JUVENILE LIFE WITHOUT PAROLE:
IRREPARABLE CORRUPTION AS A SUBSTANTIVE STANDARD
PROJECT OVERVIEW
The Fair Punishment Project is a joint initiative of Harvard Law School’s Charles
Hamilton Houston Institute for Race & Justice and its Criminal Justice Institute. To promote a
proportionate, fair and accountable justice system, the Fair Punishment Project provides concise
issue briefs on important doctrinal questions that are developing in state and federal courts.
IN BRIEF
Question:
Must a sentencer conclude that a juvenile’s crime reflects “irreparable corruption” or
“permanent incorrigibility” before the sentencer may impose a life without parole sentence?
Answer:
Yes. A sentencer may impose a life without parole sentence upon a juvenile only after
concluding that the child is “the rare juvenile offender who exhibits such irretrievable depravity
that rehabilitation is impossible.” Montgomery v. Louisiana, 136 S. Ct. 734 (2016). In Miller v.
Alabama, 132 S. Ct. 2469 (2012), the Court held that a mandatory life without parole sentence
imposed upon a juvenile violates the Eighth Amendment’s prohibition on cruel and unusual
punishment. Critically, Miller does not hold that the introduction and consideration of mitigating
evidence is sufficient; instead, the sentencer must explicitly determine, after giving mitigating
effect to the characteristics of youth, that the juvenile’s crime reflects “irreparable corruption” or
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“permanent incorrigibility.” Montgomery, 136 S. Ct. at 734. This inquiry requires the sentencer
to conduct a retrospective analysis into the character and background of the juvenile, consider
the totality of the circumstances surrounding the crime, and perform a forward-looking
prediction as to whether it is possible that the child could experience meaningful positive change
at some point in his or her lifetime.
ANALYSIS
In Miller v. Alabama, 132 S. Ct. 2455 (2012), the Court held that a mandatory life
without parole sentence imposed upon a juvenile violates the Eighth Amendment. The Court
explained that children’s “diminished culpability” and “heightened capacity for change” renders
“appropriate occasions for sentencing juveniles to this harshest possible penalty … uncommon.”
Id. On the infrequent occasions where life without parole remains constitutionally permissible,
the sentencer must distinguish between “the juvenile offender whose crime reflects unfortunate
yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable
corruption.” Id. at 2469 (internal quotation omitted).
In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court clarified that Miller
imposed both a procedural requirement that a sentencer give individualized consideration to the
circumstances of youth, and a substantive limitation upon juvenile life without parole sentences.
Id. at 734 (“Because Miller determined that sentencing a child to life without parole is excessive
for all but ‘the rare juvenile offender whose crime reflects irreparable corruption,’ it rendered life
without parole an unconstitutional penalty for ‘a class of defendants because of their status’—
that is, juvenile offenders whose crimes reflect the transient immaturity of youth.”) (internal
citations omitted); see also Sarah French Russell & Tracy L. Denholtz, Procedures for
Proportionate Sentences: The Next Wave of Eighth Amendment Noncapital Litigation, 48 CONN.
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L. REV. 1121, 1129 (2016) (“Montgomery establishes that a life-without-parole sentence may not
be imposed on a child convicted of a homicide offense unless the sentencer makes a
determination—after giving mitigating effect to the characteristics and circumstances of youth—
that the particular child is ‘the rare juvenile offender who exhibits such irretrievable depravity
that rehabilitation is impossible.’”).
The import of these cases is that the sentence must reflect the child’s background,
character, and potential for change. It is not sufficient that a sentencer simply considers the
mitigating effect of youth before imposing a sentence. Montgomery, 136 S. Ct. at 734 (“Even if a
court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence
still violates the Eighth Amendment for a child whose crime reflects ‘unfortunate yet transient
immaturity.’”). Nor can a sentencer justify a life without parole sentence simply because a child
has committed a serious or shocking offense. Adams v. Alabama, 136 S. Ct. 1796, 1800 (2016)
(Sotomayor, J., concurring) quoting Roper v. Simmons, 543 U.S. 551, 570 (2005)) (“[T]he
gruesomeness of a crime is not sufficient to demonstrate that a juvenile offender is beyond
redemption: ‘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.’”). Rather, “Miller and Montgomery require a sentencer to ask
[] whether the petitioner was among the very rarest of juvenile offenders, those whose crimes
reflect permanent incorrigibility.” Tatum v. Arizona, No. 15–8850 (U.S. October 31,
2016)(Sotomayor, J., concurring in the decision to grant, vacate, and remand) at *2.
Most state courts that grappled with the question concluded that Miller contains a
substantive standard that conditions eligibility for life without parole on a finding that the
juvenile is “irreparably corrupt” or “permanently incorrigible.” At least two state courts ruled
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pre-Montgomery that Miller contains this substantive standard. See Sen v. State, 301 P.3d 106,
127 (Wyo. 2013) (concluding that if a trial court exercises discretion to deny a juvenile homicide
offender parole eligibility, it “must set forth specific findings supporting a distinction between
‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare
juvenile offender whose crime reflects irreparable corruption’”); State v. Seats, 865 N.W.2d 545,
556 (Iowa 2015) (finding that a sentencer may “only sentence [a] juvenile to life in prison
without the possibility of parole [if her] crime reflects irreparable corruption”).
