Journalism in the Public Interest

Despite Supreme Court Ruling, Many Minors May Stay in Prison for Life

The Supreme Court has banned mandatory life without parole sentences for minors convicted of murder. But states are moving to keep many of them behind bars.

(Matt Houston/AP Photo)

Aug. 2: This post has been corrected.

When Dennis Epps learned in June that the Supreme Court had struck down mandatory life without parole sentences for kids convicted of murder, he was hopeful. His brother, David, was given such a sentence for home burglary-murder committed at 16 and has spent most of his 48 years behind bars.

"I was thinking he was going to get some kind of release, because he served 32 years on a life sentence," Epps told ProPublica.

But Epps's brother is unlikely going anywhere soon. A few weeks after the ruling, Iowa Gov. Terry Branstad announced he would commute the life without parole sentences of 38 juvenile offenders, and make them eligible for parole after 60 years. David Epps would be in his mid-seventies when he could first be released.

Under the Supreme Court's ruling, minors can still get life without parole sentences — just not automatically after a conviction; instead a judge will need to decide, taking into account the minor's youth.

For the roughly 2,500 juvenile offenders already sentenced to life in prison without parole, the upshot of the ruling — Miller v. Alabama — seemed clear: "They will all get another bite at the sentencing apple," Dan Filler, a professor at Drexel University's Earle Mack School of Law, wrote shortly after the ruling.

That may not happen if Iowa's governor or many other states get their way.

"Justice is a balance and these commutations ensure that justice is balanced with punishment for those vicious crimes and taking into account public safety," Gov. Branstad said in announcing his order.

The governor's action, which sidesteps any potential resentencing hearings, has sparked criticism and legal challenges.

Stephen Bright, director of the Southern Center for Human Rights in Atlanta who teaches at Yale Law School, called the governor's order "questionable legally and bad public policy."

"The main point of the Miller decision — and the main concern of any sentencing — should be individualized sentencing based on factors about each human being," he said. "Obviously, nothing about any of the 38 individuals was taken into account, just as it was not when they were sentenced to life imprisonment without parole."

Yet Filler, the Drexel law professor who wrote about the ruling, said it actually leaves the details to states to iron out. "When you look at the decision closely, it implicitly leaves room for exactly what the governor of Iowa did," he told ProPublica. "It doesn't give us any guidance. You have to see this decision as entirely cloudy. Different states are going to try different things."

Indeed, some states have suggested they don't plan on rolling back minors' life without parole sentences, pointing out the Supreme Court left unclear whether its ruling should be applied retroactively to minors already sentenced. (Twenty-six states currently have mandatory life without parole statutes for juveniles. Here's a list and a map showing where.)

"It is the (Alabama) Attorney General's position that this rule does not apply retroactively," Alabama Solicitor General John C. Neiman Jr. told us. "Ultimately whether it will apply retroactively is going to be a question that will be litigated in, and decided by, the courts."

The ruling

In its June 25 decision, a 5-4 majority on the Supreme Court ordered an individualized approach to sentencing for juveniles convicted of murder to consider proportionality of punishment to the nature of the crime and offender's history.

Sentencers are now required to "follow a certain process — considering an offender's youth and attendant circumstances — before imposing a particular penalty," wrote Justice Elena Kagan for the majority. Among the unique characteristics of youth cited were "immaturity, impetuosity, and failure to appreciate risks and consequences."

While the opinion didn't impose a categorical ban on life without parole sentences for juveniles, it requires that authorities "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison."

The decision follows in the steps of a recent line of Supreme Court cases stating that kids, by virtue of their youth and lack of fully matured brains, are different from adults and have greater capacity for rehabilitation. In 2005, the Court struck down the death penalty for those under 18. In 2010, it forbade life without parole for juveniles convicted of crimes that aren't murder.

The patchy aftermath of the 2010 decision illustrates the challenges states have faced in implementing changes to their laws. Florida — which dispensed the lion's share of life without parole sentences to minors for non-homicides — is still grappling with how to address the ruling. Greater discretion in judges' hands has also led, in some cases, to 70- to 90-year sentences for minors — while not technically life, a comparable term of years.

