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“I wish I still had the death sentence . . . . Really, death has never
been my fear. What do people believe? That being alive in prison is
a good life? This is slavery.”1

Roper v. Simmons2 released over seventy juveniles from dying as punishment
for their crimes.3 Roper also effectively converted the death sentences for those
children to sentences of life without the possibility of parole. In many states, life
without parole and death are the only two options when sentencing homicide
offenders.4 The Supreme Court has almost exclusively permitted a proportionality
analysis between crime and punishment for offenders facing the possibility of
Because adults are still subject to the possibility of death, they are afforded
this proportionality analysis and defense attorneys are permitted to introduce
mitigating evidence on their behalves. For juveniles no longer facing death, the
opportunity to introduce mitigating evidence is lost. While adults are generally not
permitted such an analysis when facing mere life without parole, juvenile
offenders, because of their age and immaturity at the time of the offense, should be
afforded greater protection from permanent incarceration than adult offenders.6
Although juveniles are removed automatically from the juvenile system when they

1. Adam Liptak, Serving Life, With No Chance of Redemption, N.Y. TIMES, Oct. 5, 2005, at 4
(quoting prisoner Randy Arroyo commenting on his converted sentence. Arroyo had been sentenced to
death as a juvenile, but was spared by the Roper decision).
2. 543 U.S. 551, 578 (2005) (holding the juvenile death penalty unconstitutional).
3. Id. at 596 (stating that 70 juveniles in 12 different states were on death row at the time Roper
was decided).
4. See Julian H. Wright, Jr., Life-Without-Parole: An Alternative to Death or Not Much Life at
All?, 43 VAND. L. REV. 529, 540 (1990) (concluding that there are six categories for sentencing utilized
throughout the states, a minority of which implement the two-tiered approach where LWOP and death
are the only options).
5. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 994 (1991) (plurality opinion) (asserting that
death is the only punishment that requires a proportionality review under the Constitution).
6. See C. Antoinette Clarke, The Baby and the Bathwater: Adolescent Offending and Punitive
Juvenile Justice Reform, 53 U. KAN. L. REV. 659, 694-710 (2005) (listing immaturity, biological
influences, social context, impulsivity, future orientation, peer influence, perception of risk, and
formation of identity as factors affecting decision-making in adolescents, reducing their criminal


commit serious crimes, they should not be automatically considered adults.7 If any
right should be retained from the juvenile system, it should be the right to
individuality at the time of sentencing. A proportionality analysis should be
mandated before a juvenile is sentenced to life without parole. Furthermore,
juvenile offenders should receive a third sentencing option, adding to the two-tiered
jurisdictions: life with the possibility of parole.
Roper v. Simmons marked the beginning of a new era for juvenile justice.8
The abolishment of the juvenile death penalty will undoubtedly have a large impact
on violent juvenile offenders, whether adjudicated in the juvenile system or in the
adult criminal court.9 Although the decision brings hope to advocates of juvenile
justice reform, the thin margin upon which it was decided leaves both advocates
and critics uneasy.10 With recent changes in the Supreme Court makeup,11 the
question remains whether the decision will subsequently be overturned, or whether
its implications will extend to the next severe punishment: mandatory life without
the possibility of parole (“LWOP”). The Supreme Court was correct in concluding
that the death penalty is unconstitutional for juveniles. However, the holding
leaves much to be desired in the eyes of juvenile advocates whose assertion is that
mandatory LWOP sentences are equally as unforgiving and harsh.
There are fervent constitutional arguments to support a Supreme Court
declaration that mandatory LWOP is equivalent to the death penalty for juveniles,
and should thus be deemed cruel and unusual.12 There are also solid policy
arguments for supporting this declaration. Psychological and neurological
deficiencies in violent juveniles at the very least warrants a proportionality review
before mandating that they spend the rest of their lives in prison.13 The penalogical
goals of retribution and deterrence are not applicable with equal force to juveniles
as with adults.14 LWOP’s unique situation chooses incapacitation over
rehabilitation, and rejects per se the fundamental purpose of the juvenile justice

7. E.g., Juvenile Act, 42 Pa. Cons. Stat. Ann. § 6302 (2004) (requiring automatic transfer of
juveniles age 15 or older who are charged with murder, rape, IDSI, aggravated assault, robbery, robbery
of a motor vehicle, aggravated indecent assault, kidnapping, voluntary manslaughter, or any attempt,
conspiracy or solicitation of any of these crimes to the adult criminal court).
8. 543 U.S. at 578.
9. See Elizabeth S. Scott & Thomas Grisso, The Evolution of Adolescence: A Developmental
Perspective on Juvenile Justice Reform, 88 J. CRIM. L. & CRIMINOLOGY 137, 167 (1997) (noting the
recent increase in severity of punishment for juveniles whether tried in criminal court or in the juvenile
10. See generally Roper, 543 U.S. 551 (the case was decided with only a 5-justice majority, 4 of the
justices dissenting).
11. Edward M. Kennedy, Roberts and Alito Misled Us, WASH. POST, Aug. 6, 2006, at A1
(commenting on the new justices’ agenda on the Supreme Court and referring to the new Chief Justice
John Roberts and Justice Samuel Alito replacing Justice O’Connor and Chief Justice Rehnquist).
12. See Brief of Petitioner-Appellant at 9, Harris v. Wright, No. 94-35365 (9th Cir. Nov. 30, 1994)
(asserting that the proportionality review under the Eighth Amendment must take into account
distinguishing characteristics of an individual’s class in order to be a meaningful review).
13. Jill M. Ward, Deterrence’s Difficulty Magnified: The Importance of Adolescent Development in
Assessing the Deterrence Value of Transferring Juveniles to Adult Court, 7 U.C. DAVIS J. JUV. L. &
POL’Y 253 (2003) (arguing that adolescent developmental principles must be incorporated into youth
violence and crime reduction policy).
14. Roper, 543 U.S. at 571 (asserting that juvenile’s immaturity precludes them from considering
deterrence, and that retribution inadequately serves its purpose in children).

system.15 Few jurisdictions utilize the two-tiered approach in sentencing the most
violent juvenile offenders.16 Legislatures in most states have added a third option:
life with parole.17 In the former jurisdictions, because death is no longer an option
for juveniles, LWOP becomes mandatory.18 LWOP is qualitatively different for
juveniles than for adults, and its mandatory nature is harsh even for adult career
criminals. Death may be different, but juveniles are different too.
This note is intended to suggest the next step in juvenile sentencing by
advocating against the mandatory nature of life without parole in the wake of
Roper. A review of the Roper decision will establish a conduit for this next step.
Evidence will then show that juveniles are less culpable than adults, that the
penalogical justifications for punishment are mismatched with juveniles, and the
harsh reality of life without parole for young offenders. Finally, a plea will be
made to (1) implement a proportionality review before sentencing juveniles to life
without parole, and (2) to mandate the option of life with parole in two-tiered
sentencing jurisdictions where death is no longer a tier for juveniles.

In the early morning hours of September 9, 1993, the defendant, Christopher
Simmons, along with Charlie Benjamin, abducted and killed Shirley Crook.19
Earlier that month, seventeen-year-old Simmons expressed his desire to “burglarize
and murder someone” to his underage friends.20 His plan was to find someone to
burglarize, tie him or her up and throw him or her off of a bridge.21 In addition,
Simmons assured his friends that because they were juveniles they would be able to
“get away with” the crime.22
Tessmer, one of Simmons’ friends, did not follow through with Simmons’
plan.23 Simmons and his friend Benjamin, however, proceeded to the home of
Shirley Crook. Through a cracked window, the boys unlocked the back door to her
house and entered her bedroom.24 Simmons knew Crook as a woman with whom
he had a previous automobile accident. Simmons ordered her out of bed, forcefully
threw her to the floor, bound her hands behind her back and placed duct tape over
her mouth and eyes.25

15. See Scott & Grisso, supra note 9, at 141-42 (discussing the rehabilitative rationale behind the
juvenile court).
16. See Wright, supra note 4, at 540 (concluding that there are six categories for sentencing utilized
throughout the states, a minority of which implement the two-tiered approach where LWOP and death
are the only options).
17. Id.
18. Id.
19. Roper, 543 U.S. at 556-57.
20. Id. at 556.
21. Id. at 557.
22. Id. at 556.
23. Id.
24. Id.
25. Roper, 543 U.S. at 556.

With the victim’s minivan, Simmons drove Crook and Benjamin to

Castlewood State Park in St. Louis County.26 He further bound Crook’s hands and
feet using her purse strap, belt, a towel, and electrical tape.27 The boys then walked
her to the edge of the bridge, and pushed her off into the river below.28 Later that
day, Crook’s husband returned home to find his wife missing, while Simmons
simultaneously bragged to friends about killing Crook, stating “the bitch seen my
Two fishermen found Mrs. Crook’s body in the River that afternoon, three
quarters of a mile from the railroad crossing.30 Crook drowned to death; she was
alive when Simmons pushed her off the bridge.31 Furthermore, Crook’s ribs were
broken and she received bruises from a source other than the fall.32
Simmons was arrested the following day after police received information of
his involvement in the murder.33 Police read him his Miranda warnings,34 he
waived his constitutional rights, and confessed to Mrs. Crook’s murder.35 He was
charged with first degree murder, burglary, kidnapping, and stealing.36

At trial, the jury found Simmons guilty of first-degree murder and
recommended the death penalty.37 After being sentenced to death, Simmons
appealed his conviction, sentence and the court’s denial of his post-conviction
relief motions.38
On appeal to the Supreme Court of Missouri in April of 1997, Simmons
claimed improper venue, violation of Sixth Amendment rights to an impartial jury,
violation of Fifth Amendment rights based on an involuntary confession, due
process violations, improper allowance of testimony, deprivation of a fair trial,
improper jury instructions, ineffective assistance of counsel, and disproportionate
imposition of the death penalty.39 Reviewing these claims for an abuse of
discretion, the Supreme Court of Missouri found Simmons failed to show the
requisite level of abuse by the trial court, and denied his appeals.40 The Supreme
Court of the United States subsequently denied certiorari.41

26. Id.
27. Id.
28. State v. Simmons, 944 S.W.2d 165, 170 (Mo. 1997).
29. Roper, 543 U.S. at 557.
30. Simmons, 944 S.W.2d at 170.
31. Id.
32. Id.
33. Id.
34. Miranda v. Arizona, 384 U.S. 436 (1966).
35. Simmons, 944 S.W.2d at 170.
36. Id.
37. Id.
38. Id.
39. See generally Simmons, 944 S.W.2d 165.
40. Id.
41. Simmons v. Missouri, 522 U.S. 953 (1997) (denying petition for writ of certiorari).

