65 Am. U. L. Rev. 535 (2016)
*Principal Attorney, Phillips Black Project. The Phillips Black Project is a public interest law practice committed to providing the highest quality legal representation to those facing the severest penalties authorized by law. Lecturer, University of California, Berkeley School of Law.
**Research Fellow, Phillips Black Project. Ms. Dorn focuses exclusively on juvenile life without parole (“JLWOP”) sentencing policy and practices.
***Graduate student, dual PhD/JD Developmental Psychology and Law Program, Cornell University. The authors would like to thank Sheri Lynn Johnson, John Blume, and Jennifer Breen for their thoughtful comments on early drafts and Karlyn Lacey and Sarah Edwards for their invaluable research assistance.
This Article provides a comprehensive examination of juvenile life without parole (“JLWOP”) both as a policy and in practice. Beginning in 2010, the U.S. Supreme Court has repeatedly held that the Eighth Amendment of the U.S. Constitution restricts the reach of JLWOP sentences, first prohibiting it for non-homicide offenses, then proscribing its mandatory application for any offense, and, in 2016, clarifying that it may only be imposed in the rare instance in which a juvenile’s homicide demonstrates his or her “irreparable corruption.” The legislative responses to these cases have been to either abandon or restrict JLWOP’s application. These legislative changes undo aspects of the rapid expansion of harsh juvenile sentencing policies enacted across the country starting in the early-1990s and represent a trend away from using JLWOP sentences.
By analyzing JLWOP sentencing data from state departments of corrections, this Article includes three significant findings. First, among juveniles arrested for homicide, African American youth receive JLWOP sentences twice as often as their white counterparts. Second, a small number of counties are responsible for all JLWOP sentences nationally and in large disproportion to their population. Third, JLWOP sentencing dramatically increased during the same time period that states were enacting harsh juvenile sentencing laws—laws that are now falling out of favor. The Article offers potential reasons for these observations, but further study is required to fully explain the disparities in JLWOP sentencing practices. Such study is warranted because each observation raises substantial questions about the wisdom and constitutionality of JLWOP sentences, given the U.S. Supreme Court’s increased interest in restricting its application.
Introduction
This Article examines the rapid changes underway in sentencing juveniles to life without parole (“JLWOP”). It examines both the rapid changes in the law and in the actual sentencing practices in the counties and states that continue to sentence juveniles to die in prison for crimes they commit before reaching eighteen years of age.[1] In Miller v. Alabama,[2] the U.S. Supreme Court held that mandatory life without parole sentences for juveniles violate the Eighth Amendment.[3] In Montgomery v. Louisiana,[4] the Court said that such a sentence is “disproportionate . . . for all but the rarest of children, those whose crimes reflect ‘irreparable corruption.’”[5] The Court has explicitly held open the question of whether any such sentence is constitutional.[6] This Article addresses when, where, and on whom JLWOP sentences are being imposed—questions relevant to its constitutionality.
Examining a comprehensive data set of all persons currently serving JLWOP sentences,[7] this Article finds that the vast majority of JLWOP sentences are the product of sentencing policies adopted during the height of interest in the myth of the superpredator,[8] are isolated in a handful of counties and states,[9] and the states with those polices are rapidly abandoning them.[10] The Article also demonstrates that there are twice as many African American offenders currently serving JLWOP sentences as their similarly situated white counterparts.[11]
This Article proceeds in three parts. Part One explains the Court’s examination of legislation and sentencing trends as part of its national consensus analysis, which is relevant to determining whether sentencing juveniles to JLWOP violates the Eighth Amendment. Part Two examines the use of JLWOP in law and in practice. It demonstrates that the dawn of JLWOP sentences are a relatively recent phenomenon; that more recently, jurisdictions are abandoning the sentence; and those that impose it do so disproportionately on persons of color. Part Three discusses a potential explanation for these trends, including a discussion of the “Superpredator Era,” a period marked by fear of a generation of violent youth, a group that never materialized.
