SHERRY F. COLB
Last month, the U.S. Supreme Court granted review in Miller v. Alabamaand Jackson v. Hobbs, two cases that together raise the following question: Does the Eighth Amendment’s cruel and unusual punishments ban prohibit mandatory sentences of life imprisonment without the possibility of parole (LWOP) for homicide offenses committed by fourteen-year-olds?
Prior Supreme Court precedents have not expressly addressed this question, which calls on the Justices to examine the relationships among three relevant factors: (1) the capacity of an offender to behave morally; (2) the wrongfulness of the offender’s behavior; and (3) the harmful consequences of the offender’s actions. In this column, I shall consider the likely role of these three factors in resolving Miller and Jackson.
The Two Cases the Supreme Court Will Consider
Both Evan Miller and Kuntrell Jackson were convicted of committing capital murder, a designation reserved for crimes carrying the most severe punishments (sometimes including the death penalty).
Miller evidently beat his neighbor Cole Cannon with a baseball bat until Cannon was unable to move and then set fire to Cannon’s trailer, which Miller promptly exited as Cannon pleaded helplessly, “Why are y’all doing this to me?” Cannon thereafter died of smoke inhalation.
Jackson joined his older friend and cousin in the robbery of a video store. When the robbery victim, Laurie Troup, claimed that she had no money, one of Jackson’s two accomplices shot her to death. (The doctrine of “felony murder” allows the fatal shooting to be imputed to Jackson because he took part in the robbery.)
In each of the two cases, the trial court lacked the discretion to impose a less severe sentence than life without parole.
Both Miller and Jackson were fourteen years old at the time of their respective crimes. Miller had for years suffered physical abuse and neglect, as well as extreme poverty. Unable to cope, he required mental health intervention by the age of eight.
Jackson appears to have learned that his accomplice was carrying a shotgun only after the three were on their way to the video store to commit the robbery. And, as noted above, he did not directly participate in the killing itself.
One Possible Mitigating Factor: Evan Miller’s and Kuntrell Jackson’s Youth
The above facts represent what, in the death penalty context, would be considered “mitigating factors,” factors that diminish the culpability of the offenders and thus may call for leniency in sentencing.
As a rule, people under the age of 18 are demonstrably less able to control their impulses than adults are, and teens are also highly receptive to the influence of their peers. Young teens appear to be especially ill-equipped to exercise moral self-restraint and to take into account the future consequences of their actions, for them and for others.
The youth of both Evan Miller and Kuntrell Jackson may thus mitigate the respective culpability of each of the two offenders at the time of his crime, because, in each case, it impeded the perpetrator’s capacity to behave morally, relative to the capacity of an adult to do the same.
Another Mitigating Factor for Evan Miller: A History of Child Abuse
In Evan Miller’s case, another mitigating factor is his history of enduring child abuse. Children who suffer physical abuse have an increased likelihood of later becoming violent themselves. Witnessing and experiencing continual violence may accordingly make it difficult for a young teen to resist his own violent impulses. Miller’s impoverished early years thus seem to offer a reason to extend mercy to this offender.
These first two mitigating factors—youth and a history of abuse—have to do with the capacities and attributes of the offender. With a diminished capacity and few role models to show the young person how to behave morally, his actions may be less culpable than the same actions by an offender with a greater capacity for self-control and moral deliberation and a more supportive upbringing. Given Miller’s early experiences, as well as his youth, it seems plausible to contend, as he does, that a sentence of LWOP is unduly harsh punishment, even for the depraved and horrifying crime that he committed.
Another Possible Mitigating Factor for Kuntrell Jackson: His Lesser Role in the Offense
A different dimension along which the defense might offer mitigating circumstances in a capital case is the minor role of the offender in committing the murder. For Evan Miller, this factor would not appear to count in his favor, because he was actively involved in the brutalization and ultimate murder of Cole Cannon. Kuntrell Jackson, by contrast, did not play the primary role in the killing of Laurie Troup.
More specifically, Kuntrell Jackson did not bring the shotgun to the store, and he learned of the gun’s possession by one of his accomplices only after he was already on his way, with the others, to commit the robbery. And Jackson was not the “trigger-man.” He did not personally kill the victim, and he did not participate in planning or soliciting her murder. Thus, though Jackson was certainly not “innocent” in the death of the victim, he was also not a primary culprit, and can therefore be said to deserve something less than LWOP as a punishment.
Proportionality and Discretion: Two Key Sentencing Concepts
If these had been death-penalty cases, the Eighth Amendment’s ban on cruel and unusual punishments would have required that each sentencing body have had the opportunity to take mitigating factors into account in deciding whether or not to sentence the respective defendants to death. But these were not death penalty cases, and neither Miller nor Jackson was able to ask his respective judge to consider mitigation evidence. Under the law, a sentence of LWOP was mandatory for each of them, given the factual determination of guilt.
