{"id":603,"date":"2019-07-30T12:43:20","date_gmt":"2019-07-30T16:43:57","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/100-online\/the-internet-changed-everything-even-the-law-9\/"},"modified":"2026-02-10T14:17:29","modified_gmt":"2026-02-10T19:17:29","slug":"another-bite-at-the-graham-cracker-the-supreme-courts-surprise-revisiting-of-juvenile-life-without-parole-in-miller-v-alabama-and-jackson-v-hobbs","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/submit\/glj-online\/100-online\/another-bite-at-the-graham-cracker-the-supreme-courts-surprise-revisiting-of-juvenile-life-without-parole-in-miller-v-alabama-and-jackson-v-hobbs\/","title":{"rendered":"Another Bite at the Graham Cracker: The Supreme Court\u2019s Surprise Revisiting of Juvenile Life Without Parole in Miller v. Alabama and Jackson v. Hobbs"},"content":{"rendered":"

The Supreme Court\u2019s 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\u00a0Miller v. Alabama<\/a><\/em>\u00a0and\u00a0Jackson v. Hobbs<\/a><\/em>\u00a0stunned sentencing law advocates and Court watchers, myself included. This commentary will contextualize these two grants of certiorari within the Court\u2019s shifting Eighth Amendment jurisprudence and the broader debate over the harshest forms of juvenile sentencing.<\/p>\n

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\u2019s mandatory sentencing schemes, without any consideration of their age or other mitigating circumstances. The one additional wrinkle in\u00a0Jackson<\/em>\u2014and the likely reason the Court also granted certiorari in this case\u2014is 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.<\/p>\n

Thus, combined,\u00a0Miller<\/em>\u00a0and\u00a0Jackson<\/em>\u00a0give 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 \u201cintent to kill.\u201d Notably, the cases also ask the court to recognize a new, distinct category of defendants\u2014or subcategory of juveniles\u2014deserving different treatment under the Eighth Amendment: those fourteen and younger.<\/p>\n

Supreme Court review in\u00a0Miller<\/em>\u00a0and\u00a0Jackson<\/em>\u00a0may 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.<\/p>\n

This will be the\u00a0third time<\/a>\u00a0in\u00a0just six years<\/a>\u00a0that the Supreme Court has considered whether a particular form of punishment should be categorically forbidden for juveniles\u2014and, 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).<\/p>\n

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.\u00a0Roper v. Simmons<\/a><\/em>was a landmark decision, as juveniles became only the third category of defendants\u2014along with the insane and those diagnosed with mental retardation\u2014to be categorically excluded from the death penalty.<\/p>\n

Ending JLWOP, therefore, was no more than a pipe dream before\u00a0Roper<\/em>. The primary battle for juvenile justice advocates at the time was ending the juvenile death penalty\u2014and it was a steep, uphill battle. Yet, despite Justice Kennedy\u2019s implicit approval of JLWOP as a supposedly humane alternative to the death penalty in\u00a0Roper<\/em>, Justice Kennedy also\u00a0made explicit references to international law and norms<\/a>\u00a0as a justification for ending the juvenile death penalty and broad statements about the reduced culpability of juveniles, which made\u00a0Roper<\/em>\u00a0a source of inspiration and energy for a handful of advocates who, after the decision, began to start taking JLWOP abolition more seriously.<\/p>\n

Chief among these advocates was Bryan Stevenson, now lead counsel in both\u00a0Miller<\/em>\u00a0and\u00a0Jackson<\/em>. Following\u00a0Roper<\/em>, Stevenson and his organization, the\u00a0Equal Justice Initiative of Alabama\u00a0(EJI)<\/a>, began to challenge the life-without-parole sentences of juveniles, starting with\u00a0Ashley Jones<\/a>, a fourteen-year-old girl sentenced to the penultimate sentence in Alabama. In preparation for Ashley\u2019s case, EJI spent thousands of hours developing research that ultimately led to a seminal\u00a0report<\/a>, published in 2007 and entitled\u00a0Cruel and Unusual Punishment: Sentencing 13- and 14-Year-Old Children to Die in Prison<\/em>, and to the launch of a national campaign.<\/p>\n