The implementation—and rapid abandonment—of JLWOP raises questions about its penological justifiability and constitutionality.
I. The Eighth Amendment and Juvenile Justice
A. Evolving Standards of Decency
The Eighth Amendment’s prohibition on cruel and unusual punishment[12] is measured against the “evolving standards of decency that mark the progress of a maturing society.”[13] Because “its applicability must change as the basic mores of society change,”[14] the U.S. Supreme Court looks to contemporary societal norms.[15] Since 2002, the Court has measured “evolving standards of decency” by determining whether a national consensus supports categorically prohibiting a given punishment.[16] If there is a national consensus against a punishment, the Court will exercise its independent judgment to determine whether the punishment is proportionate to the offender and the offense.[17]
To assess whether there is a national consensus about a particular punishment, legislative enactments constitute the “clearest and most reliable objective evidence of contemporary values,”[18] but “[a]ctual sentencing practices are [also] an important part of the Court’s inquiry into consensus.”[19] The number of states authorizing a given punishment, the extent and direction of legislative change addressing the punishment, and the frequency with which the punishment is actually imposed[20] are all relevant to this analysis.[21] Thus, even where a practice was once common, a more recent repudiation of that practice indicates a national consensus against it and suggests that it violates the Eighth Amendment.
In addition to determining the existence or absence of a national consensus against a sentencing practice, the Court analyzes whether the practice is proportionate.[22] To make this assessment, the Court is “guided by ‘the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose.’”[23] This analysis examines the penological justifications for the punishment: incapacitation, retribution, deterrence, and rehabilitation.[24] “A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense” and highly relevant to the Eighth Amendment inquiry.[25] For example, the Court in Atkins v. Virginia[26] held that the imposition of a death sentence on an intellectually disabled person was unconstitutional because, inter alia, it failed to serve retributive and deterrent functions due to the impairments inherent to intellectual disability.[27]
Since Atkins, the Court has employed its consensus analysis five times to strike down extreme sentencing practices.[28] These five cases address death sentences for persons less than eighteen years old at the time of their offense,[29] death sentences for non-homicide offenses,[30] JLWOP sentences for non-homicide offenses,[31] mandatory JLWOP,[32] and a strict IQ score cut-off of seventy for proving Atkins claims.[33]
Three of these five opinions address punishments for juveniles, suggesting a willingness to invalidate harsh punishments that treat juvenile offenders as harshly as their adult counterparts, despite a national consensus against doing so.[34] To find such a consensus and ban the punishment in these cases, the Court examined legislative enactments, actual sentencing practices, and the proportionality of the punishment to the offender and the offense.[35] The next subsections examine, respectively, how the Court found a national consensus in each of the juvenile sentencing cases and its independent judgment regarding the proportionality of sentencing a juvenile to serving a life sentence without the possibility of parole.
B. National Consensus Findings in the Court’s Decade of Juvenile Cases
In the last decade, the Court has shown an increased willingness to involve itself in the regulation of juvenile justice, issuing four landmark juvenile justice opinions between 2005 and 2016. Three of those cases, Roper v. Simmons,[36] Graham v. Florida,[37] and Miller v. Alabama,[38] struck down punishments that violated the Eighth Amendment.[39] In holding each of the three sentences unconstitutional, the Court found a national consensus against the punishment as a critical part of its analysis.[40] This subsection examines the Court’s national consensus analysis in those cases.
