Summary of Argument

Massachusetts should be ashamed of itself. Although the Commonwealth has long led the nation in protecting the rights of minorities and the most vulnerable, it has fallen short when it comes to the treatment of children who commit crimes, especially the worst crimes.

Today, the United States is the only country in the world where juvenile offenders are sentenced to life in prison without the possibility of parole ("JLWOP"). And Massachusetts, notwithstanding its proud civil rights history, is one of a fast shrinking group of states that still permits this cruel and strikingly unusual practice. Massachusetts is among the worst of the worst, with more children serving life without parole sentences in the Commonwealth than in all but seven other states. This case affords an opportunity for change.

In three cases over the past eight years, the United States Supreme Court has articulated the many ways in which children are different from adults, and juvenile offenders are different from adult criminal defendants. The court has explained why what may not be "cruel and unusual" punishment for adults is "cruel and unusual" when it comes to kids. First, in Roper v. Simmons, 543 U.S. 551 (2005), the Court held that the death penalty may not be applied to juvenile offenders. Then, in Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010), the Court determined that life without the possibility of parole is likewise unconstitutional for juveniles convicted of non-homicide offenses. And most recently, in Miller, 132 S. Ct. 2455, the Court determined that mandatory life without parole for juveniles is unconstitutional in homicide cases.

But in Miller, the Court stopped short of categorically finding all life without parole sentences for juveniles unconstitutional. The Court observed that "given all we have said in Roper, Graham, and [Miller] about children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon." Id. at 2469. But the court left open the possibility of the "uncommon" sentence. Here, amici urge this Court to take one step beyond Miller and find as a categorical matter that all life without parole sentences for juveniles violate art. 26 of the Massachusetts Declaration of Rights. Such sentences should not just be "uncommon" in Massachusetts. They should be unconstitutional, and therefore, impossible.

In asking this Court to interpret art. 26 as affording broader rights than the Eighth Amendment, amici are not requesting anything unprecedented. This Court has long recognized that although "the U.S. Constitution sets a floor below which no state can go, the expectations with respect to liberty and privacy of those who authored the Massachusetts Constitution and the community that Constitution governs today require more." Robert J. Cordy, The Law of American State Constitution: Criminal Procedure and the Massachusetts Constitution, 45 New Eng. L. Rev. 815, 833 (2011) ("Cordy Article"). In fact, there has been "a line of Massachusetts cases decided over the past three decades that [has] parted ways with federal law jurisprudence and provided greater protections under state constitutional law." Roderick L. Ireland, Tomorrow's Issues in State Constitutional Law: How we do it in Massachusetts: An Overview of How the Massachusetts Supreme Judicial Court Has Interpreted its State Constitution to Address Contemporary Legal Issues, 38 Val. U. L. Rev. 405, 406 (2004) ("Ireland Overview"); see also infra at 8-12.

In fact, this Court has already interpreted art. 26 as affording greater protections than the Eighth Amendment. Specifically, in Watson, 381 Mass. At 666-67, this Court parted ways with the U.S. Supreme Court over the death penalty, finding that penalty unconstitutional under art. 26, notwithstanding its authorization under the Eighth Amendment. The Watson court categorically prohibited the death penalty in Massachusetts as "unacceptably cruel under contemporary standards of decency," and because the penalty would inevitably be applied with "unconstitutional arbitrariness and discrimination." Id. at 650. The Court noted that the "word 'unusual' [as used in art. 26] may suggest the need for an ongoing comparison of punishments meted out for comparable crimes in similar cultures," but it focused its analysis exclusively "on the constitutional prohibition of 'cruel' punishments." Id. at 661. The Court did not reach the issue of "whether the phrase 'cruel and unusual' [in the Eighth Amendment] and the phrase 'cruel or unusual' [in art. 26] have the same or a distinct meaning." Id. at 676 (Liacos, J., concurring).

Here, amici ask this Court to reach the issue and find that under art. 26 punishments may not be inflicted if they are either "cruel" or "unusual." As a matter of plain English, as well as this Court's precedents in other contexts, there is no question that the disjunctive "or" is distinct from the conjunctive "and." See infra, Argument § 2. And this linguistic distinction, without more, provides a "basis for the SJC to depart from analogous Supreme Court decisions." Ireland Overview at 412.

