Volume 100

Another Bite at the Graham Cracker: The Supreme Court’s Surprise Revisiting of Juvenile Life Without Parole in Miller v. Alabama and Jackson v. Hobbs

by Scott Hechinger

The Supreme Court’s decision this week to review the constitutionality of life-without-parole sentences imposed upon individuals convicted of homicide crimes committed at age fourteen and younger in Miller v. Alabama and Jackson v. Hobbs stunned sentencing law advocates and Court watchers, myself included. This commentary will contextualize these two grants of certiorari within the Court’s shifting Eighth Amendment jurisprudence and the broader debate over the harshest forms of juvenile sentencing.

Both Evan Miller and Kuntrell Jackson were charged with capital murder at fourteen, automatically transferred to adult court based upon the underlying offense, convicted, and then sentenced to life without parole under Alabama and Arkansas’s mandatory sentencing schemes, without any consideration of their age or other mitigating circumstances. The one additional wrinkle in Jackson—and the likely reason the Court also granted certiorari in this case—is that the defendant was charged and convicted as an accomplice to felony murder, did not himself commit the killing, and was not shown to have had any intent or awareness that any killing would take place.

Thus, combined, Miller and Jackson give the Supreme Court the opportunity to decide whether life without parole is unconstitutional when imposed on an individual fourteen years or younger (1) for a homicide offense, (2) as a result of a mandatory sentencing scheme, or (3) as a non-triggerman accomplice without a showing of “intent to kill.” Notably, the cases also ask the court to recognize a new, distinct category of defendants—or subcategory of juveniles—deserving different treatment under the Eighth Amendment: those fourteen and younger.

Supreme Court review in Miller and Jackson may seem mundane to those who have not been focused on the evolution of juvenile sentencing law and policy in recent years, but this double grant of certiorari is far from run-of-the-mill.

This will be the third time in just six years that the Supreme Court has considered whether a particular form of punishment should be categorically forbidden for juveniles—and, even more remarkably, the second time in just one and one-half years that the Supreme Court will address the constitutionality of juvenile life without parole (JLWOP).

In 2005, the Supreme Court held that capital punishment for individuals convicted of crimes committed before the age of eighteen constitutes cruel and unusual punishment under the Eighth Amendment. Roper v. Simmonswas a landmark decision, as juveniles became only the third category of defendants—along with the insane and those diagnosed with mental retardation—to be categorically excluded from the death penalty.

Ending JLWOP, therefore, was no more than a pipe dream before Roper. The primary battle for juvenile justice advocates at the time was ending the juvenile death penalty—and it was a steep, uphill battle. Yet, despite Justice Kennedy’s implicit approval of JLWOP as a supposedly humane alternative to the death penalty in Roper, Justice Kennedy also made explicit references to international law and norms as a justification for ending the juvenile death penalty and broad statements about the reduced culpability of juveniles, which made Roper a source of inspiration and energy for a handful of advocates who, after the decision, began to start taking JLWOP abolition more seriously.

Chief among these advocates was Bryan Stevenson, now lead counsel in both Miller and Jackson. Following Roper, Stevenson and his organization, the Equal Justice Initiative of Alabama (EJI), began to challenge the life-without-parole sentences of juveniles, starting with Ashley Jones, a fourteen-year-old girl sentenced to the penultimate sentence in Alabama. In preparation for Ashley’s case, EJI spent thousands of hours developing research that ultimately led to a seminal report, published in 2007 and entitled Cruel and Unusual Punishment: Sentencing 13- and 14-Year-Old Children to Die in Prison, and to the launch of a national campaign.

Incredibly and against all odds, on May 5, 2009, a little more than four years after Roper was decided, the Supreme Court granted certiorari in Sullivan v. Florida and Graham v. Florida to review the constitutionality of JLWOP. No one expected the Court to review any cases on this issue so soon after Roper, let alone two.

Stevenson represented Joe Sullivan, who was convicted of aggravated rape at age thirteen. Stevenson wanted to focus the Court’s attention then on the now-primary issue in both Jackson and Miller; that is, the cruel and unusual application of JLWOP to the very young—fourteen years of age and under—for all offenses, including homicide. Byran Gowdy, Counsel for Terrance Graham, sentenced to life without parole for armed robbery, on the other hand, took a different strategy. He argued for a bright-line prohibition on the application of life-without-parole on those convicted of nonhomicide crimes committed when younger than eighteen.

