MILLER'S PROMISE: RE-EVALUATING EXTREME CRIMINAL SENTENCES FOR CHILDREN
Nick Straley(fn*)
Abstract: Scientific, legal, and societal notions about youth have come together to reaffirm an age-old concept-children are different and they change as they grow older. In recent decisions, the United States Supreme Court has required courts and legislatures to take a new look at extreme criminal sentences imposed upon children. Life without parole sentences and decades-long, determinate sentences are constitutionally suspect when applied to children because they fail to adequately account for the dynamism of youth. Miller v. Alabama and Graham v. Florida announced two important principles: (1) that an extreme sentence can only be imposed upon a child following an individualized hearing at which a court considers myriad mitigating factors; and (2) that in the vast majority of cases, the child should have a realistic opportunity for parole at some point in the future. During the recently completed 2014 session, the Washington legislature took steps to address some of the Supreme Court's concerns, but work remains before Washington law fully incorporates the principles laid out in Miller and Graham. Legal principles announced in the Court's recent cases require individualized sentencing hearings any time a child may be sentenced to decades behind bars. Moreover, in no case should a child be sentenced to spend the rest of his life in prison without some possibility of release in the future.
INTRODUCTION ................................................................................ 964
I. THE U.S. SUPREME COURT HAS RECOGNIZED THAT CHILDREN MUST BE SENTENCED DIFFERENTLY THAN ADULTS .......................................................................... 966
II. NEUROLOGICAL AND PSYCHOSOCIAL RESEARCH PROVES THAT CHILDREN ARE LESS CULPABLE AND MORE LIKELY TO CHANGE THAN ADULTS ...................... 970
III. THE MEN SERVING LIFE WITHOUT PAROLE DEMONSTRATE HOW THE SCIENCE PLAYS OUT IN THE REAL WORLD ................................................................... 976
IV. THE PRINCIPLES FROM THE MILLER/GRAHAM LINE OF CASES APPLY TO OTHER LONG SENTENCES IMPOSED UPON CHILDREN ................................................... 984
V. MILLER AND GRAHAM ILLUSTRATE A LARGER TREND AWAY FROM SENTENCING YOUTH TO THE MOST SEVERE CRIMINAL SENTENCES .............................. 989
VI. WASHINGTON'S RESPONSE TO MILLER AND GRAHAM .. 993
VII. MORE REMAINS TO BE DONE ............................................... 997
A. Similar Procedures and Rules Should Apply to the Hearings Required by the Senate Bill Because the Miller Hearings Are Substantially Similar to the Penalty Phase Hearings in Capital Murder Trials ...................................... 998
B. Life Without Parole Is an Unnecessary and Unjust Sentence When Imposed upon a Child ............................. 1001
C. A Court Should Hold an Individualized Sentencing Hearing Anytime It Imposes an Exceptionally Long Sentence upon a Child ...................................................... 1003
CONCLUSION .................................................................................. 1006
APPENDIX A .................................................................................... 1007
INTRODUCTION
Recent psychosocial studies and neurological research have proven that the structures and processes of the adolescent brain render young people more reckless and more susceptible to negative familial and societal pressures.(fn1) In a series of recent cases, culminating in Miller v.
