Justices to Continue Shaping Eighth Amendment Case Law for Juveniles

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By Jessica DaSilva

Jan. 28 — Now that states are required to reconsider the sentences for thousands of juveniles serving life without parole, new challenges will arise related to extended sentences for non-capital offenses and juveniles subject to mandatory minimum sentencing schemes, according to legal analysts.

The U.S. Supreme Court Jan. 25 in Montgomery v. Louisiana issued a landmark ruling holding that its 2012 decision banning mandatory life without parole sentences for juvenile offenders is retroactive (2016 BL 18277, U.S., No. 14-280; 98 CrL 362, 1/27/16). Justice Anthony M. Kennedy wrote the opinion for the 6-3 majority. In the wake of that ruling, legal analysts told Bloomberg BNA that the court will likely continue shaping a new line of Eighth Amendment jurisprudence for juvenile defendants, partly based on emerging neuroscience.

A sharply divided court in 2012 prohibited mandatory life without parole sentences for juvenile offenders in Miller v. Alabama, 2012 BL 157303 (U.S. 2012) (91 CrL 413, 6/27/12).

Forceful Phrases

Marsha Levick, deputy director and chief counsel for the Juvenile Law Center, told Bloomberg BNA in a phone interview that what she found most important from the opinion was Kennedy's forceful phrases about how rarely lifetime sentences without the possibility of parole should be doled out to juveniles. Levick served as co-counsel on Montgomery and lead counsel for advocates' amicus brief in Roper v. Simmons (U.S., No. 03-633, 3/1/05) (76 CrL 407, 3/2/05), Graham v. Florida (U.S., No. 08-7412, 5/17/10) (87 CrL 195, 5/19/10), and Miller.

Those terms indicated that such sentences should only apply to crimes reflecting “irreparable corruption” and “permanent incorrigibility.”

The language “consistently illustrates the court's view that juvenile life without parole should almost never be imposed,” Levick said.

While she added that the court's “ruling and the spirit of that ruling need to be played out in courtrooms across the nation,” she said she is still unsure about how judges and prosecutors will respond.

For example, Alabama Attorney General Lester Strange (R) issued a statement lambasting the court's decision on retroactivity.

“In Alabama alone there are at least 70 convicted murderers serving life-without-parole sentences who could be granted the chance for a new sentence and possibly parole,” Lester said in the statement. “I will stand with murder victims and their families and work with local district attorneys to ensure that these murderers serve out their sentences.”

‘Kids Are Different.'

Potential resistance is why Levick said it is significant that Kennedy specifically offered two options for compliance: Resentence the defendants or allow for parole hearings.

Those two options might result in a majority-minority split among the states, she added.

Douglas E. Berman, a law professor at the Ohio State University Moritz College of Law and author of the Sentencing Law and Policy Blog, gave Bloomberg BNA a similar assessment of the opinion.

He said the most important aspect of the decision is the court's explicit reiteration of the point it made in both Graham and Miller that children should not be sentenced in the same way as adults.

“Kids are different and by virtue of that difference, they must be sentenced differently,” he said.

Looking Ahead

Even though this is the fourth opinion about juveniles and the Eighth Amendment in the past 10 years, Levick says it is really the first step toward determining the limitations for juveniles under the Eighth Amendment.

That will likely result in more litigation as lower courts debate how to apply Miller and Montgomery, she added.

Berman said he thinks two questions will likely arise in the wake of Montgomery. First, what qualifies as a life sentence? Second, do Miller and Montgomery preclude mandatory sentencing schemes for juvenile offenders in general from being applied to juvenile offenders?

Levick made the same observation, estimating those two issues could wind up before the court within the next five to 10 years.

Oftentimes, states hand down enhancements to juveniles that were crafted for adults, Berman explained. That results in juveniles walking away with sentences that can be upwards of 75 years, he added.

Levick said while many states strike such long sentences for juveniles, others will uphold sentences in the 35-plus-year range.

Such long-term, noncapital sentences are what Berman said he considers the most interesting potential question for the court.

“Is that a de facto life sentence?” Berman asked.

As for mandatory sentencing schemes, he stated that they are crafted with adults in mind. Berman explained that not only includes mandatory minimums, but lifetime sex offender registration as well.

Levick explained that when juveniles are charged with multiple mandatory sentences, they can sometimes face judges who stack those sentences. That means juvenile defendants would be forced to serve 15-, 20-, or 25-year sentences consecutively rather than concurrently, she added.

Such challenges are already in the pipeline, Levick said. Although she said she felt hesitant to speculate, she believes the court may continue to align on the side of juvenile defendants.

“The court couldn't be clearer in its view that children occupy a special place under the Eighth Amendment and that what is OK for adults is not OK for kids,” Levick said.

Developing Science

Considering the Supreme Court increasingly relies on psychology and neuroscience when ruling on juvenile justice issues, Berman said that further down the line, the justices might have to confront whether cutting off juveniles at 18 years old is appropriate.

“Scientists say that's just a number,” he added.

Levick also explained that the latest research indicates that the brain's physical development continues into its mid-20s. That means individuals in their early- to mid-20s are psychologically more similar to teenagers than adults with fully developed brains, she added.

While the issue is just beginning to percolate at the state level, Levick said advocates are definitely establishing a trajectory for reduced competency and capacity past the 18-year mark.

“I wouldn't predict where states might go with it, but I'm sure all of that is now fair game,” she said. “I don't think there's any question that the landscape has changed on how we think about kids in the criminal justice system.”

To contact the reporter on this story: Jessica DaSilva at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com