Incredibly and against all odds, on May 5, 2009, a little more than four years after\u00a0Roper<\/em>\u00a0was decided, the Supreme Court granted certiorari in\u00a0Sullivan v. Florida<\/a><\/em>\u00a0and\u00a0Graham v. Florida<\/a><\/em>\u00a0to review the constitutionality of JLWOP. No one expected the Court to review\u00a0any<\/em>\u00a0cases on this issue so soon after\u00a0Roper<\/em>, let alone two.<\/p>\n

Stevenson represented Joe Sullivan, who was convicted of aggravated rape at age thirteen. Stevenson wanted to focus the Court\u2019s attention\u00a0then<\/em>\u00a0on the\u00a0now<\/em>-primary issue in both\u00a0Jackson<\/em>\u00a0and\u00a0Miller<\/em>; that is, the cruel and unusual application of JLWOP to the very young\u2014fourteen years of age and under\u2014for\u00a0all<\/em>\u00a0offenses, 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.<\/p>\n

The Supreme Court ultimately chose to toe\u00a0Graham\u2019<\/em>s line: On May 17, 2010, the Supreme Court\u00a0dismissed<\/a>\u00a0the writ of certiorari as improvidently granted in\u00a0Sullivan<\/em>\u00a0(presumably because the decision below had rested on an \u201cadequate and independent state ground\u201d), and decided in\u00a0Graham<\/em>\u00a0to bar the imposition of JLWOP for nonhomicide crimes.<\/p>\n

Still,\u00a0Graham<\/em>\u00a0was an unquestionably landmark decision, representing the first time the Court ever applied its more searching \u201ccategorical\u201d Eighth Amendment analysis\u2014up to that point reserved solely for capital sentences\u2014to 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 \u201c\u2018death is different\u2019 no longer.\u201d<\/p>\n

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 \u201cnonhomicide\u201d no less than forty-seven times. Drawing from the lessons of\u00a0Coker v. Georgia<\/a><\/em>, which barred the imposition of the death penalty for rape,\u00a0Enmund v. Florida<\/a><\/em>, which barred the imposition of the death penalty for non-triggerman felony murderers, and most recently\u00a0Kennedy v. Louisiana<\/a><\/em>, which barred the imposition of the death penalty for child rapists, the Court unequivocally recognized that \u201cdefendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of such punishments than are murderers.\u201d Applying this principle to those serving JLWOP for nonhomicide crimes, the Court found that \u201cwhen compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.\u201d<\/p>\n

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\u2019s 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.<\/p>\n

I have kept close track of\u00a0Graham<\/em>\u2019s treatment on the ground since the decision. Up until the grants of certiorari in\u00a0Miller<\/em>\u00a0and\u00a0Jackson<\/em>, the legal landscape for JLWOP abolitionists was bleak, to say the least.<\/p>\n

Since\u00a0Graham<\/em>,\u00a0lower federal courts<\/a>\u00a0and\u00a0state courts<\/a>\u00a0took the Supreme Court at its word, unanimously rejecting attempts to extend\u00a0Graham<\/em>\u00a0to homicide offenses. Citing the\u00a0Graham<\/em>\u00a0Court\u2019s unambiguous distinction between homicide and nonhomicide crimes, twenty-nine courts from thirteen states, including the\u00a0Alabama Court of Criminal Appeals in\u00a0<\/a>Miller<\/a><\/em>, and four federal courts, declined to extend\u00a0Graham<\/em>\u00a0to\u00a0fourteen<\/a>\u2013 to\u00a0seventeen<\/a>-year-olds convicted of murder. All but six of these sentences (five of which were from California) were mandatory.<\/p>\n

But\u00a0Graham<\/em>\u00a0did not clarify what actually qualifies as a \u201cnonhomicide\u201d offense. Fourteen other courts, including the Arkansas Supreme\u00a0<\/strong>Court in\u00a0Jackson<\/em>,\u00a0denied relief to prisoners serving JLWOP for murder as a non-triggerman accomplice. In\u00a0Jackson<\/a><\/em>, however, two state Supreme Court justices filed a notable dissent arguing that\u00a0Graham<\/em>\u00a0should be extended to cover non-triggerman accomplices as the defendant \u201cdid not kill and any evidence of intent to kill was severely lacking.\u201d 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\u00a0In re Sparks<\/a><\/em>, 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 \u201chomicide\u201d under\u00a0Graham<\/em>.<\/p>\n

