Questions on Juvenile Sentencing For Judiciary and Legislature

Details: 11 January 2013

Last June 25, the United States Supreme Court ruled that any state law that mandates a sentence of imprisonment for life—meaning without possibility of parole—for an individual not yet 18 years of age at the time of his or her crime, is unconstitutional, a violation of the U.S. Constitution’s ban on cruel and unusual punishment. A life-without-parole sentence is not prohibited, but it cannot be the judge’s only choice in such circumstances. The convicted criminal’s age must be considered.

The impactful ruling stemmed from cases adjudicated in adult courts in Alabama, involving two individuals convicted of murder. Both were 14 at the time of their crimes. Justice Elena Kagan, writing for the Court’s 5-4 majority included this explanation:

"Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sentence as every other—the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one. And still worse, each juvenile (including these two 14-year-olds) will receive the same sentence as the vast majority of adults committing similar homicide offenses."

The Court cited immaturity, impetuosity, and failure to appreciate risks and consequences as among the characteristics and circumstances necessitating that age be considered. Moreover, there is much evidence that full brain development has not occurred before age 18.

Like Alabama—and at least two dozen other states—Nebraska has one of "these schemes"; that is, mandatory life-without-parole sentencing for anyone convicted of first-degree murder, including felony murder, regardless of the perpetrator’s age. Nebraska’s current law, like Alabama’s, is unconstitutional.

Twenty-seven Nebraska inmates are serving life-without-parole sentences for crimes they committed while younger than 18. This includes 26 convicted of first-degree murder and one of kidnapping. In essence, they were sentenced pursuant to an unconstitutional law. So, what happens now?

And, there is another compelling question: what is the process going to be henceforward? In other words, how is the law going to be modified to replace the unconstitutional aspect regarding sentencing of juveniles convicted of murder? It’s a policy issue for the Legislature to decide.

Perhaps the answer to the second question could serve the first question as well; that is, look to the Legislature to decide all related matters. But retroactive application of a new law most likely won’t be possible. Most likely, the legislative branch of government will have to defer to the judicial branch for adjudications. Presumably, the 27 inmates will have to have their cases renewed and reviewed in light of factors of age.

Interestingly, in late November, the State Board of Pardons, which consists of three elected officials, the Governor, the Secretary of State and the Attorney General, tried to take control of the situation and handle the 27 cases pursuant to the Board’s authority to conduct hearings and commute sentences. The idea, apparently, was to allow about 20 minutes for separate presentations on each inmate’s original case and current situation and based thereupon, to commute the sentences, one-by-one, to a term of years.

The Board of Pardon’s initiative didn’t come to fruition. Legal counsel for some of the inmates sought an injunction to stop the commutation process. A state district court granted a temporary injunction, which was upheld by the Nebraska Supreme Court.

So, a lot has already happened; and a lot more will happen, especially in the Legislature. No doubt those deliberations will include a proposal to eliminate life-without-parole sentencing of juveniles altogether, in favor of severe terms-of-years sentences, but not foreclosing on an eventual opportunity to petition for parole. As alluded to in the Supreme Court’s ruling, there are policy justifications for doing that.

And finally…. on some other matters….

National Migration Week, sponsored by the United States Conference of Catholic Bishops, concludes Jan. 12. This year’s observance has included a campaign to encourage constituents to urge their U.S. Senators and Representatives to enact immigration-reform legislation in this 113th Congress. There is still time to do this and the effort is vitally important. A handy, electronic postcard is available to make the effort easy to fulfill. Visit www.justiceforimmigrants.org.

Residents of the First Congressional District should appreciate Rep. Jeff Fortenberry’s "Fort Report" on the "fiscal cliff" agreement. It was a concise, informative summary of a "complicated, hard decision." It presented his rationale for voting for the agreement, and some helpful, basic information about what was included. It was disconcerting though, to learn that "three more ‘fiscal cliff’ scenarios" loom ahead: the debt ceiling, a continuing resolution to fund the government and, after a two-month reprieve, the sequester, which would apply automatic spending cuts.

More cliffs? Uh oh. Brace ourselves.