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“I wish I still had the death sentence . . . . Really, death has never
been my fear. What do people believe? That being alive in prison is
a good life? This is slavery.”1
INTRODUCTION
Roper v. Simmons2 released over seventy juveniles from dying as punishment
for their crimes.3 Roper also effectively converted the death sentences for those
children to sentences of life without the possibility of parole. In many states, life
without parole and death are the only two options when sentencing homicide
offenders.4 The Supreme Court has almost exclusively permitted a proportionality
analysis between crime and punishment for offenders facing the possibility of
death.5
Because adults are still subject to the possibility of death, they are afforded
this proportionality analysis and defense attorneys are permitted to introduce
mitigating evidence on their behalves. For juveniles no longer facing death, the
opportunity to introduce mitigating evidence is lost. While adults are generally not
permitted such an analysis when facing mere life without parole, juvenile
offenders, because of their age and immaturity at the time of the offense, should be
afforded greater protection from permanent incarceration than adult offenders.6
Although juveniles are removed automatically from the juvenile system when they
1. Adam Liptak, Serving Life, With No Chance of Redemption, N.Y. TIMES, Oct. 5, 2005, at 4
(quoting prisoner Randy Arroyo commenting on his converted sentence. Arroyo had been sentenced to
death as a juvenile, but was spared by the Roper decision).
2. 543 U.S. 551, 578 (2005) (holding the juvenile death penalty unconstitutional).
3. Id. at 596 (stating that 70 juveniles in 12 different states were on death row at the time Roper
was decided).
4. See Julian H. Wright, Jr., Life-Without-Parole: An Alternative to Death or Not Much Life at
All?, 43 VAND. L. REV. 529, 540 (1990) (concluding that there are six categories for sentencing utilized
throughout the states, a minority of which implement the two-tiered approach where LWOP and death
are the only options).
5. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 994 (1991) (plurality opinion) (asserting that
death is the only punishment that requires a proportionality review under the Constitution).
6. See C. Antoinette Clarke, The Baby and the Bathwater: Adolescent Offending and Punitive
Juvenile Justice Reform, 53 U. KAN. L. REV. 659, 694-710 (2005) (listing immaturity, biological
influences, social context, impulsivity, future orientation, peer influence, perception of risk, and
formation of identity as factors affecting decision-making in adolescents, reducing their criminal
culpability).
[225]
226 TEMPLE POLITICAL & CIVIL RIGHTS LAW REVIEW [Vol. 16:1
commit serious crimes, they should not be automatically considered adults.7 If any
right should be retained from the juvenile system, it should be the right to
individuality at the time of sentencing. A proportionality analysis should be
mandated before a juvenile is sentenced to life without parole. Furthermore,
juvenile offenders should receive a third sentencing option, adding to the two-tiered
jurisdictions: life with the possibility of parole.
Roper v. Simmons marked the beginning of a new era for juvenile justice.8
The abolishment of the juvenile death penalty will undoubtedly have a large impact
on violent juvenile offenders, whether adjudicated in the juvenile system or in the
adult criminal court.9 Although the decision brings hope to advocates of juvenile
justice reform, the thin margin upon which it was decided leaves both advocates
and critics uneasy.10 With recent changes in the Supreme Court makeup,11 the
question remains whether the decision will subsequently be overturned, or whether
its implications will extend to the next severe punishment: mandatory life without
the possibility of parole (“LWOP”). The Supreme Court was correct in concluding
that the death penalty is unconstitutional for juveniles. However, the holding
leaves much to be desired in the eyes of juvenile advocates whose assertion is that
mandatory LWOP sentences are equally as unforgiving and harsh.
There are fervent constitutional arguments to support a Supreme Court
declaration that mandatory LWOP is equivalent to the death penalty for juveniles,
and should thus be deemed cruel and unusual.12 There are also solid policy
arguments for supporting this declaration. Psychological and neurological
deficiencies in violent juveniles at the very least warrants a proportionality review
before mandating that they spend the rest of their lives in prison.13 The penalogical
goals of retribution and deterrence are not applicable with equal force to juveniles
as with adults.14 LWOP’s unique situation chooses incapacitation over
rehabilitation, and rejects per se the fundamental purpose of the juvenile justice
7. E.g., Juvenile Act, 42 Pa. Cons. Stat. Ann. § 6302 (2004) (requiring automatic transfer of
juveniles age 15 or older who are charged with murder, rape, IDSI, aggravated assault, robbery, robbery
of a motor vehicle, aggravated indecent assault, kidnapping, voluntary manslaughter, or any attempt,
conspiracy or solicitation of any of these crimes to the adult criminal court).
8. 543 U.S. at 578.
9. See Elizabeth S. Scott & Thomas Grisso, The Evolution of Adolescence: A Developmental
Perspective on Juvenile Justice Reform, 88 J. CRIM. L. & CRIMINOLOGY 137, 167 (1997) (noting the
recent increase in severity of punishment for juveniles whether tried in criminal court or in the juvenile
system).
10. See generally Roper, 543 U.S. 551 (the case was decided with only a 5-justice majority, 4 of the
justices dissenting).
11. Edward M. Kennedy, Roberts and Alito Misled Us, WASH. POST, Aug. 6, 2006, at A1
(commenting on the new justices’ agenda on the Supreme Court and referring to the new Chief Justice
John Roberts and Justice Samuel Alito replacing Justice O’Connor and Chief Justice Rehnquist).
12. See Brief of Petitioner-Appellant at 9, Harris v. Wright, No. 94-35365 (9th Cir. Nov. 30, 1994)
(asserting that the proportionality review under the Eighth Amendment must take into account
distinguishing characteristics of an individual’s class in order to be a meaningful review).
13. Jill M. Ward, Deterrence’s Difficulty Magnified: The Importance of Adolescent Development in
Assessing the Deterrence Value of Transferring Juveniles to Adult Court, 7 U.C. DAVIS J. JUV. L. &
POL’Y 253 (2003) (arguing that adolescent developmental principles must be incorporated into youth
violence and crime reduction policy).
14. Roper, 543 U.S. at 571 (asserting that juvenile’s immaturity precludes them from considering
deterrence, and that retribution inadequately serves its purpose in children).
Fall 2006] UNVEILING JUVENILE PURGATORY 227
system.15 Few jurisdictions utilize the two-tiered approach in sentencing the most
violent juvenile offenders.16 Legislatures in most states have added a third option:
life with parole.17 In the former jurisdictions, because death is no longer an option
for juveniles, LWOP becomes mandatory.18 LWOP is qualitatively different for
juveniles than for adults, and its mandatory nature is harsh even for adult career
criminals. Death may be different, but juveniles are different too.