In the first case, Roper v. Simmons, the Court found that there was a national consensus against the imposition of the death penalty on offenders under eighteen-years-old at the time of their crime.[41] Fifteen years before this decision, the Court held in Stanford v. Kentucky[42] that executing a person for an offense committed as a sixteen- or seventeen-year-old did not violate the Eighth Amendment.[43] In Roper, the Court first counted the states that banned the practice.[44] Thirty states prohibited the execution of offenders under the age of eighteen: twelve banned the death penalty altogether, and eighteen exempted juvenile offenders from its reach.[45]
The Court also noted that “the direction of change,” namely that states banned—rather than reinstated—the death penalty for juveniles after the Court’s affirmance of the death penalty for sixteen- and seventeen-year-olds.[46] Since the Court’s decision in Stanford, five states abandoned the death penalty for those under eighteen, “four through legislative enactments and one through judicial decision.”[47] No state that previously barred capital punishment for juvenile offenses had since reinstated it.[48]
Finally, the Court noted that the total numbers of actual executions for offenses committed by juveniles was “infrequent.”[49] In the ten years preceding the Court’s decision, only three states had carried out such an execution.[50] Thus, the Court examined the actual practice of carrying out the punishment in addition to formal prohibition of the practice.[51] For these reasons, the Court concluded that
the objective indicia of consensus in this case—the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice—provide sufficient evidence that today our society views juveniles . . . as “categorically less culpable than the average criminal.”[52]
In the second juvenile sentencing case, Graham v. Florida, the Court found a national consensus against sentences of life without parole for non-homicide offenses committed by persons less than eighteen-years-old at the time of the offense.[53] The Court found a national consensus against the punishment based on its infrequent use, “despite its widespread legislative authorization.”[54]
At the time of the opinion, only seven jurisdictions legislatively prohibited JLWOP for non-homicide crimes, and just six jurisdictions had outlawed JLWOP entirely.[55] The Court found, however, that the sentence was “exceedingly rare” in practice,[56] identifying 123 persons serving JLWOP for a non-homicide offense.[57] The Court found that even this number was over-representative of the commonality of the practice: “It becomes all the more clear how rare these sentences are, even within the jurisdictions that do sometimes impose them, when one considers that a juvenile sentenced to life without parole is likely to live in prison for decades.”[58] The Court necessarily assumed that some of the 123 sentences were imposed based on outdated sentencing policies and practices.[59] Thus, the Court found that the total number of sentences, as well as when those sentences were entered, was relevant to whether there was a national consensus.
The Court also considered whether the sentences actually imposed were geographically isolated and identified thirty-seven states and the District of Columbia that authorized JLWOP for non-homicide offenses.[60] Only eleven states had ever imposed the sentence, and a single state, Florida, accounted for the majority of JLWOP sentences.[61] Thus, the Court found a national consensus against JLWOP for non-homicide offenses based on when and where the offenses were imposed and despite de jure authorization of the offenses in most states.
In the third juvenile sentencing case, Miller v. Alabama, the Court held that the Eighth Amendment required individualized consideration of the mitigating aspects of youth before exercising discretion to impose JLWOP.[62] The Court rejected the state’s argument that because twenty-nine jurisdictions statutorily authorized the punishment, there could be no consensus against it.[63] The Court noted that when it decided Graham, there were thirty-nine jurisdictions authorizing JLWOP for non-homicide offenses, and the Court nonetheless found a consensus against that punishment.[64] It also noted that “in Atkins, Roper, and Thompson, we similarly banned the death penalty in circumstances in which ‘less than half’ of the ‘States that permit[ted] capital punishment (for whom the issue exist[ed])’ had previously chosen to do so.”[65]
The Court explained that “the statutory eligibility of a [JLWOP sentence] does not indicate that the penalty has been endorsed through deliberate, express, and full legislative consideration” because “more than half” of the twenty-nine jurisdictions with mandatory JLWOP impose it “by virtue of generally applicable penalty provisions” that apply, without discussion, to children and adults alike.[66] The Court thus concluded that there being twenty-nine jurisdictions authorizing mandatory JLWOP was no bar to an Eighth Amendment prohibition.[67]
The Court held that two lines of its precedent required individualized consideration of juveniles before imposing JLWOP. Its recent precedents on juvenile punishment established that “children are different” when it comes to sentencing.[68] Its death penalty jurisprudence established the necessity of particularized consideration of the offender before imposing the most severe sentences authorized under law.[69] Together, these two strands of precedent required individualized consideration of the juvenile before imposing a sentence that would necessarily mean the juvenile would die in prison.[70] The Court expressly reserved the question of whether JLWOP itself violated the Eighth Amendment.[71]
In the Court’s two most recent Eighth Amendment cases on the prohibition of capital punishment on the intellectually disabled, Atkins v. Virginia and Hall v. Florida,[72] its national consensus analysis proceeded similarly to its jurisprudence in these three juvenile cases.
