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VII. Life without Parole under U.S. Law

State and Federal Law

The Eighth Amendment to the U.S. Constitution prohibits cruel and unusual punishment,227 which includes sentences that are grossly disproportionate to the offense.228 Although it has never ruled on the constitutionality of life without parole for children, the U.S. Supreme Court has often highlighted the inherent differences between youth and adults in the criminal law context. The Court has determined that youth offenders lack the “well-formed” identities of adults and are “immature[e] and irresponsib[le],” and “vulnerable or susceptible to . . . outside pressures.”229

In its 2005 decision to eliminate the juvenile death penalty, the Court enumerated “three general differences between juveniles under nineteen and adults.”230 First, “any parent knows” and “scientific and sociological studies . . . tend to confirm . . . [that youth possess a] lack of maturity . . . an underdeveloped sense of responsibility . . . [they take] impetuous and ill-considered actions and decisions . . . [and they are] comparative[ly] immatur[e] and irresponsibl[e].”231 Second, the Court found that youth are more susceptible to negative influences and peer pressure. Third, the Court stated that a youth’s character is not as well-formed as that of an adult, meaning he or she can and probably will change. The Court concluded that it would be “misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” 232

Even before this landmark decision, the Supreme Court has generally held that “less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult.”233 Similarly, due to children’s lesser capacities for rational thought, the Supreme Court has repeatedly limited children’s abilities to make autonomous decisions about other aspects of their lives.234

Some state courts have found life without parole unconstitutional when applied to child offenders. For example, when interpreting both the U.S. and Nevada constitutions, the Nevada Supreme Court held that life without parole constituted a severe “cruel and unusual” punishment for a fourteen-year-old convicted of murder. The Court pointed to the “undeniably lesser culpability of children for their bad actions, their capacity for growth, and society’s special obligation to children.”235 The Court continued:

To adjudicate a thirteen-year-old to be forever irredeemable and to subject a child of this age to hopeless, lifelong punishment and segregation is not a usual or acceptable response to childhood criminality, even when the criminality amounts to murder. . . . As said, hopelessness or near hopelessness is the hallmark of [this] punishment. It is questionable as to whether a thirteen-year-old can even imagine or comprehend what it means to be imprisoned for sixty years or more. It is questionable whether a sentence of virtually hopeless lifetime incarceration for this seventh grader “measurably contributes” to the social purposes that are intended to be served by this next-to-maximum penalty.236  

Two decades earlier, the Supreme Court of Kentucky determined that the sentencing of two fourteen-year-olds convicted of rape to life without parole violated the Kentucky state constitution and “shocks the conscience of society today and is intolerable to fundamental fairness.”237

Other state Supreme Courts, like those of Indiana and Illinois, have allowed for the possibility of parole in certain cases involving children who have been effectively sentenced to life in prison. The Supreme Court of Indiana has repeatedly found excessively long prison sentences, such as 120 years, disproportionate for children. At the same time, the court has merely reduced such sentences to time spans equivalent to a child’s natural life, such as sixty or eighty years. In one case, a trial court judge refused to consider age as a mitigating factor and sentenced a fifteen-year-old convicted of murder, rape, robbery, and auto theft, among other crimes, to 199 years in prison.238 The Indiana Supreme Court disagreed and reduced the sentence to ninety-seven years because, it concluded, even for the most heinous crimes, age is a “significant mitigating circumstance.”239 Under Indiana law, an individual would first become eligible for parole after serving twenty years of a ninety-seven year sentence.240

The Supreme Court of Illinois, which has not abolished life without parole for youth offenders, has imposed long sentences but allowed for the possibility of parole for certain children convicted of felony murder. In 2002, the Court affirmed a lower court judge’s decision to reduce a fifteen-year-old’s mandatory sentence of life without the possibility of parole to a sentence of fifty years, because the youth acted only as a “lookout” accomplice to the murder of two rival gang members. The sentencing judge found a life sentence without the possibility of parole for a child who was a mere lookout “unconscionable,”241 due in part to the “greater rehabilitative potential” of children.242 Under Illinois law, the youth will be eligible for parole after serving his fifty-year sentence.243

