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July 09, 2018 Articles

Rejecting Harsh Sentences for Children: 20 Years of Sentencing Reform

By Heather Renwick

In the past 20 years, the United States has fundamentally changed how children are sentenced. First, the United States rejected the death penalty for children and now it has reached a critical tipping point in the movement to end life-without-parole sentences for children. Just five years ago, a vast majority of states allowed children to be sentenced to life without parole. Today, half of all states ban the practice in most or all instances or do not use the punishment even if technically available. The movement to end life sentences for children is critical because the practice is a human rights violation that disproportionately affects children of color and children who have experienced trauma.

The United States Is an International Outlier in Sentencing Children to Life in Prison
A century ago, the United States led the rest of the world in juvenile justice innovation. The first juvenile court was created in Illinois in 1899, inspiring other states and countries to develop ostensibly age-appropriate, rehabilitation-focused juvenile justice systems. Today the U.S. lags behind the rest of the world in its treatment of delinquent youth, and it is the only county known to sentence its children to life without parole.

In fact, sentencing children to life in prison violates international human rights norms and laws. Article 37 of the United Nations Convention on the Rights of the Child (CRC) prohibits subjecting children to "to torture or other cruel, inhuman or degrading treatment or punishment," including the use of "capital punishment and life without the possibility of release" as a sentencing option for children under 18 years of age. The imposition of life without parole on children also violates the United Nations International Covenant on Civil and Political Rights (ICCPR), which requires children to be treated distinct and apart from adults in the criminal justice system, taking into account children's age and capacity for rehabilitation.

Constitutional Limitations on Youth Sentencing
In the year 2000, the Children and Family Justice Center at Northwestern University School of Law convened a meeting of advocates to discuss putting together a strategy to end the juvenile death penalty in the United States. At the time, this seemed like a herculean task; yet, just five years later, the U.S. Supreme Court held that children in the United States could not be sentenced to death. At that time, the United States was the only country in the world that continued to give official sanction to the juvenile death penalty. The Court in Roper v. Simmons struck down the death penalty for children, holding that it violated the Eighth Amendment prohibition on cruel and unusual punishment. The Court emphasized empirical research demonstrating that children are developmentally different than adults and have a unique capacity for positive growth as they mature, even children who commit serious crimes. The Court also looked to the rate of legislative change at the state level as evidence of a national consensus against the juvenile death penalty.

Life without parole is now the most severe penalty available for youth in the United States. The Court has issued three decisions limiting the imposition of life without parole on children since RoperGraham v. Florida, 560 U.S. 48(2010), Miller v. Alabama, 567 U.S. 460(2012), and Montgomery v. Louisiana, 136 S. Ct. 718(2016)—likening life without parole to the death penalty, because both sentences condemn children to die in prison. Graham, Miller, and Montgomery are rooted in the principle that "children [under the age of 18] are constitutionally different from adults for purposes of sentencing." Miller, 567 U.S. at 471; Montgomery, 136 S. Ct. at 733.

Graham struck down life-without-parole sentences for children who commit non-homicide offenses, requiring states to give children who commit non-homicide offenses a "realistic opportunity to obtain release." Graham, 560 U.S. at 82. Miller struck down mandatory life-without-parole sentences for homicide offenses committed by children, holding that sentencing courts must "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Miller, 567 U.S. at 480. Most recently, in Montgomery, the Court applied Miller retroactively, holding that life without parole is unconstitutional for the vast majority of youth who commit homicide.

In this litany of cases, the U.S. Supreme Court recognized that none of the four purposes of incarceration—retribution, deterrence, incapacitation, and rehabilitation—are furthered by sentencing children to a lifetime in prison. Retribution relates to culpability, and the Supreme Court unequivocally has said that children are categorically less culpable than adults for their actions. Montgomery, 136 S. Ct. at 733. Deterrence is not a justification for sentencing children to life without parole because "the same characteristics that render juveniles less culpable than adults—their immaturity, recklessness, and impetuosity—make them less likely to consider potential punishment." Id. Incapacitation does not justify sentencing children to life without parole because "ordinary adolescent development diminishes the likelihood that a juvenile offender forever will be a danger to society." Id. Rehabilitation is not furthered by sentencing children to a lifetime in prison, given that it "forswears altogether the rehabilitative ideal." Id.

State-Level Rejection of Life Sentences for Children
Since Miller was decided, the number of states that ban life without parole for children has quadrupled—from 5 to 20. A total of 25 states plus the District of Columbia now ban, ban in most instances, or do not use life without parole as a sentencing option for children. And since the U.S. Supreme Court decided Montgomery in 2016, the number of individuals serving a juvenile sentence of life without parole has decreased by half, and it continues to drop.

The movement to end life sentences for children is notable, not just for its rapid rate of change but also for the geographic and cultural diversity of states enacting reform, the bipartisan nature in which bills have passed, and the overwhelming support within the state legislatures that have acted to ban life sentences for children. At least one state in every region of the country now bans life without parole—New England, the Mid-Atlantic, the South, the Midwest, the West, and the Pacific. Laws enacted in the past several years have received broad bipartisan support and have passed in historically Republican states like Arkansas, Utah, and West Virginia, and in historically Democratic states like Connecticut and Vermont. Moreover, laws that ban life sentences for children have garnered the support and co-sponsorship of Republican and Democratic lawmakers, resulting in robust passage rates.

The Legal Community Has Rallied in Opposition to Life Sentences for Children
The movement to end life without parole for children has garnered support across the legal community, including among defense attorneys, judges, and legal organizations. A growing number of prosecutors around the country also have begun to voice support for ending life without parole for children. For example, former District Attorney of Manhattan Robert Morgenthau called upon his "fellow prosecutors to do what makes sense: support age-appropriate alternatives to life without parole for children and reforms to our justice policies that ensure our youth are held accountable for harm they have caused. But focus on their unique capacity to be reformed." Robert Morgenthau, "Don't Let Kids Rot Behind Bars: A Life Sentence for a Teen Is Just Wrong," Daily News, Mar. 2, 2015.

