INTRODUCTION

Qu’eed Batts was fourteen years old when he was sentenced to die in prison.¹ Batts was born to teenage parents and grew up in the foster care system, bouncing between more than ten foster homes and even a homeless shelter during his childhood.² As a child, Batts was exposed to physical and sexual violence.³ He had fragmented relation- ships with his mother, who neglected and abused him, and his father, who was in and out of jail.⁴ While in middle school, Batts met a teen- age member of the Bloods gang, who told Batts that the gang took care of each other like a family.⁵ Batts found this “enticing.”⁶ Soon after the gang initiated him, Batts’s academic performance declined and his relationship with his mother deteriorated.⁷ After staying out late one night, his mother hit him, and Batts left the next morning and never returned home or to school.⁸ A few days later, a senior gang member gave Batts a gun, and instructed him to “put work in” and kill two teenagers.⁹ Batts did as he was told, killing one victim and injuring another.¹⁰ According to his police statement and testimony at trial, Batts said that immediately after the shooting, he “regretted what he had done and was scared,” but “was afraid that if he did not comply” with the member’s demands, he would have been killed.¹¹

The trial court rejected both expert testimony that Batts could be rehabilitated by age twenty-one and Batts’s duress defense.¹² A jury convicted him of first-degree murder, which carried a then–mandatory sentence of life without the possibility of parole.¹³ Batts appealed.¹⁴ In the wake of Miller v. Alabama,¹⁵ the United States Supreme Court decision striking down mandatory juvenile life without parole (“JLWOP”) sentences,¹⁶ the Pennsylvania Supreme Court remanded Batts’s case to the superior court for a new sentencing hearing.¹⁷ At his resentencing, the judge heard conflicting expert testimony about Batts’s young age, traumatic childhood, neglectful family environ- ment, below-average IQ, and potential for rehabilitation, but found that the aggravating factors outweighed the mitigating factors.¹⁸ The judge reinstituted a JLWOP sentence and told the then-14-year-old, “[Y]ou committed a calculated, callous[,] and cold-blooded murder. You made yourself the judge, jury[,] and executioner of [the victim]. . . .”¹⁹

Qu’eed Batts is now 28 years old.²⁰ He has been sentenced twice²¹ since he was first convicted in 2007.²² He is still awaiting a third resen- tencing.²³ His case illustrates some of the challenges lower courts en- counter in administering the JLWOP standard set forth by the Court in Miller. Batts’s situation also demonstrates the toll exacted by the appeals and resentencing process on defendants, victims and their families, and the court system. The Court in Miller held that JLWOP was an unconstitutionally excessive punishment except for those “rare” juvenile defendants whose homicide crimes reflect not “tran- sient immaturity,” but rather “irreparable corruption.”²⁴ This standard has proven to be highly unworkable in practice.²⁵ The resulting confusion and inconsistency among trial courts heightens the risk of errone- ous and arbitrary deprivation of liberty for all eligible juvenile defendants.²⁶ This Note seeks to clarify Miller’s “permanently incorri- gible” standard by analyzing the Eighth and Sixth Amendment impli- cations that it triggers.

Part I describes the Court’s shift in juvenile sentencing beginning in the early 2000’s and leading up to the substantive rule announced in Miller. Part I also examines the scientific basis for the Court’s conclu- sion that youth should be treated differently from adults in sentencing. Part II analyzes why the Miller standard, as it currently exists, is not an adequate protection against the erroneous imposition of JLWOP under the Eighth Amendment. Part III provides a brief overview of the Court’s Sixth Amendment jurisprudence regarding the right to a jury. Part III also argues that JLWOP is the functional equivalent of an enhanced sentence, and thus triggers certain procedural require- ments under the Sixth Amendment. Part IV proposes a solution to the problems identified in Parts II and III. This solution imposes these Sixth Amendment procedures and also draws on the Pennsylvania Su- preme Court’s sentencing approach in Commonwealth v. Batts (“Batts II”).²⁷ Specifically, this solution would adopt a presumption against the administration of JLWOP and place the burden of rebutting the presumption on the state. The state may overcome this presumption only if the sentencing court formally submits to the jury the question of whether the defendant is permanently incorrigible, and the jury finds that the state has affirmatively proved this beyond a reasonable doubt.

I. A BRIEF HISTORY OF JUVENILE SENTENCING: THE EIGHTH AMENDMENT AND JUVENILE LIFE WITHOUT PAROLE

The Eighth Amendment prohibits the infliction of “cruel and un- usual punishments.”²⁸ One might think that what is “cruel” or “unu- sual” for adults surely differs for children. However, less than fifteen years ago, juvenile defendants were subject to the same punishments as adult defendants, which meant that certain juveniles were eligible to receive the death penalty.²⁹ When the Supreme Court in Roper v. Simmons³⁰ finally struck down the juvenile death penalty as violative of the Eighth Amendment, it noted, grimly, “[o]ur determination . . . finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”³¹ Roper signaled the start of a change in juve- nile sentencing for the Court. Seven years later, in Miller v. Alabama,³² the Court struck down mandatory JLWOP and held, definitively, “children are constitutionally different from adults for purposes of sentencing,” rooting this finding in adolescent neuros- cience research.³³ This Part explores why, as a matter of law and science, juveniles are entitled to a lower Eighth Amendment punishment threshold than adults.

A. Cruel and Unusual Punishment for Juveniles: The Miller Trilogy

Recognizing that juveniles are fundamentally different from adults is significant in the criminal justice system because it dictates the procedures used to adjudicate guilt,³⁴ as well as the available pun- ishments.³⁵ With the creation of juvenile court in 1899, most juvenile defendants were removed from the adult criminal justice and correc- tions systems.³⁶ At first, “juvenile court emphasized treatment, super- vision, and control rather than punishment,” and lacked the formal procedures of the adult criminal justice system that were intended to act as safeguards against the prosecution and the court itself.³⁷ This changed in 1967 when the Supreme Court held that judicial paternal- ism and “discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure,” and found that juveniles were entitled to, at minimum, the same procedural safeguards as adults.³⁸

Nearly forty years later, the Court again showed interest in juve- nile justice and decided a series of cases—the Miller trilogy—that vastly changed the sentencing landscape for juvenile defendants by establishing that juveniles are constitutionally different from adults.³⁹ In 2005, the Supreme Court held in Roper v. Simmons⁴⁰ that imposi- tion of the death penalty on juvenile defendants violated the Eighth Amendment’s prohibition of cruel and unusual punishment.⁴¹ In 2010, the Court held in Graham v. Florida⁴² that imposition of JLWOP for juveniles convicted of nonhomicide crimes violated the Eighth Amendment.⁴³ Finally, in 2012, the Court in Miller v. Alabama⁴⁴ found that mandatory imposition of JLWOP for homicide offenders violated the Eighth Amendment.⁴⁵ The Court in Miller reasoned that the sen- tencer “must have the opportunity to consider mitigating circum- stances before imposing the harshest possible penalty for juveniles.”⁴⁶ The Court further reasoned that the imposition of mandatory JLWOP “preclude[d] consideration of [a juvenile’s] chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences.”⁴⁷ Post-Miller, only after this consideration of youth and its mitigating attendant qualities could a defendant be sentenced to JLWOP.⁴⁸ Thus, discretionary JLWOP cur- rently serves as the harshest possible penalty for juvenile defendants.⁴⁹

The Court qualified that JLWOP should be an “uncommon” sen- tence and reserved only for “the rare juvenile offender whose crime reflects irreparable corruption.”⁵⁰ The Court failed to define what it meant by “irreparable corruption.”⁵¹ A few years later, the Court in Montgomery v. Louisiana⁵² clarified that Miller had retroactive effect because it set forth the substantive constitutional rule that mandatory JLWOP violated the Eighth Amendment and that JLWOP is a discre- tionary sentence reserved only for juvenile offenders who are “perma- nently incorrigible.”⁵³ This meant that all juveniles who had received mandatory JLWOP sentences pre-Miller were entitled to resentenc- ing.⁵⁴ Again, the Court neglected to provide a definition for “perma- nently incorrigible,” but in Montgomery appeared to treat the vague terms “irreparable corruption” and “permanent incorrigibility” as interchangeable.⁵⁵

In Montgomery, the state argued that Miller could not “have made a constitutional distinction between children whose crimes reflect transient immaturity and those whose crimes reflect irreparable corruption because Miller did not require trial courts to make a find- ing of fact regarding a child’s incorrigibility.”⁵⁶ The Court responded that, although Miller did not impose a formal factfinding requirement on trial courts as a matter of procedure, it provided a substantive “guarantee”—that only juvenile defendants whose crimes reflected permanent incorrigibility could receive JLWOP.⁵⁷ The Court justified its decision to not impose a formal factfinding requirement as an at- tempt to “limit the scope of any attendant procedural requirement to avoid intruding more than necessary upon the States’ sovereign ad- ministration of their criminal justice systems.”⁵⁸ Thus, the Court’s de- cision to not impose a procedural requirement reflected its desire to respect the states’ institutional independence, not any unwillingness to create a substantive right for juvenile defendants convicted of homicide offenses.

