The path to ending juvenile life without parole
Updated: Oct 20
The United States is the only country in the world that sentences children under the age of eighteen to life imprisonment. Juvenile life without the possibility of parole (also known as “JLWOP”) prevents those sentenced from being released back into society under any circumstances. At the start of 2020, there were roughly 1,465 people serving JLWOP sentences.
JLWOP critics and other youth advocates maintain that children should never be tried or punished in the same way as adults, citing to children and adolescents’ reduced capacity for sound and rational decision making. Scientific research confirms that the adolescent brain functions differently than the adult brain. Indeed, the human brain does not fully develop until a person’s mid-twenties. Further, the frontal cortex, which controls impulses and risk assessment, is the last part of the brain to develop. Due to ongoing brain development, youth who commit the most serious and violent crimes still have the capacity to change. Developmental immaturity and susceptibility to negative peer influences make children less blameworthy for their criminal conduct than adults. Further, research shows that most youth will naturally grow out of criminal behavior by their mid-twenties, but JLWOP keeps youth in prison well past the point at which they have been rehabilitated and beyond reasonable risk of re-offending. Despite a global consensus that children should be afforded special protection and treatment, the United States continues to allow children to be treated and punished as adults.
Also, JLWOP disproportionally affects children in lower socioeconomic backgrounds and those who have been exposed to violence at an early age. In 2012, the Sentencing Project released findings from a survey showing that 79% of juvenile defendants sentenced to life without parole had witnessed violence in their homes regularly, 32% grew up in public housing, and 47% were the victims of physical abuse. Likewise, 40% had been enrolled in special education classes. In addition, 80% of girls reported histories of physical abuse and 77% of girls reported histories of sexual abuse. Instead of receiving therapeutic resources, these defendants, often victims of extreme trauma themselves, are given life behind bars. These children are often lacking the tools needed to develop skill-building and resilience and are cut off from society before having the chance to do so. There are also troubling racial disparities in JLWOP. Over seventy percent of all youthsentenced to JLWOP in this country are children of color – primarily Black and Latinx.
Notwithstanding this, the Supreme Court has declined to overturn the use of life without parole sentences for juveniles, despite acknowledging that children are constitutionally different than adults. For a time, it seemed that the Supreme Court was on the path towards ending JLWOP. Between 2005 and 2016, the Court issued several decisions banning extreme adult sentences for youth. In 2012, in Miller v. Alabama, the Court ruled that mandatory sentences of JLWOP— sentences imposed automatically upon conviction—violate the 8th Amendment’s bar on “cruel and unusual punishments,” citing to children’s unique potential for rehabilitation. In 2016, in Montgomery v. Louisiana, the Court held that its Millerruling should be applied retroactively, allowing for the resentencing of many juvenile lifers. Montgomery also clarified that discretionary sentences of JLWOP—that is, sentences imposed at the discretion of a judge—are generally unconstitutional. Taken together, these two cases held that JLWOP is unconstitutional for “all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”
In late April 2021, however, the Supreme Court’s 6–3 decision in Jones v. Mississippi tore down judicial restrictions on JLWOP. Justice Kavanaugh, writing for the majority, claimed adherence to Miller and Montgomery but wrote that these precedents do not require a judge to “make a separate factual finding of permanent incorrigibility” before imposing JLWOP. Nor, Kavanaugh wrote, do they compel a judge to “provide an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility.” Instead, a judge need only be granted “discretion” to sentence a child to less than life without parole. So long as that discretion exists, the 8th Amendment is satisfied. In Justice Sotomayor’s dissent, she wrote that “The court is fooling no one. . . today the Court guts Miller v. Alabama and Montgomery v. Louisiana.” Justices Breyer and Kagan joined her dissent.
Until the Jones v. Mississippi decision, momentum for JLWOP reform and abolition had been gathering speed. Currently, “twenty-five states and the District of Columbia have banned life sentences without the possibility of parole for juveniles.” Recently, Maryland Governor Larry Hogan vetoed the Juvenile Restoration Act, a bill prohibiting life without parole sentences for juvenile offenders. Only a few days later, however, the Maryland General assembly overturned Hogan’s vetoes, thereby abolishing JLWOP in the state of Maryland.
However, after the Supreme Court’s most recent decision, the path towards ending JLWOP once and for all is murky. Advocates may need to turn away from the Supreme Court and rely on convincing individual states to ban the practice. In pushing for the end of JLWOP, youth advocates may point out that the sentencing process is far more expensive than investing in schools and communities. Further, extreme sentencing practices for children do not make our country safer. Perhaps most importantly, they deny youth who have demonstrated growth and maturity the chance to rejoin their families and communities, sending the message that some children have no capacity for meaningful rehabilitation.