Under state law, the trial courts were legally bound to send the two perpetrators to life in prison without the possibility of parole, no matter what the judges might have thought about the youth of the fourteen-year-old convicts, Miller’s history of child abuse, or Jackson’s peripheral role in the robbery that led up to murder by his accomplice.
On a theory that Miller and Jackson were entitled to individualized sentencing, they were denied the opportunity to argue the relevance of these mitigating factors to their proper punishment in an attempt to persuade their judges that the sentence of LWOP was too harsh.
The lack of judicial discretion to consider mitigation is important here, because it helps create a two-part argument that the penalties constituted cruel and unusual punishments under the Eighth and Fourteenth Amendments.
The first argument is that no fourteen-year-old may be sentenced to LWOP, given a fourteen-year-old’s biologically diminished capacity. This argument calls for the sort of ruling that the Court issued in Roper v. Simmons, holding that the Eighth and Fourteenth Amendments bar the execution of criminals who commit their crimes before reaching the age of 18. The Court, moreover, issued another potentially supportive ruling in Graham v. Florida, holding that the Eighth and Fourteenth Amendments prohibit a sentence of LWOP for a non-homicide offense committed by an offender under the age of 18. These rulings are both categorical, because theypreclude the relevant sentence for everyone within the category, without regard to the presence or absence of additional mitigating or aggravating factors.
The second argument against the sentences in these cases is that even if the Supreme Court concludes that LWOP is sometimes a permissible sentence for a fourteen-year-old homicide offender, the Eighth and Fourteenth Amendments demands that the sentencing judge at least have the opportunity to take the age of the offender into account in deciding whether to impose the sentence. Like mental retardation prior toAtkins v. Virginia, and juvenile status prior to Simmons, the condition of youth might not (yet) be categorically disqualifying, but might nonetheless demand the sort of weighing process that was completely precluded by the mandatory sentencing of Miller and Jackson.
Two Possible Obstacles to a Victory for Juvenile Offenders Facing LWOP: The Supreme Court’s Rulings that “Death Is Different”
The petitioners, Miller and Jackson, face two primary obstacles as they seek to convince the Supreme Court to accept their Eighth Amendment arguments. The Court has long held that “Death is Different,” a notion that has one intended and one inadvertent consequence for this case.
The intended meaning of “Death is Different” is that when a State (or the federal government) seeks to execute a prisoner for his or her crime, the Eighth and Fourteenth Amendments impose more stringent requirements than would otherwise apply.
One example, announced by the Court in Kelly v. South Carolina, is the defendant’s right, in a capital case in which the jury is considering whether to impose a death sentence, to inform the jury of the fact (if it is indeed a fact) that a sentence of life imprisonment means life without parole. The reason the Court saw fit to recognize this right is that it allows a jury inclined toward mercy but worried about a defendant’s future dangerousness to feel assured that a life sentence will accomplish the incapacitation that it seeks. Perhaps ironically, given the question that is now before the Court, having to tell the jury about the unavailability of parole for people sentenced to life imprisonment can therefore serve as a humane “nudge” away from a sentence of death.
Another more important example of the Court’s “Death is Different” approach is its consistent requirement that a defendant who is urging the jury to spare his life must have the opportunity to present mitigating evidence to the jury. Mandatory death sentences (whereby a defendant convicted of murder must be sentenced to death) are accordingly unconstitutional on the ground that they remove the jury’s discretion to exercise mercy in an individual case. The Court has never, however, held that a sentencing body must have a chance to consider mitigating evidence before imposing a prison term on a convict.
Many offenses carry mandatory prison terms, and the Court has not raised constitutional objections to the lack of sentencing discretion when it comes to the imposition of these terms.
Indeed, in its 2003 decision in Ewing v. California, the Court upheld a “three strikes” sentencing scheme under which a third-time convicted felon must be sentenced to an indeterminate term of life imprisonment, even if his crime is a non-violent property offense. The case arose after Gary Albert Ewing received a mandatory sentence of 25-years-to-life for stealing three golf clubs (after having been convicted of two prior offenses). Ewing would seem to stand for two propositions regarding prison sentences and the Eighth and Fourteenth Amendments: (1) a good measure of disproportion between the punishment and the crime is constitutionally permissible; and (2) mandating highly punitive mandatory prison sentences—which prevent a sentencing judge or jury from even considering mitigating facts about the defendant—is also constitutionally permissible.
It accordingly appears that a defendant facing a prison term is entitled to neither finely-tuned proportionality nor jury discretion in sentencing.
