Kuntrell Jackson of Arkansas and Evan Miller of Alabama were both 14 years old when they were convicted of a homicide, and both were sentenced to life sentences without the possibility of parole (LWOP). For more on the background of their cases, click here.
A juvenile’s “deficits in maturity and judgment and decision-making are not crime specific,” said Bryan Stevenson, who represented both offenders. “All children are encumbered by the same barriers.”
Stevenson argued that this was the inevitable conclusion to be drawn from the court’s other two recent cases on juvenile sentencing, Roper v Simmons and Graham v Florida.
Roper’s ban on the death penalty implicitly “acknowledged a difference in murder” between juveniles from adults in murder cases, Stevenson argued, and Graham’s abolition of LWOP sentences for juveniles convicted of non-homicides distinguished the two when it came to an opportunity for parole.
In each case, the state’s sentencing structure mandated an LWOP sentence for the crimes of which the two teens were convicted. Stevenson, representing both offenders, attempted a balancing act between challenging the entire practice of juvenile LWOP sentencing and specifically attacking the mandatory sentencing structures that lead to many of those sentences.
Stevenson, the director of the Montgomery, Ala.-based Equal Justice Initiative, made it clear that his preference was for a categorical ban on LWOP sentences for any offender under the age of 18. Justice Samuel Alito wondered why such a ban should assist someone who is “17 years, 10 months” with “great maturity.”
Justice Antonin Scalia asked Stevenson what could reasonably replace LWOP for juveniles, suggesting the hypothetical sentence of 50 years without the possibility of parole?
“If this Court were to say we ban life without parole for these kinds of offenders, it would be somewhat problematic to suggest that we’re going to get as close to death as possible and then facilitate some kind of review,” Stevenson replied.
That is already an issue that has arisen in the aftermath of the Graham case, with some Florida judges using sentences of more than 50 or 60 years to replace the LWOP sentences handed down to juvenile non-homicide offenders.
Stevenson told Justice Ruth Bader Ginsburg that an opinion that only rolled back the mandatory imposition of LWOP on juveniles “would not satisfy me.” But pressed by Justices Kennedy and Sonia Sotomayor on what other than a categorical ban might suffice, Stevenson suggested a bifurcated decision that would split adolescents into two groups: 14 and under, and 15 to 17.
Stevenson suggested an outright LWOP ban for the teens under 15, and a requirement that LWOP for older teens could not be part of a mandatory sentencing scheme; that such a sentence would have to be subject to individual review.
Alabama Solicitor General John Neiman argued that the court should not extend past the Graham ruling on LWOP because “Graham’s culpability is twice diminished: once because he was a juvenile and once because he had not committed murder,” Miller, he said, is entitled only to protection from the death penalty as a juvenile.
Neiman told the court he knows of no studies that show juvenile offenders are more amenable to rehabilitation in adult correctional settings than adults are, a point that Stevenson later disputed.
The prospect for rehabilitation is an ancillary point, Neiman argued. “Retribution is the primary goal. Society doesn’t want to roll the dice on convicted murderers.”
The arguments of Stevenson and Neiman appeared stymied at times by a lack of hard data. Justices asked for, and did not receive, figures on how many juveniles received LWOP within a mandatory scheme and how many had been offered a plea before conviction.
No number was offered on the latter during arguments; Stevenson pointed out that approximately 85 percent of all juvenile LWOP sentences occurred in states where there were mandatory sentences for homicides, and Justice Stephen Breyer mentioned an estimate that 71 of the 79 LWOP offenders under 15 had received the sentence because it was mandatory.
Justice Scalia queried as to how Stevenson could argue a national consensus against sentencing juveniles to life without parole when “something like 39 states allow it?”
Stevenson then made an argument that drew quick retort from conservative justices on the bench: That most state legislators set no threshold on what age a juvenile can be transferred to adult court, which means they have not really addressed it and are perhaps even unaware that juveniles are subject to mandatory LWOP sentences.
Challenges to his assertion dominated the rest of Stevenson’s time. “If a state allows for it,” asked Chief Justice Roberts, “have they not addressed it?”
Justice Anthony Kennedy, who wrote the majority opinions in Graham and Roper, also questioned Stevenson’s logic on that count.
