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August 6, 2018

The War on Kids Post #3

As Doug’s readers know, in recent years the Supreme Court has limited the extent to which states can expose kids to the most serious sanctions on the books. In a series of cases known as the Miller trilogy (Roper v. Simmons, Graham v. Florida, and Miller v. Alabama) the Court has held that states cannot execute people for juvenile crimes (Roper); that the Eighth Amendment bars life without parole for juvenile, non-homicide offenders (Graham); and that it similarly precludes mandatory life without parole even for juveniles who commit homicide (Miller). With these decisions, the Court has underscored the idea that “kids are different” for constitutional purposes and state sentencing practices must reflect that fact.

While I address these decisions in some detail in The War on Kids, I know that most of Doug’s readers are familiar with the basics of these decisions and the social science on which they relied. So I want to focus this post on the implementation of the Miller trilogy.

Implementing the Miller trilogy has been messy. First, there was the question of who benefitted from these cases. Roper and Graham were clearly retroactive decisions – they took off the table a form of punishment as it applied to a category of individuals – and each case affected a relatively small pool of prisoners. At the time of Roper, there were 72 death row inmates who had been convicted as juveniles, and according to the Supreme Court, there were 129 juvenile non-homicide offenders serving LWOP at the time of Graham.

Miller, on the other hand, called into question the validity of approximately 2,500 cases nationwide. After some initial confusion among lower courts, the Supreme Court clarified in Montgomery v. Louisiana that the Miller decision applied retroactively. As a result, those 2,500 prisoners whose cases were squarely within the purview of Miller became eligible for some modification of their sentence. (I’ll return in my next post to the Montgomery Court’s suggested and yet problematic method for compliance, parole). In addition, youth offenders across the nation who had been sentenced to de facto life sentences or to sentences of life with parole began to seek judicial relief, arguing that the reasoning of Miller applied to their cases too. In sum, there are now thousands of individuals across the country with legitimate claims to relief under the Miller trilogy.

Second, states have grappled with how to implement a Miller remedy: what should it be? and who should provide it? In recent years, many state legislatures have banned JLWOP. In 2011, the year before Miller, only five states banned JLWOP; today 20 states and D.C. ban the sentence. At the same time, states like West Virginia and Nevada have enacted legislation that not only bans JLWOP, but also permits ongoing, periodic review for youth serving lengthy terms and requires sentencing judges to consider the mitigating aspects of youth. Courts have also focused on the rehabilitative ideals of the Miller trilogy and have struck down lengthy term-of-year sentences as the de facto equivalent of JLWOP. The Massachusetts high court has banned JLWOP and held that youth offenders seeking parole have the right to counsel and expert assistance. The Iowa Supreme Court found that the Miller rationale precludes any mandatory sentence for youth. In sum, many courts and legislative bodies are grappling with when youth offenders should receive a second-look, what term of year sentence is appropriate in lieu of LWOP, and what procedural safeguards apply post-Miller to inmates seeking relief.

As I discuss in the book, this implementation process has been slow and the results have been mixed. Not all states have embraced the science and reasoning behind the Miller trilogy. For example, Michigan incarcerates 363 of the roughly 2,500 inmates nationwide serving JLWOP. Under Miller, those 363 individuals should receive a new sentence that takes into account their youth and other relevant mitigating factors. Moreover, the Miller Court expressly said that, given what we know about adolescent brain development, “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Yet prosecutors in Michigan are seeking to resentence more than half of these individuals to LWOP over great protest from the defense community. Some prosecutors in counties of Pennsylvania and Louisiana have taken equally harsh positions on resentencing JLWOP inmates. At the same time, courts have been split on the question whether Graham and Miller apply to aggregate juvenile sentences that result in a death-in-custody term.

And prisoners feel the geographic disparity post-Miller. Consider Florida, where Terrence Graham originally received JLWOP for the attempted armed robbery of a barbeque restaurant. After the Supreme Court found his JLWOP sentence unconstitutional in 2010, he received a resentencing hearing and a 25-year sentence for his non-homicide crime. In contrast, juvenile homicide offenders in Massachusetts are now parole eligible after serving 15 years and they enjoy a number of procedural rights in the parole process. Post-Miller it is clear that justice can be slow and uneven as a function of federalism.

In my next post, I’ll focus specifically on state attempts to use parole in order to comply with Miller.

August 6, 2018 at 12:44 PM | Permalink


States should resit Miller etc. will all their might.

Posted by: federalist | Aug 6, 2018 9:06:40 PM

Is the overheated rhetoric of war really necessary? I think it detracts from your message.

Posted by: justme | Aug 7, 2018 8:06:06 AM

justme - I think we can accept that the US is unusual in the degree, by some degrees in fact, in both the criminalization of children and in its penalization policies, which even in the lesser categories from those to which Miller was an attempt by the Supreme Court to address, destroy young lives, cause untold grief to families, and impact adversely on the future prospects for resettlement into communities. The "war on kids" requires a war on a resistant judiciary to resolve, in the interests of fairness and justice, as some of the examples in article #3 illustrate. As Donald Trump seems to go to war with someone new every day, the readership will hardly be surprised at the choice of title. Were the Supreme Court so stirred to enact an immediate transformation of this mess!

Posted by: peter | Aug 7, 2018 8:43:03 AM

I think that there is a difference between 17 years old murderer (or killer) and a real 13-15 years old child. While for a late teenager sentence review 15-20 years is OK (to me 10-13 years is enough) the young children must to have their chance much more sooner. 5-7 years is enough to see if a child is rehabilitated.

Posted by: Severin M | Aug 7, 2018 10:34:18 AM

"in the interests of fairness and justice"

There's so much question begging going on there that it's hard to know where to begin. But it is odd that nowhere in your analysis is there any discussion of fairness and justice to the victim's family or society.

Posted by: justme | Aug 8, 2018 3:27:38 PM

thanks justine---your comment is a breath of fresh air

Posted by: federalist | Aug 10, 2018 7:22:28 AM

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