Life Without Parole (LWOP) for Minors Class 11

The Scalia Challenge in Roper

• “It is also worth noting that, in addition to barring the execution of under-18 offenders, the United Nations Convention on the Rights of the Child prohibits punishing them with life in prison without the possibility of release. If we are truly going to get in line with the international community, then the Court’s reassurance that the death penalty is really not needed, since “the punishment of life imprisonment without the possibility of parole is itself a severe sanction,”… gives little comfort.”

Social and Political Context

• LWOP has always been a sentencing option, but the frequency with which it is imposed has increased significantly in recent decades • Over the past three decades, the political climate has increasingly embraced “get tough” criminal justice policies.

– Mandatory LWOP sentences – Three-Strikes Laws • As a result, an estimated 10% of offenders in state/federal prisons are serving life sentences • Of those serving life sentences, 25% are serving LWOP sentences.

Social and Political Context

• LWOP has also been instrumental as an alternative to the death penalty – Studies show jurors are more reluctant to impose a death sentence when given an alternative to sentence a capital offender to LWOP – LWOP has been crucial to whatever progress has been made against the death penalty

Current State Laws

• State LWOP Statutes: – Currently, 42 states allow LWOP to be imposed on juvenile offenders • 11 states have varying minimum ages under 14 • 11 states have lower age limits of 14 • 3 states set age limit at 15 • 3 states set age limit at 16 • The remaining 14 states set no minimum age limit – In 26 states, LWOP is mandatory for anyone convicted of first degree murder.

– The District of Columbia is the only jurisdiction without a death penalty that specifically exempts under-18 offenders from its harshest sanction: life imprisonment without parole (

See, D. C. Code §22—2104 (West 2001)).

National Statistics*

• An estimated 2,225 juvenile offenders are serving LWOP in the U.S.

– 16% between 13-15 years old – 59% sentenced to LWOP are first-time offenders – 93% were convicted of murder • An estimated 26% were convicted of accountability offenses (felony murder) – The remaining 7% include: • Rape • Kidnapping • Other violent crimes • Convictions under repeat offender laws (Three-Strikes Laws) _____________________________________________ * Human Rights Watch report, October 2005

Juvenile Offenders Serving LWOP

350 300 250 200 150 100 50 Pe nn sy 0 lv an Lo ia ui sia Mi na ch ig an Fl or Ca id lif a or ni Mi a ss ou ri Ill in Ma oi ss s Io ac w hu a se Ok tts la ho m Vi a rg Ar in ia ka ns Co No as lo rth ra C do ar ol So in Ar ut a iz h on Ca W a ro as lin hi a ng to Ne n br Mi as ss ka iss ip pi Ne va W da isc on Al sin ab am Ma Co a ry la nn So nd ec ut tic h ut Da ko ta Ge or gi De la a w W ar e yo m in g Ha Te Ne wa nn w ii es Ha se m e ps hi In re di Mi an nn Rh a es od ot e a Is la Mo No nd nt rth an D a ak ot a Oh io

Juvenile LWOP Sentencing Rate

Virginia Louisiana Michigan Pennsylvania Iowa Missouri Florida Arkansas Oklahoma Nebraska Colorado Massachusetts Wyoming Delaware Illinois South Carolina North Carolina Arizona Mississippi California Washington Hawaii Alabama Connecticut Wisconsin Maryland New Hampshire Rhode Island North Dakota Montana Georgia Tennessee Indiana Ohio 0 0.57

0.15

9.48

9.18

6.65

6.08

5.86

5.58

4.91

4.41

4.25

3.69

2.44

1.71

1.71

1.29

17.88

16.31

15.35

14.46

11.5

10.55

20 38.23

35.13

33.32

29.21

23.21

18.75

18.49

40 52.87

49.27

60 80

Rate Per 100,000 Youth 14-17

100 109.56

120 132.94

140

160 140 120

Juvenile Offenders Sentenced To LWOP 1976-2003

116 118 152 143 124 133 100 91 84 80 73 78 72 60 59 50 64 66 40 33 32 32 32 20 20 10 1 5 2 1 2 5 0 19 76 19 77 19 78 19 79 19 80 19 81 19 82 19 83 19 84 19 85 19 86 19 87 19 88 19 89 19 90 19 91 19 92 19 93 19 94 19 95 19 96 19 97 19 98 19 99 20 00 20 01 20 02 20 03 54

Trends

• Although juvenile LWOP sentences have declined in absolute numbers in recent years, the proportion of LWOP sentences imposed on juveniles has increased relative to the total number of youth arrested (different for homicides and juvenile death sentences, see Fagan and West, 2005).

