Summary of Argument
This case illustrates Yogi Berra’s wisdom in observing “it is hard to make predictions, especially about the future.” After a jury convicts a juvenile of murder, sentencers in most states must make an individualized determination about whether to sentence the defendant to life imprisonment without possibility of parole (LWOP) or some lesser sentence. An LWOP sentence denies the juvenile the chance to demonstrate growth and maturity, and alters his life with a forfeiture that is irrevocable. Graham v. Florida, 560 U.S. 48, 69, 73 (2010). But a juvenile murderer who is later released and repeats his crime produces the death of an innocent person. As with COVID-19, both over-confinement and under-confinement impose social costs.
Courts must therefore sort those who deserve a chance for release from those who warrant permanent confinement. This Court has described the former as juvenile offenders whose crimes reflect “transient immaturity” and the latter as those whose character reflects “irreparable corruption” or “irretrievable depravity.” Miller v. Alabama, 567 U.S. 460, 471, 479- 80 (2012). The imperative of preventing cruel and unusual punishment requires the former have an opportunity for release. The imperative of protecting human life requires the latter never again have the opportunity to prey upon the public.
The sentencer’s determination concerns a prediction about the future, but must turn on facts discernible in the present. Objective factors like the “character and record of the individual offender” and the “circumstances of the particular offense” rather than subjective ones have long informed the decision whether to impose a discretionary maximum sentence in both capital and noncapital proceedings. Woodson v. North Carolina, 428 U.S. 280, 302-05 (1976) (plurality opinion); Graham, 560 U.S. at 87 (Roberts, C.J., concurring); see also Solem v. Helm, 463 U.S. 277 (1983). These current, objective factors can and should govern the sentencing of juvenile murderers.
The decision in Miller v. Alabama, 567 U.S. 460 (2012) broke new ground as the first to diverge from the principle that “death is different.” Prior cases had applied special scrutiny when the penalty was death (Lockett v. Ohio, 438 U.S. 586 (1978); Woodson, 428 U.S. 280), or when the punishment was permanent (LWOP) but the crime did not inflict death. Graham, 560 U.S. 48; Solem, 463 U.S. 277. Miller was the first case to apply that scrutiny to a noncapital sentence punishing a capital crime. Nonetheless, the same factors, objectively discernible to the sentencer at the time of conviction, must govern the sentencing choice.
Miller had a prescriptive component, as it held the “Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Miller, 567 U.S. at 479. It had a predictive component: “[W]e think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Id, emphasis added. And there was a descriptive component, recalling the “great difficulty . . . of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’ Id. at 479-80, quoting Roper v. Simmons, 543 U.S. 551, 573 (2005).
This latter contrast did not compel sentencers to determine before imposing an LWOP sentence whether the defendant acted out of irreparable corruption, or “irretrievable depravity.” If it had, a jury, not a court, would need to make that determination. United States v. Haymond, 139 S. Ct. 2369, 2379 (2019). Furthermore, the contrasts between adults and juveniles concerning maturity, vulnerability, and character permanence involve differences of degree rather than kind. Roper concluded these general contrasts preclude categorizing juveniles among the worst offenders, who deserve death, but even if certain traits render adults more culpable generally, irretrievable depravity is not a prerequisite for imposing a death sentence on adult offenders. It is not necessary for an LWOP sentence for juveniles.
Most importantly, irretrievable depravity is not an intelligible standard for a sentencer, who can assess the present magnitude of depravity but not its future duration. Sentencing defendants based not on what they have done but on what the sentencer thinks they will do in the future inevitably entails speculation, which can implement unfair bias. Buck v. Davis, 137 S. Ct. 759, 776 (2017). When this Court first described the contrast between transient immaturity and irreparable corruption, it was to cite a contrast that even experts could not be expected to make. Roper, 543 U.S. at 573. Insofar as imprisonment seeks not to punish offenses but to reform offenders, as the 1931 Wickersham Commission observed, it is no more possible to predict when (or if) an offender will be released from prison than to predict when a medical patient will be released from a hospital. Ilene H. Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J. Crim. L. & Criminology 883, 893 n.62 (1990). Sentencers must therefore decide based on objective, current facts, not speculation about which defendants will mature and which will remain incorrigible forever.
The standard cannot be that anyone with any possibility of reform must receive an opportunity for parole, so that only juveniles certain to re-offend may receive an LWOP sentence; everyone poses a risk of less than one hundred percent but more than zero percent of future crime. This Court has not extended Atkins v. Virginia, 536 U.S. 304 (2002), to restrict LWOP sentences for mentally impaired murderers, because the same factors rendering them less culpable may also render them more dangerous in the future. Similarly, even if it is harsher punishment to permanently incarcerate a teenager than a senior citizen, it provides a greater incapacitative protection for society. Determining which juveniles should be exempt from LWOP, like determining which mentally incompetent offenders should be exempt from capital punishment, is a project for democratic self-governance rather than constitutional law. Kahler v. Kansas, 140 S. Ct. 1021, 1037 (2020).
States must act to prevent false positive findings (whereby offenders remain incarcerated even though they would not re-offend), and false negatives (whereby offenders are released from custody but do re-offend). The former can wrongly take the liberty of the guilty, whereas the latter can wrongly take the lives of the innocent. Because the Constitution entrusts the state to protect people’s safety in the face of uncertain danger, courts should not micromanage the decisions of elected officials in protecting human life. South Bay United Pentacostal Church v. Newsom, 140 S. Ct. 1613, 1613-14 (2020) (Roberts, C.J., concurring in denial for injunctive relief.)