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Position Statement 58: Life Without Parole for Juvenile Offenders
Mental Health America (MHA) opposes sentences of life without parole for juvenile offenders and emerging adults -- individuals of the ages between 18 and 25. Such sentences are inconsistent with any of the purposes which ordinarily guide sentencing: deterrence, retribution, incapacitation, or rehabilitation.
The United States is one of the few countries in the world that allows for sentencing juvenile offenders to life without parole, one of two countries that currently have people incarcerated for crimes committed as juveniles, and the only country currently known to still sentence juveniles to life without parole.[i] There are currently at least 2,100 youthful offenders serving life without parole in U.S. prisons.[ii] Nationally, 59% of these individuals received their sentences for their first ever criminal conviction.[iii] 16% were between the ages of 13 and 15 when they committed their crimes, and 26% were sentenced under a felony murder charge where their offenses did not involve carrying a weapon or pulling a trigger.[iv]
Our society recognizes that juveniles differ from adults in their decision-making capacities as reflected in laws regarding voting, driving, access to alcoholic beverages, and consent to treatment. Developments in psychology and neuroscience support this distinction and have continued to demonstrate fundamental differences between juveniles and adults. Adolescents consistently score lower than adults in both “impulse” control and “suppression of aggression.”[v] In evaluating decisions, adolescents are less likely than adults to evaluate both risks and benefits, to understand long-term consequences, and to examine alternative options.[vi] Adolescents are also less “future-oriented” than adults and have less of an “ability to see short and long term consequences” or to “take other people’s perspectives into account.”[vii] These findings, along with the ever-growing body of research confirms that compared to adults, juveniles are less able to exercise self-control, less capable of avoiding risky behaviors by considering alternative actions, and less attentive to the consequences of impulsive actions.[viii] It is important to emphasize that the science of brain development supporting these findings has been well-established for more than twenty years.
Biologically, adolescent brains are still developing, particularly in regions associated with higher-order functions including impulse control, planning, and risk avoidance.[ix] A juvenile’s character and personality are not yet fully formed because their brains are still developing. Accordingly, “juveniles are more capable of change than are adults, and their actions are less likely to be evidence of “irretrievably depraved character.”[x] In both Roper and Graham, the Supreme Court recognized the potential for adolescents to be reformed and outgrow antisocial behavior as “individual identity becomes settled.”[xi] Research supports that the majority of juvenile offenders with antisocial risk factors will not be criminal adults.[xii]
Emerging adults are also in a phase of heavy brain development. The brain continues to develop until the age of 25.[xiii] Until that time, “psychosocial capacities that improve decision making and moderate risk-taking – such as impulse control, emotion regulation, delay of gratification, and resistance to peer influence – continue to mature well into adulthood.”[xiv] It follows then that, using the same logic the Court used in Graham, emerging adults should not be subjected to mandatory life without parole.
The U.N. Convention of the Rights of the Child, ratified by 192 nations, explicitly prohibits the imposition of life without parole for crimes committed by juveniles. Such sentences also constitute a violation of additional international treaties, including:
- International Covenant on Civil and Political Rights
- United Nations Standard Minimum Rules for the Administration of Juvenile Justice
- United Nations Guidelines for the Prevention of Juvenile Delinquency
- United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment
- American Declaration of the Rights of Duties of Man
- Inter-American Convention to Prevent and Punish Torture
Over the past ten years, the Supreme Court has recognized that juveniles are inherently different from adults. First, in the Roper v. Simmons decision, the Court declared the juvenile death penalty to be unconstitutional. The Court’s reasoning was based, in part, on society’s evolving understanding of adolescent brain development and the increased potential for change and rehabilitation. Writing for the majority, Justice Kennedy said, “It would be misguided to equate the failing of a minor with those of an adult, for a realer possibility exists that a minor’s character deficiencies will be reformed.” Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 1195 (2005). Following Roper, the Court held in Graham v. Florida that life without parole could not be used as a sentence for minors convicted of non-homicide offenses. Writing for the majority, Justice Kennedy first noted that juvenile non-homicide defendants had “twice-diminished culpability” before concluding that “the Eight Amendment does not permit” the state to deny those defendants the “chance to later demonstrate that he is fit to rejoin society based solely on a non-homicide crime that he committed while he was a child in the eyes of the law.” Graham v. Florida, 560 U.S. 48, 68, 79 (2010). Justice Kennedy further noted that the state must provide juvenile defendants “some meaningful opportunity for release.” Graham, 560 U.S. at 75.