This note is intended to suggest the next step in juvenile sentencing by
advocating against the mandatory nature of life without parole in the wake of
Roper. A review of the Roper decision will establish a conduit for this next step.
Evidence will then show that juveniles are less culpable than adults, that the
penalogical justifications for punishment are mismatched with juveniles, and the
harsh reality of life without parole for young offenders. Finally, a plea will be
made to (1) implement a proportionality review before sentencing juveniles to life
without parole, and (2) to mandate the option of life with parole in two-tiered
sentencing jurisdictions where death is no longer a tier for juveniles.
FACTS
In the early morning hours of September 9, 1993, the defendant, Christopher
Simmons, along with Charlie Benjamin, abducted and killed Shirley Crook.19
Earlier that month, seventeen-year-old Simmons expressed his desire to “burglarize
and murder someone” to his underage friends.20 His plan was to find someone to
burglarize, tie him or her up and throw him or her off of a bridge.21 In addition,
Simmons assured his friends that because they were juveniles they would be able to
“get away with” the crime.22
Tessmer, one of Simmons’ friends, did not follow through with Simmons’
plan.23 Simmons and his friend Benjamin, however, proceeded to the home of
Shirley Crook. Through a cracked window, the boys unlocked the back door to her
house and entered her bedroom.24 Simmons knew Crook as a woman with whom
he had a previous automobile accident. Simmons ordered her out of bed, forcefully
threw her to the floor, bound her hands behind her back and placed duct tape over
her mouth and eyes.25
15. See Scott & Grisso, supra note 9, at 141-42 (discussing the rehabilitative rationale behind the
juvenile court).
16. See Wright, supra note 4, at 540 (concluding that there are six categories for sentencing utilized
throughout the states, a minority of which implement the two-tiered approach where LWOP and death
are the only options).
17. Id.
18. Id.
19. Roper, 543 U.S. at 556-57.
20. Id. at 556.
21. Id. at 557.
22. Id. at 556.
23. Id.
24. Id.
25. Roper, 543 U.S. at 556.
228 TEMPLE POLITICAL & CIVIL RIGHTS LAW REVIEW [Vol. 16:1
PROCEDURAL HISTORY
At trial, the jury found Simmons guilty of first-degree murder and
recommended the death penalty.37 After being sentenced to death, Simmons
appealed his conviction, sentence and the court’s denial of his post-conviction
relief motions.38
On appeal to the Supreme Court of Missouri in April of 1997, Simmons
claimed improper venue, violation of Sixth Amendment rights to an impartial jury,
violation of Fifth Amendment rights based on an involuntary confession, due
process violations, improper allowance of testimony, deprivation of a fair trial,
improper jury instructions, ineffective assistance of counsel, and disproportionate
imposition of the death penalty.39 Reviewing these claims for an abuse of
discretion, the Supreme Court of Missouri found Simmons failed to show the
requisite level of abuse by the trial court, and denied his appeals.40 The Supreme
Court of the United States subsequently denied certiorari.41
26. Id.
27. Id.
28. State v. Simmons, 944 S.W.2d 165, 170 (Mo. 1997).
29. Roper, 543 U.S. at 557.
30. Simmons, 944 S.W.2d at 170.
31. Id.
32. Id.
33. Id.
34. Miranda v. Arizona, 384 U.S. 436 (1966).
35. Simmons, 944 S.W.2d at 170.
36. Id.
37. Id.
38. Id.
39. See generally Simmons, 944 S.W.2d 165.
40. Id.
41. Simmons v. Missouri, 522 U.S. 953 (1997) (denying petition for writ of certiorari).
Fall 2006] UNVEILING JUVENILE PURGATORY 229
After exhausting all appeals for Simmons, the Supreme Court held, in Atkins
v. Virginia,42 that the Eighth Amendment, applicable through the Fourteenth
Amendment’s Due Process Incorporation Clause, prohibited the execution of the
mentally retarded based on an emerging national consensus for its opposition.43 In
August of 2003, Simmons urged the Supreme Court of Missouri to adopt a parallel
argument for national consensus against juvenile execution.44 The court found this
argument persuasive, and while ignoring past opinions to the contrary, held that the
United States Supreme Court would today hold45 that juvenile executions violated
the Eighth and Fourteenth Amendments.46 Simmons’ death sentence was set aside,
and he was re-sentenced to “life imprisonment without eligibility for probation,
parole or release, except by act of the Governor.”47 In May of 2004, the Supreme
Court of the United States granted certiorari to Roper to review the constitutionality
of the juvenile death penalty.48
COURT’S ANALYSIS
In Roper v. Simmons, the Court held that juveniles were categorically exempt
from the death penalty under the Eighth Amendment’s ban on cruel and unusual
punishment.49 The majority reasoned that a national consensus emerged in
opposition to this sanction, and used its own judgment to affirm this assertion.50
A. Majority Rationale
The Supreme Court has generally used two tests to evaluate an Eighth Amendment
violation of cruel and unusual punishment.53 The first is whether the punishment is
one of “those modes or acts of punishment . . . considered cruel and unusual at the
time that the Bill of Rights was adopted.”54 The second, and that which the Court
chose to employ in Roper, is whether the punishment is contrary to the “evolving
standards of decency that mark the progress of a maturing society.”55 Stanford
measured evolving standards of decency not by its own judgment or a
proportionality analysis, but with objective evidence reflecting modern American
societal conceptions.56 The Court fulfilled this objective by looking to legislatures
and jury determinations, adamant in its refusal to consider opinion polls, interest
groups or professional associations.57 The Court found that of the thirty-seven
states that permit capital punishment, only fifteen declined to execute sixteen-year-
olds, and only twelve declined to execute seventeen-year-olds.58 This, coupled with
a finding that juries believe the sanction should rarely, rather than never, be
imposed, led the Court to conclude that the national consensus was not entirely
against juveniles receiving capital punishment.59
The Roper Court began its analysis by examining the nation’s outlook on the
practice of executing juveniles fifteen years after its decision in Stanford.60 Of
significance to this analysis is the parallel the Court drew with the execution of
mentally retarded individuals.61 On the same day the Court decided Stanford, it
held that mentally retarded persons were not categorically exempt from capital
punishment under the Eighth Amendment, in Penry v. Lynaugh.62 The Court
employed the national consensus test for evolving standards of decency, and
concluded that the test failed because only two state legislatures had enacted
statutes against such executions.63
The Court, perhaps inadvertently, paved the way for Roper in 2002, by
overturning Penry.64 In Atkins v. Virginia, the Court found the execution of the
mentally retarded cruel and unusual under the Eighth Amendment.65 In its analysis,
per the modern standards of decency test, the Atkins Court again looked to the
legislatures and jury determinations, as it had in 1989.66
The Court in Atkins concluded that a national consensus against capital
punishment for mentally retarded defendants was overwhelming in 2002 as
53. Id. at 368-69. But see Weems v. United States, 217 U.S. 349, 367 (1910) (asserting a third
criteria for evaluation in a proportionality test between the crime and the punishment). The Stanford
Court implicitly refused to employ the proportionality test in evaluating an Eighth Amendment claim.
