Juvenile Life Without Parole

Juvenile Life Without Parole

The categorical method taught in the preceding sections was built for the death penalty, and nothing in the method itself confines it there. In Graham v. Florida the Court applied the same two-step analysis, objective evidence of national consensus followed by the Court's own judgment about culpability and punishment, to a sentence of life imprisonment without parole imposed on a juvenile.¹ Later decisions describe that move as unprecedented for a term of imprisonment, because the categorical approach had until then been reserved for capital cases.² Here the facts and holding come first, then each step of the analysis, and finally the opinions that mark the edges of the rule.

Terrance Graham was sixteen in July 2003 when he and other school-age youths tried to rob a barbeque restaurant in Jacksonville, Florida; his masked accomplice struck the restaurant manager twice in the head with a metal bar, and no money was taken.³ Charged as an adult with armed burglary with assault or battery and attempted armed robbery, Graham pleaded guilty, and the trial court withheld adjudication of guilt and imposed three years of probation, with the first twelve months to be served in the county jail.⁴ Less than six months after his release he was arrested again, and the trial court found that he had violated probation by committing a home-invasion robbery, possessing a firearm, and associating with persons engaged in criminal activity.⁵ The court then found him guilty of the original charges and imposed the maximum on each: life imprisonment for the armed burglary and fifteen years for the attempted armed robbery.⁶ Because Florida had abolished parole, the life sentence offered no possibility of release unless the executive granted clemency.⁷

The Court held that the Eighth Amendment prohibits sentencing a juvenile offender to life imprisonment without the possibility of parole for a nonhomicide offense.⁸ The holding carries a qualifier that matters as much as the bar: a State need not guarantee the offender eventual release, but if it imposes a life sentence it must give the offender some realistic opportunity to obtain release before the end of that term.⁹ The bar protects anyone who was under eighteen when the crime was committed, because eighteen is the age at which society draws the line between childhood and adulthood for many purposes.¹⁰ Each element of the holding, the juvenile status, the absence of homicide, and the specific sentence of life without parole, marks an edge of the rule, and the last part of this section returns to them.

Before applying the categorical method, the Court had to decide whether it applied at all, because its proportionality cases fall into two groups. In the first, the Court weighs all the circumstances of a particular case to decide whether the sentence is excessive for that defendant; the controlling opinion in Harmelin v. Michigan, for example, begins by comparing the gravity of the offense with the severity of the sentence and turns to comparisons with other sentences only in the rare case where that threshold comparison suggests gross disproportionality.¹¹ In the second group, the Court uses categorical rules for sentencing practices that are inherently disproportionate as applied to a class of offenders or a class of crimes.¹² Graham's challenge belonged in the second group, because it attacked a type of sentence as applied to an entire class of offenders who had committed a range of crimes, and a threshold comparison of one crime against one sentence does not advance that kind of inquiry.¹³ The reason is structural: the threshold comparison needs a specific offense to set against the sentence, and a class defined only by age and the absence of homicide has no single offense to measure.

The first step of the categorical method looks to objective indicia of national consensus, chiefly legislation. Six jurisdictions allow life without parole for no juvenile offender, seven allow it only for homicide, and thirty-seven States and the District of Columbia permit it for a juvenile nonhomicide offender in some circumstances, while federal law allows it for offenders as young as thirteen.¹⁴ On those numbers Florida and its supporting amici argued that no consensus existed, and the opinion agrees that the statutes alone do not establish one.¹⁵ A closer comparison of actual practice changed the picture, because the sentence is exceedingly rare in operation and many jurisdictions that permit it have no one serving it.¹⁶

That use of rarity follows the logic of Roper. A statute authorizing the sentence shows only that legislators wanted it available for the worst imaginable case, while a sentence that prosecutors and judges almost never impose shows that communities seldom regard it as deserved. The Court read the scarcity as evidence that a consensus against the practice was developing, and as a sign that the sentence is not needed to serve legitimate penological goals given how few offenders actually serve it.¹⁷

Consensus does not decide the question, so the Court turned to its own judgment, which weighs the culpability of the offenders in light of their crimes and characteristics against the severity of the punishment.¹⁸ On culpability, the Court relied on what Roper had found about juveniles: they are more vulnerable to negative influences and outside pressures, they cannot control their environment as adults can, and their character is less well formed, so their actions are less likely to be evidence of irretrievably depraved character and they are more capable of change.¹⁹ Graham's class is also defined by what its members did not do, since Graham did not kill or intend to kill.²⁰ Two reductions in blame therefore overlap, youth and the absence of a death, and the bar the Court adopted mirrors the capital rule that death cannot be imposed for nonhomicide crimes against individuals.²¹

Severity completes the comparison. Life without parole is the second most severe penalty the law permits, and for a juvenile it guarantees dying in prison, which is why the Court treated it as sharing characteristics with death sentences that no other sentence shares.²² A sentence measured by the remainder of a life weighs more on the young: a juvenile will on average serve more years and a greater share of life in prison than an adult, so a sixteen-year-old and a seventy-five-year-old sentenced to life without parole receive the same punishment in name only.²³ The identical words fall on very different amounts of time. Lower blame paired with a penalty this heavy is the mismatch the categorical method exists to find.

