The inbetweeners: standardizing juvenileness and recognizing emerging adulthood for sentencing purposes after Miller.

• Author: Holt, Kevin

1. Introduction

   The status of constitutional and criminal law regarding juvenile offenders has been in flux over the last decade and remains so. In recent years, children have gradually gained legal rights and protections, but many pressing and difficult issues still face juvenile offenders today. Throughout the history of juvenile jurisprudence, the protection of the child has fluctuated and has been largely state-dependent. Perhaps the most concerning situation is when a juvenile may be tried as an adult, or in some cases, must be tried as an adult. In such cases, a juvenile defendant is left to face the harsh adult criminal justice system. Previously, juveniles could even be sentenced to death or life without parole. If a juvenile defendant was tried and convicted as an adult, and the homicide statute dictated life without parole as the mandatory sentence, he would be sent to stay behind bars for the rest of his life--a more extreme sentence when imposed on a juvenile than on an adult.

   Fortunately, in June 2012, the United States Supreme Court decided Miller v. Alabama, (1) which represented progress in the Court's Eighth Amendment jurisprudence regarding juvenile offenders. (2) In Miller, the Court held mandatory life without parole for juvenile offenders to be unconstitutional. (3) Following its reasoning set forth in previous cases, (4) the Court found that "children are different" in a fundamental way: offenders under the age of eighteen are incapable of being criminally liable to the same extent as their adult counterparts; for example, due to undeveloped cognitive abilities, they cannot form the requisite criminal intent in the same way as an adult. (5)

   Miller was based on two strands of case precedent. (6) The first strand of cases "has adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty," (7) and in regards to the juvenile, is derived chiefly from Graham v. Florida and Roper v. Simmons. (8) Thus, this strand implicates the Eighth Amendment when punishment is disproportionate to the level of culpability of the class. (9 From the second strand of precedent, which includes Woodson v. North Carolina (10) and Lockett v. Ohio, (11) the Court "prohibited mandatory imposition of capital punishment, requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense before sentencing him to death." (12) The rationale in these two lines of cases merges in Miller and leads to "the conclusion that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment." (13)

   This was an enormous win for the juvenile justice system, because it meant that the Court had recognized that even homicide does not warrant a mandatory life sentence without the possibility of parole if the offender is less than eighteen years old at the time of the crime. (14) The Court thus recognized that "children are constitutionally different," in all cases, and fundamentally so. (15) It concluded that, as a constitutional rule, juveniles' cognitive development has not progressed enough to warrant adult sentencing (save for extreme circumstances, which the Court did not outline). (16) That conclusion has major implications for juvenile sentencing and, more generally, juvenile justice. (17)

   The changing landscape for juveniles has not fully settled following Miller. There is still a question of whether juveniles can be sentenced to life without parole at all, and, if so, when and under what circumstances. (18) Moreover, it is not completely clear whether Miller applies retroactively, to defendants who were juveniles at the time of their crimes and who were convicted and sentenced to mandatory life without parole prior to the ruling. (19)

   After Miller, there are two related, unsettled issues that contribute to the daunting uncertainty facing juvenile offenders. First, there is no uniform definition or cutoff of the "juvenile" class of defendants in the United States, which means due process may differ from state to state, depriving some children of the full constitutional protection intended by the Court. The Court's decision in Miller may necessitate a constitutional definition of "juvenile" as a person under eighteen years old.

   Second, if the neurological research and social science on which Miller was based conclude that cognitive abilities are not fully developed until around age twenty-five, it may be arbitrary and inconsistent to choose age eighteen as the age after which a defendant may be subject to mandatory life without parole, or even the death penalty. (20) That is, if traditional norms of adulthood have been disproven by cognitive science, and the brain continues to develop past the age of eighteen, the Court should have placed the cutoff beyond age eighteen. The distinction of adulthood beginning at age eighteen is arguably based on no more than traditional and outdated norms. Should judges be given discretion to consider whether a young-adult defendant has not developed to his full cognitive capacity, such that he should not be charged as an adult and sentenced to death, as in Roper, (21) life without parole for nonhomicide crimes, as in Graham, (22) or mandatory life without parole, as in Miller? (23) The Court's Eighth Amendment jurisprudence and cognitive science articulated in Miller and its forebears may necessitate legal recognition of a stage of life between adolescence and adulthood often called "emerging adulthood," (24) during which defendants should be entitled to further special consideration under the Eighth Amendment. (25)

