A recent case out of Florida (one of the few states to have had genuine life without possibility of parole sentences for juveniles) reviews the more than half a dozen decisions that have grappled with that question, typically in cases where consecutive sentences for multiple offenses gives rise to a first possible parole date at something close to the juvenile's life expectency.
The case held (in the case of Antonio Demetrius Floyd v. Florida), that on its facts, the term of years sentence imposed was unconstitutional under Graham v. Florida, 130 S.Ct. 2011 (2010):
Appellant was seventeen years of age in 1998 when he committed grand theft auto and two counts of armed robbery with a firearm, which, according to the prosecutor’s description during the resentencing hearing, was a pellet gun that was “realistic looking.” The trial court initially sentenced Appellant to life imprisonment on the armed robbery counts. After Graham was issued more than a decade later, the trial court resentenced Appellant to consecutive forty-year sentences on the two armed robbery counts . . . In this case, we are faced with a situation where Appellant, if he serves the entirety of his sentence, will be ninety-seven when he is released. Even if Appellant received the maximum amount of gain time, the earliest he would be released is at age eighty-five.
Note that at the time the case was decided, twenty-four year had already passed since the defendant stole a car and committed two robberies with a pellet gun as a juvenile, with the Defendant incarcerated for almost all of that time period, and the Defendant is now about 41 years old. The expected age at death of a forty-one year old person in the United States is about 79 years, and is lower for men and even lower for men in prison.
Of course, under any sort of proportionality or reasonableness standard, this sentence is already surely sufficient to allow at least a parole hearing for those offenses committed by a juvenile, but that isn't the law. The most excessive cases are inevitably cases like this one where the underlying crime of conviction just barely and technically qualifies as a basis for finding the offense has been committed and doesn't fall in the heartland of cases that legislators were thinking about when they set a penalty for the offense.
There are very few non-homicide offenses in Colorado for which a forty year sentence for a single count would be authorized, and none for which a sentence that long would be a mandatory minimum sentence not subject to judicial discretion in sentencing based on the characteristics of the offender and where the conduct involved in the offense in question falls within the range of conduct prohibited by the offense, which isn't to say that Colorado doesn't authorize very long sentences for serious criminal offenses.
The other cases reviewed in reaching the ruling were a mixed bag:
In Thomas v. State, 78 So. 3d 644, 646 (Fla. 1st DCA 2011), we noted that the Graham holding was limited to those juveniles who were sentenced to life without parole for nonhomicide crimes. Although we agreed that, at some point, a term-of-years sentence may become the functional equivalent of a life sentence, we rejected the appellant’s argument that his fifty-year concurrent sentences met that standard because, as found by the trial court, the appellant would be in his late sixties when he was released from prison, if he was required to serve the entirety of his sentence. 78 So. 3d at 646. In Gridine v. State, 37 Fla. L. Weekly D69 (Fla. 1st DCA Dec. 30, 2011) while again noting that, at some point, a term-of-years sentence may become the functional equivalent of a life sentence, we rejected the argument that a seventy-year sentence was unconstitutional. . . . See, e.g., Henry v. State, 37 Fla. L. Weekly D195 (Fla. 5th DCA Jan. 20, 2012) (holding that a ninety-year sentence for a juvenile defendant who committed nonhomicide offenses was constitutional); State v. Kasic, 265 P.3d 410, 415 (Ariz. Ct. App. 2011) (holding that a combined 139.75-year sentence for a juvenile defendant who committed nonhomicide offenses was constitutional); People v. Caballero, 119 Cal.Rptr.3d 920, 926 (Cal. App. Ct. 2011) (holding that a 110-year sentence for a juvenile defendant who committed nonhomicide offenses was constitutional). . . .
