February 22, 2013
Mark H. Bergstrom, Executive Director
Pennsylvania Commission on Sentencing
P. O. Box 1200
State College, PA 16804-1200
Re:
Juvenile Law Center’s Comments to the Proposed Amendment to the 7th
Edition Sentencing Guidelines
Dear Mr. Bergstrom,
On behalf of Juvenile Law Center, we write to provide you with Comments to the
Proposed Amendment to the 7th Edition Sentencing Guidelines. Juvenile Law Center is the oldest
multi-issue public interest law firm for children and youth in the United States. We believe the
proposed amendments to the guideline sentence recommendations for juveniles convicted of
murder are inconsistent with the mandates set out by the United States Supreme Court in Miller
v. Alabama. We appreciate the opportunity to share our comments with the Sentencing
Commission.
Sincerely,
Marsha L. Levick, Esq.
Deputy Director and Chief Counsel
Comments to the Proposed Amendment to the 7th Edition Sentencing Guidelines
Submitted by Juvenile Law Center1
On June 25, 2012 the U.S. Supreme Court issued its opinion in Miller v. Alabama,2 the
third in a series of recent landmark decisions regarding the sentencing of children in the criminal
justice system.3 Each of these decisions recognized that children under the age of 18 should not
be treated the same as adults, and that harsh sentencing laws that fail to take account of the
distinct attributes of children and youth will fail to pass constitutional muster. Children are not
simply smaller versions of adults and are not as culpable for their actions. In Miller, the Court
found mandatory life without parole sentences to be unconstitutional for children convicted of
murder committed when they were under the age of 18. The Court found that “appropriate
occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” 4
Unfortunately, Pennsylvania leads the nation and the world in sentencing children to die in
prison, with over five hundred children sentenced to mandatory life without parole following
conviction of either first or second degree murder.
In response to the Miller ruling, the Pennsylvania General Assembly enacted Act 204 of
2012. Under the new law, courts will have to impose a minimum of 35 years to life for youth
ages 15-17 convicted of first degree murder, and 25 to life for youth 14 years of age or younger.
In cases of second degree (felony) murder, where there is no finding of intent to kill and youth
often play a peripheral role in the crime, courts are required to impose mandatory minimum
sentences of 30 years-life for 15-17 year olds, and 20-life for youth under the age of 14. The
sentencing scheme adopted by the legislature is excessively harsh; indeed, since Miller, no other
state has enacted so punitive a statute.5
The Sentencing Commission’s proposed amendments to the Sentencing Guidelines
exacerbate the excessive harshness of the Act 204 by recommending significant sentencing
enhancements based on the juvenile’s prior record score. Because these sentencing
enhancements are inconsistent with the U.S. Supreme Court decision in Miller and
Pennsylvania’s new statute, Juvenile Law Center recommends instead adopting sentencing
enhancements that are consistent with the sentencing enhancements for juveniles and adults
1
Juvenile Law Center is the oldest multi-issue public interest law firm for children and youth in the United States.
Juvenile Law Center has played a national leadership role in successfully arguing against the imposition of the death
sentence and life without parole sentence on juvenile offenders convicted of both homicide and non-homicide
offenses. We submitted amicus briefs on behalf of dozens of advocacy organizations and individual professionals
and academics in all three of the related US Supreme Court sentencing cases – Roper v. Simmons, Graham v.
Florida, and Miller v. Alabama.
2
132 S. Ct. 2455 (2012).
3
See also Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 560 U.S. ___, 130 S. Ct. 2011 (2010).
4
Miller v. Alabama, 132 S. Ct. at 2469.
5
For example, North Carolina’s statute imposes a 25-life or life without parole for first degree murder and 25-life
for felony murder. See N.C. Gen. Stat. § 15A-1340.19A. Wyoming recently passed legislation abolishing juvenile
life without parole, replacing “life without parole” with a sentence of life with commutation to a term of years or
parole after serving 25 years. See Wyoming House Bill 23, available at http://legisweb.state.wy.us/2013/
Enroll/HB0023.pdf. California also enacted legislation allowing children who were under age 18 at the time of their
crime and sentenced to life without parole to ask the sentencing court to review their case and consider a new
sentence permitting parole after serving 25 years in prison. See Cal. Pen. Code § 1170 (d)(2).
convicted of third degree murder. Moreover, we recommend adopting guidelines that ensure that
the imposition of juvenile life without parole sentences is uncommon, as mandated by Miller.
A. The Sentencing Matrix for Juveniles Convicted of 1st or 2nd Degree Murder Should
Comport with the Sentencing Matrix for Juveniles and Adults Convicted of 3rd
Degree Murder
Given that Pennsylvania’s sentencing scheme already imposes excessively harsh
mandatory minimums for juveniles convicted of first and second degree murder, the two- to fiveyear enhancements per prior record score point proposed by the new guidelines are unreasonable
and would result in unconstitutional sentences.
For example, the proposed guidelines recommend that a fifteen year old convicted of first
degree murder with a prior record score of “1” would receive a sentence of 480 months to life.