Stanford, 492 U.S. at 368-69.
54. Id. at 368 (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)).
55. Id. at 369 (quoting Trop v. Dulles, 356 U.S. at 101 (1958) (plurality opinion)).
56. Id. at 369 n.1.
57. Stanford, 492 U.S. at 369-70.
58. Id. at 370.
59. Id. at 374, 380.
60. Roper, 543 U.S. at 564.
61. Id.
62. 492 U.S. 302, 340 (1989).
63. Id. at 334 (excluding the fourteen states that ban the death penalty altogether).
64. See Atkins, 536 U.S. at 321 (finding the execution of the mentally retarded unconstitutional).
65. Id.
66. Id. at 313-15.
Fall 2006] UNVEILING JUVENILE PURGATORY 231
compared to 1989.67 Atkins pointed out that in the thirteen years since Penry was
decided, eighteen states enacted statutes prohibiting the sanction for the mentally
retarded, in addition to the twelve states that continued to ban the practice
altogether.68 These statistics were supported by evidence that revealed only five
such executions had taken place in any state since Penry.69 The Court noted the
consistency in the direction of change, in addition to the statistics, to conclude that
the national consensus was in stark contrast to the practice of executing mentally
retarded defendants.70
Roper used Atkins as a guideline in determining that a national consensus
emerged against the juvenile death penalty since 1989.71 Like the statistics on the
execution of mentally retarded defendants, the Roper Court concluded that thirty
states in 2005 prohibited capital punishment for juveniles.72 Furthermore, after
Stanford, only six states executed juveniles, and only three in the ten years prior.73
Although the change in state statutes was not as dramatic with regard to juveniles
as with mentally retarded individuals, the Court noted this discrepancy was caused
by an earlier rejection of the sanction for juveniles in the United States.74
The Court rejected the prosecution’s argument that no national consensus
existed against the juvenile death penalty in 1976, based on President Nixon’s
reservation regarding the International Covenant on Civil and Political Rights
prohibition of capital punishment for juveniles.75 The Court found this evidence
minimal to the current national consensus regarding the sanction.76 Furthermore,
the Court pointed out that more recently, in 1994, Congress enacted the Federal
Death Penalty Act, which determined that juveniles should not receive the death
penalty.77 As in Atkins, Roper concluded that the “objective indicia of consensus”
in the rejection of capital punishment for juveniles in the states, its sparse
application, and the consistency in the trend towards abolition of the practice
provided sufficient evidence that juveniles should be categorically exempt from
receiving the death penalty.78
2. Sound judgment
79. Id. at 563 (quoting Coker v. Georgia, 433 U.S. 584, 597 (1977)) (finding that a punishment is
disproportionate if it makes no measurable contribution to the accepted goals of punishment).
80. See Atkins, 536 U.S. at 321.
81. Roper, 543 U.S. at 563 (noting the individual judgment of the Court in Atkins, 536 U.S. at 312).
82. Atkins, 536 U.S. at 318.
83. Id.
84. Id.
85. Id. at 319.
86. Id.
87. Id. at 320-21.
88. Atkins, 536 U.S. at 321.
89. Roper, 543 U.S. at 569.
90. Id. at 568 (citing Thompson, 487 U.S. at 856; Ford, 477 U.S. 399; Atkins, 536 U.S. at 319).
Fall 2006] UNVEILING JUVENILE PURGATORY 233
91. Id. at 569-70 (asserting immaturity, peer pressure, and incomplete identity formation as the
primary factors for diminished culpability).
92. Id. at 575.
93. Id. at 578.
94. Id. at 569.
95. Roper, 543 U.S. at 569.
96. Id.
97. Id. at 570.
98. Id.
99. Id.
100. Id. at 571.
101. Roper, 543 U.S. at 571; Atkins, 536 U.S. at 319.
102. Roper, 543 U.S. at 571.
103. Id.
104. Id. at 572 (quoting Thompson, 487 U.S. at 837).
234 TEMPLE POLITICAL & CIVIL RIGHTS LAW REVIEW [Vol. 16:1
especially for the young, the sanction of life imprisonment without the possibility
of parole was itself a serious deterrent.105
As a final comment on the psychological capabilities of youth versus those of
adults, the majority considered criticism of implementing a bright line rule.106
Although the Court recognized that although there were instances when juveniles
were psychologically capable of meriting the death penalty, the differences
between youth and adults were “too marked and well understood” to risk killing a
juvenile despite his or her diminished culpability.107 Lastly, the majority noted that
even trained psychologists had difficulty distinguishing between a lifelong offender
and an immature transient, and concluded that juries should not have the burden of
making this distinction.108 “When a juvenile offender commits a heinous crime, the
State can exact forfeiture of some of the most basic liberties, but the State cannot
extinguish his life and his potential to attain a mature understanding of his own
humanity.”109
105. Id.
106. Id.
107. Id. at 572-73.
108. Roper, 543 U.S. at 573.
109. Id. at 573-74.
110. Id. at 576.
111. Id. at 577 (stating, “[i]n sum, it is fair to say that the United States now stands alone in a world
that has turned its face against the juvenile death penalty”).
112. Id.
113. Id. at 576.
114. Roper, 543 U.S. at 576 (citing the United Nations Convention on the Rights of the Child Art. 37,
Nov. 20, 1989, 1577 U.N.T.S. 3).
115. Id.
116. Id. (citing the United Nations International Covenant on Civil and Political Rights Art. 6(5), 23
Mar. 1975, 999 U.N.T.S., at 175).
117. Id. at 577.
Fall 2006] UNVEILING JUVENILE PURGATORY 235
juveniles during that time, and since the time of those executions each of the
countries either abolished the practice for juveniles or publicly disapproved of it.118
Lastly, the Court gave particular weight to the history of the United
Kingdom’s parallel provision of the Eighth Amendment.119 This provision, the
English Declaration of Rights of 1689, stated, “[e]xcessive Bail ought not to be
required nor excessive Fines imposed; nor cruel and unusual Punishments
inflicted.”120 The death penalty was abolished completely by 2005 in England,
though the juvenile exemption was specifically implemented in 1933.121 At that
time, the minimum age was set at eighteen at the time of sentencing, though it was
changed to eighteen at the time of the offense in 1948.122 Thus, the international
law, and in particular that of England, gave the Court significant weight to back its
moral opposition to the juvenile death penalty.123
Both objective evidence and compelling persuasive authority supported the
majority conclusion that the juvenile death penalty violated the Eighth and
Fourteenth Amendments.124 While persuasive authority alone could not have
justified a constitutional conclusion such as that of the Roper Court, a purely
objective legal system would not require a discretionary body to interpret the words
of the Constitution as applied to an advanced society.
