MANDATORY LIFE WITHOUT PAROLE
SENTENCES FOR THE INTELLECTUALLY
DISABLED: A VIOLATION OF THE
EIGHTH AMENDMENT
Nick Bonham*
INTRODUCTION ..............................................
1.
II.
THE USE OF MANDATORY SENTENCING HAS
FLUCTUATED OVER TIME.............................
739
A. Brief History of Mandatory Sentencing in the United
States
..................................
B. Brief History of Mandatory LWOP Sentencing .......
739
744
PUBLIC POLICY CONSIDERATIONS SUPPORTING
MANDATORY SENTENCING
A.
B.
C.
D.
III.
738
............................
MoralRetribution
.........................
GeneralDeterrence .........................
Incapacitation
..........................
LWOP as an Alternative to the Death Penalty .......
749
750
751
754
757
THE SUPREME COURT'S THREE APPROACHES TO
EIGHTH AMENDMENT CLAIMS ........................
A.
CategoricalBans
..........................
i. The Atkins Decision....................
ii. Categorical Bans for Juveniles ..............
B. Proportionality.............................
C. CategoricalBans and Proportionality Working
Together
................................
IV. STATE USAGE OF MANDATORY LWOP SENTENCING ...
V. POLICY RECOMMENDATIONS ..........................
CONCLUSION.................................................
758
758
758
760
762
766
767
771
773
* The Author would like to thank Professor Alex Reinert for his invaluable input and guidance, Aundr6 Heron for her continued support and inspiration, and all friends and family that
lent a hand along the way.
737
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CARDOZO PUB. LAW POLICY e&ETHICS J
[Vol. 12:737
INTRODUCTION
In 2011, there were roughly 6.98 million people under some form
of supervision in United States adult correctional systems.' Of that
population, 140,000 people are serving life sentences in prison, 41,000
of whom will never be released from incarceration because they are serving life without parole. 2 In addition, roughly four percent 3 of the prison
population is intellectually disabled. This means, on average, there are
1,640 incarcerated individuals with an intellectual disability who will
never be released. This is the population on which this Note focuses.
Many of those incarcerated for life are serving mandatory
sentences. This type of sentencing, by definition, imposes harsh
sentences without consideration of certain mitigating factors that might
otherwise cause a sentencing body to reduce a criminal defendant's term
of incarceration. This sentencing apparatus is especially problematic
within the context of the Eighth Amendment ban on cruel and unusual
punishment. 5 The intellectually disabled have been recognized as requiring special protections under the Eighth Amendment in the death
penalty context.6 This Note will argue that these protections are just as
relevant in the life without parole context. Precluding the possibility of
parole from a life sentence increases its severity, the justifications for
which are incompatible with the mental status of the intellectually disabled.7 Mandatory life without the possibility of parole sentences, such
as those under recidivist sentencing statutes, imposed on intellectually
disabled persons is inconsistent with the Eighth Amendment ban on
1
PARKS, U.S. DEPARTMENT OF JUSTICE, CORRECTIONAL
2011 (Nov. 2012), http://bjs.ojp.usdoj.gov/content/
pub/pdf/cpus 11 .pdf (this number includes those on parole and probation, in addition to those
incarcerated - there were roughly 2.2 million people incarcerated in 2011).
2 John Tierney, Life Without Parole: Four Inmates' Stories, N.Y. TIMES, Dec. 12, 2012,
http://www.nytimes.com/2012/12/12/science/life-without-parole-four-inmates-stories.html?_r
=0.
LAUREN
E.
GLAZE &
EuI<A
POPULATIONS IN THE UNITED STATES,
3
Joan Petersilia, CriminalJustice Policies Toward the Mentally Retarded are Unjust and a
Waste of Money, RAND CORPORATION (1997) http://www.rand.org/pubs/research-briefs/
RB401 1/index1.html.
4 The term "intellectual disability" covers the same population previously determined to be
mentally retarded. Intellectual disability is the preferred term and is used throughout this Note.
See FAQ on Intellectual Disability,AMERICAN ASSOCIATION ON INTELLECTUAL AND DEVELOPMENTAL DISABILITIES (2013) http://www.aaidd.org/content_104.cfm. For a discussion of qualities of intellectual disabilities, see infra Part V.
5 U.S. CONST. amend VIII.
6 See infra Part III.
7 See infra Part II.
2014]
LWOP FOR THE INTELLECTUALLY DISABLED
739
cruel and unusual punishment because a sentence with such finality ignores the reduced culpability of the defendant and the defendant's ability to be treated.
Part I of this Note examines the history of mandatory sentencing
with a special focus on harsher penalties such as the death penalty or life
without parole. Part II discusses the public policy considerations behind
life sentences and their application to intellectually disabled defendants.
Part III analyzes the United States Supreme Court jurisprudence regarding cruel and unusual punishment, discussing both outright bans on
certain sentences as applied to a class of offenders and the guarantee of
proportional sentencing. Part IV situates the life without parole jurisprudence within the varied state approaches to the use of mandatory life
sentences. Lastly, Part V contains my policy recommendations to relieve the conflict between mandatory life without parole sentences for
the intellectually disabled and the Eighth Amendment ban on cruel and
unusual punishment.
I.
THE USE OF MANDATORY SENTENCING
HAS
FLUCTUATED
OVER TIME
The recent trend of the Supreme Court towards broadening the
scope of the Eighth Amendment is neither new nor surprising. American concepts of punishment and rehabilitation have continuously fluctuated in the judicial, legislative, and public arenas alike since this
country's inception. In order to understand why mandatory determinant life sentences for the intellectually disabled violate the Eighth
Amendment, it is important to briefly outline the history of mandatory
sentencing.
A.
Brief History of Mandatory Sentencing in the United States
The development of the federal sentencing structure provides a
useful model of the variety of ways in which a legislature can deal with
evolving notions of crime and punishment. Mandatory penalties are
especially relevant because they strip discretionary power and the ability
to consider mitigating mental health factors from sentencing bodies.
Congress was given constitutional authority to define crimes and the
corresponding punishment, but it was not until the Act of April 30,
1790 (hereinafter "1790 Crimes Act") that punishable federal crimes
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CARDOZO PUB. LAW POLICY & ETHICS J
[Vol. 12:737
were actually established.8 The 1790 Crimes Act established a number
of federal offenses and punishments, including the mandatory death
penalty for those found guilty of treason,9 murder,'o piracy," aiding and
abetting piracy,' 2 forgery, 13 and rescuing a person convicted of a capital
crime from their pending execution." The death penalty was the only
mandatory penalty used at the time. In fact, relative to the number of
crimes punishable by death in England, this act reflected an American
trend away "from the prevalent use of mandatory death penalties during
the colonial period."15
The 1790 Crimes Act also created a number of lesser offenses that
carried lesser punishments, such as larceny, perjury, and bribery.' 6 Interestingly, while sentences for these offenses were discretionary, they
carried maximum penalties with the longest prison term being a maximum of seven years.' 7 Thus, under the initial federal crime and punishment system, there was an aversion to using long mandatory minimum
prison sentences as a method for dealing with criminals, as evidenced by
such a large sentencing gap between death and seven years of hard labor.
During the oft-cited era of the Founders, severe mandatory penalties
were on the decline and a mandatory sentence of "life without the possibility of parole" (hereinafter "LWOP") had yet to be conceived.
Over the next century, Congress slowly became amenable to imprisonment and incapacitation as a form of criminal rehabilitation. The
next major piece of legislation affecting the landscape of federal crimes,
the 1825 Crimes Act, added three more mandatory death offenses" but
8
See U.S.
SENTENCING COMM'N, REPORT TO CONGRESS: MANDATORY MINIMUM PEN-
(citing U.S. Const. art. I §8,
U.S. Const. art. III §3, U.S. v. Comstock, 130 S. Ct. 1949, 1957 (2010) for congressional
authority and Act of Apr. 30, 1790, Ch. IX, 1 Stat. 112). This report to Congress from the U.S.
Sentencing Commission gives an incredibly detailed history of federal mandatory minimum
ALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM 7 (Oct. 2011)
sentences in America and would be of great use to those seeking more detail on the subject. See
id.
9 1790 CRIMES ACT, 1 Stat. 112 (1790).
10 Id. at 113.
''
Id. at 114.
12
Id. at 114.
'3 Id. at 115.
14 Id. at 117.
15
U.S. SENTENCING COMM'N, supra note 8, at 9.
16 1 Stat. at 116-17.
17 See 1 Stat. 112.
18 Id. at 112 (burning military building), 113 (murder and rape on the high seas), and 114
(destruction of military vessel).
2014]
LWOP FOR THE INTELLECTUALLY DISABLED
741
also repealed the mandatory death penalty for forgery and replaced it
with a maximum of 10 years in prison.' 9 During the Civil War, Congress created a number of mandatory minimum penalties for crimes
against the Union Army. 20 Mandatory minimum sentences would ensure that lenient judges would be forced to prescribe prison time for a
defendant they might have previously sentenced to little or no jail
time.2' The preference for mandatory minimums over the previously
used maximum sentences, and the additional mandatory death crimes,
signified the growing unwillingness of Congress to leave sentencing discretion in the hands of judges and juries by ensuring criminals will not
receive leniency. This conformed to the prevailing retributive notion
that prison was meant to "break the spirit of the criminal" through hard
labor, deprivation, degradation, and isolation.22 Leaving discretion in
the hands of a compassionate judge would threaten the success of a
system that associated sentencing with discipline, not rehabilitation.
In 1878, 108 offenses carried mandatory penalties, 16 of which
imposed a mandatory death sentence.2 3 "Only one offense - robbery of
United States mail - required life imprisonment, but even then only
upon a second conviction . . . ."24 By the turn of the 20th Century,
there was a clear legislative aversion to discretionary sentencing and a
preference for incarceration. The rise of the reformatory system during
this time signified a shift in purpose from a focus on discipline to a
focus on rehabilitation. However, with indeterminate sentences and
trade training more prevalent, mandatory sentences could still be justified under the new system.2 5 Minimum sentences were preferred under
this regime because prisons were now seen as a place for convicted
criminals to rehabilitate in a setting removed from society. Minimum
19 See Act of Mar. 3, 1825, ch. 65, 4 Stat. 115, 119 (1825). It is important to note, however, that this number of offenses punishable by mandatory death was far fewer that the 220
offenses that carried the same penalty in 1820s England. See Josh Bowers, Mandatory Life and
the Death of Equitable Discretion, in LIFE WITHOUT PAROLE: AMERICA'S NEW DEATH PENALTY? 25, 27 (Charles J. Ogletree, Jr. & Austin Sarat eds., 2012).