The Court returned to the issue of juvenile life without parole in Miller v. Alabama, 132 S. Ct. 2455 (2012). In Miller, the Court considered a challenge to mandatory sentences of juvenile life without parole for homicide offenses. In Miller, the Court determined that mandatory sentences of life without parole were categorically unconstitutional as applied to juvenile defendants. Writing for the majority, Justice Kagan noted that mandatory life without parole for juveniles made “youth…irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” Miller, 132 S. Ct. at 2469. The Miller Court did not reach the question of whether life without parole could ever be used for juveniles, though Justice Kagan warned that “appropriate occasions…will be uncommon.” Id.
Writing separately, Justice Breyer specifically addressed the question of felony murder, the charge for which one of the youths at issue in Miller had been convicted. Justice Breyer argued that “there is no basis for imposing a sentence of life without parole upon a juvenile who did not himself kill or intend to kill.” Miller, 132 S. Ct. at 2477 (Breyer, J concurring).
Some state courts have interpreted the Supreme Court’s ambiguity on whether juveniles can be sentenced to life without parole at all as allowing juveniles to be sentenced to life without parole, so long as the sentence is not mandatory. The Alabama Supreme Court held in Wilkerson v. State there is no presumption against life sentences for juveniles, so long as the sentence is not mandatory.[xv] MHA opposes the logic of such cases.
Miller, in addition to not addressing whether the 8th Amendment categorically forbids juvenile life without parole, did not address whether the Miller rule applied retroactively to juvenile offenders already imprisoned. It also did not address “de facto” sentences of life without parole, such as 70 years without parole. States are currently in the process of responding to Miller’s mandate forbidding mandatory juvenile life without parole. In Pennsylvania, the jurisdiction with the most juvenile offenders serving mandatory life without parole, the Pennsylvania Supreme Court announced that Miller did not apply retroactively. On the other hand, the California Supreme Court found that all juvenile defendants sentenced to mandatory life without parole before Miller were entitled to petition for review of their sentence. People v. Caballero, 55 Cal. 4th 262, 291 (2012). The Caballero court also found that a sentence of 110 years to life was a de facto sentence of life without parole and the defendant was entitled to have his sentence revisited under Miller. Caballero, 55 Cal. 4th at 268.
Indeed, state courts have begun to rule that certain sentencing schemes are de facto mandatory life sentences without parole. The Wyoming Supreme Court in Bear Cloud v. State ruled that a life sentence with the possibility of parole after 25 years for first-degree murder with a consecutive 20-year sentence for aggravated burglary qualified was a de facto mandatory life sentence without parole.[xvi] Likewise, in Armstrong v. People, the Colorado Supreme Court ruled that a 96-year sentence was the functional equivalent of life without parole.[xvii] The Ohio Supreme Court in State v. Moore ruled that a mandatory sentence that exceeds the life expectancy of a juvenile offender was a de facto mandatory life sentence.[xviii]
Several legislative responses to Miller have been introduced. After the Massachusetts Supreme Court struck down all sentences of life without parole for juvenile offenders, mandatory or not, in Diatchenko v. District Attorney for Suffolk District, 1 N.E.3d 270 (Mass 2013), the Massachusetts legislature offered a bill proposing juveniles convicted of murder serve at least 35 years before being eligible for parole.[xix] Illinois has proposed legislation that would trigger parole eligibility after 15 years for life sentences or sentences of more than 40 years for juvenile offenders.[xx] Wyoming has enacted legislation that mandates an opportunity for parole for juveniles serving life sentences after 25 years.[xxi] Unfortunately, some states, including Florida, have advanced but not yet passed legislation that would delay any opportunity for parole until after 50 years has passed.[xxii] Indeed, as of April 2014, only thirteen states have brought their laws into compliance with Miller.[xxiii]
Sentencing, including sentencing to imprisonment, has long been guided by four considerations: deterrence, retribution, incapacitation, and rehabilitation. None of these purposes is served by sentencing juveniles to life without parole.
