Emily Westerfield, Associate Member, University of Cincinnati Law Review
Background
Courts are currently split on the issue of whether imposing a de facto life sentence without parole on a non-incorrigible juvenile homicide offender violates the Eighth Amendment’s prohibition against cruel and unusual punishment. De facto life sentences are term-of-years prison sentences that are so long that they effectively constitute a life sentence, as they fail to provide any hope of one day making a meaningful reentry back into the community. The Supreme Court distinguished between incorrigible and non-incorrigible juvenile offenders in Miller v. Alabama, where it defined non-incorrigible juvenile offenders as those who have committed offenses that reflect not a permanent disposition, but rather “the transient immaturity of youth.”[1] The factors that a court may consider when determining whether a juvenile offender is incorrigible will be discussed in the following sections. While the Eighth Circuit held that a de facto life sentence imposed on a non-incorrigible juvenile homicide offender does not constitute a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment, the Third Circuit recently joined the Seventh, Ninth, and Tenth Circuits by holding that such a sentence does violate the Constitution.
Ultimately, the answer to this issue lies in Supreme Court precedent, and whether the ideology behind our criminal justice system supports giving judges the discretion to sentence non-incorrigible juvenile homicide offenders to a sentence so long that it effectively constitutes a sentence of life in prison without parole. Prior Supreme Court case law points to the conclusion that the Eighth Amendment’s prohibition against cruel and unusual punishment bars the imposition of de facto life sentences without parole on non-incorrigible juvenile homicide offenders. In Graham v. Florida, The Supreme Court established that sentences without penological justification are categorically disproportionate to the crime, and therefore violate the Eighth Amendment.[2] The penological justifications of our criminal justice system do not support de facto life sentences for non-incorrigible juvenile offenders.[3]
Past Supreme Court Cases
- Graham v. Florida
In May of 2010, the Supreme Court held, in Graham v. Florida, that the Eighth Amendment protects non-homicide juvenile offenders from being sentenced to life without parole.[4] The Court determined that juveniles are inherently less morally culpable than adults, and a prison sentence of life without parole takes away any opportunity of restoration and reentry into the community.[5] Based on that reasoning, the Court concluded that the penological justifications behind the prison system—retribution, deterrence, incapacitation, and rehabilitation—are not served by sentencing a juvenile offender who committed a crime that does not involve a murder or intent to murder to life in prison without parole.[6] Graham maintained that the Eighth Amendment implies that prison sentences must be proportionate to the offense and sentences that are not sufficiently upheld by any penological justification of our criminal justice system are disproportionate to the offense.[7] Thus, such sentences violate the Eighth Amendment.[8]
Furthermore, the Court mentioned that the implications of a sentence of life without parole are particularly serious for juvenile offenders.[9] Juveniles serving a life without parole sentence are typically not offered the rehabilitative services—such as counseling, education, and vocational training—that defendants who are eligible for parole consideration receive.[10] The Court further elaborated that while a determination that a juvenile is incorrigible and will pose a danger to society indefinitely, such a determination about a juvenile offender tends to be unconvincing in light of the capacity for rehabilitation and relatively deficient moral culpability that accompanies youth.[11] Thus, the Eighth Amendment could not possibly authorize courts to conclude that non-homicide juvenile offenders are incorrigible and completely unfit to reenter society based on their criminal history, and thereby sentence them to life without parole.[12]
- Miller v. Alabama
The Supreme Court used Graham as a foundation for its analysis in Miller v. Alabama two years later.[13] In the 2012 case, the Supreme Court held that mandatory sentences of life without parole for juvenile homicide offenders constituted a violation of the Eighth Amendment prohibition against cruel and unusual punishment.[14] The Court prefaced its holding in Miller by explaining that what constitutes cruel and unusual punishment in violation of the Eighth Amendment changes as society progresses and our standards of decency evolve.[15] The Court further explained that sentencing judges must base decisions on the individual circumstances of each defendant.[16] Additionally, sentencing judges must inform their decisions with the understanding that the most serious punishments are only warranted for the most culpable defendants who have committed the most serious crimes.