• In 1990, 2,234 juvenile offenders were convicted of murder and 2.9% were sentenced to LWOP • By 2000, the murder conviction rate had dropped by nearly 55% (1,006), but the percentage of juvenile offenders receiving LWOP increased by 216%

Racial Disparities

• Nationally, black youth are ten times more likely to be sentenced to LWOP than white youth.

• In some states the ratio is greater: – In California, black youth are 22.5 times more likely to receive a LWOP sentence than white youth. – In Michigan, black youth are 12.4 times more likely than white youth to receive a LWOP sentence. – In Pennsylvania, Hispanic youth are ten times more likely to be sentenced to LWOP than white youth.

Juvenile LWOP Sentencing Rate (By Race)

40 35 30 25 White Youth Hispanic Youth Black Youth 20 15 10 5 0 Al ab am Ari a zo Ark na an sa Ca lif s orn Co ia lo Co ra nn do ec tic De ut la w are Fl ori da Ge org ia Ill in oi In s di an a Io Lo w ui a M sia M as na ary sa la ch nd us et M ts ich M ig in an ne M so iss ta iss ip M pi iss ou M ri on ta Ne na bra Ne sk Ne w a va Ha m da ps Ne w No hi rt re Je h rs No ey Ca rt ro h lin Da a ko ta Oh Ok la Pe io ho nn m sy Rh a lv od So an e ut ia Is h la Ca So nd ut ro h lin Da a Te ko nn W ta es as se hi e ng W to isc n on W sin yo m in g

International Standards

• The U.S. is one of only a few countries that sentence juvenile offenders to LWOP – 132 countries have rejected LWOP sentences for juvenile offenders – 14 countries allow for the possibility of sentencing a juvenile offender to LWOP, but it is rarely imposed – In addition to the U.S., only Bangladesh, Israel, South Africa, and Tanzania sentence juvenile offenders to LWOP • Outside the U.S., there are currently only twelve juvenile offenders serving LWOP

International Standards

• United Nations Convention on the Rights of the Child, [1577 U. N. T. S. 3, 28 I. L. M. 1448, entered into force Sept. 2, 1990] bans LWOP for juveniles • LWOP is explicitly banned in Austria, Ireland, Japan, Switzerland, Sweden, and the United Kingdom • In Canada, juvenile LWOP sentences are prohibited • The following treaties/resolutions prohibit juvenile LWOP: – The Convention of the Rights of the Child (signed and ratified by every country but the U.S. and Somalia) – United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) – United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Riyadh Guidelines)

Recent Legislative Efforts

• In 2005, Colorado lawmakers considered eliminating LWOP and other particularly long sentences for youth offenders, giving judges the ability to periodically re-examine a youth offender’s progress in prison • Several Florida lawmakers recently introduced a bill to ensure parole for some children sixteen and years old and younger sentenced to life – Neither provision passed Senate committee hearings • Following

Roper v. Simmons

, Texas passed law allowing jurors to impose LWOP in capital cases. – The question remains whether the rate of juvenile LWOP sentences per juvenile homicide arrest will exceed the rate of juvenile death sentences prior to

Roper

Case Law

• The U.S. Supreme Court has consistently upheld adult life and LWOP sentences (including those imposed for drug crimes and ‘three-strikes laws’) – –

Harmelin v. Michigan

(1991)

Ewing v. California

(2003) • But, the Court has also recognized that juvenile status often diminishes culpability –

Thompson v. Oklahoma

(1988) –

Roper v. Simmons

(2005) – None have considered whether it is diminished

enough

LWOP?

– Proportionality?

for

State Court Decisions

• • Some state courts have found LWOP sentences unconstitutional when imposed on juvenile offenders

Naovarath v. State

– Facts: Thirteen year old sentenced to LWOP for first-degree murder for shooting man who had been sexually molesting him. , Nevada Supreme Court (1989): – The court, pointing to the “undeniably lesser culpability of children for their bad actions, their capacity for growth, and society’s special obligation to [them],” holds that LWOP sentence constitutes severe cruel and unusual punishment. – “To adjudicate a thirteen year old to be forever irredeemable and to subject a child of this age to hopeless, lifelong punishment…is not a usual or acceptable response to childhood criminality…It is questionable whether a thirteen year old can even imagine or comprehend what it means to be imprisoned for sixty years or more.”

State Court Decisions

•

People v. Miller

two people.

, Illinois Supreme Court (2002): – Facts: Fifteen year old, first-time offender sentenced to LWOP under the Illinois multiple-murder sentencing statute for his role as a passive lookout in the murder of – Issue: Whether the multiple-murder sentencing statute is unconstitutional as applied to a juvenile offender convicted under a theory of accountability. – Court holds that mandatory LWOP sentence is particularly harsh, unconstitutionally disproportionate, and grossly distorts the factual realities of the case and the defendant’s personal culpability. – Miller’s sentence reduced to 50 years.