The deterrent value of life without parole has yet to be demonstrated. It is particularly unlikely to deter adolescents from crime, as they tend to live in the present, think of themselves as invincible, and have difficulty contemplating the long-term consequences of their behavior. Indeed, research has shown that the threat of adult criminal sanctions has no measurable effect on juvenile crime.[xxiv]
Retribution is predicated on matching the harshness of the punishment to the seriousness of the offense. The seriousness of the offense is measured not only by the acts done by the defendant and the harm caused by those acts, but also by the mental state of the defendant. We know that juveniles commonly do not have the maturity to understand the consequences of their acts. Thus, they ordinarily do not harbor the same intentions as adults even when they are performing the same deplorable acts and causing the same
very bad serious consequences, including death. Furthermore, “life without parole is an especially harsh punishment for a juvenile,” who “will on average serve more years and a greater percentage of his life in prison than an adult offender.”[xxv] As a result of the extended time in prison, youth sentenced to life in prison have a life expectancy of 50.6 years, 20 years less than the average expectancy of an African-American male.[xxvi] Because of the shortened life expectancy of juveniles in prison, any sentence that ensures imprisonment past age 50 can be considered a de facto life sentence because, for all meaningful purposes, the individual will likely spend the rest of their life in prison. Retributive considerations do not support life without parole.
Nor are the goals of incapacitation and rehabilitation served by life sentences. As the Supreme Court recognized in Roper v. Simmons, it is far more likely that a juvenile can be rehabilitated than an adult. This rehabilitation is likely possible due to the fact that adolescents’ brains continue to develop into late adolescence. During this time there are significant changes in brain structure and function, particularly in the executive functions of judgment, decision-making, weighing of risk and reward, and inhibition of impulses.[xxvii] Incapacitation serves no legitimate purpose once a defendant has been rehabilitated and no longer poses a threat to society. Because imprisonment is expensive, imprisonment beyond the point at which a defendant has been rehabilitated wastes scarce government resources without any public purpose.
Call to Action
MHA encourages its affiliates and allies to work to repeal laws in those states which permit a sentence of life without parole, to ensure that Miller is applied retroactively, and to prevent states from attempting to avoid Miller by imposing de facto life sentences without parole.
In order to ensure juveniles have a “meaningful opportunity to obtain release,”[i] MHA advocates a policy of periodic review of juveniles sentenced to life without parole. This review should apply retroactively to all juveniles currently sentenced to life without parole, as well as to juveniles who are serving de facto life sentences that would ensure their imprisonment past the age of 50.[ii] Juveniles should have a review of their sentence no later than age 30, by which time their brains and personality would be fully developed. This would allow for sentences of 10-15 years prior to a review but would ensure that review is completed at a time when the individual was fully developed. Such a review is more likely to be an accurate representation of the individuals’ culpability and level of rehabilitation.
Mental health advocates, professionals and other service providers should work to ensure that juveniles are provided with appropriate services while incarcerated to identify and ameliorate those problems which may have led to the crime and which need to be addressed before release will be safe and appropriate. Mental health advocates should also work to ensure that there are appropriate services available in the community for juvenile offenders when they are released.
