THE BLOG
06/24/2014 03:56 pm ET | Updated Aug 24, 2014

Between Hope and Despair, Waiting for Meaningful Implementation of Miller v. Alabama

Co-authored with Jody Kent Lavy and Ashley Nellis

Joe Ligon is a 75-year-old inmate who was condemned to die in a prison in Philadelphia over six decades ago for a murder he witnessed, but did not commit. With no disciplinary infractions and serious health issues, including cancer, he is a gentle man whose continued confinement aptly illustrates the insanity of these extreme sentencing practices.

Two years ago, we thought Joe and the thousands of others like him might have some hope. On June 25, 2012, the U.S. Supreme Court ruled in Miller v. Alabama that it is unconstitutional to impose a mandatory sentence of life without the possibility of parole upon a juvenile (JLWOP). The ruling immediately voided sentencing laws in 28 states, where approximately 2,100 individuals were serving a mandatory life without parole sentence for murder committed before they turned 18. Another 400+ youth are serving discretionary life sentences across the country. While the opinion did not impose a complete ban on life without parole for young offenders, Justice Kagan was blunt in her critique, writing that future imposition of JLWOP should be rare and uncommon. Justice Kagan further articulated a specific list of factors for consideration by any sentencer, including youthfulness, before condemning a child to die in prison.

Miller marked the third time in seven years that the Court drew a distinct line between children and adults under the 8th Amendment's ban on cruel and unusual punishments, and proved a further affirmation of the Court's doctrine that kids are different from adults -- especially when it comes to sentencing.

Initial feelings of optimism were justified. The Court's strong language in Miller, especially on the heels of Roper v Simmons and Graham v Florida, surely signaled, and indeed required, an end to our nation's love affair with long, harsh sentences for children. In the face of the ruinous and misguided juvenile justice policies of the 1990s, Miller offered hope that we could now return to a more rational and effective justice policy for youth. Calls for reform nationally have been bi-partisan. Pope Francis recently expressed concern for youth serving life without parole sentences for crimes committed as children; and international human rights activists continue to be stunned at our refusal to end JLWOP as we remain the only country in the world that clings to this barbaric sentence.

But we are far from popping the champagne corks. It is true that since Miller, there is increased awareness of the injustice of these extreme sentences and broader support for reform. For a handful of individuals, new sentencing hearings have provided real relief; some received early dates for parole review, some have been released from prison after serving decades, and others have release dates that are imminent or in the foreseeable future. While a handful of states have completely eliminated life without parole as a sentencing option for children and others have scaled back its use, the large majority of states have not responded to Miller appropriately. Overall, legislative results are at best mixed.

West Virginia legislator John Ellem, who describes himself as a law-and-order Republican, was a champion of that state's effort to eliminate life without parole for children and make parole review available for everyone convicted as a child when they have served no more than 15 years.

While West Virginia has completely eliminated life without parole for young offenders, only 11 of the 28 affected states have eliminated or limited JLWOP in response to Miller, and many of these state's new sentencing laws are "reform" in name only. Replacing mandatory life without parole with mandatory minimums still requiring decades in prison, or allowing discretionary life without parole to remain a sentencing option, gives Miller's mandate little weight.

This willful disregard for Miller has spread from the legislatures to courtrooms. In too many re-sentencing hearings, it is simply business as usual; the offense overshadows the defendant's individual attributes. Judges ignore or pay lip service to the sentencing considerations articulated by Justice Kagan, wrapping their re-imposition of LWOP (or some other life-equivalent sentence) in outrage and sympathy for the victim's family. This ignores the Court's admonition that the special and individualized characteristics of youthful offenders be considered. While the harm caused to victims is no less real because the perpetrators are children, it is now constitutionally required that youth be held accountable in an age-appropriate manner that focuses on their capacity for change and rehabilitation. Such an approach affirms our belief in justice and healing for victims and perpetrators.

Progress to date is best measured in inches, with the longest yard still ahead of us. As many as 2,100 individuals are still serving a sentence that the Supreme Court declared unconstitutional, yet only five of the 28 state's highest courts ruled that Miller must be applied retroactively, with three states, Pennsylvania, Louisiana and Minnesota, flatly refusing to hold Miller retroactive. Thus far, the Court has declined to address the reach of its ruling in Miller.

And so the current post-Miller landscape defines justice according to when and where an individual committed their crime, with no legitimate or reasoned explanation for the ensuing substantial variations in punishment. Such incoherent and inconsistent practices are intolerable in America; they strip our justice system of any claim to moral legitimacy. Today, we sit between hope and despair. The space between them is a void which we can choose to fill the right way, or the wrong way.

Marsha Levick, Deputy Director & Chief Counsel, Juvenile Law Center

Jody Kent Lavy, Director & National Coordinator, Campaign for the Fair Sentencing of Youth

Ashley Nellis, Ph.D., Senior Research Analyst, The Sentencing Project