Author: Cameron Downer, Associate Member, University of Cincinnati Law Review
The Supreme Court of Ohio has an opportunity to find juvenile life without parole unconstitutional as cruel and unusual punishment. Eric Long, a juvenile at the time he committed violent crimes, was sentenced to life without parole, the same punishment given to his adult accomplices. At sentencing, the trial court failed to consider the long-standing scientific evidence behind adolescent brain development that supports the conclusion that life without parole for a juvenile violates the Eighth Amendment proportionality requirement. Considering this evidence severely weakens the trial court’s justifications for the sentence, the Supreme Court of Ohio should take this opportunity in reviewing Eric Long’s case to find his sentence unconstitutional.
In March 2009, 17-year-old Long was involved in two different shootings in Ohio. In the first shooting, Long and two adult friends shot up a house with assault rifles and a handgun after an altercation in a bar. As a result of the shootout, one person suffered a gunshot wound to the back of the neck and another suffered a gunshot wound to the face. Two weeks later, Long and his two adult friends engaged in a highway shooting. During the shootout, Long and his friends shot and killed two passengers in the other vehicle that then crashed into a guardrail.
Long was convicted of three counts of felonious assault, one count of improper discharge of a firearm into a habitation, two counts of aggravated murder, two counts of having a weapon while under a disability, and one count of carrying a concealed weapon. Although a juvenile at the time of the murders, Long was tried as an adult and sentenced to life without parole.
Punishing Bad Behavior or Lack of Brain Development?
In 1999, scientists used structural imaging to demonstrate that adolescent brains are still in a developmental stage, disproving the “ingrained scientific belief that such maturation was largely complete in early childhood.” These studies identified four specific neurological factors that contribute to juvenile behavior.
First, juveniles’ frontal lobes are not fully developed and will not be developed until they are in their early 20’s. As a result, juveniles have an innate deficiency in imagining the future or long term consequences of their actions. Second, juveniles go through dramatic hormone and emotional changes, especially during the adolescent period that starts in the early teenage years. At this time, testosterone, which is associated with aggression in juvenile boys, increases tenfold. Therefore, juveniles are more predisposed to value the rewards of risky behavior without fully considering the risks. Third, the connection between the frontal cortices and the areas of the brain associated with social and emotional processing is weak. This weak connection contributes to poor impulse control and decreased emotional regulation.  Fourth, juveniles experience a “maturity gap” during the period after puberty, but before the brain is fully developed. This occurs when an adolescent has a sexually mature body and hormonally activated brain, but lacks adult-level mental skills, such as defusing anger or foreseeing consequences. This causes the adolescent’s physical and mental self to in be in a state of flux. Overall, the studies found, “the normal attributes of the teen brain add up to ‘a prescription for bad choices,’ generally reflective more of normative developmental process than of bad character.”
As a result of this increased awareness, the Supreme Court of the United States in the early 2000’s started to give more deference to neuroscience in determining whether certain sentences are “cruel and unusual” under the Eighth Amendment. For example, the Court in Atkins v. Virginia held that executing the mentally retarded was a violation of the Eighth Amendment; in Roper v. Simmons, the Court held that executing juveniles violated the Eighth Amendment; in Graham v. Florida, the Court held that the Eighth Amendment prohibits a life without parole sentence to non-homicide juvenile offenders; and in Miller v. Alabama, the Court held that mandatory life without parole sentences for juveniles violated the Eighth Amendment. The Massachusetts Supreme Court on December 24, 2013, took the next logical step and held that juvenile life without parole is cruel and unusual. The court reasoned, “because the brain of a juvenile is not fully developed, either structurally or functionally, by the age of eighteen, a judge cannot find with confidence that a particular offender, at that point in time, is irretrievably depraved.”
Juvenile Life without Parole and the Justifications of Punishment in a Scientific Context
The literal meaning behind the Eighth Amendment has been abandoned. Now the Eighth Amendment requires that a “punishment for a crime should be graduated and proportioned to both the offender and the offense.” In examining proportionality, the U.S. Supreme Court in Kennedy v. Louisiana stated that a “punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution.” To determine whether a punishment reaches the level of disproportion as to constitute cruel and unusual, the U.S. Supreme Court balances the different justifications for the punishment in light of “evolving standards of decency that mark the progress of a maturing society.”
Looking at these main justifications for punishment, it becomes clear that the rationale for juvenile life without parole is not justified by any of the theories. Therefore, the punishment fails the proportionality requirement and is unconstitutional.
Arguably the most prominent justification for punishment, retribution is the rationale that people should be punished as repayment or revenge for the offense committed. As a way to measure what punishment is appropriate under retribution, an offender’s culpability is taken into account. In essence, the more culpable an individual is in carrying out a particular offense, the greater his or her punishment should be. 
As discussed in Roper, juveniles have diminished culpability. Specifically, a juvenile’s lack of maturity and underdeveloped sense of responsibility often lead to poor choices; juveniles are “more vulnerable … to negative influences and outside pressures, including peer pressure,” and a juvenile’s personality traits are more malleable than adults. Therefore, it does not serve the interest of retribution to punish a juvenile as an adult if he is more susceptible to outside influences and less capable than an adult at making decisions.
In addition, a juvenile life without parole sentence is by nature more severe than an adult life without parole sentence. As discussed in Graham v. Florida, “a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender. A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only.”
