By strange coincidence, 2022 is a major anniversary of three Supreme Court decisions about America’s most extreme punishments: the death penalty and life imprisonment without parole (LWOP).
Fifty years ago, the Court’s Furman v. Georgia decision brought a temporary halt to capital punishment. That was at least some good news for those seeking to end the death penalty
But thirty-five years ago, the Court delivered a grave blow to abolitionists. Its 5-4 ruling in McCleskey v. Kemp severely curtailed the kinds of evidence that could be used to prove that capital punishment was being administered in a racially discriminatory manner.
And a decade ago, in 2012, the Court found unconstitutional mandatory life in prison sentences for juvenile offenders 17 years old and younger convicted of murder.
This year marks the tenth anniversary of that ruling, Miller v. Alabama, another 5-4 decision. We should both acknowledge how important it was and also how much still remains to be done to stop sending kids to die behind bars.
Scientists now recognize that the development of the human brain, and the inhibitions that go along with it, are not complete until a person is into their 20s. It does not make sense to ignore those facts and treat child criminals the same way we treat adult offenders. To punish juveniles justly we must respond not only to what they do, but also to who they are.
Children can and do commit serious offenses. And that certainly was the case for the defendants in Miller and its companion case, Jackson v. Hobbs. The crimes committed by the defendants in those cases were by any measure brutal and shocking.
In July 2003, Evan Miller, along with Colby Smith, murdered Cole Cannon by beating him to death with a baseball bat. They also set fire to the victim’s trailer while Cannon was inside. At the time, Miller was 14 years old and Smith was 16. Miller was tried as an adult and convicted of capital murder and arson. He was sentenced to life without parole.
Smith, on the other hand, pled guilty and, in return for testifying against Miller, received a life sentence with a first parole eligibility after ten years.
The defendants in the Jackson case were Kuntrell Jackson, Derrick Shields, and Travis Booker. In 1999 they robbed a local video store in Blytheville, Arkansas. Two of them were 14 years old; the other was 15. When the store clerk refused to hand over the money in the cash register, she was shot in the face with a sawed-off shotgun.
All three boys admitted that they committed the crime.
According to a 2012 post on SCOTUSblog, Jackson “grew up in housing projects [in Blytheville, Arkansas], the scenes of drug abuse and other crimes, and had a very troubled youth without his father and with an abusive father figure in his mother’s boyfriend. His mother and a brother were sent to prison. Kuntrell was often in trouble with the police, for shoplifting, auto theft and other crimes, and had served time in a juvenile detention center as a serious offender.”
He was convicted of capital murder during a robbery and sentenced to life in prison under Arkansas’s mandatory sentencing law.
In Miller and Jackson, the Court struck down that law and a similar one in Alabama. It held that “the Eighth Amendment’s prohibition against cruel and unusual punishment forbids the mandatory sentencing of life in prison without the possibility of parole for juvenile homicide offenders.”
Justice Elena Kagan, writing for the majority, said:
The mandatory penalty schemes at issue here prevent the sentencer from taking account of these central considerations. By removing youth from the balance— by subjecting a juvenile to the same life-without-parole sentence applicable to an adult—these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes…(the) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.
Four conservative Justices (Roberts, Scalia, Thomas, and Alito) dissented.
One of them, Justice Alito, acknowledged that
it is hard not to feel sympathy for a 14-year-old sentenced to life without the possibility of release. But no one should be confused by the particulars of the two cases before us. The category of murderers that the Court delicately calls “children” (murderers under the age of 18) consists overwhelmingly of young men who are fast approaching the legal age of adulthood. Evan Miller and Kuntrell Jackson are anomalies; much more typical are murderers, like Daniel Roper, who committed a brutal thrill-killing just nine months shy of his 18th birthday.
But ending mandatory life sentences for juveniles who kill did not end juvenile LWOP.
Take the case of Evan Miller the lead plaintiff in Miller. In 2021, after years of litigation, he was resentenced to life without parole after a hearing on the particulars of his background and circumstances.
According to a local news report, an Alabama judge found that “despite his young age and abusive upbringing, Miller knew what he was doing when he committed the ‘heinous act.’ The judge called him the “‘principal aggressor in the death of Mr. Cannon.’” “‘You showed cunning,’” the judge said, “‘not clumsy rash thinking.’”
And Miller is not alone. The Sentencing Project found that there were 1465 people serving life without parole sentences at the start of 2020. That number represents a 44% drop since the Miller decision.
The Sentencing Project also notes that “thirty-one states and the District of Columbia do not have any prisoners serving life without parole for crimes committed as juveniles….”
But twenty-five states still continue to have laws on the books that allow for life without parole sentences for juvenile offenders.
Just last year, in Jones v Mississippi, the Supreme Court refused to go beyond Miller. It upheld life without parole for juveniles so long as the law affords the judge imposing such a sentence the discretion to take into account the defendant’s age.
Justice Brett Kavanagh reasoned that “discretionary sentencing allows the sentencer to consider the defendant’s youth, and thereby helps ensure that life-without-parole sentences are imposed only in cases where that sentence is appropriate in light of the defendant’s age.”
As it is on so many things, the Supreme Court and this country are outliers, out of step with a worldwide consensus. “The United States,” an NBC report notes,” is currently the only country in the world that sentences juveniles to life without the possibility of parole.”
Juvenile life without parole is forbidden by human rights treaties such as the International Covenant on Civil and Political Rights, the Convention Against Torture, and the United Nations Convention on the Rights of the Child.
Even as we mark Miller’s tenth anniversary, we should remember that work remains to be done. That work now requires organized political action at the state level to end the utter cruelty of all juvenile life without parole sentences.