Incorrigibility of the Juvenile Offender

Posted in: Constitutional Law

This term, the Supreme Court of the United States (SCOTUS) in Jones v. Mississippi will consider the question whether the Eighth Amendment ban on cruel and unusual punishments prohibits sentencing a juvenile offender to life without parole (LWOP) in the absence of a finding that he is permanently incorrigible (beyond repair). Stated more succinctly, must a finding of permanent incorrigibility precede a sentence of LWOP for a juvenile? This column will consider the wisdom and the constitutionality of inflicting “death in prison” on a person who was under 18 at the time of his crime. To avoid my repeating the following caveat throughout the piece, please note that neither this case nor others I mention concern the age of the convict at the time he faces punishment; all that matters for purposes of this discussion is the person’s age at the time of his crime. That is when his culpability (and capacity to be culpable) is relevant. For brevity, however, I will say things like “we may not execute someone under 18,” and you now know what I mean by that.

Background for Sentencing Juveniles

Over time, SCOTUS has raised the minimum age for imposing the death penalty on very young offenders. In Thompson v. Oklahoma, a plurality said that executing someone who was under 16 at the time of his crime would violate the Eighth Amendment. Almost two decades later, a majority held in Roper v. Simmons that the Eighth Amendment bars the execution of offenders under 18. Part of why the Court reached the result it did was the evidence that the human brain is not fully developed in the teen years and therefore cannot govern a person’s conduct as effectively as it later would. To execute a person is to visit the greatest condemnation on him that the law currently provides. To do so when the target of condemnation is not yet in possession of all of his faculties, less responsible and thus less culpable than an adult carrying out the same actions would be, is unjust. And most significantly for our purposes, children grow up and change into very different people, and we should not be killing an offender who may well become law-abiding and decent once his brain reaches maturity. That would be a waste of humanity.

After executing children became unconstitutional, the Court began to limit the next most serious punishment we could impose on an offender, life imprisonment without the possibility of parole. In Graham v. Florida, the Court held that LWOP was an unconstitutional sentence for juvenile offenders whose crime was not homicide. This decision effectively anointed LWOP the death penalty for juveniles, as Kennedy v. Louisiana prohibited the execution of nonhomicide (adult) offenders. Next, the Court said in Miller v. Alabama that mandatory LWOP sentences for juvenile offenders were unconstitutional as well. This holding tracked the Court’s much older decisions in Woodson v. North Carolina and Lockett v. Ohio, saying that a homicide statute must not require a sentence of death but must instead grant the sentencer discretion to consider mitigating evidence in deciding whether or not to impose the harshest sentence.


As a policy matter, it seems obvious that LWOP should never be a mandatory sentence without room for juries to assess the particular merits of the case before them. If for no other reason, and there are plenty, a mandatory sentence will likely distort decisions about guilt because juries, made up of people, dislike being forced to impose a particular sentence on a defendant and will accordingly move their discretion to the one decision that is entirely in their hands, the decision to convict or to acquit. We would hardly want to see dangerous offenders acquitted for such a reason. Another basis for not imposing mandatory LWOP on children is that children tend to grow up, even if they are horrible infants at 16 or 17. There is a reason we do not allow juveniles to vote or (at least in theory) to drink or to be drafted into military service. If we are to confine a juvenile for the rest of his life, we should probably make sure that he, as an individual and not simply as a class of criminal, is someone who ought to be living the remainder of his life (perhaps more than a half century) behind bars. One useful criterion would be a determination that this particular convict is “incorrigible,” that he simply cannot possibly become the sort of person who might be suitable for release in ten, thirty, or even fifty years. A life sentence with the possibility of parole is still a life sentence. The default is that the person remains incarcerated for the rest of his days. But maybe, if guards attest to pro-social behavior during the prison term and if there is good reason to be optimistic about a particular individual, parole is a “possibility,” not a certainty or even a probability, but a possibility. Often dramatic changes happen between the age of sixteen and the age of sixty, and a regular life sentence leaves in place the option of recognizing that change and doing something about it.

The reason to insist on LWOP for a child is the fear that even though the defendant is dangerous and will always be dangerous, some liberal parole board will put their sympathies before their common sense and unwisely award parole. Limiting the discretion of another body allows the sentencer to determine the sentence without worrying about later modification. In the case of a child, however, one has to wonder why anyone wants to eliminate the possibility of parole. If parole boards just granted parole to everyone who came up, then one could understand the move, but they do not do that. They seem to regard regular life imprisonment as an invitation to override their wishes, and they reject the issuance of such an invitation. Understanding the LWOP sentence this way, we might welcome a requirement that the government prove the child is incorrigible as a precondition to sentencing him to LWOP. If the sentencing jury wants deference to its decision, then it ought to have an adequate foundation for that decision, a departure from what ought to be the default of parole as a possibility. If there is the possibility of change and the child has not been shown to be incorrigible, then the sentence ought to retain the possibility of parole.

