but not regarding LWOP sentencing. (27) Third, we describe the race of defendants sentenced to JLWOP, and how it correlates with the demographics of all juvenile homicide offenders in North Carolina. Fourth, we examine the procedural posture of pending cases that still await resentencing hearings under the post-Miller legislation. It is likely that many more of the remaining forty-four cases will result in non-LWOP sentences. Fifth, we employ a set of statistical analyses to explore the existence of an "inertia effect," to understand if the institutional memory of past JLWOP sentences predicts future JLWOP sentences.

In Part III, we conclude by examining the costs of continued use of JLWOP based on the evidence described in this Article, and by making estimates of future costs. We note the lack of recent or ongoing JLWOP sentencing, and the estimated cost of the hearings and litigation required by past JLWOP sentences. Millions of dollars are being spent on years of hearings and appeals--including in cases that are obviously not fit for such severe sentences, such as cases in which the defendant was not the shooter or presented substantial mitigating evidence. We ask whether it makes practical sense to retain JLWOP going forward, given what an unusual, geographically limited, and costly sentence it has become. In conclusion, we describe alternatives to the JLWOP regime of North Carolina, including the models adopted in states such as California, Virginia, and Wyoming--in which there is periodic review of lengthy sentences imposed on juvenile offenders. We also describe how more reasonable prosecution approaches, short of the enactment of new legislation, could address the defects in the current approach towards juvenile life without parole.

1. THE NORTH CAROLINA ADOPTION OF LWOP AND JLWOP

   1. NORTH CAROLINA'S ADOPTION OF JUVENILE LIFE WITHOUT PAROLE

      North Carolina originally adopted LWOP for adults and for juveniles in 1994 as part of the change from the prior sentencing scheme, termed "Fair Sentencing," to a new scheme termed "Structured Sentencing." (28) The new statute eliminated parole and defined all life sentences as "natural life" sentences with no possibility for parole. (29) The following year, the legislature also lowered the age for the transfer of juveniles to adult court for non-homicide offenses to the age of thirteen. (30) By taking these steps, North Carolina joined almost every state in adopting harsher and more adult punishments for juveniles in the mid-1990s. (31)

      The JLWOP statute was constitutionally challenged, including under the Eighth Amendment, and affirmed by the North Carolina Supreme Court. In its 1998 decision, State v. Green, the court held that JLWOP sentences under the Structured Sentencing statute were constitutional and a "reasonable" legislative response to crime rates. (32) The court also concluded that the crime in the case, committed by a thirteen-year-old, was "not the type attributable to or characteristic of a 'child.'" (33)

   2. ADOLESCENT BRAIN SCIENCE AND U.S. SUPREME COURT RULINGS

      While criminal laws have traditionally made sharp distinctions between the treatment of juvenile and adult offenders, a growing body of scientific research regarding adolescent brain development has established that development progresses well into a person's twenties and does not conclude when a person turns eighteen. Studies of human brain development have found that adolescents do not possess well-formed characters and are still developing the ability to make well-reasoned decisions. (34) Juveniles are more susceptible to impulse and to outside influences. (35)

      The U.S. Supreme Court emphasized this research in its 2005 ruling in Roper v. Simmons, finding that the Eighth Amendment barred the imposition of the death penalty on persons who were juveniles at the time of the offense. (36) The American Medical Association (AMA) filed an amicus...