Deterrence is based upon the assumption that the increased severity of a punishment makes people less likely to commit the offense and consists of general and specific deterrence. In the context of juveniles, this assumption is less realistic and carries decreased force.
Due to the under developed brain, juveniles have a hard time imagining the future and weighing future consequences. In addition, juveniles’ relative lack of experience and knowledge make them less likely than adults to know the given punishments for criminal conduct. As such, prescribing more severe punishments for juveniles is less effective because it is unlikely that a juvenile would know of the more severe punishment and make it a part of the decision to engage in criminal conduct. This reality weakens the applicability of the general deterrence justification to juveniles.
The specific deterrence justification of punishment, which involves punishing a specific person to prevent that person from committing the same offense, has no application to life without parole sentences. Since the offender is never released from prison, he or she is, by nature of the sentence, prevented from committing the offense in public again. In the case of juveniles, a sentence of anything less than life without parole gives the juvenile an opportunity to be specifically deterred, allowing him to re-enter society with a full understanding of the consequences of his previous offense.
Rehabilitation, which played a big role in the U.S. Supreme Court decision to invalidate mandatory juvenile life without parole sentences, is the idea that punishment should aim to change the flawed character of the offender and to reduce the probability that he will offend again. However, just as with the death penalty, rehabilitation in the context of juvenile life without parole is irrelevant. Similar to specific deterrence, rehabilitation cannot be considered a justification for juvenile life without parole because imprisoning someone for life prevents them from ever returning to the public.
Even considering rehabilitation in the broad sense—making the inmate a better person before he dies—has little applicability to juvenile life without parole. An inmate with a life without parole sentence is often denied access to educational, vocational, and drug rehabilitation services. In addition, juveniles sentenced to life without parole are thrown directly into a population of hardened adult criminals. Without any rehabilitative programs or hope for release, it becomes almost impossible for the juvenile inmates to mature and grow.
Eric Long deserves to be imprisoned for his deplorable crimes, maybe for the rest of his life. However, putting him in prison and permanently throwing away the key right now is not the right answer in a society that requires a punishment to be justified and proportional to the offender. Through science, we have discovered juveniles’ predispositions and the reason behind their innate immaturity and behavior. With these discoveries, the courts now have scientific, objective insight to better determine whether juvenile life without parole comports with the Eighth Amendment.
The science is well-established and the legal implications are obvious. Following this precedent, the Supreme Court of Ohio should find that juvenile life without parole is cruel and unusual.
For more information on State of Ohio v. Eric Long, visit Legally Speaking Ohio.
 Diatchenko v. DA, 466 Mass. 655, 669 (2012) (Central to the Eighth Amendment is the concept of proportionality which flows from the fundamental precept of justice that punishment for crimes should be graduated and proportioned to both the offender and the offense).
 Cameron Downer, Oral Argument Preview: Discretionary Life Without Parole Sentence for a Juvenile Homicide Offender? State of Ohio v. Eric Long, Legally Speaking Ohio (June 3, 2013) http://www.legallyspeakingohio.com/2013/06/oral-argument-preview-discretionary-life-without-parole-sentence-for-a-juvenile-homicide-offender-state-of-ohio-v-eric-long/.
 Terry A. Maroney, The False Promise of Adolescent Brain Science in Juvenile Justice, 85 Notre Dame L. Rev. 89, 98 (2009).
 Adolescence, Brain Development and Legal Culpability, (Am. Bar Ass’n Juvenile Justice Ctr.), Jan. 2004, at 2, available at http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_juvjus_Adolescence.authcheckdam.pdf.
 Maroney, supra note 4, at 110.
 Adolescence, supra note 4, at 2.
 Maroney, supra note 4, at 110.
 Sandra J. Ackerman, The Adolescent Brain—The Dana Guide, The Dana Foundation, (Nov. 2007), available at https://www.dana.org/news/brainhealth/detail.aspx?id=10056.
 Sarah Schweitzer & Michael Levenson, Mass. SJC Bars No-Parole Life Terms for Youths: Says Brains of Juveniles Not Yet Fully Developed, The Boston Globe (Dec. 24, 2013), http://www.bostonglobe.com/metro/2013/12/24/mass-high-court-strikes-down-life-without-parole-sentences-for-juveniles/eyjKrVSE2EXD0KF7wQXX5M/story.html.
 Diatchenko v. DA, 466 Mass. 655, 669 (2013).
 Miller v. Alabama, 132 S. Ct. 2455, 2487 (2012) (Alito dissent).
 Kennedy v. Louisiana, 128 S. Ct. 2641, 2649 (2008).
 John F. Stinneford, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause, 97 Va. L. Rev. 899, 904-05 (2011).
 See Generally Sanford H. Kadish, Stephen J. Schulhofer & Carol S. Steiker, Criminal Law and its Processes: Cases and Materials 80-101 (8th ed. 2007).
 Graham v. Florida, 130 S. Ct. at 2028.
 See Generally Kadish, supra note 17, 80-101.
 Miller v. Alabama, 132 S.Ct. 2455 (2012); Meghan J. Ryan, Death and Rehabilitation, 46 U.C. Davis L. Rev. 1231, 1233 (2013).
 Graham v. Florida, 130 S. Ct. at 2030 (Life without parole “forswears altogether the rehabilitative ideal.”).
 Robert Johnson & Chris Miller, An Eighth Amendment Analysis of Juvenile Life Without Parole: Extending Graham To All Juvenile Offenders, 12 RRGC 101, 118-19 (2012).