Some state legislatures are also deciding that life without parole is a disproportionate sentence for youth offenders. In Kansas, for example, when legislators passed a bill substituting life without parole for the death penalty, they included a provision that exempted child offenders from either sentence.244 In 2005, Colorado lawmakers considered eliminating life without parole and other particularly long sentences for youth offenders, giving judges the ability to periodically re-examine a youth offender’s progress in prison. These provisions did not pass the Colorado legislature.245 In Florida in 2005, several state legislators introduced a bill to ensure parole for some children sixteen years old and younger sentenced to life. Florida’s bill did not pass the state Senate’s Committee on Criminal Justice.246

Several federal and state courts have determined that it is constitutionally permissible to sentence youth to life without parole. The U.S. Court of Appeals for the Ninth Circuit found that it was not cruel and unusual to sentence a fifteen-year-old first offender convicted of felony murder (in which his co-defendant killed the victim) to life without parole.247 Stating that it had no room to substitute its judgment for that of the legislature in the state of Washington, the court stated that the defendant’s youth had “no obvious bearing on” whether his sentence was disproportionate.248

The U.S. Court of Appeals for the Seventh Circuit, while stating that “a sentence of natural life in prison . . . is exceptionally severe when the defendant is a minor and suffers from deficits of understanding,” nevertheless found that the sentence was not “unconstitutionally severe,” when a judge determines that the sentence is proportionate to the crime.249

Many state supreme courts throughout the United States have upheld life without parole sentences for children.250 In North Carolina, a disturbed and disabled thirteen-year-old with severe neurological problems was convicted of burglarizing an apartment and raping its occupant after harassing her for weeks. The trial court sentenced him to life without parole.251 The North Carolina Supreme Court expressed its support for the legislature’s “reasonable” response to rising youth crime rates, listed states that transfer children to adult criminal court at particularly young ages, and ultimately refused to adopt any “penological theory” that children should be “treated instead of punished.”252 Swayed most by its estimation that the crime committed in the case was “not the type attributable to or characteristic of a ‘child’” and was due no “special consideration[ ],”253 the court upheld the sentence of life imprisonment without parole.

In South Carolina, the state’s “Two-Strikes Law” sends people who commit two serious offenses to life in prison without the possibility of parole.254 A sixteen-year-old sentenced to life without parole under this law for burglary in the first degree and grand larceny had previously been tried in adult court for armed robbery, committed when he was fifteen. The South Carolina Supreme Court held that the life without parole sentence did not unconstitutionally violate contemporary standards of decency, because a “growing minority of states” impose the sentence on children, and “modern society apparently condones” such harsh punishment.255

Mandatory Sentences

While judges in the United States have ruled both for and against the constitutionality of the sentence, they have been more consistent in their opposition to mandatory life without parole for child offenders. For example, one judge sentencing a fifteen-year-old offender to life without parole stated in his order that it was “the sentence that I am mandated by law to impose. If I had my discretion, I would impose another sentence, but that is mandated by law.”256 Mandatory sentencing schemes eliminate statutory provisions allowing a judge to exercise discretion because of a child offender’s age, background, the legal interpretations of facts established at trial, or any other factor provided for by statute that might make another sentence more appropriate. In essence, they substitute the legislature’s generalized judgments about an entire category of youth offenders for the informed and individualized decisions once possible in a particular case.

The judge who sentenced fifteen-year-old Henry L. to life without parole for first degree murder reflected on his own lack of discretion and queried whether the legislature that developed the mandatory sentencing scheme understood the gravity of what it had put in place:

[T]he sentence that I must impose is mandated by law. I don’t have any choice in the matter. I’m not at all comfortable with this case, not because the Defendant didn’t receive a fair trial. I think that he did. . . .

One is always tempted in a case like this to search for some way to lessen the severity of the law because of the fact that the Defendant is only fifteen years old. The Motion for New Trial presented a certain amount of temptation to ignore the law and do something to fit the circumstances. I have a sworn duty to follow the law, and think in the long run the performance of the duty to follow the law is in the best interests of not only this community but the whole state.