The Supreme Court ultimately chose to toe Graham’s line: On May 17, 2010, the Supreme Court dismissed the writ of certiorari as improvidently granted in Sullivan (presumably because the decision below had rested on an “adequate and independent state ground”), and decided in Graham to bar the imposition of JLWOP for nonhomicide crimes.

Still, Graham was an unquestionably landmark decision, representing the first time the Court ever applied its more searching “categorical” Eighth Amendment analysis—up to that point reserved solely for capital sentences—to a term-of-years sentence. In striking down life without parole for an entire class of offenders, the Court ruptured the longstanding jurisprudential barrier between capital and non-capital sentences, prompting even the normally reserved Justice Clarence Thomas to declare dramatically in dissent that “‘death is different’ no longer.”

However, to overcome the death-is-different Eighth Amendment problem and reach JLWOP, the Court ended up reinforcing another life and death partition: the line between homicide and nonhomicide offences. Throughout his majority opinion, Justice Kennedy went out of his way to make absolutely clear that the holding only applied to nonhomicide offenders, employing the word “nonhomicide” no less than forty-seven times. Drawing from the lessons of Coker v. Georgia, which barred the imposition of the death penalty for rape, Enmund v. Florida, which barred the imposition of the death penalty for non-triggerman felony murderers, and most recently Kennedy v. Louisiana, which barred the imposition of the death penalty for child rapists, the Court unequivocally recognized that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of such punishments than are murderers.” Applying this principle to those serving JLWOP for nonhomicide crimes, the Court found that “when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.”

This acknowledgment was, of course, welcome news for Terrance Graham and the 128 other prisoners serving JLWOP for nonhomicide offenses. But the remaining 2,500-plus prisoners serving JLWOP for homicide were left to wonder why the Court’s sweeping statements about the similarities between the death penalty and JLWOP, the differences between kids and adults, the importance of redemption and hope, and the existence of an international consensus against all forms of JLWOP did not apply equally to them.

I have kept close track of Graham’s treatment on the ground since the decision. Up until the grants of certiorari in Miller and Jackson, the legal landscape for JLWOP abolitionists was bleak, to say the least.

Since Grahamlower federal courts and state courts took the Supreme Court at its word, unanimously rejecting attempts to extend Graham to homicide offenses. Citing the Graham Court’s unambiguous distinction between homicide and nonhomicide crimes, twenty-nine courts from thirteen states, including the Alabama Court of Criminal Appeals in Miller, and four federal courts, declined to extend Graham to fourteen– to seventeen-year-olds convicted of murder. All but six of these sentences (five of which were from California) were mandatory.

But Graham did not clarify what actually qualifies as a “nonhomicide” offense. Fourteen other courts, including the Arkansas Supreme Court in Jackson, denied relief to prisoners serving JLWOP for murder as a non-triggerman accomplice. In Jackson, however, two state Supreme Court justices filed a notable dissent arguing that Graham should be extended to cover non-triggerman accomplices as the defendant “did not kill and any evidence of intent to kill was severely lacking.” One other justice concurred in the judgment, but wrote separately to voice his dissatisfaction with the mandatory nature of the sentence imposed. More recently, in In re Sparks, the Court of Appeals for the Fifth Circuit permitted the defendant, who was sentenced to LWOP at age sixteen as a non-triggerman aider and abettor, to file a second (or successive) habeas corpus petition in federal court to resolve whether felony murder constitutes “homicide” under Graham.

Three state courts have reviewed the constitutionality of JLWOP for attempted murder, with a Delaware Court upholding the sentence, ruling that the dispositive issue was the “intent to kill,” and the First and Second Florida District Court of Appeals ordering resentencing because the conduct did not “result in death.” Arguments to extend Graham to life sentences with the possibility of parole for nonhomicides have not encountered such helpful ambiguity, however, even with sentences as high as 139 years: They have generally been unavailing, although a debate has been underway since Graham among various state and federal courts in California about whether de facto JLWOP sentences (that is, exceedingly long term of years sentences) benefit from Graham’s protection. So far, out of thirteen California nonhomicide cases, four sentences (ranging from fifty-six to 307 years) were deemed “de facto LWOP” and remanded in accordance with Graham.

Given this post-Graham legal landscape (where there is no substantial disagreement in the lower courts over Graham’s inapplicability to “homicide” crimes, including non-triggerman felony murderers, even under mandatory sentencing schemes, no matter how young the defendant), the recency and already-unprecedented nature of Graham, and the historically constrained Eighth Amendment review of sentences outside of the death penalty, it seemed highly unlikely that the Supreme Court would readdress the issue any time soon.

