By Jody Kent and Beth Colgan. Kent is director and national coordinator of the Campaign for the Fair Sentencing of Youth, and Colgan is the managing attorney of the Institutions Project at Columbia Legal Services. Kent and Colgan are authors of an Issue Brief recently published by ACS called "A Just Alternative to Sentencing Youth to Life in Prison Without the Possibility of Parole."
The U.S. Supreme Court's recent decision in Graham v. Florida, has conclusively established that for the purposes of the Eighth Amendment, youth are different-and therefore are afforded greater protections-than adults. In establishing a categorical ban on sentencing youth who have committed non-homicide offenses to life in prison without the possibility of parole (whether the constitution prohibits the sentence in homicide cases was not in front of the Court), the Court relied on longstanding precedent related to the Cruel and Unusual Punishments Clause, which "underscore the essential principle that, under the Eighth Amendment, the State must respect the human attributes even of those who have committed serious crimes." (7)
The human attributes at issue in Graham, were the unique characteristics of youth. As in its 2005 opinion in Roper v. Simmons, which outlawed the imposition of the death penalty against minors, the Court looked to psychosocial and scientific research that show "fu
ndamental differences between juvenile and adult minds" linked to decision making, moral reasoning, and culpability. (17) As Amici including the American Psychological Association, American Psychiatric Association, American Medical Association and American Academy of Child and Adolescent Psychiatry explained in detail, as a result of anatomical differences between juvenile and adult brains and differing degrees of psychosocial development, youth do not have adult levels of judgment, impulse control, or the ability to assess risks. These same differences mean that youth are more amenable than adults to positive character development and rehabilitation.
That those unique qualities of youth make it impossible for a judge to know at sentencing whether a youth is truly incorrigible, or whether he or she may someday be rehabilitated and redeemed, resonated throughout the Court's opinion. (22) That principle led the majority to conclude that a categorical ban on the sentence was required. While Chief Justice John Roberts joined the majority in concluding that youth must be afforded greater protections under the Eighth Amendment than adults, in his concurring opinion, he argued that a case-by-case proportionality analysis where age is considered at sentencing was a sufficient remedy. In the majority opinion, however, Justice Anthony Kennedy rejected such an approach, writing that the courts could not "with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change." (27)
In addition to ensuring that decisions about a youth's amenability to rehabilitation are not made when his or her character is not yet formed, the categorical ban instituted by the Court has the benefit of eliminating the arbitrary nature by which the sentence has been imposed. In our May 2010 Issue Brief, we set forth data showing that the sentencing of youth to life in prison without the possibility of parole is applied inconsistently and arbitrarily, particularly against youth who are first time offenders, youth who live in particular geographic regions, and youth of color. While the Graham ruling does not remedy these problems for youth sentenced in homicide cases, it does ensure that for youth convicted in non-homicides, the risk of arbitrary application of a life without parole sentence is abolished.
While the Court's ruling that the Eighth Amendment forbids States "from making the judgment at the outset that those offenders never will be fit to reenter society," (24) the second chance afforded to some youth by the Court does not guarantee release from prison. Consistent with the recommendation we made in our Issue Brief, under Graham, the Court requires States to provide juvenile offenders convicted of non-homicide offenses with "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." (24) Only those who are able to demonstrate such a change would be released.
The Court's rationale is sound. While Graham provides important relief for some youth, States may still subject youth who commit homicide with a life without parole sentence--one that "forswears altogether the rehabilitative ideal." (23) However, the basis of the decision-that the fundamental differences between youth and adults make youth less culpable and more amenable to rehabilitation-are true of all youth, even those convicted in homicide cases. Even those youth may become rehabilitated and redeemed, a fact that cannot be determined at the time of sentencing. As such, we urge States and the federal government to reform existing laws not just to comport with Graham, but to ensure that all youth have a meaningful opportunity to earn release in a manner that holds youth who commit serious crimes accountable, while still recognizing their inherent capacity for change.
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