Transcript Explanations 2 Gender, Race

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.”
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
• Fear of mistakes in culpability
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.
Kennedy’s Provocative Comments in
Roper re JWLOP
• Justice Kennedy’s opinion in Roper toyed with the notion that
for adolescents, a natural life sentence is on the same
proportionality plane as a death sentence.
• “…the punishment of life imprisonment without the possibility
of parole is itself a severe sanction, in particular for a young
person.”
• “…[w]hen 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” (emphasis
added)
• “To the extent the juvenile death penalty might have residual
deterrent effect, it is worth noting that the punishment of life
imprisonment without the possibility of parole is itself a severe
sanction, in particular for a young person”
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
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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 firstdegree 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)).
Recent Legislative Efforts
• In 2006, Colorado lawmakers eliminated JLWOP 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
• Michigan, California, Mississippi, and Illinois all have
abolition bills in the state legislature.
• 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
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 8% include:
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Rape
Kidnapping
Other violent crimes
Convictions under repeat offender laws (Three-Strikes Laws)
_____________________________________________
* Human Rights Watch report, October 2005
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Juvenile Offenders
Juvenile Offenders Serving LWOP
350
300
250
200
150
100
50
0
Juvenile LWOP Sentencing Rate
Virginia
Louisiana
Michigan
Pennsylvania
Iowa
Missouri
Florida
Arkansas
Oklahoma
Nebraska
Colorado
Massachusetts
South Dakota
Wyoming
Delaware
Nevada
Illinois
South Carolina
North Carolina
Arizona
Mississippi
California
Washington
Hawaii
Alabama
Connecticut
Wisconsin
Maryland
New Hampshire
Rhode Island
North Dakota
Montana
Georgia
Tennessee
Minnesota
Indiana
Ohio
38.23
35.13
33.32
29.21
23.21
19.57
18.75
18.49
17.99
17.88
16.31
15.35
14.46
11.5
10.55
10.33
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
0.66
0.57
0.15
0
20
40
109.56
52.87
49.27
60
80
Rate Per 100,000 Youth 14-17
100
120
132.94
140
Juvenile Offenders Sentenced To LWOP
1976-2003
160
152
143
140
133
124
116 118
120
100
91
84
80
73
50
40
33
72
64 66
59
60
78
54
32 32 32
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19
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19
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19
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19
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19
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19
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19
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19
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19
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19
95
19
96
19
97
19
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19
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20
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20
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20
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20
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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
– Felony murders account for many JWLOP sentences, but hardly all
– Decrease from 152 in 1996 to 54 in 2003
• 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%
• States with mandatory JLWOP have highest JWLOP
sentencing rates
– Little relationship to juvenile homicide rates or juvenile homicide arrest
rates
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.
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Sentencing Rate By Race (Per 10,000 14-17 Yr. Olds)
Juvenile LWOP Sentencing Rate (By Race)
40
White Youth
35
30
Hispanic Youth
Black Youth
25
20
15
10
5
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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)
Proportionality
• “What comparison can there really be …between consigning a
man to the short pang of a rapid death, and immuring him in a
living tomb, there to linger out what may be a long life in the
hardest and most monotonous toil, without any of its
alleviation or rewards….and cut off from all earthly hope…?’”
– John Stuart Mill (1868)
• “A further alternative is to lengthen the sentence to the limit of
life itself….This is a death sentence where the inevitable end is
reached by the imperceptible stages of institutional decay
instead of by one full stroke” – Alexander Patterson (1930)
– Patterson study, one of the few empirical studies
• Prison conditions for juveniles
– Victimization
Proportionality (continued)…..
• Death is different (Woodson v NC), but is JWLOP?
• New York Times (Adam Liptak): October 3-5, 2005
– Serving Life, With No Chance of Redemption
– Jailed For Life After Crimes As Teenagers
– Years of Regret Follow a Hasty Guilty Plea Made At 16
– To More Inmates, Life Term Means Dying Behind Bars
• Rocky Mountain News (CO): September 17-21, 2005
– Life Term Without Parole Just One Option
– Growing Up In Prison
– Poll Backs Sentencing Shift: System Now Requires LWOP
For Some Teen Killers
– Website: http://www.rockymountainnews.com
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) – consistent with harm of offense, not
culpabilty of offender
– Ewing v. California (2003) – legislative prerogative to define
proportionality
• But, the Court has also recognized that juvenile status often
diminishes culpability vis-à-vis death as a punishment
(Woodson)
– Thompson v. Oklahoma (1988)
– Roper v. Simmons (2005) – Juveniles are categorically less culpable
– Proportionality test here includes offender culpability
• But in all the JWLOP cases, age competes with other factors,
including offense seriousness, in proportionality analysis
State Court Decisions
• Some state courts have found LWOP sentences
unconstitutional when imposed on juvenile offenders
• Naovarath v. State, Nevada Supreme Court (1989):
– Facts: Thirteen year old sentenced to LWOP for first-degree
murder for shooting man who had been sexually molesting
him.
– 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, 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
two people.
– 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. Minority of states that permit mandatory
JWLOP for non-capital offenses are evidence of
boundaries of decency
More State Court Decisions
• State v Massey (1990, WA): rejected age as a factor in
the proportionality analysis of a life sentence for a 13year-old convicted of murder, narrowly defining
proportionality as “only a balance between the crime and
the sentence imposed.”
• Workman v Kentucky (1968, KY): held that JLWOP
sentences for two 15-year-old males convicted of rape
“under all circumstances shocks the general conscience
of society today and is intolerable to fundamental
fairness.”
• State v. Mitchell (MN, 1998): rejected a proportionality
challenge brought by a 15-year-old who had been
sentenced to natural life (albeit with parole review after
30 years). Although age was obviously a mitigating
factor, the trial judge could not impose a lesser sentence
since JLWOP was mandatory once the case was
transferred to the criminal court, where any sentencing
discount for diminished culpability was forfeited.
Federal Decisions
• Harris v. Wright, Ninth Circuit (1996):
– Facts: Fifteen year old sentenced to mandatory LWOP for
felony murder.
– Issue: Harris argues mandatory LWOP sentence violates
Eighth Amendment and constitutes cruel and unusual
punishment when imposed on an offender less than sixteen
years of age.
– 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.
Questions and Challenges
• 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? If true in
juvenile death penalty jurisprudence, does it apply to
other punishments?
Constitutional Questions
• Evolving Standards? (8th Amendment )
– Commonality in practice and in statute?
– International standards?
• Proportionality Test
– Should severity of sentence match seriousness of crime or culpability of the
offender?
– Reach of the statutes (non-capital cases involving juveniles?) – see Kennedy
dissent in Harmelin
– If the sentencing statute is validly enacted, judges can’t circumvent legislative
prerogative (narrow view of constitutional test?)
• Jurisprudential
– Adolescents have diminished culpability, but is it diminished enough given the
punishment?
– How and when should age compete with other factors in a proportionality test?
• Procedural
– Possibilities for a “narrowing jurisprudence”?
• Waiver is essential prerequisite for JWLOP sentence, should there be
greater scrutiny and stricter standards given the promiscuity of waiver
procedures and generally low standards?