20 U.S. SENTENCING COMM'N, supra note 8, at 13-14.
21 See U.S. SENTENCING COMM'N, supra note 8, at 28 (discussing debate over imposing
harsher mandatory minimum penalties for child exploitation crimes).
22 Howard B. Gill, A New Prison Discipline: Implementing the Declaration of Principles of
1870, PENOLOGY: THE EVOLUTION OF CORRECTIONS IN AMERICA 80 (George G. Killinger &
Paul F. Cromwell, Jr. eds., 1973).
23 See U.S. SENTENCING COMM'N, supra note 8, at 15.
24 Id. at 16.
25 State Prisonsin America in PENOLOGY: THE EVOLUTION OF CORRECTIONS IN AMERICA,
supra note 22, at 23, 42.
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CARDOZO PUB. LAW POLICY & ETHICS J.
[Vol. 12:737
sentences would ensure that the criminal would spend enough time in
prison for this process to work. However, this trend was truncated by
the resistance of Congress to the imposition of lengthy mandatory
sentences, which would ignore the goal of the rehabilitation of criminals
by completely ridding sentencing bodies of the ability to shape prison
sentences to specific rehabilitative needs. Mandatory LWOP sentences
simply did not factor into the early development of sentencing in the
United States.
Even though the snapshot of sentencing in the late 19th Century
seems fairly lax - mandatory death penalties notwithstanding - by today's sentencing standards, the first major backlash against severe penalties began in 1897. Congress created a commission (hereinafter "1897
Revision Commission") to "revise and codify the criminal and penal
laws of the United States . . . [to] report the result of their labors to the
Attorney-General . . . [and t]hat their report shall be so made as to
indicate any proposed change in the substance of existing law."26 Citing
an international "advance in response to the dictates of enlightenment
and humanity," in which "the United States alone . . . has singularly
failed to participate," the 1897 Revision Commission recommended a
complete criminal code that would "mitigate the severity that characterized former times, and . . . respect the principle of proportioning the
punishment to the relative gravity of offenses." 2 7 The 1897 Revision
Commission's final report led to the Act of March 4, 1909, which "repealed at least 31 of the mandatory minimum terms of imprisonment
codified in the Revised Statutes [of 1878]."28 Foreshadowing a series of
cases to come,2 9 the Progressive Era aroused a focus on proportionality
and judicial discretion in sentencing. In eliminating many of the
mandatory minimum penalties, the 1897 Revision Commission promoted a fair and individualized approach to sentencing. The sentencing
authority could wield a surgical knife, rather than an indiscriminant
cleaver, in determining what punishment fits the crime.
26
Act of Jun. 4, 1897, ch. 2, 30 Stat. 11, 58 (1897).
CODIFY THE LAWS
27 REVIsION COMM'N To REVISE AND
THE COMMISSION TO
CODIFY
OF THE
U.S.,
FINAL REPORT OF
AND REVISE THE LAWS OF THE UNITED STATES
28 U.S. SENTENCING COMM'N,
97, 100 (1906).
supra note 8, at 20.
29 See Woodson v. North Carolina, 428 U.S. 280 (1976) (finding North Carolina's
mandatory death sentence for first-degree murder unconstitutional because, inter alia, there was
no consideration of the particular acts and characteristics of the defendant); Lockett v. Ohio,
438 U.S. 586 (1978) (finding the Ohio death penalty statute unconstitutional because there was
no consideration of individualized mitigating factors).
2014]
LWOP FOR THE INTELLECTUALLY DISABLED
743
However, by the mid-20th Century, the retributive approach with
an emphasis on legislatively apportioned sentencing had returned. This
can be attributed in large part to changing societal notions of criminal
conduct, specifically regarding illicit narcotics. The Narcotic Drugs Import and Export Act of 1951 exemplified the drive for mandatory minimum penalties, establishing minimum sentences of two years, five years,
and ten years for an offender's first, second, and third violation of the
act respectively.3 0 Additionally, the Act prohibited the possibility of
probation for the second and all subsequent offenses. 3 1 While the subsequent Comprehensive Drug Abuse Prevention and Control Act of
1970 repealed most of the mandatory minimum penalties relating to
drug offenses, 3 2 the Anti-Drug Abuse Act of 1986 put many of them
back in place, specifically for drug trafficking crimes. 3 3 But the focus on
incapacitation over rehabilitation did not stop at illicit drugs.
Mandatory minimum penalties were also established for firearms offenses, 34 sexual exploitation of minors,3 and identity theft.36 Spurred
by the introduction of crack cocaine, and aggravated by President Ronald Reagan's "tough on crime" rhetoric, the last quarter of the 20th
Century saw a great expansion in the use of mandatory sentencing.37
Narcotic Drugs Import and Export Act, Pub. L. No. 82-255, 65 Stat. 767 (1951).
Id
32 Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513,
84 Stat. 1236 (where purpose of legislation is "to provide for treatment and rehabilitation of
drug abusers and drug dependent persons.").
33 Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (where purpose of
legislation is "To strengthen Federal efforts to encourage foreign cooperation in eradicating illicit
drug crops and in halting international drug traffic.").
34 Act of Oct. 12, 1984, Pub. L. No. 98-473, 98 Stat. 1837, 2138 (codified at 18 U.S.C.
§ 924) (establishing a mandatory minimum of 5 years for using or carrying a firearm during a
crime of violence); see also Firearms Owners' Protection Act, Pub. L. 99-308, 100 Stat. 449
(1986) (mandatory minimum for using a firearm during a drug trafficking crime); Career
Criminals Amendment Act of 1986, Pub. L. No. 99-570, 100 Star. 3207, 3207-39 (establishing
mandatory minimum penalty of 15 years for a firearms possession offense for an individual with
three convictions of "violent felonies" or "serious drug offenses.").
35 See Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95-225,
92 Stat. 7 (1978) (establishing mandatory minimum penalty of two years for repeat offenders);
see also Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009, 300930 (establishing 10, 15, and 30 year minimums for first, second, and third offenses respectively
of production of child pornography); PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650
(2003) (increasing mandatory minimum penalties for production of child pornography to 10 to
15 years first offense, 15 to 25 years second offense, 30 to 35 years third offense).
36 Identity Theft Penalty Enhancement Act, Pub. L. No. 108-275, 118 Stat. 831 (2004)
(establishing two year minimum penalty for aggravated identity theft).
37 U.S. SENTENCING COMM'N, supra note 8, at 23-24.
30
31
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CARD OZO PUB. LAW POLICY &'ETHICS J
[Vol. 12:737
But, like a century earlier, the over-utilization of harsh mandatory
penalties produced some backlash. Recognizing the extreme overcrowding of the prison system and the racial disparities produced by Reaganera sentencing reforms, Congress passed the Fair Sentencing Act of
2010.38 This legislation "reduces the disparity in the amounts of powder cocaine and crack cocaine required for the imposition of mandatory
minimum sentences and eliminates the mandatory minimum sentence
for simple possession of crack cocaine."3 9 While the effects of these
mandatory sentences, especially those for drug offenses, were largely felt
along racial lines,40 the lessons learned are nevertheless quite relevant to
the subject of this Note.
Mandatory sentencing has been utilized to strip discretion from
sentencing authorities but its prevalence has fluctuated greatly over time.
Mandatory sentencing prevents the judge and jury from weighing any of
the infinite number of mitigating factors of the act and the character of
a defendant that might be salient in a particular case. In so doing, risks
of disproportionate sentencing abound and any claim of societal interest
in rehabilitation cannot maintain legitimacy. The extremely detailed list
of crimes and varied legislatively prescribed punishments may be
recognitions of the need for proportionality and consideration of crime
and criminal. But because they are bound by inflexible sentencing directives, sentencing authorities are denied the opportunity to consider a
defendant's mental health-related reduced level of culpability and potential for rehabilitation if afforded proper treatment and supervision. For
the rest of this Note, it is important to keep in mind that severe
mandatory minimum penalties are recent inventions, unsupported by a
consistent legislative mandate. Instead, severe mandatory sentencing has
been driven by fluctuating views on how to treat crime and punishment.
B.
BriefHistory of Mandatory LWOP Sentencing
As the history of federal mandatory sentencing developed in Part
L.A suggests, lengthy sentences, and LWOP in particular, are a modern
creation. Only recently did the prospect of removing an individual from
38 Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Star. 2372.
39 Jesse Lee, President Obama Signs the FairSentencingAct, THE WHITE HOUSE BLOG, (Aug.
3, 2010), http://www.whitehouse.gov/blog/2010/08/03/president-obama-signs-fair-sentencingact; see FAIR SENTENCING Acr OF 2010, supra note 29, at 5§ 2-3.
40 See Soloman Moore, Number ofLife Terms Hits Record, N.Y. TIMES, Jul. 22, 2009, http://
www.nytimes.com/2009/07/23/us/23sentence.html?pagewanted=all
(reporting that two-thirds
of those serving life sentences are Latino or Black).
2014]
L WOP FOR THE INTELLECTUALLY DISABLED
745
society for the rest of his or her life solely based on the crime committed
become a punishment strategy. Some of the early uses of LWOP were
seen in state recidivist or "habitual criminal statutes, today known as
'three-strike laws.' "41 After an individual had been convicted of a certain number of particular offenses, their next conviction of, for example,
a violent felony would land that individual in prison from the rest of
their life with no possibility of getting out. The other road to an LWOP
sentence is found "in well over half of the states that retain the death
penalty, [where] LWOP is the required alternative." 4 2 This means in
many states where a defendant has been found guilty of murder, the
sentencing jury must choose between imposing the death penalty or
LWOP during the penalty phase of a capital case. This section traces
the shift in the national attitude towards heavier penalties, determinate
sentences, and retributive theory of criminal punishment.
For most of the century preceding the "tough on crime" era of the
1970s and the great expansion of LWOP sentencing, the concept of
prisons as rehabilitation centers prevailed. The prevalence of reformatories during the last quarter of the 19th Century is a prime example, with
their focus on trade training and grading prisoners based on conduct. 4
The rehabilitative theory, where "the criminal was conceived of as a
flawed but fixable individual," was especially popular in the Northeast,
Midwest, and coastal West. 5 In addition, during the period leading up
to the 1970s, there was a heavy reliance on indeterminate sentencing,
where "legislatures would stipulate statutory ranges (for example, 5 to
15 years, 10 years to life), and judges would exercise their discretion to
sentence within that range in particular cases. "46 Indeed, the preference
for judicial discretion in sentencing can be seen in the recommendations
California presented an extreme
of the 1897 Revision Commission.
example, where its 1917 Indeterminate Sentencing Law allowed judges
to determine sentences within a broad range, "which for most offenses
Charles G. Ogletree, Jr. & Austin Sarat, Introduction, in LIFE WITHOUT PAROLE:
AMERICA'S NEW DEATH PENALTY?, supra note 19, at 2 (citing the 1929 Ohio habitual criminal
statute).