In Atkins, the Court counted nineteen states—thirty-three when including states that forbid the death penalty altogether—that had prohibited the death penalty for the intellectually disabled.[73] As with Graham, however, the Atkins opinion “forcefully demonstrate[s that] legislative enactments are not dispositive.”[74] For example, the Court noted that the fact that states like New Hampshire and New Jersey still statutorily authorized executions of the intellectually disabled carried little weight, because no such executions had been carried out in decades.[75] Put differently, “a state’s failure to execute . . . individuals for long periods of time could arguably be construed as evidence that a state is as good as abolitionist for national consensus purposes.”[76]
The Atkins Court was also the first case to address the notion of “direction,” explaining that it is “not so much the number of these States that is significant, but the consistency of the direction of change.”[77] Specifically, the Court noted that seventeen states had abolished the death penalty for the intellectually disabled since the Court had denied the Eighth Amendment claim in Penry v. Lynaugh[78] and that there was a “complete absence of States passing legislation reinstating” the penalty for the intellectually disabled.[79]
In Hall v. Florida, the Court held that a strict cut-off score of seventy and above failed to take account of the standard measure of error in intelligence quotient tests and was thus contrary to the national consensus.[80] In so finding, the Hall Court applied and expanded upon its national consensus analysis by looking not only to legislation or practice, but also to professional norms: “The legal determination of intellectual disability . . . is informed by the medical community’s diagnostic framework.”[81] Because Florida’s statute went “against the unanimous professional consensus,” the Court concluded, it was invalid under the Eighth Amendment.[82]
A critical aspect of the Court’s Eighth Amendment jurisprudence in juvenile sentencing is whether there is a national consensus against a punishment.[83] The Court examines formal authorization, including the nature and direction of change regarding authorization, actual sentencing practices, and whether the sentences are geographically isolated.[84] Where the sentences are geographically isolated and from a bygone era, the Court may invalidate a sentence, even where most states formally authorize it.[85]
C. Independent Judgment About the Proportionality of Sentencing Juveniles to Life Without Parole
Where the Court finds a national consensus against a punishment, it may invalidate that punishment where, in the Court’s independent judgment, the punishment lacks the penological justifications of incapacitation, retribution, deterrence, or rehabilitation.[86] Relying on psychological and social science evidence, as well as what “any parent knows,” the Court has consistently held that these purposes are greatly diminished in the context of imposing extreme sentences on juveniles.[87] That is, children are inherently less culpable than their adult counterparts.[88] They are “more vulnerable” to “negative influences and outside pressures, including peer pressure.”[89] “Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment.”[90] Thus, the retributive rationale is diminished for juvenile offenders.[91]
The hallmark features of youth similarly weaken the deterrent rationale. “[I]mmaturity, impetuosity, and failure to appreciate risks and consequences” diminish the deterrent rationale because those features are characteristic of youth and undermine a juvenile’s ability to apply future consequences to their present conduct.[92]
Finally, in Roper, the Court held that juveniles are uniquely amenable to reform. As the Roper Court noted, “the character of a juvenile is not as well formed as that of an adult.”[93] That a juvenile is still struggling to form her or his identity “means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.”[94] Moreover, a sentence of life without parole is a once and for all finding that a juvenile is among the few “incorrigible juvenile offenders [and distinguishable] from the many that have the capacity for change.”[95]
The Court has repeatedly held that the characteristics of youth weaken the rationales for imposing the harshest available penalties, and the scientific literature and the Court’s authorities continue to confirm these common-sense holdings.[96] For this reason, the remainder of this Article focuses on the particularities of JLWOP, first examining its authorization and implementation and then discussing potential explanations for the trends present in JLWOP sentencing.