In its opinion for Miller, the Court provided a list of five factors that a court should consider when determining whether a juvenile offender may be deemed “incorrigible” for purposes of sentencing[17] These factors included (1) the specific age of the juvenile along with the defining features of that particular age; (2) the juvenile’s surrounding environment; (3) the particular circumstances of the crime, and the juvenile’s participation in the commission of the crime; (4) whether the juvenile’s age and consequent ability to interact appropriately with police officers or work with his attorneys negatively impacted the criminal proceedings against him and ultimately caused him to be charged and convicted of a more serious offense than he would have been charged with and convicted of if not for those particular deficiencies associated with youth; and (5) the juvenile’s potential for rehabilitation.[18] The Miller Court further emphasized that the standard for adjudging a juvenile homicide offender incorrigible, and therefore deserving of a prison sentence of life without parole, is a peculiarly arduous standard to meet.[19] The Court held that such a determination is reserved exclusively for those juvenile offenders who demonstrate “irreparable corruption.”[20]
Thus, sentencing proceedings for juvenile defendants must involve accounting for the differences between children and adults in terms of their mental development and moral culpability.[21] The Court concluded that those considerations inevitably lead to the disintegration of the criminal justice system’s long-held penological rationales for sentencing individuals to life without parole when applied to juveniles who demonstrate the capacity for rehabilitation.[22]
Consequently, the Court established that sentences of life in prison without parole may even be disproportionate to the crime and the circumstances surrounding the crime even when imposed on juvenile homicide offenders.[23] This reasoning led the Court to hold that requiring sentencing judges to impose prison sentences of life without parole on juvenile homicide offenders is unconstitutional.[24]
Third Circuit
In United States v. Grant, the Third Circuit joined the Seventh, Ninth, and Tenth Circuits in holding that a term-of-years sentence that reaches or exceeds a non-incorrigible juvenile homicide offender’s life expectancy violates the Eighth Amendment’s prohibition against cruel and unusual punishment.[25] This holding was a culmination of three conclusions carefully drawn by the Third Circuit, based on the Supreme Court’s holdings in Graham and Miller.[26] First, the Third Circuit concluded that, according to Miller, de jure life in prison sentences without parole may only be imposed on incorrigible juvenile homicide offenders.[27] Second, the Third Circuit decided that the Supreme Court’s concerns regarding the lack of penological justification underlying de jure life sentences without parole, when imposed on non-incorrigible juvenile offenders, apply equally to de facto life sentences without parole.[28] Third, the Third Circuit determined that the imposition of de facto life in prison sentences without parole directly contradicts the concept adopted by the Supreme Court and clearly communicated in Graham and Miller, that non-incorrigible juvenile offenders must be afforded a meaningful opportunity to eventually obtain release and reenter society.[29]
The Third Circuit also prescribed a sentencing framework that would afford non-incorrigible juvenile homicide offenders a meaningful opportunity for release pursuant to the Supreme Court’s holdings in Graham and Miller.[30] Subsequent to determining that a juvenile homicide offender is non-incorrigible, an individualized evidentiary hearing must be held, with the purpose of determining the juvenile’s life expectancy.[31] This step is intended to ensure that the sentence that the court ultimately imposes will still allow for the juvenile to eventually reenter society.[32] The court in Grant also went to great lengths to determine what the Supreme Court meant by a “meaningful opportunity for release,” and to formulate a sentencing scheme that reflected that interpretation.[33] The Third Circuit held that providing a defendant a “meaningful opportunity for release” could mean no less than providing the defendant with—as the Supreme Court held in Graham—the opportunity for some degree of fulfillment outside of prison, the hope of realizing one’s human potential, and a realistic chance of reconciling with society.[34] Furthermore, the court decided that based on the Supreme Court’s reasoning in Graham, along with the Court’s issue with the lack of education and vocational training for defendants facing life in prison without the chance of parole, non-incorrigible juvenile homicide offenders should be eligible for release at some time before the juvenile reaches the age of retirement in that jurisdiction.[35] Under this structure, however, the Third Circuit indicated that sentencing judges would retain the discretion to sentence non-incorrigible juvenile homicide offenders beyond the age of retirement (so long as the sentence is below the juvenile defendant’s estimated life expectancy); the factor is meant to act as an important consideration for courts when determining the appropriate sentence.[36] The Third Circuit nonetheless held that non-incorrigible juvenile offenders could not be sentenced de facto life without parole.[37]
