February 17, 2022


Alex Aronson, Managing Director, Institute for Constitutional Advocacy and Protection,

Washington, D.C. – Today, a bipartisan group of 67 current and former prosecutors, Justice Department officials, and judges wrote to Attorney General Merrick B. Garland, urging him to limit the Department’s pursuit of life sentences for juvenile offenders. The signatories argue that in most cases, the Department should seek lesser sentences for juveniles. The letter, organized by the Institute for Constitutional Advocacy and Protection (ICAP) at Georgetown Law, also urges Garland to create a committee to review all federal prosecutor requests to seek a life sentence for a juvenile. Drawing on the signatories’ decades of experience as law enforcement officials and judges, the letter builds on ICAP’s earlier representation of many of these officials at the U.S. Supreme Court, where they argued that proportionate sentencing principles forbid the most severe punishments for most juvenile offenders.

“Based on our experience, we know that fair and proportionate punishments must account for the impact that violent crimes have on victims and survivors. Just as critically, however, we believe that the credibility of the criminal justice system requires consideration of the characteristics of juvenile offenders, including the possibility of rehabilitation,” the prosecutors write. “Where a juvenile offender is capable of change—as all but the rarest will be—the Constitution and sound sentencing policy demand something less than the punishment of life without the possibility of parole.”

The letter urges the Department to create a committee to review all requests by federal prosecutors to seek a life sentence for a juvenile—a proposal modeled after DOJ’s capital case review process. “As with the death penalty for an adult, a life-without-parole sentence for a juvenile is the ultimate punishment. . . . Unless a juvenile offender is one of those rare children incapable of rehabilitation, the Department should deny a request to seek a life sentence.”

Roughly half the states have now abolished juvenile life without parole, but the abolition of parole in the federal system makes it impossible for federal prosecutors to seek sentences of life with the possibility of parole, the letter notes. The letter therefore urges the Department “to advocate for a sentence of less than life where a juvenile offender is capable of rehabilitation, as nearly all will be.”

The letter comes following the U.S. Supreme Court’s 2021 decision in Jones v. Mississippi. In Jones, the Court held that a sentencer is not required, as a procedural matter, to make a finding that a juvenile homicide offender is permanently incorrigible before imposing a sentence of life without parole. Although Jones represented a setback for opponents of juvenile life without parole, the prosecutors point out that the Court in Jones did not disturb well-settled principles of constitutional law, and reaffirmed that judges are not “free to sentence a child whose crime reflects transient immaturity to life without parole.”

The prosecutors point out the stark racial disparities that exist among juveniles sentenced to life without parole. “At the state level,” the letter notes, “Black inmates make up 40 percent of the overall prison population, but nearly two-thirds of the population of juveniles serving life without parole. And at the federal level, our research indicates that juvenile offenders serving life sentences are disproportionately Black, Native American, and Asian relative to the prison population as a whole.”

The bipartisan group includes numerous sitting elected prosecutors as well as prominent Justice Department alumnae, such as Donald B. Ayer, former Deputy Attorney General of the United States; Peter Keisler, former Acting Attorney General of the United States; James M. Cole, former Deputy Attorney General of the United States; David Ogden, former Deputy Attorney General of the United States; Gary G. Grindler, former Acting Deputy Attorney General of the United States; Neal Katyal, former Acting Solicitor General of the United States, and ICAP’s Mary B. McCord, former Acting Assistant Attorney General for the National Security Division.

“Prosecutors understand not only the need to hold accountable those who commit homicides as juveniles, but also the need for just punishment that reflects the transient immaturity of youth and the potential for rehabilitation,” said McCord, ICAP’s Executive Director and former federal prosecutor.  “Grounded in constitutional principles and common sense public policy, our letter gives the Department actionable, practical recommendations to ensure that sentences of life without parole are reserved for the exceedingly rare cases in which rehabilitation is not possible.”

Georgetown Law’s Institute for Constitutional Advocacy and Protection

The Institute for Constitutional Advocacy and Protection uses strategic legal advocacy to defend constitutional rights and values while working to restore confidence in the integrity of our governmental institutions. A non-partisan institute within Georgetown University Law Center, ICAP’s experienced attorneys use novel litigation tools, strategic policy development, and the constitutional scholarship of Georgetown to vindicate individuals’ rights and protect our democratic processes.

Twitter: @GeorgetownICAP