Punishing Juveniles Who Commit Homicide Offenses.

In light of all the hoopla over the health care law, less attention was paid to Justice Elana Kagan’s authoring of her first 5-4 decision for the U.S. Supreme Court, striking down mandatory life without parole sentences for juveniles who commit homicide offenses.  In this case, Justice Anthony Kennedy joined the liberal wing; Chief Justice Roberts stayed with the conservatives.

Kagan’s decision involves two companion cases decided in June.  In the first, Evan Miller, who had been drinking and smoking pot with another juvenile and an adult named Cole Cannon, beat Cannon repeatedly with a baseball bat. Cannon had earlier sold drugs to Miller’s mother.  The two boys later set fire to Cannon’s trailer to cover their tracks.  Cannon died of his injuries and from smoke inhalation.  Miller was fourteen years old at the time. 

Kuntrell Jackson and two friends decided to rob a video store. On the way, Jackson learned that one of his buddies, Derrick Shields, was carrying a sawed-off shotgun. Jackson stayed outside while the other two went in. After the store clerk refused to turn over the money to Shields, and then threatened to call the police, Shields shot and killed her. Jackson was also fourteen years old at the time.

Both Alabama (the Miller case) and Arkansas (the Jackson case) allow 14 year olds to be bound over to adult court, (as does Ohio) and both boys were.  Miller was convicted of murder by an Alabama jury and sentenced to life without the possibility of parole. Jackson was convicted of capital felony murder and aggravated robbery by an Arkansas jury.  He also was sentenced to life without parole.  The supreme courts of both states affirmed the convictions and sentences.

Much of the media coverage in these cases reported that the Court had categorically banned life sentences without parole for juveniles who commit homicide offenses.  That is in fact an argument both Miller and Jackson had advanced, but was not what the Court held.   What the Court actually banned was the mandatory imposition of life without parole for juveniles who commit homicide offenses. Specifically the Court held that the mandatory imposition of life without parole for those who commit a homicide offense before the age of eighteen violates the Eighth Amendment prohibition against cruel and unusual punishment. Still, the majority noted that even if state laws allow discretion in the imposition of life without parole for juvenile homicide offenders, such sentences would or should be very uncommon. 

The overarching reason for the majority’s finding was that a mandatory life sentence for juvenile homicide offenders runs afoul of the Court’s “requirement of individualized sentencing for defendants facing the most serious penalties.”  (The sentencing tide ebbs and flows. The federal sentencing guidelines were originally adopted to eliminate discretion.  They were later abandoned for doing exactly that.)  Justice Kagan spent much of her majority opinion following the line of cases dealing with the lesser culpability of juvenile offenders, probably because Justice Kennedy, whose vote she needed, has written so passionately in that area.

 Quoting from an earlier decision, Kagan wrote that “children cannot be viewed simply as miniature adults.” In 2005, in Roper v. Simmons,, the U.S. Supreme Court banned the death penalty for juveniles who committed homicide offenses before they were eighteen.  Then in 2010 in Graham v. Florida, the Court held that life without parole for juvenile non-homicide offenders violated the Eighth Amendment. Justice Kennedy wrote the majority decision in both of those cases. Justice Kagan relied extensively on findings in those two cases to bolster her conclusions in these two cases. The building blocks from those cases are first, that “children have a lack of maturity and an underdeveloped sense of responsibility leading to recklessness, impulsivity, and heedless risk-taking.” Second, children are “more vulnerable…to negative influences and outside pressures” and are less able to extricate themselves from “crime-producing settings.” And third, “a child’s character is not as ‘well-formed’ as an adult’s.”  So neither deterrence nor retribution has the same justification in a juvenile context as in an adult context (whether these make sense as adult penal goals is subject to a different kind of debate). Indeed, under such a sentencing scheme, juveniles will serve much longer jail terms than adults convicted of homicide offenses, and give them no chance whatsoever at rehabilitation, even “when the circumstances most suggest it.” There are two important take-aways here. Youth matters, and sentencing must be individualized.

Justice Kagan also dealt deftly with the dissents in some very pointed footnotes. (Example—“While the dissents seek to relitigate old Eighth amendment battles, repeating many arguments this Court has previously (and often) rejected, we apply the logic of Roper, Graham, and our individualized sentencing decisions to these two cases.) At times, she sounded like a younger Justice Ginsburg.  

Justice Breyer, wrote a separate concurrence, joined by Justice Sotomayor.  He agreed with everything Justice Kagan wrote.  But he would go one step farther, and make the life-with-no possibility-of-parole ban on juveniles mandatory if the juvenile involved in a homicide offense neither killed nor intended to kill the victim. And he worried that Kuntrell Jackson, who just went along with some older boys, and stayed outside when the murder occurred, is in that category. That would have to be determined on remand to the Arkansas trial court.

Chief Justice Roberts wrote the lead dissent, joined by the rest of the conservatives, minus Justice Kennedy. He criticized the majority for ignoring the important fact that any punishment found to violate the Eighth Amendment must be cruel or unusual.  He produced data showing that if there is a national trend, it is against rehabilitation, and in favor of longer, determinate sentences, and that life without parole has become more common in the last quarter century.  So, his point is that life without the possibility of parole, even for juveniles, is usual, not unusual, in many states, and it is not the role of the Court to disagree with that policy choice, even if the members of the Court personally disagree with it. 

Justice Thomas wrote a dissent joined by Justice Scalia.  He sang his usual song, arguing that neither of the two lines of precedent relied on by the majority—the categorical prohibition of certain punishments for certain classes of offenders, and the requirement of individualized sentencing in the capital punishment context –was consistent with Original Intent.  In the gospel according to Thomas, the prohibition against cruel and unusual punishment was understood as barring tortuous methods of punishment, and contained no proportionality principle. The determination of who deserves what punishment belongs to the legislative branch.

Justice Alito, also joined by Justice Scalia, wrote a particularly bitter dissent, criticizing the majority for pretty much making up the evolving standards of decency to suit its own view of what that should be, instead of deferring to actual legislative choices, which show a consensus permitting life without the possibility of parole for juveniles for both nonhomicide and homicide offenses.

The Supreme Court of Ohio recently issued a decision philosophically very much in tune with U.S. Supreme Court majority in the Miller and Jackson cases.  In April, in the case In Re C.P., the Ohio high court struck down by a vote of 5-2 a statute that required  lifetime registration and community notification requirements, including placement on a public internet registry, on a newly created category of juvenile sex offenders who were 14-17 when they committed certain sexually oriented offenses. Read an analysis of the CP case here.

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