Published in The New York Times
By The New York Times EDITORIAL BOARD Nov. 20 2017
How many times does the Supreme Court have to repeat itself before its message gets through? In the case of life-without-parole sentences for juveniles, the answer seems to be: at least one more time.
On Tuesday, the justices will meet to consider whether to hear two separate cases asking them to ban those sentences categorically, in line with the Eighth Amendment’s guarantee against cruel and unusual punishments. It should be an easy call. For more than a decade, the court has been moving in the right direction, growing ever more protective of juveniles who are facing the harshest punishments in our justice system.
In 2005, the court banned the death penalty for people who committed their crimes before turning 18. In 2010, it outlawed juvenile sentences of life without the possibility of parole in all cases but homicide. In 2012, it barred mandatory sentences of life without parole for juveniles in all cases. And in 2016, it made that ruling retroactive for the more than 2,000 inmates already sentenced.
Every case turned on the developing awareness that young people are “constitutionally different” from adults — less in control of their emotions and more able to change over time — and should be punished differently. In the 2012 decision, Miller v. Alabama, the court said states could still impose life without parole, but only after providing “individualized sentencing decisions” that take into account the “hallmark features” of youth, like “immaturity, impetuosity and failure to appreciate risks and consequences.” The punishment should be reserved for “uncommon” cases, for that “rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible.”
A few states had by then recognized that minors are not as morally culpable as adults, and had barred juvenile life-without-parole sentences across the board. But since the court’s string of rulings, many more states have come on board; 20 states and the District of Columbia now ban the sentence in all cases. In four other states it exists on the books but is never imposed in practice. Even Pennsylvania, the juvenile-lifer capital of the country, has since the 2016 ruling avoided seeking such sentences in all but the rarest circumstances. Not surprisingly, new sentences of life without parole for juveniles have also dropped sharply.
But in a few states, prosecutors are still behaving as though the last 12 years never happened. The problem is worst in Louisiana and Michigan, which together account for more than a quarter of all juvenile lifers. In Michigan, prosecutors are seeking resentences of life without parole in more than half of all the state’s cases, which meets no one’s definition of “uncommon.” In Louisiana, the state wants life without parole for 82 of the 258 people whose mandatory sentence was struck down last year. The numbers are even worse at the local level. New Orleans prosecutors are seeking life without parole in half of all cases; in West Baton Rouge Parish, 100 percent.
Statistics like these have nothing to do with careful consideration of “the mitigating qualities of youth,” as Justice Elena Kagan put it in the Miller case, and everything to do with blind retribution. The insistence on maximum punishment is even harder to understand when one considers that the court has hardly issued a get-out-of-jail card to those juveniles serving life without parole. It has said only that people whose crime occurred when they were too young to vote or buy beer should get “some meaningful opportunity,” usually only after decades in prison, to make a case for release.
As long as there’s a loophole, however, Michigan and Louisiana appear eager to drive a truck through it. For the sake of the hundreds of juveniles in those states, many of whom have spent decades rehabilitating themselves, and to reaffirm the court’s role as the ultimate arbiter of the Constitution, the justices should ban these sentences for good.
Alexandra Mallick is the Executive Director of Re:store Justice. Her work in California includes policy and advocacy to advance criminal justice reform. In addition to working on legislation, she works with incarcerated individuals to help change the narrative and shine a light on the power of rehabilitation.