However, the United States Sentencing Commission defines a life sentence as 470 months based
on average life expectancy of those serving prison sentences,6 so a 480 month to life sentence is
not a meaningful alternative to a sentence of life without the possibility of parole. Of course, the
higher the child’s prior record score, the higher the minimum recommended sentence, such that a
repeat felony 1 and felony 2 offender convicted of first degree murder would have a 780 month
(or 65-year) to life sentence. These sentences are the equivalent of life without parole sentences
as they provide no meaningful opportunity for release.7
Replacing mandatory life without parole sentences with term-of-years sentences that are
the functional equivalent of life without parole violates Miller, and therefore should not be
adopted. As discussed below, Miller mandates that life without parole sentences be uncommon,
and that the trial court take into account how children are different and how these differences
counsel against life without parole sentences. Sentencing children to the functional equivalent of
life without parole – based solely on their prior record scores and absent consideration of their
decreased culpability – violates Miller and ignores the well-developed social science research
about children’s remarkable capacity for rehabilitation.8
6
See, e.g., United States v. Nelson, 491 F.3d 344, 349-50 (7th Cir. 2007); U.S. Sentencing Commission Preliminary
Quarterly Data Report (Through June 30, 2012) at A-8, available at
http://www.ussc.gov/Data_and_Statistics/Federal_Sentencing_Statistics/Quarterly_Sentencing_Updates/USSC_201
2_3rd_Quarter_Report.pdf.
7
See Graham v. Florida, 130 S. Ct. 2011, 2030 (2010) (requiring that states give juveniles convicted of
nonhomicide offenses “meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation”).
8
In Roper v. Simmons, 543 U.S. 551, 570 (2005), for example, the Supreme Court found:
The reality that juveniles still struggle to define their identity means it is less supportable to
conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved
character. From a moral standpoint it would be misguided to equate the failings of a minor with
those of an adult, for a greater possibility exists that a minor's character deficiencies will be
reformed. Indeed, "[t]he relevance of youth as a mitigating factor derives from the fact that the
signature qualities of youth are transient; as individuals mature, the impetuousness and
recklessness that may dominate in younger years can subside." Johnson, 509 U.S. 350, 368
(1993); see also Steinberg & Scott 1014 ("For most teens, [risky or antisocial] behaviors are
fleeting; they cease with maturity as individual identity becomes settled. Only a relatively small
Additionally, in the recently passed Act 204, the Pennsylvania legislature determined that
children convicted of second degree murder are not eligible for life without parole sentences.
However, under these recommended Guidelines, children age 15 or older convicted of second
degree murder with a prior record score of three face recommended Guideline sentences of at
least 468 to 624 months.9 Again, such sentences are the virtual equivalent of life sentences as
they provide no meaningful opportunity for release. They therefore violate Millerand Graham
and contradict the intent of the Pennsylvania legislature.
The Sentencing Commission should look to the Basic Sentencing Matrix for 3rd Degree
murder (for both adult and juvenile offenders) as a guide for the matrix for children convicted of
first and second degree murder. Under the Basic Sentencing Matrix, a child or adult convicted of
3rd Degree Murder receives a recommended 12-month enhancement over the previous prior
record score point for a PRS of 1 or 2, with slightly higher increases for offenders with higher
PRS scores.10 Therefore, a child age 15 or older convicted of first degree murder who had a
prior record score of zero would receive 420 months to life, and a child with a prior record score
of one would receive 12 additional months (or 432 months to life). (See chart below.) Applying
this enhancement scheme for children convicted of first or second degree murder has the
advantages of being consistent with the third degree murder guidelines and of being more
consistent with U.S. Supreme Court precedent.
Prior Record Score
1
0
2
3
4
5
RFEL
REVOC
Agg/Mit
Murder of the 1st Degree
Offender Age 15 to < 18 420-life
432-life
444-life
468-life
516-life
540-life
552-life
LWOP
+/- 12
Offender Age < 15
300-life
312-life
324-life
348-life
396-life
420-life
432-life
LWOP
+/- 12
Murder of the 2nd Degree
Offender Age 15 to < 18 360-624 372-624 384-624 408-624 456-624 480-624 492-624 504-624 +/- 12
Offender Age < 15
240-558 252-558 264-558 288-558 336-558 360-558 372-558 384-558 +/- 12
The sentencer should impose a sentence below the recommended Guideline minimum (though not below the statutory
minimum) whenever the child’s distinct characteristics and diminished culpability warrant a lesser sentence.
Additionally, LWOP or its functional equivalent (any sentence 470 months or longer) is only appropriate when there is an
additional determination that: a life without parole sentence is the only sentence that will remedy the impact on the victim and
community; a life without parole sentence is the only sentence that will protect the public safety; the nature and circumstances
of the offense are unrelated to the hallmarks of adolescent development; and the child’s culpability, age, mental capacity,
maturity, criminal sophistication, history of delinquency, and other mitigating factors dictate a finding that the child cannot be
rehabilitated.
proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns
of problem behavior that persist into adulthood").