After exhausting all appeals for Simmons, the Supreme Court held, in Atkins
v. Virginia,42 that the Eighth Amendment, applicable through the Fourteenth
Amendment’s Due Process Incorporation Clause, prohibited the execution of the
mentally retarded based on an emerging national consensus for its opposition.43 In
August of 2003, Simmons urged the Supreme Court of Missouri to adopt a parallel
argument for national consensus against juvenile execution.44 The court found this
argument persuasive, and while ignoring past opinions to the contrary, held that the
United States Supreme Court would today hold45 that juvenile executions violated
the Eighth and Fourteenth Amendments.46 Simmons’ death sentence was set aside,
and he was re-sentenced to “life imprisonment without eligibility for probation,
parole or release, except by act of the Governor.”47 In May of 2004, the Supreme
Court of the United States granted certiorari to Roper to review the constitutionality
of the juvenile death penalty.48

In Roper v. Simmons, the Court held that juveniles were categorically exempt
from the death penalty under the Eighth Amendment’s ban on cruel and unusual
punishment.49 The majority reasoned that a national consensus emerged in
opposition to this sanction, and used its own judgment to affirm this assertion.50

A. Majority Rationale

1. Evolving standards of decency

Fifteen years prior to Roper, the Court held in Stanford v. Kentucky,51 that the
Constitution did not bar the execution of juveniles ages sixteen and seventeen.52

42. 536 U.S. 304 (2002).

43. Id. at 311-12, 321 (citing the standard established in Trop v. Dulles, 356 U.S. 86, 100-01 (1958)
for evaluating the Eighth Amendment by stating: “The basic concept underlying the Eighth Amendment
is nothing less than the dignity of man . . . . The Amendment must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society.”).
44. State ex rel. Simmons v. Roper, 112 S.W.3d 397, 399 (Mo. 2003).
45. Simmons, 112 S.W.3d at 413 (arguing upon the presumption that the U.S. Supreme Court would
find the juvenile death penalty unconstitutional if it had the occasion to review such a standard today).
The Supreme Court held in 1989 that there was no national consensus against the juvenile death penalty.
Stanford v. Kentucky, 492 U.S. 361, 377 (1989). The petitioner, Simmons, argued to the Supreme Court
of Missouri that, like the national consensus against the execution of the mentally retarded which
developed post-Stanford and which was eventually recognized by the U.S. Supreme Court upon
revisiting the issue in Atkins, 536 U.S. at 316 n.21, the national consensus for the juvenile death penalty
has changed since the U.S. Supreme Court last reviewed the issue. Simmons, 112 S.W.3d at 410-12.
46. Simmons, 112 S.W.3d at 413.
47. Id.
48. Roper v. Simmons, 540 U.S. 1160 (2004).
49. Roper, 543 U.S. at 572.
50. Id. at 567, 572.
51. 492 U.S. 361 (1989).
52. Id. at 377, 380. Prior to the Court’s decision in Stanford, it concluded in Thompson v.
Oklahoma, 487 U.S. 815, 838 (1988) that execution of juveniles age fifteen and under constituted cruel
and unusual punishment in violation of the Eighth and Fourteenth Amendments.

The Supreme Court has generally used two tests to evaluate an Eighth Amendment
violation of cruel and unusual punishment.53 The first is whether the punishment is
one of “those modes or acts of punishment . . . considered cruel and unusual at the
time that the Bill of Rights was adopted.”54 The second, and that which the Court
chose to employ in Roper, is whether the punishment is contrary to the “evolving
standards of decency that mark the progress of a maturing society.”55 Stanford
measured evolving standards of decency not by its own judgment or a
proportionality analysis, but with objective evidence reflecting modern American
societal conceptions.56 The Court fulfilled this objective by looking to legislatures
and jury determinations, adamant in its refusal to consider opinion polls, interest
groups or professional associations.57 The Court found that of the thirty-seven
states that permit capital punishment, only fifteen declined to execute sixteen-year-
olds, and only twelve declined to execute seventeen-year-olds.58 This, coupled with
a finding that juries believe the sanction should rarely, rather than never, be
imposed, led the Court to conclude that the national consensus was not entirely
against juveniles receiving capital punishment.59
The Roper Court began its analysis by examining the nation’s outlook on the
practice of executing juveniles fifteen years after its decision in Stanford.60 Of
significance to this analysis is the parallel the Court drew with the execution of
mentally retarded individuals.61 On the same day the Court decided Stanford, it
held that mentally retarded persons were not categorically exempt from capital
punishment under the Eighth Amendment, in Penry v. Lynaugh.62 The Court
employed the national consensus test for evolving standards of decency, and
concluded that the test failed because only two state legislatures had enacted
statutes against such executions.63
The Court, perhaps inadvertently, paved the way for Roper in 2002, by
overturning Penry.64 In Atkins v. Virginia, the Court found the execution of the
mentally retarded cruel and unusual under the Eighth Amendment.65 In its analysis,
per the modern standards of decency test, the Atkins Court again looked to the
legislatures and jury determinations, as it had in 1989.66
The Court in Atkins concluded that a national consensus against capital
punishment for mentally retarded defendants was overwhelming in 2002 as

53. Id. at 368-69. But see Weems v. United States, 217 U.S. 349, 367 (1910) (asserting a third
criteria for evaluation in a proportionality test between the crime and the punishment). The Stanford
Court implicitly refused to employ the proportionality test in evaluating an Eighth Amendment claim.
Stanford, 492 U.S. at 368-69.
54. Id. at 368 (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)).
55. Id. at 369 (quoting Trop v. Dulles, 356 U.S. at 101 (1958) (plurality opinion)).
56. Id. at 369 n.1.
57. Stanford, 492 U.S. at 369-70.
58. Id. at 370.
59. Id. at 374, 380.
60. Roper, 543 U.S. at 564.
61. Id.
62. 492 U.S. 302, 340 (1989).
63. Id. at 334 (excluding the fourteen states that ban the death penalty altogether).
64. See Atkins, 536 U.S. at 321 (finding the execution of the mentally retarded unconstitutional).
65. Id.
66. Id. at 313-15.

compared to 1989.67 Atkins pointed out that in the thirteen years since Penry was
decided, eighteen states enacted statutes prohibiting the sanction for the mentally
retarded, in addition to the twelve states that continued to ban the practice
altogether.68 These statistics were supported by evidence that revealed only five
such executions had taken place in any state since Penry.69 The Court noted the
consistency in the direction of change, in addition to the statistics, to conclude that
the national consensus was in stark contrast to the practice of executing mentally
retarded defendants.70
Roper used Atkins as a guideline in determining that a national consensus
emerged against the juvenile death penalty since 1989.71 Like the statistics on the
execution of mentally retarded defendants, the Roper Court concluded that thirty
states in 2005 prohibited capital punishment for juveniles.72 Furthermore, after
Stanford, only six states executed juveniles, and only three in the ten years prior.73
Although the change in state statutes was not as dramatic with regard to juveniles
as with mentally retarded individuals, the Court noted this discrepancy was caused
by an earlier rejection of the sanction for juveniles in the United States.74
The Court rejected the prosecution’s argument that no national consensus
existed against the juvenile death penalty in 1976, based on President Nixon’s
reservation regarding the International Covenant on Civil and Political Rights
prohibition of capital punishment for juveniles.75 The Court found this evidence
minimal to the current national consensus regarding the sanction.76 Furthermore,
the Court pointed out that more recently, in 1994, Congress enacted the Federal
Death Penalty Act, which determined that juveniles should not receive the death
penalty.77 As in Atkins, Roper concluded that the “objective indicia of consensus”
in the rejection of capital punishment for juveniles in the states, its sparse
application, and the consistency in the trend towards abolition of the practice
provided sufficient evidence that juveniles should be categorically exempt from
receiving the death penalty.78

67. Id. at 316.

68. Id. at 314-15.
69. Id. at 316.
70. Atkins, 536 U.S. at 316.
71. Roper, 543 U.S. at 564.
72. Id. (representing the 12 states that ban capital punishment altogether and 18 that exclude
juveniles from its reach).
73. Id. at 564-65.
74. Id. at 566 (noting that when Penry was decided, only 2 states had statutes exempting the
mentally retarded, while 15 states exempted juveniles under 17 years of age and 12 exempted juveniles
under 18 years of age from capital punishment).
75. Id. at 567 (citing the United Nations International Covenant on Civil and Political Rights art.
6(5), 23 Mar. 1975, 999 U.N.T.S. at 171).
76. Id.
77. Roper, 543 U.S. at 567; 18 U.S.C. § 3591(a) (2006) (“except that no person may be sentenced to
death who was less than 18 years of age at the time of the offense”).
78. Roper, 543 U.S. at 567.