   In Part II, this Note will discuss the background of the trio of juvenile Eighth Amendment cases, Roper, Graham, and Miller, and the social science, psychology, and neuroscience research underpinning the Supreme Court's decisions in these cases. Then, in Part III, this Note will discuss and analyze the issue of establishing a uniform constitutional definition of juvenileness that ends at eighteen years of age. Next, in Part IV, this Note will discuss the issue of defining "emerging adults" as a separate class from juveniles and adults. Overall, this Note will offer two proposals. First, that there should be a uniform definition of "juvenile" that ends at eighteen years of age, and this should be the cutoff age for juvenile court jurisdiction nationwide. Second, that courts should recognize an age group between the ages of eighteen and twenty-five, called "emerging adulthood," during which judges would potentially consider a defendant's youthful characteristics, capacity for change, and culpability in deciding whether to give the defendant a sentence as harsh as his or her fully formed adult counterparts.

2. BACKGROUND & HISTORY

   1. The Miller Line of Cases

      In Roper, Christopher Simmons was convicted of a first-degree murder he committed the crime at age seventeen.* 26 After he told friends he would commit a murder, he kidnapped a woman, bound her, and threw

      her into a river to drown. (27) As he turned eighteen before trial, he was convicted and sentenced to death. (28) The Supreme Court overturned the sentence and found that the Eighth and Fourteenth Amendments prohibit the death penalty for offenders who were under eighteen years old at the time of their crimes. (29)

      In Graham, (30) Terrance Jamar Graham pled guilty to and was convicted of armed robbery and armed burglary, which he committed when he was sixteen and seventeen years old, respectively. (31) Graham was thereafter sentenced to life in prison without the possibility of parole. (32) The Supreme Court found that in the case of a nonhomicide crime, the Eighth Amendment forbids a life sentence without the possibility of parole imposed on an offender who was a juvenile at the time of his or her crime. (33)

      In June 2012, the Court decided Miller v. Alabama along with the companion case Jackson v. Hobbs. (34) The Court held that a defendant under age eighteen could not be sentenced to mandatory life without parole. (35) In this consolidated case, both defendants were fourteen years old at the time of their crimes. (36) The two defendants' "stories are representative of the background, nature of offense, and level of culpability of other children sentenced to life behind bars." (37)

      In Miller, fourteen-year-old Evan Miller was charged with murdering his neighbor. (38) One night in 2003, he and a friend were in Miller's home when Miller's neighbor, "Cole Cannon, came to make a drug deal with Miller's mother." (39) Miller and his friend then went to Cannon's home with him to smoke marijuana and play drinking games. (40) When Cannon passed out, Miller took $300 from his wallet and split it with his friend. (41) When Miller went to return the wallet to Cannon's pocket, Cannon woke up and grabbed Miller's throat. (42) Miller's friend struck Cannon with a baseball bat, and Cannon released Miller. (43) Miller then grabbed the bat and repeatedly hit Cannon with it before putting a sheet over his head and delivering another blow. (44) The boys fled, and later returned to the trailer to cover their crime by starting two fires. (45) Later, Cannon died of his injuries and smoke inhalation. (46)

      Alabama law required Miller to be initially charged as a juvenile, "but allowed the District Attorney to seek removal" to try him in adult court, which the District Attorney did. (47) Following a hearing, "the juvenile court agreed to the transfer." (48) Due to the severity of the crime, as well as Miller's "mental maturity" and prior juvenile offenses, the Alabama Court of Criminal Appeals affirmed the transfer. (49) The State then charged Miller with "murder in the course of arson", invoking the mandatory minimum punishment, which was life without parole. (50) Miller was found guilty, and was accordingly sentenced to this minimum. (51) The sentence was affirmed by the Alabama Court of Criminal...