Alabama,(fn2) the United States Supreme Court relied on this science and recognized that, for young people, a confluence of immature judgment, vulnerability, social pressure, and decreased ability to appreciate long-term consequences can create a toxic environment with tragic results.(fn3) The chances for unthinking violence are exponentially increased when homelessness, familial abuse or neglect, mental illness, and chemical dependency are added to the mix.(fn4)
However, because of their developing characters, children are also uniquely able to transform themselves; they can change from foolhardy, risk-seeking teenagers into mature, rehabilitated adults.(fn5) It is these "characteristics of youth"(fn6) and the developing science that explains them that animate the Supreme Court's recent juvenile sentencing decisions.(fn7) As discussed in those cases, physiological differences between teenagers and adults carry constitutional significance and require that children be sentenced differently-a principle firmly rooted in recent science and longstanding legal distinctions between children and adults.(fn8)
In Part I, this Article analyzes Miller v. Alabama,(fn9) Graham v. Florida,(fn10) and Roper v. Simmons.(fn11) Part II explains the science underpinning those decisions. Part III shows how that science helps explain why the men currently serving life without parole in Washington for crimes committed as juveniles came to reside in prison. Part IV argues that the principles announced in Graham and Miller apply with equal force to long determinate sentences imposed upon children. Part V discusses how Miller and Graham track a growing societal disfavor for extreme punishments for youth. Part VI examines how the Washington legislature responded to this changing legal and social landscape during the 2014 legislative session when it fundamentally altered the sentencing structure applicable to children who commit serious crimes. Finally, Part VII discusses what else courts and the legislature should do to fully realize Miller's promise.
I. THE U.S. SUPREME COURT HAS RECOGNIZED THAT CHILDREN MUST BE SENTENCED DIFFERENTLY THAN ADULTS
In a trilogy of recent cases, the Supreme Court has recognized that juveniles differ from adults in their psychosocial and neurological makeups and therefore must be sentenced differently-even when those children have committed heinous crimes.(fn12) In 2005 in Roper v. Simmons,(fn13) the Court extended the categorical rule it set out in Thompson v. Oklahoma(fn14) barring the death penalty for children under the age of sixteen, to any person who was under the age of eighteen at the time of the crime.(fn15) While Roper announced a number of important principles, the true impact of those newly articulated constitutional rules awaited further development in Graham and Miller.(fn16)
The Court heard arguments in Graham v. Florida, a case that presented the question whether children can be sentenced to life without parole for non-homicides, in the fall of 2009.(fn17) In an opinion authored by Justice Kennedy, the Court ruled that imposition of such sentences in cases in which no one was killed violated the Eighth Amendment's prohibition on cruel and unusual punishment.(fn18)
The Graham Court expanded upon the discussion begun in Roper that the unique attributes of children require that they be sentenced differently than adults. As in Roper, the Graham Court accepted recent scientific breakthroughs that explain why young people are inclined to engage in risky, anti-social behaviors; how peer pressure and poor familial circumstances more dramatically affect them; and how-given expected neurological development-many of them will outgrow the irresponsible, unthinking acts which lead them to prison.(fn19) The Graham Court noted, "'juvenile offenders cannot with reliability be classified among the worst offenders.' A juvenile is not absolved of responsibility for his actions, but his transgression 'is not as morally reprehensible as that of an adult.'"(fn20) Because children change as they age, a constitutional sentencing structure requires that a "juvenile offender [be given] a chance to demonstrate growth and maturity."(fn21) Life without parole sentences violate this tenet by removing any chance that a child will one day again walk the world as a free person, no matter how well he may have done while behind bars.(fn22) Graham therefore required that any child convicted of a non-homicide crime be provided a "realistic opportunity to obtain release" at some point in the future.(fn23)
Miller v. Alabama presented the Court with the next question in the sequence: whether children who commit murder can be sentenced to mandatory life without parole.(fn24) In a few paragraphs, the Miller Court referred to the lengthy discussions in Roper and Graham of the science and its relevance to the constitutional analysis the Court must undertake.(fn25) As the Miller Court explained, these cognitive and physiological differences are constitutionally relevant in three ways: (1) juveniles are less able than adults to control and understand the consequences of their actions; (2) juveniles are more likely than adults to be affected by negative influences in their lives; and (3) juveniles are uniquely capable of rehabilitation and reform.(fn26) These differences render children less culpable than adults and more likely to change for the better.(fn27)
The Graham and Miller Courts also recognized that life without parole sentences are uniquely severe when applied to children.(fn28) By virtue of their younger ages, children sentenced to life without parole will, on the whole, serve more years behind bars than adults condemned to the same fate.(fn29) Moreover, they will be subject to greater levels of abuse and hardship while incarcerated...
