SCOTUS To Consider Juvenile Life Without Parole For Murder

On March 20, the U.S. Supreme Court will consider two cases where fourteen year olds were sentenced to life without parole, one for murder, and the other for a felony-murder where "youth who did not commit the crime and did not plan for or expect anyone to die in a planned crime, but was convicted nonetheless for a role in a murder that resulted."

A recent survey examined the lifes 1,579 people in the United States currently serving sentences for a murder or felony murder committed while they were under the age of eighteen out of more than 1,700 juveniles in the U.S. (some sources say 2,500) (and 41,000 convicts overall) serving such sentences. In many of the cases life without possibility of parole was the mandatory sentence for the crime of conviction, and in many cases the sentence was the result of a plea bargain for a defendant facing the risk of a death penalty sentence that has now been found to be unconstitutional in their cases. This kind of sentence in the United States is uniquely American and not available in all American states (even the Colorado no longer authorizes such sentences in new cases). California, Pennsylvania and Michigan make up a particular large share of the cases. About 2% of juvenile lifers in Michigan were fourteen years old when the crime was committed. No juvenile lifer in the United States appears to have actually served more than forty-nine years in prison so far, as the sentencing option is relatively new.

The cases arise from Arkansas and Alabama but would have an effect on Colorado, which has abolished the life without parole sentencing option for minors convicted of new crimes, but has several dozen juveniles of varying ages serving life without parole sentences for murders committed while the statute was in force from 1991 to 2006, many on felony murder convictions of the kind being considered by the U.S. Supreme Court in these cases.

About a third of the forty-six Colorado juveniles serving life without parole sentences in 2009 were convicted of felony murder rather than murder, and two of those juveniles were fourteen years old at the time the crime was committed (one of my sources says that the total was forty-eight rather than forty-six). Two juveniles serving life without parole sentences were commuted by Governor Ritter in 2011, shortly before he completed his term of office. Governor Hickenlooper has not, to my knowledge, pardoned or commutted the sentences any of the juveniles serving life without parole sentences in the state since he took office.

A bill in Colorado to allow people serving life sentences for crimes committed while they were juveniles who had served forty years of their life sentences to be considered for parole was narrowly defeated in committee in 2011. Of course, even under that bill, none of the juveniles serving life without possibility of parole sentences in Colorado would actually be eligible for parole any sooner than the year 2031.

The Wisconsin Supreme Court, when presented with essentially the same issue found a similar statute to be constitutional in a case of murder, rather than felony murder, where a judge had discretion to impose a lighter sentence but choose not to do so.

In Colorado, in contrast, life without possibility of parole was the mandatory maximum and minimum sentence for all juveniles charged as adults and convicted of first degree murder (including felony murder) from 1991 through 2006; and in all or almost all of those cases, the decision to charge the juvenile as an adult was made by the prosecutor and not reviewable by a judge under the "direct file" statute which has since been scaled back but not repealed in Colorado.

In Roper v. Simmons in 2005, the Court barred the death sentence for any minor convicted of murder. And, in 2010, in Graham v. Florida, the Court barred a life-without-parole sentence for a minor who committed a crime other than murder, in which no one was killed.

The U.S. Supreme Court has also fairly recently ruled that it is unconstitutional to executed people who were mentally retarded when they committed their crime, and that it is unconstitutional to execute people for ordinary crimes that do not cause death including the rape of children (although an exception was left open for "crimes against the state" like espionage and treason).

No one doubts the constitutionality of a law that imposes a life without parole sentence upon a non-retarded adult who personally murders someone under the 8th Amendment guarantee against cruel and unusual punishment (applied directly against the federal government, and via the 14th Amendment due process clause under the doctrine of incorporation against state and local governments).

The U.S. Supreme Court held several decades ago that it was constitutional to execute adults who did not personally murder someone, and did not plan for or expect anyone to die in a planned crime, who were convicted for a role in a murder that resulted. For crimes other than felony murder, maximum sentences for inchoate crimes (like conspiracy to commit a crime, or a role as an accessory to a crime) are frequently less serious than sentences for personally commiting the crime, and often have a higher threshold of culpability for the other person who played a role in the crime. Felony murder is one of the most stark examples of a situation where our criminal justice system permits very serious penalties for someone with relatively modest levels of culpability.

Graham v. Florida is the only case of which I am aware that makes a constitutional distinction between a life in prison without possibility of parole sentence and any other long prison sentence.

Of course, even someone serving a life in prison without parole sentence, can benefit from the appropriate person's executive branch pardon (usually the Governor for state convictions and the President for federal convictions, but some sort of parole board in a few states), and from post-conviction relief, for example, if irregularities in their trial are revealed after the direct appeal process is spent.

The availability of post-trial relief in cases where actual innocence can be established later, despite the fact that there was conviction after a trial that was procedurally sound in all respects, is an ongoing hotly disputed issue in federal habeas corpus jurisprudence (and almost never prevails in practice) and is certainly not clearly established.

In addition to determining if "life without possibility of parole" is different, at least for minors, the U.S. Supreme Court also has to determine if there is any difference between a young juvenile, and an older teen who is not yet eighteen. At one point, the U.S. Supreme Court treated sixteen and seventeen year olds differently from younger juveniles with regard to death penalty eligibility, but recently backed away from that position.

Now, it must decide again if a sentence may be cruel and unusual as applied to a crime committed by a fourteen year old, but not to a crime committed by a seventeen year old. The resolution of this question has an impact on the "unusual" prong of the cruel and unusual analysis, because life without possiblity of parole statutes frequently permit the sentence to be imposed on older juveniles but not younger juveniles.

Forced to guess, I'd predict that the U.S. Supreme Court will split the difference, allowing life without possibility of parole sentences for young juveniles who personally murder someone, but not for those who are merely guilty of felony murder. But, this is a close case whose outcome is hard to predict. The fact that the cases are being considered at all means that at least four justices are interested in changing the status quo, and that some of them think that there might be a constitutional distinction between committing a murder personally and felony murder. Those four justices (very llikely the liberal ones on the court) will in turn force the most swing judge on the court (Justice Kennedy) to face those questions in cases like these where the sentence looks harsh considering the crimes involved.