42 Bowers, supra note 19, at 33.
43 See, e.g., GA. CODE ANN. 17-10-31 (West 2009).
44 See State Prisonsin America, supra note 25 and accompanying text.
45 Sharon Dolovich, Creatingthe PermanentPrisoner, in LIFE WITHOUT PAROLE: AMERICA'S
NEW DEATH PENALTY?, supra note 19, at 100 (quoting MONA LYNCH, SUNBELT JUSTICE:
ARIZONA AND THE TRANSFORMATION OF AMERICAN PUNISHMENT (2010)).
46 Id. at 101.
47 See supra note 26 and accompanying text.
41
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CARDOZO PUB. LAW POLICY & ETHICSJ.
[
[Vol.
12:737
was zero to life or five years to life."" Parole boards also enjoyed a
significant role, as judges would dole out indeterminate sentences and
let the boards determine when an individual was ready to be reintegrated into society. 9 At the heart of this rehabilitative theory was the
belief that people could change their behavior. The need for individualized sentencing and consideration of a defendant's character were integral parts to the criminal sentencing apparatus.
The rehabilitative theory, however, did not hold up in practice. In
providing vocational training and rehabilitative services, reformatories
required a great number of specialized staff.5 0 Legislatures refused to
embrace the system wholeheartedly and "the same type of personnel
that had been assigned to prisons" was put in charge of the new
reformatories and their funding was greatly restricted." Prison populations, and the associated cost per prisoner, continued to rise.52 At the
same time, the use of indeterminate sentencing began to be heavily criticized. 3 California, for example, saw a 50% increase in median prison
terms under its 1960s embrace of indeterminate sentencing and many
observers pointed to the arbitrariness associated with this system. 54
Americans became more amenable to a punitive approach to criminal
justice and with that trend saw the increased prevalence in determinate
and mandatory life sentencing.
From the mid-1970s to the mid-1980s, the American criminal justice system experienced a drastic dogmatic shift towards determinative,
punitive sentencing structures that paved the way for widespread use of
mandatory LWOP sentences. This determinate sentencing model had
two main objectives to be accomplished through legislative action: abolition of discretionary parole release and definite prison terms determined
at the time of sentencing." The State of Maine paved the way for determinate sentencing - abolishing its parole board in 1975 - and eleven
48 PAMALA
L.
GRISET, DETERMINATE SENTENCING: THE PROMISE AND THE REALITY OF
RETRIBUTIVE JUSTICE
47 (1991).
49 Dolovich, supra note 45, at 101.
50 State Prisons in America, supra note 25 at 44.
51 Id.
52 See id. at 47 (Table II showing the growth in prison populations from 1850 to 1935).
53 Dolovich, supra note 45, at 103.
54 See JENNIFER E. WALSH, THREE STRIKEs LAws 8 (2007) (where "[o]bservers pointed out
that because indeterminate sentencing allowed for individualized sentences, some offenders received unusually long sentences whereas others escaped with little or no punishment.").
55 See GRISET, supra note 48, at 40.
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L WOP FOR THE INTELLECTUALLY DISABLED
747
other states quickly followed suit." Former Deputy Commissioner of
the New York State Division of Criminal Justice Services in Albany,
Pamala Griset, also describes an alternative, lesser-used approach to determinate sentencing, where a sentencing commission is tasked to develop specific sentencing guidelines.17 These developments led to what
Professor Sharon Dolovich has termed, "the exclusionary ideal in American penology."" Convicted offenders were no longer seen as capable of
rehabilitation and prisons were certainly not viewed as institutions
where one could change his or her ways. The prison system ceased to be
a route to reintegration and became instead a receptacle for condemned
individuals who must be removed from society.
With determinate sentencing increasing in popularity and crime
rates continuing to rise, the time was ripe for the Three Strikes movement to take the American criminal justice system by storm. Since the
determinate sentencing movement began in the mid-1970s, national violent crime rates had been steadily increasing. 9 The push for habitual
criminal statutes was burgeoned by a 1989 Bureau of Justice Statistics
report "that revealed that repeat offenders were responsible for much of
the nation's crime problem." 6 0 Thus, in 1993, Washington became the
first state to propose, and later adopt, a "Three Strikes" law where individuals convicted of a third violent felony offense would receive a
mandatory life sentence.61 Under the Washington law, "a criminal must
be convicted as an adult on three separate occasions for serious felony
crimes, including rape, robbery, child molestation, serious assault, manslaughter or murder." 6 2 Passed by popular referendum, voters were
amenable to the law on the basis of retributive and crime prevention
justifications.
56 See id. (where California, Oregon, Colorado, Connecticut, Florida, Illinois, Indiana, Min-
nesota, New Mexico, North Carolina, and Washington also adopted this "purist" approach to
determinate sentencing).
57 Id. at 41 (sentencing commission model has been adopted by Minnesota, Pennsylvania,
Washington, Oregon, and the federal government).
58 Dolovich, supra note 45, at 103.
59 See Estimatedcrime in United States-total, UNIFORM CRIME REPORTING STATISTICS (FBI)
(last visited Oct. 21, 2012), http://www.ucrdatatool.gov/Search/Crime/State/RunCrimeStateby
State.cfm; see also Figure 2.1, WALSH supra note 54, at 33.
60 WALSH supra note 54, at 34.
61 Id at 37.
62 R. David LaCourse, Jr., Three Strikes, You're Out: A Review, WASHINGTON POLICY
CENTER (Jan. 1997), http://www.washingtonpolicy.org/publications/brief/three-strikes-youreout-review.
63 See id
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CARDOZO PUB. LAW POLICY &'ETHICS J.
[Vol. 12:737
The movement exploded across the country. In 1994, the Los Angeles Times conducted a national poll that found that 58% of adults were
in favor of a Three Strikes law, "no matter what the cost might be." 64
Many have attributed this Three Strikes fervor not to increased crime
rates, but to obsessive media attention on crime and high profile
murders.65 After all was said and done, by 1996, 37 states had considered Three Strikes legislation and 24 states, along with the federal government, successfully adopted the sentencing scheme. Two states,
Arizona and Massachusetts, have also adopted Three Strikes legislation
more recently.6 6 Additionally, Florida, Illinois, Iowa, Louisiana, Maine,
Pennsylvania, South Dakota, and the federal penal system have all abolished the parole system, so any life sentence in those jurisdictions effectively constitutes a LWOP sentence. 7 While all these Three Strikes laws
aim to deter career criminals, they differ widely on what constitutes a
"strike." All states include murder as a strike, and most include rape,
kidnapping, arson, and robbery, but some states ultimately include
more offenses than others as a qualifying strike.6 ' Despite these differences, the message was clear: much of the American public was tired of
soft-on-crime judges and wished to see repeat offenders put away for
life, regardless of the characteristics of the defendant.
The most extreme example of a Three Strikes statute mandates a
LWOP sentence for a conviction of any felony where the defendant has
two prior felony convictions. The Mississippi Habitual Criminal Statute is one such example:
Every person convicted in this state of a felony who shall have been
convicted twice previously of any felony or federal crime upon charges
separately brought and arising out of separate incidents at different
64 WALSH supra note 54, at 43.
65 See VINCENT SHIRALDI, JASON COLBURN, & ERIc LOTKE, JUSTICE POL'Y INST., THREE
STRIKES AND YOU'RE OUT: AN EXAMINATION ON THE IMPACT OF 3-STRIKE LAWS 10 YEARS
AFTER THEIR ENACTMENT (2003), http://www.justicepolicy.org/uploads/justicepolicy/docu-
ments/04-09_rep-threestrikesnatl ac.pdf.pdf (explaining that while homicides declined 33%
from 1990 to 1998, national news coverage of homicides on CBS, ABC, and NBC rose 473%).
66 ARIz. REv. STAT. ANN. § 13-706 (2009) (West); MASS. GEN. LAWS ANN. ch. 127
§ 133A (West 2012).
67 Jessica Henry, Death-in-Prison Sentences, in LIFE WITHOUT PAROLE: AMERICA'S NEW
DEATH PENALTY?, supra note 19, at 68.
68 There are other iterations as well. For example, California has a second-strike provision
where the conviction of a second qualifying offense results in twice the normal jail time. Some
states also allow for "third strikers" to be granted parole after a lengthy prison term. See WALSH
supra note 54, at 48-49.
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L WOP FOR THE INTELLECTUALLY DISABLED
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times and who shall have been sentenced to and served separate terms
of one (1) year or more in any state and/or federal penal institution,
whether in this state or elsewhere and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor
shall such person be eligible for parole or probation."9
Note that in Mississippi, the location of the prior felonies does not
matter and only one of the prior felonies needs to have been violent for
this mandatory LWOP sentence to operate.
While California's habitual crime statute is not as extreme as the
71
Mississippi statute,70 its application in Ewing v. California
provides a
useful example of the nuts-and-bolts of typical recidivist statutory procedure. If the prosecutor wishes to obtain a conviction pursuant to the
Three Strikes law, she must allege all prior convictions in the charging
document and the defendant has a right to a jury determination regarding whether these prior convictions were proved beyond a reasonable
doubt. 7 2 For those prior offenses that could be classified as either felonies or misdemeanors - called "wobblers" - the prosecutor may use her
discretion in charging them as either felonies or misdemeanors." Thus
prosecutors wield an immense amount of discretion in deciding whether
or not to charge and punish a defendant with a life sentence. Utilizing
this power, the prosecutor effectively takes the sentencing power out of a
judge's hands to effectuate one of the harshest penalties available. While
the legislatures - and the public through popular referendum - created
Three Strikes legislation as an attempt to effectuate even-handed sentencing for habitual offenders, it merely stripped the judiciary of sentencing authority and gave it to the executive branch.
11.
PUBLIC POLICY CONSIDERATIONS SUPPORTING
MANDATORY SENTENCING
The Three Strikes movement of the mid-90's, where half the states
adopted habitual criminal statutes, clearly communicated that there was
a strong public movement towards harsher sentences and less judicial
69 Miss. CODE. ANN.
See
§ 99-19-83 (1977).
§667(e)(2) (1982) (amended 1994) (mandating an indeterminate life sentence where there are two prior convictions of serious or violent felonies).
71 538 U.S. 11 (2003).
72 Id. at 16.
73 Id. at 17.
70
CAL.PENAL CODE ANN.
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control. As mentioned above, the main justifications for passing these
laws were retribution for the heinous crimes committed, deterrence
against committing serious offenses, and incapacitation preventing inherently dangerous criminals from being released and repeating offenses.
Each of these justifications has its own objectives but all equally fail
when confronted with large mandatory minimums and an offender with
a lower level of competency and culpability.