2. Sound judgment

a. Diminished culpability: Almost a proportionality analysis

Traditionally, the Supreme Court recognized that “the Constitution
contemplates that in the end our own judgment will be brought to bear on the
question of the acceptability of the death penalty under the Eighth Amendment.”79
This was expressly rejected by the Court in Stanford and Penry. However, in
Atkins the Court dared to return to its best judgment to determine what constituted
an excessive punishment for the crime committed.80 This crucial factor in the
analysis became the main factor in the majority’s decision to overturn its previous
rulings on the issues of capital punishment for minors and mentally retarded
In applying its own judgment, Atkins affirmed the decision to abolish capital
punishment for mentally retarded persons.82 The Court concluded that the
diminished intelligence and capacity to understand and process information, among
other mental deficiencies amounted to a reduced level of culpability.83 This
important factor led the Court to two conclusions.84 The first was that the purposes
of the death penalty, retribution and deterrence, are not met by the harsh sanction.85
The Court opined that diminished culpability warranted a reduced level of
punishment, and that the lack of ability to understand and reason undermined the
deterrent effect of execution on future offenders.86 The second conclusion was that
mentally retarded defendants were more likely to suffer wrongful executions
because of their 1) increased likelihood of confessing to crimes they did not
commit, 2) reduced ability to assist their counsel, 3) reduced ability to be a
meaningful witness, and 4) reduced appearance of remorse.87 For the
aforementioned reasons, the Atkins Court concluded that mentally retarded
defendants were categorically exempt from capital punishment.88
Roper again followed the Court’s judgment, as in Atkins, by applying the
Eighth Amendment’s ban of cruel and unusual punishment to a narrow category of
crimes and offenders.89 The Court noted the ban was in place against the death
penalty for juveniles under age sixteen, the insane and the mentally retarded,
regardless of how harsh their crimes were.90 The Court’s proportionality analysis
began with the reduced culpability of juveniles, and examined psychological data

79. Id. at 563 (quoting Coker v. Georgia, 433 U.S. 584, 597 (1977)) (finding that a punishment is
disproportionate if it makes no measurable contribution to the accepted goals of punishment).
80. See Atkins, 536 U.S. at 321.
81. Roper, 543 U.S. at 563 (noting the individual judgment of the Court in Atkins, 536 U.S. at 312).
82. Atkins, 536 U.S. at 318.
83. Id.
84. Id.
85. Id. at 319.
86. Id.
87. Id. at 320-21.
88. Atkins, 536 U.S. at 321.
89. Roper, 543 U.S. at 569.
90. Id. at 568 (citing Thompson, 487 U.S. at 856; Ford, 477 U.S. 399; Atkins, 536 U.S. at 319).

to that effect.91 The analysis additionally pointed to the overwhelming international

law rejecting capital punishment for juveniles.92 Together, with the Court’s moral
rejection of cruel and unusual punishment for juveniles, the Court’s judgment tilted
the scales against the execution of juveniles under the age of eighteen.93
The majority found three distinguishing characteristics between adults and
juveniles and concluded that juveniles could not be classified amongst the worst
offenders.94 The Court first opined that juveniles were less responsible and less
mature than adults, and for these reasons were not permitted to vote, marry, or
serve on juries in almost every state.95 Second, the Court noted that juveniles had
less control over their environments generally, and were more susceptible to
negative influence and peer pressure.96 The third discrepancy the Court found was
that juveniles’ personalities were more transitory and less formed than were those
of adults.97 These differences led the court to deduce that juveniles were less
morally reprehensible, had a greater claim to forgiveness for failing to escape
negative influences and were less likely to be irreversibly depraved in character.98
In addition, the Court announced that juveniles had a greater potential for
reformation, and that only a small portion of adolescents who engaged in risky
behavior actually developed behavioral problems later in life.99

b. Mismatched penalogical aims

Based on the finding that juveniles were less culpable than adults for their
crimes, the Court decided that the penalogical justifications for the death penalty
were mismatched with these juvenile’s punishments.100 As in Atkins, the Roper
Court concluded that retribution and deterrence were not as amply served by the
death penalty when applied to less culpable juveniles and the mentally retarded.101
The Roper majority stated, “[w]hether viewed as an attempt to express the
community’s moral outrage or as an attempt to right the balance for the wrong to
the victim, the case for retribution is not as strong with a minor as with an adult.”102
With regard to deterrence, the Court found insufficient evidence of an effect on
juveniles.103 There was, however, psychological data suggesting that juveniles
were so unlikely to make the cost-benefit analysis essential to deterrence “as to be
virtually nonexistent.”104 The majority concluded the analysis by noting that

91. Id. at 569-70 (asserting immaturity, peer pressure, and incomplete identity formation as the
primary factors for diminished culpability).
92. Id. at 575.
93. Id. at 578.
94. Id. at 569.
95. Roper, 543 U.S. at 569.
96. Id.
97. Id. at 570.
98. Id.
99. Id.
100. Id. at 571.
101. Roper, 543 U.S. at 571; Atkins, 536 U.S. at 319.
102. Roper, 543 U.S. at 571.
103. Id.
104. Id. at 572 (quoting Thompson, 487 U.S. at 837).

especially for the young, the sanction of life imprisonment without the possibility
of parole was itself a serious deterrent.105
As a final comment on the psychological capabilities of youth versus those of
adults, the majority considered criticism of implementing a bright line rule.106
Although the Court recognized that although there were instances when juveniles
were psychologically capable of meriting the death penalty, the differences
between youth and adults were “too marked and well understood” to risk killing a
juvenile despite his or her diminished culpability.107 Lastly, the majority noted that
even trained psychologists had difficulty distinguishing between a lifelong offender
and an immature transient, and concluded that juries should not have the burden of
making this distinction.108 “When a juvenile offender commits a heinous crime, the
State can exact forfeiture of some of the most basic liberties, but the State cannot
extinguish his life and his potential to attain a mature understanding of his own

c. International juvenile capital punishment, or the lack thereof

Finally, in confirmation of its judgment, the majority looked to international
law.110 Although international laws were not controlling in the United States, their
overwhelming consistency proved compelling.111 The United States was alone in
its official sanction of the execution of juvenile offenders in March of 2005.112
The majority relied on four significant areas of international law.113 First,
Article 37 of the United Nations Convention on the Rights of the Child, prohibiting
capital punishment for juveniles under the age of eighteen.114 Every country in the
world signed this, with the exception of the United States and Somalia.115
Second, the majority highlighted for the second time the International
Covenant on Civil and Political Rights, in which the United States was the only
country to enter a reservation on the execution of juveniles.116 Third, the Court
pointed to world statistics on the execution of juveniles from 1990 to 2005.117 The
majority found that only seven countries other than the United States executed

105. Id.
106. Id.
107. Id. at 572-73.
108. Roper, 543 U.S. at 573.
109. Id. at 573-74.
110. Id. at 576.
111. Id. at 577 (stating, “[i]n sum, it is fair to say that the United States now stands alone in a world
that has turned its face against the juvenile death penalty”).
112. Id.
113. Id. at 576.
114. Roper, 543 U.S. at 576 (citing the United Nations Convention on the Rights of the Child Art. 37,
Nov. 20, 1989, 1577 U.N.T.S. 3).
115. Id.
116. Id. (citing the United Nations International Covenant on Civil and Political Rights Art. 6(5), 23
Mar. 1975, 999 U.N.T.S., at 175).
117. Id. at 577.

juveniles during that time, and since the time of those executions each of the
countries either abolished the practice for juveniles or publicly disapproved of it.118
Lastly, the Court gave particular weight to the history of the United
Kingdom’s parallel provision of the Eighth Amendment.119 This provision, the
English Declaration of Rights of 1689, stated, “[e]xcessive Bail ought not to be
required nor excessive Fines imposed; nor cruel and unusual Punishments
inflicted.”120 The death penalty was abolished completely by 2005 in England,
though the juvenile exemption was specifically implemented in 1933.121 At that
time, the minimum age was set at eighteen at the time of sentencing, though it was
changed to eighteen at the time of the offense in 1948.122 Thus, the international
law, and in particular that of England, gave the Court significant weight to back its
moral opposition to the juvenile death penalty.123
Both objective evidence and compelling persuasive authority supported the
majority conclusion that the juvenile death penalty violated the Eighth and
Fourteenth Amendments.124 While persuasive authority alone could not have
justified a constitutional conclusion such as that of the Roper Court, a purely
objective legal system would not require a discretionary body to interpret the words
of the Constitution as applied to an advanced society.

B. Concurrence
Justices Stevens and Ginsburg concurred in the majority’s opinion and wrote
separately to highlight the majority’s interpretation of the Eighth Amendment.125 In
particular, the concurring justices emphasized that had the Constitution been
intended for interpretation frozen in time, the United States could impose no
obstruction to the execution of seven-year-olds.126 Justice Stevens underscored the
Court’s interpretation of the amendment in Trop, and stated that evolving standards
of decency are a vital aspect of the Bill of Rights, and it is critical for the Court’s
understanding of the Constitution to evolve with time.127

118. Id. (explaining that since 1990, Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, Democratic
Republic of Congo, and China have executed juveniles, but since then each of these countries abolished
the practice or made public disavowal of it).
119. Id.
120. Roper, 543 U.S. at 577 (citing the English Bill of Rights 1689, 1 W. & M., c. 2, § 10, (Eng.)).
121. Id. (citing the Children and Young Person’s Act of 1933, 23 Geo. 5, ch. 12 (preventing the
execution of juveniles aged eighteen at the time of sentencing)).
122. Id. (citing the Criminal Justice Act, 11 & 12 Geo. 6, ch. 58 (1948)).
123. Id.
124. Id. passim.
125. Roper, 543 U.S. at 587 (Stevens, J., and Ginsberg, J., concurring).
126. Id.
127. Id. (interpreting the standard used in Trop, 356 U.S. at 100-01).