B. Concurrence
Justices Stevens and Ginsburg concurred in the majority’s opinion and wrote
separately to highlight the majority’s interpretation of the Eighth Amendment.125 In
particular, the concurring justices emphasized that had the Constitution been
intended for interpretation frozen in time, the United States could impose no
obstruction to the execution of seven-year-olds.126 Justice Stevens underscored the
Court’s interpretation of the amendment in Trop, and stated that evolving standards
of decency are a vital aspect of the Bill of Rights, and it is critical for the Court’s
understanding of the Constitution to evolve with time.127
118. Id. (explaining that since 1990, Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, Democratic
Republic of Congo, and China have executed juveniles, but since then each of these countries abolished
the practice or made public disavowal of it).
119. Id.
120. Roper, 543 U.S. at 577 (citing the English Bill of Rights 1689, 1 W. & M., c. 2, § 10, (Eng.)).
121. Id. (citing the Children and Young Person’s Act of 1933, 23 Geo. 5, ch. 12 (preventing the
execution of juveniles aged eighteen at the time of sentencing)).
122. Id. (citing the Criminal Justice Act, 11 & 12 Geo. 6, ch. 58 (1948)).
123. Id.
124. Id. passim.
125. Roper, 543 U.S. at 587 (Stevens, J., and Ginsberg, J., concurring).
126. Id.
127. Id. (interpreting the standard used in Trop, 356 U.S. at 100-01).
236 TEMPLE POLITICAL & CIVIL RIGHTS LAW REVIEW [Vol. 16:1
C. Dissents
PERSONAL ANALYSIS: THE BEGINNING OF THE END OR THE END OF THE BEGINNING:
WHERE WILL THE COURT GO NEXT?
“Prison should be a place for predators and not dying old men. Some people
should die in prison. But everyone should get a hearing.”147
While the Supreme Court has permitted review of a handful of LWOP cases in
the context of the Eighth Amendment, it has yet to review the punishment in the
juvenile arena, or where it is mandatory.148 The Roper decision, however, placed
juveniles in a unique situation that may warrant review of this first impression
issue. Jurisdictions where LWOP and death are legislatively set as the only two
options for criminals convicted of serious offenses are now left with only one:
mandatory juvenile LWOP.149 Some jurisdictions utilize this two-tiered sentencing
approach, while many others provide at least one additional option: life with
parole.150 Most legislatures have accepted LWOP as a constitutional punishment
for adults.151 Yet in the juvenile context, in the states where the sentence is
mandatory, LWOP raises new constitutional issues under the Eighth Amendment’s
ban on cruel and unusual punishment. The widely recognized reduced culpability
of juveniles,152 the disproportionality of the punishment for juveniles,153
mismatched adult penalogical principles,154 and the reality of teenagers looking to
spend the rest of their lives in prison155 require a review of the cruel and unusual
clause for what has recently become mandatory juvenile LWOP.
147. Liptak, Serving Life, supra note 1, at 2 (quoting warden Burl Cain of the Louisiana State
Penitentiary in Angola, which houses thousands of people serving life sentences).
148. See Solem v. Helm, 463 U.S. 277 (1983) (holding that the mandatory length of a sentence can
be disproportionate under the Eighth Amendment); but see Harmelin v. Michigan, 501 US. 957 (1991)
(plurality opinion) (holding that mandatory LWOP sentence was not unusual, though it may have been
cruel, and did not violate the Eighth Amendment).
149. Wright, supra note 4, at 540.
150. Id.; see also Wayne A. Logan, Proportionality and Punishment: Imposing Life Without Parole
on Juveniles, 33 WAKE FOREST L. REV. 681, 690 (1998) (concluding that the majority of jurisdictions
currently allow LWOP parole for juveniles, and some even make it mandatory upon conviction in adult
court).
151. See Howard J. Alperin, J.D., Annotation, Length of Sentence as Violation of Constitutional
Provisions Prohibiting Cruel and Unusual Punishment, 33 A.L.R.3d 335, § 7(a) (2005) (citing a
majority of jurisdictions holding that LWOP does not violate the Eighth Amendment).
152. Recognized even by the Supreme Court, most recently in Roper, 543 U.S. at 572 (finding that
the differences between juvenile and adult offenders are too marked and well understood to risk
allowing a youthful person to receive the death penalty despite insufficient culpability).
153. Logan, supra note 150, at 722.
154. See generally Ward, supra note 13 (arguing that the specific goals of deterrence and retribution
do not apply as directly to juveniles as they do for adults as a result of reduced mental culpability).
155. See generally Liptak, Serving Life, supra note 1 (finding that when faced with life or death,
some young inmates actually serving life sentences without parole would have chosen death).
Fall 2006] UNVEILING JUVENILE PURGATORY 239
A. Mandatory Juvenile Life without Parole: A Cruel and Unusually Slow Death
“How do these kids do such violent things . . . ? [T]hey are our children, they
are American children. They are just a reflection of the nightmare side of the
American dream.”156
156. Victor L. Streib, Sentencing Juvenile Murderers: Punish the Last Offender or Save the Next
Victim?, 26 U. TOL. L. REV. 765, 779 (1995).
157. Roper, 543 U.S. at 569.
158. Id.
159. See Scott & Grisso, supra note 9, at 157 (asserting that peer influence, temporal perspective and
risk perception affect decision-making in adolescents); see also Jeffrey Fagan, Atkins, Adolescence, and
the Maturity Heuristic: Rationales for a Categorical Exemption for Juveniles from Capital Punishment,
33 N.M. L. REV. 207, 248 (2003) (concluding that adolescents are more susceptible than adults to
domination by peers, inability to control their impulses, and inability to see the consequences of their
acts) [hereinafter Fagan, Rationales]; accord Clarke, supra note 6, at 694-710 (listing immaturity,
biological influences, social context, impulsivity, future orientation, peer influence, perception of risk,
and formation of identity as factors affecting decision-making in adolescents).
160. Clarke, supra note 6, at 708-09.
161. Id. at 694-710.
162. Id. at 694-96.
163. Id. at 695.
164. Id.
165. Id. at 696.
166. Clarke, supra note 6, at 697 (quoting ERIK H. ERIKSON, IDENTITY: YOUTH AND CRISIS (1968)).
167. Id.
240 TEMPLE POLITICAL & CIVIL RIGHTS LAW REVIEW [Vol. 16:1
168. Id.
169. Id.
170. Id. at 699.
171. Id.
172. Clarke, supra note 6, at 699. (quoting PETER BLOS, THE ADOLESCENT PASSAGE:
DEVELOPMENTAL ISSUES, 71-72, 160 (1979)).
