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Over the past few years, the U.S. Supreme Court has held that mandatory life without parole sentences for juveniles violate the Eighth Amendment ban on cruel and unusual punishment. In 2010, the court ruled that was true for young offenders convicted of crimes other than homicide. And two years later, it added homicide to the ban.
As the court held in one opinion, Children are constitutionally different from adults, for purposes of sentencing, because juveniles have diminished culpability and greater prospects for reform. Those Supreme Court decisions were widely reported when they were announced. What has not been so widely reported is what happened to implement the ban on mandatory life without parole sentences for juveniles by the states?
Law Professor Cara Drinan, of Catholic University in Washington, D.C., has looked at precisely that question and published a law journal article on the subject. And she's found great reluctance to comply with the court's rulings. And she joins us now to talk about it.
Welcome to the program.
CARA DRINAN: Thank you for having me.
SIEGEL: And first, how many states have taken action to change how they sentence juvenile offenders in light of the court's decisions?
DRINAN: Right, so 11 jurisdictions to date have made attempts to bring their state laws into compliance with the court's decisions, either through judicial opinion or through legislation.
SIEGEL: Eleven states out of how many that would be affected by all this?
DRINAN: Well, the two decisions had different implications. The court's first decision in 2010 affected legislation in 39 jurisdictions. And the mandatory sentencing decision in 2012 affected 29 jurisdictions. So that means there is quite a bit of work to be done still.
SIEGEL: But explain this. Does being in compliance mean rewriting the law that lists all the sentences? Or does it mean the judges don't sentence children to those terms?
DRINAN: So the real onus is on state lawmakers to change the laws on the books. Unless and until that happens state court judges and executive actors - prosecutors and, in my opinion, governors - have an obligation to bring state practice into compliance.
SIEGEL: You describe the reaction of one state, Iowa, to the court's rulings that seems to be a very narrow, literal reading of what the court decided. But it seems to violate the whole spirit of what the court did. What happened in Iowa?
DRINAN: So, in Iowa, the governor determined, OK, we have a set number of individuals who have received this now-unconstitutional sentence. What we'll do is simply commute the sentences to term-of-years sentences and call it a day. And so that is in fact what happened in Iowa. All of the juvenile offenders who were serving life without parole, their sentences were commuted to 60 year terms. And then...
SIEGEL: So effectively they're still doing life without parole. They'd spend the rest of their lives in prison in all likelihood.
DRINAN: Right, well, that actually is a question that's been litigated: What is the de facto life sentence? But in Iowa, the State Supreme Court did, in fact, agree with the defendants in that case who challenged those commutations, and said that's an overreach on the governor's part, and it's not in keeping with what the Supreme Court intended. So those individuals are now seeking individual re-sentences. Although, I have to say, they have not had much luck before the parole board in Iowa.
SIEGEL: How many juveniles are we talking about here? How many people who at least were juveniles when they were convicted, have been serving life without parole?
DRINAN: Right, so in the 2012 decision, the court estimated that it was dealing with about 2,500 inmates nationwide who had been sentenced, as juveniles, to life without parole for homicide offenses. There are about probably another 100 or 200 who were serving life without parole for non-homicide offenses.
SIEGEL: And they're scattered all over the country? Or where are they concentrated?
DRINAN: Scattered all over the country, yes, but concentrated inside jurisdictions. So it's Pennsylvania, Michigan, Florida, California, and Louisiana that house the bulk of those 2,500 inmates.
SIEGEL: In Pennsylvania, earlier this month, there was a notorious mass stabbing at a high school for which a 16-year-old was charged. And he was charged as an adult, which seems typical. That is, many people seem to think that juvenile justice is for kids who steal cars for joy rides, or kids who shoplift. But that if there is a seriously violent crime you should automatically try the child as an adult. What does the court actually say about that?
DRINAN: Well, I think it's only recently that the court has taken a position on that. For decades, you're absolutely right. The sort of majority view in this country was if you do an adult crime, you will do adult time.
The court has said in its recent opinions, to which you referred earlier, that that does not make sense. That brain science in this day and age tells us that children at 16, at 17, they simply don't have behavior control, impulse control, the capacity to assess risk and plan ahead. That they're fundamentally different in the eyes of the law and that our sentencing practices need to reflect that.
SIEGEL: Your article, it reminds me that the Supreme Court banned segregated public schools in the 1950s. And it took years to get Southern states to implement that. What is the Supreme Court supposed to do after it bans something? How does it enforce implementation of what it's done? And what is considered quick implementation of a big Supreme Court decision?
DRINAN: Typically the court enforces it when the issues percolate back up to the court. So, for example, one of the issues in the wake of the court's 2010 decision that said juveniles who commit non-homicide offenses may not be sentenced to life without parole, one issue that has come up in the wake of that decision is, OK, we hear you, we can't sentences young, armed robber to life without parole, how about an 89-year sentence. Is that permissible?
So there's been a whole crop of litigation in the lower courts, state and federal, addressing this question of what is permissible. And if there's enough split across the country it will have to squarely resolve that issue.
SIEGEL: One thing that always arises from parole or certainly from shortened sentences is the family of a victim will say, we were told when all this happened back, don't worry, that kid is going to be locked away, he'll never see the light of day for the rest of his life on the outside. Suddenly they're told, no, actually has a chance to get out.
DRINAN: Absolutely, yeah. No, that's, and that is playing out, for example, in Massachusetts where the State Supreme Court has said that these decisions will be retroactively applicable, meaning they apply to all people who are currently serving life without parole sentences for juvenile offenses. And there has been enormous opposition from victims' family members who have said exactly that.
And understandably so have said that, you know, this was a horrific experience for us, the trial itself was traumatic, and the thought that we now have to relive one parole hearing or more than one parole hearing, right, maybe even sequential parole hearings, that's understandably upsetting. And so, I think that whatever legislation is enacted has to be respectful of that viewpoint.
SIEGEL: Professor Drinan, thank you very much for talking with us.
DRINAN: Thank you for having me.
SIEGEL: Cara Drinan has written about state juvenile sentencing laws in light of recent Supreme Court rulings. She teaches at Catholic University in Washington, D.C.
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