II. State Abandonment of JLWOP in Law and Practice
Rapid change is underway in the area of JLWOP. Legislatures are restricting its availability, and its use is highly concentrated, both within states and counties. This section first examines the state-by-state changes to JLWOP as a matter of policy. Next, it explains how JLWOP sentences are being imposed in practice.
A. Methodology and Limitations
This Part’s remaining analysis proceeds in two steps. First, it examines the state-by-state policies regarding JLWOP, with a focus on statutory law. It provides an overview of the authorization, abolition, and major changes in the law affecting implementation of JLWOP. Other than the rapid changes in the law presently under way,[97] no significant limitations affect this part of the analysis.
In the second step of its analysis, this Part examines JLWOP sentencing practices, employing data from state departments of corrections. Between May and September 2015, the authors sent out requests for information regarding the current inmates in each jurisdiction’s prison system serving a sentence of JLWOP.[98] Specifically, they sought: the name, date of birth, race, gender, offense date, sentencing date, age at time of offense, and county of conviction. Overall, the departments of corrections were very responsive.
The data, where possible, were checked against other public information.[99] These sources included any available appellate decisions, department of corrections website materials, and news reports.[100] With a small handful of exceptions, the publicly available information confirmed the states’ reports.[101]
Nonetheless, the data some states provided presented certain limitations. These limitations are detailed in Appendix A,[102] but are outlined here. First, several states did not provide information about race and gender.[103] This information was not reliably available from accessible public information and has been excluded from the analysis unless provided by state departments of corrections. More problematically, however, four jurisdictions have declined to provide data at all: the federal government, Washington, D.C., New York, and Virginia. None of these jurisdictions appear to be significant users of JLWOP, and two jurisdictions, New York and Washington, D.C., do not appear to have any inmates sentenced to JLWOP.[104]
In addition to withholding information, eight states—Alabama, Idaho, Indiana, Missouri, Nebraska, Nevada, Oklahoma, and Pennsylvania—have reported the number of persons entering the department of corrections and/or being sentenced to JLWOP before age eighteen instead of the persons who committed offenses before age eighteen.[105] These states do not record the date of offense; because of this practice, they likely underreport the total number of JLWOP sentences, particularly excluding persons sentenced to JLWOP for offenses committed at age seventeen. Thus, our analysis of age at the time of offense likely underreports the proportion of sentences for crimes committed as a seventeen-year-old. Finally, two states, Ohio and Wisconsin, provided information from 2014 and 2012, respectively, instead of current information.[106]
Despite the limitations associated with the data from state departments of corrections, the analysis derives from a robust data set, drawing on well-vetted sources of information.[107]
One set of analyses in this Article employs the FBI’s Supplementary Homicide Reports (“SHR”) to assess how race affects JLWOP sentences for juveniles arrested for homicide and how juvenile homicide rates differ from adults.[108] The SHR contains information on the majority of murders in the United States and is among the most reliable crime data available.[109]
B. Changes in JLWOP Policies
Since Miller, nine states have abolished JLWOP, bringing the current number of states completely banning the sentence to fifteen.[110] In the states that retain JLWOP policies, the legislatures and courts have diminished its impact through retroactivity rulings that provide every juvenile an opportunity to receive a lesser sentence, reforms to narrow the application of JLWOP, or a combination of the two.
States that have abolished JLWOP have generally done so in one of two ways. Most commonly, states ban the sentence outright, removing authorization for JLWOP as a sentencing possibility. Eight states have adopted this type of reform.[111] The other, less common form of abolition is achieved through a change in parole.[112] In the two states that have changed their parole practices, adding parole eligibility for persons under age eighteen at the time of the offense eliminates JLWOP. Some states enacting the first form of abolition have explicitly made it retroactive; all states enacting the second form necessarily did so. Connecticut has undertaken both reforms.[113] For this reason, a more detailed explanation of Connecticut’s JLWOP sentencing statute and reforms illustrates the ways in which states have abolished JLWOP.
