THE TRILOGY AND BEYOND.

• Author: Moriearty, Perry L.
• Position: Juvenile sentencing

1. INTRODUCTION

   Over the last twelve years, the Supreme Court has held in three seminal decisions that children must be sentenced differently than adults under the Eighth Amendment. In 2005, the Court banned the execution of those under eighteen in Roper v. Simmons; (1) in 2010, it banned life sentences without the possibility of parole for juveniles convicted of non-homicide offenses in Graham v. Florida; (2) and in 2012, it banned the sentence of mandatory life without parole for all juveniles in Miller v. Alabama. (3) In each case, a divided Court held that, because "children are constitutionally different from adults for purposes of sentencing," the "imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children." (4)

   This so-called "trilogy" of cases has dramatically altered the constitutional landscape of juvenile sentencing in this country. In the five years since Miller was decided, twenty-seven states and the District of Columbia have amended their sentencing laws for juveniles convicted of homicide, (5) and nineteen of these states have elected to abolish juvenile life without parole. (6) Over the same period, federal and state courts across the country have issued thousands of decisions interpreting and applying the decisions. (7) Most significantly, the more than 2,200 sentences rendered unconstitutional by Roper, Graham, and Miller have been vacated, (8) and hundreds of individuals sentenced to death or life without parole as juveniles have been resentenced. (9) In many respects, the pace of activity has been extraordinary.

   Yet, the trilogy's implementation has been challenging--a predictable consequence, in many respects, of the Court's reluctance to ban the sentence of juvenile life without parole outright. While Roper declared the death penalty unconstitutional for juveniles as a class, the Graham and Miller Courts whittled away at the sentence of juvenile life without parole without banning it. In doing so, the Court left open for interpretation critical questions about whom was eligible for relief, what such relief should entail, and under what circumstances states could continue to impose the sentence.

   In the months after Miller was decided, courts in a number of states afforded retroactive relief to those juvenile lifers whose sentences were final, but courts in Louisiana, Michigan, and Pennsylvania--home to approximately 60% of all juvenile lifers--refused. (10) It was not until the Supreme Court intervened in 2016 that these more than 1,200 inmates also had a path to relief. (11) Even then, however, legal battles over the contours of resentencing continued. (12)

   Legislation enacted in response to the decisions varies widely. In the nineteen states that now prohibit juvenile life without parole, replacement schemes range from parole eligibility after fifteen years to eligibility after forty years. (13) Among the thirty-two states that have retained the punishment, some state legislatures have readily incorporated the trilogy's developmental framework into their juvenile life without parole sentencing schemes, (14) while others have yet to take any action at all. (15) The net effect is "an incoherent patchwork" of responses to Graham and Miller in some states, (16) alongside the rapid rejection of juvenile life without parole as a punishment in others.

   What, then, does all of this portend for the sentence of juvenile life without parole in this country, and more broadly, for the future of juvenile sentencing? Notwithstanding the challenges of implementation, the trilogy has, in several important respects, set the stage for the eventual abolition of juvenile life without parole in this country. (17) First, in both Graham and Miller, the Court took the unprecedented doctrinal step of eschewing its deferential "gross disproportionality" analysis and applying to a non-capital sentence the robust "categorical" prohibition analysis traditionally reserved for death penalty cases. (18) Going forward, juvenile life without parole sentencing schemes and practices would be subjected to this heightened form of constitutional scrutiny, the Court made clear. (19)

   Relatedly, in all three decisions, the Court found that the challenged sentences offended the country's "evolving standards of decency that mark the progress if a maturing society" (20) even though they did not necessarily violate national sentencing norms. (21) In Miller, for example, the Court found that, even though twenty-nine jurisdictions authorized the punishment of mandatory life without parole for juveniles, "the statutory eligibility of [the sentence] does not indicate that the penalty has been endorsed through deliberate, express, and full legislative consideration." (22) Moreover, the fact that an average of three states per year have abolished the sentence since 2013, suggests that the country is moving rapidly toward its broader rejection. (23) These statistics will undoubtedly come into play when the issue is next before the Court.