Incapacitation was the hardest of the four, and the Court conceded as much: recidivism is a serious risk to public safety, and Graham had committed serious crimes early in his supervised release.²⁹ The sentence was still disproportionate, since a need to separate Graham from society for some time does not show that he would endanger it for the rest of his life.³⁰ The defect lies in timing. A sentencer imposing life without parole predicts, when the offender is a teenager, what that person will be decades later, and the sentence makes the prediction irreversible, so even later prison misbehavior would not rescue a judgment made at the outset.³¹ Parole review keeps the prediction open to correction, which is why the qualifier in the holding asks for a realistic opportunity for release rather than for release itself.

Florida and the United States offered a middle path: no categorical rule, but a requirement that sentencers consider the juvenile's age and other mitigating factors before imposing life without parole.³² The Court rejected it because of the difficulty of telling the juvenile whose crime reflects unfortunate yet transient immaturity from the rare juvenile whose crime reflects irreparable corruption.³³ A categorical rule gives sentencers a clear line and avoids the risk that the sentence will land on a juvenile whose crime does not reflect irreparable corruption.³⁴ The cost of a bright line falls at the margins, where a rare juvenile who might have been found incorrigible is protected along with the rest of the class, and the Court accepted that cost because the opposite mistake produces a sentence that cannot be corrected. International practice appeared only as confirmation: the Court observed that the United States adheres to a sentencing practice rejected the world over, said the observation does not control its decision, and added that international opinion about a punishment is also not irrelevant.³⁵

The bar concerns life without parole, and the Court was explicit that the Eighth Amendment does not require a State to release the offender during his natural life. Those who commit truly horrifying crimes as juveniles may prove irredeemable, and what the State may not do is decide at the outset that they never will be fit to reenter society.³⁶ The common error is to read the case as a limit on long sentences generally. A challenge to a particular term of years goes through the case-by-case route, where the threshold comparison applies and the Court has not yet struck down an individual sentence under the controlling framework.³⁷

The nonhomicide requirement marks the limit of the flat ban, which is a narrower thing than the limit of protection for juveniles. In Miller v. Alabama two fourteen-year-olds were convicted of murder and sentenced under state law to life without parole, with no authority in the sentencer to impose anything lesser.³⁸ The Court held that a scheme mandating life without parole for those under eighteen at the time of their crimes violates the Eighth Amendment, because it keeps the sentencer from considering youth and its attendant characteristics.³⁹ Miller acknowledged that Graham's flat ban applied only to nonhomicide crimes, but observed that what Graham said about children's distinctive mental traits and vulnerabilities is not specific to any crime.⁴⁰ It did not decide whether a categorical bar covers juvenile life without parole across the board, adding only that appropriate occasions for the sentence will be uncommon.⁴¹ Montgomery v. Louisiana later held Miller retroactive.⁴² A juvenile homicide case therefore falls outside Graham's flat ban, with Miller governing any mandatory scheme. Two Justices, concurring in Miller, would have read Graham to allow life without parole only for a juvenile who killed or intended to kill, a reading that remains a concurring view rather than the Court's holding.⁴³

Two separate writings in Graham show where the majority's rule is contested. Chief Justice Roberts concurred in the judgment: he agreed that Graham's sentence violated the Eighth Amendment, but would have reached that result through narrow proportionality review of noncapital sentences combined with Roper's recognition that juveniles are generally less culpable, and he saw no need for a new categorical rule.⁴⁴ His objection was to breadth. A rule covering every juvenile nonhomicide offender says nothing about juveniles who commit crimes far more reprehensible than Graham's, such as a seventeen-year-old who beat and raped an eight-year-old girl and left her to die, and he answered the majority's worry about telling incorrigible offenders from capable ones by observing that judges face imperfect foresight in all sentencing, of adults and of juveniles who commit murder alike.⁴⁵ Justice Thomas dissented from the judgment itself. He noted that the sentence deters and incapacitates, so that the majority's independent judgment rested on retribution, and he framed the ultimate question as who decides: in his view the Constitution does not let the Court displace the choice of an overwhelming legislative majority to keep the option available for certain cases.⁴⁶

The two writings dispute different things. The concurrence accepted the result and the premise that youth lowers culpability, and rejected only the categorical form; the dissent disputed the Court's authority to substitute its own moral judgment for the legislatures'. Neither changes the rule that governs, and both identify its pressure point, since the categorical rule gives up case-by-case accuracy in exchange for a clear line.