. . . It’s obvious to me that we can’t, as a society, say that fifteen-year-old children should be held to the same standards as adults. Our law provides this. I think the law is wrong.257

Some judges find sentencing child offenders to life without parole especially troubling because it rejects the possibility of a child’s rehabilitation. In a case involving a child offender facing life without parole, the Supreme Court of Nevada said, “We may possibly have in the child before us the beginning of an irremediably dangerous adult human being, but we certainly cannot know that fact with any degree of certainty now.”258 In Michigan, a trial court judge refused to impose life without parole on Nathaniel Abraham, who was convicted of murder committed when he was eleven years old. The judge emphasized the impossibility of deciding in the present whether a child offender might reform him or herself in the future: “Don’t ask the Judge to look into a crystal ball today and predict five years down the road . . . Don’t predict today, at sentencing, whether the child will or will not be rehabilitated, but keep the options open.”259

Even some prosecutors question the mandatory sentencing of children to life without parole. Florida State Attorney Harry Shorstein prosecuted fourteen-year-old Joshua Phillips for killing his eight-year-old female neighbor in 1998. Shorstein has said he would not have objected to having a less stringent sentencing option for judges to consider in the case of youth offenders. In Phillips’s case, the judge had only one mandatory sentencing option—life without parole.260 Shorstein said, “I oppose mandatory sentences and the Legislature’s tying the hands of judges and prosecutors.” He continued, “No matter how tough you are on crime, you can’t say a fourteen-year-old is the same as an eighteen-year-old.”261

Case Study: Jose A.

Jose A. was fifteen at the time of his crime and is serving life without parole in the federal prison system. He was prosecuted for murder under federal racketeering laws for conspiring with three other individuals, all of whom were alleged to be members of the Latin Kings gang in Yonkers, New York. The U.S. Attorney’s motion to transfer his trial to adult court was granted after a hearing, in which the court was required to weigh factors such as the seriousness of Jose’s offense, his maturity, and his potential for rehabilitation.

Jose’s former defense attorney, Paul Rinaldo told a researcher for this report about the transfer hearing: “He didn’t have a chance to stay in juvenile court. The prosecutor focused on the fact that [Jose] was a gang member and emphasized the nature of the crime, that it wasn’t done out of passion, that it was planned and the victim had been tracked down . . . The victim also was not a gang member. There was no convincing the court to pay attention to [Jose’s] actual role in the crime.”262

Jose wrote about his role: “I was alleged to have participated in the murder by acting as a lookout. At my trial, various co-conspirators testified that I rode my bicycle around the block and was to look for police while another person committed the murder.”263 Contemporaneous press accounts, his defense attorney, and testimony at trial all substantiate Jose’s role in the crime as a lookout.264 At trial, witnesses testified that Jose had been in the gang as a “Pee Wee Latin King” (for children) for no more than two or three months prior to the murder. They explained that Jose was fifteen years old at the time and that his “job was to ride his bicycle around the block as a lookout.”265 One of Jose’s co-conspirators entered into a plea agreement in which he received a fifty-year sentence and admitted to shooting the victim as a reprisal.266 At his sentencing hearing, Jose’s attorney asked the judge to consider a sentence other than life without parole. The judge found that she was “required by law to sentence . . . to the mandatory minimum term of life imprisonment and that I do not have the discretion to depart.”267

Jose’s attorney said: “This trial was one of the worst. Right up until the very end, I really thought we had a chance. The prosecutor had three other perpetrators to convict, including the triggerman! And, I mean, [Jose] was such a minor player. While the other gang members had clearly planned things out and tracked the victim a few times prior to the murder, the evidence showed that [Jose] was brought in only that night . . . And his role was so stupid . . . I even brought a map into the courtroom to show the jury how crazy it was to have him ride away from point A, the victim’s house, and then expect him to hustle on back, pedaling like mad, to say he saw a cop around the corner!     . . . Jose broke down when he heard the jury give their verdict. He knew what was coming. It’s a horrible memory.”268

[227] U.S. Constitution, Eighth Amendment.

