Category Archives: Sentencing

Before the Court: The Constitutionality of Life Without Parole Sentencing for Juvenile Murderers

Erin Brennan, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Erin Brennan, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

That is the question that is before the U.S. Supreme Court in cases being heard concurrently, Miller v. Alabama and Jackson v. Hobbs. The Supreme Court heard oral arguments on these cases on March 20, 2012. This issue has worked its way into the Supreme Court docket as a response to questions arising from a somewhat recent thread of cases including Roper v. Simmons and Graham v. Florida.

In Roper, the court looked at the constitutionality of the death penalty as a sentence for juveniles who were under the age of 18 when their crimes were committed[1]. The Court ultimately concluded in its 2005 decision that the death penalty for teenagers under the age of 18, was indeed, unconstitutional under the Eighth and Fourteenth Amendment.[2] The court relied on “the evolving standards of decency that mark the progress of a maturing society” in order to make a judgment in regards to which punishments reach the level of “cruel and unusual.”[3] The Court also looked to the fact that a majority of the states disallowed the death penalty for juveniles as indicia (evidence) of general societal views that juveniles are “categorically less culpable than the average criminal.”[4] As an illustration of this, in Justice Kennedy’s opinion, he indicated that “[t]he reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.”[5]

Furthermore, the Court took this holding a step further in Graham. The Court, in that case, held that life sentences without parole are cruel and unusual under the Eighth Amendment in cases involving juvenile non-homicide offenders. The Supreme Court left unanswered the question of whether sentencing juveniles who committed murder to life without parole is permissible.

            The Court’s stance on this latest question could potentially affect over 2,000 prisoners who committed murder when they were under eighteen and are currently sentenced to life without parole.[6] However, 79 of these prisoners are imprisoned for crimes they committed when they were fourteen years of age or under, the ages of the defendants in Miller and Jackson.[7] Therefore, the repercussions of the Court’s decision could be felt by many more individuals if they broaden their holding to include those under eighteen years of age, or lessen its impact if the Court narrows its holding to preclude this sentence for those fourteen and younger.

            The Court will be facing a potentially difficult task in reaching a conclusion in this instance, as the Miller and Jackson cases present quite varied situations. The facts of the Miller case can be considered rather shocking. Evan Miller took part in (and arguably orchestrated) the killing of his middle-aged neighbor Cole Cannon in Alabama. Miller, fourteen at the time of the murder, and Colby Smith, his sixteen year old co-defendant, brutally beat Cannon in his trailer after attempting to rob him of approximately $300. The boys had already stolen a number of baseball cards from Cannon’s home earlier in the evening. The boys returned to Cannon’s trailer a short time after they left him to die, in order “to cover up the evidence” by setting the trailer on fire.[8] Cannon eventually died due to smoke inhalation from the fire.[9]

            On the other end of the spectrum, the Jackson case involves an arguably more sympathetic defendant. Kuntrell Jackson, also fourteen years old at the time, was charged with felony murder in the state of Arkansas.[10] Jackson did not shoot the victim, rather Jackson was with a group of boys when they robbed and shot a video store clerk with a sawed off shot-gun.[11]

            These two cases illustrate the wide variance of potential scenarios that could lead to a sentence of life without parole for a juvenile who is convicted of murder. It also raises questions about the mandatory nature of some of the states sentencing schemes. Currently, thirty-nine states allow sentences of life without parole for juveniles who commit murder.[12] Both Alabama and Arkansas, the states at issue in these cases, have mandatory requirements of sentences of life without parole for juveniles who are convicted of murder. In fact, around some 2/3 of states which permit life sentences without parole for juveniles require mandatory sentencing.[13]

            There is a good argument that mandatory sentences may also prevent the telling of the whole story involved with a case. If a person is automatically given the sentence of life without parole, it prevents the jury or the judge (whoever is carrying out sentencing) from considering relevant mitigating factors. For instance, just from reading the facts given above in the Miller case, a potential member of the jury may say to themselves it is justified that the young man was given a life sentence without the chance of parole. However, would they feel this same way if they learned that Evan Miller grew up subject to a childhood of abuse? That he was beaten by his alcoholic father? That his mother was a drug addict?[14]  That he turned to drug use and alcohol to cope with his situation at the age of eight?[15]  Even if these facts would change a jury’s mind, they do not play a significant role under the current mandatory sentence guidelines.