But even if this Court does not find that "or" as used in art. 26 creates a sharp distinction between "cruel" and "unusual," and finds instead that the two concepts are related and overlapping, amici maintain the Court should still find that the protective reach of art. 26 is broader than that of the Eighth Amendment. Under art. 26, each concept--"cruel" and "unusual"--is broader than its counterpart in the Eighth Amendment. Just as a punishment violates art. 26 if it is either "cruel" or "unusual," likewise it may be both "cruel" and "unusual" under art. 26 even though it is neither "cruel" nor "unusual" under the Eighth Amendment. In the case of JLWOP, the punishment is both "cruel" and "unusual" under art. 26.

Unusual: The touchstone of whether a practice is "unusual" within the meaning of art. 26 is whether or not it is in keeping with the "evolving standards of decency that mark the progress of a maturing society." Commonwealth v. O'Neal, 367 Mass. 440, 451 (1975) ("O'Neal I") (Wilkins, J., concurring) (citing Trop v. Dulles, 356 U.S. 86, 101 (1958)). As far as JLWOP is concerned, the world is no longer evolving. It has evolved. The United States stands alone as the only country in the world that locks up children under 18 for the rest of their lives without any opportunity for parole. Ours is not just the only country with a "similar culture," Watson, 381 Mass. at 661, but the only country period--that continues to permit JLWOP sentences. And even within the United States, there is an unmistakable trend toward abolishing the sentence. Massachusetts is on a fast track to becoming an outlier in an outlier country. See infra, Argument, § 3B and 3C.

Cruel: JLWOP sentences are unconstitutionally "cruel" in large measure for the same reasons this Court previously found the death penalty violative of art. 26. The penalty is out of keeping with contemporary standards of decency, and in the new post-Miller discretionary world it will inevitably be applied in an arbitrary, capricious, and discriminatory manner. In addition, the punishment is "cruel" because it is greater than necessary to serve the penological interests of sentencing, and it is disproportionate in light of the nature of children and the degree of harm it causes for society. See infra, Argument, § 4A-C.

There are reasons why, as a community, we hurt deeper and mourn harder for the death of a child. Life without parole sentences functionally take the lives of children before they have had a chance to change and grow into responsible adults. We as a society, and in particular we in Massachusetts, should be better than that. The cases now before this Court concerning JLWOP afford us the opportunity to do better. Just as "the death penalty brutalizes the State which condemns and kills its prisoners," Watson, 381 Mass. at 671, so too does the penalty of JLWOP. As Nelson Mandela once said, "there can be no keener revelation of a society's soul than the way in which it treats its children." See Speech at the Launch of the Mandela Children's Fund (May 8, 1995) (available at http://db.nelsonmandela.org/).

Massachusetts's practice of putting children in prison for the rest of their lives without any opportunity for parole betrays a disease in our state's soul. Amici ask this Court to effect a cure by taking one small step beyond Miller and categorically recognizing, once and for all, that here in Massachusetts under art. 26, children are different, that even those children who commit the most heinous offenses should have, if not an automatic second chance, at least a second look. Abolishing life without parole for juvenile offenders would accomplish that goal.

Summary of Argument

This argument advocates for the Massachusetts Supreme Judicial Court (SJC) to interpret Article 26 of the Massachusetts Declaration of Rights as prohibiting all life without parole (LWOP) sentences for juvenile offenders. This interpretation would go beyond the U.S. Supreme Court's decision in Miller v. Alabama, which left open the possibility of LWOP sentences for juveniles in certain circumstances.

The argument rests on three key points:

1. The distinctiveness of juvenile offenders: The SJC has long recognized that children are different from adults and possess a greater capacity for change. This recognition, along with the evolving standards of decency, necessitates a different approach to juvenile justice.

2. The broader scope of Article 26: The argument posits that Article 26 offers greater protection against cruel and unusual punishments than the Eighth Amendment. Specifically, the use of the disjunctive "or" in Article 26 suggests that a punishment can be considered cruel or unusual, even if it does not meet both criteria.

