NO CHILD LEFT BEHIND BARS: APPLYING THE PRINCIPLES OF STRICT SCRUTINY WHEN SENTENCING JUVENILES TRIED AS ADULTS.

• Author: Chu, Max

Table of Contents Introduction 1766 I. State of Juvenile Sentencing Today 1768 A. Mandatory Minimum Sentences for Juveniles 1768 B. Recent Supreme Court Jurisprudence 1769 C. The Inadequacy of Eighth Amendment Protections 1771 II. Overview of Transfer Laws and HB 744 1773 A. Overview of Transfer Laws 1773 B. Background of HB 744 1774 III. Carolene Products' Footnote Four and Suspect Classes 1775 A. History of Suspect Classifications 1776 B. Arguments for an Expansion of Suspect or Quasi-Suspect Classifications 1778 C. Juvenile Offenders as a Suspect Class 1780 1. Juvenile Offenders Have Faced Historical Discrimination 1781 2. Juvenile Offenders Experience Political Powerlessness 1783 3. Juvenile Offenders Share Immutable Traits 1787 IV. Applying Strict Scrutiny During Juvenile Sentencing 1789 A. Determining a Compelling Governmental Interest 1790 B. Determining a Narrowly Tailored Sentence 1792 C. Appellate Review of Sentences Under HB 744 1794 Conclusion 1795 INTRODUCTION

"Our most important task as a nation is to make sure all our young people can achieve their dreams." (1) These words, as part of a strong message from President Barack Obama, came with a call on the United States to create better futures for children across the country. (2) Indeed, such a call to action by the President was not unfounded.

Beginning in the 1990s, the emergence of the "tough on crime" era resulted in years of draconian punishments that left many young people behind bars, robbing them of their futures. (3) The "tough on crime" era started as a direct result of the widespread fear that violent juvenile crime rates were on the rise. (4) This fear prompted state legislatures to enact harsh sentencing laws that instituted mandatory minimum and life imprisonment without parole (LWOP) sentences on juveniles. (5) At the same time, states across the country were passing transfer laws that mandated or allowed prosecutors to try juveniles as adults, opening the door for these children to be prosecuted in adult criminal courts. (6) Although these sentencing laws were passed over twenty years ago, their legacy continues today.

Unfortunately, only a few states have addressed the intersection between mandatory minimum sentences and juvenile transfers to adult criminal courts. (7) The Commonwealth of Virginia was the first in the nation to pass legislation that provides judges with the discretion to veer away from the mandatory minimum sentence and to impose trauma-informed and age-appropriate sentences for juvenile offenders convicted of felonies and tried as adults. (8) Although Virginia's new law, House Bill 744 (HB 744), is a pioneering step in the right direction, (9) this Note argues that the law may now provide judges with too much discretion. In other words, HB 744 alone, without more guidance, does not go far enough to protect the rights of juvenile offenders.

Therefore, this Note proposes a new judicial policy to guide judges in Virginia, before they exercise their discretion to sentence a juvenile offender in adult court. Judges operating under the proposed standard must adopt the principles of strict scrutiny when deciding the individual sentence of a juvenile offender tried as an adult. Accordingly, judges must ensure that their sentences are narrowly tailored to serve a compelling governmental interest. (10) This Note argues that juvenile offenders are a suspect class under Carolene Products' Footnote Four, (11) and thereby deserve such heightened scrutiny (12) over the judicial review of laws that affect their rights under the Equal Protection Clause of the Fourteenth Amendment. (13) Simply put, if judges fail to abide by the principles of strict scrutiny when deciding upon a sentence, appellate judges must strike the sentence down as unconstitutional if the sentence is subsequently appealed.

This Note proceeds in four parts. Part I provides a brief background on the current state of juvenile sentencing in the United States. Specifically, this Part discusses mandatory minimum sentences for juvenile offenders and the Supreme Court's recent jurisprudence over the issue. Folded into this Part is an argument about why the Supreme Court's invocation of the Eighth Amendment alone is not enough to protect the rights of juvenile offenders. Part II provides a brief overview of transfer laws across the country and introduces HB 744 in greater detail. This Part then explains how the bill changes current Virginia law. Part III introduces Carotene Products' Footnote Four and explores how courts apply the principles of the historic footnote. This Part then explains why juvenile offenders fall under Footnote Four's conception of a protected class that is awarded strict scrutiny. Lastly, Part IV discusses how the principles of strict scrutiny may be applied when judges exercise their discretion under HB 744 and how appellate judges should review sentences under this Note's proposed standard.