Before Connecticut’s abolition of JLWOP, it imposed mandatory JLWOP in certain circumstances. Before April 25, 2012, if a juvenile committed a murder in which certain aggravating circumstances were present,[114] Connecticut law authorized either JLWOP or the death penalty.[115] Because the Eighth Amendment bars the death penalty for persons under the age of eighteen, the juvenile would be sentenced to JLWOP.[116] For offenses committed on or after April 25, 2012, but before the new law took effect, if a juvenile committed a murder in which one of the same aggravating circumstances was present, then the sentence would be JLWOP.[117]
Connecticut’s new juvenile sentencing law took effect on October 1, 2015.[118] That law excludes juveniles from the definition of aggravated murder.[119] Thus, it eliminates JLWOP as a sentencing possibility. The law also creates parole eligibility for those currently serving JLWOP and other lengthy sentences.[120] It provides that juveniles are eligible for parole after serving sixty percent of their sentence or twelve years, whichever is longer.[121] The law also provides special criteria for the parole board to weigh when considering parole for a person incarcerated for a crime committed as a juvenile.[122] Additionally, the law provides for appointment of counsel for indigent inmates a year in advance of their parole hearing.[123] By its own terms, the law is explicitly retroactive.[124]
The following chart outlines forms of abolition since Miller, its effective date, and whether abolition is retroactive.
Table 1: Abolition of JLWOP Since Miller
| State | Removes Sentencing Possibility | Adds Parole Eligibility | Explicitly Retroactive | Effective Date |
| Connecticut[125] | X | X | X | Oct. 1, 2015 |
| Delaware[126] | X[127] | X | June 4, 2013 | |
| Hawaii[128] | X | July 2, 2014 | ||
| Massachusetts[129] | X | July 25, 2014 | ||
| Nevada[130] | X | X | Oct. 1, 2015 | |
| Texas[131] | X | Sept. 1, 2013 | ||
| West Virginia[132] | X | X[133] | June 6, 2014 | |
| Wyoming[134] | X | X | X | July 1, 2013 |
| Vermont[135] | X | May 14, 2015 |
Both forms of abolition have the same effect. They indicate legislative thinking on the practice, the “clearest and most reliable objective evidence of contemporary values.”[136] When Hawaii banned JLWOP, its legislature declared, “Youthfulness both lessens a juvenile’s moral culpability and enhances the prospect that, as the youth matures into an adult and neurological development occurs, the individual can become a contributing member of society.”[137] The legislatures in these states have explicitly declared their objections to JLWOP.
The states barring JLWOP are fewer than the Court counted in Atkins when it barred imposing the death penalty on the intellectually disabled.[138] However, the “consistency [and] direction” of the change in JLWOP policy is as strong or stronger than in cases where the Court has addressed the issue.[139] In the thirteen years between Penry and Atkins, sixteen states eliminated the death penalty for the intellectually disabled.[140] In the fifteen years between Stanford[141] and Roper,[142] five states eliminated the death penalty for juveniles.[143] The elimination rate for these respective punishments was roughly 1.23 and 0.33 jurisdictions per year.[144]
In the years since Miller, the states’ responses have been much quicker. On average 3.33 states per year have eliminated JLWOP, and six jurisdictions have eliminated the punishment since June 2014.[145] In response to Miller, a case that merely restricts the punishment, states are eliminating JLWOP all together, suggesting that Miller has caused states to examine their sentencing practices and, once scrutinized, abolish them.[146] Moreover, as in Atkins and Roper, no state without JLWOP has chosen to enact it, and no state has expanded its application.[147] The direction, consistency, and rate of change all suggest a mounting consensus against JLWOP.