173. Id. at 700.
174. Id.
175. Id. at 700-01.
176. Id. at 701.
177. Id.
178. Clarke, supra note 6, at 701.
179. Id. at 702.
180. Id.
181. Id. at 703.
182. Id. at 704.
183. Id.
184. Clarke, supra note 6, at 705.
Fall 2006] UNVEILING JUVENILE PURGATORY 241
dependent on their families and subject to legal authorities, and are thus restricted
to whatever social setting they inhabit.185
Finally, neuro-scientific research has shown that juveniles’ brains are not fully
developed.186 The frontal lobe is the part of the brain associated with learning and
judgment.187 In such syndromes as anxiety, depression, bipolar disorder, and
diseases such as Parkinson’s and Huntington’s, a reduction of blood flow results in
hypofrontality in the frontal lobe.188 Research on the frontal lobes of juveniles has
shown a mild form of hypofrontality, which, coupled with puberty, results in
hypersensitivity to stimuli.189 Moreover, myelination, which controls emotions and
the prefrontal cortex (which affects judgment) are not fully developed until
adolescents reach their mid twenties.190
Furthermore, studies have shown that homicidal juveniles possess many of the
same backgrounds and emotional problems as one another.191 They are frequently
emotionally deprived, exposed to physical violence, and may be suffering from
neurological impairment.192 Typically, the homicidal juvenile is exposed to
violence and physical abuse in the family, usually from a parent.193 Substance
abuse and alcoholism in the family environment are also common.194 This
environment leads to a lack of proper role models, educational deprivation, and
even pathological dehumanization resulting from repeated violence and
indifference to the human life.195
A study was conducted on fifteen juvenile inmates awaiting death row.196
Every single one of them suffered from head injuries, most during their
adolescence or early childhood.197 Two-thirds suffered cognitive dysfunction, one
half had major neurological impairments, and more than half experienced these
psychiatric symptoms during childhood.198 An additional study of homicidal
juveniles found that eight out of nine of the boys suffered from grand mal seizures
and abnormal electroencephalograms.199 These neurological disorders were the
primary difference between the nine homicidal boys studied and the control group
of inmates who hadn’t committed murders.200
As a result of these psychological and neurological discrepancies, advocates
for the abolishment of LWOP for juveniles argue that the need for an individual
proportionality analysis in interpreting cruel and unusual punishment is
heightened.201 The Supreme Court has only recently entertained the idea of
reviewing LWOP sentences under the Eighth Amendment.202 In Solem v. Helm,203
the Court held for the first time that the proportionality analysis could apply at the
time of LWOP sentencing.204 Prior to Solem, the Court only proportionally
reviewed crime and punishment in capital cases.205 Subsequently, in Harmelin v.
Michigan,206 a plurality of the Court rejected a petitioner’s cruel and unusual claim
because the punishment lacked unusualness.207 Because Harmelin failed to produce
a majority, Solem remains good law.208 Justice Kennedy, one of the concurring
justices in Harmelin, adapted Justice Powell’s criteria for permitting a
proportionality analysis from Solem to emerge as the predominant standard for
review: “analyses are appropriate only in the rare case in which a threshold
comparison of the crime committed and the sentence imposed leads to an inference
of gross disproportionality.”209 Thus, several realities emerge in the juvenile
context: the Eighth Amendment does not prohibit juveniles from being tried as
adults, and it does not require strict proportionality between crime and
punishment.210 Where adults are still receiving a proportionality review for the
most serious punishment they can receive, juveniles in mandatory LWOP
jurisdictions are not. Juveniles, because of their marked variation in psychological
development, present a special class of offenders who should not be denied
individual review.211
200. Id. at 1165; see also Fagan, Rationales, supra note 159, at 238-39 (confirming these results in
more recent studies from 1999-2002).
201. See Petr.’s Br. 9, Harris v. Wright, No. 94-35365 (9th Cir. Nov. 30, 1994) [hereinafter Brief for
the Petitioner] (asserting that the proportionality review under the Eighth Amendment must take into
account distinguishing characteristics of an individual’s class in order to be a meaningful review).
202. See Logan, supra note 150, at 710 (1998) (reviewing the history and context of the
proportionality analysis in LWOP sentencing).
203. 463 U.S. 277, 303 (1983).
204. Id.
205. Id.
206. 501 U.S. 957, 994 (1991).
207. Id. at 994-95.
208. Id. at 996.
209. Id. at 1005 (Kennedy, J., concurring).
210. Logan, supra note 150, at 709.
211. Id. at 722.
212. Harmelin, 501 U.S. at 959.
Fall 2006] UNVEILING JUVENILE PURGATORY 243
the punishment is cruel and unusual, even where it is proportional.213 There are
four justifications for punishment that have emerged in the Supreme Court:
incapacitation, rehabilitation, retribution, and deterrence.214 Three of these theories
support the punishment of life imprisonment without the possibility of parole:
incapacitation, deterrence, and retribution. However, adult justifications for LWOP
do not apply with much, if any, force in the context of the juvenile offender. If the
purpose behind the punishment is not achieved, this purposelessness is cruel and
unusual.215 As the Atkins Court stated: “unless the imposition of the . . . penalty . . .
‘measurably contributes to . . . these goals, it is nothing more than the purposeless
and needless imposition of pain and suffering,’ and hence an unconstitutional
punishment.”216
Incapacitation is the paramount goal of LWOP, and allows society peace of
mind in knowing that a violent offender has been displaced from public harm.
With LWOP, the goal comes at the exclusion of rehabilitation, the pinnacle of
individual consideration, and of the juvenile system.217 Automatically denying one
without consideration of the other, and denying the juvenile his status as such,
negates the purpose of a crime-specific justice system. Individual consideration of
juveniles receiving LWOP should not be a privilege, as it is with adults. It should
be considered a right, upon which the juvenile system was founded. Denying
juveniles their day in juvenile court should not preclude them from their status as
juveniles. Violent offenders may still be capable of receiving adult sentences in
adult court, but even the Supreme Court still regards them as juveniles.218 Their
age is not in dispute, and should not be forgotten throughout their disposition. The
denial of the right to be regarded as an individual, no matter what court is regarding
them, evades the objective fact that juveniles are still children, and should be
treated differently at least at the time of their sentencing in the most serious of
cases.
a. Deterrence
“The punishment, to be effective, should be such as will prove a deterrent.”219
Concluding that deterrence is less applicable to juveniles, Roper noted “the absence
of evidence of deterrent effect is of special concern because the same
characteristics that render juveniles less culpable than adults suggest as well that
juveniles will be less susceptible to deterrence.”220 Roper pointed to the next step,
that LWOP can be categorized similarly, when it stated that “the punishment of life
imprisonment without the possibility of parole is itself a severe sanction, in
particular for a young person.”221 The juvenile facing sixty years in prison is likely
to feel the same as if he were facing life in prison. A juvenile, if he considers
incarceration at all before acting, will look at a fifty or sixty year sentence and life
without parole identically: he will spend as far into the future as he can imagine
behind bars. An extremely long sentence thus serves the equivalent deterrent
purpose as LWOP in the juvenile context; an adult may have the ability to take a
more reasoned consideration of a LWOP sentence juxtaposed with a lengthy term
of years before committing a crime that warrants one over the other.
