Op-Ed: A Glimmer Of Hope For Juveniles Sentenced To Life Without Parole
On June 25, 2012, the U.S. Supreme Court released its monumental decision in Miller v. Alabama ((2012) 132 S. Ct. 2455). The Court held that a mandatory sentence of life in prison without the possibility of parole (“LWOP”) for any offender who committed his offence while under the age of 18 is contrary to the eighth amendment’s constitutional prohibition on “cruel and unusual punishment.” (U.S. Const. amend. VIII) This was a fundamental principle in all juvenile cases – even for a juvenile offender such as Miller, who was convicted of a homicide.
Miller built on previous decisions, such as Roper v. Simmons (543 U.S. 551 (2005)) and Graham v. Florida ((2010) 130 S. Ct. 2011), wherein the Supreme Court of the United States had already begun to swing the pendulum back against mandatory minimum sentences for juvenile offenders. Juveniles, Kennedy J. proclaimed for a majority of the Court in Roper, are entitled to a presumption of “diminished culpability” as a matter of constitutional law (Roper at 571.)
While the Miller decision was profound, and contained much language favouring restraint in the sentencing of juvenile offenders, ultimately its holding was confined to the narrow issue of the mandatory nature of the punishment in question.
Juvenile LWOP sentences are prohibited by the UN Convention on the Rights of the Child, which has been ratified by every UN nation except the United States and Somalia. (Somalia is set to ratify the treaty in the near future; even the newly formed nation of South Sudan has ratified.) In Canada, in the seminal case of R. v. D.B. (2008 SCC 34), our highest court ruled that presumptive adult sentences for youthful offenders are similarly unconstitutional, as young persons are entitled to a “presumption of diminished moral culpability” under section 7 of the Charter of Rights and Freedoms (D.B. at para 41.)
Unfortunately, in the short period of time that has passed since Miller, most states in the U.S. have not taken up the spirit of the ruling and many still attempt to circumvent it. A recent New York Times story reports that more than 2,000 current inmates still face this harshest of non-capital penalties.
In Florida, for example, juveniles may receive sentences of 70 years without parole. Consecutive sentencing practices can impose total sentences of over 100 years. In Pennsylvania, the State Supreme Court ruled last November in Commonwealth v. Ian Cunningham (No. 38 EAP 2012) that Miller does not apply retroactively, effectively closing the door to at least 450 inmates serving LWOP sentences for crimes committed as juveniles.
Adding to the confusion, other state Supreme Courts, including Mississippi’s in Jones v. State (No. 2009-CT-02033-SCT), have ruled that the Miller decision does apply retroactively.
However, in another ground-breaking decision, on December 24, 2013, the Supreme Judicial Court of Massachusetts breathed new life into the Miller decision. In Diatchenko v. District Attorney for the Suffolk District (SJC-11453), the court held not only that Miller applies retroactively, but that the Massachusetts state constitution barred the imposition of life without parole altogether for defendants under age 18 at the time they committed murder.
Diatchenko (17) stabbed his victim to death in 1981. He was found guilty of 1st degree murder and sentenced to a life without parole term of imprisonment pursuant to Massachusetts law. 30 years later, after the Miller decision, Diatchenko challenged the constitutionality of his sentence.
While the Supreme Court of the United States in Miller held that after an individualized sentencing hearing, a sentence of LWOP was possible (if hopefully an uncommon occurrence), the Court in Diatchenko ruled that such a sentence could never be made “with integrity.” (Diatchenko at Part 3.)
The provision of the Massachusetts state constitution in question – article 26 of the Declaration of Rights – prohibits “cruel or unusual punishments”, similar to the eighth amendment to the U.S. Constitution. But in interpreting its own state constitution, the Diatchenko court went further than the Supreme Court in Miller.
Interestingly, the main thrust of the Diatchenko court’s decision rested not on lofty constitutional principles but rather acknowledgment of the evolving scientific literature surrounding the nature of adolescent brain development. This same literature was cited by the majority in Miller to support its permissive rule for LWOP sentences. But in Diatchenko the court explicitly held that “[s]imply put, because the brain of a juvenile is not fully developed, either structurally or functionally, by the age of 18, a judge cannot find with confidence that a particular offender, at that point in time, is irretrievably depraved.” (Diatchenko at part 3.)
Diatchenko was thus entitled to a new hearing before the state parole board.
The science of adolescent neurobiological development is fascinating yet also still relatively new and somewhat uncertain. As this article by Dr. Laurence Steinberg of the Psychology Department at Temple University in Pennsylvania notes, the influence of this research on the U.S. Supreme Court is having a profound effect on its judgments. If the United States Supreme Court and American state supreme courts continue to take judicial notice of this research, the implications for the juvenile justice system may be nothing short of profound.
Surprisingly, our own Supreme Court has not yet taken formal notice of this literature nor woven it into a judgment. In fact, we have not seen a judgment on the YCJA since R. v. S.J.L. in 2009 (2009 SCC 14) and on the constitutional rights of young persons since D.B. Much has changed in that interim period in the quality of the scientific research surrounding adolescent brain development as noted by the US Supreme Court in Miller.
Whether or not the Supreme Court of Canada will take notice of these developments in its next decision on youth criminal justice thus remains an open question.