Some, including Miller’s defense attorney Bryan Stevenson, argue that sentences of life without parole should be done away with altogether for children under eighteen. In part, this argument hinges on the fact that America has one of the most severe systems of punishment for juveniles when compared to other countries.[16] In addition, Stevenson argues that the Court’s holding in Graham should not be limited to non-homicide cases because “[a]ll children are encumbered with the same barriers that this Court has found to be constitutionally relevant before imposition of a sentence of life imprisonment without parole or the death penalty.”[17]

 On the other hand, a number of legal experts would argue that a constitutional ban on these sorts of sentences for juvenile offenders would not be the most effective means of achieving a just result. As a victim right’s advocate Kent Scheindegger put it, “[A]ge is something to take into consideration in sentencing, but that one factor should not trump everything else.”[18]

At the end of the day the fact that this sentence is permitted by such a majority of the states may weigh heavily on the Court’s analysis in accordance with “the evolving standards of decency” under the Eighth Amendment. As Justice Scalia indicated during oral arguments, “[T]he American people have decided that that’s the rule. They allow it. And the federal government allows it. So I’m supposed to impose my judgment on what seems to be a consensus of the American people?”[19]


[3] Roper, 545 at 551.

[4] Roper,

[5] Roper, 545 at 553.

[17] Oral Arguments, Miller v. Alabama, No. 10-9646,  pg 3. March 20, 2012. http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-9646.pdf

[19] http://www.cnn.com/2012/03/19/opinion/steinberg-juvenile-crime/index.html?iref=allsearch

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Prison Time for Acquitted Conduct Remains a Reality in America

Will Turner, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

After delivering Alabama’s Albritton lecture on November 16,[1] former U.S. Supreme Court Justice John Paul Stevens was asked by an audience member to recall an opinion he had written of which he remained especially proud. Without hesitation, Justice Stevens referred to his dissent in United States v. Watts, where he had disagreed with the majority’s holding that federal courts may consider acquitted conduct when determining prison sentences under the Federal Sentencing Guidelines. Although the Guidelines have since been made advisory, they remain the rubric by which virtually all federal sentences are determined, and federal district judges continue to enhance sentences based on conduct never proven beyond a reasonable doubt.

This past summer, I had the opportunity to intern at the Federal Defender’s office in Montgomery, where I witnessed Sentencing Hearings for the first time. Families of defendants were often stunned at the degree to which Sentencing Hearings “looked like trials,” and how prison time could be enhanced based merely on whether the sentencing judge found that some alleged (often uncharged) conduct had probably occurred.

Unfortunately, the perception is accurate. After a defendant has been convicted of a crime in federal court, the sentencing judge may take into account a myriad of alleged acts unrelated to the charge on which the conviction was applied. The standard for finding guilt for sentencing purposes is preponderance of the evidence, and after taking evidence and arguments from the prosecution and defense, a single district judge issues a final decision as to guilt, as well as the conditions and length of the sentence imposed. The hearings usually concern conduct for which the U.S. Attorney could not acquire enough evidence to convict beyond a reasonable doubt, and in my limited experience, the evidence presented mostly included “he said, she said” testimony, with judges, more often than not, believing the person not wearing shackles. In Watts, Justice Stevens fought a losing battle, arguing that the proof beyond a reasonable doubt standard was the traditional norm enshrined in the Court’s constitutional jurisprudence, and as such, should be read into the sentencing guidelines.

Regardless of the constitutionality of modern sentencing standards, enhancing prison time for conduct not proven beyond a reasonable doubt is bad policy. While it is relatively easy to make philosophical or moral arguments against such a policy, perhaps the most obvious argument against it is considerably simpler. Money.