In 2015, the American Bar Association issued a resolution calling for a complete ban on life without parole for children. The resolution urged states to "[e]liminate life without the possibility of release or parole for youthful offenders both prospectively and retroactively" and to "[p]rovide youthful offenders with meaningful periodic opportunities for release based on demonstrated maturity and rehabilitation beginning at a reasonable point into their incarceration, considering the needs of the victims." ABA House of Delegates Resolution 107C (2015).

Life Without Parole Remains an Available Sentence for Children
Although much of the United States now rejects sentencing children to die in prison, life without parole remains an available sentencing option in a subset of jurisdictions. Miller and Montgomery did not reach the question of whether life without parole categorically constitutes cruel and unusual punishment when imposed on children. Instead, the Court held that life without parole is unconstitutional for youth whose crimes reflect "transient immaturity" as opposed to "irreparable corruption." Montgomery, 136 S. Ct. at 734. Given what adolescent brain science reveals about children's developmental capacity for change, the vast majority—if not all—crimes committed by youth reflect transient immaturity by simple virtue of the individual's age at the time of the crime. Forensic and clinical experts cannot predict which youth will outgrow antisocial behavior and which—if any—will not. Roper v. Simmons, 543 U.S. 551, 573 (2005). Indeed, Justice Scalia believed that Montgomery "eliminat[ed] life without parole for juvenile offenders" because it "makes imposition of [life without parole on children] a practical impossibility." Montgomery, 136 S. Ct. at 744.

Yet, despite the state's nearly impossible burden when seeking life imprisonment for a child—proving that a child is incapable of possible future rehabilitation—about 1,300 individuals sentenced as children before Miller and Montgomery continue to serve life without parole. And in new cases, children in a small subset of jurisdictions continue to be sentenced to life without parole at a rate that far surpasses that of the rest of the country.

Children Who Have Experienced Trauma Are Disproportionately Sentenced to Life in Prison
Children sentenced to life in prison are significantly likelier than the general population to have been exposed to adverse childhood experiences. Adverse childhood experiences are identified by experts as emotional abuse, physical abuse, sexual abuse, emotional neglect, physical neglect, violent treatment toward the child's mother, household substance abuse, household mental illness, parental separation, and having an incarcerated household member.

In the general population, it is estimated that 25 to 34 percent of children have experienced at least one childhood trauma. In contrast, among children sentenced to life in prison, 80 percent have witnessed violence in their homes, almost 50 percent have been physically abused, and 20 percent have been sexually abused. For girls, the statistics are even more staggering. Eighty percent of girls sentenced to life in prison have been physically abused, and 77 percent have been sexually abused. See Ashley Nellis, The Lives of Juvenile Lifers: Findings from a National Survey (The Sentencing Project 2012).

Trauma can alter a child's brain significantly, and exposure to trauma is associated with an increase in adolescent interpersonal violence and a lack of capacity for emotional self-regulation. Specifically, studies have found that children with histories of child abuse and other trauma often demonstrate impulsive behavior, risk-taking behavior, and decreased self-control. Trauma can reshape a child's brain, priming survivors of trauma to respond excessively to minor triggers. And while the impacts of trauma provide critical context for children who commit serious crimes, the plasticity of children's brains makes them especially amenable to rehabilitation, therapy, and positive growth.

Children of Color Are Disproportionately Sentenced to Life in Prison
Seventy percent of all youth ever sentenced to life without parole are people of color—primarily black and Latino—and racial disparities continue to worsen. Miller banned mandatory juvenile life-without-parole sentences and guaranteed all children an individualized sentencing hearing before life without parole can be imposed. Yet, despite the now-discretionary nature of juvenile life without parole and the Supreme Court's unequivocal language that the penalty may be imposed only if a child has no capacity for rehabilitation, racial disparities have increased under this new framework. Of new cases tried since Miller, about 74 percent of children sentenced to life without parole have been black—as compared with about 60 percent before Miller.

The U.S. Supreme Court Now Must Ban Life Without Parole for Children
Despite the rapid progress and reform in many states, compliance with the Supreme Court's mandate in Miller and Montgomery has been inconsistent, arbitrary, and in some jurisdictions, nonexistent. And the penalty continues to be imposed disproportionately on children of color and children who have experienced trauma.

The Supreme Court looks to proportionality and rate of change when determining whether a practice violates national standards of decency and constitutes cruel and unusual punishment under the Eighth Amendment.

[The] Court's precedents have emphasized the importance of state legislative judgments in giving content to the Eighth Amendment ban on cruel and unusual punishment. "Eighth Amendment judgments should not be . . . merely the subjective views of individual Justices." For that reason, [the Court has] emphasized that "judgment should be informed by objective factors to the maximum possible extent." The "clearest and most reliable objective evidence of contemporary values" comes from state legislative judgments.

Moore v. Texas, 137 S. Ct. 1039, 1056 (2017) (Roberts, C.J., dissenting).

Now that half of all states do not have or do not use life without parole as a sentencing option for children—and have abandoned the practice at a remarkable pace—the United States has reached a critical tipping point.

The U.S. Supreme Court must recognize what a growing number of states already have: that life without parole cannot and should not be imposed on any child. National consensus now dictates that the Supreme Court declare life without parole categorically to be cruel and unusual punishment when imposed on children because all children are capable of positive growth and change.

Heather Renwick serves as legal director at the Campaign for the Fair Sentencing of Youth in Washington, D.C.

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