Chemerinsky: Juvenile Life-Without-Parole Case Means Courts Must Look at Mandatory Sentences
Erwin Chemerinsky
In Miller v. Alabama, the U.S. Supreme Court held in June that it is cruel and unusual punishment to have a mandatory sentence of life without the possibility of parole for homicide crimes committed by juveniles. At first glance, the decision seems to follow from other recent Supreme Court decisions that have limited the punishments imposed on juvenile offenders.
But in a key respect this case is different: previous cases prohibited the imposition of certain punishments under any circumstances, whereas Miller holds only that there cannot be a mandatory sentence. This distinction is going to matter enormously and raise important issues that are sure to be litigated.
Miller involved a 14-year-old who was convicted of murder and given a mandatory sentence of life without the possibility of parole. The Supreme Court, in a 5-4 decision, declared this unconstitutional. Justice Elena Kagan wrote for the court, joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor.
Justice Kagan noted that prior cases had established “that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, we explained, ‘they are less deserving of the most severe punishments.’”
Justice Kagan explained that a mandatory sentence of life without parole impermissibly treats a juvenile offender the same as an adult offender. She said that this violates the principle that “imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.” The court thus concluded: “We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.”
The court relied heavily on its recent decisions finding other punishments to violate the Eighth Amendment when imposed on juvenile offenders. In Roper v. Simmons, decided in 2005, the court held that it is cruel and unusual punishment to impose the death penalty for crimes committed by juveniles. In 2010’s Graham v. Florida, the court ruled that it was cruel and unusual punishment to impose a sentence of life in prison without the possibility of parole for homicide crimes committed by juveniles.
Those cases, however, differ from Miller in a critical respect. The earlier decisions said that the government never can impose certain punishments–the death penalty, life without parole for non-homicide crimes–on juvenile offenders. Miller does not make it unconstitutional in all circumstances for a state to impose a sentence of life without parole for a homicide committed by a juvenile. Rather, it only holds that such a sentence cannot be mandatory.
This is going to require changes in the criminal justice system and pose difficult issues that must be resolved. First, if prosecutors wish to seek a sentence of life without parole for a homicide crime committed by a juvenile, there will need to be a proceeding to determine if this is warranted.
This will necessitate a penalty phase after conviction to make this decision. After the Supreme Court held that there cannot be a mandatory death sentence in homicide cases, the practice of the penalty phase developed for a determination of whether capital punishment is warranted based on the facts in each case. The same type of penalty phase will be required when life without parole is sought for a homicide crime committed by a juvenile.
In Ring v. Arizona, decided in 2002, the Supreme Court held that it is for the jury, not the judge, to decide in the penalty phase whether the aggravating factors sufficiently outweigh the mitigating circumstances to warrant a death sentence. Likewise, it will be for the jury to decide whether to impose a sentence of life without parole for a homicide committed by a juvenile.
Second, some states will need to change their laws to facilitate trying juveniles for first-degree murder. In Missouri, for example, state law authorizes only two possible sentences for those convicted of this crime: the death penalty or life in prison without parole. Obviously, such laws must be revised to allow for another option.
Third, there is sure to be litigation over whether Miller applies retroactively. What about those now serving life without parole for homicides committed as juveniles? There is a strong argument that Miller should apply retroactively: It says that it is beyond the authority of the criminal law to impose a mandatory sentence of life without parole. It also would be terribly unfair to have individuals imprisoned for life without any chance of parole based on the accident of the timing of the trial.
On the other hand, if Miller is seen as just requiring a new procedure–a penalty phase before a sentence of life without parole is imposed for a crime committed by a juvenile–then it is unlikely to be applied retroactively. Procedural changes rarely apply retroactively. In fact, the Supreme Court held that Ring did not apply retroactively. In 2004’s Schriro v. Summerlin, the court concluded that Ring was a procedural change and not a “watershed” rule of criminal procedure that warranted retroactive application.
Ultimately, this is a question that will need to be resolved by the Supreme Court. My sense is that the Miller court did more than change procedures; it held that the government cannot constitutionally impose a punishment. As a substantive change in the law which puts matters outside the scope of the government’s power, the holding should apply retroactively.
Finally, it should be noted that this is the latest of many cases, in a number of different contexts, in which the court has recognized that juvenile offenders are different and must be treated differently. Last term, for example, in J.D.B. v. North Carolina, the court held that the determination of whether a suspect is in custody depends on his or her age. The need to treat juvenile suspects and defendants differently from adults is likely to continue to be litigated and require changes in many aspects of the criminal justice system.
Thus, the holding in Miller is easy to state: There cannot be a mandatory sentence of life without parole for homicides committed by juveniles. But the implications are likely to be complicated and litigated for years to come.
Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.