What's next?

In the wake of Miller, some states around the country have already taken legislative action. North Carolina recently passed an amendment granting juvenile lifers parole review after 25 years. It also requires judges to consider such factors as age, immaturity, intellectual capacity, mental health history, and the influence of familial or peer pressure when imposing punishment.

In Michigan, which boasts the second-highest number of juvenile lifers, criminal defense attorneys have begun mobilizing legal assistance for current inmates despite disagreement as to whether or not the court's decision is retroactive.

In Pennsylvania, the state with the most number of juvenile offenders serving life without parole (444), the state Senate Judiciary Committee recently solicited testimony from various stakeholders to decide how to proceed. The issue of retroactivity there, too, remains uncertain.

Iowa's recent executive order is not the first time a governor preemptively took action following a Supreme Court ruling: In 2005, Gov. Rick Perry of Texas commuted the death sentences of 28 juvenile offenders, changing them to life sentences with the possibility of parole after 40 years. Around the same time, he had also signed a mandatory life without parole statute for juveniles; Texas abolished the statute in 2009.

If the Iowa governor's order stands, 38 juvenile offenders — including David Epps — will not be eligible for parole until they reach their mid-70s, about the normal life expectancy of Americans. But of course prison can prematurely age people. The National Institute of Corrections designates an elderly or aging prisoner as age 50 and older.

Recidivism rates also decline the older a prisoner gets: In Iowa, statistics show these rates drop markedly once an inmate reaches age 45 and even more dramatically by the time he's 55.

In light of the governor's action in Iowa, any hope Dennis Epps had of ever seeing his brother get out of prison was short-lived. The governor "might as well have left them serving a life sentence, because that's pretty much what that is," he said.

Correction: A second reference to Dan Filler incorrectly stated that he is a Drake law professor. He is a Drexel law professor.

This may be a very unpopular stance, but the only difference I see between a juvenile and adult murderer is that the juvenile presumably stands a somewhat better chance of rehabilitation.  I’ve never seen a study suggesting that recidivism among juvenile offenders is low, and quite a few that show the opposite.

Since our criminal justice system has little to no interest in rehabilitation, and is at best about isolating dangerous elements from society at large (at worst, it’s about vengeance for the wronged), I don’t see why it makes a difference that the groups aren’t treated differently.  Given that we have too many adult prisoners for too long a term, the same should probably apply to juvenile offenders, who appear to be at least as dangerous.

This isn’t about an undeveloped moral sense.  Kids do know better.  In a healthy person, the only time you see kids “grow out of” murderous impulses is early elementary school age, as they gain the ability to see that other people are like them.  I love small children, but they are inherently sociopathic.  Teenagers, less so, so if they’re willing to kill, there’s something wrong with them.

Again, I’d prefer helping them and making them productive members of society, but if we’re not going to do that, I don’t have a problem keeping them in prison instead of releasing them back into society after years adapting to an inherently violent prison culture.

There are some good lessons in the story of the “Boston Miracle,” where David Kennedy stopped serious gang violence by—more or less—talking things out with gang members and offering them a more productive community to join.  We should be learning these lessons and others, rather than moaning that, “they’re only kids.”

“Justice is a balance and these commutations ensure that justice is balanced with punishment for those vicious crimes and taking into account public safety”.

Well no, justice doesn’t seem to be a balance.  Modern “justice” seems to ignore cost, safety, rehabilitation opportunities, sensible sentencing, and the use of options other than institutions for developing criminals (i.e. jails).

Modern “justice” panders to the gut feel, shown by John in his comment above, that people are animals and criminals can’t change.  Every bit of evidence on this subject has shown this to be wrong, but unless you rehabilitate people they won’t change.  And of course privatised justice has no interest in rehabilitation, it wants repeat “clients”.

Excellent points, Stephen.  Far more concise than I could’ve said it.

Also, rereading my comment, I should probably clarify that, when I referred to small children as “inherently sociopathic,” I meant that they only barely and peripherally recognize that other people are independent actors with their own lives and emotions, not that they’re rotten and should be imprisoned on principle.

