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May 15, 2017 Articles

To Kill (Or Imprison for Life) a Juvenile: The Proper Exercise of Judicial Discretion for Sentencing a Juvenile Offender

André M. Board

The killing of a mockingbird, in the Pulitzer Prize–winning novel To Kill a Mockingbird, is emblematic of the destruction of innocence. The songbird, in the literary piece, embodied a purity that brought harm to no one and should not be killed. A child or adolescent reflects that same innocence, and that wholesomeness invokes an earnest protection from harm. However, what if that mockingbird or adolescent harms another? Does the law seek to shelter the now "juvenile" from the retributive hand of justice? United States v. Under Seal, 819 F.3d 715 (4th Cir. 2016), engages this matter from the purview of legislative intent and constitutional jurisprudence.

The severability of unconstitutional provisions within statutes to punish juvenile criminal acts was an issue of first impression for the court. Previous Supreme Court decisions prohibited juveniles from being sentenced to death or to mandatory life without parole. In Under Seal, the government sought to prosecute a juvenile for murder in aid of racketeering under 18 U.S.C. § 1959(a)(1), by severing or excising the statute to permit punishment under an inapplicable crime. The appellate court held that it is impermissible to use excision to combine the penalty provisions for two distinct criminal acts. The court found the government's proposal to amount to an impermissible judicial rewriting of the statute's murder penalty provision. Courts are provided the discretion to interpret legislative intent when determining the applicability of the law to a set of facts, but courts cannot rule in a manner that would alter the purpose or punishment set forth by the statute.

This case note discusses the effect the Under Seal decision will have on subsequent cases involving criminal acts charged against a juvenile. Second, it discusses how the decision in Under Seal limits the potential abuse of the principle of severability to prosecute crimes generally. Finally, the note briefly discusses the implications retroactivity will have on previous convictions.

The Case

In this matter, the government sought to transfer a juvenile defendant for prosecution as an adult. The defendant was almost 18 years old when he allegedly participated in a gang-related murder. The government sought to prosecute the defendant for murder in aid of racketeering under 18 U.S.C. § 1959(a)(1). This statute provides that whoever, while engaged in racketeering, murders another individual will be punished by death or life imprisonment; for kidnapping, the punishment is imprisonment for any term of years or life. The government filed a delinquency information and certification against the defendant and moved to transfer him for prosecution as an adult for murder in aid of racketeering. The district court concluded that although factors were present to support the transfer, granting the motion would be unconstitutional. The court explained that it lacked discretion to sentence a defendant to less than the statutory mandatory minimum life sentence for a violation of section 1959(a) for murder. Court precedent held that imposing a mandatory life sentence on a juvenile was constitutionally prohibited. The court rejected this argument and explained that section 1959(a)(1) could be excised to permit a term of years sentence for a juvenile. The court reasoned that it had no authority under section 1959(a)(1) to impose a sentence other than the mandatory minimum provided by the statute required for murder.

The appellate court reviewed not only the district court's statutory and constitutional rulings related to the denied motion to transfer but also whether the denial was an abuse of discretion. On appeal, the government contended that the impermissible punishments can be excised from section 1959(a)(1), leaving intact language for the separate act of kidnapping in aid of racketeering, which would authorize a term of years up to a discretionary maximum sentence of life. The appellate court held the government's proposal contravened the principles governing both severance and due process. The appellate court found the government's proposal an impermissible judicial rewriting of the statute's murder penalty provision. The court agreed that the defendant cannot be prosecuted for murder in aid of racketeering because his conviction would require the court to impose an unconstitutional sentence against a juvenile. Furthermore, the appellate court affirmed the district court’s denial of the government’s motion to transfer the defendant for prosecution as an adult.