With 2,300 juvenile LWOP inmates, “it’s difficult to suggest the legislators aren’t aware” juveniles are receiving the sentences, said Justice Kennedy, who wrote the majority opinions in Graham and Roper. [The estimated number of inmates is actually 2,570, according to the according to The Campaign for the Fair Sentencing of Youth].
“If states don’t realize” that their juveniles can receive LWOP sentences,” Justice Alito asked, “why don’t you call them?”
Marsha Levick, deputy director of the Juvenile Law Center in Philadelphia, supported Stevenson’s position, saying that many states didn’t “give consideration to the consequences” when they toughened transfer laws in the 1990s.
In Pennsylvania, she said, “we changed our laws in 1995 and the [mandatory] sentencing schemes were already in place.”
During the hour of argument on Jackson v Hobbs, the court did not appear to take much interest in the main difference in the cases, which is that Jackson did not directly cause the death of a victim and Miller did.
The justices went straight into questions when Stevenson stood up on Jackson’s behalf, preventing him from differentiating the case from Miller, and the questions to he and Arkansas Assistant Attorney General Kent Holt focused on mandatory sentencing.
“Why couldn’t a judge have discretion at sentencing?” Kennedy asked of Holt, to which Holt pointed out that in Arkansas, the decision of a prosecutor to subject a juvenile to adult court and LWOP sentences is reviewable. [This is not the case in all states; some allow prosecutors to directly file cases in adult court].
“Isn’t the life without parole special enough for an adolescent that you have to let him at least make any mitigating arguments he wants?” asked Justice Breyer, suggesting that LWOP for juveniles might warrant at least the same level of review that a death penalty sentence would for adults.
“That’s not a view that I know has been expressed,” Holt replied.
A group of former juvenile judges from around the country wrote the court in support of Miller and Jackson, arguing that they saw similar teens turn their lives around after being convicted of heinous crimes, including murder.
“Based on decades of experience sentencing juvenile offenders, [we] simply do not believe it is possible to tell which youths will change and which will not at the time of their initial sentencing,” the judges wrote in an amicus brief.
“Notwithstanding this unpredictability,” the brief adds, the judges “believe that individualized consideration is essential at the initial sentencing stage.”
The American Psychological Association (APA) argued in a brief supporting Hobbs and Jackson that younger teens are particularly susceptible to the terrible decision-making that leads to a homicide.
“Older adolescents (aged 16-17) often have logical reasoning skills that approximate those of adults, but nonetheless lack the adult capacities to exercise self-restraint, to weigh risk and reward appropriately, and to envision the future,” the APA brief stated. “Younger adolescents are thus doubly disadvantaged, because they typically lack not only those social and emotional skills but basic cognitive capabilities as well.”
The State of Michigan filed an amicus brief joined by 18 other states urging the court not to interfere with the state’s discretion to use LWOP sentences for all homicide convicts.
“This Court should not casually set aside state sovereignty and sentencing authority, particularly in a controversial area that is still subject to considerable national dialogue and debate.
Reform of juvenile sentencing should be done through democratic, not judicial, channels, the brief argues.
“Depriving American citizens of the opportunity to have a public debate comes at a high cost,” the brief stated. “If this Court holds that LWOP sentences for teenage murderers is unconstitutional, society will not have the opportunity to reach this Court’s understanding of ‘justice’ through public exchanges of information and discussion.”
John DiIulio, a former Princeton professor and faith-based leader in the George W. Bush Administration, predicted a wave of young “super-predators” in the mid-1990s, a prediction that prompted researcher James Alan Fox of Northeastern University to suggest that states include harsher sentences for violent young offenders.
Both signed onto an amicus brief in support of Miller and Jackson, and the brief specifically acknowledged their reticence for earlier forecasts.
“The prediction of a juvenile super-predator epidemic turned out to be wrong; in fact, there was no super-predator generation,” the brief stated. “Professor DiIulio, the original proponent of the juvenile super-predator notion and a signatory to this brief, has repudiated the idea and expressed regret, acknowledging that the prediction was never fulfilled.
“Professor James Fox, who urged that Professor DiIulio’s predictions should drive changes in sentencing laws, also has repudiated the notion of the super-predator and is a signatory to this brief.”