Colorado's J-LWOP Sentences Are Unconstitutional

Several years ago, Colorado repealed the law that allowed juveniles to be sentenced to life without possibility of parole sentences for murder (including felony-murder cases where the juvenile was not the trigger man or a person who solicited the killing).  But, that change left the sentences of several dozen existing juvenile life without possibility of parole in place.  Governor Ritter established a special panel to review juvenile clemency cases, but it yielded little fruit (two juveniles serving life without possibility of parole sentences out of several dozen had their sentences commuted).  Governor Hickenlooper has likewise offered little clemency to juveniles (or anyone) since he was elected.

The U.S. Supreme Court has ruled today that the Eight Amendment forbitds a sentencing scheme that provides for life in prison without possibility of parole for juvenile homicide offenders as a mandatory minimum sentence.  This is true of every juvenile life without possibility of parole sentence in Colorado, where life without possibility of parole is the mandatory sentence for first degree murder, and was imposed on juveniles tried as an adult for that offense and convicted, in every case where the death penalty was not sought, was not imposed by a sentencing jury, or was not available because the U.S. Supreme Court had declared the death penalty for juveniles to  be unconstitutional.

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have theopportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. Byrequiring that all children convicted of homicide receivelifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemesbefore us violate this principle of proportionality, and sothe Eighth Amendment’s ban on cruel and unusual punishment.

The U.S. Supreme Court had already held unconstitutional the death penalty for juveniles, the death penalty for all but a handful of non-homicide crimes ("crimes against the state") and life without possibility of parole for minors convicted of non-homicide crimes.  The U.S. Supreme Court again refused to return to jurisprudence that treated young juveniles and older juveniles to be categorically different from each other.

Colorado's sentencing scheme is typical of juvenile life without possibility of parole statutes.  The vast majority of juveniles sentences to life without possibility arise from a first degree murder conviction for a juvenile tried as an adult where the death penalty is not imposed and life without possibility of parole is the mandatory minimum sentence.

Colorado's scheme was also typical in that in most cases, a prosecutor had the right to try a juvenile for first degree murder as an adult, without judicial review of the decision to try the juvenile as an adult.  And, a large share of all juveniles convicted of first degree murder faced "felony-murder" convictions meaning that they were merely part of a group of people engaged in one of a set of serious felonies, whom prosecutors were not required to show had any personal participation in the felony or any expectation that the a murder would result from the crime.

There are a very small number of juveniles sentences to life without possibility of parole where a judge has the option of considering a range of more lenient sentences and instead imposes the maximum life without possibility of parole sentence.  Wisconsin, for example, has imposed that kind of sentence and that remains constitutional for homicide crimes.  There is precedent for also applying a bar on life without possibility of parole to long sentences for fixed year terms that have the effect of life without possibility of parole, although the way that Colorado's sentencing laws work, juvenile sentences are unlikely to be that long in practice.  More background on the number of juveniles affected by the ruling can be found in a post made at this blog when certiorari was granted on the question.

It was a 5-4 decision.

Justice Breyer and Sotomayor joined a concurring opinions in which they expressed that view that felon-murder is never a sufficient basis for a life without possibility of parole conviction for a juvenile.

Since Colorado is not a party to the case, separate lawsuits may need to be commenced to force the hand of the state to revise the sentences in question.  Also, implementation of this decision, like the Graham decision (on life without parole for juveniles in non-homicide cases), is likely to involve granted the state legislature some time to attempt to devise a legislative attempt to comply with the decision before being forced by the Courts to act in a particular way.

In general, Colorado has greatly reduced its use of incarceration to address juvenile offenders in the last five years.