C. Dissents

1. Justice O’Connor’s dissent

Justice O’Connor’s dissent rested on two grounds: that the majority erred in
finding a national consensus against the juvenile death penalty and that it erred in
implementing a proportionality analysis.128 First, in rejecting the majority’s
national consensus argument, Justice O’Connor asserted that the most objective
indicia of evolving standards are found in the state legislatures.129 While she
agreed with much of the majority’s parallel findings in Atkins regarding the
opposition to the sanction, she disagreed with the numbers concerning legislative
support for the juvenile death penalty as opposed to that of the mentally retarded.130
Finding that there remained over seventy juveniles on death row, and at least eight
states specifically that set sixteen or seventeen years of age as a minimum, Justice
O’Connor concluded that there was still support nationally for the juvenile death
penalty.131 Justice O’Connor also asserted that the majority’s calculation of a
national consensus was in error, and that the states that have abolished the death
penalty altogether should not have been calculated in the analysis.132
Second, Justice O’Connor rejected the majority’s conclusion that there were
not at least some seventeen-year-olds capable of deserving the death penalty and
demanded a clear showing that national practice opposed it before reading into a
constitutional exclusion.133 Justice O’Connor noted that although juveniles were
generally less culpable for their acts than adults, that fact did not preclude them
from being sufficiently culpable to warrant the death penalty.134 She concluded that
juveniles and adults were not of different kinds, but of different degrees, and thus
there were some juveniles more mature than adults and vice versa.135 In sum,
Justice O’Connor urged that a bright line exemption for juveniles was simply

2. Justice Scalia’s dissent

Justices Scalia, Rehnquist and Thomas separated themselves from the majority
on the basis of constitutional interpretation, with Justice Scalia speaking on their
behalves.137 While the majority used its own judgment in interpreting the evolution
of the Eighth Amendment, the dissent criticized the majority for taking such a
subjective view of the Constitution.138 In addition, Justice Scalia noted that the

128. Id. at 587 (O’Connor, J., dissenting).

129. Id. at 588.
130. Id. at 595.
131. Roper, 543 U.S. at 595-96 (arguing that because only four states since Stanford reversed their
juvenile death penalty laws, this “halting pace” gave “reason to pause”).
132. Id. at 596.
133. Id. at 588.
134. Id. at 601.
135. Id.
136. Id.
137. Roper, 543 U.S. at 607 (Scalia, J., dissenting with Rehnquist, J. and Thomas, J.).
138. Id. at 608.

views of foreign nations were likewise inappropriate in interpreting what is just in

the United States, and stated “the Court is quite willing to believe that every foreign
nation — of whatever tyrannical political makeup and with however subservient or
incompetent a court system — in fact adheres to a rule of no death penalty for
offenders under eighteen.”139
Justice Scalia criticized the majority’s position based on what he perceived to
be a “subtle shift” in statistics between 1989 and 2005.140 Scalia called this a
“narrow margin” and found it as inappropriate a ground for decision-making as the
majority’s subjective viewpoints.141 Furthermore, he found contrary psychological
data on juvenile culpability,142 and concluded that juveniles were more than capable
by age sixteen or seventeen to know “that murdering another human being is
profoundly wrong,” and that this was enough in his mind to be held to an adult
standard of culpability.143
Lastly, Scalia criticized the majority’s affirmation of the Missouri Supreme
Court’s decision as contrary to established precedence, that evolving standards of
decency warranted sparing Simmons’ life.144 Along with Justice O’Connor, the
dissenters argued that this made a mockery of our legal system’s binding authority,
specifically that of the Supreme Court.145 As Justice Scalia criticized the lower
court’s “updating” of the Eighth Amendment, he expressed fear that “the result will
be to crown arbitrariness with chaos.”146

139. Id. at 623 (emphasis in original).

140. Id. at 612 (noting that only 4 states in the last fifteen years have changed their statutes to
prohibit the juvenile death penalty).
141. Id. at 613.
142. Id. at 617 (citing the American Psychological Association’s brief for Hodgson v. Minnesota,
497 U.S. 417 (1990) (finding that juveniles are mature enough to obtain abortions, and have similar
abilities as adults to reason moral dilemmas, social rules, and interpersonal relationships)).
143. Roper, 543 U.S. at 618 (stating specifically that Simmons weighed his options and described in
callous terms how he planned to commit murder, proving to Justice Scalia that he committed
premeditated murder).
144. Id. at 628-29.
145. Id. at 628-29.
146. Id. at 630.


“Prison should be a place for predators and not dying old men. Some people
should die in prison. But everyone should get a hearing.”147

While the Supreme Court has permitted review of a handful of LWOP cases in
the context of the Eighth Amendment, it has yet to review the punishment in the
juvenile arena, or where it is mandatory.148 The Roper decision, however, placed
juveniles in a unique situation that may warrant review of this first impression
issue. Jurisdictions where LWOP and death are legislatively set as the only two
options for criminals convicted of serious offenses are now left with only one:
mandatory juvenile LWOP.149 Some jurisdictions utilize this two-tiered sentencing
approach, while many others provide at least one additional option: life with
parole.150 Most legislatures have accepted LWOP as a constitutional punishment
for adults.151 Yet in the juvenile context, in the states where the sentence is
mandatory, LWOP raises new constitutional issues under the Eighth Amendment’s
ban on cruel and unusual punishment. The widely recognized reduced culpability
of juveniles,152 the disproportionality of the punishment for juveniles,153
mismatched adult penalogical principles,154 and the reality of teenagers looking to
spend the rest of their lives in prison155 require a review of the cruel and unusual
clause for what has recently become mandatory juvenile LWOP.

147. Liptak, Serving Life, supra note 1, at 2 (quoting warden Burl Cain of the Louisiana State
Penitentiary in Angola, which houses thousands of people serving life sentences).
148. See Solem v. Helm, 463 U.S. 277 (1983) (holding that the mandatory length of a sentence can
be disproportionate under the Eighth Amendment); but see Harmelin v. Michigan, 501 US. 957 (1991)
(plurality opinion) (holding that mandatory LWOP sentence was not unusual, though it may have been
cruel, and did not violate the Eighth Amendment).
149. Wright, supra note 4, at 540.
150. Id.; see also Wayne A. Logan, Proportionality and Punishment: Imposing Life Without Parole
on Juveniles, 33 WAKE FOREST L. REV. 681, 690 (1998) (concluding that the majority of jurisdictions
currently allow LWOP parole for juveniles, and some even make it mandatory upon conviction in adult
151. See Howard J. Alperin, J.D., Annotation, Length of Sentence as Violation of Constitutional
Provisions Prohibiting Cruel and Unusual Punishment, 33 A.L.R.3d 335, § 7(a) (2005) (citing a
majority of jurisdictions holding that LWOP does not violate the Eighth Amendment).
152. Recognized even by the Supreme Court, most recently in Roper, 543 U.S. at 572 (finding that
the differences between juvenile and adult offenders are too marked and well understood to risk
allowing a youthful person to receive the death penalty despite insufficient culpability).
153. Logan, supra note 150, at 722.
154. See generally Ward, supra note 13 (arguing that the specific goals of deterrence and retribution
do not apply as directly to juveniles as they do for adults as a result of reduced mental culpability).
155. See generally Liptak, Serving Life, supra note 1 (finding that when faced with life or death,
some young inmates actually serving life sentences without parole would have chosen death).

A. Mandatory Juvenile Life without Parole: A Cruel and Unusually Slow Death

1. Reduced culpability: A shift in the traditional proportionality analysis

“How do these kids do such violent things . . . ? [T]hey are our children, they
are American children. They are just a reflection of the nightmare side of the
American dream.”156

In Roper, the Supreme Court noted three categories of psychological

dissimilarity between juveniles and adults that contribute to a reduction in their
level of culpability.157 The areas, immaturity, susceptibility to peer pressure, and
incomplete formation of identity,158 are well supported by research in the
psychological field.159 In fact, there is extensive data suggesting deep
psychological and neurological disorders amongst our nation’s violent young
offenders.160 Because juveniles are so variant in their emotional development, the
need for a proportionality analysis is heightened and the mandatory sentence
denying individual review becomes more illogical.
C. Antoinette Clarke outlined eight distinct developmental factors that relate
to serious young offenders and their diminished culpability.161 First, juveniles are
lacking in maturity, reasoning and rationality.162 This includes a combination of
cognitive differences and psycho-social differences in how juveniles process
information and how they use these processes.163 The result is poor judgment that
leads to risky behavior, undermining the cost-benefit analysis utilized in decision-
making.164 Judgment results from experience and maturity, both of which juveniles
Second, the adolescent stage of development is termed the “identity crisis” by
researchers of identity formation.166 During this process, youth develop personality
traits, attitudes, values, and beliefs in the “battle to achieve self-definition.”167 Two

156. Victor L. Streib, Sentencing Juvenile Murderers: Punish the Last Offender or Save the Next
Victim?, 26 U. TOL. L. REV. 765, 779 (1995).
157. Roper, 543 U.S. at 569.
158. Id.
159. See Scott & Grisso, supra note 9, at 157 (asserting that peer influence, temporal perspective and
risk perception affect decision-making in adolescents); see also Jeffrey Fagan, Atkins, Adolescence, and
the Maturity Heuristic: Rationales for a Categorical Exemption for Juveniles from Capital Punishment,
33 N.M. L. REV. 207, 248 (2003) (concluding that adolescents are more susceptible than adults to
domination by peers, inability to control their impulses, and inability to see the consequences of their
acts) [hereinafter Fagan, Rationales]; accord Clarke, supra note 6, at 694-710 (listing immaturity,
biological influences, social context, impulsivity, future orientation, peer influence, perception of risk,
and formation of identity as factors affecting decision-making in adolescents).
160. Clarke, supra note 6, at 708-09.
161. Id. at 694-710.
162. Id. at 694-96.
163. Id. at 695.
164. Id.
165. Id. at 696.
166. Clarke, supra note 6, at 697 (quoting ERIK H. ERIKSON, IDENTITY: YOUTH AND CRISIS (1968)).
167. Id.

separate processes converge to produce delinquent behavior: individuation and

identity development.168 The first creates autonomy from one’s parents, while the
second creates an integrated sense of one’s self.169
Third, adolescents are more susceptible to peer pressure than are adults.170
Their desire for conformity, desire for peer approval, and their fear of rejection
affect the choices they make, even without overt coercion.171 “This age presents . .
. a preoccupation and allegiance to brush all other concerns aside with passionate
single-mindedness.”172 Teens are developmentally self-centered at this stage of
their lives, and consequently less able to consider alternatives to violent or risky
Fourth, adolescents have more uncertainty about their future, and tend to
weigh short-term consequences more heavily than long-term ones.174 Because their
ability to think in the abstract hypothetical is curbed, short-term consequences
Fifth, juveniles are much less protective of their health and safety than are
adults.176 They are more likely to engage in unprotected sex, drunk driving, and
criminal conduct.177 This is a result of a fear of ostracism and a failure to calculate
and perceive risk in the same way as adults.178
Sixth, adolescents experience changes in impulsivity and self-management
throughout the teen years.179 Attribution theory asserts that through distorted social
reasoning, juveniles “prematurely assume hostile peer intent” in situations where it
is unclear what someone’s social intent may be in actuality.180 This theory is part
of a general syndrome of social-cognitive deficits that includes inattention to social
cues, poor recall of those cues, weak perspective, impulse decision-making, and a
limited ability to generate solutions to interpersonal problems.181
Seventh, the social context in which a youth exists affects his or her emotions
and motivations.182 This environment can include behavioral norms, opportunities
for crime, social controls, and provocations such as drugs, alcohol, or gang
activity.183 The life of the juvenile does not exist independent of his or her
neighborhood, family, school, and peers.184 Furthermore, adolescents are

