Youth Always Matters: Replacing Eighth Amendment Pseudoscience with an Age-Based Ban on Juvenile Life Without Parole
abstract. The Supreme Court has placed restrictions on courts’ ability to impose life-without-parole sentences on juveniles. Most recently, Jones v. Mississippi underscored how existing Eighth Amendment protections fail to extend categorical protection to all juveniles. Tracing the history of intrachildhood classifications, this Note argues that Jones’s discretionary process forces sentencers to sort children into pseudoscientific categories. An analysis of sentencing transcripts reveals that sentencers routinely rely on unfounded assumptions when sentencing juveniles to life in prison. Highlighting efforts led by formerly incarcerated youth, this Note concludes that an age-based ban is necessary to protect youth from irreversible punishment.
author. Yale Law School, J.D. 2021. With my deepest thanks to Rebecca Turner, Eddie Ellis, Heather Renwick, and my friends at the Campaign for the Fair Sentencing of Youth for inspiring this project and for their visionary leadership; to Fiona Doherty, Gerald Torres, Monica Bell, and Jamelia Morgan whose scholarship and guidance challenged my thinking and transformed my writing; to the editors of the Yale Law Journal, in particular Thaddeus Talbot and Joe Linfield, for their tireless support, diligence, and impeccable care; and finally, to my mother, Sally Duncan, whose example and energy motivates me every day. All errors are my own.
Introduction
The United States is the only country in the world that sentences juveniles to life without parole.1 Over the last decade, the Supreme Court has issued a series of decisions that place some restrictions on sentencers’ ability to impose irrevocable punishment on youth2 under eighteen.3 However, the Supreme Court has yet to find that all sentences of juvenile life without parole violate the Eighth Amendment.4 Requiring sentencers to identify and separate children eligible for irrevocable punishment perpetuates pseudoscientific assumptions about a young person’s capacity to change.
A summary of the Court’s recent decisions provides context for this Note’s conclusion that the United States should join other nations and ban sentences of life without parole for all juveniles. In Miller v. Alabama and Montgomery v. Louisiana, the Supreme Court recognized that a defendant’s youth diminishes “‘the penological justifications’ for imposing life without parole.”5 Miller thus required sentencers “to take into account how children are different” before imposing mandatory sentences of life without parole.6 However, neither Miller nor Montgomery abolished juvenile life sentences; instead the Court instructed sentencers to distinguish between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”7 For children whose crimes reflect “permanent incorrigibility,” the Court did not bar irrevocable punishment.8 By making a constitutional distinction between these two groups of children, Miller and Montgomery encouraged sentencers to draw artificial distinctions among youth eligible for categorical protection.
On April 22, 2021, the Supreme Court retreated even further from Miller and Montgomery’s constitutional guarantee. Rather than ban all juvenile life sentences, Jones v. Mississippi held that sentencers need not make a separate factual finding that a juvenile is permanently incorrigible before imposing irrevocable punishment.9 In so ruling, the Court clarified that very little was required to uphold Miller’s ban on mandatory life-without-parole sentences; Jones insisted that mere “consideration of youth” satisfied the Eighth Amendment.10 But, regardless of whether Jones requires a formal fact-finding process, or simply affirmed the vague distinction between “transient immaturity” and “permanent incorrigibility,” its deference to judicial discretion permits sentencers to rely on discriminatory and inconsistent criteria to separate “irredeemable youth” from those who may eventually be released from prison.
This Note places Jones into context by examining how pseudoscientific definitions of youth evolved from racist theories during the Progressive Era and persist in the Court’s incomplete ban on juvenile life-without-parole sentences.11 Part I describes the history of intrachildhood classifications in the Child Study Movement and the juvenile justice system. It highlights racist assumptions embedded within eighteenth- and nineteenth-century developmental science, which permitted perceptions of deviance to outweigh the relevance of youth.