Although the Miller trilogy pushed juvenile justice toward the progressive end of the sentencing spectrum, certain juvenile defend- ants convicted of homicide crimes may still receive a JLWOP sen- tence, if sought by the prosecution and administered at the sentencer’s discretion.⁵⁹ However, JLWOP remains unconstitutionally excessive for all juveniles except those who are “permanent[ly] incorrigibl[e],” that is, “irreparabl[y] corrupt[].”⁶⁰

B. The Neuroscience Behind the Court’s Shift

That “children are constitutionally different from adults for pur- poses of sentencing”⁶¹—an idea first established in Roper⁶² and Graham,⁶³ and advocated by Justice Elena Kagan in her Miller opinion⁶⁴—marks a change brought about by shifting societal attitudes and developments in scientific research of the adolescent brain.⁶⁵ The Court in Miller enumerates three main reasons for this conclusion, based on “common sense” and “science and social science.”⁶⁶ First, children are immature and have an “underdeveloped sense of respon- sibility.”⁶⁷ Second, children are more susceptible to “‘negative influ- ences and outside pressures,’ including from their family and peers.”⁶⁸ And third, “a child’s character is not as ‘well formed’ as an adult’s,”⁶⁹ that is, since a child’s personality will change with age, her actions are “less likely to be evidence of irretrievabl[e] deprav[ity].”⁷⁰ At any rate, the Court makes clear in Roper, Graham, and Miller that youth and its attendant circumstances are highly relevant in determining whether JLWOP is an appropriate sentence for a juvenile defendant.⁷¹

Scientific and social scientific research on the adolescent brain soundly supports the Court’s finding that children should be treated differently from adults under the Constitution. MRI technology has given way to brain mapping studies that demonstrate the differences in the development of the prefrontal cortex in youth as compared with adults.⁷² The prefrontal cortex is responsible for a range of cognitive functions, including “self-control, rational decision making, problem solving, organization, and planning,”⁷³ and “regulating aggression, long-range planning, mental flexibility, abstract thinking . . . [and] moral judgment.”⁷⁴ The prefrontal cortex continues to develop into a person’s early twenties, which makes youth less able than adults to make rational decisions based on an appreciation of the potential con- sequences of their actions.⁷⁵

Another important area examined in brain mapping studies is the amygdala.⁷⁶ The amygdala functions to analyze emotion and is central in detecting danger and generating the fear response—“fight or flight.”⁷⁷ When recognizing and interpreting others’ facial expressions, research has found that while adults rely primarily on the frontal lobe, which is involved in “planning, goal-directed behavior, judgment, [and] insight,” youth rely more heavily on the amygdala, which is the emotional center or the “gut response region” of the brain.⁷⁸ This neu- rological difference in perception of emotion and danger makes youth more likely than adults to act impulsively in certain situations, espe- cially when those situations are emotionally charged or dangerous.⁷⁹

While citing neuroscience to explain the differences between ado- lescent and adult brain development is useful in creating policy, it is difficult to apply these differences in individualized instances, such as at sentencing hearings.⁸⁰ Considering Miller and Montgomery’s con- clusion that children are constitutionally different from adults, how can a court best determine the ways in which individual juvenile de- fendants differ from each other such that it can separate out the per- manently incorrigible from the non–permanently incorrigible defendants?⁸¹

II. THE MILLER STANDARD IS INADEQUATE UNDER THE EIGHTH AMENDMENT AT LIMITING JLWOP TO ONLY PERMANENTLY INCORRIGIBLE JUVENILE DEFENDANTS

Although Miller can be narrowly read as striking down mandatory JLWOP sentences, its holding should be read more broadly as setting forth certain sentencing requirements for juvenile defendants convicted of homicide offenses who are exposed to discre- tionary JLWOP sentences.⁸² The Supreme Court held that while a sen- tencer is not foreclosed from imposing JLWOP on “permanently incorrigible” juvenile defendants, it must take into account “children’s diminished culpability and heightened capacity for change” before meting out that sentence.⁸³ Unfortunately, the Supreme Court did not make clear how the sentencer should go about making the “perma- nent incorrigibility” determination or who the sentencer should be.⁸⁴ Miller and its progeny offer little guidance to lower courts, and trial judges have struggled during sentencing to identify and weigh mitigat- ing factors to determine whether a defendant’s crime reflected “tran- sient immaturity” or “permanent incorrigibility.”⁸⁵ This lack of guidance is problematic because it increases the risk of similarly situ- ated defendants receiving different sentences and non–“permanently incorrigible” juveniles erroneously receiving JLWOP sentences.⁸⁶

The inadequacies of the JLWOP standard articulated in Miller stem from a lack of substantive and procedural clarity.⁸⁷ The Millerstandard’s lack of substantive clarity largely stems from the Court’s failure to provide definitions for “permanent incorrigibility” or “irrep- arable corruption.” The lack of procedural clarity, including confusion over exactly who should make the determination of “permanent in- corrigibility,” raises concerns under the Sixth Amendment, and is discussed in Part III.⁸⁸ This Part explains the Miller standard’s substantive deficiencies under the Eighth Amendment.

The Miller standard purports to draw a line between juvenile de- fendants whose crimes reflect “transient immaturity” and juvenile de- fendants whose crimes reflect “irreparable corruption.”⁸⁹ However, the Court did a poor job of explaining why this standard is appropri- ate for determining which juveniles should receive JLWOP.⁹⁰

Throughout the Miller opinion, the Court muses that youth “di- minish[es] the penological justifications”⁹¹ for JLWOP because juveniles are less blameworthy and have a higher capacity for change, and that youth is “inconsistent” with incorrigibility.⁹² Declaring that youth is inconsistent with incorrigibility, the Court in the same breath announced a standard under which the sentencer must take youth into account when determining whether a juvenile defendant is perma- nently incorrigible.⁹³ The irreconcilability of the Miller Court’s state- ments on youth and its standard only serves to further confuse application of the Miller standard.

The Court’s subsequent opinion in Montgomery provides a more robust version of the Miller standard: that JLWOP is barred for all juvenile defendants except for “the rarest of juvenile offenders” who have committed homicide, whose crimes reflect “permanent incorrigi- bility” or “irreparable corruption,”⁹⁴ and for whom “rehabilitation is impossible."⁹⁵ However, the Court failed to define or further explain these terms in either Miller or Montgomery.⁹⁶

In an attempt to aid the “permanent incorrigibility” determina- tion, the Court in Miller set forth what appears to be an illustrative but nonexhaustive list of mitigating factors that the sentencer should consider in determining whether a defendant meets the JLWOP stan- dard, including: (1) the juvenile’s “age and its hallmark features,” (2) the juvenile’s “family and home environment,” (3) the “circum- stances” and “extent of [the juvenile’s] participation” in the homicide offense, (4) the influence of “familial and peer pressure[]” on the ju- venile, (5) any “incompetencies associated with youth,” such as the inability to deal with law enforcement and the prosecution or to assist her own attorney, and (6) the juvenile’s potential for rehabilitation.⁹⁷ However, all of the factors are vague, and certain factors could be framed in practice as either mitigating or aggravating.⁹⁸

Furthermore, the Court does not give any guidance as to whether certain factors should be weighted more heavily than others, or how the factors relate to each other in the analysis.⁹⁹ The Court merely advises the sentencer to “consider mitigating circumstances” and to “take into account how children are different, and how those differ- ences counsel against” a JLWOP sentence.¹⁰⁰

