Two things strike me about Monday's headline-grabbing high court rulings in Miller and Jackson, banning mandatory sentences of life without parole for juvenile killers.
Mandatory versus discretionary sentencing
First, the U.S. Supreme Court did not outlaw sentences of life without parole (LWOP) for juveniles, even though we are one of the only countries in the world to impose such punishment. The cases only take issue with mandatory LWOP sentences. In doing so, the justices are restoring a bit of the discretion traditionally afforded judges and juries to weigh mitigating factors before imposing a sentence.
Second, the court's opinions -- there’s a whopping five in all! -- reflect an escalating ideological tension over what counts as "cruel and unusual punishment" (banned by the Eighth Amendment) under the "evolving standards of a mature society."
For the court’s bare majority of five, evolving standards suggest that children should be treated differently from adults. Thus, the cases of Evan Miller and Kuntrell Jackson are logical extensions of previous rulings banning the death penalty for juveniles (in the case of Roper), and life without parole for juveniles convicted of non-homicide offenses (in Graham).
In this line of thinking, the majority leaned on psychological research and an amicus brief by the American Psychological Association. Luminaries in our field (including Elizabeth Cauffman, Tom Grisso, Terrie Moffitt, Jen Woolard, Larry Steinberg, John Edens, Alan Kazdin, Donald Lynum and Edward Mulvey) helped inform the court of what brain science reveals about "the hallmarks of youth," in the words of Justice Kagan: "immaturity, impetuosity, and failure to appreciate risks and consequences."
Only two justices, Stephen Breyer and Sonia Sotomayor, wanted to go further than eliminating mandatory LWOP sentences. In their concurring opinion, they stated their opinion that the Supreme Court's recent ruling in Graham prohibits imposing the penultimate punishment on minors who did not intend to kill. Here, 14-year-old Kuntrell Jackson merely went along with a group of older boys, one of whom killed a video store clerk in the course of a robbery. He did not kill, nor was there evidence he intended the death.
Society evolving toward harsher punishment
The court’s conservative dissenters, however, lambasted the majority for "march[ing] toward some vision of evolutionary culmination" favoring rehabilitation over retribution. "Unless confined, the only stopping point for the Court’s analysis would be never permitting juvenile offenders to be tried as adults." To the minority, there is no contradiction between the ever-harsher penal policies in 21st century America and the "evolving standards of a mature society." Wrote Chief Justice Roberts in his dissent:
[T]here is little doubt about the direction of society’s evolution. For most of the 20th century, American sentencing practices emphasized rehabilitation of the offender and the availability of parole. But by the 1980’s, outcry against repeat offenders, broad disaffection with the rehabilitative model, and other factors led many legislatures to reduce or eliminate the possibility of parole, imposing longer sentences in order to punish criminals and prevent them from committing more crimes. Statutes establishing life without parole sentences in particular became more common in the past quarter century. And the parties agree that most States have changed their laws relatively recently to expose teenage murderers to mandatory life without parole.
Commenting over at Slate, appellate judge Richard A. Posner cast the whole notion of "evolving standards of a maturing society" as a sick joke:
The concept of cruel and unusual punishments is based on "the evolving standards of decency that mark the progress of a maturing society." Is the United States a maturing society? Surely not in the realm of criminal law, a real disaster area -- we imprison a higher fraction of our population than any civilized nation (and than most of the uncivilized ones), many for trivial crimes involving mind-altering drugs less dangerous than alcohol or cigarettes; life sentences are imposed with abandon; prosecutorial discretion is very broad and often exercised irresponsibly; and judges' sentencing discretion, also broad, is exercised much of the time in an intellectual vacuum.
Posner, a senior lecturer at the University of Chicago Law School, also took issue with using "brain science" to draw a hard line between juveniles and other defendants:
I am struck by the court's reference to "brain science." The court has learned from brain science that teenagers are immature! But we knew that. The problem with using it as a basis for distinguishing between murderers of different ages is that many adult murderers have problems with their brains, too. Why is it not cruel and unusual to sentence them to life in prison? A categorical distinction between a 17-year-old and an 18-year-old seems arbitrary, and in any event a reflection of feelings about children (if teenagers can be called children) rather than of the teachings of brain science. If the court had said -- what I imagine the justices in the majority feel, that emotion dictated the outcome -- that a sentence of life imprisonment (with no parole of course) imposed on a 14-year-old is extremely distasteful, it would have the considerable virtue of candor.
Getting down to the brass tacks
So, what does this ruling mean in practice, and how will it play out?
As it now stands, 29 of the 38 U.S. states that allow sentences of life without parole for juveniles have provisions for such sentences to be mandatory. All told, about 2,000 of the 2,500 people serving LWOP sentences for crimes committed as minors were sentenced under laws mandating that punishment.
Most likely, as a lawyer colleague predicted, some prisoners in states with vigorous advocacy offices may benefit, while those in other states will continue to languish.