Discussion to Replace Juvenile LWOP Sentences is Mostly One-Sided

When the U.S. Supreme Court ruled in the 2010 that life without parole sentences for juveniles convicted of non-homicides violate the Eighth Amendment, it was pretty obvious that the high court had not heard its last oral arguments on the subject. At least two issues were likely to come up.

First, it was a virtual certainty that juveniles who were sentenced to LWOP on homicide charges would use the decision, which came in Graham v. Florida, to challenge their sentences. That has been somewhat settled: The high court ruled in 2012 that juveniles convicted of homicides could not be sentenced to LWOP through an automatic sentencing scheme; a judge or jury would need to independently decide that fate.

Second, there would be some courts that replaced an actual LWOP sentence that offered a teenager the chance to get out just in time to die a free man, leading to a debate over what the Supreme Court meant by a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

By the end of 2010, this was already reflected in the re-sentencing of some juvenile LWOP inmates in Florida after the Graham ruling. To wit:

  • In Hillsborough County, a defendant, who was 13 at the time he was involved in a series of robberies and rapes, received a new 65-year sentence that will have to be served after another 27-year sentence for a separate crime.
  • In Jacksonville, a youth received a new 50-year sentence for his part in an armed robbery and shooting that left a victim paralyzed.
  • In Orlando, a prisoner who was 17 at the time he raped and robbed a woman represented himself in court and received 90 years in consecutive sentences.

The New York Times’ outstanding high court scribe Adam Liptak reported this week that appeals of such sentences, which are predicated on Graham, are falling on deaf ears in the lower courts.

Liptak quotes a few decisions that suggest that they feel hamstrung to overturn a long sentence based on Graham since it gives no specifics on how to do so.

From Judge Jacqueline Griffin, part of a panel that upheld the 76-year sentence of a Florida inmate convicted for a rape he committed at 16: “Without any tools to work with, however, we can only apply Graham as it is written. If the Supreme Court has more in mind, it will have to say what that is.”

From Judge John Rogers, part of a panel that upheld an 89-year sentence for an Ohio inmate convicted of a rape and carjacking he committed at 16.

Again, this is not remotely surprising. Liptak basically called how confusing the “meaningful opportunity” language would be with a piece in November of 2010 about what some perceive to be a lack of clarity in decisions rendered by the Roberts Court.

Youth Services Insider also began asking around about this issue in the immediate wake of Graham, polling juvenile justice advocates and legal experts what states ought to replace LWOP sentences with. For the most part, we heard the same thing then as we do now when asking about this: SILENCE.

And the reason for that is pretty obvious. A lot of reform-minded juvenile advocates don’t want to see juveniles tried in the adult system at all, so it doesn’t come naturally to them to offer solutions that involve any amount of years in an adult jail or prison.

Which is completely rational, but meanwhile, there is a one-sided conversation going on about what to do in the stead of LWOP. And judges are speaking with years.

The one exception is Mary Lee Johnson, executive director of the Pendulum Foundation in Colorado, an advocacy organization that was influential in pushing for her state’s ban on LWOP sentences for juveniles.

She said, when we asked her a few years back, that the standard should be a review of sentencing once an inmate turns 30.

“Studies show that violent behavior decreases dramatically after age 30,” she said. “Age, above all, is the best determinant factor regarding recidivism and criminal behavior.”

Youth Services Insider is mostly written by Chronicle Editor-in-Chief John Kelly

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John Kelly is editor-in-chief of The Chronicle of Social Change.