Lower courts struggle with distinguishing between juveniles who are “permanently incorrigible” and juveniles who are not.¹⁰¹ Although judges in individual sentencing hearings seem more than capable of identifying the presence or absence of the mitigating factors listed in Miller, a number of lower courts’ sentencing processes lack any indicia of a meaningful balancing process beyond this initial identification.¹⁰² The Miller factors do not exist in a vacuum separate from one an- other, and the evaluation is not effective if a judge merely runs through the list of factors as they apply to the defendant and ulti- mately determines that they “affirmatively considered all the relevant factors at play”¹⁰³ or “took full account”¹⁰⁴ of the defendant’s youth. Given the substantive nature of the Miller rule and the high liberty interest dependent on the outcome of this evaluation, whether a juve- nile defendant receives JLWOP should not hinge on a sentencing pro- cess that is wildly inconsistent from court to court.¹⁰⁵

III. THE MILLER STANDARD HAS THE UNINTENDED CONSEQUENCE OF TRIGGERING PROCEDURAL PROBLEMS UNDER THE SIXTH AMENDMENT

In addition to the lack of substantive clarity, the Miller standard also raises procedural concerns. Although courts typically analyze criminal punishment under the Eighth Amendment’s proscription of “cruel and unusual punishment[],”¹⁰⁶ issues related to sentencing may also implicate the Sixth Amendment’s jury requirement.¹⁰⁷ In theory, the Sixth Amendment should apply evenly to adult and juvenile de- fendants, though this is currently not the case in practice: the harshest available sentence—the constitutional maximum or Eighth Amend- ment “punishment ceiling”¹⁰⁸—for children and adults is JLWOP109 and the death penalty,¹¹⁰ respectively. However, for an adult facing the death penalty, the Sixth Amendment requires that every fact con- tributing to her potential death penalty sentence be submitted to a jury and found beyond a reasonable doubt.¹¹¹ There is no such re- quirement for juveniles who are exposed to JLWOP.¹¹² This Part pro- vides an overview of the Supreme Court’s Sixth Amendment jurisprudence regarding the right to a jury and analyzes why the Sixth Amendment—separate from Miller—necessitates more formal factfinding procedures for juveniles facing JLWOP, just as it currently does for adults facing the death penalty.

A. The Sixth Amendment Jury Right: Apprendi and its Progeny

The Court has held that the Fourteenth Amendment right to due process¹¹³ and the Sixth Amendment right to a jury trial,¹¹⁴ taken to- gether, “indisputably entitle a criminal defendant to ‘a jury determina- tion that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’”¹¹⁵ In deciding the following cases, the Court extended this jury right to the Eighth Amendment punishment ceiling for adults by holding that all facts that make a de- fendant eligible to receive the death penalty “must be submitted to a jury, and proved beyond a reasonable doubt.”¹¹⁶

In Apprendi v. New Jersey,¹¹⁷ the Court considered the conviction of a man charged under two separate statutes for firing a gun into the home of an African-American family living in a predominantly white neighborhood.¹¹⁸ The first statute imposed a sentence of imprison- ment between five and ten years for second-degree possession of a firearm for an unlawful purpose.¹¹⁹ A separate statute provided for an “extended term of imprisonment” of ten to twenty years, conditioned on the trial judge’s finding that the defendant’s conduct also consti- tuted a hate crime.¹²⁰ The trial court characterized this additional find-ing as a “sentencing factor,”¹²¹ or “a fact that [i]s not found by a jury but that could affect the sentence imposed by the judge.”¹²² The trial court concluded that because this finding was a sentencing factor and not an “element” of the offense, a judicial finding was permissible be- cause defendants have no Sixth Amendment right to have sentencing factors decided by a jury.¹²³

The Supreme Court rejected this view, holding that a sentencing factor that enhanced the statutory sentence, or “expose[d] the defen- dant to a greater punishment than that authorized by the jury’s guilty verdict” for a crime was functionally equivalent to an element of that crime.¹²⁴ Here, the hate crime statute’s extended term of imprison- ment was an enhanced sentence because its imposition was condi- tioned on a finding by the trial judge that was separate from the jury’s verdict.¹²⁵ The Court held that such enhanced sentences trigger the Sixth Amendment, and therefore, a jury must find the factual determi- nation that authorizes the imposition of any enhanced sentence be- yond a reasonable doubt.¹²⁶

The Supreme Court extended this enhanced sentence framework to the death penalty in Ring v. Arizona.¹²⁷ In Ring, the defendant was convicted of first-degree murder and faced a maximum penalty of death with a possible lesser sentence of life imprisonment.¹²⁸ How- ever, the statute only allowed imposition of the death penalty if the trial judge, after conducting a sentencing hearing to consider aggravat- ing and mitigating factors, made a finding that there was at least one aggravating factor and no “sufficiently substantial” mitigating fac- tors.¹²⁹ Here, the judge found two aggravating factors and one mitigating factor, and sentenced the defendant to death.¹³⁰ On appeal, the state asserted that the judge sentenced the defendant within the “range of punishment authorized by the jury verdict,” but the Court rejected this argument.¹³¹ The Court reasoned that, in effect, the re- quired statutory finding of aggravating and mitigating factors exposed the defendant “to a greater punishment than that authorized by the jury’s guilty verdict.”¹³² Thus, in Ring, the statutory maximum author- ized by the jury verdict alone was life imprisonment, not the death penalty.¹³³ The Court clarified in a later opinion that the statutory maximum refers not to “the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose with- out any additional findings.”¹³⁴ Therefore, because the aggravating factors operate as the “functional equivalent of an element of a greater offense,” the Sixth Amendment mandates that a jury find these factors beyond a reasonable doubt.¹³⁵ In short, the rule estab- lished by Apprendi and Ring bars a sentencing judge, “sitting alone”¹³⁶ and without submitting the determination to the jury, from making a judicial finding that exposes a defendant to an enhanced sentence above the statutory maximum.¹³⁷

B. JLWOP Is an Enhanced Sentence Under the Sixth Amendment

Analyzing the Miller standard within a Sixth Amendment frame- work reveals that JLWOP functions as an enhanced sentence because it is unlocked by a factual finding of “permanent incorrigibility” and provides for a term of imprisonment beyond the statutory maximum for a homicide offense by a juvenile (life with the possibility of parole or a term-of-years sentence). Because JLWOP functions as an en- hanced sentence, it is subject to the Sixth Amendment requirement that a jury, not a judge, determine its requisite finding of “permanent incorrigibility” beyond a reasonable doubt.¹³⁸

JLWOP functions as an enhanced sentence because it imposes a punishment beyond the statutory maximum authorized by a guilty jury verdict alone.¹³⁹ Miller held that JLWOP is only constitutionally permissible for a juvenile defendant (1) who has been convicted of a homicide offense and (2) whose crime reflects “permanent incorrigi- bility.”¹⁴⁰ Miller struck down mandatory JLWOP, but left discretionary JLWOP intact.¹⁴¹ Therefore, whenever a juvenile is convicted of a homicide offense there will always be a sentencing option available that is less severe than JLWOP.¹⁴² This less severe option is the statu- tory maximum, likely, life with parole or a term-of-years sentence.¹⁴³ Therefore, “permanent incorrigibility” functions as “an element of a greater offense”¹⁴⁴ because it exposes juvenile homicide offenders to JLWOP when they would otherwise be exposed to a less severe statu- tory maximum.