A.
Moral Retribution
The first theory attributed to the support of Three Strikes sentencing, moral retribution or "desert theory," dates back centuries but experienced a revival more recently. In the 1960s and 70s, desert theory
influenced many philosophical criminal punishment theorists and led to
sentencing reforms in the U.S. and abroad.7 ' Desert theory attributes
the moral culpability of an offender with both justifying and creating a
duty to punish offenders. 75 This focus on the moral culpability of the
offender is coupled with a firm belief in proportionality: where "the
emphasis is on what the offender should fairly receive for his crime,
rather than how his punishment might affect his future behaviour or
that of others."7 6 Thus the dual considerations of moral retributivists
are "the importance of rights that have been infringed," and more importantly, "addressing the offender as a moral agent, by appealing to his
or her sense of right and wrong."77 Support for Three Strikes under this
theory, therefore, is derived from the belief that a "third strike" creates a
duty to punish the offender and the moral culpability of the offender
justifies a mandatory life sentence.
In premising penalties on the moral culpability of the criminal offender, the moral retributivist attempts to achieve the proportionate
punishment to the particular crime. Constitutionally, criminal penalties
are bound by the Eighth Amendment prohibition of cruel and unusual
punishments.7 ' Desert theory works within this framework, using the
Andrew von Hirsch, Andrew Ashworth, & Julian Roberts, Desert, in PRINCIPLED
102 (voN HIRSCH, ASHWORTH, & ROBERTs eds., 2009).
75 Michael S. Moore, The Moral Worth ofRetribution, in PRINCIPLED SENTENCING: READINGS ON THEORY AND POLICY, supra note 74, at I 10.
74 See
SENTENCING: READINGS ON THEORY AND POLICY
76 Andrew von Hirsch, ProportionateSentences: a Desert Perspective, in PRINCIPLED SENTENCING: READINGS ON THEORY AND POLICY, supra note 74, at
77 Id.
78 U.S. CONST. amend. VIII
115.
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LWOP FOR THE INTELLECTUALLY DISABLED
751
Eighth Amendment as an outer limit, to shape a penal system that requires "the severity of the penalty to be proportionate to the gravity of
the defendant's criminal conduct."79 The proportionate sentence is intended to appeal to the criminal defendant's moral culpability by serving a rehabilitative function whereby the individual is able "to recognise
the wrongfulness of action; feel remorse; to make efforts to desist in
future.""o This assumes the accused is able to understand the consequences his or her actions as well as his or her relative blameworthiness.
Thus, because LWOP is one of the most severe sentences, it necessitates
a defendant with a high level of moral culpability. Of course, the efficacy of proportionate sentences in achieving this rehabilitative goal relies
on the competency of the offender. If a convicted individual cannot
comprehend, due to some mental defect, the connection between his or
her crime and punishment, desert theory's proclaimed reliance on a convicted person's cognition of proportionate sentencing becomes disingenuous. Therefore, large mandatory minimums for the intellectually
disabled are incompatible with desert theory because they assume an
offender's level of moral culpability and abrogate any proclaimed focus
on individualized proportionality.
B.
GeneralDeterrence
Another public policy justification for habitual crime statutes is
general deterrence: that a harsh, sometimes draconian, sentence for one
offender will deter others from unlawful activities. While desert theory
is premised on moral assumptions and aims to achieve fairness, deterrence serves a more utilitarian function of preventing future crime.
Early Nineteenth Century British legal theorist, Jeremy Bentham,
viewed the utility of criminal punishment as "serving for an example ...
of what [the potential criminal] himself will have to suffer, if he is guilty
of the same offence."' 1 Qualifying the criminal mind as a rational
mind, Bentham believed that for punishment-as-deterrence to work,
"[t] he value of the punishment must not be less in any case than what is
79
von Hirsch, supra note 76, at 118.
80 Id. at 116. This rationale for blending proportionality and moral considerations seems
somewhat incongruous, given the above definition of strict proportionality as devoid of considerations for rehabilitation. See supra note 76 and accompanying text.
81 Jeremy Bentham, The Principles of Penal Law, in
supra note 74, at 54.
ON THEORY AND POLICY,
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sufficient to outweigh that of the profit of the offence." 8 2 This reflects,
and Professor Paul H. Robinson elaborates, three major assumptions regarding the competency of a criminal actor: 1) that the intended subjects of the deterrent penal policy are aware of the policy's existence; 2)
that the intended subjects are rational and able to conduct the necessary
cost-benefit analysis, weighing the benefits of the crime with the costs of
getting caught; and 3) that the prescribed punishment in fact outweighs
the benefits of committing the crime.8 Thus, for deterrence theory to
work, criminal actors must be rational, competent, and calculating, and
the sentencing scheme must reflect the general population's cost-benefit
preferences regarding crime and punishment.
Deterrence lends itself most to the trend of harsher determinate
sentencing with less judicial discretion. The need to broadcast "examples" made from punishing certain criminals necessitates strict and harsh
penalties. During the "tough on crime" era of the 1970s and 80s, more
extreme determinate sentences "came into force as a result of high-profile political processes and appear - at least on the surface - to meet the
criteria of increasing the perception that harsh sentences would flow
from a conviction for one of the relevant offenses."" Indeed, deterrence
theory is a "perceptual theory," driven not by crime statistics and reasoned analysis, but by what the public perceives to be driving crime and
what is effective at preventing it. This helps explain why, even though
the "tough on crime" sentencing reforms of the 1970s and 80s were
largely unsuccessful in reducing crime, voters and legislators of the
1990s continued to believe in the concept of deterrence that underlies
the even harsher Three Strikes laws and LWOP."
Robinson's "awareness" assumption supporting general deterrence
fails in the Three Strikes context as applied to intellectually disabled
defendants. As outlined above, 86 habitual criminal statutes differ greatly
by state, making it difficult for a potential offender to include the possi82
Jeremy Bentham, An Introduction to the Principles ofMorals and Legislation, in
PRINCIPLED
SENTENCING: READINGS ON THEORY AND POLICY, supra note 74, at 54.
83 See Paul H. Robinson, Life Without Parole under Modern Theories ofPunishment, in LIFE
WITHOUT PAROLE: AMERICA'S NEW DEATH PENALTY?, supra note 19, at 140.
84 An Doob & CM Webster, Studies of the Impact of New Harsh Sentencing Regimes, in
PRINCIPLED SENTENCING: READINGS ON THEORY AND POLIcy, supra note 74, at 49.
85 From 1959 to 1987, there was no discernable effect of deterrence theory's utilization of
harsher sanctions on actual crime
WICHARAYA, SIMPLE THEORY, HARD
rates.
See id.
REALITY:
COURTS, PRISONS, AND CRIME (1995)).
86 See supra note 68 and accompanying text.
at 50
(citing analysis from TAMASAK
THE IMPACT OF SENTENCING REFORMS ON
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bility of a LWOP penalty into their aforementioned cost-benefit analysis. Furthermore, Robinson explains "deterrence will have its greatest
difficulty in cases in which it deviates from what people intuitively think
is just (empirical desert)," because people generally assume criminal law
lines up with their notions of justice.17 There is an underlying assumption by the public of proportionality between the crime and punishment, which drives deterrence theory's utilitarian function of preventing
future crime. Thus, where a group of people fails to grasp the alignment
of crime and punishment, the public awareness assumption that is the
basis for deterrence theory also fails. The intellectually disabled are deficient in intellectual functioning - such as reasoning - and adaptive ability,88 so are even less likely to be aware of the extreme consequences for
their actions, thereby undermining both moral retribution and deterrence theory. With deficiencies in reasoning and social skills, onset
from an early age, the intellectually disabled cannot be expected to receive the same deterrence message we assume the rest of society receives
from harsh, mandatory penalties. By its inflexible nature, Three Strikes
laws fail to align with these utilitarian notions of justice as applied to
this group.
Robinson's second assumption for deterrence theory also fails
when applied to the intellectually disabled defendant. This group, while
sometimes competent to stand trial, "[has] diminished capacities to understand and process information, to communicate, to abstract from
mistakes and learn from experience, to engage in logical reasoning, to
control impulses, and to understand the reactions of others." 9 In proscribing the use of capital punishment against intellectually disabled defendants in Atkins v. Virginia, the Court reasoned, "it is the same
cognitive and behavioral impairments that make these defendants less
morally culpable .
.
. that also make it less likely that they can process
the information of the possibility of execution as a penalty and, as a
result, control their conduct based upon that information."' The same
argument may be even more applicable to LWOP, as cognitive impairments would make the processing of the information that one must
87
Robinson, supra note 83, at 140.
88
Definition of Intellectual Disability, AM.
AsS'N OF INTELLECTUAL & DEVELOPMENTAL
(2013), http://www.aaidd.org/content_100.cfm?navlD=21.
89 Atkins v. Virginia, 536 U.S. 304, 318 (2002) (emphasis supplied).
90 Atkins, 536 U.S. at 320.
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spend the rest of their life in jail, removed from society, as a penalty for
their conduct extremely difficult.
Due to this decreased capacity for logical reasoning, the intellectually disabled cannot be expected to have weighed the costs of committing the crime against the perceived benefits. While some intellectually
disabled defendants may have contemplated this cost-benefit analysis,
the nature of mandatory sentencing prevents the sentencing body from
taking this into consideration. Therefore, whether an intellectually disabled defendant took the deterrence aspect of a mandatory LWOP sentence into account is questionable, and at the very least a sentencing
body should evaluate the defendant's ability to do so.
C.
Incapacitation
The third justification for LWOP and the Three Strikes movement
is incapacitation.' 1 Whereas desert theory and deterrence theory both
focus on societal notions of crime and punishment, incapacitation centers explicitly on the offender and his ability to commit another offense.
By locking up an individual for lengthy sentences, incapacitation theory
aims to "[render] the convicted offender incapable, for a period of time,
of offending again."' 2 In theory, incapacitation theory can also lead to
lighter sentences, if it is determined that the criminal offender is not
likely to commit another offense. Thus, those offenders more prone to
recidivism should receive lengthier sentences, and in this manner, incapacitation shares a similar utilitarian crime-prevention goal as deterrence
theory. In order to achieve this crime-prevention goal, "[i]ncapacitation
has usually been sought through predicting the offender's likelihood of
reoffending."9 3 The question then becomes: how do you predict who is
most likely to be a repeat offender?
Incapacitation theory meets its greatest challenge in justifying
longer sentences for those who have not yet been proven to be recidivist
offenders. California's Three Strikes law provides an apt example of
this, requiring a five-year sentencing enhancement for any prior conviction of a serious felony.' 4 Sentencing enhancements for habitual of91 Robinson, supra note 83, at 139.