It’s not until around age five that we humans even develop the physical capacity to understand that other people have different perspectives on events that are just as valid as our own.  Until then, they’re the center of their universe, and you only “matter” inasmuch as you affect their universe.

(Again, an important lesson:  When a kid feels like killing something, we force it to deal with those feelings constructively and teach him through service.  We rehabilitate them, and it works fine for about seven billion people alive right now who have no interest in theft, let alone murder.  Clearly, these aren’t difficult problems to solve, if even “lousy” parents can get it right.)

Juveniles should NEVER be tried as adults. If we need to build special prisons for young people who commit premeditated murder, we should do so and provide rehabilitation.

Keep them in Jail. Who wants to know that a murderer is “rehabed” ?.
Will you take them to live with you and yours ? This is the test!!!

I agree with violetwilson. They had a choice, now pay the price.

Not real name

Aug. 3, 2012, 11:59 p.m.

The story wants us to sympathize with David Epps, and does not tell us anything about the murder he apparently committed.  That person won’t get parole.  I’m not saying this story should not be written, and the questions not considered, but the victim should be mentioned as well.

I did not use my real name because it would be crazy to criticize a murderer on the Internet with my real name.

Americans love their death penalty and these draconian sentences are only a poor substitute.  And of course these penalties are applied with the greatest of enthusiasm to the poor, especially the poor and black.
Our worst murderers are routinely elected to the highest offices in the land.

Heather Mattes

Aug. 6, 2012, 8:48 a.m.

One of the reasons not to try juveniles as adults (and not to sentence them to life without parole) is that the frontal cortex is not fully developed until age 25. It is fundamentally unfair to punish an individual who is impulsive, lacks foresight and necessary judgment the same way one would an adult. Young people are different from adults in significant ways influencing the manner in which they should be dealt with by a system dedicated to justice.

Heather, teenagers are developed enough to not only not kill people, but an enormous number of them can commit to teaching themselves music, sports, and academic subjects as teenagers in hopes of going to a good college and/or starting a good career.

By twenty-five, many “kids” have graduate degrees and live on their own…or at least, that’s how it used to be.  Most do it without a drill instructor screaming at them day and night.  Are you sure they’re that universally impulsive and short-sighted, just because some kids get drunk and play video games—something that also sadly describes a disturbing number of adults with very professional-sounding degrees and important careers?

Consider:  When you were very young, you probably thought seriously about killing people who offended you.  I think we all do at a preschool age, and I see it a lot in my friends’ kids.  That goes away fast, though.  When did that go away?  I’d bet (and I guess all of us bet our lives every day, with alienated teenagers on the road) it happened long before you were twenty-five.

I’m not saying your premise is entirely wrong, just that it needs a lot more investigation and makes a terrible generalization.  Children are not strangling and stabbing each other in the streets except in negligible numbers or where there’s a sociopathic adult directing them (e.g. gangs, child soldiers).  Clearly, they’re capable of making these moral decisions, because they ARE making those very decisions and always have.

How many of our parents and grandparents dropped out of school to support their families in an economic downturn or lied to join the military early to fight for our freedom?  How many lived on stale bread salads and the like to work their way through college?  We might not agree with their decisions today, but they had a lot of foresight and commitment to make them.

And again, look at the recidivism rates for child offenders.  Juvenile offenders, apparently, become adult offenders.  So treating them differently needs more proof than physical brain development.  The brain isn’t a muscle, after all.  If one part isn’t working, other parts often “light up” to help.

Besides, we can argue that each person is different, and some people develop at different rates.  That’s probably even correct.  But then, why try anybody “as an adult,” when they presumably haven’t developed properly.  What actions at what points are the individual’s fault, if we allow for juvenile criminal justice on that basis?

As I said, prevention and rehabilitation are musts, and it should/must apply to children and adults alike.  The current environment where we hurt offenders to punish them and hypothetically deter the next is clearly not helping anybody, and treating kids with merely a milder version of that setup is beyond worthless.

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