1. STATE OF JUVENILE SENTENCING TODAY

   This Part first provides a brief overview of mandatory minimum sentences for juveniles. Next, a discussion of recent Supreme Court cases illustrates the Court's modern attempts to reform the state of juvenile sentencing. The final Section examines why the Eighth Amendment alone is inadequate for protecting juveniles tried as adults.

   1. Mandatory Minimum Sentences for Juveniles

      HB 744 is a trailblazing piece of legislation because it allows judges in Virginia to veer away from the mandatory minimum when sentencing a juvenile in adult court. (14) A mandatory minimum sentence is the least amount of time an individual convicted of a specific crime can be sentenced to. (15) In other words, a mandatory minimum sentence removes most judicial discretion and mandates that the law alone determines the punishment that the individual receives. (16) While mandatory minimum sentences were devised to create a fairer justice system, they have, in contrast, led to more inequitable sentences.' (7)

      According to a fifty-state survey on juvenile sentencing conducted in 2017, thirty-nine states still permit mandatory minimum sentences of some form for juvenile homicide offenders. (18) By far, the most severe mandatory minimum available is mandatory LWOP. (19) The high number of people" (0) serving juvenile LWOP sentences has also proven to be costly. (21) Fortunately, these costs have been somewhat mitigated by a string of Supreme Court cases beginning in 2005 and culminating in 2016 with the Court's ruling in Montgomery v. Louisiana, in which the Court invalidated all existing juvenile LWOP sentences that were imposed as a result of a mandatory minimum statute. (22)

   2. Recent Supreme Court Jurisprudence

      Over the past few years, the Supreme Court has instituted much-needed juvenile sentencing reform on its own. Recent cases have invalidated state laws that were found to be too harsh on juvenile offenders. (23) Notably, the Court began to recognize the differences in culpability between juvenile and adult offenders and the need for these differences to be considered during sentencing. (24) The Court also reinforced the importance of judicial discretion and individualized sentencing in striking down mandatory LWOP sentences for juvenile offenders. (25)

      Three Supreme Court cases in particular were chiefly responsible for the "juvenile justice revolution in America." (26) Professor Cara Drinan refers to these cases as "the Miller trilogy." (27) First, in Roper v. Simmons, the Court proscribed states from imposing the death penalty on offenders under the age of eighteen. (28) In reaching this landmark decision, the Court held that juveniles, as compared to adults, (i) possess an underdeveloped sense of responsibility, (ii) are more vulnerable to negative influences and external pressures, and (iii) lack fully developed characters and personality traits. (29) Scholars refer to these differences in culpability as the "diminished responsibility rationale." (30)

      Five years later, in Graham v. Florida, the Court held that it was unconstitutional for states to impose LWOP sentences on juvenile offenders convicted of non-homicide offenses. (31) Graham further emphasized that children are assumed to have reduced culpability even when their crimes involve no intent to take the life of another. (32) In Miller v. Alabama, the Court reaffirmed that "children are constitutionally different from adults for purposes of sentencing" (33) and declared as unconstitutional mandatory LWOP sentences for juvenile offenders convicted of homicide. (34) The Court found that the lack of discretion associated with mandatory LWOP sentences prevents judges from considering a juvenile's "immaturity, impetuosity, and failure to appreciate risks and consequences,"" (55) thus "pos[ing] too great a risk of disproportionate punishment."' (36) More importantly, the Miller Court unequivocally declared that LWOP sentences for juveniles should be "uncommon." (37) In summary, it is implicit from the Miller trilogy that judges must engage in a "proportionality analysis" before deciding upon a juvenile's sentence. (38) A few years after Miller, the Court's decision in Montgomery v. Louisiana required states to conduct individualized mitigation inquiries before LWOP sentences could be imposed. (39) However, the ruling only requires states to hold sentencing hearings to "separate those juveniles who may be sentenced to life without parole from those who may not." (40) In other words, these hearings merely identify the juveniles "whose crimes reflect [the] permanent incorrigibility" that warrants a life sentence. (41) Such safeguards are undoubtedly crucial for protecting those children facing life sentences. But, they do not solve the more widespread problem of mandatory minimum sentences for juveniles tried as adults. (42)

   3. The Inadequacy of Eighth Amendment Protections

      There is no doubt that the Miller trilogy prompted states across the country to reevaluate their own...