The official estimated cost of housing one federal prisoner for one month is just under $2,000.[2] That estimate, however, is from 2001, and current levels are almost certainly higher. In 2006, over $68 billion was spent on corrections in the United States, and the overall prison population is now close to 2.3 million.[3] That population continues to grow exponentially and represents the highest per capita prison population in the world.[4] More than one of every hundred American adults is incarcerated.

Perhaps even more strikingly, only 7.9 % of federal prisoners are sentenced on convictions of violent crimes.[5] This particular statistic is confirmed anecdotally by my own experience. Last summer, virtually every probation report that I looked at noted that there were “no identifiable victims” of the crime at issue. The convictions in the reports I saw often involved unlawful possession of narcotics or firearms; less often did they involve material harm to a human being.

A major cause of the extraordinarily high rate of incarceration in the United States has been traced to the length of prison sentences, and sentence length comes directly from the Federal Sentencing Guidelines. Aside from the fact that sentences in the United States tend to exceed sentences in other nations for the same or similar offenses, enhancements based on acquitted or unprosecuted conduct add even more time to already to severe sentences.

Adding to the already burdensome inclusivity of the Federal Sentencing Guidelines is the Armed Career Criminal Act (ACCA), by which federal prisoners convicted of three past “violent felonies” or “serious drug crimes” are automatically sentenced to a minimum of fifteen years. Speaking at Alabama in 2010, Chief Justice John Roberts openly criticized mandatory minimum sentences such as the ACCA as being bad policy.

Yet despite recognition of the problems inherent to the system, it remains largely intact. At least one source of the problem is the broad appeal that “tough-on-crime” political platforms convey, and legislators at the state and federal level continue to be successful running on such a message. It would be unheard of to run a “soft-on-crime” campaign, even knowing the financial benefits that a softer on sentencing policy would entail.

Although politicization of the issue may make the prospect for reform weak, at least some precedent exists to allow for change outside of legislative action. In 2005, the Supreme Court held in United States v. Booker that judges would no longer be required to sentence within the sentencing guidelines. Now, judges may make either upward or downward “variances” outside of the guidelines. This has opened the door to allow judges to consider character evidence, the overall impact that lengthy sentences have, and to make a downward departure from the guidelines without having to have a codified reason for doing so.

Booker also held that the original calculation of the maximum possible sentence must be based on facts either found by a jury beyond a reasonable doubt or admitted by the defendant. Effectively, this aspect of the holding caps the effect that acquitted conduct can have on a sentence by requiring that the maximum possible sentence corresponds to the convicted conduct.

Also, since the passage of the ACCA, the Supreme Court has had to clarify on several occasions whether particular state offenses qualified as “violent felonies” or “serious drug crimes,” and on many occasions the Court has held that crimes held by lower federal courts to meet those standards were not, in fact, “violent” or “serious.”

These holdings by the Court have had piecemeal impact on sentencing practice, but broader reform is still needed. Most Americans can quote the “reasonable doubt” standard from an early age, and many probably assume that people don’t go to prison except when that standard has been met. The Federal Sentencing Guidelines, however, make that assumption incomplete because federal inmates often stay in jail much longer because of alleged conduct never proven beyond a reasonable doubt. A heightened public awareness of the impact and expense of the guidelines would go a long way towards a much needed overhaul of U.S. practice.

General Sources:

United States v. Watts, 519 U.S. 148 (1997)

United States v. Booker, 543 U.S. 220 (2005)

http://en.wikipedia.org/wiki/Armed_Career_Criminal_Act

http://www.nj.com/times-opinion/index.ssf/2011/06/opinion_families_against_manda.html

http://en.wikipedia.org/wiki/Federal_Sentencing_Guidelines

[1]http://www.law.ua.edu/resources/podcasts/lectures/Albritton_Lecture_John_Paul_Stevens-11-16-11 (41:30).

[5] http://bjs.ojp.usdoj.gov/content/pub/pdf/p09.pdf

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

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