Three state courts have reviewed the constitutionality of JLWOP for attempted murder, with a\u00a0Delaware Court upholding the sentence<\/a>, ruling that the dispositive issue was the \u201cintent to kill,\u201d and the\u00a0First<\/a>\u00a0and\u00a0Second Florida District Court of Appeals<\/a>\u00a0ordering resentencing because the conduct did not \u201cresult in death.\u201d Arguments to extend\u00a0Graham<\/em>\u00a0to life sentences\u00a0with<\/em>\u00a0the 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\u00a0Graham<\/em>\u00a0among various state and federal courts in California about whether\u00a0de facto<\/em>\u00a0JLWOP sentences (that is, exceedingly long term of years sentences) benefit from\u00a0Graham<\/em>\u2019s protection. So far, out of thirteen California nonhomicide cases, four sentences (ranging from fifty-six to 307 years) were deemed \u201cde facto<\/em>\u00a0LWOP\u201d and remanded in accordance with\u00a0Graham<\/em>.<\/p>\n

Given this post-Graham<\/em>\u00a0legal landscape (where there is no substantial disagreement in the lower courts over\u00a0Graham<\/em>\u2019s inapplicability to \u201chomicide\u201d crimes, including non-triggerman felony murderers, even under mandatory sentencing schemes, no matter how young the defendant), the recency and already-unprecedented nature of\u00a0Graham<\/em>, 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.<\/p>\n

Which brings me back to how I began this commentary: Surprised by the Supreme Court\u2019s decision to review the questions presented in\u00a0Miller<\/em>\u00a0and\u00a0Jackson<\/em>, yet of course also intrigued, as the two cases provide an ideal vehicle for the Court to address several critical questions left unanswered by\u00a0Graham<\/em>.<\/p>\n

The two somewhat more straightforward of these questions are (1) whether\u00a0mandatory<\/em>\u00a0JLWOP is unconstitutional and (2) whether non-triggerman accomplice murder where no \u201cintent to kill\u201d is present falls within the ambit of\u00a0Graham<\/em>.\u00a0<\/strong>In both cases, the plain language of\u00a0Graham<\/em>\u00a0itself seems to compel the affirmative answers the petitioners seek.<\/p>\n

As to the mandatory nature of the sentencing schemes, the\u00a0Graham<\/em>\u00a0court itself explicitly noted that \u201ccriminal procedure laws that fail to take defendants\u2019 youthfulness into account at all would be flawed.\u201d Even Chief Justice Roberts, concurring in the judgment as to Terrance Graham\u2019s sentence specifically, but arguing forcefully against the bright line drawn by the majority, demanded that sentencing judges be able to take the defendant\u2019s youth into account on a case-by-case basis. As to the issue in\u00a0Jackson<\/em>\u00a0of whether non-triggerman accomplice liability should be considered \u201chomicide\u201d or \u201cnonhomicide,\u201d as already discussed above, the heart of\u00a0Graham<\/em>\u2019s holding was the recognition that \u201cwhen compared to an adult murderer, a juvenile offender who did not kill\u00a0or intend to kill<\/em>\u00a0has a twice diminished moral culpability.\u201d<\/p>\n

The Court, therefore, could\u2014and may\u2014 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\u2014where JLWOP is unconstitutional in all circumstances, including homicide\u2014than older juveniles aged fifteen to seventeen. Though the Supreme Court successfully dodged the issue last year by dismissing\u00a0Sullivan<\/em>, I find it hard to imagine a repeat this time around. The strength of\u00a0Miller<\/em>\u00a0and\u00a0Jackson<\/em>, and the reason I think the Court was willing to grant certiorari so close in time to\u00a0Graham<\/em>, derives from this urged distinction between a \u201cyoung adolescent\u201d and \u201colder teen.\u201d This distinction is necessary to allow the Court, if a majority is reached, to rule that JLWOP is unconstitutional for murder without overturning\u00a0Graham<\/em>.<\/p>\n