168. Id.
169. Id.
170. Id. at 699.
171. Id.
172. Clarke, supra note 6, at 699. (quoting PETER BLOS, THE ADOLESCENT PASSAGE:
DEVELOPMENTAL ISSUES, 71-72, 160 (1979)).
173. Id. at 700.
174. Id.
175. Id. at 700-01.
176. Id. at 701.
177. Id.
178. Clarke, supra note 6, at 701.
179. Id. at 702.
180. Id.
181. Id. at 703.
182. Id. at 704.
183. Id.
184. Clarke, supra note 6, at 705.

dependent on their families and subject to legal authorities, and are thus restricted
to whatever social setting they inhabit.185
Finally, neuro-scientific research has shown that juveniles’ brains are not fully
developed.186 The frontal lobe is the part of the brain associated with learning and
judgment.187 In such syndromes as anxiety, depression, bipolar disorder, and
diseases such as Parkinson’s and Huntington’s, a reduction of blood flow results in
hypofrontality in the frontal lobe.188 Research on the frontal lobes of juveniles has
shown a mild form of hypofrontality, which, coupled with puberty, results in
hypersensitivity to stimuli.189 Moreover, myelination, which controls emotions and
the prefrontal cortex (which affects judgment) are not fully developed until
adolescents reach their mid twenties.190
Furthermore, studies have shown that homicidal juveniles possess many of the
same backgrounds and emotional problems as one another.191 They are frequently
emotionally deprived, exposed to physical violence, and may be suffering from
neurological impairment.192 Typically, the homicidal juvenile is exposed to
violence and physical abuse in the family, usually from a parent.193 Substance
abuse and alcoholism in the family environment are also common.194 This
environment leads to a lack of proper role models, educational deprivation, and
even pathological dehumanization resulting from repeated violence and
indifference to the human life.195
A study was conducted on fifteen juvenile inmates awaiting death row.196
Every single one of them suffered from head injuries, most during their
adolescence or early childhood.197 Two-thirds suffered cognitive dysfunction, one
half had major neurological impairments, and more than half experienced these
psychiatric symptoms during childhood.198 An additional study of homicidal
juveniles found that eight out of nine of the boys suffered from grand mal seizures
and abnormal electroencephalograms.199 These neurological disorders were the

185. Id. at 708.

186. Id. at 708-09.
187. Id. at 709.
188. Id.
189. Id.
190. Clarke, supra note 6, at 709-10.
191. Maria H. Homan, The Juvenile Death Penalty: Counsel’s Role in the Development of a
Mitigation Defense, 53 BROOK L. REV. 767, 774 (1987).
192. Id. at 769 (citing K. Solway et al., Adolescent Murderers: Literature Review and Preliminary
Research Findings, VIOLENCE AND THE VIOLENT INDIVIDUAL 193 (Hays, Roberts, Solway eds. 1981)).
193. Id. at 770 (citing Duncan & Duncan, Murder in the Family: A Study of Some Homicidal
Adolescents, 127:11 AM. J. PSYCHIATRY 1498, 1500 (1971)).
194. Id. (citing King, The Ego and the Integration of Violence in Homicidal Youth, 45(1) AM. J.
ORTHOPSYCHIATRY 134, 135 (1975)).
195. Id. at 771 (citing Miller & Looney, The Prediction of Adolescent Homicide: Episodic
Dyscontrol and Dehumanization, 34 AM. J. PSYCHOANALYSIS 187, 189 (1974)).
196. Dorothy O. Lewis et al., Psychiatric, Neurological, and Psychoeducational Characteristics of
15 Death Row Inmates in the United States, 143:7 AM. J. PSYCHIATRY 838 (1986).
197. Id. at 840-41.
198. Id. at 840.
199. Dorothy O. Lewis et al., Biopsychosocial Characteristics of Children Who Later Murder: A
Prospective Study, 142:10 AM. J. PSYCHIATRY 1161, 1165 (1985).

primary difference between the nine homicidal boys studied and the control group
of inmates who hadn’t committed murders.200
As a result of these psychological and neurological discrepancies, advocates
for the abolishment of LWOP for juveniles argue that the need for an individual
proportionality analysis in interpreting cruel and unusual punishment is
heightened.201 The Supreme Court has only recently entertained the idea of
reviewing LWOP sentences under the Eighth Amendment.202 In Solem v. Helm,203
the Court held for the first time that the proportionality analysis could apply at the
time of LWOP sentencing.204 Prior to Solem, the Court only proportionally
reviewed crime and punishment in capital cases.205 Subsequently, in Harmelin v.
Michigan,206 a plurality of the Court rejected a petitioner’s cruel and unusual claim
because the punishment lacked unusualness.207 Because Harmelin failed to produce
a majority, Solem remains good law.208 Justice Kennedy, one of the concurring
justices in Harmelin, adapted Justice Powell’s criteria for permitting a
proportionality analysis from Solem to emerge as the predominant standard for
review: “analyses are appropriate only in the rare case in which a threshold
comparison of the crime committed and the sentence imposed leads to an inference
of gross disproportionality.”209 Thus, several realities emerge in the juvenile
context: the Eighth Amendment does not prohibit juveniles from being tried as
adults, and it does not require strict proportionality between crime and
punishment.210 Where adults are still receiving a proportionality review for the
most serious punishment they can receive, juveniles in mandatory LWOP
jurisdictions are not. Juveniles, because of their marked variation in psychological
development, present a special class of offenders who should not be denied
individual review.211

2. Mismatched adult penalogical justifications for juvenile punishments

The Eighth Amendment does not warrant the adoption of any one justification
in particular when punishing offenders for their crimes.212 The Supreme Court has,
however, recognized that when the purpose behind the punishment is not achieved,

200. Id. at 1165; see also Fagan, Rationales, supra note 159, at 238-39 (confirming these results in
more recent studies from 1999-2002).
201. See Petr.’s Br. 9, Harris v. Wright, No. 94-35365 (9th Cir. Nov. 30, 1994) [hereinafter Brief for
the Petitioner] (asserting that the proportionality review under the Eighth Amendment must take into
account distinguishing characteristics of an individual’s class in order to be a meaningful review).
202. See Logan, supra note 150, at 710 (1998) (reviewing the history and context of the
proportionality analysis in LWOP sentencing).
203. 463 U.S. 277, 303 (1983).
204. Id.
205. Id.
206. 501 U.S. 957, 994 (1991).
207. Id. at 994-95.
208. Id. at 996.
209. Id. at 1005 (Kennedy, J., concurring).
210. Logan, supra note 150, at 709.
211. Id. at 722.
212. Harmelin, 501 U.S. at 959.

the punishment is cruel and unusual, even where it is proportional.213 There are
four justifications for punishment that have emerged in the Supreme Court:
incapacitation, rehabilitation, retribution, and deterrence.214 Three of these theories
support the punishment of life imprisonment without the possibility of parole:
incapacitation, deterrence, and retribution. However, adult justifications for LWOP
do not apply with much, if any, force in the context of the juvenile offender. If the
purpose behind the punishment is not achieved, this purposelessness is cruel and
unusual.215 As the Atkins Court stated: “unless the imposition of the . . . penalty . . .
‘measurably contributes to . . . these goals, it is nothing more than the purposeless
and needless imposition of pain and suffering,’ and hence an unconstitutional
Incapacitation is the paramount goal of LWOP, and allows society peace of
mind in knowing that a violent offender has been displaced from public harm.
With LWOP, the goal comes at the exclusion of rehabilitation, the pinnacle of
individual consideration, and of the juvenile system.217 Automatically denying one
without consideration of the other, and denying the juvenile his status as such,
negates the purpose of a crime-specific justice system. Individual consideration of
juveniles receiving LWOP should not be a privilege, as it is with adults. It should
be considered a right, upon which the juvenile system was founded. Denying
juveniles their day in juvenile court should not preclude them from their status as
juveniles. Violent offenders may still be capable of receiving adult sentences in
adult court, but even the Supreme Court still regards them as juveniles.218 Their
age is not in dispute, and should not be forgotten throughout their disposition. The
denial of the right to be regarded as an individual, no matter what court is regarding
them, evades the objective fact that juveniles are still children, and should be
treated differently at least at the time of their sentencing in the most serious of

a. Deterrence
“The punishment, to be effective, should be such as will prove a deterrent.”219
Concluding that deterrence is less applicable to juveniles, Roper noted “the absence
of evidence of deterrent effect is of special concern because the same
characteristics that render juveniles less culpable than adults suggest as well that
juveniles will be less susceptible to deterrence.”220 Roper pointed to the next step,
that LWOP can be categorized similarly, when it stated that “the punishment of life
imprisonment without the possibility of parole is itself a severe sanction, in

213. Atkins, 536 U.S. at 319.

214. Id.
215. Id.
216. Id. (citing Enmund v. Florida, 458 U.S. 782, 798 (1982)).
217. Scott & Grisso, supra note 9, at 141-42 (noting that at the time the juvenile court was created, it
was with a rehabilitative eye).
218. E.g., Roper, 543 U.S. at 572 (taking into consideration the application of adult penalogical goals
to juveniles when considering the appropriate punishment).
219. Weems, 217 U.S. at 405.
220. Roper, 543 U.S. at 571.