Some scholars have argued in favor of treating an “Eighth Amendment punishment ceiling [a]s equivalent to a statutory or guideline ceiling for Sixth Amendment purposes.”¹⁴⁵ That is, when the Court deems a sentence to be the most severe penalty allowable under the Eighth Amendment, it triggers the Sixth Amendment requirement that a jury find certain facts beyond a reasonable doubt before a de- fendant can be exposed to that sentence.¹⁴⁶ For juvenile defendants convicted of homicide, the Eighth Amendment punishment ceiling, or the “harshest possible penalty,”¹⁴⁷ is JLWOP. After Miller, not all ju- venile defendants convicted of homicide are automatically eligible for JLWOP; only those who are “permanently incorrigible” are eligible.¹⁴⁸ Therefore, if JLWOP functions as both an Eighth Amendment punish- ment ceiling and a Sixth Amendment statutory ceiling, “permanent incorrigibility” serves as a “functional equivalent of an element of a greater offense.”¹⁴⁹ A jury should be required to make this finding beyond a reasonable doubt before an individual juvenile defendant can be sentenced to JLWOP.¹⁵⁰ At minimum, JLWOP can also be characterized as an “‘extended term’ of imprisonment,” analogous to the term-of-years penalty deemed an enhanced sentence by the Court in Apprendi.¹⁵¹ The Court in Graham acknowledged the particular se- verity of JLWOP sentences, noting, “[l]ife without parole is an espe- cially harsh punishment for a juvenile. . . . [A] juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender.”¹⁵²

Furthermore, the Supreme Court, by consistently analogizing JLWOP to the death penalty, has strengthened the argument that JLWOP should be treated as an enhanced sentence.¹⁵³ In Graham, five years after the Court struck down the juvenile death penalty,¹⁵⁴ the Court noted that the death penalty shares characteristics with JLWOP “that are shared by no other sentences.”¹⁵⁵ The Court continued:

The State does not execute the offender sentenced to life without parole, but the sentence alters the offender’s life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency—the remote possibility of which does not mitigate the harshness of the sentence.¹⁵⁶

In Miller, the Court cited positively Graham’s death penalty and JLWOP analogy, and it affirmed that the “confluence” of the Court’s death penalty precedent¹⁵⁷ led to the conclusion that JLWOP was dis- proportionately severe¹⁵⁸ for juveniles who are not convicted of homi- cide offenses and are not “permanently incorrigible.”¹⁵⁹ Indeed, the Court’s description of JLWOP as an “uncommon”¹⁶⁰ sentence that is appropriate only in “exceptional circumstances,”¹⁶¹ and imposable only on certain “rare juvenile offender[s]”162 for whom “rehabilitation is impossible”¹⁶³ seems to echo the Court’s similarly caveated descrip- tion of the death penalty in Gregg v. Georgia¹⁶⁴ as “an extreme sanc- tion, suitable to the most extreme of crimes.”¹⁶⁵

Considering the intersection of Apprendi-Sixth Amendment doctrine and Miller-Eighth Amendment doctrine, JLWOP should be treated as an enhanced sentence that triggers certain procedural re- quirements under the Sixth Amendment. Specifically, whether a juve- nile can receive JLWOP turns on whether she is “permanently incorrigible.”¹⁶⁶ This question should be determined by a jury, not a judge, and any affirmative finding should be made beyond a reasona- ble doubt.

IV. LIMITING THE IMPOSITION OF JLWOP: A SOLUTION UNDER THE SIXTH AND EIGHTH AMENDMENTS

The solution proposed in this Part seeks to work around the Miller standard’s main issue: lack of a formal factfinding require- ment.¹⁶⁷ The conclusion that the Sixth Amendment requires a jury finding of “permanent incorrigibility” before JLWOP may be imposed by the sentencing court partially cures this deficiency. Imposing a pre- sumption against JLWOP and placing the burden of proof of establish-ing “permanent incorrigibility” on the state, procedural tools that were used by the Pennsylvania Supreme Court in Batts II,¹⁶⁸ can also help cure this deficiency. This solution would better effectuate the Court’s assertion in Miller that JLWOP should be an “uncommon” sentence reserved only for “rare” juvenile defendants for three rea- sons.¹⁶⁹ First, a presumption against JLWOP puts the burden of proof on the state to convince the jury beyond a reasonable doubt that the defendant is “permanently incorrigible.”¹⁷⁰ Second, although the Court in Miller refers to the “sentencer” repeatedly throughout its opinion, it does not expressly specify whether the sentencer, that is, the authority responsible for determining “permanent incorrigibility,” should be the judge or the jury.¹⁷¹ Lower courts disagree on who the sentencer is.¹⁷² This Note proposes that we look to the Sixth Amend- ment for a definitive answer to this question: that a jury should make a finding of fact to impose this sentence.¹⁷³ Third, uniformly imposing a formal factfinding requirement logically extends Miller because it forces a meaningful, searching consideration of mitigating factors in determining whether an individual defendant is “permanently incorri- gible” and, thus, eligible to receive JLWOP.

A. A Presumption Against JLWOP: Returning to Batts II

When Qu’eed Batts’s case arrived in front of the Pennsylvania Supreme Court for the second time,¹⁷⁴ the court was tasked with de- ciding how to sentence juvenile defendants facing discretionary JLWOP post-Miller.¹⁷⁵ Ultimately, the court in Batts II adopted sev- eral procedural safeguards, including a presumption against JLWOP and a burden on the state to prove eligibility for JLWOP beyond a reasonable doubt.¹⁷⁶ A presumption arises “if a fact constitutes ‘a con-clusion firmly based upon the generally known results of wide human experience,’”¹⁷⁷ and is “mandatory and requires the factfinder to find the existence of an ‘elemental’ or ‘ultimate’ fact based on proof of a ‘basic’ or ‘evidentiary’ fact.”¹⁷⁸ In deciding whether a presumption against JLWOP applied, the court determined that proof of the basic fact—that Batts was a juvenile when he committed the crime—neces- sarily proved the ultimate fact—that Batts was capable of rehabilita- tion, and therefore, his crime was a result of transient immaturity.¹⁷⁹ The court reasoned that there was “no doubt” under Supreme Court precedent that the ultimate fact was connected to the basic fact, and it held that the discretion expressly granted by Montgomery allowed it to create the presumption against JLWOP.¹⁸⁰

This presumption against JLWOP would apply in all future cases and could only be rebutted if the state proved “that the juvenile [was] removed from this generally recognized class of potentially rehabilitable offenders.”¹⁸¹ The court held that the prosecution had the burden of proof, squarely rejecting the state’s argument that the burden of disproving “permanent incorrigibility” lay with the defendant.¹⁸² That argument, the court determined, was “belied by the cen- tral premise of Roper, Graham, Miller[,] and Montgomery––that as a matter of law, juveniles are categorically less culpable than adults.”¹⁸³ The court concluded that proof beyond a reasonable doubt, “a criminal standard [that] carries the highest evidentiary burden,” was the appropriate standard of proof necessary to satisfy due process.¹⁸⁴ The court also pointed to what it felt was “definitive” language in Mont- gomery, which stated that JLWOP is an unconstitutionally dispropor- tionate sentence for a juvenile defendant unless that defendant “exhibits such irretrievable depravity that rehabilitation is impossi- ble.”¹⁸⁵ Batts II illustrates that a presumption against JLWOP is both a realistic procedural solution and justifiable as a sound interpretation of the Supreme Court’s language in Miller and Montgomery.¹⁸⁶

B. Proposed Solution: Putting It All Together

Courts should follow the Pennsylvania Supreme Court’s lead in Batts II and recognize a presumption against JLWOP. The language in Miller and Montgomery signals the Supreme Court’s intent that JLWOP be an “uncommon”¹⁸⁷ sentence, to be imposed only in “ex- ceptional circumstances,”¹⁸⁸ upon “rare”¹⁸⁹ juvenile defendants who show that rehabilitation is “impossible.”¹⁹⁰ The adolescent brain is not as developed as the adult brain, which means that children have less moral culpability for their bad acts and have a higher capacity for pos- itive change in their character and judgment.¹⁹¹ This suggests that the ultimate fact—that the defendant is capable of rehabilitation and the crime was a result of transient immaturity—rests upon proof of the basic fact—that the defendant is a child. A presumption against JLWOP would not only raise the procedural bar for its imposition, but would also, hopefully, deter prosecutors from seeking JLWOP unless they believed that the defendant was genuinely “permanently incorri- gible” and deserving of the sentence. Ultimately, a presumption would lower JLWOP’s rate of imposition, giving greater practical effect to the Court’s assertion in Miller that it should be an “uncommon” sentence.¹⁹²

In a departure from the Pennsylvania Supreme Court,¹⁹³ this Note proposes that this presumption may only be rebutted by a formal finding by a jury that the defendant is permanently incorrigible. This factfinding requirement does not stem from Miller or Montgomery, but from the Supreme Court’s Sixth Amendment jurisprudence, which requires that a jury find any fact that exposes the defendant to an enhanced sentence beyond a reasonable doubt.¹⁹⁴ Because JLWOP functions as an enhanced sentence, a jury accordingly must find be- yond a reasonable doubt that the defendant is permanently incorrigible.¹⁹⁵