To encourage the Court to recognize young adolescents as a constitutionally significant category of offenders, the\u00a0Miller<\/em>\u00a0and\u00a0Jackson<\/em>\u00a0petitions primarily marshal brain science to show that the \u201cthree key features of youth\u201d stressed for juveniles of all ages in both\u00a0Roper<\/em>\u00a0and\u00a0Graham<\/em>\u2014lack of maturity, vulnerability to negative external influences, and the fact that children \u201care not fully formed personalities\u201d\u2014\u201cgain[] added force in considering the culpability of children fourteen years of age and younger.\u201d The petitions subsequently describe and stress how the same rationales used in\u00a0Roper<\/em>\u00a0and\u00a0Graham<\/em>\u00a0to undermine each of the recognized \u201clegitimate penological goals\u201d\u2014retribution, deterrence, incapacitation, and rehabilitation\u2014apply to an even greater extent when considering younger adolescents.<\/p>\n

Perhaps the clearest distinction though between the two age categories seems to be in national sentencing consensus. For while there are currently over\u00a02,500 fifteen-to-seventeen year olds serving JLWOP for homicide in forty-one states<\/a>, 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 \u201cexceedingly rare\u201d in\u00a0Graham<\/em>). This \u201cextreme rarity\u201d\u2014as the petitions put it\u2014is even more striking considering that over the last twenty years\u00a03,632 children age fourteen and younger\u00a0<\/a>were arrested for homicide, meaning that they received a life-without-parole sentence only two percent of the time.<\/p>\n

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\u2019s 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\u00a0from Kuntrell Jackson\u2019s home state of Arkansas, whose JLWOP sentences for accomplice murder committed at age\u00a0sixteen<\/a>\u00a0and\u00a0seventeen<\/a>\u00a0were recently upheld by the Arkansas Supreme Court.<\/p>\n

In the meantime, advocates for JLWOP reform should not hold their breath for sweeping JLWOP changes following\u00a0Miller<\/em>\u00a0and\u00a0Jackson<\/em>, 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\u00a0elsewhere<\/a>, look to Congress for a potential federal fix.<\/p>\n

Scott\u00a0Hechinger, J.D., 2010, NYU School of Law, was the 2010-2011 Sinsheimer Children\u2019s Rights Fellow at the Partnership for Children\u2019s 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 \u201cJuvenile Life Without Parole: An Antitode to Congress\u2019s One-Way Criminal Law Ratchet<\/span>(This link opens in a new tab)<\/span><\/span><\/a>\u201d in\u00a0<\/em>The NYU Review of Law and Social Change.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

The Supreme Court\u2019s 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\u00a0Miller v. Alabama\u00a0and\u00a0Jackson v. […]<\/p>\n","protected":false},"author":627,"featured_media":0,"parent":570,"menu_order":9,"comment_status":"closed","ping_status":"closed","template":"abstract.php","meta":{"_acf_changed":false,"_price":"","_stock":"","_tribe_ticket_header":"","_tribe_default_ticket_provider":"","_tribe_ticket_capacity":"0","_ticket_start_date":"","_ticket_end_date":"","_tribe_ticket_show_description":"","_tribe_ticket_show_not_going":false,"_tribe_ticket_use_global_stock":"","_tribe_ticket_global_stock_level":"","_global_stock_mode":"","_global_stock_cap":"","_tribe_rsvp_for_event":"","_tribe_ticket_going_count":"","_tribe_ticket_not_going_count":"","_tribe_tickets_list":"[]","_tribe_ticket_has_attendee_info_fields":false,"footnotes":"","_tec_slr_enabled":"","_tec_slr_layout":""},"class_list":["post-603","page","type-page","status-publish","hentry"],"acf":[],"ticketed":false,"_links":{"self":[{"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages\/603","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/users\/627"}],"replies":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/comments?post=603"}],"version-history":[{"count":5,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages\/603\/revisions"}],"predecessor-version":[{"id":24115,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages\/603\/revisions\/24115"}],"up":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages\/570"}],"wp:attachment":[{"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/media?parent=603"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}