particular for a young person.”221 The juvenile facing sixty years in prison is likely
to feel the same as if he were facing life in prison. A juvenile, if he considers
incarceration at all before acting, will look at a fifty or sixty year sentence and life
without parole identically: he will spend as far into the future as he can imagine
behind bars. An extremely long sentence thus serves the equivalent deterrent
purpose as LWOP in the juvenile context; an adult may have the ability to take a
more reasoned consideration of a LWOP sentence juxtaposed with a lengthy term
of years before committing a crime that warrants one over the other.
Deterrence is served both for the individual and society when a violent
criminal is given a severe punishment.222 The societal deterrent theory is based on
the value of the “future social benefits” of deterring criminal conduct.223 This form
of deterrence is significantly reduced given the potential psychological
characteristics of those raised in certain social spheres.224 Frequently, violent
juveniles come from contexts in which they are indifferent to the legal theories
behind punishments.225 Most juveniles do not read newspapers, books for leisure,
or watch the news everyday, especially those living in neighborhoods where
violence defines their everyday lives.226 This context, what has been called “rotten
social background,” yields the development of shifted values and norms, and leans
away from values such as those embraced in the deterrence and retribution theories
behind punishment.227 Victor Strieb cites a real life example of one such
neighborhood in Los Angeles when he writes:

Sharon visits her probationers and sees their little brothers and sisters
playing not house or doctor or fireman, but drug dealer, crack house,
and bank robber — their heroes and role models. Little kids actually
standing there passing play money and bogus rocks of cocaine to one
another over the counter, then pretending to smoke or shoot. She has
seen this with her own eyes, this last gasp of childhood fantasy,
modeled after the most successful adults on the block.228

The criminal law presumes that offenders know the law. In order to deter
crime with punishment, potential criminals must know that what they do has a
consequence. Many juveniles do not know the law, or its punishments. This is in
part because, for these violent youths, crime is not the exception to the rule; it is the

221. Id. at 572.

222. Ward, supra note 13, at 260.
223. Id. at 256.
224. Jeffrey Fagan, Context and Culpability in Adolescent Crime, 6 VA. J. SOC. POL’Y & L. 507, 543
(1999) (arguing that the “Rotten Social Background” from which violent youths hale makes them
unaware and indifferent to the aims of legal punishment) [hereinafter Fagan, Context].
225. Id. (stating that “[l]aw is a physical and social externality with weak legitimacy for inner city
226. Victor L. Streib, Justice for Juvenile Violence, 1 BARRY L. REV. 1, 4 (2000) (asserting that
teenagers are unaware of news and reports and therefore are immune to the theory of deterrence).
227. Fagan, Context, supra note 224, at 554.
228. See Streib, supra note 226, at 5 (following a Los Angeles probation officer into the offender
context, to find the “lord of the flies” children at play).

rule.229 Of course, not every child is ignorant to the law and not every child is
raised in this environment. However, without an individual review of the offender
at sentencing, it is impossible to guess whether the justification of deterrence will
be met.
The individual deterrent theory is based on the rational adult weighing the
costs and benefits of his or her acts, and assessing the value of punishment in
making the decision to commit a crime.230 This form of deterrence is recidivism
control.231 Juveniles given LWOP, like those receiving the death penalty, will
never be afforded an opportunity to repeat their offenses. This theory for
punishment does not apply to those looking to live and die within the prison’s

b. Retribution
Like deterrence, retribution does not apply with equal force to juvenile
offenders receiving automatic LWOP. As the Supreme Court properly noted in
Roper, harsh punishments do not suit the justification of retribution when imposed
upon juveniles.232 With respect to retribution, the court stated “[w]hether viewed as
an attempt to express the community’s moral outrage or as an attempt to right the
balance for the wrong to the victim, the case for retribution is not as strong with a
minor as with an adult.”233 The theory of retributive punishment is to chastise the
offender for a specific crime with what he or she deserves: “just desserts.”234
Retribution does not level with the developmental deficiencies of violent
juveniles.235 The worst forms of punishment should be reserved for only the worst
kinds of offenders.236 Not only are juveniles less culpable psychologically and
neurologically,237 most of these offenders are not old enough or experienced
enough to be classified as career criminals.238 In addition, one extraordinarily
violent offense cannot classify a juvenile as a per se “worst offender” without an
examination of his psychological culpability. It may be hard to find a juvenile
committing the gravest offense who does not have some sort of psychological
mitigating issues.
As the Court recognized in Roper, “Retribution is not proportional if the law’s
most severe penalty is imposed on one whose culpability or blameworthiness is

229. Id.
230. See Ward, supra note 13, at 254.
231. Id. at 260.
232. Roper, 543 U.S. at 571.
233. Id.
234. Ward, supra note 13, at 256.
235. Jeffrey Fagan, This Will Hurt Me More Than It Hurts You: Social and Legal Consequences of
Criminalizing Delinquency, 16 NOTRE DAME J.L. ETHICS & PUB. POL’Y 1, 40 (2002) [hereinafter Fagan,
Social and Legal Consequences].
236. See Weems, 217 U.S. at 367 (asserting that “[t]he right flows from the basic precept of justice
that punishment for crime should be graduated and proportioned to [the] offense”).
237. Clarke, supra note 6, at 694-710.
238. See Scott & Grisso, supra note 9, at 139 (stating that “The modern punitivist reforms tend to
treat adolescent offenders as though most are young career criminals — a premise that is true only of a
small group of offenders whose delinquency in adolescence is part of a persistent pattern of antisocial
behavior, often beginning in early childhood”).

diminished, to a substantial degree, by reason of youth and immaturity.”239 Taken

in today’s context, where mandatory life without parole is the law’s most severe
penalty for juveniles, at the very least the violent juvenile offender must be
afforded a proportionality review before it can be said that retributive goals are
appropriate.240 LWOP may have been proportional before Roper, but the Supreme
Court has not considered the proportionality of the sentence for juveniles, and
certainly not at a time when it was mandatory.

c. Incapacitation
LWOP is the ultimate form of incapacitation, reflecting society’s desire to rid
itself permanently of a particular criminal. Specifically for juveniles, it is of the
utmost importance to be certain that this punishment is warranted before sending
him or her to prison for fifty, sixty, seventy, or more years. Even if incapacitation
is the appropriate punishment for an offender, the denial of an individual analysis
before sentencing is cruel and unusual. While the individual review still exists for
adults facing the sentence, juveniles in two-tiered sentencing jurisdictions are
denied this opportunity despite their increased likeliness of mitigating
psychological deficiencies. Mandatory LWOP for juveniles skips this critical step
and thus denies the juvenile his right to consideration that his punishment may be
cruel and unusual.

d. Rehabilitation
LWOP reflects three of the four justifications for punishment, eliminating
entirely the possibility of rehabilitation.241 Because the juvenile system was created
for the purpose of rehabilitation, mandatory juvenile LWOP abandons the
fundamental principle upon which the juvenile system was founded.242 The
traditional theory behind the juvenile court was that juvenile criminal conduct was
a result of a “condition” that required treatment, rather than bad conduct warranting
punishment.243 Because adolescents are malleable, they benefit greatly from
treatment for their condition.244 It was believed that this condition was poor
parental guidance and the social harms associated with poverty.245 As Judge Julian
Mack classified it, the function of the juvenile court was, “not so much to punish as
to reform, not to degrade but to uplift, not to crush but to develop, not to make [the
delinquent] an offender but a worthy citizen.”246

239. Roper, 543 U.S. at 571.

240. See Harmelin, 501 U.S. at 989 (stating that “[p]roportionality is inherently a retributive
241. See Logan, supra note 150, at 713 (noting that “LWOP [is] a ‘denial of hope; it means that good
behavior and character improvement are immaterial; it means that whatever the future might hold in
store for the mind and spirit of [the defendant], he will remain in prison for the rest of his days.’”
(quoting Naovarath v. State, 779 P.2d 944 (Nev. 1989))).
242. See Scott & Grisso, supra note 9, at 141-42 (discussing the rehabilitative aims of the juvenile
justice system).
243. Id. at 141.
244. Id. at 142.
245. Id.
246. Julian Mack, The Juvenile Court, 23 HARV. L. REV. 104, 107 (1909).

The rehabilitative model began to lose support in the late 1960s, when
juveniles were afforded many of the same constitutional trial rights as were
adults.247 The shift thus began, away from rehabilitation and towards a punitive
approach reflecting the seriousness of the offense.248 Today, violent juveniles are
increasingly tried as adults, and the rehabilitative benefits of the juvenile court
system are left behind in this transfer.249 Legislatures in many states permit
juveniles to be charged in adult criminal court through judicial transfer or
legislative waiver.250 Many jurisdictions have lowered the minimum age to qualify
for adult criminal status, have mandated certain offenses be transferred, and
provided minimum sentences to control punishment in adult court.251 For juvenile
advocates, this shift is of great concern. As David Berger, a researcher at Amnesty
International opined, “[t]here should be outrage. This really shows our nation is
going backward in regard to enacting policies that seek to redeem children.”252
The offenders with the most serious problems and in the greatest need of
rehabilitation are being denied the privilege of rehabilitation. If, as the Roper court
asserted, retribution and deterrence are not a proper fit for juveniles receiving harsh
punishments;253 the remaining justifications of incapacitation and rehabilitation are
pitted against one another.254 Sentencing judges should, at the very least, be able to
conduct proportionality analyses in determining which punishment is best suited to
fit the specific offender.255 To mandate LWOP is to deny the juvenile either the
benefits of the juvenile system or to deny society the benefits of the juvenile
offender’s incarceration.256 It is impossible for a court to determine that a
seventeen-year-old will never grow into a respectable citizen without at least an
individual review of their crime and punishment. If there is one right the juvenile
should retain in adult court, by mandate of his age, it is that he remains regarded as
an individual and a child at sentencing. Because interminable incapacitation
deprives these children all hope for rehabilitation, it should be imperative that they
are reviewed and determined to be entirely devoid of any possibility of, at some
point, even sixty years down the line, reform.