Deterrence is served both for the individual and society when a violent
criminal is given a severe punishment.222 The societal deterrent theory is based on
the value of the “future social benefits” of deterring criminal conduct.223 This form
of deterrence is significantly reduced given the potential psychological
characteristics of those raised in certain social spheres.224 Frequently, violent
juveniles come from contexts in which they are indifferent to the legal theories
behind punishments.225 Most juveniles do not read newspapers, books for leisure,
or watch the news everyday, especially those living in neighborhoods where
violence defines their everyday lives.226 This context, what has been called “rotten
social background,” yields the development of shifted values and norms, and leans
away from values such as those embraced in the deterrence and retribution theories
behind punishment.227 Victor Strieb cites a real life example of one such
neighborhood in Los Angeles when he writes:
Sharon visits her probationers and sees their little brothers and sisters
playing not house or doctor or fireman, but drug dealer, crack house,
and bank robber — their heroes and role models. Little kids actually
standing there passing play money and bogus rocks of cocaine to one
another over the counter, then pretending to smoke or shoot. She has
seen this with her own eyes, this last gasp of childhood fantasy,
modeled after the most successful adults on the block.228
The criminal law presumes that offenders know the law. In order to deter
crime with punishment, potential criminals must know that what they do has a
consequence. Many juveniles do not know the law, or its punishments. This is in
part because, for these violent youths, crime is not the exception to the rule; it is the
rule.229 Of course, not every child is ignorant to the law and not every child is
raised in this environment. However, without an individual review of the offender
at sentencing, it is impossible to guess whether the justification of deterrence will
be met.
The individual deterrent theory is based on the rational adult weighing the
costs and benefits of his or her acts, and assessing the value of punishment in
making the decision to commit a crime.230 This form of deterrence is recidivism
control.231 Juveniles given LWOP, like those receiving the death penalty, will
never be afforded an opportunity to repeat their offenses. This theory for
punishment does not apply to those looking to live and die within the prison’s
walls.
b. Retribution
Like deterrence, retribution does not apply with equal force to juvenile
offenders receiving automatic LWOP. As the Supreme Court properly noted in
Roper, harsh punishments do not suit the justification of retribution when imposed
upon juveniles.232 With respect to retribution, the court stated “[w]hether viewed as
an attempt to express the community’s moral outrage or as an attempt to right the
balance for the wrong to the victim, the case for retribution is not as strong with a
minor as with an adult.”233 The theory of retributive punishment is to chastise the
offender for a specific crime with what he or she deserves: “just desserts.”234
Retribution does not level with the developmental deficiencies of violent
juveniles.235 The worst forms of punishment should be reserved for only the worst
kinds of offenders.236 Not only are juveniles less culpable psychologically and
neurologically,237 most of these offenders are not old enough or experienced
enough to be classified as career criminals.238 In addition, one extraordinarily
violent offense cannot classify a juvenile as a per se “worst offender” without an
examination of his psychological culpability. It may be hard to find a juvenile
committing the gravest offense who does not have some sort of psychological
mitigating issues.
As the Court recognized in Roper, “Retribution is not proportional if the law’s
most severe penalty is imposed on one whose culpability or blameworthiness is
229. Id.
230. See Ward, supra note 13, at 254.
231. Id. at 260.
232. Roper, 543 U.S. at 571.
233. Id.
234. Ward, supra note 13, at 256.
235. Jeffrey Fagan, This Will Hurt Me More Than It Hurts You: Social and Legal Consequences of
Criminalizing Delinquency, 16 NOTRE DAME J.L. ETHICS & PUB. POL’Y 1, 40 (2002) [hereinafter Fagan,
Social and Legal Consequences].
236. See Weems, 217 U.S. at 367 (asserting that “[t]he right flows from the basic precept of justice
that punishment for crime should be graduated and proportioned to [the] offense”).
237. Clarke, supra note 6, at 694-710.
238. See Scott & Grisso, supra note 9, at 139 (stating that “The modern punitivist reforms tend to
treat adolescent offenders as though most are young career criminals — a premise that is true only of a
small group of offenders whose delinquency in adolescence is part of a persistent pattern of antisocial
behavior, often beginning in early childhood”).
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c. Incapacitation
LWOP is the ultimate form of incapacitation, reflecting society’s desire to rid
itself permanently of a particular criminal. Specifically for juveniles, it is of the
utmost importance to be certain that this punishment is warranted before sending
him or her to prison for fifty, sixty, seventy, or more years. Even if incapacitation
is the appropriate punishment for an offender, the denial of an individual analysis
before sentencing is cruel and unusual. While the individual review still exists for
adults facing the sentence, juveniles in two-tiered sentencing jurisdictions are
denied this opportunity despite their increased likeliness of mitigating
psychological deficiencies. Mandatory LWOP for juveniles skips this critical step
and thus denies the juvenile his right to consideration that his punishment may be
cruel and unusual.