9
Those with a prior record score of four face a recommended minimum of 504 months; those with a prior score of
five face a 540 month minimum; those with repeat felony 1 and felony 2 face a 576 month minimum; and those
classified as repeat violate offenders face a 612 month minimum.
10
See 204 Pa. Code § 303.16. For example, an offender with a prior record score of zero receives a minimum of 72
months, and an offender with a prior record score of one receives 12 additional months (a 84 month minimum); for a
PRS of two, the Guidelines similarly recommend a one-year increase; for a PRS of three, the Guidelines recommend
a 2 year increase; for PRS of 4, they recommend a 4 year increase, and for a PRS of 5 recommend a 2 year increase.
The guidelines should clearly state that the court should impose a sentence below the
recommended minimum (though not below the statutory minimum) whenever the child’s distinct
characteristics and diminished culpability warrant a lesser sentence.
B. The Sentencing Guidelines Must Comport with Miller and Act 204 of 2012
In Miller v. Alabama, the U.S. Supreme Court held that the Eighth Amendment forbids
imposing a mandatory life without parole sentence on juvenile offenders. The Court went on to
state their belief that “appropriate occasions for sentencing juveniles to this harshest possible
penalty will be uncommon.”11 The Court has repeatedly found that juvenile offenders whose
crimes reflect “irreparable corruption” are “rare.”12 Importantly, the Court “require[s] [the
sentencer] to take into account how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.”13
In determining an appropriate, individualized sentence for juveniles convicted of murder,
Miller suggests that the trial court should consider, at a minimum:





The child’s young age and developmental attributes, including immaturity, impetuosity,
and failure to appreciate risks and consequences;
The child’s family and home environment;
The circumstances of the offense, including the extent of the child’s participation and the
way familial and peer pressures may have affected his or her behavior;
The child’s lack of sophistication in dealing with a criminal justice system that is
designed for adults; and
The child’s potential for rehabilitation.14
11
Miller v. Alabama, 132 S. Ct. at 2469.
See Miller, 132 S. Ct. at 2469.
13
Id. (emphasis added).
14
Id. at 2468. Similarly, the legislature requires the court to make on the record findings of the following factors in
determining whether to impose a sentence of life without parole on juvenile offenders convicted of first degree
murder:
12
(1) The impact of the offense on each victim, including oral and written victim impact statements made or
submitted by family members of the victim detailing the physical, psychological and economic effects of
the crime on the victim and the victim's family. A victim impact statement may include comment on the
sentence of the defendant.
(2) The impact of the offense on the community.
(3) The threat to the safety of the public or any individual posed by the defendant.
(4) The nature and circumstances of the offense committed by the defendant.
(5) The degree of the defendant's culpability.
(6) Guidelines for sentencing and resentencing adopted by the Pennsylvania Commission on Sentencing.
(7) Age-related characteristics of the defendant, including:
(i) Age.
(ii) Mental capacity.
(iii) Maturity.
(iv) The degree of criminal sophistication exhibited by the defendant.
(v) The nature and extent of any prior delinquent or criminal history, including the success or
failure of any previous attempts by the court to rehabilitate the defendant.
In spite of the clear language in Miller and the statute incorporating the factors a trial
court must consider before imposing a life without parole sentence on a juvenile offender, the
proposed guidelines merely state that “Life without parole is assigned as the sentence
recommendation for a repeat violent offender.”15 The sentencing guideline recommendations
provide no assurance that life without parole will be an uncommon sentence for children in
Pennsylvania or that the trial court will consider the how the unique characteristics of children
counsel against sentencing them to life without parole, as required by Miller.
Therefore, the sentencing guidelines should clarify that life without parole sentences are
only recommended in rare and unusual cases.16 The sentencing guidelines should be explicit that
life without parole is only appropriate for “repeat violent offenders” who commit first degree
murder, when, after considering the factors outlined in Miller, the trial court concludes all of the
following apply:




A life without parole sentence is the only sentence that will remedy the impact on the
victim and community;
A life without parole sentence is the only sentence that will protect the public safety;
The nature and circumstances of the offense are unrelated to the hallmarks of adolescent
development; and
The child’s culpability, age, mental capacity, maturity, criminal sophistication, history of
delinquency, and other mitigating factors dictate a finding that the child cannot be
rehabilitated.
Reserving juvenile life without parole sentences for circumstances when all of these
factors are met is consistent with the Supreme Court’s finding in Miller that “appropriate
occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”17
(vi) Probation or institutional reports.
(vii) Other relevant factors.
18 Pa.C.S. § 1102.1(d).
15
See Proposed Amendment to 204 Pa. Code § 303.9(2)(ii)
16
See Miller v. Alabama, 132 S. Ct. at 2469.
17
Id. (quoting Roper v. Simmons, 543 U.S. 551, 573 (2005)).