247. See In re Gault, 387 U.S. 1 (1967) (affording juveniles the same procedural rights as adult
criminal defendants).
248. Scott & Grisso, supra note 9, at 145.
249. Id. at 149.
250. Id.
251. Id. at 150.
252. Ervin Dyer, Pa. Leads Nation in Youths Given Life Behind Bars, PITTSBURGH POST-GAZETTE
Oct. 13, 2005, at 1.
253. Roper, 543 U.S. at 571.
254. Rehabilitation is abandoned by life incarceration with adults, while long-term incarceration is
not an option if the juvenile is adjudicated in the juvenile justice system.
255. See Penry, 492 U.S. at 319 (“Underlying Lockett and Eddings is the principle that punishment
should be directly related to the personal culpability of the criminal defendant”).
256. See Logan, supra note 150, at 713 (asserting that “LWOP . . . means that good behavior and
character improvement are immaterial . . . he will remain in prison for the rest of his days”).

B. Looking at What Life Really Means: A Slow Death

“[Death Penalty Abolisionists] are positing life without parole as an option,
but it’s a death sentence by incarceration. You’re trading a slow form of death for
a faster one.”257

Further support for the unconstitutionality of mandatory LWOP for juveniles

is the fact that most (fifty-nine percent) young offenders are first time offenders.258
Common sense deems career criminals and the most violent offenders most worthy
of the most callous penalties. Based on the psychological factors discussed above,
juveniles cannot automatically be considered the worst, career offenders.259 A
study done by Amnesty International concluded, “It’s a myth that life sentences are
being used for children who are super predators, when in reality, fifty-nine percent
of child offenders are in prison for the first offense.”260 Some juveniles may, in
fact, be callous criminals absent any inclination for reform or rehabilitation. Most
are not.261 All of them, however, should have the chance to prove that they are not
hopeless before being sent to die in prison.
In Workman v. Commonwealth,262 one of the first and only cases to discuss
LWOP for juveniles, the Court of Appeals of Kentucky stated, “[t]he intent of the
legislature in providing a penalty of life imprisonment without benefit of parole . . .
was to deal with dangerous and incorrigible individuals who would be a constant
threat to society. We believe that incorrigibility is inconsistent with youth.”263 In
fact, research has shown that only a small percentage of young criminals will
persist in a life of crime.264
Furthermore, the worst adult offenders are constitutionally entitled to
individual consideration when they face the possibility of death sentences.265 For
juveniles, a tangential result of abolishing the death penalty is the loss of an
individualized consideration for the most severe sentence left available to them.266
In some jurisdictions, the Roper decision places juveniles at a more severe
disadvantage than even the worst adult career offenders simply because they are

257. Liptak, Serving Life, supra note 1, at 2 (quoting Paul Wright, a former ‘lifer’ and editor of
Prison Legal News).
258. See Dyer, supra note 252, at 2 (discussing an Amnesty International study finding that 59% of
child offenders are in prison for first time offenses, either as a juvenile or as an adult).
259. Logan, supra note 150, at 710-11.
260. Id.; see also Adam Liptak, No Way Out: The Youngest Lifers Locked Away Forever After
Crimes as Teenagers, N.Y. TIMES, Oct. 3, 2005, at A3 (finding that only 26% of juveniles serving life
without parole were found guilty of murder, but that a third were found guilty instead of felony-murder)
[hereinafter Liptak, No Way Out].
261. See Dyer, supra note 252, at 2.
262. 429 S.W.2d 374, 378 (1968).
263. Id. (finding that life without parole could be imposed upon an adult convicted of rape, but that it
is cruel and unusual for juveniles).
264. Scott & Grisso, supra note 9, at 154.
265. See Liptak, Serving Life, supra note 1, at 1 (discussing a juvenile LWOP inmates options for
appeal and concluding that “people on death row are provided with free lawyers to pursue their cases in
federal court long after their convictions have been affirmed; lifers are not”).
266. Id. at 2.

denied their status as individuals warranting proportionality at sentencing.267

Abolishing the death penalty should not come at the cost of individuality.
Moreover, LWOP bears particular weight when bestowed upon juveniles. The
ominous nature of the punishment for juveniles fuels the necessity that an
individual crime warrants the sanction. This can only be done with an individual
proportionality review at sentencing. The punishment, as a practical matter, can
add decades onto a sentence when imposed on a teen as opposed to an adult.
Adults describe life imprisonment as a ‘slow death,’ and as ‘equally severe’ as a
death sentence.268 Some who face life sentences have even chosen instead to die,
waiving their appeals after being sentenced to death.269 For juveniles, the sentence
is different in quality and character from any other he or she can receive.270 Randy
Arroyo, who was 16 when convicted of felony murder after his friend killed a pilot
while attempting to steal car parts, became a “lifer” after the Roper decision last
March.271 In his words, “I wish I still had that death sentence. I believe my
chances have gone down the drain. No one will ever look at my case . . . this is
hopeless.”272 While it is useless to argue which of the two punishments is the
greater evil, it is important to recognize that LWOP can be just as daunting as
capital punishment for juveniles. Because the reality of a LWOP sentence for a
juvenile is so grave, an individual review at sentencing is equally as pressing as
with the death penalty.

C. Additional Policy Considerations

Although the Roper dissenters deemed international law an inappropriate basis
for a Supreme Court decision, it is nonetheless an interesting policy
consideration.273 Currently, the United States is one of thirteen countries around
the world to offer LWOP as an option for juveniles.274 Strikingly, however, only
three of these countries currently have juveniles serving the sentence, according to
a study done by Human Rights Watch and Amnesty International.275 While Israel,
South Africa and Tanzania, which have seven, four and one juvenile respectively
serving these sentences,276 the United States has over 2200.277
Most juvenile offenders facing LWOP are not career criminals.278 They have
psychological deficiencies substantially diminishing their levels of culpability.279

267. See Wright, supra note 4, at 540 (finding that there are six categories for sentencing utilized
throughout the states, a minority of which implement the two-tiered approach where LWOP and death
are the only options). In these two-tiered states, LWOP is now mandatory for juveniles, while
mitigating factors may still be introduced for adults.
268. Logan, supra note 150, at 712.
269. Id.
270. Id. at 713.
271. See Liptak, Serving Life, supra note 1, at 1.
272. Id.
273. Liptak, No Way Out, supra note 260, at A2.
274. Id.
275. Id.
276. Id.
277. Id.
278. Dyer, supra note 252, at 2.
279. Logan, supra note 150, at 710-11.

They face decades in prison, with no hope of parole or appeal.280 A significant

percentage of them have not even committed first-degree murder.281 Those serving
LWOP are among similar juveniles in only three other countries in the world, and
number thousands more.282 They are serving sentences of slow death without any
incentive to educate or reform themselves.283 They are denied rehabilitation and
their rights as juveniles. For the aforementioned reasons, the mandatory nature of
these sentences, absent individual consideration, is cruel and unusual.

D. Resistance and Reality: Is the Country ready for change?

Abolishing mandatory LWOP for juveniles is not without resistance and
opposition. Justice Scalia, who considers himself a strict constructionist of the
Constitution, provides several rationales for treating only death with special
individual concern.284 In addition, it can be argued that there is no national
consensus against mandatory LWOP for juveniles, as measured by state legislation.
The Roper decision is so recent that challenges to mandatory juvenile LWOP in the
wake of the abolishment of the juvenile death penalty are rare, if existent. Even if
legislatures want to change their statutes, they may not have had time to do so, or to
contemplate the affects of the now mandatory juvenile LWOP. Lastly, it is
contended that the Court’s subjective views have no place in interpreting the
Constitution, and employing a proportionality analysis would do just that.285
“Death is different.”286 Although abolitionists of LWOP argue that death is
not all that different, the reality is that it is has been a longstanding contention of
the Supreme Court.287 Justice Scalia, writing only for himself and Justice
Rehnquist in Harmelin, wrote “[o]ur cases creating and clarifying the
‘individualized capital sentencing doctrine’ have repeatedly suggested that there is
no comparable requirement outside the capital context, because of the qualitative
difference between death and all other penalties.”288 Scalia would have refused to
extend the proportionality analysis to mandatory LWOP for an adult.289 Conceding
that mandatory sentences may be considered cruel for adults, Justice Scalia
concluded they could not be considered unusual.290 This view is adopted by a
majority of jurisdictions, which continue to find that LWOP is not cruel and

280. Liptak, Serving Life, supra note 1, at 1.

281. Liptak, No Way Out, supra note 260, at A3.
282. Id. at A2.
283. See Logan, supra note 150, at 713-14 (describing how the hopelessness and despair experienced
by juveniles serving LWOP often leads to a belief that good behavior and character improvement are
284. See generally Harmelin, 501 U.S. 957 (asserting that a term of years may be cruel, but is not
unusual, and that death is of a different quality than a term of years).
285. Roper, 543 U.S. at 615 (Scalia J., dissenting). Note, however, that this is precisely how the
majority decided Roper.
286. Harmelin, 501 U.S. at 994.
287. Id.
288. Id. at 995 (citing Eddings v. Oklahoma, 455 U.S. 104, 110-12 (1982)).
289. Id. at 996.
290. Id. at 994.

unusual punishment.291 Only a minority of these states, however, have considered

the question in the context of the juvenile, and few, if any have discussed its
mandatory application in the wake of Roper.292
A Ninth Circuit decision in Harris v. Wright,293 one of the few cases to review
LWOP for juveniles, failed to uphold petitioner’s argument that such a severe
sentence for a juvenile was so extraordinary as to violate the Eighth Amendment.294
Petitioner’s brief asserted that a “mandatory sentence of life without parole when
inflicted upon a child offends human dignity because it does not account for
children’s relative, decreased moral culpability.”295 Petitioner asserted that the
threshold requirement for a proportionality analysis is met by the severity of the
sentence, mandatory life without the possibility of parole, and the status of the
offender, which raise an inference of gross disproportionality under the Harmelin
test.296 “To conclude otherwise would be to conclude that no punishment, short of
execution, inflicted upon a child is too extreme.”297 The Harris Court rejected
petitioner’s arguments, making a slippery slope contention: mandatory LWOP
cannot be put into its own constitutional category because it would be difficult to
distinguish from life with parole, and thus difficult to distinguish from a long term
of years, and so on.298 In other words, death is different. The Court rejected that
the youth of the offender made any impact on this slope, stating “[y]outh has no
obvious bearing on this problem: If we can discern no clear line for adults, neither
can we for youths.”299
In further support of LWOP for juveniles, it is asserted that the country’s
acceptance of the abolishment of the juvenile death penalty has only been because
there remains the sanction of LWOP.300 In discussing Roper, a writer for USA
Today wrote “It does not mean, however, that vicious and remorseless juvenile
predators should not be permanently removed from society. They should be
sentenced to life without chance for parole. The idea of being locked in a tiny cell
for decades is no less a deterrent.”301 The Supreme Court made a large step in
declaring the juvenile death penalty unconstitutional. Dissenting Justices Scalia
and O’Connor believed the country was not, in fact, in consensus that this
conclusion was appropriate.302 The argument follows, then, that the country will be