As the California appellate court reasoned in People v. Mendez, 114 Cal.Rptr.3d 870, 882-83 (Cal. Ct. App. 2010), while Graham’s holding was expressly limited to juveniles sentenced to life without the possibility of parole, courts should be guided by the principles set forth in Graham when evaluating a lengthy term-of-years sentence for a juvenile who was convicted of a nonhomicide offense. In holding that the juvenile defendant’s eighty-four-year sentence was unconstitutional, the court found that common sense dictated that a juvenile who is sentenced at the age of eighteen and who is not eligible for parole until after he is expected to die does not have a “meaningful” or, as the Supreme Court also described, “realistic” opportunity of release. 114 Cal.Rptr.3d at 883; see also United States v. Mathurin, No. 09-21075-Cr, 2011 WL 2580775 (S.D. Fla. June 29, 2011) (holding that a 307-year sentence for a juvenile who committed nonhomicide offenses was unconstitutional); People v. J.I.A., 127 Cal.Rptr.3d 141, 149 (Cal. App. Ct. 2011) (holding that the juvenile’s sentence, which had a minimum period of actual confinement of 56.5 years, was unconstitutional because the defendant would not be eligible for parole until about the time he was expected to die); People v. De Jesus Nunez, 125 Cal.Rptr.3d 616, 617 (Cal. App. Ct. 2011) (holding that the juvenile’s sentence, which precluded the possibility of parole for 175 years, was unconstitutional).
Colorado law prohibits new per se life imprisonment without parole for juvenile offenders, allowing parole after forty years for offenses that would previously have held a life without possibility of parole sentence, although, according to a recent Westword story on a long sentence for a juvenile offense, no one in Colorado currently incarcerated has actually served forty years or more for a juvenile offense, since most provisions of Colorado law authorizing longer sentences for juveniles weren't legislatively authorized in Colorado until 1993.
For a juvenile sentenced at age 18 or 19, possibility of parole after forty years means age 58 or 59, and is not a sure thing then. Parole depends to a significant extent on one's behavior in prison and it is hard to stay completely clean of disciplinary plots for four decades starting in your late teens, when you start out with the most hardened criminals as fellow inmates, you have no hope, your are part of the most vulnerable inmates in the system, and your release date in the distant future makes you an unattractive candidate for eligiblity for programs in prison for training and education.
As eligibility for parole comes at dates later than forty years into a sentence, it becomes harder and harder to say that the sentence doesn't amount of juvenile life without possibility of parole. At fifty years, one is looking at a first parole hearing at ages 68 or 69. At sixty years, one is looking at a first parole hearing at ages 78 or 79, roughly the defendant's life expectency. Any longer than that, and the first parole hearing is extremely likely to come up only after the defendant is dead. And, for parole to be at all meaningful, there has to be some possibility to return to the community and actually live in it after that first parole date. A mere chance at seven years of freedom as a senior citizen (who will have no Social Security benefits or Medicare eligiblity in most cases), after sixty years of incarceration, isn't very meaningful. If one were to adopt a bright line rule regarding when a term of year sentence amounts of life in prison without possiblity of parole in fact, to adopt without express legislative authorizatioon, ineligibility for parole after anything more than forty years might be a sensible rule to adopt.
Colorado has no laws directly addressing multiple adult convictions of non-homicide offenses that amount in practice to a life without possibility of parole sentence. In part, this is because there is considerable more discretion available to judges in Colorado in imposing sentences for all non-homicide offenses but certain kinds of aggravated kidnapping than in states like California and Florida. This discretion has been heightened by recent juvenile justice reforms adopted in last year's legislative session and will be heightened even more by limitations on the direct file authority of prosecutors in Colorado passed in this year's legislative session that substantially restricts the direct file authority of prosecutors. The demise of the juvenile death penalty and life without possibility of parole for juveniles has also reduced the leverage of prosecutors to extract plea bargains involving very long sentences from juvenile offenders who are often not subject to special recidivist sentencing rules either.
These cases also illustrate the fairly prosaic way that some of the longest sentences in the criminal justice system arise for both juveniles and adults, with fairly long sentences for multiple moderately serious felony counts being imposes concurrently, rather than from a very long sentence from a single count of a more serious felony. But, there is no effective way for an adult defendant to challenge this kind of de facto life without possibility of parole sentence in most cases.
The most unjust sentences in the criminal justice system are almost invariably those that the system backs into by virtue of bureaucratic logic, of copy cat legislation, and not those that have received serious consideration on the merits by the legislature in the manner that they present themselves in actual court cases.