92 Andrew von Hirsch, Incapacitation, in PRINCIPLED SENTENCING: READINGS ON THEORY
AND POLICY, supra note 74, at 75.
93
Id.
94 This sentencing scheme fails to account for seriousness of the crime committed (or lack
thereof) and fails to address whether the offender is promulgating a particular pattern of crime.
6
See CAL. PENAL CODE §6 7(a)(1) (West 2012).
20141
LWOP FOR THE INTELLECTUALLY DISABLED
755
fenders necessitates a departure from case-specific proportionality
considerations: the punishment is no longer graded to only the crime at
issue, but is also weighted by previous convictions. But incapacitation
theorists believe "that extending sentences for dangerous offenders could
constitute only a narrowly drawn exception to this general rule of proportionate sanctions."" Desert theory's proportionality concerns are to
be adhered to, only to the extent that a victim's right to protection from
a repeat offender is not infringed by such proportionate sentences. In
predicting which offenders are likely to commit repeat offenses, social
scientists have long recognized, "persons with criminal records, drug
habits and no jobs tend to recidivate at a higher rate than other offenders."96 This limited capacity to predict recidivism, however, is undermined by "false positive" convictions, where an offender predicted to
repeat an offense will in fact never commit another infraction. 7 Concern over false positives is exacerbated where Three Strikes legislation,
like that of California, is limited to only evaluating past criminal record,
completely ignoring the other considerations of drug use and job retention. Indeed, the Bureau of Justice Statistics has found that a large portion of those released from prison will not return,9 and more
significantly, those subjected to harsh sentences recidivate at an almost
negligible rate.99 This undermines the incapacitation justification for
life sentences under habitual crime statutes generally because while lifers
are behind bars under the assumption they will definitely commit an95 Andrew von Hirsch & Andrew Ashworth, Extending Sentences for Dangerousness: Reflections on the Bottoms-Brownsword Model, in PRINCIPLED SENTENCING: READINGS ON THEORY
AND POLICY, supra note 74, at 85. According to the Bottoms-Brownsword model, only those
convicted offenders who present a "vivid danger" to the public should receive sentences greater
than proportionality concerns dictate. The fairness concerns of proportionality can only be
overcome where comporting with fairness constraints would impede the rights of others. In
other words, a victim's right to be safe from a vividly dangerous offender can defeat a defendant's right to a proportionate sentence. See id
96 Andrew von Hirsch & Lila Kazemian, PredictiveSentencing and Selective Incapacitation,in
PRINCIPLED SENTENCING: READINGS ON THEORY AND POLICY, supra note 74, at 99
97 See von Hirsch, supra note 92, at 76
98 In 1994, 272,111 people were released from prison in 15 states, only 67.5% of which
were rearrested within 15 years for a felony or serious misdemeanor and a mere 25.4% of which
were sentenced to prison for a new crime.
See Recidivism, BUREAU OF JUSTICE STATISTICS,
http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=17, (last accessed May. 18, 2014).
99 See Low Recidivism Rate Reportedfr ParoledNY Murderers, THE CRIME REPORT (an. 7,
2011) http://www.thecrimereport.orglarchive/low-recidivism-rate-reported-for-paroled-ny-murderers/ (where 6 of the 368 convicted murderers (1.6%) granted parole in New York between
1999 and 2003 returned to prison within three years for a new felony conviction).
756
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[Vol. 12:737
other crime, the reality is that most would not recidivate if released on
parole.
Thus, a mandatory LWOP sentence for an intellectually disabled
defendant under a habitual criminal statute cannot be genuinely justified under incapacitation theory. By disregarding drug use and job retention, these statutes abandon any attempt at predicting recidivism.
Further, the American Association of Intellectual and Developmental
Disabilities recommends "designing and delivering support tailored to
each individual to help them reach their highest level of functioning," in
addressing an individual's deficit in adaptive behavior."oo Individualized
sentencing and treatment options would likely be much more effective
in determining who will commit another offense and in ensuring an
intellectually disabled offender will not recidivate. Under incapacitation
theory, a harsh sentence is justified if it is necessary to protect a victim's
right to be safe from repeat offenders."o' It is clear, however, that using
only criminal history to dole out life sentences is ineffective in determining who actually has the potential to be a repeat offender.1 0 2 While
incapacitation theory undoubtedly serves a real crime prevention function in keeping some repeat offenders locked up for longer periods of
time, the possibility of false positives and inability to account for special
mental health needs leads one to seriously question the utility of this
justification.
Consequently, all three justifications for the Three Strikes movement and the promulgation of mandatory LWOP sentencing of intellectually disabled defendants are flawed. Desert theory is aligned with
proportionality considerations, which courts find essential to sentencing
schemes. But requiring a life sentence based on the crime committed
calls into question the sincerity of desert theorists' proclaimed focus on
the moral culpability of the criminal defendant because it necessarily
fails to take mitigating factors into account. This is especially true when
the defendant has a proven intellectually disability that reduces moral
culpability. The other two theories, general deterrence and incapacitation, center on crime prevention, rather than proportional culpability.
General deterrence theory can account for the deficiencies in desert theory by allowing for a disproportionally harsh sentence for one criminal
defendant in order to set an example to deter many more potential
100
FAQ, supra note 4.
101 See supra note 95 and accompanying text.
102 See supra note 96 and accompanying text.
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L WOP FOR THE INTELLECTUALLY DISABLED
757
criminal offenders. However, deterrence theory is premised on a rational and calculating criminal actor, and is thus undermined by a criminal defendant proven to be deficient of logical reasoning.
Incapacitation theory eliminates this premise and instead focuses on the
prior crimes committed by a defendant as a predictive tool for future
criminal activity. It is the only theory that can claim an actual crime
prevention success, but its sacrifice of case-specific proportionality and
indiscriminate wielding of hefty sentences creates much cause for
concern.
D.
LWOP as an Alternative to the Death Penalty
Also worth noting is a fourth, and more inadvertent, group of advocates for LWOP sentences: death penalty abolitionists. This group
advocates for LWOP sentences to be offered to juries as an alternative to
the death penalty in death eligible cases. In one juror opinion survey,
most jurors "stated that the deliberations focused a 'fair amount' on the
issue of future dangerousness," and in those cases where it did not play a
big role, "77% reported that personal concern that the defendant might
again be a harm to society was important in how they voted."10 3 In
order to address these concerns, death penalty abolitionists argue that
LWOP sentences can be effective in reducing recidivism and still achieving retributivist-sentencing goals. The Proposition 34 campaign in the
2012 California general election is a prime example of this line of reasoning. The "Yes on 34" website explains that the proposition "will
replace California's death penalty with a sentence of life in prison with
no chance of parole" so that, "[cionvicted killers will be held accountable and pay for their crimes."10 4 While this support may be the product
of careful politicking, some blame death penalty abolitionists for the
increase in LWOP sentences for non-capital crimes and the overall dramatic growth of the LWOP population. 0 5 What is clear is that there is
a strong public sentiment for the need to stop repeat offenders before
they commit another crime. The use of mandatory LWOP sentencing,
however, is imprecise and indiscriminating in satisfying this need and
cannot be supported by any one of the above justifications. But while
the American courts and public are not ready to wholly abandon the
OGLETREE, supra note 41, at 6.
104 About Prop. 34, YEs ON 34, http://www.safecalifornia.org/facts/about (last accessed Nov.
18, 2012).
105 See OGLETREE, supra note 41, at 6.
103
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[Vol.
system of LWOP sentencing, trends in LWOP jurisprudence coupled
with evolving treatment and understanding of those with intellectual
disabilities call for the abolition of mandatory LWOP sentences for the
intellectually disabled.
III. THE
SUPREME COURT'S THREE APPROACHES TO EIGHTH
AMENDMENT CLAIMS
United States Supreme Court jurisprudence regarding LWOP sentencing over time has resulted in a limited guarantee of proportionality
from the Eighth Amendment and the proscription of certain extreme
sentences from application to certain groups. Because an LWOP sentence is "the second most severe penalty permitted by law," LWOP jurisprudence is deeply intertwined with death penalty jurisprudence.1 06
Case law on severe sentencing generally focuses on one of two approaches: 1) outright bans of either the death penalty or LWOP
sentences as applied to specific categories of defendants; or 2) emphasis
by the Court on considering characteristics of the defendant and the
circumstances of the offense before sentencing. The following section
describes each of these concepts individually and how the United States
Supreme Court has blended the two as applied to a class of defendants
that is generally deficient in moral culpability and logical reasoning. It
is helpful to discuss the Court's treatment of juvenile defendants in regards to extreme sentencing, as the young and the intellectually disabled
share similar qualities that the Court considers determinative in evaluating categorical bans and proportionality.
A.
i.
CategoricalBans
The Atkins Decision
Atkins v. Virginia'1 7 is the seminal case in the first line of cases,
establishing a categorical ban against executing mentally retarded defendants who would otherwise meet the legal requirements for criminal
responsibility. While the Court had previously banned the use of capital punishment for specific crimes, Justice Stevens' majority opinion in
Atkins was one of the first to approach the concept of banning capital
punishment for a specific type of criminal."os Citing a growing consen106 Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy,
J. conc.).
536 U.S. 304 (2002).
108 See Coker v. Georgia, 433 U.S. 584 (1977) (held that the death penalty for the rape of an
adult woman is impermissibly excessive and violative of the Eighth Amendment); Enmund v.
107
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LWOP FOR THE INTELLECTUALLY DISABLED
759
sus among states, the Court reasoned that because the intellectually disabled "by definition . . . have diminished capacities to understand and
process information, to communicate, to abstract from mistakes and
learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others," their personal culpability is diminished.' 0 9 Due to these deficiencies, the twin justifications
for the death penalty - retribution and deterrence - are undermined,
the ability of the defendant to "make a persuasive showing of mitigation" is reduced, and the chance of false confession is increased."o
The Atkins decision abrogated the ruling in Penry v. Lynaugh,
where Justice O'Connor wrote, "[t]he Eighth Amendment does not categorically prohibit the execution of mentally retarded capital murderers
of petitioner's reasoning ability.""' Both decisions placed an emphasis
on "evolving standards of decency, "12 which explains why the Supreme
Court was reluctant to create a categorical ban in 1989,' 13 but did a
jurisprudential 180 0 -turn 13 years later when more states expressed their
unwillingness to execute the intellectually disabled through their state
legislatures.1 4 Thus where the Court has been persuaded via legislation,
jury behavior studies, social science studies, etc., that society no longer
favors executing a certain class of defendants, the Supreme Court will
follow suit and proscribe such punishment.