291. See Alperin, supra note 151, at 365-67 (noting a majority of jurisdictions allowing LWOP for
292. Id.
293. 93 F.3d 581 (9th Cir. 1996).
294. Id. at 583.
295. Brief for the Petitioner, supra note 201, at 1.
296. Id. at 11.
297. Id.
298. Harris, 93 F.3d at 584-85.
299. Id. at 585.
300. See Liptak, Serving Life, supra note 1, at 3 (quoting James Liebman, a law professor at
Columbia University, “Life without parole has been absolutely crucial to whatever progress has been
made against the death penalty. The drop in death sentences . . . would not have happened without
301. Editorial/Opinion, Juveniles will Evade Death Penalty, Not Harsh Justice, U.S.A. TODAY, Mar.
2, 2005, at 12A, available at http://www.usatoday.com/news/opinion/editorials/2005-03-01-edit_x.htm.
302. Roper, 543 U.S. at 605-06.

even less accepting of abolishing mandatory LWOP. We simply may not be ready
yet for the next step, even if it will eventually be the logical one.
The evolving standards of decency considered in interpreting the Eighth
Amendment cannot support a finding that mandatory LWOP is per se
unconstitutional. The novelty of Roper has left little time for state legislatures to
consider the remaining punishment for juveniles in two-tiered sentencing
jurisdictions. It can hardly be said that a national consensus has emerged against
mandatory LWOP when most legislatures have not considered it in the context of
juveniles, much less since the time of Roper.
Justice Scalia gave further support for finding that LWOP for juveniles was
not cruel and unusual punishment by asserting that the Constitution did not warrant
decisions based on the subjective opinions of the Court.303 Scalia vehemently
contested the Court’s use of its justices’ own judgments in evaluating psychological
deficiencies and international law to determine the juvenile death penalty
unconstitutional.304 A proportionality analysis for evaluating adult LWOP
sentences has been rejected by Scalia and followers.305 No doubt, given his dissent
in Roper, the nature of the juvenile offender will not change this view, nor now that
it is mandatory.
While these are valid objections to the implementation of a proportionality
analysis for before sentencing juveniles to LWOP, the state courts and legislatures
have never before found themselves in this unique position. The Harris Court, in
making its assertion, failed to acknowledge the reality that “juveniles can and do
differ from adults in fundamental ways.”306 In other words, although “death is
different,” children are different too.
Mandatory life without parole is also different and can be distinguished from
other terms of years, preventing the infamous slippery slope. It denies all hope and
rehabilitation. Life with parole, on the other hand, can be just as long an
incarceration, but it gives the juvenile a reason to live, to learn and to grow. That
alone is justification for individual review before permanent removal of a child
from society.
Given the unique result in wake of the Roper decision, and the aforementioned
policy considerations, a review of two-tiered state sentencing scheme is warranted.
The change need not be drastic, and the two-tiered sentencing approach need not be
altered in the adult arena. To add proportionality and the potential for life with
parole, these states may maintain their two-tiered statutes, as well as their respect
for juvenile individuality.

303. Id. at 607.

304. Id. at 607-08.
305. Harmelin, 501 U.S. at 995.
306. Logan, supra note 150, at 710.

B. Taking a Firm Stand

“A judge who refuses to see new threats to an established constitutional value,
and hence provides a crabbed interpretation that robs a provision of its full, fair
and reasonable meaning, fails in his judicial duty.”307

The Supreme Court has employed three tests in evaluating the Eighth
Amendment’s proscription against cruel and unusual punishment: (1) whether the
framers of the Constitution would have considered the punishment cruel and
unusual;308 (2) whether evolving standards of decency of a maturing society have
created a consensus against it;309 (3) whether the punishment is either grossly
disproportionate to the severity of the crime,310 or makes no measurable
contribution to the accepted goals of punishment.311 In Roper v. Simmons, the
Court used the second test, and found that the evolving standards of decency were
in favor of abolishing the juvenile death penalty.312 Although this test cannot be
used with LWOP, because the legislatures may not have had time to contemplate
the situation now before them, the mandatory nature of the sentence may still be
cruel and unusual under the Eighth Amendment for lack of an individual
proportionality analysis.
No juvenile should be given a punishment as solemn as LWOP without an
individual assessment of proportionality in relation to the crime committed. The
Supreme Court should find, based on its third criteria for evaluating the Eighth
Amendment, that mandatory life without the possibility of parole is
unconstitutional. The punishment is grossly disproportionate to the offense, and
more specifically, the offender. Moreover, the adult penalogical goals that support
LWOP are inappropriate when applied to juveniles. When the goals of a
punishment are not met by their sentences, they are inherently cruel and unusual,
regardless of whether the punishment is death, life or otherwise.
In Solem, the Court opened its door to the possibility of implementing a
proportionality analysis for sentences other than death.313 The court implemented a
three-part analysis for proportionality: (1) the gravity of the offense and the
harshness of the penalty; (2) a comparison to sentences imposed on other criminals
in the same jurisdictions; and (3) a comparison to sentences imposed for
commission of the same crime in other jurisdictions.314 The next case to consider
the issue was Harmelin, where a majority of justices generally supported Solem’s
proportionality approach for prison sentences.315 Justice Kennedy’s concurrence in

307. Thompson, 487 U.S. at 823 n.4 (quoting Ollman v. Evans, 750 F.2d 970, 996 (D.C. Cir. 1984)).
308. Ford, 477 U.S. at 405.
309. Trop, 356 U.S. at 100-01.
310. Harmelin, 501 U.S. at 1005.
311. Coker, 433 U.S. at 592.
312. 543 U.S. at 578.
313. Solem, 463 U.S. at 288-89 (finding a violation of cruel and unusual punishment where
defendant’s LWOP sentence was disproportionate to the crime of passing a bad check despite a lengthy
prior record and that the Eighth Amendment applies to prison terms).
314. Id. at 290-91.
315. Harmelin, 501 U.S. at 995-96 (sentencing defendant to LWOP without considering
proportionality for possession of over 650 grams of cocaine). But only Justice Scalia and Justice

Harmelin established the standard used today: that the first two components of
Solem’s test are only applicable upon a “comparison of the crime committed and
the sentence imposed leads to an inference of gross disproportionality.”316 Though
these two cases did not concern murder defendants, the principle remains clear:
where the punishment is grossly disproportionate to the crime, whether it is death
or imprisonment, it is cruel and unusual.317
Since Harmelin, state and lower federal courts have widely adopted the
proportionality analysis for LWOP.318 However, a minority of state courts are left
with no choice but to ignore the analysis altogether.319 These are the states whose
statutes for first degree murder and similarly graded crimes provide juries with two
choices: life or death.320 In these jurisdictions, both mitigating and aggravating
conditions can influence a jury determination.321 This remains the case for adults
convicted of these crimes.322 For mandatory juvenile LWOP, however, evidence of
any psychological, neurological, or lack of penalogical application is irrelevant.
For juveniles, mandatory LWOP is arguably worse than death. If proportionality is
still needed for adults facing death, it is equally a necessity for children facing the
rest of their life and death behind bars.

Roper v. Simmons was an important landmark in modern juvenile justice.
While abolishing the juvenile death penalty was momentous, it was merely the tip
of the iceberg in providing juveniles the privileges they deserve as persons, as well
as the rights they deserve as minors. While violent juvenile offenders are out of
place in the juvenile justice system, they appear inappropriate in the adult system as
well. Without establishing a separate system for these offenders, juveniles
nonetheless require consideration as such in the adult criminal court. Instead of
treating juveniles like adults, just because there is no severe punishment in the
juvenile system, it is fundamental to recognize that they are not adults, and should
not be denied their status as such.
Mandatory LWOP turns a blind eye to juvenile individuality at sentencing. As
a result, the opportunity to present pressing evidence of the juvenile’s
psychological and neurological immaturity is thwarted. However, never have the
state courts been in such a position of powerlessness to sentence juveniles brought
before them. To deny an individual specific and personal consideration before
mandating that he be incarcerated for fifty, sixty, or seventy years is cruel. To deny
this right to a child, but not an adult, is unusual.

Rehnquist joined portions of the opinion explicitly declining the use proportionality analysis for
sentences other than capital punishment.
316. Id. at 1005.
317. Id.
318. Logan, supra note 150, at 698.
319. Wright, supra note 4, at 540-41.
320. Id. at 541.
321. Id. at 543.
322. Id.

More than a constitutional privilege, proportionality between crime and

punishment is an individual right. The penalogical goals of our system are
extraneous if they are not matched to the individual. Punishments that exclusively
serve society’s benefit or exclusively that of the juvenile do not yield a productive
nor well-designed system of justice. Judges considering a punishment should
consider the rationale behind it, and the balance of benefits to society as well as the
individual. Mandatory LWOP only benefits society, and leaves no hope or purpose
for rehabilitating the juvenile. By allowing a proportionality review, and the
possibility of life with parole, juveniles are afforded hope. This alone gives them a
reason to live, and to learn. It takes little from society; seventy years is still an
extreme sentence and one unlikely to permit release before natural death. It is a
small alteration for society, yet a large step forward for our nation’s children.

Elizabeth Cepparulo∗

Temple University, Beasley School of Law, J.D. expected 2007. I want to thank my faculty advisor,
Professor Strazzella, the Hon. Cynthia M. Rufe and the Hon. Albert J. Cepparulo for all their support,
criticism and devotion to criminal justice.