Private: Juvenile Life Without Parole: Irreparable Corruption as a Substantive Standard

by Robert Smith, Director of the Fair Punishment Project at Harvard Law School and Amy Weber, Frequent Outside Counsel, Fair Punishment Project

Today, the Supreme Court vacated five juvenile life-without-parole (JLWOP) sentences and remanded the respective cases back to the Arizona courts. These cases may provide guidance to state courts faced with determining whether the Eighth Amendment requires a sentencer to not only consider mitigating circumstances such as the age of the juvenile before imposing an LWOP sentence in light of Montgomery v. Louisiana, but also explicitly find that the juvenile’s crime illustrates his or her “irreparable corruption” or “permanent incorrigibility” before imposing a life-without-parole sentence. In these cases, the life without parole sentence was not mandated by statute. Rather, the sentencer in each case had the opportunity to consider mitigating evidence—including the juvenile’s age—before imposing the sentence. Therefore, today’s remands strongly suggest that mere consideration of mitigating evidence is insufficient. At the Fair Punishment Project, we released an issue brief last week that explains this issue in more depth and details how state courts have treated the question. Here is a quick summary:

In Miller v. Alabama, the Supreme Court held that the Eighth Amendment prohibits the imposition of a mandatory life without parole sentence for a juvenile who commits a homicide offense (JLWOP is categorically barred for non-homicide offenses per Graham v. Florida). Miller held these mandatory sentences unconstitutional because the sentencer was unable to “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

Last term, in Montgomery v. Louisiana, which held Miller retroactive, Justice Kennedy’s opinion clarified that Miller created a substantive right, which renders life-without-parole sentences categorically disproportionate for all children, except for the “rare juvenile offender whose crime reflects irreparable corruption.”

Among the state courts that have considered the issue, a few have held that Miller is procedural; or, if it does include a substantive component, the trial court’s consideration of mitigating evidence suffices to ensure that the resulting sentence is constitutionally proportionate. Yet, most state courts have held, post- Montgomery, that Miller requires a finding that the juvenile’s crime reflects “irreparable corruption” or “permanently incorrigibility” before imposing a life-without-parole sentence. Importantly, this substantive standard requires a forward-looking inquiry. The sentencer must examine the character and history of the juvenile, ​the totality of circumstances surrounding the offense, ​and make a forward-looking prediction as to whether ​it is possible that ​the child could achieve the natural maturation and accumulation of knowledge that defines the trajectory from childhood into adulthood.

Today’s separate opinions in Tatum v. Arizona, one of the five cases that the Court granted, vacated and remanded, strongly suggests that five justices on the Court view Miller as requiring the sentencer to find that a juvenile is permanently incorrigible before imposing a LWOP sentence.

In a dissenting opinion, which Justice Thomas joined, Justice Alito concluded that the Court improperly issued a GVR because the Arizona courts had complied with Miller already. Specifically, Alito wrote: “Miller’s central holding” is that a “mandatory life without parole for juvenile offenders is unconstitutional,” and that requirement was met because, “[a] sentence of life without parole was imposed in each of these cases, not because Arizona law dictated such a sentence, but because a court, after taking the defendant’s youth into account, found that life without parole was appropriate in light of the nature of the offense and the offender.” 

Justice Sotomayor responded to this criticism in a concurring opinion, explaining that even though “the judges in these cases considered petitioners’ youth during sentencing,” Miller’s mandate was not satisfied because “none of the sentencing judges addressed the question Miller and Montgomery require a sentencer to ask: whether the petitioner was among the very “rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” “Montgomery made clear,” Justice Sotomayor continued, that “[e]ven if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.”

The practical importance of Justice Sotomayor’s concurring opinion, assuming it foretells that a majority of the Justices agree with her reading of Miller, is that even where youth was taken into account at sentencing, inmates may need to be resentenced in order to comply with Miller’s requirement that only irreparably corrupted juveniles are eligible for life without parole sentences. That could mean that inmates in states that had pre-Miller discretionary statutes or those sentenced under discretionary statutes in states that had a mix of both mandatory and discretionary JLWOP, need to be resentenced.

Again, for more information, please read the Fair Punishment Project’s issue brief on how state courts have treated the question post-Montgomery.

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