However, it is widely recognized that death is different. The rationale for banning the death penalty as applied to a class of defendants
may be different from the rationale for proscribing mandatory LWOP
sentences. Death is unique in its severity: "unusual in its pain, in its
finality, and in its enormity.""' But is a mandatory LWOP sentence
not painfully final? In both cases, the prisoner will spend the duration
Florida, 458 U.S. 782 (1982) (held that the death penalty for a defendant that aided and abetted
in a felony, but did not kill, attempt to kill, or intend that a killing should take place violates the
Eighth Amendment); but see Ford v. Wainwright 477 U.S. 399 (1986) (held that the death
penalty applied to insane defendants violated the Eight Amendment).
109 Atkins, 536 U.S. at 318.
110 See Atkins, 536 U.S. at 318-321 (citing Gregg v. Georgia, 428 U.S. 153 (1976) [affirming
a bifurcated system of review for capital punishment and outlining the twin justifications for the
death penalty].).
I
Penry v. Lynaugh, 492 U.S. 302, 305 (1989).
112 Both cases cite this language as the measurement for excessive punishment under the
Eighth Amendment from Trop v. Dulles, 356 U.S. 86 (1958); see also Penry, 492 U.S. at 334;
Atkins, 536 U.S. at 312.
113 See Penry, 492 U.S. at 334.
114 See Atkins, 536 U.S. at 314.
115 Furman v. Georgia 408 U.S. 238, 287 (1972).
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of his or her life behind bars. In fact, many on death row ultimately die
from natural causes, rather than the punishment they were sentenced
to." 6 The reality is that while the ultimate result of the death penalty
and LWOP are the same - death while incarcerated - courts propound
to treat them differently. Examining the Supreme Court's treatment of
sentencing juveniles is useful to mete out the difference, or lack thereof,
between the death penalty and mandatory LWOP, because both have
been banned for the category of juvenile.
ii.
Categorical Bans for Juveniles
In 2005, the Supreme Court borrowed much of the reasoning
adopted in Atkins to rule that executing a minor violates the Eight
Amendment as "cruel and unusual punishment.""' 7 Utilizing the same
"evolving standards of decency" language from Trop v. Dulles," 8 the
Supreme Court cited a national consensus against executing juveniles as
similar "to the evidence Atkins held sufficient to demonstrate a national
consensus against the death penalty for the mentally retarded."" 9 The
Court also reasoned that since juveniles under eighteen lack maturity
and a developed sense of responsibility, are more susceptible to outside
influences, and have more transitory personality traits, juveniles as a
class cannot be considered among the worst offenders.1 2 0 Because of
their lower levels of culpability, the twin goals of retribution and deterrence attached to the death penalty do not apply to juvenile defendants.121 Thus, of relevance when considering categorical bans as applied
to the death penalty, the Court emphasizes in its decisions categorically
lower levels of culpability that undermine public policy considerations
and evidence of a national consensus supporting a ban, shown by state
legislative efforts.
116 Of the 7,320 people sentenced to death between 1977 and 2005, 14% were executed
while 4% died of natural causes. The Number ofDeath Row Inmates Declinedfor Fifth Straight
Year During 2005, DEP'T OF JUSTICE (2006), http://www.ojp.usdoj.gov/newsroom/pressreleases/2006/BJSO7006.htm.
117 See Roper v. Simmons 543 U.S. 551 (2005).
118 See supra note 112 and accompanying text. See also Roper, 543 U.S. at 561 (citing Trop v.
Dulles, 356 U.S. 86, 101 (1958)).
119 Where 30 states prohibited the death penalty for those deemed intellectually disabled. At
the time of the Roper decision, 30 states prohibited executing minors; although the Court notes
that state legislative activity on the issue had been much slower in this case than in Atkins.
Roper, 543 U.S. at 564-65.
120 See id. at 569-70.
121 See id. at 571.
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When the Court later approached the prospect of a categorical ban
of LWOP sentences against juveniles in 2010 and again in 2012, it is
not surprising that these considerations survived the jump. Graham v.
Florida involved the first "categorical challenge to a term-of-years sentence," as opposed to the previous categorical challenges against the use
of the death penalty, and, as a result, the majority opinion drew from
the Atkins and Roper line of cases. 12 2 Rejecting the argument that a
majority of jurisdictions have not banned LWOP sentences for juvenile
non-homicide crimes and therefore a national consensus is absent, Justice Kennedy cited actual sentencing practices to show that only eleven
jurisdictions impose these LWOP sentences, establishing a de facto national consensus against the sentence. 12 3 Further, because of the deficiencies of juvenile culpability explained in Roper, the penological goals
of LWOP sentences - retribution, deterrence, and incapacitation - cannot be justified for this category of defendants.1 24 Since these goals are
not met, and juveniles have a reduced level of culpability but higher
capacity to change, and the punishment is so severe, LWOP for nonhomicide, juvenile offenders violates the Eighth Amendment.12 5
Graham was then expanded in 2012 to preclude mandatory LWOP
sentences for every juvenile offender. 1 2 6 Miller v. Alabama involved two
cases of 14-year-old defendants attempting a robbery that went sour and
resulted in a homicide. 12 7 Relying heavily of the Graham Court's reasoning that evolving standards of decency demonstrate that a juvenile's
reduced levels of moral culpability, coupled with a juvenile's capacity for
change, the Miller Court ruled that all mandatory LWOP sentences for
juveniles are violative of the Eight Amendment because the Graham line
of reasoning is not actually crime-specific.128
122 Graham v. Florida 130 S.Ct. 2011, 2023 (2010) (challenging the constitutionality of
LWOP sentences for non-homicide crimes committed by juveniles).
123 Again, the Court found persuasive the "evolving standards of decency" language from
Trop, 356 U.S. at 101, in evaluating Eight Amendment jurisprudence as mentioned above. See
Graham, 130 S.Cr. at 2024-25.
124 See Graham, 130 S.Ct. at 2028-30.
125
126
See id. at 2030.
See Miller v. Alabama, 132 S.Ct. 2455 (2012).
See id. 2461-63.
See id. at 2465 ("But none of what [the Graham Court] said about children-about their
distinctive (and transitory) mental traits and environmental vulnerabilities-is crime-specific.
Those features are evident in the same way, and to the same degree, when (as in both cases [at
issue in Miller]) a botched robbery turns into a killing.").
127
128
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There are two factors that prompted the Court to make such an
unprecedented categorical ban on a term-of-years punishment: the severity of the penalty and its mandatory nature. In Graham and Miller,
the Supreme Court likened LWOP sentences to the death penalty, because "[i] mprisoning an offender until he dies alters the remainder of his
life 'by a forfeiture that is irrevocable.' "129 The severity of this penalty is
only exacerbated by the fact that its mandatory nature "preclude[s] a
sentencer from taking account of an offender's age and the wealth of
characteristics and circumstances attendant to it."1 3 0 Thus where a penalty is so severe that it is analogous to the death penalty, and where a
sentencer is precluded from considering factors the court has recognized
to lessen the culpability of the offender, that penalty violates the Eighth
Amendment as cruel and unusual punishment. Death is not different,
at least when compared to LWOP.
B.
Proportionality
The above analysis would not be complete, however, without a nod
to the Supreme Court's emphasis on the proportionality principle line
of cases. While the categorical bans focus on character traits shared by a
class of defendants, proportionality in sentencing focuses on the relationship of the crime to the severity of the sentence. Again, it is useful
to examine death penalty and juvenile cases to determine the Court's
position regarding the proportionality principle.
Proportionality, by its very nature, is tethered to modern notions
of crime and punishment. This has been alluded to above, as we have
seen the Court emphasize "evolving standards of decency that mark the
progress of a maturing society" in evaluating whether certain punishments pass constitutional muster. 131 The Eighth Amendment, like the
rest of the Constitution, was designed to be responsive to evolving concepts, such as cruelty and punishment, and not to be carbon-dated to its
"original" meaning.132 But proportional to what? For over a century,
Id. at 2466 (citing Graham, 130 S.Ct. at 2027).
Id. at 2468 (The Court then explains this wealth of characteristics: "Under these schemes,
every juvenile will receive the same sentence as every other - the 17-year-old and the 14-yearold, the shooter and the accomplice, the child from a stable household and the child from a
chaotic and abusive one.").
131 Trop v. Dulles, 356 U.S. 86, 101 (1958); see also supra, note 112 and accompanying text.
132 Weems v. United States, 217 U.S. 349, 373 (1910) ("Time works changes, brings into
existence new conditions and purposes. Therefore a principle to be vital must be capable of
wider application than the mischief which gave it birth. This is peculiarly true of constitutions.
129
130
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American jurisprudence has recognized, "it is a precept of justice that
punishment for crime be graduated and proportioned to the offense." 3 3
Thus, the severity of the punishment shall not outweigh the severity of
the offense.
The litmus test for severity of punishment, and to a lesser extent
severity of the crime, is the objective evolving standards of societal decency. The Court will "look to objective indicia that reflect the public
attitude toward a given sanction," in order to effectuate this litmus
test.13 4 The most persuasive evidence the Court relies on is state legislative trends involving the punishment in question." After analyzing the
actions of state legislatures, the Court will "then consider reasons for
agreeing or disagreeing with their judgment." 136
Because proportionality is so focused on modern social definitions
of severe punishment, it is not surprising that conceptions of proportioned sentencing have evolved most rapidly in the field of death penalty
jurisprudence. The proportionality principle made its first major showing in response to the restructuring of the death penalty in the 1970s.
In 1972, the Supreme Court ruled the death penalty to be unconstitutional,'3 7 but by 1976 put it back in place, requiring a bifurcated system
of separate guilt and sentencing phases of the trial.1 38 By mandating a
separate trial for determining punishment after guilt has been affirmed,
and by giving the jury guidance on this issue, the Court sought to protect against imposition of the death penalty "in an arbitrary or capricious manner."' 39 This meant that states could no longer mandate
death for the commission of certain crimes because the jury must be
given the opportunity to weigh the appropriateness of the punishment
separate from the issues of guilt."'o In Roberts v. Louisiana, the State
They are not ephemeral enactments, designed to meet passing occasions. They are, to use the
words of Chief Justice Marshall, 'designed to approach immortality as nearly as human institutions can approach it."').
133 Weems, 217 U.S. at 367.
134 Gregg v. Georgia, 428 U.S. 153, 173 (1976).
135 Penry v. Lynaugh, 492 U.S. 302, 331 (1989) ("The clearest and most reliable objective
evidence of contemporary values is the legislation enacted by the country's legislatures.").
136 Atkins v. Virginia, 536 U.S. 304, 313 (2002).
137 See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726 (1972).
138 See Gregg, 428 U.S. 153.
139 Id. at 195.
140 See Woodson v. North Carolina, 428 U.S. 280 (1976) (invalidating a North Carolina
statute mandating the death penalty for those found guilty of first-degree murder); Roberts v.