Part II begins by discussing the Supreme Court’s recent efforts to provide youth with categorical protection based on a young person’s chronological age. Part II then explains how Miller, Montgomery, and Jones broke from this trend by permitting sentencers to separate irredeemable youth from those who are “transient[ly] immatur[e].”12 Specifically, Part II analyzes records from sentencing and resentencing hearings in which sentencers imposed sentences of life without parole against juveniles in nine states and the Federal District of Arizona.13 These examples are intended to be illustrative and are not representative.14 Taken together, they help illuminate legal and scientific fallacies underlying the Court’s imposition of extreme sentences on children. As the number of juvenile life-without-parole sentences increases each year, trends across jurisdictions highlight harmful assumptions embedded within the Court’s purportedly age-based protections.15
Finally, Part III suggests strategies to overcome the inadequacy of existing protections and argues that an age-based ban against life without parole is necessary to prevent discrimination from infecting a sentencer’s discretion. The Supreme Court’s departure from chronological age as the “bright line” barring excessive punishment has made it impossible for sentencers to condemn juveniles to death in prison without violating the Eighth Amendment.16
Although the Supreme Court has recognized the age of eighteen as a relevant demarcation point, the immaturities of adolescence extend well beyond the age of eighteen. See Sara B. Johnson, Robert W. Blum & Jay N. Giedd, Adolescent Maturity and the Brain: The Promise and Pitfalls of Neuroscience Research in Adolescent Health Policy, 45 J. Adolescent Health 216 (2009); see also infra Section II.B.I (discussing the tension between developmental age and the Court’s categorical protections against irreversible punishment). For the purposes of this Note, I use the terms “juvenile,” “youth,” and “adolescent” interchangeably to refer to individuals under the age of twenty-five. See Laurence Steinberg, Age of Opportunity: Lessons from the New Science of Adolescence 5-6 (2014) (referring to adolescence as the period from ten until twenty-five).
See Miller v. Alabama, 567 U.S. 460, 465 (2012) (abolishing mandatory sentences of juvenile life without parole); Montgomery v. Louisiana, 577 U.S. 190, 212 (2016) (holding that Miller’s prohibition announced a new substantive rule that must be retroactive on collateral review); Jones v. Mississippi, 141 S. Ct. 1307, 1311 (2021) (holding that a sentencer is not required to make a separate factual finding or sentencing explanation before imposing a discretionary sentence of life without parole on a juvenile homicide offender).
Id. at 1317-18, 1320; see also id. at 1317-18 (“On the question of what Miller required, Montgomery was clear: ‘A hearing where youth and its attendant characteristics are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not.’” (quoting Montgomery, 577 U.S. at 210)).
While this Note focuses on the concept of “permanent incorrigibility,” Miller, Montgomery, and Jones use the following phrases interchangeably to describe the same class of juveniles: “irreparable corruption,” “permanent incorrigibility,” and “irretrievable depravity.” Miller, 567 U.S. at 479-80; Montgomery, 577 U.S. at 208-09; Jones, 141 S. Ct. at 1313.
I conducted this project in partnership with the Campaign for the Fair Sentencing of Youth (CFSY), a national organization committed to leading campaigns to ban life without parole and other extreme sentences imposed on children. Since the Supreme Court announced Miller and Montgomery, the CFSY has tracked which youth have been sentenced or resentenced to life without parole. The universe of these cases increases each year; as of March 2021, this number surpassed 170 cases. The CFSY worked with two law firms, Morgan Lewis and Latham & Watkins, to obtain sentencing records from jurisdictions in which state legislatures had not yet banned juvenile life without parole. Morgan Lewis conducted a separate analysis of five additional and randomly selected cases, for which I did not have access to sentencing records. I have included citations to Morgan Lewis’s analyses where appropriate.
None of the transcripts, sentencing orders, or records I analyzed were reviewed for content before being included in the sample. Some transcripts and sentencing orders were unavailable due to sealed records, court reporter unavailability, unresponsiveness of court clerks (after repeated attempts), or prohibitive expense.
I analyzed forty-five randomly selected sentencing records from Pennsylvania, Illinois, Washington, Ohio, Florida, Mississippi, Louisiana, North Carolina, Oklahoma, and the Federal District of Arizona. For forty-one of the cases I reviewed, I consulted sentencing transcripts when available, certificates of appeals, and court records between the years 2012 and 2020. Among these, seventeen were reversed on appeal and remanded for new sentencing. This Note focuses on the twenty-eight remaining cases, which were upheld on appeal. I chose to focus on these twenty-eight cases for two reasons: first, analyzing these cases reveals how the Miller factors mislead sentencers and reinforce erroneous assumptions about childhood development, and, second, these cases suggest that appellate review does not provide adequate protection against Miller’s pseudoscientific and harmful sorting process. I also discuss several cases in which appellate courts reversed sentences of life without parole to underscore the inconsistent application—and inconsistent review—of the Miller factors across jurisdictions.
Throughout this Note, I use the phrase “death in prison” and “life without parole” interchangeably. Equating sentences of “life without parole” to “death in prison” is important for two reasons. First, it likens categorical protection against life without parole sentences to categorical protection against the death penalty, thereby invoking other decisions in which the Court placed certain criminal laws and punishment beyond the state’s power to impose. Second, it underscores the disproportionality of this sentence when applied against juveniles. As Graham v. Florida pointed out: this lengthiest possible incarceration is an “especially harsh punishment for a juvenile” because he will almost inevitably serve “more years and a greater percentage of his life in prison than an adult offender.” 560 U.S. 48, 70 (2015).