3. The cruelty and unusual nature of LWOP: LWOP sentences are argued to be both cruel and unusual under Article 26. They are cruel because they fail to account for the capacity for change in juveniles and are disproportionate to the offense. They are unusual because they are not in line with evolving standards of decency, with the United States being the only country that still permits LWOP sentences for juvenile offenders.

The argument concludes that abolishing LWOP for juveniles would demonstrate a commitment to rehabilitation and ensure that juvenile offenders have the opportunity for change and redemption.

Summary of Argument

This document argues that Massachusetts should abolish life without parole sentences for juvenile offenders. It focuses on the evolving standards of decency in the US and internationally, and the state constitution's potential for providing broader protections than the Eighth Amendment.

The United States is the only country in the world that allows juvenile offenders to be sentenced to life in prison without the possibility of parole (JLWOP). Massachusetts, despite its history of civil rights advocacy, is among the states that still permit this practice.

The Supreme Court, in recent cases like Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, has recognized the difference between adults and juveniles in the criminal justice system. The Court has stated that mandatory JLWOP sentences for juveniles are unconstitutional. However, it has left open the possibility for discretionary JLWOP sentences in certain cases.

This document argues that all JLWOP sentences for juveniles violate Article 26 of the Massachusetts Declaration of Rights, which prohibits "cruel or unusual" punishments. The authors argue that the Court should interpret Article 26 as providing broader protections than the Eighth Amendment and recognize that JLWOP sentences are both cruel and unusual.

The document presents evidence to support this argument:

• Unusual: JLWOP sentences are unusual because they are not in keeping with evolving standards of decency in society. The US is the only country in the world that permits this practice, and there is a growing trend within the US to abolish it.

• Cruel: JLWOP sentences are cruel because they are greater than necessary to serve penological interests and are disproportionate in light of the nature of children. These sentences functionally take the lives of children before they have had a chance to change and grow into responsible adults.

The document argues that abolishing JLWOP sentences would be a step toward a more just and humane criminal justice system. It calls on the Massachusetts Supreme Judicial Court to interpret Article 26 to provide greater protections for juvenile offenders.

Summary of Argument

Massachusetts should reconsider its policy of sentencing juvenile offenders to life in prison without the possibility of parole (JLWOP). This practice, unique to the United States, is cruel and unusual punishment for children.

The Supreme Court has ruled that the death penalty and life without parole for non-homicide crimes are unconstitutional for juvenile offenders. In a recent case, the Court ruled that mandatory life without parole for juveniles in homicide cases is also unconstitutional. While the Court did not categorically ban all life without parole sentences for juveniles, it acknowledged the possibility of exceptions.

This case presents an opportunity for the Massachusetts Supreme Judicial Court (SJC) to go beyond federal law and interpret the Massachusetts Declaration of Rights to offer broader protections for juveniles than the Eighth Amendment. The SJC has a history of upholding stronger protections for its citizens under the state constitution than the federal constitution.

The SJC previously ruled that the death penalty violates the Massachusetts Constitution because it is "cruel and unusual." The court could apply similar reasoning to JLWOP sentences.

• Unusual: The United States is the only country in the world that sentences children to life without parole.

• Cruel: This sentence is disproportionate to the crime and ignores the capacity of children to change and grow.

Sentencing children to life without parole is out of step with contemporary standards of decency and the evolving understanding of child development. The SJC should recognize the unique needs of juvenile offenders and prohibit this cruel and unusual punishment.

Summary of Argument

Massachusetts has a long history of protecting the rights of people, but it hasn't been fair to children who break the law.

The United States is the only country that keeps kids in prison for the rest of their lives without a chance to get out. Massachusetts is one of the few states that still does this. This is unfair and wrong.

The Supreme Court says kids are different from adults. They made rules about how kids can't be given the death penalty and they can't be kept in prison forever for crimes that don't involve killing someone.

Massachusetts should go a step further and say that keeping kids in prison for life is wrong no matter what they did. This would be better than what the Supreme Court said and would protect kids more.

It's not fair to keep kids in prison for the rest of their lives. They should have a chance to change and grow up. Massachusetts should make it so that no kids are kept in prison forever.