The Questionable Utility of Life Without Parole for Juveniles

By Sherry F. Colb

In my Verdict column for this week, I discuss the Supreme Court case of Montgomery v. Louisiana. Montgomery held that the case of Miller v. Alabama, which held that mandatory life without parole ("LWOP"), when imposed on juvenile offenders, violates the Eighth Amendment ban on cruel and unusual punishments, must be applied retroactively on state collateral review to cases in which the convictions at issue have already become final.  This meant, in Montgomery itself, that a 69-year-old man who was sentenced mandatorily to life without parole about 50 years earlier should have been given the opportunity on state collateral review, after Miller was decided, to challenge his sentence under Miller in state court.  In my column, I suggest that the way in which the Court reaches its conclusion--by deeming Miller a case announcing a substantive rather than a procedural rule--indicates the likelihood that the Court will soon see fit to find LWOP sentences for juveniles unconstitutional across the board, regardless of whether they are mandatory or not.

In my column, I propose that the Court's ruling in Montgomery itself, though perhaps disingenuous, is--from my perspective--a good ruling that heads us in a positive direction.  But why do I think so? Because the "without parole" part of a life sentence had a particular utility when the death penalty was ascendant, and it currently lacks that utility.  Consider what I mean by this.  If your client has just been found guilty of murder with aggravating circumstances and faces the possibility of a death sentence, you want the jury to know that if it sentences your client to "life imprisonment," your client will never leave prison; that is, he will not have the opportunity for parole.  Indeed, your client has the right to have the jury be made aware of this fact (if it is in fact true).  The reason for this right (and for your desire to notify the jury of the lack of parole) is that if the jury knows that parole is not a possibility, then it will not be tempted simply to impose the death penalty as a way to ensure that your client is never released from prison.  LWOP, in other words, serves the purpose of decreasing the felt need for a death sentence.  If we as jurors know that a dangerous and violent person will never leave prison, we are less likely to experience a fear of reoffending that we might experience if we believed that "life imprisonment" actually meant "20 years with good behavior."

As Justice Scalia pointed out in his dissent in Montgomery, one of the reasons that the Court gave in Roper v. Simmons for eliminating the death penalty for juvenile offenders is that LWOP provides an adequate substitute for death.  LWOP, then, serves as a backup plan when execution is a possibility but the goals to be achieved by execution can be equally attained with LWOP.  Faced with the two options of death and LWOP, jurors (and in Roper, the Court) may be favorably inclined toward LWOP.

Now, however, the death penalty for juveniles is unconstitutional.  Furthermore, the death penalty for non-homicide individual offenses is unconstitutional, under Kennedy v. Louisiana.  And, as the Court held in Graham v. Florida, LWOP--the most serious of punishments available for juveniles--may not be imposed on a juvenile guilty of a non-homicide offense.  In Miller, the Court stopped short of ruling out LWOP for all juveniles, however; it simply held that mandatory LWOP is impermissible for juveniles.  But then Montgomery came along and treated Miller as a substantive constitutional case, rather than a procedural one, thus re-characterizing Miller as essentially ruling out LWOP for virtually all juveniles.

So the question is whether it remains important to retain LWOP for that small number of juveniles who might be incorrigible and thus need to be locked up for the rest of their lives to adequately protect society.  And my answer to this question, following on the heels of what appears to be Justice Kennedy's likely answer (based on his opinion in Montgomery), is no.  So long as a juvenile offender may be sentenced to life imprisonment, the default can still be that he or she will remain in prison for the rest of his or her life.  But if it turns out that he or she does in fact change over time and become a better person, a kinder person, a person who no longer poses a danger of hurting others if he or she is released at, say, the age of 69, then the absence of LWOP will mean that a parole board could decide to release him or her at that time.

If what we know about aging criminals is true of most individual offenders--that dangerousness evaporates over time, with the drop in hormones and other changes that accompany aging--there will usually be good reasons to release the juvenile offender before it is time to bury him or her. Some crimes may be so terrible that no one wants to contemplate releasing the offender ever.  But the possibility of parole does not mean that anyone will ever have to release him or her.  It means only that when time has passed and behavior has changed, there will be an opportunity to revisit the judgment that the offender truly belongs behind bars for the rest of his or her life.  And absent the need to provide the sentencer with an attractive substitute for the death penalty, it seems unnecessary to tie our hands with that phrase "without the possibility of parole" anymore, for juveniles and, perhaps some day, for adults as well.