Which brings me back to how I began this commentary: Surprised by the Supreme Court’s decision to review the questions presented in Miller and Jackson, yet of course also intrigued, as the two cases provide an ideal vehicle for the Court to address several critical questions left unanswered by Graham.

The two somewhat more straightforward of these questions are (1) whether mandatory JLWOP is unconstitutional and (2) whether non-triggerman accomplice murder where no “intent to kill” is present falls within the ambit of Graham. In both cases, the plain language of Graham itself seems to compel the affirmative answers the petitioners seek.

As to the mandatory nature of the sentencing schemes, the Graham court itself explicitly noted that “criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.” Even Chief Justice Roberts, concurring in the judgment as to Terrance Graham’s sentence specifically, but arguing forcefully against the bright line drawn by the majority, demanded that sentencing judges be able to take the defendant’s youth into account on a case-by-case basis. As to the issue in Jackson of whether non-triggerman accomplice liability should be considered “homicide” or “nonhomicide,” as already discussed above, the heart of Graham’s holding was the recognition that “when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.”

The Court, therefore, could—and may— decide to simply rule narrowly in both cases, foregoing altogether the third, yet more fundamental question of whether children fourteen and younger are a distinct class of juveniles, who require greater Eighth Amendment protection—where JLWOP is unconstitutional in all circumstances, including homicide—than older juveniles aged fifteen to seventeen. Though the Supreme Court successfully dodged the issue last year by dismissing Sullivan, I find it hard to imagine a repeat this time around. The strength of Miller and Jackson, and the reason I think the Court was willing to grant certiorari so close in time to Graham, derives from this urged distinction between a “young adolescent” and “older teen.” This distinction is necessary to allow the Court, if a majority is reached, to rule that JLWOP is unconstitutional for murder without overturning Graham.

To encourage the Court to recognize young adolescents as a constitutionally significant category of offenders, the Miller and Jackson petitions primarily marshal brain science to show that the “three key features of youth” stressed for juveniles of all ages in both Roper and Graham—lack of maturity, vulnerability to negative external influences, and the fact that children “are not fully formed personalities”—“gain[] added force in considering the culpability of children fourteen years of age and younger.” The petitions subsequently describe and stress how the same rationales used in Roper and Graham to undermine each of the recognized “legitimate penological goals”—retribution, deterrence, incapacitation, and rehabilitation—apply to an even greater extent when considering younger adolescents.

Perhaps the clearest distinction though between the two age categories seems to be in national sentencing consensus. For while there are currently over 2,500 fifteen-to-seventeen year olds serving JLWOP for homicide in forty-one states, there are only seventy-three children age fourteen and younger who have been sentenced to JLWOP in only eighteen states (compared to the approximately 129 juveniles of any age sentenced to JLWOP for nonhomicide offenses found to be “exceedingly rare” in Graham). This “extreme rarity”—as the petitions put it—is even more striking considering that over the last twenty years 3,632 children age fourteen and younger were arrested for homicide, meaning that they received a life-without-parole sentence only two percent of the time.

I will not at this point go further and attempt to predict the ultimate outcome of these cases: Their very existence on the Supreme Court’s docket has made me weary of making any such predictions in the juvenile sentencing context, especially this early on in the game. Nonetheless, a relatively safe bet is that no matter how narrowly or broadly the Court rules, the decision will only apply to those aged fourteen and under. Every question on which the Court granted certiorari is limited to this distinct age group. Thus, no matter the outcome, the vast majority of individuals serving JLWOP will again remain without relief, including two defendants from Kuntrell Jackson’s home state of Arkansas, whose JLWOP sentences for accomplice murder committed at age sixteen and seventeen were recently upheld by the Arkansas Supreme Court.

In the meantime, advocates for JLWOP reform should not hold their breath for sweeping JLWOP changes following Miller and Jackson, but rather should continue to seek relief in lower federal and state courts, lobby state legislatures, which seem more and more likely to entertain JLWOP reform legislation, and as I have argued at length elsewhere, look to Congress for a potential federal fix.

Scott Hechinger, J.D., 2010, NYU School of Law, was the 2010-2011 Sinsheimer Children’s Rights Fellow at the Partnership for Children’s Rights in New York and currently serves as judicial law clerk for The Honorable Raymond J. Dearie of the U.S. District Court for the Eastern District of New York for the 2011-2012 term. He recently published “Juvenile Life Without Parole: An Antitode to Congress’s One-Way Criminal Law Ratchet” in The NYU Review of Law and Social Change.