States Can’t Throw Away the Key When Locking Up Juveniles Who Are Not Killers

June 2, 2010
Guest Post

By Anthony F. Renzo, Professor of Law, Vermont Law School. Professor Renzo specializes in constitutional law and litigation.
Wielding the Eighth Amendment as a sword, the Supreme Court in Graham v. Florida outlawed as "cruel and unusual" punishment the imposition of life without parole sentences for all persons convicted of non-homicide offenses when they were juveniles (17 and younger). The Court held that life sentences for juveniles who do not kill violate the Eighth Amendment unless such juveniles have "some meaningful opportunity" to seek release by demonstrating rehabilitation and reform.

Terrance Jamar Ghaham was 17 years old at the time he violated his probation on an armed burglary offense. He was sentenced to life imprisonment by a trial judge who concluded that Graham was incorrigible despite recommendations of limited term sentences by the Department of Corrections and the State prosecutor. Since Florida had abolished its parole system for all crimes, the life sentence left Graham with no opportunity for release for the rest of his life barring executive clemency. Graham's Eighth Amendment challenge to his sentence was rejected on appeal to the Florida District Court of Appeal, which concluded that Graham was "incapable of rehabilitation." In an opinion by Justice Kennedy, the Supreme Court reversed, finding such sentences so disproportionate and rare that they could not bear the weight of the Eighth Amendment.

That the Eighth Amendment's ban on cruel and unusual punishments extends to prison sentences has been treated as settled law for 100 years until the appointment of the current crop of arch-conservatives to the Court, led by Scalia and Thomas, who, joined by Justice Alito, dissented in Graham. Their view is that the original meaning of the Eighth Amendment was limited to outrageous methods of punishment such as torture and did not extend to the proportionality of prison sentences, which, according to their theory, was left to the limitless discretion of State and federal legislative bodies. The majority in Graham takes a quite different approach. In a complete rejection of the dissenters' rigid and narrow reading of "cruel and unusual punishments," the Court reaffirms once again that "courts must look beyond historical conceptions to ‘the evolving standards of decency that mark the progress of a maturing society.'" Inherent in this process is an inquiry into "proportionality," which is "central to the Eighth Amendment."

The Court did not stop at reaffirming the application of an Eighth Amendment proportionality calculus to prison sentences, however. For the first time the Court subjected a prison sentence to categorical restrictions, in this case outlawing all life without parole sentences for non-homicide juvenile offenders. While the use of categorical rules to enforce the Eighth Amendment is not new when applied to the death penalty, its application to the terms of a prison sentence is both new and noteworthy. Before Graham, the conventional wisdom limited categorical restrictions to certain classes of offenders only when sentenced to death. Indeed, the Court concedes that it has not considered previously a categorical challenge to a term-of-years prison sentence. Nonetheless, while acknowledging that "death is different" than any prison sentence, the Court found that "life without parole sentences share some characteristics with death sentences that are shared by no other offenders." These common characteristics include that "the sentence alters the offenders life by a forfeiture that is irrevocable," and deprives the offender of "the most basic liberties without hope of restoration."

The Court cites Florida's juvenile sentencing practices as examples of why Eighth Amendment guarantees for juvenile offenders cannot be adequately protected from arbitrary sentencing decisions in the absence of a categorical prohibition. The Court found nothing in the Florida law that prevented its courts from sentencing a juvenile non-homicide offender such as Graham to life without parole based on a "subjective judgment" that the defendant's crimes demonstrate a character that is irreversibly depraved and not subject to reform. Under the Eighth Amendment, the sentencing court cannot be allowed to base its sentence on subjective assumptions that a juvenile is beyond hope. As the Court said when it outlawed the death penalty for juveniles in Roper v. Simmons, "it is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption."