The Constitution

Unfortunately, it is not enough to make a case for the policy value of retaining parole in all but the most extreme cases. To qualify as cruel and unusual punishment, LWOP for juveniles who haven’t been proven incorrigible has to be a natural extension of existing precedents or reflect a value that has been with us from the ratification of the Constitution and the Bill of Rights or the later Fourteenth Amendment Due Process Clause. It was only in the beginning of the twentieth century, however, that the federal government and states began to adopt parole as an institution. And other than by analogy to the death penalty for adults, the demanded rule does not follow ineluctably from existing precedents either. Yet the words of Justice Kennedy writing for the Court in Montgomery v. Louisiana do support the position. “Miller, it is true, did not bar a punishment for all juvenile offenders, as the Court did in Roper or Graham. Miller did bar life without parole, however, for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility” (emphasis added). A majority of the Court thus viewed Miller as holding that only “the rarest of juvenile offenders,” the ones whose crimes reflected incorrigibility, could receive LWOP. If I were arguing for the Eighth Amendment right, I would lean heavily on this language from Miller along with the way in which the Court has treated LWOP like the death penalty and suggest that just as prosecutors in capital cases prove aggravating factors, incorrigibility should be an aggravating factor necessary to sentencing a child defendant to LWOP.

The argument may succeed, but it has weaknesses. For one thing, I am not sure how a sentencing jury would make a determination of whether a youthful killer is or is not capable of change. Even an adult offender whose personality is going to be relatively stable is difficult to read for future behavior. Dr. James Paul Grigson, Jr., of Texarkana, Texas, known to many as “Dr. Death,” would regularly testify that whoever was on trial for his life was dangerous and would definitely kill again. Though morbid, these pronouncements were also amusing because it seemed absurd that he could tell that all of these people would definitely kill again. And yet a standard demanding that a child offender be incorrigible to qualify for LWOP would suffer from the same and worse flaws. Now we would have to assess not only what the person as a child would do in the future, but we would have to figure out how someone with a fully developed brain would conduct himself when all we might have to go on would be the conduct of a child with an incompletely developed brain. Many of us have had the experience of meeting a child and predicting that he would one day be the author of a school shooting. But this is wild speculation, and we are virtually always wrong. To say that predicting people’s behavior over the long term is an inexact science is a gross understatement. It is accordingly difficult to imagine how a prosecutor would go about proving to a jury that a criminal juvenile was incapable of change, ever, such that parole would be inappropriate.

In light of the near-impossibility of proving that a child incapable of change, it would seem that the standard the petitioner presses upon the Court would in practice amount to a prohibition against LWOP for juvenile offenders, regardless of their crimes. I would support such a prohibition because children are indeed quite different from their adult selves and because adults are in general less impulsive and less violent than juveniles. We rarely hear about a 65-year-old gunning down a group of bystanders. I do not, however, expect the Court to go along with this approach by saying that every violent child has not only the potential but the likelihood of becoming a nonviolent senior citizen and that therefore, every juvenile offender sentenced to life has an Eighth Amendment right to parole. Indeed, all offenders would have this right, if we took the idea to its logical conclusion because the violent thirty-year-old is also very likely to become a nonviolent senior, provided a community in which criminal activity is not an expected feature (such as an organized crime family).

The Utility of Life Without Parole

At one time, LWOP was an effective way to save someone’s life. If a jury was terrified of a particular killer and wanted to make sure he would never have the opportunity to take another life, LWOP would give them almost as much as the death penalty in that department. Knowing that a defendant who had committed a heinous, atrocious, and cruel murder would remain safely behind bars for the rest of his life would satisfy a jury that would otherwise view execution as a necessary means of protecting the public. The very availability of LWOP thus prevented juries from unnecessarily sentencing people to death. In Shafer v. South Carolina, the Court said that whenever the defendant’s future dangerousness plays a role in sentencing, due process requires that the jury hear that a life sentence is in fact LWOP. LWOP in those situations provides a humane alternative to death by accomplishing the same thing. If a death sentence is an attempt to protect those endangered by the freedom of the defendant, then LWOP serves as a compromise.

If we must justify the absence of parole as something other than a less harsh alternative to death, it may be difficult. Even a fourteen-year-old who conducts a mass genocide may grow up to be someone very different. And if he has that potential, it would be a shame to have to keep him in prison at great expense to the state because of what he was like many years earlier. But the Court may or may not see fit to make good on the promise of Montgomery, which interpreted Miller as requiring that a juvenile offender be incorrigible as a condition of sentencing him to LWOP. Perhaps ironically, it was the death penalty that gave progressive legitimacy to LWOP, so the Court’s decision in Simmons may be the key to striking down LWOP for homicidal juvenile offenders. Sometimes it takes a slice of apple pie to make an apple taste sour by comparison.

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