In response to the contention that the Court’s own precedents seem to rule out a claim of a right to precise proportionality in prison sentencing, one can point to a recent exception: The Supreme Court held less than two years ago, in Graham v. Florida, that a sentence of LWOP is cruel and unusual punishment for a non-homicide crime committed by a juvenile offender. Under this ruling, a sentence of LWOP is categorically impermissible if imposed upon a juvenile offender whose crime did not result in a person’s death.
Though this ruling may give some hope to the petitioners, though, it does remind us of a second way in which “Death is Different.” The Court has long held that the crime of homicide is categorically worse than any other crime against a person. This principle has meant that even though a government may constitutionally execute a murderer, it may not execute a rapist (under Coker v. Georgia), and it may not execute a child molester (under Kennedy v. Louisiana), despite the violence and cruelty inherent in sexual assaults.
And in Graham itself, a case on which petitioners rely, the Court explicitly held LWOP to be unconstitutionally disproportionate for juvenile offenders convicted of non-homicide crimes.
Rejecting the more nuanced approach of Chief Justice Roberts in his concurring opinion in Graham—in which he suggested that non-homicide offenses differ from one another in their seriousness and therefore in whether LWOP is unconstitutionally disproportionate—the majority embraced the notion that homicide is “different” from non-homicide, no matter what the particulars of the crime might be.
Though the Graham ruling thus helps offenders who commit unspeakable crimes, and whose victims miraculously survive, it just as surely hurts offenders like Kuntrell Jackson, whose crime was not especially vicious or deliberate, but it did bring about the death of his victim.
Is Death Truly “Different”?
We can, perhaps, readily understand why the Supreme Court has ruled out the death penalty for non-homicide offenses. When the consequence of a crime—however depraved the offense and however culpable the offender—leaves a surviving victim, the community may be relieved and grateful that no one died. It may accordingly judge the seriousness of the crime in part by its consequences—even in the case where the offender did everything in his power to bring about a much worse consequence. Harm matters to people, and many of us are angrier and in greater need of retribution when an offender has not only acted in an evil fashion but has brought about a loss of life in the process as well.
Even if the death of a victim is “different” from a grave injury, however, it is not as clear that the death penalty is so different from LWOP. As opponents of LWOP have said, the punishment they criticize condemns a person to “death in prison.” At the same time, even people sentenced to death spend many years living in prison before they are executed.
One difference between death and life, of course, is the possibility of freedom. Someday, the offender can hope, a parole board may examine his conduct while behind bars and decide that he is fit to leave and try to build a new life on the outside. Like death, however, a sentence of LWOP rules out that possibility. Like a person on death row, a person sentenced to LWOP whose appeals fail and who is not cleared of his crime will leave prison alive under only one highly unlikely scenario: a governor’s decision to grant clemency. Thus, as the Court said in Graham, a sentence of LWOP signifies a loss of hope.
When the offender in question is a juvenile, it seems premature to banish hope. Though consequences matter, culpability matters as well. A juvenile offender is categorically less able to behave morally than an adult is. A boy of fourteen is categorically less able to behave morally than a boy of 16 or 17. This disability reduces the culpability of an offender, even when he has committed a vicious and ugly offense that results in the death of a victim. We can hope—though the hope may be slim—that someday, the cruel and vicious, homicidal child will grow up to be different.
The Court may conclude that some criminals truly are beyond hope, even if they are only fourteen years old. Perhaps an offender’s actions betrayed such a callous indifference to others or even a sadistic pleasure in others’ suffering, that we simply cannot entertain the possibility of rehabilitation. (One might argue that this was the case with Evan Miller; but one might also point to Miller’s own history of abuse in mitigation.)
If the Court draws this conclusion, however, then surely it ought to permit a jury or a judge to consider the individual circumstances of an offender and his crime. How can we know—if we can ever know—that a case is hopeless, unless we can consider mitigating circumstances that reflect on the culpability of the offender and of the offense?
As Chief Justice Roberts said in Graham, “our cases establish that the ‘narrow proportionality’ review applicable to noncapital cases itself takes the personal ‘culpability of the offender’ into account in examining whether a given punishment is proportionate to the crime. There is no reason why an offender’s juvenile status should be excluded from the analysis. Indeed, given Roper’s conclusion that juveniles are typically less blameworthy than adults, an offender’s juvenile status can play a central role in the inquiry.”
If Chief Justice Roberts still believes this to be true, then he might consider writing for a majority of the Court that a State may not impose a mandatory, across-the-board sentence of LWOP on everyone who is convicted of homicide. Instead, at least with respect to juvenile offenders, the judge or jury must have the opportunity to look closely at each crime and each offender before ruling out the possibility of rehabilitation and thus imposing on a defendant the most severe penalty constitutionally available for a juvenile offender.