The Court viewed these life without parole sentences as the equivalent of being sentenced to die in prison, which was constitutionally unacceptable for non-homicide offenses given most juveniles inherent potential for rehabilitation as they mature. Even crimes of violence, including rape, did not warrant life without parole, and the Court was unwilling to leave juveniles who had not killed at the risk of overzealous state officials mistakenly imposing such an irreversible sentence for reasons of passion or prejudice. Indeed, the Court makes special mention of the facts in Sullivan v. Florida, the companion case argued the same day as Graham, as a second example of how Florida sentencing practices were insufficient to protect juveniles who were not killers from unconstitutionally cruel punishments. (Sullivan's petition was dismissed as improvidently granted, presumably for procedural reasons unrelated to the merits.) Although Sullivan was only 13 years old when sentenced to life without parole, his crime was rape, a crime of violence arguably more heinous than Graham's crimes. Nonetheless, the Court made clear that sentences such as Sullivan's were imposed "based only on a discretionary, subjective judgment by a judge or jury that the offender is irredeemably depraved," and such systems are not capable of preventing life without parole sentences "despite insufficient culpability." While acknowledging that categorical rules tend to be imperfect, the Court concluded that a "clear line" is necessary to eliminate an undue risk of irreversible life sentences for minors who do not kill and whose capacity for change and growth cannot be accurately measured by society.

Not only are minors at risk of arbitrary life without parole sentences in the absence of Eighth Amendment limitations, the Court had little difficulty in finding a national consensus opposed to the use of such sentences. Such a consensus demonstrates how rare and, hence, "unusual" it is for states to employ such punishments. The Court found convincing that there are only 129 juvenile non-homicide offenders serving life without parole sentences in the U.S., with 77 of those imprisoned in Florida and the remainder in just 10 states and the federal system. The Court discounted the fact that the sentencing laws in 37 States allow for such sentences, reasoning that it was never imposed in 27 of those states. According the Court in Graham, the mere fact that such a sentence is theoretically possible under general statutory sentencing schemes does not necessarily mean that legislators deliberately concluded that such a sentence was appropriate. For example, Florida acknowledged at oral argument that even a 5 year old could receive a life without parole sentence under the letter of the law, but it does not follow that such a penalty was endorsed through deliberate and full legislative consideration merely because the legislature voted for a system that in general makes juveniles eligible for life without parole sentences. The Court made clear in Graham that actual sentencing practices are a more important component of the consensus inquiry than looking at the face of legislation. Indeed, that it was seldom used when it was available was further evidence that the sentence was disfavored by state criminal justice systems. Concluding that life without parole sentences for juveniles who do not kill were exceedingly rare, the Court ruled that a national consensus had developed against it.

Support for the Court's conclusion was provided by international opinion. While not controlling as authority, the Court followed its "longstanding practice" of noting the global consensus against life without parole sentences for non-lethal crimes committed by persons under the age of 18. In fact, the U.S. is the only nation in the world that imposes life without parole sentences on juvenile non-homicide offenders. Moreover, Article 37(a) of the United Nations Convention on the Rights of the Child, ratified in 1989 by all countries of the world except the U.S., prohibits the imposition of life imprisonment without the possibility of release for offenses committed by persons below 18 years of age.

While the Court's decision in Graham forbids government from throwing away the key when it locks up juveniles who are not killers, it is also important to keep in mind what the decision does not do. First, it does not explicitly address the constitutionality of lengthy prison sentences of a definite term that are imposed without the possibility of parole. Second, Graham does not guarantee the release of juveniles during their natural lives, only that juveniles sentenced to life for non-homicide offenses must be given "some realistic opportunity" to obtain release based on demonstrated maturity and rehabilitation.

On the other hand Graham does forbid the State from making judgments at the time of sentencing that these juvenile offenders will never be fit to reenter society. Preserving some glimmer of hope for minors who could spend the rest of their lives in prison seems a small price to pay for not deferring to the opinions of 18th Century slave owners on what punishments transgress Eighth Amendment standards of humane treatment. As the Court in Graham reminds us, it is an "essential principle" under the Eighth Amendment that "the State must respect the human attributes even of those who have committed serious crimes."