d. Rehabilitation
LWOP reflects three of the four justifications for punishment, eliminating
entirely the possibility of rehabilitation.241 Because the juvenile system was created
for the purpose of rehabilitation, mandatory juvenile LWOP abandons the
fundamental principle upon which the juvenile system was founded.242 The
traditional theory behind the juvenile court was that juvenile criminal conduct was
a result of a “condition” that required treatment, rather than bad conduct warranting
punishment.243 Because adolescents are malleable, they benefit greatly from
treatment for their condition.244 It was believed that this condition was poor
parental guidance and the social harms associated with poverty.245 As Judge Julian
Mack classified it, the function of the juvenile court was, “not so much to punish as
to reform, not to degrade but to uplift, not to crush but to develop, not to make [the
delinquent] an offender but a worthy citizen.”246
The rehabilitative model began to lose support in the late 1960s, when
juveniles were afforded many of the same constitutional trial rights as were
adults.247 The shift thus began, away from rehabilitation and towards a punitive
approach reflecting the seriousness of the offense.248 Today, violent juveniles are
increasingly tried as adults, and the rehabilitative benefits of the juvenile court
system are left behind in this transfer.249 Legislatures in many states permit
juveniles to be charged in adult criminal court through judicial transfer or
legislative waiver.250 Many jurisdictions have lowered the minimum age to qualify
for adult criminal status, have mandated certain offenses be transferred, and
provided minimum sentences to control punishment in adult court.251 For juvenile
advocates, this shift is of great concern. As David Berger, a researcher at Amnesty
International opined, “[t]here should be outrage. This really shows our nation is
going backward in regard to enacting policies that seek to redeem children.”252
The offenders with the most serious problems and in the greatest need of
rehabilitation are being denied the privilege of rehabilitation. If, as the Roper court
asserted, retribution and deterrence are not a proper fit for juveniles receiving harsh
punishments;253 the remaining justifications of incapacitation and rehabilitation are
pitted against one another.254 Sentencing judges should, at the very least, be able to
conduct proportionality analyses in determining which punishment is best suited to
fit the specific offender.255 To mandate LWOP is to deny the juvenile either the
benefits of the juvenile system or to deny society the benefits of the juvenile
offender’s incarceration.256 It is impossible for a court to determine that a
seventeen-year-old will never grow into a respectable citizen without at least an
individual review of their crime and punishment. If there is one right the juvenile
should retain in adult court, by mandate of his age, it is that he remains regarded as
an individual and a child at sentencing. Because interminable incapacitation
deprives these children all hope for rehabilitation, it should be imperative that they
are reviewed and determined to be entirely devoid of any possibility of, at some
point, even sixty years down the line, reform.
247. See In re Gault, 387 U.S. 1 (1967) (affording juveniles the same procedural rights as adult
criminal defendants).
248. Scott & Grisso, supra note 9, at 145.
249. Id. at 149.
250. Id.
251. Id. at 150.
252. Ervin Dyer, Pa. Leads Nation in Youths Given Life Behind Bars, PITTSBURGH POST-GAZETTE
Oct. 13, 2005, at 1.
253. Roper, 543 U.S. at 571.
254. Rehabilitation is abandoned by life incarceration with adults, while long-term incarceration is
not an option if the juvenile is adjudicated in the juvenile justice system.
255. See Penry, 492 U.S. at 319 (“Underlying Lockett and Eddings is the principle that punishment
should be directly related to the personal culpability of the criminal defendant”).
256. See Logan, supra note 150, at 713 (asserting that “LWOP . . . means that good behavior and
character improvement are immaterial . . . he will remain in prison for the rest of his days”).
248 TEMPLE POLITICAL & CIVIL RIGHTS LAW REVIEW [Vol. 16:1
257. Liptak, Serving Life, supra note 1, at 2 (quoting Paul Wright, a former ‘lifer’ and editor of
Prison Legal News).
258. See Dyer, supra note 252, at 2 (discussing an Amnesty International study finding that 59% of
child offenders are in prison for first time offenses, either as a juvenile or as an adult).
259. Logan, supra note 150, at 710-11.
260. Id.; see also Adam Liptak, No Way Out: The Youngest Lifers Locked Away Forever After
Crimes as Teenagers, N.Y. TIMES, Oct. 3, 2005, at A3 (finding that only 26% of juveniles serving life
without parole were found guilty of murder, but that a third were found guilty instead of felony-murder)
[hereinafter Liptak, No Way Out].
261. See Dyer, supra note 252, at 2.
262. 429 S.W.2d 374, 378 (1968).
263. Id. (finding that life without parole could be imposed upon an adult convicted of rape, but that it
is cruel and unusual for juveniles).
264. Scott & Grisso, supra note 9, at 154.
265. See Liptak, Serving Life, supra note 1, at 1 (discussing a juvenile LWOP inmates options for
appeal and concluding that “people on death row are provided with free lawyers to pursue their cases in
federal court long after their convictions have been affirmed; lifers are not”).
266. Id. at 2.
Fall 2006] UNVEILING JUVENILE PURGATORY 249
267. See Wright, supra note 4, at 540 (finding that there are six categories for sentencing utilized
throughout the states, a minority of which implement the two-tiered approach where LWOP and death
are the only options). In these two-tiered states, LWOP is now mandatory for juveniles, while
mitigating factors may still be introduced for adults.
268. Logan, supra note 150, at 712.
269. Id.
270. Id. at 713.
271. See Liptak, Serving Life, supra note 1, at 1.
272. Id.
273. Liptak, No Way Out, supra note 260, at A2.
274. Id.
275. Id.
276. Id.
277. Id.
278. Dyer, supra note 252, at 2.
279. Logan, supra note 150, at 710-11.
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291. See Alperin, supra note 151, at 365-67 (noting a majority of jurisdictions allowing LWOP for
adults).
292. Id.
293. 93 F.3d 581 (9th Cir. 1996).
294. Id. at 583.
295. Brief for the Petitioner, supra note 201, at 1.
296. Id. at 11.
297. Id.
298. Harris, 93 F.3d at 584-85.
299. Id. at 585.
300. See Liptak, Serving Life, supra note 1, at 3 (quoting James Liebman, a law professor at
Columbia University, “Life without parole has been absolutely crucial to whatever progress has been
made against the death penalty. The drop in death sentences . . . would not have happened without
LWOP.”).
301. Editorial/Opinion, Juveniles will Evade Death Penalty, Not Harsh Justice, U.S.A. TODAY, Mar.
2, 2005, at 12A, available at http://www.usatoday.com/news/opinion/editorials/2005-03-01-edit_x.htm.
302. Roper, 543 U.S. at 605-06.
252 TEMPLE POLITICAL & CIVIL RIGHTS LAW REVIEW [Vol. 16:1
even less accepting of abolishing mandatory LWOP. We simply may not be ready
yet for the next step, even if it will eventually be the logical one.
The evolving standards of decency considered in interpreting the Eighth
Amendment cannot support a finding that mandatory LWOP is per se
unconstitutional. The novelty of Roper has left little time for state legislatures to
consider the remaining punishment for juveniles in two-tiered sentencing
jurisdictions. It can hardly be said that a national consensus has emerged against
mandatory LWOP when most legislatures have not considered it in the context of
juveniles, much less since the time of Roper.
Justice Scalia gave further support for finding that LWOP for juveniles was
not cruel and unusual punishment by asserting that the Constitution did not warrant
decisions based on the subjective opinions of the Court.303 Scalia vehemently
contested the Court’s use of its justices’ own judgments in evaluating psychological
deficiencies and international law to determine the juvenile death penalty
unconstitutional.304 A proportionality analysis for evaluating adult LWOP
sentences has been rejected by Scalia and followers.305 No doubt, given his dissent
in Roper, the nature of the juvenile offender will not change this view, nor now that
it is mandatory.