   Third, as a practical matter, the trilogy has made the sentence of juvenile life without parole more difficult for states to impose. Going forward, every such sentence will be met with a series of Eighth Amendment challenges, and even life without parole sentences that withstand constitutional scrutiny will be imposed only after a highly complicated and costly mitigation process. States may conclude that it is simply more efficient and economical to sentence juveniles convicted of homicide to life with the possibility parole.

   Beyond its application to the juvenile life without parole itself, the Court's developmental framework is likely to influence numerous juvenile sentencing policies and practices. After all, if juveniles who commit homicide are inherently less culpable than adults who commit the same offense, juveniles who commit less serious offenses are as well. Thus, mandatory minimum sentencing laws, automatic transfer statutes, sexual offender registration requirements, and any other laws that purport to treat juveniles and adults identically are now susceptible to Eighth Amendment challenges. (24)

   Yet, there are also reasons to be cautious. With the type of top-down constitutional regulation that the Court has attempted to impose in the juvenile sentencing arena comes the risk of "entrenching" and "legitimating" the punishments in question.. (25) In the capital sentencing context, Carol and Jordan Steiker have noted that the Court's efforts to strike a balance between abolishing the death penalty and permitting its sometimes arbitrary imposition in the post-Furman (26) era led to dozens of rulings placing procedural constraints on its implementation. (27) For several decades, these rulings instilled a false sense of "faith among justice system participants and the general public in the reliability and fairness of the process" and had the unintended effect of further entrenching the punishment itself. (28) While the Court's regulatory reforms in the capital arena may have ultimately contributed to the death penalty's recent destabilization, (29) there is a risk that the reforms catalyzed by the trilogy will create a false sense of confidence in states' abilities to separate those children who are "irreparably corrupt" from those who are not and delay, if not forestall, the abolition of juvenile life without parole.

   And for hundreds of current and former juvenile lifers, the real promise of the trilogy remains illusory. While parole eligibility for juveniles convicted of homicide is now a possibility, it continues to come after decades in prison for many. In states such as Michigan, prosecutors continue to seek and judges continue to impose life without parole in the vast majority of juvenile homicide cases. (30) Thus, as long as the sentence of juvenile life without parole remains an option, at least some children in some states will be sentenced to die in prison.

   This article proceeds in two main parts. Part II gives an overview of the trilogy, documenting the Supreme Court's efforts over the last twelve years to impose substantive constraints on juvenile sentencing before turning to the decisions' impact. Part III makes the case that, while abolition of juvenile life without parole is the likeliest course, there is the risk that the sentence could go the way of the death penalty--a destabilized but nonetheless entrenched punishment whose imposition is increasingly infrequent but consistently arbitrary.

2. THE TRILOGY

   The legal notion that juveniles are "different" is not new. This principle was the impetus for the establishment of the first juvenile court and informed the ideological and procedural foundations of the U.S. juvenile justice system. What has only recently emerged, however, is the Supreme Court's recognition that "children are constitutionally different from adults for purposes of sentencing." (31)

   1. THE DECISIONS

      The U.S. juvenile justice system was established more than century ago on the premise that child lawbreakers should be treated differently than their adult counterparts. (32) Adolescents' reduced culpability and greater capacity for change was embedded in every facet of the system: charges against child lawbreakers were deemed civil rather than criminal, (33) for example, and formal rules were abandoned in favor of broad discretionary powers. (34)

      These ideological and procedural approaches to adolescent law breaking prevailed until the mid-twentieth century when the ideals of treatment and rehabilitation began to give way to concerns about the often arbitrary nature of juvenile court sentencing. (35) During the 1960s and 1970s, the Supreme Court addressed these concerns by importing into the juvenile system various procedural safeguards, including the right to counsel. (36) Perhaps unintentionally, these protections brought with them a shift in focus from the "best interests" of the child to the...