In determining the substantive question of “permanent incorrigi- bility,” the jury should first consider the mitigating factors suggested by the Court in Miller, as well as any other characteristics unique to the individual defendant.¹⁹⁶ Although the Miller factors are a good starting point, more psychological research is needed about the proba- tive value of these factors in accurately determining the “permanent incorrigibility” of a defendant.¹⁹⁷ One particular concern of the author is a jury characterizing a child’s “family and home environment”¹⁹⁸ as having too strong of a bearing on her “possibility of rehabilitation,”¹⁹⁹ especially if she has experienced neglect or abuse. Just because a child lacks an objectively conventional or stable family unit does not mean she necessarily has a lower capacity for rehabilitation. Future research should focus on any unintended disproportionate effects that these factors may have, especially on those children who come from certain socioeconomic, racial, or ethnic backgrounds; for example, juveniles of color already face higher rates of incarceration than white juveniles,²⁰⁰ and courts should take all measures possible to prevent implementing practices that exacerbate this disparity. Although all of these concerns are beyond the scope of this Note, they emphasize the need for further research in the area of juvenile sentencing. Even con- sidering the shortcomings in understanding how the substantive Miller factors play out, the procedural solution that this Note poses is not only a step in the right direction, but is also a logical and much-needed extension of the Miller standard.

C. Imposing a Formal Factfinding Requirement: Why Uniformity Aligns with Miller

The Court in Montgomery conceded that a formal finding of per- manent incorrigibility is “not required” by Miller.²⁰¹ Many lower courts cite this holding, seemingly, as justification for perfunctory con- sideration of the mitigating factors offered by the defendant.²⁰² That is, because Miller and Montgomery impose no formal factfinding obli- gation on the sentencing court to find that the defendant is perma- nently incorrigible, a court may defend its imposition of a JLWOP sentence by simply stating that the aggravating factors or overall hei- nousness of the crime outweigh any mitigating factors.²⁰³ However, the Court in Montgomery also explained, “[t]hat Miller did not impose a formal factfinding requirement does not leave States free to sen- tence a child whose crime reflects transient immaturity to life without parole.”²⁰⁴ The premise that Miller does not require a finding of per- manent incorrigibility before imposition of JLWOP seems irreconcila- ble with Miller’s ultimate holding that JLWOP is unconstitutional for those defendants who are not permanently incorrigible. Examining Miller through a Sixth Amendment framework resolves this conflict.

Because the Court in Montgomery refrained from imposing a procedural factfinding requirement on state courts out of respect for the independence of the states in fashioning their criminal justice sys- tems,²⁰⁵ one could critique this proposal by arguing that it violates the constitutional principle of federalism. However, the confusion result- ing from the Miller standard counsels in favor of a uniform procedural approach over rigid adherence to states retaining control over proce- dural specifics. First, lack of clarity may result in similarly situated de- fendants receiving different sentences²⁰⁶ or non–permanently incorrigible defendants erroneously receiving JLWOP.²⁰⁷ Administra- tion of criminal justice should strive for more, not less, consistency. Second, absence of a formal factfinding requirement lowers the procedural bar and, theoretically, makes it easier for prosecutors to seek and obtain JLWOP as a sentence.²⁰⁸ This is troubling given the Miller Court’s assertion that JLWOP should be an “uncommon” sentence re- served only for “rare” juvenile defendants who commit the most hei- nous crimes.²⁰⁹ Finally, given that a life sentence is not quantifiable like a term-of-years sentence, JLWOP is arguably a harsher sentence for juveniles simply because the remaining lifespan of a child is most likely longer than that of an adult; this means that a juvenile defen- dant will serve more years and more of her life in prison than an adult defendant.²¹⁰ The Supreme Court in Graham acknowledged the grav- ity and consequences of a JLWOP sentence. The Court stated:

Terrance Graham’s [life without parole] sentence guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not repre- sentative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes. The State has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a . . . crime that he committed while he was a child in the eyes of the law.²¹¹

Permanent deprivation of liberty, especially when effected from a young age, has profound physical, emotional, and psychological consequences on a child and should not be imposed lightly or arbitrarily.²¹² It is cruel and unusual to impose JLWOP on juvenile defendants with- out regard for the Court’s intent in Miller. It is cruel and unusual to impose JLWOP without consistent procedures that include a searching and meaningful consideration of the facts particular to the individual defendant. And it is cruel and unusual to impose JLWOP before a jury finds “permanent incorrigibility” beyond a reasonable doubt. This Note’s proposed solution seeks to remedy that cruelty.

CONCLUSION

Qu’eed Batts committed a terrible crime that resulted in the death of another teenager. His youth does not excuse that fact. Batts has been incarcerated for fourteen years, which means that he has spent half his life behind bars.²¹³ Despite multiple judges finding him “permanently incorrigible,” since being incarcerated, Batts has ex- pressed remorse for his crime and shown objective signs of rehabilita- tion.²¹⁴ This supports the premise that children are different from adults, both in their lack of neurological development that contributes to underappreciation of wrongful actions, and in their capacity to rec- ognize and learn from these wrongful actions.²¹⁵ Sentencing juveniles to life in prison without the possibility of parole causes more harm than just constraining their opportunities for rehabilitation; it com- municates, “unequivocally[,] that their lives are worthless, they are be- yond repair or redemption, and any effort they may make to improve themselves is essentially futile.”²¹⁶

The Court held that juveniles could be sentenced to die in prison if they were determined to be permanently incorrigible.²¹⁷ In giving effect to this substantive rule, courts are also bound by the mandates of the Sixth Amendment, which requires formal factfinding by a jury beyond a reasonable doubt.²¹⁸ A solution that sits at the intersection of both the Eighth and Sixth Amendments not only increases clarity in lower court administration of the Miller standard, but also ensures that juvenile defendants receive their constitutionally guaranteed pro- cedural safeguards. The Court struck down mandatory JLWOP as an unconstitutionally cruel and unusual punishment for juveniles, but dis- cretionary JLWOP lives on.²¹⁹ It is a sentencing court’s duty to ensure that non–“permanently incorrigible” juveniles do not get swept up in the sentence, doomed to live and die in prison.

Summary

Qu’eed Batts’s case, where he was sentenced to life without parole at age 14, highlights the challenges in applying the Miller v. Alabama standard for juvenile life without parole (JLWOP). This standard, while prohibiting mandatory JLWOP, allows for discretionary JLWOP for “rare” juvenile offenders demonstrating “irreparable corruption.” This Note examines the inadequacies of this standard, arguing that it lacks substantive and procedural clarity, potentially leading to arbitrary and erroneous sentencing.

I. A BRIEF HISTORY OF JUVENILE SENTENCING: THE EIGHTH AMENDMENT AND JUVENILE LIFE WITHOUT PAROLE

The Eighth Amendment prohibits cruel and unusual punishment, a standard that differs for juveniles due to their developmental differences. While historically juveniles faced the same punishments as adults, the Roper v. Simmons case struck down the juvenile death penalty, initiating a shift in juvenile sentencing. The Miller trilogy, culminating in Miller v. Alabama, established that juveniles are constitutionally distinct from adults, underscoring the need to consider their unique characteristics in sentencing.

*A. Cruel and Unusual Punishment for Juveniles: The *Miller Trilogy

The Miller trilogy, encompassing Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, fundamentally changed juvenile sentencing by establishing the constitutional distinction between juveniles and adults. Roper struck down the juvenile death penalty, Graham prohibited JLWOP for nonhomicide crimes, and Miller declared mandatory JLWOP unconstitutional, requiring sentencers to consider mitigating factors specific to the juvenile's age and developmental stage.

B. The Neuroscience Behind the Court’s Shift

The Court's shift in juvenile sentencing aligns with advancements in neuroscience. Studies demonstrating the continued development of the prefrontal cortex in youth until their early twenties, alongside the amygdala's role in emotional processing, provide scientific support for treating juveniles differently from adults in the legal system.