[228] See, e.g. Solem v. Helm, 463 U.S. 277 (1983). But see Ewing v. California, 538 U.S. 11 (2003) (rejecting Ewing's claim that his sentence was grossly disproportionate under the Eighth Amendment and reasoning that California’s practice of enhancing sentences under its “three strikes” law served the state's legitimate goal of deterring and incapacitating repeat offenders).

[229] Roper v. Simmons, 125 S.Ct. 1183, 1195 (2005).

[230] Ibid.

[231] Ibid.

[232] Roper v. Simmons, 125 S.Ct. 1183, 1196 (2005).

[233] Thompson v. Oklahoma, 487 U.S. 815, 835 (1988).

[234] See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 587 (2001) (concluding that children “lack the judgment to make an intelligent decision about whether to smoke”) (Kennedy, J., concurring, Souter, J., concurring in part, Stevens, J., concurring in part); Parham v. J.R., 442 U.S. 584 (1979) (concluding that children have no due process rights to notice and a judicial hearing before being committed by their parents to a mental institution, and explaining that “parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions . . . Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment.” A plurality of the Court cited this language approvingly in Troxel v. Granville, 530 U.S. 57, 68 (2000) (plurality opinion), a case involving visitation rights of grandparents); Belotti v. Baird 443 U.S. 622, 634 (1979) (plurality opinion) (holding that judges may authorize abortions for minors without parental consent,since constitutional rights of children and adults are unequal due to the “peculiar vulnerability of children,” and “their inability to make critical decisions in an informed, mature manner...”); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 95 (1976) (Stevens, J., partially concurring and partially dissenting) (recognizing that “[b]ecause he may not foresee the consequences of his decision, a minor may not make an enforceable bargain. He may not lawfully work or travel where he pleases, or even attend exhibitions of constitutionally protected adult motion pictures. Persons below a certain age may not marry without parental consent.”); Ginsberg v. New York, 390 U.S. 29 (1968) (refusing to strike down a New York statute prohibiting the sale of obscene publications to those under age seventeen, because “at least in some precisely delineated areas, a child ... is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees”) (Stewart, J., concurring).  

[235] Naovarath v. State, 779 P2d 944, 948 (Nev. S.Ct. 1989).

[236] Ibid.

[237] Workman v. Kentucky, 429 S.W.2d 374 (Ky. S. Ct. 1968).

[238] The Indiana Supreme Court opinion included a footnote stating: “Indiana law provides that a child under the age of sixteen who commits a murder cannot be sentenced to death or life imprisonment without parole.” Ind. Code § 35-50-2-3(b) (1998).

[239] Trowbrigde v. State, 717 N.E.2d 138, 150 (Ind. 1999) (finding consideration of age consistent with an Indiana statute prohibiting life in prison without parole sentences for youth under sixteen. See Ind. Code § 35-50-2-3(b) (2004)).

[240] See Ind. Code § 2-13-3 (2004).

[241] People v. Miller, 781 N.E.2d 300, 303 (Ill. 2002).

[242] Ibid.

[243] See 730 ILCS § 5/3-6-3 (1998).

[244] John L. Patterson, “Alternative Penalty,” Kansas City Star, February 19, 2004, at B1.

[245] Jim Hughes, “Parole Fight For Juveniles Changes Course,” Denver Post, March 4, 2005.

[246] See Florida Senate Bill 446 and House Resolution 689. See generally Beth Reinhard, “Parole Denied for Kids Who Get Life,” Miami Herald, April 1, 2004, p. 1A; Mark Hollis, “Panel Opposes Sentencing Revisions,” South Florida Sun-Sentinel, April 1, 2004, p. 5B.

[247] Harris v. Wright, 93 F.3d 581, 585 (9th Cir. 1996).

[248]Harris v. Wright, 93 F.3d 581, 584-5 (9th Cir. 1996).

[249] Rice v. Cooper, 148 F.3d 747, 752 (7th Cir. 1998).