Operating with the benefit of Montgomery’s interpretive gloss, several additional state
courts concluded that Miller created a substantive standard that conditions life without parole
upon a finding that a juvenile’s crime reflects “irreparable corruption” or “permanent
incorrigibility.” See Veal v. State, 784 S.E.2d 403, 412 (Ga. 2016) (reversing a discretionary life
without parole sentence because the trial court had not made any “distinct determination” that
Veal was “irreparably corrupt or permanently incorrigible, as necessary to put him in the narrow
class of juvenile murderers for whom a [life-without-parole] sentence is proportional under the
Eighth Amendment”); Landrum v. State, 192 So.3d 459, 463 (Fla. 2016) (finding that Miller’s
requirement that courts distinguish at sentencing “between the juvenile whose crime reflects
‘transient immaturity,’ and the rare juvenile whose crime reflects ‘irreparable corruption’”
applies to discretionary sentences); Alvira v. State, No. 0960 SEPT.TERM 2015, 2016 WL
3548256, at *2 (Md. Ct. Spec. App. June 28, 2016) (reversing a juvenile’s sentence because “the
sentencing court failed to consider whether Alvira was one of those ‘rare juvenile offenders[s]
whose crime reflects irreparable corruption’ warranting a sentence of life without parole or
whether, instead, his crimes ‘reflect[ed] the transient immaturity of youth’”) (internal citations
omitted); State v. Valencia, 370 P.3d 124, 127 (Ariz. Ct. App. 2016)(review granted, State v.
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Valencia, CR-16-0156-PR (Ariz. September 20, 2016) (reversing for a new sentencing hearing
where the sentencer had considered defendant’s age in imposing a discretionary life without
parole sentence, but did not make a finding that the juvenile’s crimes “reflect permanent
incorrigibility”); People v. Nieto, 52 N.E.3d 442, 455 (Ill. App. Ct. 2016) (vacating a
discretionary aggregate sentence of 78 years because, in part, the sentencing judge did not make
findings supporting the conclusion “that it believed defendant was the rarest of juveniles whose
crime showed that he was permanently incorrigible”).
Nonetheless, even post-Montgomery, at least two state courts have held that Miller did
not condition juvenile life without parole upon a finding of “irreparable corruption” or
“permanent incorrigibility.” Phon v. Commonwealth, No. 2014-CA-000073-MR, 2016 WL
1178651, at *3 (Ky. Ct. App. Mar. 25, 2016)(concluding that “Miller expressly applies [only]
when a juvenile offender receives a life without parole sentence under a mandatory sentencing
program,” and thus because Phon “presented evidence concerning his background, youth, and
several additional mitigating circumstances during the sentencing phase of his trial,” the
sentencing proceeding, and the result thereof, complied with Miller and Montgomery);1 Brown v.
State, No. W2015–00887–CCA–R3–PC, 2016 WL 1562981, at *7 (Tenn. Crim. App. Apr. 15,
2016), appeal denied (Tenn. Aug. 19, 2016) (finding that while Miller created a substantive
limitation on juvenile life without parole, “the Court stopped just shy of requiring ‘trial courts to
make a finding of fact regarding a child’s incorrigibility,’ leaving that task, instead, to ‘the
State’s sovereign administration of their criminal justice systems.’” (quoting Montgomery, 136 S.
Ct. at 735)).
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Phon’s motion for discretionary review to the Kentucky Supreme Court is pending, Phon v. Commonwealth, 2016SC-468-D (filed Sept. 7, 2016). The United States Supreme Court has granted certiorari, vacated the sentence, and
remanded for reconsideration in light of Montgomery in a nearly identical decision of the Arizona Court of Appeals.
State v. Purcell, No. CA-CR 13-0614 PRPC, 2015 WL2453192, at *1 (Ariz. Ct. App. May 21, 2015), review denied
(Ariz. Jan. 5, 2016), sentence vacated, Purcell v. Arizona, 15-8842 (U.S. October 31, 2016).
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The courts in Phon and Brown concluded that the introduction and consideration of
mitigating evidence sufficiently addresses the Miller Court’s admonition that permanent
imprisonment of juveniles should be rare. Yet, in Montgomery, the Court repudiated this
primarily procedural reading of Miller, emphasizing that the textual absence of a formal
factfinding requirement does not leave States free to sentence a child whose crime reflects
transient immaturity to life without parole. 136 S.Ct. at 734; see also Tatum, supra (Sotomayor,
J., concurring in the decision to grant, vacate, and remand) at *3 (“It is clear after Montgomery
that the Eighth Amendment requires more than mere consideration of a juvenile offender’s age
before the imposition of a sentence of life without parole. It requires that a sentencer decide
whether the juvenile offender before it is a child whose crimes reflect transient immaturity or is
one of those rare children whose crimes reflect irreparable corruption for whom a life without
parole sentence may be appropriate.”) (internal quotations omitted). Thus, while Miller may not
require a sentencer to recite “irreparable corruption” or “permanent incorrigibility” scripture and
verse, it does require the sentencer to perform a forward-looking inquiry into whether a
meaningful possibility exists that the juvenile will experience growth and maturity at some point
in his or her life—and to answer that question in the negative before imposing permanent
imprisonment.
CONCLUSION
Before imposing life without parole, a sentencer must conclude that a particular child is
“the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is
impossible.” Thus, even under discretionary life without parole regimes that permitted a
sentencer the opportunity to consider mitigating circumstances, a new sentencing hearing is
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required in pre-Miller cases so that the sentencer can make the determination that the juvenile’s
crime reflects permanent incorrigibility.
ACKNOWLEDGEMENTS
We would like to thank Amy Weber for her research, writing and analysis. Professor
Leah Litman provided invaluable feedback on this issue brief, as did Russell Anello and Reagan
Lynch from the law firm of Davis Polk & Wardwell LLP.
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