• Court implies Miller’s culpability was lessened to some extent because of his age.

• However, the Court also notes: “Our decision does not imply that a sentence of life imprisonment for a juvenile offender convicted under a theory of accountability is never appropriate. It is certainly possible to contemplate a situation where a juvenile offender actively participated in the planning of a crime resulting in the death of two or more individuals, such that a sentence of natural life imprisonment without the possibility of parole is appropriate.

”

State Court Decisions

•

State v. Standard

, South Carolina Supreme Court (2003): – Facts: Fifteen year old with a prior armed robbery conviction is later convicted of first-degree burglary and grand larceny and sentenced to LWOP under South Carolina’s “Two-Strikes Law.” – Court holds that LWOP sentence is within the bounds of society’s current and evolving standards of decency because a growing minority of states impose the sentence on juvenile offenders.

– Court concludes Standard’s LWOP sentence for burglary does not constitute cruel and unusual punishment.

Appellate Decisions

•

Harris v. Wright

felony murder. years of age. , Ninth Circuit (1996): – Facts: Fifteen year old sentenced to mandatory LWOP for – Issue: Harris argues mandatory LWOP sentence violates Eighth Amendment and constitutes cruel and unusual punishment when imposed on an offender less than sixteen – Court rejects Harris’ claim: • Mandatory LWOP sentence does not violate “evolving standards of decency” because at least 21 states impose mandatory LWOP sentence on fifteen year old offenders.

• Mandatory LWOP sentence is not disproportionate when imposed on offenders less than 16 years of age.

•

Harris v. Wright

, Ninth Circuit (1996): – Judge Kozinski: “Youth has no obvious bearing…If we can discern no clear line for adults, neither can we for youths. Accordingly, while capital punishment is unique and must be treated specially, mandatory LWOP is, for young and old alike, only an outlying point on the continuum of prison sentences. Like any other prison sentence, it raises no inference of disproportionality when imposed on a murder.

State and Federal Law

•

• The preceding state cases all avoid difficult jurisprudential and scientific issues about culpability • U.S. Supreme Court, however, has recognized limitations of adolescents in many areas of social functioning by setting age-specific thresholds of competency – Acknowledged in

Eddings

,

Thompson

and

Roper Atkins

logic?

Roper v. Simmons

• Court recognizes three general differences between juveniles and adults: – A lack of maturity and an underdeveloped sense of responsibility are more characteristic of youth.

– Juveniles are more vulnerable and susceptible to negative influences and outside pressures, including peer pressure.

– The character of a juvenile is not as well formed as that of an adult.

• Juveniles are “categorically less culpable” than adult criminals

Roper v. Simmons

• Court Concludes: – Whether viewed as an attempt to express the community’s moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult. – Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity.

– When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.

Recent Articles

• New York Times (Adam Liptak): October 3-5, 2005 –

Serving Life, With No Chance of Redemption

–

Jailed For Life After Crimes As Teenagers

– – • Rocky Mountain News (CO): September 17-21, 2005 –

To More Inmates, Life Term Means Dying Behind Bars Life Term Without Parole Just One Option

–

Years of Regret Follow a Hasty Guilty Plea Made At 16 Growing Up In Prison

–

Poll Backs Sentencing Shift: System Now Requires LWOP For Some Teen Killers

– Website: http://www.rockymountainnews.com

• “Living Death” ??

Implications

• Does the logic of

Roper

extend to LWOP?

– Should there be a categorical prohibition against sentencing juvenile offenders to LWOP or should sentencing be assessed on an individualized basis?

– If so, where do you draw the line?

• Scalia dissent: “The Court suggests no stopping point for its reasoning” – Does similar logic apply to life sentences that allow for parole and other lengthy sentences for juvenile offenders?

– Does precluding juveniles from LWOP perpetuate the notion that youth always trumps culpability?

• Are individual assessments an imperfect method of classifying competence and culpability?

Constitutional Questions

• Evolving Standards? (8 – Commonality in practice and in statute?

– International standards?

• Proportionality Test th Amendment ) – Severity of sentence match seriousness of crime – Reach of the statutes (non-capital cases involving juveniles?) – see Kennedy dissent in

Harmelin

• Jurisprudential – Adolescents have diminished culpability, but is it diminished enough given the punishment?

• Procedural – Possibilities for a “narrowing jurisprudence”?

Stay Tuned

• Tomorrow: Human Rights Watch and Amnesty International Release Report On Juvenile LWOP – The Rest Of Their Lives: Life Without Parole For Child Offenders in the United States – First major national report on juvenile LWOP – Website: http://hrw.org/reports/2005/us1005/