Despite the recent Supreme Court ruling in Miller v. Alabama, the United States will remain the only country in the world to sentence children to spend their lives in prison. Like countries worldwide, our laws prohibiting children from marrying, voting and drinking recognize that those under the age of 18 are categorically different from adults — a difference we fail to apply to their treatment under criminal law.
Enshrined in laws in 28 states and in federal court, children in the United States could be transferred to adult court, tried as adults, and subject to mandatory sentencing schemes. In the Miller decision the Court ruled that a mandatory sentence of life without parole is unconstitutional when applied to juveniles for homicide crimes. Under this decision, judges in all U.S. courts are required to take into account factors such as the defendant’s age, background, involvement in the crime, and possibility of rehabilitation before issuing a sentence.
This confirms what the vast majority of countries around the globe have done all along. A new study by the Center for Law and Global Justice at the University of San Francisco found that 84 percent of countries take into account the age of the offender at trial, leaving the United States as the lone Western country that does not follow this practice. Most countries also cap sentences for kids at 20 years or less, or reduce the degree of the crime to one that carries a much lighter sentence. Paired with its 2010 Graham decision banning juvenile life without parole sentences for non-homicide crimes, Miller suggests the Supreme Court may not be satisfied with our outlier status.
However, the Supreme Court did not reference international practice or treaty obligations in Miller, and did not completely ban the possibility of juvenile life without parole. Instead, they merely hoped that the sentence would be “uncommon.”
The United States has consistently prided itself on its commitment to and protection of international human rights through its role at the United Nations, and in its longstanding attempts to foster democracy in other countries. Yet, how can the United States be an international example when it stops short of matching international norms when it comes to children? A glaring example of this contradiction: the United States is one of only three countries in the world that is not party to the Convention on the Rights of the Child, a major U.N. treaty which sets up legal protections for children. We share this distinction with Somalia, which lacks a formal government, and South Sudan, a newly formed country.
While the estimated 2,594 children currently serving life without parole sentences and their advocates rejoiced over the Miller ruling, others will struggle to figure out whether this ruling will affect them. In practical terms, many states have consecutive sentencing that in effect sentences a juvenile to so many years in prison that they will never be released.
Courts are currently battling with these de facto life without parole cases. The California Supreme Court is determining whether a sentence of 110 years is covered under Graham. The Supreme Court of Florida agreed to review a case to determine if a sentence of 70 years handed to a child counts as life without parole. One juvenile, challenging his case before federal court in Missouri, was sentenced to 241 years for a crime committed at the age of 16. These cases were not addressed in Miller, as they were not labeled life without parole sentences.
Will these children benefit from the ruling in Miller? Will judges recognize that a 100-year prison sentence is the same as mandatory life without parole?
Both the Miller and Graham rulings indicate that the United States is working to align its treatment of children under international law to match the practices of the rest of the world. However, if the United States is serious about keeping its position as a human rights leader on the global stage, it will eradicate juvenile life without parole sentences – regardless of the form they take.
Dana Marie Isaac is the project director and attorney at the University of San Francisco (USF) School of Law’s Project to End Juvenile Life Without Parole. The Project, housed under USF’s Center for Law and Global Justice, files amicus briefs challenging life without parole sentences under international law — notably in the Supreme Court cases of Graham v. Florida and Miller v. Jackson. The Center recently released a report, Cruel and Unusual: Sentencing in a Global Context, comparing the United States extreme sentencing laws to those of the rest of the world.