As states are scrambling to respond to Miller v. Alabama , a number of law review articles have recently come out on Graham v. Florida, the 2010 Supreme Court decision that ended juvenile life without parole sentences for those convicted of non-homicide offenses. In a forthcoming article by Professor Robert Johnson (American School of Public Affairs) and Chris Miller in the Maryland Law Journal of Race, Religion, Gender and Class, the authors argue for extending the holding of Graham to all homicide cases (which, as you know, Miller did not do, as it only found mandatory JLWOP sentences to be unconstitutional). In another article on Graham, Aaron Sussman suggests looking to the Prisoner Litigation Reform Act in order to reconcile what he views as the “ambitious language of Graham (and echoed in Miller) with the less hopeful reality for children in the juvenile justice system.” In an article generally applicable to the representation of juveniles in adult court, Beth Caldwell (Thomas Jefferson School of Law) writes about counsel’s obligation to present mitigating evidence.
Meanwhile, states across the country are complying with Miller in a variety of ways. On one extreme, as Professor Doug Berman reported in his Sentencing Law & Policy blog, the governor of Iowa recently commuted life sentences for thirty-eight prisoners sentenced to JLWOP to mandatory sixty year sentences. While the Iowa Code seems to give the governor this power without limitation, an open question will be whether sixty-year sentences are functionally “life” sentences, given that these prisoners were at least thirteen or fourteen at the time of the offense.
On the other end of the spectrum, I am heartened to report that North Carolina’s outgoing Governor Bev Perdue just signed into law a very reasonable amendment to the state sentencing laws on first-degree murder to comply with Miller. The new law mandates a life with parole sentence if the juvenile is convicted under felony-murder doctrine (consistent with Justice Breyer’s concurrence). It outlines the hearing procedure to determine whether the juvenile’s sentence should be life with or without parole. It enumerates the mitigating factors to be considered by the court at such a hearing, including the age at the time of the offense, immaturity, ability to appreciate the risks and consequences of the conduct, intellectual capacity, prior record, mental health, familial or peer pressure exerted upon the defendant, and likelihood that the defendant would benefit from rehabilitation in confinement. This list is, in fact, very similar to the list of factors that a juvenile court judge must consider when determining whether to transfer a juvenile from delinquency to adult criminal court (see N.C.G.S. 7B-2203 (b)). The bill also states that “life with parole” means that the defendant will be eligible for parole at twenty-five years imprisonment and that parole shall be a term of five years.
These two extremes suggest that Supreme Court litigation on the question of life without parole sentences will be ongoing. Will long term-of-years sentences for juveniles, such as those imposed by Governor Terry Branstad in Iowa, be the next issue to be addressed by the Court? Although Justice Breyer does not view felony murder as demonstrating the moral culpability required for a sentence of JLWOP, the majority of the Court has not decided this issue either. Further, it is likely that the Court will eventually address whether LWOP sentences for adult defendants who are psychologically incapacitated, mentally impaired, or even acutely drug addicted are constitutional. If the transgressions of these defendants are found to be less “morally reprehensible” than those without such impairments, aren’t they also “unfit objects of the state’s sentencing laws,” requiring a categorical exemption from certain types of punishments?
A quick Google search did not find any other states that have amended their sentencing laws in the wake of Miller. If you are aware of any (or have thoughts about how your state may ultimately address the end of mandatory JLWOP), please share in the comments.