Louisiana, 428 U.S. 325 (1976) (invalidating a Louisiana statute, on the same day as Woodson,
mandating the death penalty for a slightly more narrow definition of first-degree murder).
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argued that "taking all sentencing authority from juries," would accomplish the Gregg Court's goal of preventing arbitrary and capricious
sentences.' 4 ' This argument was soundly rejected in favor of jury determination regarding crime-punishment proportionality.14 2
Again, however, death is proclaimed different and courts have been
much more reluctant to even review a legislature's prescription of a sentence less than death, no matter how menial the crime. For example,
the Supreme Court in Rummel v. Estelle14 3 upheld a mandatory life sentence with the possibility of parole for a defendant convicted of obtaining $120 on false pretenses, even though the defendant was able "to
indicate that he might have received more lenient treatment in almost
any other state other than Texas, West Virginia, or Washington."l44 It is
worth noting, however, the Rummel Court proclaimed in dicta that "the
possibility of parole, however slim, serves to distinguish Rummel from a
person sentenced under a recidivist statute like Mississippi's, which provides for a sentence of life without parole upon conviction of three felonies including at least one violent felony.""' Thus the Court has
recognized the possibility of mandatory LWOP sentences violated the
Eighth Amendment's limited guarantee of proportionality.
In fact, when faced with an LWOP sentence for a largely menial
crime, the Supreme Court has proven willing to invalidate the sentence.
Three years after Rummel, in Solem v. Helm the Court struck down an
LWOP sentence for an individual convicted of uttering a no account
check for $100, finding that "a criminal sentence must be proportionate
to the crime for which the defendant has been convicted."' 6 That case
drew much of its analysis from Weems v. United States, which held that
The sentencing scheme involved in Roberts involved a single proceeding where the jury
would be instructed on first-degree murder, as well as all the lesser offenses. If the jury felt the
defendant should not received the death penalty, the jury could convict the defendant of a lesser
offense. In striking down this rule, the Roberts Court placed special emphasis on allowing juries
to differentiate between first-degree murderers in determining sentencing. Roberts, 428 U.S. at
334-35.
141
142
Id.
14 445 U.S. 263 (1980).
Id. at 279 (the Texas recidivist statute prescribes a mandatory life sentence with the possibility of parole upon the third conviction of a felony, where the defendant had actually served
prison time for the prior two felony convictions).
145 Id. at 281; see also note 69 and accompanying text for reproduction of the Mississippi
habitual criminal statute.
146 Solem v. Helm, 463 U.S. 277, 290 (1983) (Ruling that a court should be guided by the
following three-part test in completing an Eighth Amendment proportionality analysis: "(i) the
gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other
144
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15 years of imprisonment and hard labor for the falsification of official
documents violated the Eighth Amendment guarantee to be free from
cruel and unusual punishment.1 47 In agreeing "it is a precept of justice
that punishment for crime should be graduated and proportioned to
offense," the Weems Court set a precedent that a punishment could be
ruled unconstitutional merely by being disproportionate to the crime. 14 s
Eighty years after Weems, however, the Supreme Court proclaimed
to require more than mere lack of proportionality between crime and
punishment in order to support a successful challenge to a sentence.
The proportionality guarantee seemed to be severely limited by Justice
Scalia's opinion in Harmelin v. Michigan,'4 9 focusing just on the severity
of the punishment. In affirming a mandatory LWOP sentence for possession of a controlled substance, Justice Scalia rejected the three-part
proportionality test used in Solem, 15 o stating, "the Eighth Amendment
contains no proportionality guarantee,""' and that the "cruel and unusual punishments clause was directed at prohibiting certain methods of
punishment," 5 2 not necessarily disproportionate sentences. Petitioner's
plea for a mitigation requirement, like that in the bifurcated capital case
procedure, was rejected by the Court because while "[s]evere, mandatory
penalties may be cruel . . . they are not unusual in the constitutional
sense," and "because of the qualitative difference between death and all
other penalties." 1 3 A fair reading of Justice Scalia's Harmelin decision
and its interpretation of Weems suggests that only extreme and abhorrent
sentences, without consideration of the crime that led to conviction, will
be struck down by the Court on Eighth Amendment grounds.
The proportionality principle still lives, however. Scalia's proclamation that "the Eight Amendment contains no proportionality guarantee," was only joined by Chief Justice Rehnquist and was not part of the
criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same
crime in other jurisdictions.").
147 Weems v. U.S., 217 U.S. 349 (1910) (where defendant, an employee of the U.S. Coast
Guard in the Philippines, was found guilty of entering in the cash books disbursement of wages
for work that was never completed).
148 Id. at 367.
149 510 U.S. 957 (1991).
150 See supra note 146.
151 Harmelin, 510 U.S. at 965.
152 Id. at 979. The punishment of 15 years of cadena temporal, or hard and painful labor, at
issue in Weems was only unconstitutional because it was "unknown to Anglo-American tradition." Id. at 990-91.
153 Id. at 994-95.
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Court's majority opinion. 5 1 Justice Kennedy, joined by Justices
O'Connor and Souter, proclaimed in his concurrence: "The Eighth
Amendment does not require strict proportionality between crime and
sentence. Rather, it forbids only extreme sentences that are 'grossly disproportionate' to the crime."'" However, Justice Kennedy refused to
recognize that a sentence's mandatory nature could by itself render a
punishment cruel and unusual.1 56 Therefore, the Harnelin decision left
open a small window for proportionality arguments.
C.
CategoricalBans and ProportionalityWorking Together
While the Harnelin decision in 1991 seemed to largely close off
the Eighth Amendment proportionality guarantee, it opened up with
subsequent decisions. A proportionality argument is unlikely to succeed
on its own, but the proportionality principle has proven valuable to the
Supreme Court in the categorical ban context. Traditionally, the Court
kept separate those cases involving categorical bans' 7 and those cases
involving proportionality. 5 5 But when confronted with a class of defendants that by definition has deficient levels of logical reasoning and
moral culpability, the categorical bans issued by the Court in the first
decade of the 21st Century all drew from proportionality principles.' 59
Additionally, application of Eighth Amendment proportionality is
not limited to capital cases, as Justice Scalia inferred. In ruling
mandatory LWOP sentences for juveniles unconstitutional, the Court
recognized that the Eighth Amendment proportionality guarantee, plus
the severe and mandatory nature of the penalty, all applied to a class of
defendant with a proven lower level of culpability, require individualized
sentencing and preclude mandatory LWOP sentences for juveniles.' 6 0
Furthermore, the Miller Court rejected the States' claim that the Harmelin decision prevents the imposition of individualized sentencing for
154 Id. at 965.
155 Id. at 1001 (Kennedy, J., concurring) (quoting Solem v. Helm, 463 U.S. 277, 288
(1983)).
156 Id. at 1006-07 (Justice Kennedy preferred to defer to the Michigan legislature on this
issue).
157 See Coker v. Georgia, 433 U.S. 584 (1977); Enmund v. Florida, 458 U.S. 782 (1982);
Ford v. Wainwright 477 U.S. 399 (1986).
s58
See Weems v. U.S., 217 U.S. 349 (1910); Rummel v. Estelle, 445 U.S. 263 (1980);
Harmelin 510 U.S. 957.
159 See Miller v. Alabama, 132 S.Ct. 2455 (2012); Graham v. Florida, 130 S.Ct. 2011
(2010); Roper v. Simmons 543 U.S. 551 (2005); Atkins v. Virginia, 536 U.S. 304 (2002).
160 Miller, 132 S.Ct. at 2463-69.
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noncapital cases because that decision "did not purport to apply its
holding to the sentencing of juvenile offenders."""1 In fact, Harmelin's
argument for individualized sentencing in mandatory LWOP cases focused on the court's failure to consider his lack of prior felony convictions, rather than matters dealing with culpability. 1 6 2 Minors, on the
other hand, have already been given special consideration in cases involving the harshest of punishments16 3 because of their lower levels of
culpability. 164
It is clear that where proportionality concerns work in concert with
the factors of class-wide reduced levels of culpability that lead to categorical bans on capital punishment, the Court is willing to impose a
categorical ban on mandatory LWOP sentences. The Harmelin case is
still alive and well, as it is not likely that an argument will succeed for
banning mandatory LWOP sentences merely because they don't take
into consideration individualized mitigating factors (such as lack of priors or defendant's peaceful reputation). But Miller represents a third
line of reasoning in the Eighth Amendment jurisprudence independent
from strict proportionality or categorical bans: proportionality concerns
coupled with categorically reduced levels of moral culpability contributing to a determination of cruel and unusual punishment. Where a class
of defendants has been shown to have lower levels of culpability, there is
a recognized need for individualized sentencing and a rejection of severe,
mandatory sentences. Because the intellectually disabled, like juveniles,
have been recognized as such a class with reduced levels of culpability,'1 5
and a LWOP sentence is such a severe punishment that requires a proportional crime, the intellectually disabled deserve individualized, not
mandatory, sentencing.
IV.
STATE USAGE OF MANDATORY
LWOP SENTENCING
Almost every state allows judges and juries to impose LWOP
sentences and many still carry the death penalty as a sentencing option
for murder. Alaska is the only state that has neither the death penalty
nor LWOP as an available punishment. In those states that do have the
161 Id. at 2470.
162 Harmelin, 501 U.S. at 994. This signifies a greater willingness of the Court to entertain
of reduced defendant culpability.
Miller, 132 S.Ct. at 2470.
See supra note 128 and accompanying text.
See supra note 109 and accompanying text.
issues
163
164
165
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death penalty, where a capital case is in its sentencing phase and the
sentencing body has determined the defendant to not be eligible, it
must prescribe LWOP.1 66
In a way, the bifurcated process of capital trials could be considered
a mandatory LWOP sentence. However, this process is beyond the
scope of this Note. In a capital case, the defendant can apply for a
hearing to determine intellectual disability or the state will automatically
prescribe one.1 6 7 Where there is a finding of intellectual disability, and
the jury has found the defendant guilty of all the elements of a capital
offense, the court must sentence the defendant to LWOP.'16 On its
face, this seems like a mandatory LWOP sentence. But in this case, a
fact finder has already heard evidence of the defendant's intellectual disability and due to the factors outlined in Atkins, such as reduced moral
culpability, the harsher penalty of death must be excluded. So while a
particular sentence is mandated upon the finding of intellectual disability, the defendant's mental health status has already factored into the
sentencing, and the prescription of LWOP is not a de facto mandatory
sentence. Furthermore, during the penalty phase of capital trials, the
jury must weigh mitigating factors against aggravating factors to determine a defendant's eligibility for our society's most extreme penalty. 6 9
So even where a defendant has not been found to be intellectually disabled for the purpose of capital sentencing, the bifurcated process allows
the defendant to put on evidence of his or her intellectual disability as a
possible mitigating factor supporting a discretionary LWOP sentence.
