by Andrea Huerta
Over the past fifty years, the United States Supreme Court has examined and reexamined the question of how to treat children[1] in the criminal justice system.[2] The Court has frequently held that children are entitled to many of the same due process rights as adults.[3] However, the Court has also opined that, “from a developmental standpoint, [children] are different from adults, which greatly impacts how courts should treat them in a whole host of areas.”[4] Accordingly, the Court has acknowledged three fundamental characteristics of youth: (1) lack of maturity, (2) vulnerability to negative influences, and (3) capacity for change.[5] These are the fundamental characteristics that make children constitutionally different from adults and “less deserving of the most severe punishments.”[6] Cumulatively, these cases represent the Court’s “kids are different” sentencing jurisprudence.[7]
Most recently, in Miller v. Alabama, the Supreme Court held that sentencing juvenile offenders to mandatory life without the possibility of parole (LWOP) violates the Eighth Amendment of the United States Constitution.[8] The juvenile justice community praised this decision, characterizing it as a “historic” decision.[9] Although this was a step in the right direction for juvenile offenders, it was, nevertheless, just a step.[10] In Miller, the Court squandered a real opportunity;[11] rather than prohibiting all LWOP sentences for juvenile offenders, it only prohibited the mandatory imposition of LWOP sentences.[12] Thus, it is still constitutionally permissible for juveniles to be sentenced to LWOP.[13]
“The nature of injustice is that we may not always see it in our time.”[14] In Miller, the Court could have—and should have—relied on the Eighth Amendment to explain how “cruel and unusual” it is for society to determine that a twelve-year-old boy or girl is so incorrigible or so “morally depraved” that they need to be locked up forever.[15] Considering all that we know about how children are different than adults, and should thus be treated differently, the Court must move more drastically.[16] Because of how frequently issues arise relating to juvenile sentencing, the Court should have used this opportunity to provide future sentencers with “a sense of what the law is.” Instead, due to the lack of clarity, decisionmakers will continue to face a significant burden, which affects future juvenile offenders and their families.[17] As a result of the Court’s failure to account for these significant aspects affecting the juvenile justice system, states have been left to interpret Miller’s mandate differently, which, in turn, results in similarly situated children being sentenced very differently and strikes at the heart of fundamental fairness.
Nevertheless, it is clear is that we are seeing a very stark and important rethinking of how juvenile offenders are treated.[18] Accordingly, it is in our nation’s best interest—and society as a whole—for the Court to change its approach in how it decides these cases involving juvenile offenders. Notwithstanding the Court’s ability to positively impact the juvenile justice system, this change depends on a cumulative effort by all three branches of the government, as well as school authorities, and law enforcement agencies; the focus being: rehabilitate juvenile offenders while also ensuring the safety of our communities.
[1] This Article follows the lead of Justice Kagan in Miller v. Alabama, 132 S. Ct. 2455 (2012), and uses the words “children” and “juvenile” interchangeably. See, e.g., Miller, 132 S. Ct. at 2465; Roper v. Simmons, 543 U.S. 551 (2005) (holding the juvenile death penalty violates the Eighth Amendment); Graham v. Florida, 560 U.S. 48 (2010) (holding that life without parole sentences for nonhomicide juvenile offenders violates the Eighth Amendment).
[2] United States Supreme Court Juvenile Justice Jurisprudence, Nat’l Juvenile Defender Ctr., http://njdc.info/practice-policy-resources/united-states-supreme-court-juvenile-justice-jurisprudence/ (last visited Nov. 20, 2016) (summarizing the cases that describe the United States Supreme Court’s major jurisprudence in the area of juvenile justice).
[3] Id.
[4] See id. (For further information on the cases in which the Supreme Court has previously treated juveniles differently regarding their waiver of rights, culpability, and punishment).
[5] See Miller, 132 S. Ct. at 2464; see also Roper, 543 U.S. at 551 (holding the juvenile death penalty violates the Eighth Amendment); Graham, 560 U.S. at 48 (holding that life without parole sentences for nonhomicide juvenile offenders violates the Eighth Amendment).
[6] See Miller, 132 S. Ct. at 2464; see also Roper, 543 U.S. 551 (2005) (holding the juvenile death penalty violates the Eighth Amendment); Graham, 560 U.S. at 48 (2010) (holding that life without parole sentences for nonhomicide juvenile offenders violates the Eighth Amendment).
[7] Perry L. Moriearty, Article: Miller v. Alabama and the Retroactivity of Proportionality Rules, 17 U. Pa. J. Const. L. 929, 937 (2015).
[8] Miller, 132 S. Ct. at 2463.
[9] See, e.g., U.S. Supreme Court Bans Mandatory Life-Without-Parole Sentences for Children Convicted of Homicide, Equal Justice Initiative (Apr. 26, 2012), http://eji.org/news/supreme-court-bans-mandatory-life-without-parole-sentences-for-children-miller-v-alabama.
[10] See Sean Craig, Juvenile Life Without Parole Post-Miller: The Long, Treacherous Road Towards a Categorical Rule, 91 Wash. U. L. Rev. 379, 384 (2013); see also U.S. Supreme Court Bans Mandatory Life-Without-Parole Sentences for Children Convicted of Homicide, supra note 9.
[11] See David R. Dow, Don’t Believe the Hype: Supreme Court Decision on Juvenile Life Without Parole is Weak, The Daily Beast (June 25, 2012, 5:38 PM ET), http://www.thedailybeast.com/articles/2012/06/25/don-t-believe-the-hype-supreme-court-decision-on-juvenile-life-without-parole-is-weak.html.
[12] See Miller, 132 S. Ct. at 2469.
[13] Id.
[14] Obergefell v. Hodges, 135 S. Ct. 2584, 2588 (2015).
[15] See, e.g., Dow, supra note 11.
[16] See Ethan Bronner, Sentencing Ruling Reflects Rethinking on Juvenile Justice, NY Times (June 26, 2012), http://www.nytimes.com/2012/06/27/us/news-analysis-ruling-reflects-rethinking-on-juvenile-justice.html?_r=0 (quoting Lisa M. Wayne, president of the National Association of Criminal Defense Lawyers, “[n]ow all the research and the rulings support what we have known in our hearts to be true.”); see also Robert S. Chang et al., Evading Miller, 39 Seattle U. L. Rev. 85, 95–98, 99–101 (2015) (discussing disproportionate and extraordinary length sentences).
[17] See, Cass R. Sunstein, Beyond Judicial Minimalism, 43 Tulsa L. Rev. 825, 836 (2008) (arguing that there is no adequate justification for judicial minimalism).
[18] See Bronner, supra note 16.