Note: This story was updated May 18
The U.S. Supreme Court’s ruling today that life without parole for juveniles not involved in homicides is “cruel and unusual punishment” defied two of its own long-held principles. As a result, all but 13 of the states and the District of Columbia face significant policy decisions to bring them into compliance with the court’s view.
The decision is the first by the high court to establish a categorical rule pertaining to a “term-of-years” sentence. It is also the first time the court has breached its own view that the death penalty is different from other punishment. In addition, the ruling was predicated in part on the logic of its 2005 ruling that banned the death penalty for juveniles.
“The court has pretty much never used the 8th Amendment to invalidate anything other than death penalty,” said Bryan Gowdy, the attorney for petitioner Terrance Graham.
Graham was sentenced to life without parole at age 17. He pleaded guilty at age 16 to armed burglary and assault, and received a short sentence and probation. Six months later, he committed a home invasion robbery. Graham was given the life sentence for violating the terms of his probation.
Six judges concurred that the sentence imposed on Graham, now 23, was “unconstitutional.” The minimum sentence Graham could have received was five years. He was sentenced to the maximum of life in prison, which, because Florida has no parole, meant life in prison without parole.
Only five judges were convinced that Graham’s case demonstrated a need to prohibit states from imposing LWOP sentences in non-homicides. Chief Justice John Roberts agreed that Graham’s sentence was cruel and unusual, but that the “categorical conclusion is as unnecessary as it is unwise.”
The three dissenting justices, who were not persuaded that Graham’s sentence was cruel and unusual, echoed Roberts’s belief that the categorical decision was unwarranted.
“Neither the Eighth Amendment nor the Court’s precedents justify” the decision to impose a categorical ban, Justice Clarence Thomas wrote for the three dissenters. Justice Anthony Kennedy, who also wrote the majority opinion that ended the death penalty for juveniles, wrote the majority opinion.
The immediate ramifications of this decision will be in the 11 states that incarcerate at least one of the 129 inmates sentenced to LWOP for a non-homicide committed as a juvenile. Those states are: Florida, California, Delaware, Iowa, Louisiana, Mississippi, Nebraska, Nevada, Oklahoma, South Carolina and Virginia. The federal government also has six inmates serving juvenile LWOP sentences.
Today’s ruling means that courts in those states will have to resentence the inmates to a term that provides a real chance for release at some time.
Florida, where Graham is being held, is home to 77 of the 129 inmates who were sentenced as juveniles to life without parole. State Attorney General, Bill McCollum issued a statement late today saying that the ruling does not prohibit “very stern sentences for juveniles” and that he expects Graham to “be resentenced to a very long term in prison.”
He said he would work with legislators for solutions that “can better protect Florida's citizens, families and guests.”
Meanwhile, advocacy organizations said they will work to ensure that all 129 inmates have good lawyers for resentencing hearings. Most of them “did not have top-performing attorneys” during the proceedings that landed them in prison for life, said Jody Kent, director of the Campaign for the Fair Sentencing of Youth.
Thirteen states already have laws that conform with the high court’s ruling. Alaska, Colorado, Montana, Kansas, Kentucky and Texas do not permit LWOP sentences for any juvenile offender. Connecticut, Hawaii, Maine, Massachusetts, New Jersey, New Mexico and Vermont all allow for juvenile LWOP sentences, but only for those convicted of homicides.
The other 37 states, the District of Columbia and the federal government have laws that have now been ruled unconstitutional and will have to be changed.
The court told the states that they must “give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”
In addition to having a possibility of release, the ruling means that the 129 juvenile LWOP inmates will now have access to services that are afforded to other inmates. Because they had no possibility of parole, the 77 Florida juvenile LWOP inmates were ineligible for certain job training and educational services.
The court did not specify exactly how sentences for the juvenile LWOP inmates should be restructured. “It is for the State,” the court said, “to explore the means and mechanisms for compliance.”
The Campaign for the Fair Sentencing of Youth said it believes all juveniles should be tried in juvenile court, said Kent. But in the event that a juvenile receives such a harsh adult sentence, the organization supports a review of the sentence by the tenth year of incarceration.
California is considering such an approach. SB 399 could require 10-year reviews of sentences for LWOP juveniles that fit certain criteria.
But Florida, for one, signaled that it will try to continue to improve harsh sentences.
“I hope states take a sensible approach,” said Gowdy, Graham’s attorney, and review sentences “at a point in time when the juvenile has matured. It doesn’t make sense to wait [for parole hearings] until they’re 80 or 85.”
Life-sentence policies like that, or perhaps a 60-year term in prison, are examples of sentences that are the “functional equivalent” of life without parole, Gowdy said. And states that tried to substitute something like that for LWOP “will be facing challenges from people like me.”
Gowdy declined to say what he believes would be the point at which a lengthy sentence meets his “functional equivalent” description.
“I wouldn’t want to put out there what the exact line should be,” he said. “They have to give the juvenile offender some hope and opportunity to show they have reformed and returned to society.”
At the same time, for all 37 states to define a “meaningful opportunity to obtain release” could be messy, which Thomas discussed in his dissent:
"What, exactly, does such a ‘meaningful’ opportunity entail?” Thomas asked. “When must it occur? And what Eighth Amendment principles will govern review by the parole boards the Court now demands that States empanel? The Court provides no answers to these questions, which will no doubt embroil the courts for years.”
In his dissent, Thomas wrote that the majority had used faulty logic by determining that a categorical rule is necessary because juvenile offenders are inherently less culpable. But because the majority does not include juveniles convicted of homicides under the categorical rule, he wrote, “in the end, the Court does not even believe its pronouncements about the juvenile mind.”
There are around 2,400 inmates serving LWOP sentences for homicides that they committed as juveniles. The majority does not offer any explanation as to why homicide convicts do not belong in the class served by this categorical rule.
Most juvenile advocacy organizations described the court’s ruling as a “step in the right direction.” Virtually all of those advocates said they would like to see LWOP banned entirely for all juveniles.