Eighth Circuit
In United States v. Jefferson, the Eighth Circuit held that the Eighth Amendment affords judges the discretion to sentence non-incorrigible juvenile homicide offenders to life in prison without parole.[38] The court reasoned that the Supreme Court in Miller held only that mandatory life sentences without parole are unconstitutional when imposed on non-incorrigible juvenile offenders.[39] As a result of that logic, the court concluded that de jure or de facto sentences of life in prison without parole are not categorically disproportionate when applied to non-incorrigible juvenile homicide offenders.[40] It further concluded that sentencing judges may sentence juvenile homicide offenders to de jure or de facto life in prison without parole if they deem that the circumstances surrounding the offense render such a sentence appropriate, while remaining perfectly within the bounds prescribed by the Eighth Amendment.[41] In other words, the Eighth Circuit determined that, under the Eighth Amendment’s proscription against cruel and unusual (i.e. disproportionate) punishment, courts should be given the discretion to consider the relevant circumstances involved in the commission of a homicide by a juvenile.[42] However, it further held that courts must simultaneously possess the discretion to sentence a non-incorrigible juvenile homicide offender to de jure or de facto life in prison without parole if they determine that the circumstances warrant a sentence of that severity.[43]
Why the Third Circuit Gets It Right
In United States v. Grant, the Third Circuit correctly contended that the Eighth Circuit erroneously interpreted the Supreme Court’s holding in Miller.[44] The Eighth Circuit, in its opinion in United States v. Jefferson, failed to recognize that there are simply no circumstances which would render a life sentence without parole, whether that sentence is de jure or de facto in nature, constitutional when imposed on a non-incorrigible juvenile homicide offender. Under no foreseeable circumstance can a sentence of life without parole be fairly imposed on a juvenile whom the court has decided is non-incorrigible under Miller. Such a sentence would fail to account for the cognitive and intellectual deficiencies which naturally separate youth from adulthood, and would therefore violate the Eighth Amendment.
In conclusion, the Third Circuit properly held that sentencing a non-incorrigible juvenile offender—even those who have committed homicide—to life in prison without the chance of parole tramples on the Eighth Amendment’s limitations on punishment. Moreover, the Third Circuit has proposed a reasonable sentencing scheme, one which appropriately incorporates the Supreme Court precedent formed by the holdings of Graham and Miller. Requiring the lower courts to hold evidentiary hearings to determine the approximate life expectancy of non-incorrigible juvenile homicide defendants in each case and use that age, along with the age of retirement, to formulate what the court deems to be a fair sentence strikes an essential compromise. It gives those courts the discretion to consider the particular circumstances under which the homicide was committed in order to impose what it determines to be a proportional sentence, while ensuring that the sentence abides by the Eighth Amendment.
[1] Miller v. Alabama, 567 U.S. 460, 480 (2012).
[2] Graham v. Florida, 560 U.S. 48, 71 (2010).
[3] Id.
[4] Graham, 560 U.S. at 74-75.
[5] Id. at 69-71.
[6] Id.
[7] Id. at 71.
[8] Id.
[9] Id. at 79
[10] Id.
[11] Id. at 72-74.
[12] Id.
[13] Miller, 567 U.S. at 461
[14] Id. at 479.
[15] Id. at 476.
[16] Id.
[17] Id. at 477-78.
[18] Id.
[19] Id. at 479-480
[20] Id.
[21] Id. at 480.
[22] Id. at 472.
[23] Id. at 473.
[24] Id. at 479.
[25] United States v. Grant, 887 F.3d 131, 142 (3rd Cir. 2018).
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id. at 148.
[31] Id. at 149.
[32] Id.
[33] Id. at 150.
[34] Id. (citing Graham, 560 U.S. at 79).
[35] Id.
[36] Id. at 153.
[37] United States v. Grant, 887 F.3d 131, 142 (3d Cir. 2018)
[38] United States v. Jefferson, 816 F.3d 1016, 1018-19 (8th Cir. 2016).
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] Id.
[44] Grant, 887 F.3d at 146.