The Juvenile Justice and Delinquency Prevention Act states that a juvenile, between 15 and 18 years old, can be transferred to adult status for prosecution if he or she allegedly committed certain violent crimes, such as murder. A juvenile can be transferred if, after a hearing, a preponderance of the evidence shows that transferring the juvenile is in the interest of justice. In deciding to transfer a juvenile, a court considers the defendant's age, social background, nature of the alleged offense, and the juvenile's prior delinquency record. However, satisfying these conditions does not ensure the transfer, prosecution, or sentencing of a juvenile. The Supreme Court's interpretation of the U.S. Constitution has provided guidance on the constitutionality of sentencing juveniles.

The Eighth and Fourteenth Amendments of the U.S. Constitution prohibit sentencing a juvenile to the death penalty. The Eighth Amendment, applicable to the states through the Due Process Clause of the Fourteenth Amendment, prohibits cruel and unusual punishment. The Supreme Court explained how the death penalty would be a disproportionate, cruel and unusual punishment if applied to a juvenile in Roper v. Simmons, 543 U.S. 551 (2005). The death penalty's purpose is to promote retribution and deterrence of capital crimes by prospective offenders. Roper explained the Court's prior decisions regarding the execution of a juvenile and how such a punishment would "offend civilized standards of decency." Sentencing a juvenile to a death is rare and antiquated; the last juvenile execution, under the age of 16, was in 1948. The Court opined that "[t]he reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult." Furthermore, "a lack of maturity" and an "underdeveloped sense of responsibility found in youth more often than in adults" are acceptable rationales for a juvenile's criminal behavior. Last, the Court explained that juveniles are more vulnerable or susceptible to peer pressure and have less experience and control over their environment, and that their character is not as well formed as that of an adult. The Court concluded that these characteristics substantiated an Eighth Amendment prohibition of the death penalty on a juvenile.

The Eighth Amendment also prohibits sentencing juveniles found guilty of murder to mandatory life without parole. Miller v. Alabama, 132 S. Ct. 2455 (2012), examined how a mandatory life sentence for a juvenile is "cruel and unusual punishment" under the Eighth Amendment. In Miller, a 14-year-old was charged with capital felony murder while committing arson. The lower court approved the defendant's transfer from juvenile status to be sentenced as an adult. The charged crime carried a mandatory minimum punishment of life without parole. The lower court held that life without parole was "not overly harsh when compared to the crime" and the mandatory nature of the sentencing scheme was permissible under the Eighth Amendment.

Graham v. Florida, 560 U.S. 48 (2010), held that life without parole violates the Eighth Amendment when imposed on juvenile non-homicide offenders. Miller examined the precedent regarding categorical bans on sentencing practices based on the culpability of the juvenile and the severity of the penalty. Roper and Graham established that children are constitutionally different from adults for the purposes of sentencing. Juveniles are deemed by the Court to have a diminished culpability and greater prospects for reformation, making them "less deserving of the most severe punishments." However, Miller did limit this theory by asserting that a juvenile whose crimes reflect irreparable corruption may be sentenced to life without parole. Miller further extended the rationale provided in Graham to forbid a sentencing scheme that mandates life in prison without the possibility of parole. Such a scheme poses a great risk of disproportionate punishment when youth and its embodied characteristics are disregarded.

The Court in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), gave the Miller holding a retroactive effect. A retroactive effect would permit juveniles sentenced, before the Miller decision, to life imprisonment without parole an opportunity to be reheard under a collateral review (an attack on the judgment). The Court reasoned that the retroactive effect would not require a "relitigation" of sentences or convictions in every case in which a juvenile received mandatory life without parole. The government would have to find a remedy that would not force a juvenile, whose crimes reflect only transient immaturity and who has since matured, to serve a disproportionate sentence in violation of the Eighth Amendment.

In Under Seal, the government argued to sever or excise the unconstitutional portions of the statute to apply the remaining portions. When a court determines that a statute contains unconstitutional provisions, it has the authority to "try to limit the solution to the problem" by "sever[ing] its problematic portions while leaving the remainder intact." A court can sever a statute and eliminate unconstitutional provisions of a statute so long as the remaining statute is fully operative as law and the congressional intent is not modified. However, if the "balance of the legislation is incapable of functioning independently," then severance is not permissible. Furthermore, a void in the statutory language cannot be filled by looking to other offenses.

