Juvenile Justice

What do we gain from sentencing juvenile offenders to death in prison?

By Jeffrey A. Fagan

Winter 2009

What comparison can there really be . . . between consigning 
a man to the short pang of a rapid death, and immuring 
him in a living tomb, there to linger out what may be a long life in the hardest and most monotonous toil, without any of its alleviation or rewards—disbarred from all pleasant sights and sounds, and cut off from all earthly hope? —John Stuart Mill (1868)

Despite banning the execution of minors in 2005 following Roper v. Simmons, the United States still leads the world by a wide margin in harsh punishments of adolescent offenders. Today, more than 2,500 persons are serving sentences of life without the possibility of parole, or death in prison, or natural life, for crimes committed as minors. These sentences are popular—forty-two states allow them—and are used promiscuously. Most of the 2,500 were convicted of homicide, but more than one in four were accomplices in murders that he or she neither knew about nor intended. Many committed crimes other than murder. Half have no prior criminal convictions. About one in six were less than sixteen years of age at the time of their crime, and at least thirty were thirteen or younger.

Critics suggest that natural life is a slow, irreversible death sentence no different than an execution. They cite Roper’s logic and language to claim that the same evidence of lesser emotional, neurological, and physical maturation of adolescents makes them “categorically less culpable” than adults, significantly shifting the calculus of penal proportionality. They note that the same factors that make them less culpable also make them less deterrable. Abolitionists point out that, as one of only three countries that authorizes and uses natural-life sentences for minors, the United States opposes an overwhelming international consensus. And state legislatures are slowly pulling back: one state recently banned death-in-prison sentences for minors and legislation is pending in several others to do the same. Since 2000, death-in-prison sentences for minors have declined sharply and at a rate that exceeds the steady decline in juvenile violence.

Certainly, there is room for pushback and counterreform by proponents. These statutes have proliferated for more than two decades in lockstep with the 
growth of punitive juvenile justice policies, signaling a shared preference among legislatures. Even so, the tension between legislative preferences and the Roper jurisprudence broadens the narrowly tailored debate into substantive jurisprudential questions on the limits of juvenile justice and raises normative questions about the punishment of adolescents.


The Roper court casually 
entered this debate on three fronts. First, it noted that “the 
punishment of life imprisonment 
without the possibility of parole is itself a severe sanction, in particular for a young 
person,” for whom most of her life lies ahead. Second, the Roper court rejected any punishment that would permanently mortgage adolescents’ full human development: 
“[w]hen a juvenile . . . commits a heinous crime . . . [we] cannot 
extinguish his life and his 
potential to attain a mature 
understanding of his own 
humanity.” And third, the court linked immaturity to the unlikely prospect of deterrence.

But the big fight is about proportionality. In Harris v. Wright, the Ninth Circuit refused to overturn a mandatory natural-life sentence imposed on a fifteen-year-old murderer, noting that proportionality analyses are narrowly limited to instances of gross disproportionality: “youth has no obvious 
bearing on this problem . . . mandatory life imprisonment without parole is, for young and old alike, only an outlying point on the continuum of prison sentences.” Some courts simply disregard age and narrowly limit proportionality tests to the balance between the crime and the sentence imposed. One court 
ruled that death-in-prison sentences for even preteen offenders 
are within the boundaries of society’s current and evolving standards. Other courts say that youths forfeit any age-related sentencing discount for diminished culpability once the case is 
transferred to the criminal court 
where a natural-life sentence may be mandatory.

But other courts reject the notion that age is a fiction in proportionality analyses. The Illinois Supreme Court overturned a natural-life sentence for a first-time offender of age fifteen, finding that such disproportionality “shocks the moral sense of the community.” One court ruled that a similar sentence for a youth of fifteen constituted severe cruel and unusual punishment that “under all circumstances shocks the general conscience of society today and is intolerable to fundamental fairness,” and pointed to the “undeniably lesser culpability of children for their bad actions, their capacity for growth, and society’s special obligation to [them].” Another court rejected “virtually hopeless lifetime incarceration” by questioning “whether a thirteen-year-old can even imagine or comprehend what it means to be imprisoned for sixty years or more.”

Finally, as did the Roper court, critics cite the inability 
of judges and juries to accurately render individualized assessments about whether a teenager’s immaturity and developmental deficits attenuate her culpability. The Roper court also worried about actual innocence arising from the vulnerability of teenagers to false 
confessions. Courts can detect these errors in capital cases because of strong (super) due-process footprints, but some errors are revealed even after appellate remedies are exhausted. Critics fear similar mistakes given the wide statutory net of noncapital crimes where relief is elusive.


A constitutional challenge to natural life sentences is inevitable, but faces difficult hurdles. Natural-life sentences are path dependent on juvenile waiver or transfer laws that often cede jurisdictional choice to prosecutors and legislators, effectively deregulating punishment of minors. But narrowing principles could be applied to cabin these laws. States could limit natural-life sentences for minors to capital crimes. Evidence of fractured proportionality could be persuasive to state legislators when the actual human faces of excessive punishment 
are visible, so that parents and legislators can forge a sense of linked fate to animate law reform.

The argument is simple: What marginal benefits to crime control or retribution do we gain from a sentence of life without parole for a juvenile over what we now gain from sentences of thirty or forty or fifty years? The answer, given the reality and severity of life in prison, is, none at all.

This essay was reprinted from the recently published Sesquicentennial Essays of the Faculty of Columbia Law School.