By Jody Kent and Beth Colgan. Kent is director and national coordinator of the Campaign for the Fair Sentencing of Youth, and Colgan is the managing attorney of the Institutions Project at Columbia Legal Services. Kent and Colgan are authors of an Issue Brief recently published by ACS called "A Just Alternative to Sentencing Youth to Life in Prison Without the Possibility of Parole."
The U.S. Supreme Court's recent decision in Graham v. Florida, has conclusively established that for the purposes of the Eighth Amendment, youth are different-and therefore are afforded greater protections-than adults. In establishing a categorical ban on sentencing youth who have committed non-homicide offenses to life in prison without the possibility of parole (whether the constitution prohibits the sentence in homicide cases was not in front of the Court), the Court relied on longstanding precedent related to the Cruel and Unusual Punishments Clause, which "underscore the essential principle that, under the Eighth Amendment, the State must respect the human attributes even of those who have committed serious crimes." (7)
The human attributes at issue in Graham, were the unique characteristics of youth. As in its 2005 opinion in Roper v. Simmons, which outlawed the imposition of the death penalty against minors, the Court looked to psychosocial and scientific research that show "fundamental differences between juvenile and adult minds" linked to decision making, moral reasoning, and culpability. (17) As Amici including the American Psychological Association, American Psychiatric Association, American Medical Association and American Academy of Child and Adolescent Psychiatry explained in detail, as a result of anatomical differences between juvenile and adult brains and differing degrees of psychosocial development, youth do not have adult levels of judgment, impulse control, or the ability to assess risks. These same differences mean that youth are more amenable than adults to positive character development and rehabilitation.
That those unique qualities of youth make it impossible for a judge to know at sentencing whether a youth is truly incorrigible, or whether he or she may someday be rehabilitated and redeemed, resonated throughout the Court's opinion. (22) That principle led the majority to conclude that a categorical ban on the sentence was required. While Chief Justice John Roberts joined the majority in concluding that youth must be afforded greater protections under the Eighth Amendment than adults, in his concurring opinion, he argued that a case-by-case proportionality analysis where age is considered at sentencing was a sufficient remedy. In the majority opinion, however, Justice Anthony Kennedy rejected such an approach, writing that the courts could not "with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change." (27)