The government in Under Seal proposed a penalty provision that would differ from the intent of the legislature, which would counter the Constitution's guarantee of due process. A defendant must receive fair notice of the conduct that will subject him or her to punishment and the penalty the government may impose. The right to a fair warning may be unlawfully omitted by an "unforeseeable and retroactive" judicial severability analysis resulting from excising one penalty provision to apply another.

The principle of severability was a matter of first impression for the court in Under Seal.The decision provides another consideration that needs to be made when sentencing a juvenile for a heinous crime. The appellate court in this matter appropriately followed the precedent of juvenile sentencing and prohibited the principle of severance because the action would change the legislative intent or the primary purpose of the statute. If the court permitted the application of severance or excision, as proposed by the government in this matter, it would empower the judiciary to create laws, a power exclusively reserved for the legislative branch. Furthermore, if the judiciary is provided this type of latitude, statutory law could be modified by prosecutors throughout the county to convict and sentence to a desired result.


Judiciary authority limitations. The powers of the branches of government are clearly defined and divided. Laws are created and amended by Congress. The judiciary interprets these laws and enforces the congressional intent. The government, in Under Seal, proposed to sever unconstitutional provisions of a statute to permit a constitutional punishment of an unrelated crime. The court properly denied this application because it would extend judiciary discretion beyond its power. The judiciary cannot create new laws or modify them in manner that would alter or invalidate legislative intent. Limiting the breadth of severability and its overall application in Under Seal ensures prosecutors will remain within the bounds of judiciary power regarding statutory interpretation.

Preventing an abuse of government prosecutor power. The goal of every prosecutor is to put guilty criminals in prison. The prosecution applies statutory law to facts to ensure a judicial conviction and that the violating offender receives an applicable punishment. A prosecutor should not be given the ability to sever unconstitutional punishment provisions within a statutory law only to assert punishments of an inapplicable crime within the same law. This action not only would be a miscarriage of justice but would create a disparate impact on sentencing. This type of action would promote higher conviction rates and infringe on the legislative purpose the statute was created to serve. The appellate court in Under Seal appropriately limited the government's ability to sever the applicable statute in a way that would punish a criminal juvenile offender contrary to the congressional intent.

Retroactivity of Miller. Miller created a retroactivity of sentencing on collateral review that will have future implications on prior decisions. Under Seal did not completely address the retroactivity implications of Miller because it was not applicable to the facts of the case. However, Under Seal further defines the protections afforded to criminal juveniles sentenced to death or mandatory life imprisonment without parole. Any juveniles sentenced to death or life without parole, prior to Miller, will seek collateral review of their judgment in reliance on the rationale in Under Seal. The issue of retroactive remedies for now unconstitutional juvenile sentences, if left in its current state, will become problematic for lower courts.

The Supreme Court must now ensure that the lower courts appropriately apply the rule from Miller regarding resentencing matters of retroactivity. Miller established that juveniles cannot be sentenced to life imprisonment without parole. Lower courts must evaluate the factors established in Miller, the defendant's age and whether the crime reflects transient immaturity, to determine if the sentencing is protected under the Eighth Amendment.

Pursuant to Miller, the Supreme Court of Louisiana must release the now 70-year-old Henry Montgomery, who received at the age of 17 an automatic life sentence without parole. The court has an opportunity to free an individual who has served time beyond the promotion of retribution and deterrence of capital crimes by juveniles. States have a responsibility to effectively apply the retroactivity of Miller by reducing sentences or providing opportunities for parole. Mr. Montgomery and individuals similarly situated are owed a debt by the U.S. government: to be provided the constitutional protection they are entitled to.


The Under Seal decision further defines the sentencing of juvenile offenders. Under Seal establishes the parameters for the use of severance and excision in eliminating unconstitutional provisions of a statute. Under Seal can be used to further support retroactive resentencing or the inclusion of parole provisions in a life sentence. The decision represents another case that solidifies the constitutional protections provided to juveniles from "cruel and unusual punishments" under the Eighth Amendment.

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