States that have retained JLWOP after Miller blunted its impact by granting resentencing hearings to inmates subject to mandatory JLWOP sentences and by narrowing the reach of their JLWOP schemes. At least sixteen state courts have held that Miller provides retroactive relief to juveniles whose sentences are final,[148] with some explicitly doing so on state law grounds.[149] Four of those states passed legislation to ensure that Miller would apply retroactively.[150] As discussed in more detail below, these retroactivity holdings mean that scores of inmates were already entitled to resentencing hearings, even before the Court’s ruling in Montgomery.[151]
Countless more will not be subject to JLWOP because of states’ substantive limitations on the reach of their JLWOP sentencing schemes.[152] For example, before a recent overhaul to its JLWOP policies, California made juveniles eligible for JLWOP if any one of twenty-two special circumstances existed, circumstances that are present in almost every first-degree murder case.[153] In 2012, California dramatically narrowed JLWOP eligibility.[154] Under the revised statute, a person serving can “submit to the sentencing court a petition for recall and resentencing” after serving fifteen years, unless the JLWOP sentence is “for an offense where the defendant tortured . . . [the] victim” or where “the victim was a public safety official.”[155]
If the petition is not granted, the inmate has additional opportunities to petition again after serving a total of twenty and twenty-five years.[156] This change in policy dramatically limits the scope of JLWOP,[157] transforming California from having one of the most widely applicable JLWOP schemes to having one of the narrowest.[158]
California is not alone. Florida has passed similar legislation,[159] and three additional states—North Carolina, Pennsylvania, and Washington—have eliminated JLWOP for a class of offenders.[160] North Carolina eliminated JLWOP for felony murder, restricting the sentence to persons convicted of premeditated and deliberate first-degree murder.[161] Pennsylvania eliminated JLWOP as an option for juveniles convicted of second-degree murder, whereas prior to the amendment second-degree murder called for automatic JLWOP.[162] Finally, Washington retroactively eliminated JLWOP for individuals who were under sixteen when they committed their crimes.[163]
Illinois and New Hampshire have both recently raised the jurisdictional age for adult court eligibility, limiting the availability of JLWOP and other adult sentences for juvenile offenders in those states.[164] Connecticut and Massachusetts have also recently raised their jurisdictional age.[165] Other states have either eliminated mandatory minimums for juveniles,[166] required consideration of the mitigating aspects of youth before sentencing a juvenile to a lengthy term,[167] or improved the reliability of parole hearings.[168] Each change signals a growing intention to treat juveniles differently from adults, even if they are somewhat modulated for purposes of assessing a national consensus on JLWOP.
States are rapidly abandoning and limiting the availability of JLWOP. The direction, consistency, and speed of the change manifest a growing consensus against the practice.
C. JLWOP Actual Sentencing Practices Demonstrate It Is an Outdated, Disfavored Practice, Disproportionately Imposed on Children of Color
Careful review of the actual JLWOP sentencing practices in the states that retain JLWOP reflects its diminishing role in juvenile justice. The imposition of JLWOP sentences over time demonstrates that the overwhelming majority of JLWOP sentences were imposed in the mid-1990s in a handful of jurisdictions pursuant to policies adopted at the height of fear over the myth of the superpredator.[169]
1. Most JLWOP sentences were imposed in the mid-1990s
Current JLWOP sentences were overwhelmingly imposed during the mid-1990s. As discussed below, this was an era when forty-five states changed their laws[170] during hysteria over a “coming generation of super-predators.”[171] The change in laws expanded the applicability of JLWOP. This period saw a marked increase in JLWOP sentences, despite a drop after 1994 in homicides committed by juveniles.[172] The criminal justice policies of the 1990s track the number of JLWOP sentences being served.
The nation’s focus on the generation of superpredators is curious in light of the proportion of homicides committed by juveniles. As demonstrated in the figure below, in any era, including the period in which states changed their juvenile laws, adult homicide arrests dwarf the number of juvenile homicide arrests, and juvenile homicide arrests generally trend in the same direction as adult homicide arrests.
