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VI. Just Sentencing for Children

Conviction for even a very serious crime does not extinguish a child offender’s claim to just treatment at the hands of the state, nor does it free the state to ignore the offender’s fundamental rights when determining punishment. Colorado’s current law mandating and permitting the imposition of life without parole sentences on child offenders runs contrary to important human rights principles embedded in state and federal constitutional law as well as international human rights treaties.

Punishment should not exceed the gravity of the crime and the culpability or moral responsibility of the offender. This principle of proportionality is deeply woven into all of the world’s criminal justice systems. It is the cornerstone of international criminal law, human rights laws applicable to crime, and U.S. criminal law.66  When an offender is a child, his or her diminished culpability must be taken into account to determine a fair and proportional sentence.

Conventional wisdom, developmental psychology, and neuroscience all agree that children are less able to make rational decisions and control impulsive behavior. Their lesser capacities reduce their moral responsibility for their crimes. Substituting children as somewhat analogous to the mentally retarded individuals examined by the Supreme Court in its 2002 decision in Atkins v. Virginia, their “deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.”67 That is, a child and an adult who commit the same crime have different levels of culpability, and those differences must be reflected in their sentences if justice is to be served.


Under U.S. law, punishment that is disproportionately severe can violate the Eighth Amendment’s prohibition on cruel and unusual punishment.68 The U.S. Supreme Court has never directly ruled on the constitutionality of life without parole sentences for children. It has found, however, that because children are less responsible and mature, “less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult.”69

There is only one Colorado ruling on the constitutionality of the life without parole sentence for children. In 1994, the Colorado Supreme Court decided that the sentence of life without parole was not a disproportionate sentence under Colorado’s constitution for the crime of first degree murder committed by a seventeen-year-old.70The court also did not consider the lesser culpability of children; it merely decided without explanation that age was not a relevant factor. Other courts throughout the country have determined that it is constitutionally permissible to sentence a youth offender to life without parole. Applying tests developed by the U.S. Supreme Court,71 these courts have generally examined the severity of the crime committed by the child offender standing trial and concluded that the sentence was not “grossly disproportionate” to the crime.72

Courts in other states have come to the opposite conclusion, finding that life without parole for youth offenders is a disproportionate and hence cruel sentence. For example, interpreting both the U.S. and Nevada constitutions, the Nevada Supreme Court held that life without parole constituted a disproportionately “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.”73 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.”74 More recently, the Illinois Supreme Court held that sentencing a defendant who was fifteen at the time of his crime of felony murder to life without parole violated the Illinois state constitution.75 


[66]See, e.g. Harmelin v. Michigan, 501 U.S. at 1021 (White, J. dissenting) ("Punishment must be tailored to a defendant's personal responsibility and moral guilt"); Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998, Article 78 (“In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.”).

[67] Atkins v. Virginia, 122 S.Ct. 2242, 2251 (2002).

[68] Prison sentences are sometimes subjected to a proportionality analysis by the U.S. Supreme Court under the U.S. Constitution’s Eighth Amendment. See, e.g. Lockyer v. Andrade, 538 U.S. 63 (2003) (analyzing two consecutive prison terms of twenty-five years to life using proportionality principle when defendant was found guilty of two counts of petty theft, with a prior conviction for stealing video tapes valued under two hundred dollars).

[69] Thompson v. Oklahoma, 487 U.S. 815, 835 (1988). The Supreme Court’s current thinking on the differences between adults and children and the criminal sentencing consequences that should flow from those differences may be revealed in Roper v. Simmons, a case concerning the constitutionality of the death penalty when applied to sixteen and seventeen-year-olds. The decision is expected in early 2005.

[70] See People v. Fernandez, 883 P.2d 491, 495 (Colo. Ct. App., 1994).  It can be assumed that the court was ruling under the state Constitution since it did not specify that it was interpreting the U.S. Constitution. Regardless, both Colorado’s Constitution and the U.S. Constitution state “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  See Colorado Constitution, Article II § 20; and U.S. Constitution, Eighth Amendment.

[71] See Harmelin v. Michigan, 501 U.S. 957 (1991) (modifying Solem v. Helm, 463 U.S. 277, (1983)).

[72] 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; State v. Massey, 60 Wash. App. 131 (Wash Ct App 1990) (finding no cause to create a distinction between 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).

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

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

[75] People v. Miller, 781 N.E.2d 300 (Ill. S. Ct. 2002).

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