II. THE MILLER STANDARD IS INADEQUATE UNDER THE EIGHTH AMENDMENT AT LIMITING JLWOP TO ONLY PERMANENTLY INCORRIGIBLE JUVENILE DEFENDANTS

The Miller standard, while intended to restrict JLWOP to “permanently incorrigible” juveniles, lacks clarity in defining this term and outlining the process for determining it. The vague nature of the standard increases the risk of inconsistent sentencing and erroneous imposition of JLWOP on juveniles who may not meet the “irreparable corruption” threshold.

III. THE MILLER STANDARD HAS THE UNINTENDED CONSEQUENCE OF TRIGGERING PROCEDURAL PROBLEMS UNDER THE SIXTH AMENDMENT

The Miller standard's lack of clarity regarding the determination of “permanent incorrigibility” raises procedural concerns under the Sixth Amendment's jury trial right. Similar to the death penalty for adults, where all facts enhancing the sentence must be proven to a jury, JLWOP as an enhanced sentence for juveniles requires a jury finding of "permanent incorrigibility."

*A. The Sixth Amendment Jury Right: *Apprendi and its Progeny

The Supreme Court's jurisprudence on the Sixth Amendment jury trial right, starting with Apprendi v. New Jersey, established that any fact enhancing a sentence beyond the statutory maximum must be proven to a jury beyond a reasonable doubt. This principle was extended to the death penalty in Ring v. Arizona, requiring a jury determination of aggravating factors.

B. JLWOP Is an Enhanced Sentence Under the Sixth Amendment

JLWOP functions as an enhanced sentence because it imposes a punishment exceeding the statutory maximum for juvenile homicide offenses, contingent on the finding of "permanent incorrigibility." This finding, akin to an element of a greater offense, triggers the Sixth Amendment's requirement for a jury determination beyond a reasonable doubt.

IV. LIMITING THE IMPOSITION OF JLWOP: A SOLUTION UNDER THE SIXTH AND EIGHTH AMENDMENTS

To address the Miller standard's deficiencies, this Note proposes a solution based on a presumption against JLWOP, placing the burden on the state to prove "permanent incorrigibility" beyond a reasonable doubt to a jury. This approach, drawing on the Pennsylvania Supreme Court's decision in Commonwealth v. Batts, aims to ensure that JLWOP is reserved for truly "rare" juvenile offenders.

*A. A Presumption Against JLWOP: Returning to Batts II

The Pennsylvania Supreme Court in Batts II established a presumption against JLWOP for juveniles, requiring the state to prove the defendant's "permanent incorrigibility" beyond a reasonable doubt. This approach reflects the central premise that juveniles are less culpable than adults and have a higher capacity for rehabilitation.

B. Proposed Solution: Putting It All Together

The proposed solution combines the presumption against JLWOP with a formal jury determination of "permanent incorrigibility," extending the Sixth Amendment's requirement for enhanced sentences. This approach ensures a more consistent and meaningful evaluation of individual circumstances, ultimately aligning with the Miller Court's intention to make JLWOP an "uncommon" sentence.

*C. Imposing a Formal Factfinding Requirement: Why Uniformity Aligns with Miller

While the Miller Court did not explicitly require a formal finding of "permanent incorrigibility," the absence of such a requirement could lead to arbitrary sentencing. Implementing a uniform formal factfinding requirement by a jury aligns with the Court's intent to make JLWOP an "uncommon" sentence reserved for truly "rare" juvenile offenders.

CONCLUSION

Qu’eed Batts’s case highlights the need for a clearer and more consistent approach to juvenile JLWOP sentencing. A solution that incorporates a presumption against JLWOP and a jury determination of "permanent incorrigibility" addresses the inadequacies of the Miller standard while upholding both the Eighth and Sixth Amendment rights of juvenile defendants. This approach promotes fairness and consistency in sentencing, ensuring that JLWOP is truly reserved for the rarest of cases where rehabilitation is demonstrably impossible.

Summary

Qu’eed Batts was sentenced to life without parole at the age of fourteen for murder, a sentence he has served for fourteen years. His case illustrates the challenges of applying the Supreme Court’s ruling in Miller v. Alabama, which struck down mandatory life without parole sentences for juveniles. Miller determined that while some juveniles may be permanently incorrigible, life without parole is an unconstitutionally excessive punishment for others. The Court did not, however, define what “permanently incorrigible” means, leading to confusion in lower courts. This Note argues that the Miller standard’s vagueness raises concerns under the Eighth and Sixth Amendments, specifically highlighting the Sixth Amendment requirement that any fact increasing a defendant’s sentence must be determined by a jury beyond a reasonable doubt. The Note proposes a solution based on the Pennsylvania Supreme Court’s approach in Commonwealth v. Batts, which includes a presumption against life without parole and requires the prosecution to prove “permanent incorrigibility” beyond a reasonable doubt, using a formal factfinding procedure determined by a jury. This solution aims to ensure procedural fairness and clarity in applying the Miller standard.

I. A BRIEF HISTORY OF JUVENILE SENTENCING: THE EIGHTH AMENDMENT AND JUVENILE LIFE WITHOUT PAROLE

The Eighth Amendment prohibits cruel and unusual punishments, but the application of this standard to juveniles has evolved significantly in recent years. The Supreme Court’s landmark ruling in Roper v. Simmons struck down the juvenile death penalty, recognizing the fundamental differences between adults and juveniles. This recognition was further emphasized in the Miller trilogy, which ultimately concluded that juveniles are constitutionally distinct from adults for sentencing purposes due to their underdeveloped brains and capacity for change. Miller v. Alabama struck down mandatory life without parole sentences for juveniles, holding that sentencers must consider mitigating circumstances, specifically those related to youth and its accompanying features, before imposing such a severe punishment. However, the Court left discretionary life without parole sentences intact, reserved for the rare juvenile whose crime reflects “irreparable corruption.”

*A. Cruel and Unusual Punishment for Juveniles: The *Miller Trilogy

The Miller trilogy represents a significant shift in juvenile sentencing, recognizing the need for a different approach when dealing with juvenile defendants. The trilogy, comprised of Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, demonstrates that the Court views juvenile offenders differently from adults. While the Court has moved towards acknowledging the unique characteristics of youth in sentencing, the vagueness of the Miller standard raises concerns about the consistency and fairness of its application in practice.

B. The Neuroscience Behind the Court’s Shift

The Court’s shift in sentencing practices stems from evolving societal attitudes and advancements in neuroscience. Research on the adolescent brain indicates that areas related to self-control, judgment, and emotional regulation continue to develop into a person’s early twenties. This research supports the Court’s determination that juveniles are constitutionally different from adults for sentencing purposes, but also raises the question of how to accurately determine the individual differences between juveniles at sentencing.

II. THE MILLER STANDARD IS INADEQUATE UNDER THE EIGHTH AMENDMENT AT LIMITING JLWOP TO ONLY PERMANENTLY INCORRIGIBLE JUVENILE DEFENDANTS

The Miller standard, which aims to distinguish between juveniles whose crimes reflect transient immaturity and those whose crimes reflect irreparable corruption, is lacking in clarity. The Court’s failure to define “permanent incorrigibility” or “irreparable corruption” leaves lower courts with little guidance in determining whether a juvenile offender falls into the category of those deserving a life without parole sentence.

The Court’s attempts to provide guidance with a list of mitigating factors to consider in the sentencing process are inadequate. The vagueness of these factors and the lack of clear instructions on how they should be weighted or balanced creates a risk of inconsistency and arbitrary application of the Miller standard. This can lead to similarly situated defendants receiving different sentences, and a lack of reliable determination of whether a juvenile truly meets the “permanent incorrigibility” standard.

III. THE MILLER STANDARD HAS THE UNINTENDED CONSEQUENCE OF TRIGGERING PROCEDURAL PROBLEMS UNDER THE SIXTH AMENDMENT

Beyond its substantive deficiencies, the Miller standard also raises procedural concerns under the Sixth Amendment. While the Sixth Amendment applies to both adult and juvenile defendants, there is a disparity in practice when it comes to the harshest punishments available: the death penalty for adults and life without parole for juveniles. This disparity, however, fails to acknowledge that the Sixth Amendment requires a jury determination of facts related to both sentences.

