The United States is at an inflection point as the public and elected officials reassess our system of laws and punishment. Both Republicans and Democrats, conservatives and progressives, are increasingly mindful of the need for meaningful criminal justice reform. The harsh sentencing policies of the 1980s and 1990s resulted in a massive population of incarcerated people that reached 2.3 million—one in every 100 adults—before declining in the last several years to 1.8 million people.
Among those behind bars are people who, when they were under the age of 18, received lengthy adult sentences, including life in prison without the possibility of parole. The U.S. is the only developed country in the world in which a person who is too young to vote, marry, serve on a jury or in the military or sign a contract may nevertheless be condemned to die in prison without hope of release. This practice directly conflicts with values that Americans hold dear, including the possibility for redemption in each of us, and the importance of treating human beings, particularly children, with dignity and compassion.
In previous cases, the Supreme Court has held that the most serious criminal punishments—first the death penalty (Roper v. Simmons, 2005), and then mandatory sentences of life without parole (Miller v. Alabama, 2012)—are unconstitutional for individuals who were under the age of 18 at the time of their offenses. In Miller, the Court emphasized that adolescence is marked by “transient rashness, proclivity for risk, and inability to assess consequences.” Its decision required lower courts to consider developmental factors when sentencing juvenile defendants. In Montgomery v. Louisiana (2016), the Court held that Miller established a new substantive rule prohibiting the sentence of life without parole for most juvenile offenders, thereby retroactively invalidating all such sentences that had been mandated by statute.
In the years following Miller, we’ve seen a dramatic national trend among the states to abandon life without parole for children, even in discretionary cases, in favor of age-appropriate sentences that focus on their unique rehabilitative potential. States as politically and geographically diverse as Hawaii and Texas, Oregon and Arkansas, California and Ohio, Wyoming and Massachusetts, Utah and Vermont have all abolished life without parole as a sentencing option for children. Twenty-six states and jurisdictions now prohibit the sentence of life without parole for people under the age of 18, and six more have no one serving the sentence. These states all recognize what the Supreme Court, child psychologists and parents know to be true: children are fundamentally different from adults and must be held accountable in age-appropriate ways.
In Jones v. Mississippi, the Court was asked to decide whether lower courts must make a finding of permanent incorrigibility before sentencing a child to life without parole. The Court required sentencing judges to consider youth and its attendant mitigating factors before sentencing a child to life without parole—affirming its prior decisions Miller and Montgomery—but declined to require a specific factual finding of permanent incorrigibility.
However, the Court explicitly invited states to enact additional protections for children. The opinion notes:
The clear trend is away from life without parole for children. In just the past two years, Oregon, Virginia, Ohio and Maryland have all prohibited sentences of life without parole for people younger than 18. The list of states that have abandoned life without parole for kids continues to grow, and the states that have not yet done so would be well served to join this broad, bipartisan national trend.
Children can and do commit serious crimes. The question is how we can hold them accountable while supporting their growth into responsible adults. We must have the moral imagination to focus not only on accountability and incarceration, but also on mercy and the potential that all children have for change, if given the opportunity. Following the Supreme Court’s decision in Jones, states should continue their nearly decade-long trend of passing laws that abolish life without parole for children. It is sensible policy, and failing to do so contradicts our most cherished values of hope, redemption and a belief in second chances.
Marc Levin, Esq. is Chief Policy Counsel at the Council on Criminal Justice, and developed the concept for the Right on Crime initiative. He can be reached at mlevin@counciloncj.org and on Twittter at @marcalevin.
The views expressed in this article are the writer’s own.
