ARTICLE: Livable Term Sentences as Alternatives to Juvenile Life Without Parole: A Sentencing Framework Based on United States v. Grant

Abstract

In Miller v. Alabama (2012), the United States Supreme Court held that mandatory sentences of life without parole for juveniles are unconstitutional. In Montgomery v. Louisiana (2016), the Supreme Court made this holding retroactive, leaving the states to fashion new sentencing schemes for juveniles previously sentenced to life without parole. Complicating this task is the debate around “de facto,” or virtual, life sentences, which are term-of-years sentences that extend beyond an individual’s life expectancy. This essay proposes a framework to be used for sentencing juvenile lifers in light of the Supreme Court’s opinions and the Third Circuit Court of Appeal’s decision in United States v. Grant (2018). The framework considers an individual’s life expectancy and health, the national retirement age, and the time needed to reconnect with society. The output is a liveable term-of-years sentence that allows persons sentenced to life without parole as juveniles the prospect of release and the achievement of a meaningful life in the free world. “Incorrigibility is inconsistent with youth.” — Graham v. Florida (2010). _______________________________________________________________________________ It is difficult for most of us, who have never been sentenced to prison, to truly appreciate the reality of a life sentence. “Statistics” about abstractions like a life term “don’t bleed; it is the detail which counts” (Koestler, 1945, p. 91). Without prison experience, most of us in society lack the Livable Term Sentences as Alternatives to Juvenile Life Without Parole: A Sentencing Framework Based on United States v. Grant Journal of Criminal Justice and Law: Official Journal of the Law and Public Policy Section of the Academy of Criminal Justice Sciences Volume 3, Issue 1, pp. 59-75 (2019) 60 Talia Roitberg Harmon and David McCord essential details needed to comprehend a life sentence. To most, a life sentence is just another term of punishment proclaimed by a judge or a punishment authorized by lawmakers, but for children subjected to this penalty, a life term means they will spend their entire lives in prison, a remote and alien world, until they die. Life in prison means 24 hours a day, 365 days per year, in one cage or another, among outcasts who sit ostracized from a society that is unwilling to give them a chance to show they have changed. In considerable measure a consequence of the fear of juvenile “super-predators,” the transfer of juvenile defendants to adult courts increased in the 1990s (Adams & Addie, 2009; Mauer & Nellis, 2018). One salient example of the harsh sentences meted out to juveniles in adult courts is the life-without-parole sanction. Many juveniles were sentenced to this sanction on a mandatory basis. Between 1979 and 1996 alone, the number of juveniles serving sentences of life without the possibility of parole increased from 9 to 160 (Mauer & Nellis, 2018). But, in the 2012 case of Miller v. Alabama, the United States Supreme Court declared mandatory sentences of life without parole for juveniles unconstitutional because these sentences do not consider the unique characteristics of juveniles, which make them both less culpable for their crimes and more capable of reform than adults. The Supreme Court made this holding retroactive in Montgomery v. Louisiana (2016). Establishing just and viable alternative sanctions is the central issue addressed in this essay. As a result of the Supreme Court’s decisions, states with juveniles serving mandatory life terms must resentence them or make them eligible for parole. Importantly, a significant number of states have abolished parole, so their remedy would be to resentence individuals or develop a new parole-like scheme that provides these juveniles with an avenue of release if they have matured and developed over the course of their confinement. In addition, the fact that many juveniles are serving, or could be resentenced to, de facto life sentences—terms of years that, as a practical matter, amount to life sentences—necessitates a sentencing scheme that offers a meaningful alternative to sentences of life without parole. Although a juvenile could theoretically be resentenced to life without parole, the Supreme Court has made clear that “[a]fter Miller, it will be the rare juvenile offender who can receive that same sentence” (Montgomery v. Louisiana, 2016, p. 734). We propose a sentencing scheme consistent with the original Third Circuit opinion, United States v. Grant (2018),1 which held that non-incorrigible juveniles should have (a) a presumption of release before the age of retirement that (b) allows at least a chance for a fulfilling life in the free world. Our sentencing scheme takes into account the typical age of retirement in the United States, an individual’s life expectancy, and the number of years it will take for a juvenile lifer to reenter society with a meaningful opportunity to fashion a decent life before he or she dies. By following this sentencing framework, courts and states can comply with the United States Supreme Court’s mandate that only incorrigible juveniles should be subject to life without the possibility of parole.2 1 This decision was appealed by the government and heard en banc on February 20, 2019, by the Third Circuit Court of Appeals. The Third Circuit’s decision is on hold pending the outcome in Mathena v. Malvo (2019), which is set for oral argument before the United States Supreme Court on October 16, 2019 (Order, United States v. Grant, 2019). 2 In some cases (e.g., Jones v. Commonwealth, 2017; State v. Nathan, 2017), courts have held that the Supreme Court’s holding applies only to mandatory sentences of life without parole, which is the issue in Mathena v. Malvo (2019). Journal of Criminal Justice and Law: 61 Official Journal of the Law and Public Policy Section of the Academy of Crimial Justice Sciences