*A. The Sixth Amendment Jury Right: *Apprendi and its Progeny

The Supreme Court’s Sixth Amendment jurisprudence, particularly in cases like Apprendi v. New Jersey and Ring v. Arizona, has established that a jury must determine any fact that exposes a defendant to an enhanced sentence, defined as a sentence greater than the statutory maximum, beyond a reasonable doubt. This principle arises from the Sixth Amendment right to a jury trial and the due process clause of the Fourteenth Amendment.

B. JLWOP Is an Enhanced Sentence Under the Sixth Amendment

Applying the framework established by Apprendi and its progeny to the Miller standard reveals that life without parole for juveniles functions as an enhanced sentence. This is because it imposes a punishment greater than the statutory maximum (life with parole or a term-of-years sentence) for a juvenile convicted of homicide, conditioned on the factual finding of “permanent incorrigibility.” Therefore, based on this principle, the determination of “permanent incorrigibility” should be made by a jury, not a judge, and proven beyond a reasonable doubt.

The Court’s consistent analogy of life without parole to the death penalty further strengthens this argument. The severity of life without parole, which deprives an individual of any hope of restoration or redemption, resonates with the Court’s description of the death penalty in Gregg v. Georgia, a sentence reserved for the most extreme crimes. This analogy suggests that life without parole should be subject to the same procedural safeguards as the death penalty, which includes a jury finding of relevant facts.

IV. LIMITING THE IMPOSITION OF JLWOP: A SOLUTION UNDER THE SIXTH AND EIGHTH AMENDMENTS

The solution proposed in this Note seeks to remedy the Miller standard’s lack of clarity by incorporating a presumption against life without parole, a formal factfinding procedure determined by a jury, and a burden of proof placed on the prosecution.

*A. A Presumption Against JLWOP: Returning to *Batts II

The Pennsylvania Supreme Court’s decision in Commonwealth v. Batts provides a model for implementing this solution. The court adopted a presumption against life without parole, based on the recognition that juveniles are generally capable of rehabilitation. This presumption can only be rebutted by the prosecution proving beyond a reasonable doubt that the juvenile is “permanently incorrigible.”

B. Proposed Solution: Putting It All Together

This Note proposes a formal factfinding requirement for determining “permanent incorrigibility,” as well as a presumption against life without parole that can be rebutted only by a jury finding beyond a reasonable doubt. This approach aligns with the Sixth Amendment’s requirement that any fact increasing a defendant’s sentence be determined by a jury.

The proposed solution incorporates the mitigating factors outlined by the Court in Miller, but emphasizes the need for further research to understand their application in practice, particularly regarding the potential for disproportionate effects on individuals from certain socioeconomic, racial, or ethnic backgrounds.

*C. Imposing a Formal Factfinding Requirement: Why Uniformity Aligns with Miller

The Court’s assertion that Miller does not require a formal finding of permanent incorrigibility is seemingly at odds with its determination that life without parole is unconstitutional for juveniles who are not permanently incorrigible. This conflict can be resolved by adopting a formal factfinding requirement as proposed in this Note.

Although this proposal may appear to conflict with the principle of federalism, the need for uniformity in applying the Miller standard outweighs concerns about state autonomy. The confusion surrounding the Miller standard risks inconsistent application and potentially unjust sentences for juveniles who may not be permanently incorrigible. A formal factfinding procedure would help mitigate this risk and ensure a more consistent and reliable determination of the sentence.

CONCLUSION

Qu’eed Batts’s case highlights the challenges and inconsistencies of applying the Miller standard in practice. The Note argues that the Miller standard, as currently defined, is inadequate under both the Eighth and Sixth Amendments. It proposes a solution that incorporates a presumption against life without parole, a formal factfinding procedure determined by a jury, and a burden of proof placed on the prosecution. This approach aims to clarify the Miller standard, ensuring that juvenile defendants receive their constitutional rights and that life without parole is reserved for the truly “permanently incorrigible.”

Summary

Qu'eed Batts was sentenced to life without parole at age fourteen. He was convicted of murder after killing one victim and injuring another at the behest of a gang member. Batts claims he acted under duress and regrets his actions, but was terrified of being killed if he did not comply. He has received two sentences and is awaiting a third resentencing. His case highlights challenges faced by lower courts in administering the JLWOP standard established in Miller v. Alabama, which struck down mandatory life without parole sentences for juveniles. Batts's situation also illustrates the difficulties faced by defendants, victims, and families during the appeals and resentencing process. Miller held that JLWOP is unconstitutionally excessive punishment except for juveniles who are "permanently incorrigible," but this standard has proved difficult to apply. This Note examines the implications of Miller for the Eighth and Sixth Amendments and proposes a solution to address the problems arising from the "permanently incorrigible" standard.

I. A BRIEF HISTORY OF JUVENILE SENTENCING: THE EIGHTH AMENDMENT AND JUVENILE LIFE WITHOUT PAROLE

The Eighth Amendment prohibits cruel and unusual punishments. This principle is different for juveniles, who are subject to different punishments than adults. Historically, juveniles were sentenced under the same laws as adults, meaning they could even be sentenced to death. In Roper v. Simmons, the Supreme Court struck down the juvenile death penalty as violating the Eighth Amendment. The Court, in Miller v. Alabama, struck down mandatory JLWOP sentences for juveniles. The Court ruled that because children are constitutionally different from adults for sentencing purposes, sentencing courts must consider mitigating circumstances before imposing a JLWOP sentence.

*A. Cruel and Unusual Punishment for Juveniles: The *Miller Trilogy

Since the creation of juvenile court in 1899, most juvenile defendants have been removed from the adult criminal justice system. In 1967, the Supreme Court ruled that juveniles were entitled to the same procedural safeguards as adults. In a series of cases known as the Miller trilogy, the Court established that juveniles are constitutionally different from adults in sentencing.

In 2005, the Court held in Roper that juveniles cannot be sentenced to death. In 2010, the Court ruled in Graham v. Florida that JLWOP for non-homicide offenses is unconstitutional. In 2012, the Court ruled in Miller that mandatory JLWOP for homicide offenses is unconstitutional. The Court clarified that JLWOP could be imposed only in rare cases on juveniles whose crimes reflected "irreparable corruption."

In Montgomery v. Louisiana, the Court held that Miller had retroactive effect, meaning all juveniles sentenced to mandatory JLWOP pre-Miller were entitled to resentencing.

B. The Neuroscience Behind the Court’s Shift

The Court’s rulings in Roper, Graham, and Miller reflect a shift in societal attitudes and developments in neuroscience research. The Court identified three main reasons for treating juveniles differently than adults. First, children are immature and have an underdeveloped sense of responsibility. Second, children are more susceptible to negative influences from peers and family. Third, a child’s character is not as well formed as an adult’s, meaning their actions are less likely to be evidence of irreparable depravity.

Brain mapping studies support the Court's findings. MRI technology shows that the prefrontal cortex, which is responsible for cognitive functions such as self-control and decision-making, continues to develop into a person's early twenties. The amygdala, which analyzes emotion and generates the fear response, is also different in adolescents. These differences mean that youth are more likely to act impulsively and less able to appreciate risks and consequences.

II. THE MILLER STANDARD IS INADEQUATE UNDER THE EIGHTH AMENDMENT AT LIMITING JLWOP TO ONLY PERMANENTLY INCORRIGIBLE JUVENILE DEFENDANTS

Miller held that while JLWOP is permissible for "permanently incorrigible" juveniles, it must consider the juvenile’s age and capacity for change before imposing such a sentence. The Court did not define "permanently incorrigible," leaving lower courts with little guidance. This lack of guidance increases the risk of similarly situated juveniles receiving different sentences, and non-"permanently incorrigible" juveniles receiving JLWOP sentences.

The Miller standard fails to adequately explain why it is appropriate to differentiate between "transient immaturity" and "irreparable corruption." The Court also provides vague mitigating factors to consider, such as the juvenile’s age, family environment, and potential for rehabilitation.

Lower courts struggle with distinguishing between permanently incorrigible and non-permanently incorrigible juveniles. While they can identify the presence or absence of mitigating factors, they lack a consistent process for evaluating these factors.