[250] See e.g., State v. Pilcher, 655 So. 2d 636, 644 (La. Ct. App. 1995) (holding life sentence without possibility of parole for fifteen-year-old murderer was not unconstitutional under the Eighth Amendment); Swinford v. State, 653 So. 2d 912, 918 (Miss. 1995) (upholding trial court's sentence of life imprisonment for fourteen-year-old who aided and abetted murder); State v. Garcia, 1997 N.D. 60, 561 (ND 1997) (holding a life sentence without possibility of parole for a sixteen-year-old did not violate Eighth Amendment) cert. denied, 118 S. Ct. 193 (1997); State v. Massey, 60 Wash. App. 131 (Wash Ct App 1990) (finding no cause to create a distinction between a thirteen-year-old juvenile and an adult who are sentenced to life imprisonment without parole for first degree aggravated murder) cert. denied by Massey v. Washington, 499 U.S. 960 (1991); State v. Foley, 456 So. 2d 979, 984 (La. 1984) (affirming life sentence without parole of fifteen-year-old convicted of rape against assertion it was cruel and unusual punishment); White v. State, 374 So. 2d 843, 847 (Miss. 1979) (upholding a sixteen-year-old's sentence of life imprisonment without parole for armed robbery against assertion that it was cruel and unusual punishment); People v. Fernandez, 883 P.2d 491, 495 (Colo. Ct. App., 1994).

[251] The sentence is mandated under N.C. Gen. Stat. § 15A-2002.

[252] State v. Green, 502 S.E.2d 819. 832 (N.C. 1998) (internal quotations omitted).

[253] State v. Green, 502 S.E.2d 819. 832 (N.C. 1998).

[254] S.C. Code Ann. § 17-25-45(C)(1) (2004).

[255] State v. Standard, 569 S.E.2d 325, 329 (2002), cert. denied, 537 U.S. 1195 (2003).

[256] Sentencing order of Judge Dennis Dernback, October 23, 2001 (on file with Human Rights Watch) (the statute referenced requires a life without parole sentence for an individual found guilty of first degree murder of more than one victim irrespective of the defendant’s age at the time of the offense, including under a theory of accountability, ILCS 5/5-8-1).

[257] Honorable David Scott DeWitt (deceased), excerpt from sentencing transcript in People v. Lashuay, 75th Circuit Court, Midland County, Michigan, June 25, 1984 (on file with Human Rights Watch).

[258] Naovarath v. State, 779 P.2d 944, 947 (Nev. 1989).

[259] Michigan state court judge Eugene Arthur Moore, quoted in Marc Mauer, Ryan S. King, and Malcolm C. Young, The Meaning of ‘Life:’ Long Prison Sentences in Context, (The Sentencing Project, 2004), p. 18, available online at:, accessed on July 22, 2005.

[260] Paul Pinkham, “Court upholds life in prison for teenager,” Florida Times-Union, February 7, 2002, p. B-1.

[261] Ibid.

[262] Human Rights Watch telephone interview with Paul Rinaldo, New York, July 15, 2005.

[263] Letter to Human Rights Watch from Jose A., United States Penitentiary Allenwood, White Deer, Pennsylvania, March 9, 2004 (pseudonym) (on file with Human Rights Watch).

[264] See U.S. v. Rivera, Case No. 00-1831(L) / 00-1832, 2d Circuit Ct. of Appeals, March 12, 2003; “Four gang members get life in Yonkers killing,” Associated Press, December 14, 2000; Brief for Defendant-Appellant, 2002 WL 32145164 (2d Cir 2003).

[265] Brief for Defendant-Appellant, 2002 WL 32145164 (2d Cir 2003) (citing to trial record, A-435, p. 1166-1171).

[266] See “Man sentenced to 50 years in prison in compliance with plea deal,” Associated Press, April 26, 2000.

[267] Brief for Defendant-Appellant, 2002 WL 32145164 (2d Cir 2003) (citing to trial record, A-742, quoting Southern District of New York Judge Colleen McMahon).

[268] Human Rights Watch telephone interview with Paul Rinaldo, New York, July 15, 2005.

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