Figure 1: Number of Juveniles and Adults Arrested for Homicide Between 1980 and 2013[173]
Nonetheless, the imposition of JLWOP sentences increased, even as homicide rates fell.[174] Between 1986 and 1994, arrests for violent crimes committed by juveniles, including homicide, rose.[175] However, that rate fell sharply between 1994 and 2000, even as JLWOP sentences were peaking.[176] Moreover, the rise in juvenile homicide arrests in the 1980s and early 1990s might be better understood as “narrower bands of behavior,” specifically “a thin band of highly lethal gun attacks . . . and garden variety assaults” than as a national crime wave.[177] Under either analysis, the rise in JLWOP sentences was not concurrent with the rise in juvenile homicides, and juvenile homicides made up only a small fraction of all homicide arrests.[178] Thus, the emphasis on changing juvenile sentencing policies arrived during a period of waning juvenile violence.[179]
Figure 2: Number of Juveniles Sentenced to Life Without Parole Per Year[180]
There is a sharp uptick in the imposition of JLWOP sentences during the same period of rapid expansion of JLWOP eligibility. This upswing occurred despite juvenile homicide arrests falling in the same timeframe.[181] The percent of life without parole sentences per homicide arrest was between one percent and two percent from 1980 to 1993.[182] Between 1994 and 1999, the rate of JLWOP sentences increased, and in 1999, eleven percent of juveniles arrested for homicide were sentenced to JLWOP.[183] Likewise, the rate of JLWOP sentences per homicide arrest remained at or above four percent until 2013, the most recent year for which the homicide arrest data is available.[184] While the increased imposition of JLWOP sentences does not track an increase in crime, it follows a change in juvenile justice policies that expanded its applicable scope.
Figure 3: Rate of JLWOP Sentences Per Juvenile Arrest for Homicide[185]
A handful of jurisdictions—California, Florida, Louisiana, Michigan, and Pennsylvania—are responsible for imposing two-thirds of all JLWOP sentences.[186] Amidst the nationwide changes to juvenile sentencing policies, these key jurisdictions made changes to their laws expanding eligibility for JLWOP. In 1991, Louisiana required juveniles as young as fifteen to be tried as adults for certain crimes, including homicide.[187] In 1995, Pennsylvania specified that all juveniles charged with murder would be tried as adults.[188] In 1996, Michigan extended adult jurisdiction to juveniles as young as fourteen.[189] Finally, Florida and California have both made multiple changes to the way they impose JLWOP. In 1994, Florida lowered its age of eligibility for transfer to adult court for serious offenses to fourteen years old.[190] In 1997, Florida required that all juveniles indicted for a crime carrying JLWOP as a potential sentence be tried as adults.[191]
Since 1976, California has placed every person less than eighteen-years-old under the jurisdiction of the juvenile court and gave that court discretion to decide whether a juvenile was unfit to proceed in juvenile court, listing some offenses where the juvenile was presumed to be unfit.[192] If the juvenile was sixteen or older and committed certain offenses, including those carrying a JLWOP sentence, the adult court was presumed to have jurisdiction.[193] In 2000, via Proposition 21, California removed that discretion and mandated that all juveniles ages fourteen through seventeen indicted for certain crimes, including all crimes carrying JLWOP as a potential sentence, be tried as adults.[194]
A review of California, Florida, Louisiana, Michigan, and Pennsylvania’s sentencing practices confirms that JLWOP sentences in these high-use jurisdictions were affected by changes to the states’ juvenile sentencing policies.
Louisiana’s JLWOP sentences dramatically increased after its 1991 expansion of JLWOP eligibility.[195]
Figure 4: JLWOP Sentences in Louisiana[196]
Michigan expanded its juvenile transfer laws in 1996, broadening the scope of JLWOP there.[197] Michigan is a notable exception in that its JLWOP sentences sharply increased prior to the change broadening JLWOP’s potential impact. However, as discussed below, Michigan’s peak in the mid-1990s is in keeping with other social and political change that was underway throughout the country.
Figure 5: JLWOP Sentences in Michigan[198]