III. THE MILLER STANDARD HAS THE UNINTENDED CONSEQUENCE OF TRIGGERING PROCEDURAL PROBLEMS UNDER THE SIXTH AMENDMENT

In addition to lacking substantive clarity, the Miller standard raises procedural concerns under the Sixth Amendment. While the Sixth Amendment theoretically applies to both adult and juvenile defendants, the harshest punishments available for each are different. Adults facing the death penalty are entitled to a jury determination of all facts that could result in the death penalty. No such requirement exists for juveniles facing JLWOP.

*A. The Sixth Amendment Jury Right: *Apprendi and its Progeny

The Sixth Amendment guarantees a jury determination that a defendant is guilty of every element of the crime beyond a reasonable doubt. The Supreme Court has extended this jury right to the Eighth Amendment punishment ceiling for adults.

In Apprendi v. New Jersey, the Court held that a sentencing factor that exposes a defendant to a greater punishment than the jury verdict is equivalent to an element of the crime. This means that any fact that enhances a sentence must be submitted to a jury and found beyond a reasonable doubt.

In Ring v. Arizona, the Court ruled that aggravating factors leading to the death penalty must be found by a jury. This means that a judge cannot make a judicial finding that exposes a defendant to an enhanced sentence above the statutory maximum.

B. JLWOP Is an Enhanced Sentence Under the Sixth Amendment

Under Miller, JLWOP is permissible only for juveniles who have committed homicide and are "permanently incorrigible." This finding is separate from the jury verdict and exposes the defendant to a greater punishment than the statutory maximum (life with parole or a term-of-years sentence).

Because JLWOP is an enhanced sentence, the Sixth Amendment requires that a jury determine "permanent incorrigibility" beyond a reasonable doubt. The Supreme Court's analogy of JLWOP to the death penalty further supports the argument that JLWOP should be treated as an enhanced sentence.

IV. LIMITING THE IMPOSITION OF JLWOP: A SOLUTION UNDER THE SIXTH AND EIGHTH AMENDMENTS

This Part proposes a solution to the problems arising from the Miller standard's lack of a formal factfinding requirement. This solution combines a presumption against JLWOP and a formal factfinding requirement by a jury, drawing on the Pennsylvania Supreme Court's approach in Commonwealth v. Batts ( Batts II).

*A. A Presumption Against JLWOP: Returning to *Batts II

In Batts II, the Pennsylvania Supreme Court adopted a presumption against JLWOP and placed the burden on the state to prove eligibility for JLWOP beyond a reasonable doubt. The court reasoned that proof of the basic fact—that the defendant was a juvenile—necessarily proved the ultimate fact—that the defendant was capable of rehabilitation.

The court determined that the prosecution had the burden of proof to rebut the presumption, arguing that juveniles are categorically less culpable than adults. This presumption would be rebutted only if the state proved beyond a reasonable doubt that the juvenile was "removed from this generally recognized class of potentially rehabilitable offenders."

B. Proposed Solution: Putting It All Together

This Note proposes that the presumption against JLWOP be rebutted by a formal finding of "permanent incorrigibility" by a jury beyond a reasonable doubt. This would ensure that JLWOP is imposed only on juvenile defendants who are truly "permanently incorrigible," thereby aligning with the Court's intent in Miller that JLWOP be an "uncommon" sentence.

*C. Imposing a Formal Factfinding Requirement: Why Uniformity Aligns with Miller

The Court in Montgomery acknowledged that a formal finding of "permanent incorrigibility" is not required by Miller. However, it also emphasized that this does not mean that states are free to sentence juveniles whose crimes reflect transient immaturity to life without parole.

This Note argues that uniformity in procedural approach is preferable to rigid adherence to state control. A formal factfinding requirement would ensure consistency in sentencing and prevent non-"permanently incorrigible" juveniles from receiving JLWOP sentences. It would also increase the procedural bar for seeking JLWOP, deterring prosecutors from seeking this sentence unless they truly believe the defendant is deserving.

CONCLUSION

Qu’eed Batts's case demonstrates the complex challenges of sentencing juveniles to life in prison. While his crime was heinous, his youth and subsequent signs of rehabilitation support the argument that juveniles deserve individualized consideration. The Court's ruling in Miller was a step toward fairer sentencing for juveniles, but the "permanently incorrigible" standard remains problematic. This Note proposes a solution that balances the Eighth and Sixth Amendments, ensuring that juveniles receive their constitutional procedural safeguards.

Summary

Qu’eed Batts was 14 years old when he was sentenced to life in prison without the possibility of parole. He was convicted of killing someone after being pressured by a gang. The Supreme Court said that it’s unconstitutional to automatically sentence kids to life without parole, but they can still get that sentence if a judge finds that they can’t be changed, or are “permanently incorrigible.” This is really hard for judges to decide. This paper argues that judges shouldn’t get to decide this, a jury should.

I. A BRIEF HISTORY OF JUVENILE SENTENCING: THE EIGHTH AMENDMENT AND JUVENILE LIFE WITHOUT PAROLE

The Eighth Amendment says the government can’t punish people in a cruel way. It seems like what’s cruel for adults might be different for kids. But not too long ago, kids were treated the same as adults in court. They could even get the death penalty! The Supreme Court changed its mind and decided that the death penalty for kids is cruel. Then, the Court decided it was also cruel to give kids life in prison without the possibility of parole. That means kids can’t get out of prison, even if they change their behavior. They said that kids are different from adults because their brains are still developing. They’re more likely to make bad choices, and they’re more likely to change their behavior.

*A. Cruel and Unusual Punishment for Juveniles: The *Miller Trilogy

The Supreme Court has decided several cases about how to punish kids who commit crimes. They decided that kids should get different punishments than adults. Now, kids can only be sentenced to life in prison without the possibility of parole if they’re “permanently incorrigible.” This means they can’t be changed.

B. The Neuroscience Behind the Court’s Shift

Scientists have learned a lot about how kids’ brains work. They found that kids’ brains aren’t fully developed until they’re in their early twenties. The part of the brain that helps us make good decisions and think about the consequences of our actions is still growing. This explains why kids make bad decisions sometimes. It doesn’t mean they’re bad people.

II. THE MILLER STANDARD IS INADEQUATE UNDER THE EIGHTH AMENDMENT AT LIMITING JLWOP TO ONLY PERMANENTLY INCORRIGIBLE JUVENILE DEFENDANTS

The Supreme Court hasn’t said exactly what it means by “permanently incorrigible,” which makes it hard for judges to decide. It’s important to get this right because kids who can’t be changed shouldn’t get life in prison.

III. THE MILLER STANDARD HAS THE UNINTENDED CONSEQUENCE OF TRIGGERING PROCEDURAL PROBLEMS UNDER THE SIXTH AMENDMENT

The Sixth Amendment says that people accused of a crime have the right to a jury trial. This is really important because it means that a group of people, not just one judge, decides whether someone is guilty and what their punishment should be. This paper argues that a jury should decide whether a kid is “permanently incorrigible.”

*A. The Sixth Amendment Jury Right: *Apprendi and its Progeny

The Supreme Court has said that if a judge makes a decision that could make someone’s punishment worse, a jury should make that decision. For example, if someone is facing the death penalty, a jury decides whether the person should get the death penalty.

B. JLWOP Is an Enhanced Sentence Under the Sixth Amendment

The paper argues that life in prison without the possibility of parole is a really serious punishment. It’s worse than other punishments, so a jury should decide whether someone deserves it.

IV. LIMITING THE IMPOSITION OF JLWOP: A SOLUTION UNDER THE SIXTH AND EIGHTH AMENDMENTS

The paper suggests that the court should assume that kids who commit crimes can be changed, and the government should prove that a kid is “permanently incorrigible” to the jury. This is called a presumption.

*A. A Presumption Against JLWOP: Returning to *Batts II

The Pennsylvania Supreme Court decided that it should assume kids can be changed and the government should prove they can’t.

B. Proposed Solution: Putting It All Together

This paper suggests that the government should prove to a jury that a kid can’t be changed before they can get life in prison without parole.

*C. Imposing a Formal Factfinding Requirement: Why Uniformity Aligns with *Miller

The Supreme Court hasn’t said that judges have to make a specific finding that a kid can’t be changed. But this paper argues that it’s really important to have clear rules so that judges can decide these cases fairly.

CONCLUSION

The paper argues that kids who commit crimes deserve a chance to change. Life in prison without parole takes away their chance to be better people. The paper suggests a rule that says a jury should decide whether a kid deserves that sentence.