The Mental Health America Board of Directors approved this policy on June 13, 2019. It will be reviewed as required by the Public Policy Committee
Expiration: December 31, 2024
[i] See Graham v. Florida, 560 U.S. 48,80 (2010).
[ii] Amnesty International: Human Rights Watch. "The Rest of Their Lives: Life without the Possibility of Parole for Child Offenders in the United States" (2005).
[v] Elizabeth Cauffman & Laurence Steinberg, “(Im)maturity of Judgment in Adolescence,” 18 Behav. Sci. & L. 18: 741-754 & tbl. 4 (2000); See also, https://s3.amazonaws.com/academia.edu.documents/30837151/Blakemore_NI_2012.pdf?AWSAccessKeyId=AKIAIWOWYYGZ2Y53UL3A&Expires=1558473097&Signature=lW6P7NQfsiuT49kEXh5CebuM9vw%3D&response-content-disposition=inline%3B%20filename%3DImaging_brain_development_The_adolescent.pdf
[vi] Bonnie Halpern-Felsher & Elizabeth Cauffman, “Costs and Benefits of a Decision: Decision-Making Competence in Adolescents and Adults,” J. Applied Developmental Psychol. 22:257, 265, 268 (2001).
[vii] Cauffinan & Steinberg, op. cit., at 746, 748.
[viii] See Brief for the American Psychological Association American Psychiatric Association, and National Association of Social Workers as Amici Curiae in Support of Petitioners at 3-4, Miller v. Alabama, Nos. 10-9646, 10-9647 (U.S. Jan. 17, 2012) available at WL 174239 [hereinafter Miller Brief in Support of Petitioners]
[ix] Id. at 4.
[x] Graham v. Florida, 560 U.S. 48, 67, 130 S. Ct. 2011, 2026 (2010)
[xi] Roper, 543 U.S. at 570.
[xii] Miller Brief in Support of Petitioners, supra note 8 at 22.
[xiii] Mariam Arain, Maturation of the Adolescent Brain, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3621648/. (Last accessed May 1, 2019).
[xiv] Laurence Steinberg, “Risk Taking in Adolescence: New Perspective from Brain and Behavioral Science,” Current Directions in Psychological Science (2007). Available at https://journals.sagepub.com/doi/full/10.1111/j.1467-8721.2007.00475.x. (Last accessed May 1, 2019).
[xv] Wilkerson v. State, Ala. Crim. App. 2018, __So.3d.__
[xvi] Bear Cloud v. State, Wyo. 2014, 334 P.3d 132.
[xvii] Armstrong v. People, Colo. 2017, 395 P.3d 748.
[xviii] State v. Moore, 149 Ohio 2016, Ohio St.3d 557.
[xix] Milton J. Valencia, “Bill seeks at least 35 years for young killers”, The Boston Globe (January 24, 2014).
[xx] HB 4650, 98th General Assembly, (Ill. 2014).
[xxi] HB 0023, 62nd Legislature (Wy. 2013)
[xxii] Kelly Orians, “One Year Later: State Level Response and Implementation of Miller v. Alabama,” Youth Law News XXXII, (National Center for Youth Law July-September 2013), accessible at https://youthlaw.org/publication/one-year-later-state-level-response-and-implementation-of-miller-v-alabama/.
[xxiii] Joshua Rover, “Slow to Act: State Responses to 2012 Supreme Court Mandate on Life Without Parole,” (The Sentencing Project June 25, 2014). Accessible at https://www.sentencingproject.org/publications/slow-to-act-state-responses-to-2012-supreme-court-mandate-on-life-without-parole/.
[xxiv] Miller Brief in Support of Petitioners, supra note 8 at 34.
[xxv] Graham v. Florida, 130 S. Ct. 2011 at 2028
[xxvi] Michigan Life Expectancy Data for Youth Serving Natural Life Sentences, available at http://www.lb7.uscourts.gov/documents/17-12441.pdf.