While these are valid objections to the implementation of a proportionality
analysis for before sentencing juveniles to LWOP, the state courts and legislatures
have never before found themselves in this unique position. The Harris Court, in
making its assertion, failed to acknowledge the reality that “juveniles can and do
differ from adults in fundamental ways.”306 In other words, although “death is
different,” children are different too.
Mandatory life without parole is also different and can be distinguished from
other terms of years, preventing the infamous slippery slope. It denies all hope and
rehabilitation. Life with parole, on the other hand, can be just as long an
incarceration, but it gives the juvenile a reason to live, to learn and to grow. That
alone is justification for individual review before permanent removal of a child
from society.
Given the unique result in wake of the Roper decision, and the aforementioned
policy considerations, a review of two-tiered state sentencing scheme is warranted.
The change need not be drastic, and the two-tiered sentencing approach need not be
altered in the adult arena. To add proportionality and the potential for life with
parole, these states may maintain their two-tiered statutes, as well as their respect
for juvenile individuality.
The Supreme Court has employed three tests in evaluating the Eighth
Amendment’s proscription against cruel and unusual punishment: (1) whether the
framers of the Constitution would have considered the punishment cruel and
unusual;308 (2) whether evolving standards of decency of a maturing society have
created a consensus against it;309 (3) whether the punishment is either grossly
disproportionate to the severity of the crime,310 or makes no measurable
contribution to the accepted goals of punishment.311 In Roper v. Simmons, the
Court used the second test, and found that the evolving standards of decency were
in favor of abolishing the juvenile death penalty.312 Although this test cannot be
used with LWOP, because the legislatures may not have had time to contemplate
the situation now before them, the mandatory nature of the sentence may still be
cruel and unusual under the Eighth Amendment for lack of an individual
proportionality analysis.
No juvenile should be given a punishment as solemn as LWOP without an
individual assessment of proportionality in relation to the crime committed. The
Supreme Court should find, based on its third criteria for evaluating the Eighth
Amendment, that mandatory life without the possibility of parole is
unconstitutional. The punishment is grossly disproportionate to the offense, and
more specifically, the offender. Moreover, the adult penalogical goals that support
LWOP are inappropriate when applied to juveniles. When the goals of a
punishment are not met by their sentences, they are inherently cruel and unusual,
regardless of whether the punishment is death, life or otherwise.
In Solem, the Court opened its door to the possibility of implementing a
proportionality analysis for sentences other than death.313 The court implemented a
three-part analysis for proportionality: (1) the gravity of the offense and the
harshness of the penalty; (2) a comparison to sentences imposed on other criminals
in the same jurisdictions; and (3) a comparison to sentences imposed for
commission of the same crime in other jurisdictions.314 The next case to consider
the issue was Harmelin, where a majority of justices generally supported Solem’s
proportionality approach for prison sentences.315 Justice Kennedy’s concurrence in
307. Thompson, 487 U.S. at 823 n.4 (quoting Ollman v. Evans, 750 F.2d 970, 996 (D.C. Cir. 1984)).
308. Ford, 477 U.S. at 405.
309. Trop, 356 U.S. at 100-01.
310. Harmelin, 501 U.S. at 1005.
311. Coker, 433 U.S. at 592.
312. 543 U.S. at 578.
313. Solem, 463 U.S. at 288-89 (finding a violation of cruel and unusual punishment where
defendant’s LWOP sentence was disproportionate to the crime of passing a bad check despite a lengthy
prior record and that the Eighth Amendment applies to prison terms).
314. Id. at 290-91.
315. Harmelin, 501 U.S. at 995-96 (sentencing defendant to LWOP without considering
proportionality for possession of over 650 grams of cocaine). But only Justice Scalia and Justice
254 TEMPLE POLITICAL & CIVIL RIGHTS LAW REVIEW [Vol. 16:1
Harmelin established the standard used today: that the first two components of
Solem’s test are only applicable upon a “comparison of the crime committed and
the sentence imposed leads to an inference of gross disproportionality.”316 Though
these two cases did not concern murder defendants, the principle remains clear:
where the punishment is grossly disproportionate to the crime, whether it is death
or imprisonment, it is cruel and unusual.317
Since Harmelin, state and lower federal courts have widely adopted the
proportionality analysis for LWOP.318 However, a minority of state courts are left
with no choice but to ignore the analysis altogether.319 These are the states whose
statutes for first degree murder and similarly graded crimes provide juries with two
choices: life or death.320 In these jurisdictions, both mitigating and aggravating
conditions can influence a jury determination.321 This remains the case for adults
convicted of these crimes.322 For mandatory juvenile LWOP, however, evidence of
any psychological, neurological, or lack of penalogical application is irrelevant.
For juveniles, mandatory LWOP is arguably worse than death. If proportionality is
still needed for adults facing death, it is equally a necessity for children facing the
rest of their life and death behind bars.
CONCLUSION
Roper v. Simmons was an important landmark in modern juvenile justice.
While abolishing the juvenile death penalty was momentous, it was merely the tip
of the iceberg in providing juveniles the privileges they deserve as persons, as well
as the rights they deserve as minors. While violent juvenile offenders are out of
place in the juvenile justice system, they appear inappropriate in the adult system as
well. Without establishing a separate system for these offenders, juveniles
nonetheless require consideration as such in the adult criminal court. Instead of
treating juveniles like adults, just because there is no severe punishment in the
juvenile system, it is fundamental to recognize that they are not adults, and should
not be denied their status as such.
Mandatory LWOP turns a blind eye to juvenile individuality at sentencing. As
a result, the opportunity to present pressing evidence of the juvenile’s
psychological and neurological immaturity is thwarted. However, never have the
state courts been in such a position of powerlessness to sentence juveniles brought
before them. To deny an individual specific and personal consideration before
mandating that he be incarcerated for fifty, sixty, or seventy years is cruel. To deny
this right to a child, but not an adult, is unusual.
Rehnquist joined portions of the opinion explicitly declining the use proportionality analysis for
sentences other than capital punishment.
316. Id. at 1005.
317. Id.
318. Logan, supra note 150, at 698.
319. Wright, supra note 4, at 540-41.
320. Id. at 541.
321. Id. at 543.
322. Id.
Fall 2006] UNVEILING JUVENILE PURGATORY 255
Elizabeth Cepparulo∗
∗
Temple University, Beasley School of Law, J.D. expected 2007. I want to thank my faculty advisor,
Professor Strazzella, the Hon. Cynthia M. Rufe and the Hon. Albert J. Cepparulo for all their support,
criticism and devotion to criminal justice.