Sentencing systems that are at issue in this Note do not allow for
any consideration of mental health factors: where the elements of the
crime have been proven, and the prosecution has submitted evidence of
prior convictions, the court is bound by statute to prescribe a life sentence with no possibility of the defendant leaving prison on parole.
166 See e.g.
Auz. REv. STAT. ANN. § 13-752 (2012) (West).
167 See e.g. CAL. PENAL CODE § 1376 (West 2012) (the hearing can occur either before the
guilt phase trial or in between the guilt phase and penalty phase); ARIz. REV. STAT. ANN. § 13753(B) (2011) (West) (Requiring the court to appoint a prescreening psychological expert to
complete a pre-trial determination of defendant's intelligence quotient. If the defendant objects,
this "waiver does not preclude the defendant from offering evidence of the defendant's intellectual disability.").
168 Id The process changes where a particular District Attorney's office has decided never to
seek the death penalty, in which case LWOP is the only sentencing option upon a finding of
guilt. This factor is also beyond the scope of this Note but is worth considering when determining the mandatory nature of a particular LWOP sentence.
169 See, e.g., ARiz. REv. STAT. ANN. § 13-752 (2012) (West).
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States are currently split on the usage of this mandatory sentencing. As
of the writing of this Note, 25 states and the Federal Government contain some provision for mandatory LWOP sentences in their criminal
codes.o17 Most of these states accomplish this through recidivist statutes, while other states have abolished their parole system altogether, so
any mandatory life sentence results in LWOP, and still other states that
have recently abolished the death penalty have left LWOP as the
mandatory punishment for capital murder. Conversely, 25 states and
the District of Columbia leave LWOP sentences to the discretion of the
sentencer, or at most prescribe life with the possibility of parole
sentences, or define a life sentence as something less than the defendant's natural life.
Applying this state legislative split to the "objective indicia" of Graham and Miller, it is evident that there is no clear support for
mandatory LWOP sentencing, and in fact there is convincing opposition to such sentencing. In Miller, 29 jurisdictions mandated LWOP
sentences for juveniles convicted of murder in adult courts.17 ' Even
more drastic, the court struck down LWOP sentences for juvenile nonhomicide offenders in Graham, where 37 states permitted such a punishment. 1 72 By the time Atkins was decided, only 19 states and the Federal Government had prohibited the execution of defendants found to
be intellectually disabled. 7 3 By contrast, only 26 jurisdictions permit
mandatory LWOP sentencing while the other 26 jurisdictions provide
for discretion in sentencing.17 While none of the 26 jurisdictions that
do prescribe such mandatory sentences have limited its usage for intellectually disabled defendants, it would be improper to conclude that
those jurisdictions support such an application of LWOP. After all, the
Miller Court observed before ruling that juveniles should be excluded
from mandatory LWOP sentencing, "[a]lmost all jurisdictions allow
some juveniles to be tried in adult court for some kinds of homicide.
But most States do not have separate penalty provisions for those juvenile offenders.""17 In other words, the category of defendant determined to have special legal needs was largely treated the same as
See infra Table 1.
Miller v. Alabama, 132 S.Ct. 2455, 2471 (2012) (where 28 states and the Federal Government mandated LWOP sentences).
172 Graham v. Florida, 130 S.Ct. 2011 (2010).
173 Atkins v. Virginia, 536 U.S. 304, 314 (2002).
174 See infra Table 1.
175 Miller, 132 S.Ct. at 2473 (citations omitted).
170
'7'
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everybody else. Thus the general proscription of mandatory LWOP
sentencing does not preclude a finding of national consensus under the
Trop "objective indicia" analysis. Compared to the above cases, there is
a strong state consensus against the use of mandatory LWOP
sentencing.
Lack of clear support for mandatory determinate life sentences,
however, is not sufficient to support a claim that those sentences are
unconstitutional. That half of United States legislatures that have proscribed mandatory determinate life sentences must be viewed in conjunction with other defendant-specific considerations, such as the
proportionality principle. In fact, intellectual disability already plays a
large role in sentencing, as "many states recognize the need to sentence
mentally retarded offenders less severely than average defendants."' 76
When taken in this context, it becomes clear that mandatory
LWOP sentences for the intellectually disabled cannot stand. LWOP
itself has not been in existence for very long; its use only becoming
favored during the 1980s and spurred by the Three Strikes Movement
of the mid-90s.' 7 7 In addition, the use of LWOP in a mandatory punishment system is not supported by a consensus of states,17 " and its popular support is waning. In 2012, California voters elected to revise their
Three Strikes law, previously one of the harshest in the nation, to only
provide a life sentence for violent third strikes, thereby providing a pathway for 3,000 inmates to petition for reduced sentences.179 This points
to the unusual nature of the punishment. Furthermore, the justifications of retribution, deterrence, and incapacitation fail when applied to
the intellectually disabled defendant.18 0 Because of their reduced levels
of moral culpability and logical reasoning, retribution and deterrence
justifications for LWOP are ineffective for the intellectually disabled.'"'
The premise for incapacitation - the ability to predict future criminality
- has not proven attainable 8 2 and becomes enormously speculative
176 Timothy Cone, Developing the Eighth Amendment for Those "LeastDeserving" of Punishment: Statutory Mandatory Minimums fr Non-CapitalOffenses can be "Crueland Unusual"when
Imposed on Mentally Retarded Offenders, 34 N.M. L. REv. 35, 44 (2004).
177 See supra Part I.B.
178 See infra Table 1.
179 Emily Bazelon, How California's Three-Strikes Law Struck Out, SLATE (Nov. 13, 2012),
http://www.slate.com/articles/news-and-politics/urisprudence/2012/11/california three_
strikeslawvoterswanted toreformthestate_s harshlaw.html.
180 See supra Part II.
181 See supra note 109 and accompanying text.
182 See supra Part II.C.
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where principles of proportionality are sacrificed and the class of criminal defendant might recidivate less with treatment, rather than incarceration. Add to this the ability of prosecutors to pick and choose what
charges they will assert as strikes, and thus which defendants are eligible
for a mandatory LWOP sentence, and this sentencing scheme becomes
very arbitrary and capricious indeed. Mandatory LWOP sentences for
the intellectually disabled are thus cruel and unusual punishments, in
violation of the Eighth Amendment.
V. POLICY
RECOMMENDATIONS
Since mandatory LWOP sentences violate the Eighth Amendment,
the question then becomes: what to do with defendants that might qualify? My proposal is simple: those defendants found to be intellectually
disabled under the operative state statute will be ineligible for a
mandatory LWOP sentence. At the very least, sentencing bodies will
then be required to consider LWOP in conjunction with a lesser-sentence alternative (life with parole, for example). Implementing this will
not require expansive legislative action, nor will it likely be very costly
on states. Furthermore, only 26 jurisdictions would need to change
their policies, as the rest preclude mandatory LWOP sentences from
every defendant.
To preclude intellectually disabled defendants from mandatory
sentences, a court must first be able to determine if the defendant has an
intellectual disability. While definitions of intellectual disability differ
by jurisdiction, a widely accepted definition in the death penalty context
is: "(1) significant sub-average intellectual functioning; (2) accompanied
by related limitations in adaptive functioning; and (3) onset prior to the
age of 18."13 It should be noted that intellectual disability differs from
serious mental illness, where the latter can develop during adulthood
and can result in a determination of incompetency to stand trial. 18 1 Of
the 26 jurisdictions that impose mandatory LWOP sentences, 20 utilize
the death penalty for capital crimes.'8 5 In order to comply with Atkins,
these 20 jurisdictions already incorporate mental health hearings to de183 21A Am. JUR. 2D Criminal Law § 885 (2013).
184 See, e.g., FLA. STAT. ANN. § 916.106(13) (West 2006); DEL. CODE ANN. tit. 11,
(West 2012).
185 See infra Table 1.
§
404
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termine if a defendant falls under the state definition of intellectual disability.' 6 Evidence that might be presented at these hearings include:
[W]hether those who knew the person best during the developmental
stage think the person was mentally retarded at the time and, if so, act
in accordance with that determination; whether the person formulated
plans and carried them through or is impulsive; whether the person's
conduct shows leadership or he or she is led around by others; and
whether the person responds coherently, rationally, and on point to
oral or written questions.18 7
Death penalty or not, every mandatory LWOP jurisdiction defines
intellectual disability somewhere in its code.'18 Consequently, the only
legislative action required to comport with my recommendation, other
than codifying the ban on mandatory LWOP itself, is for six jurisdictions to create a hearing process for determining intellectual disability.
After this finding of intellectual disability, sentencing bodies will
not be restricted to only imposing LWOP. While LWOP can be a sentencing option, it must not be the only option. This will give judges
and juries the ability to take into account a defendant's lesser level of
culpability, to apply the proportionality principle and consider mitigating circumstances, and to contemplate the defendant's need for alternative rehabilitation methods. These changes will bring 26 jurisdictions
into compliance with the Eighth Amendment's ban on cruel and unusual punishment.
Furthermore, these changes will not be very costly, if at all, on
those 26 jurisdictions. As mentioned above, only six jurisdictions would
be required to implement new proceedings for intellectual disability determinations in criminal courts. Because this recommendation provides
more discretion in sentencing, many defendants up for a mandatory
LWOP sentence will likely request a mental health hearing. The increased frequency of these hearings will place a temporal and financial
burden on courts, but these costs will be offset by less determinate life
sentences and the possibility of diverting defendants to alternative methods of rehabilitation in addition to jail time, such as community-based
mental health facilities. With the cost of locking people up rising, the
For an explanation of the process of determining intellectual disability in a death penalty
jurisdiction, see supra, note 164 and accompanying text.
187 21A AM. JUR. 2D Criminal Law § 885 (2013).
188 See infra Table 1.
186
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LWOP FOR THE INTELLECTUALLY DISABLED
773
prison population increasing despite dropping crime rates, and a nationwide prison-overcrowding problem that has reached a tipping point, this
would be welcome relief." 9 Diversion of the intellectually disabled
from penitentiaries into parole or the mental health and treatment systems would likely be beneficial both for proper treatment of individuals
and lightening the burden on the prison system. Additionally, the Fair
Sentencing Act of 2010,190 the banning of the death penalty in Illinois
(2011), Connecticut (2012), and Maryland (2013),19' and the passage
of Prop. 36 in 2012192 are indicative of legislative and popular support
for reducing harsh sentences. With constitutional and public support,
spurred by fiscal demands, and without any major burden readily foreseeable, the time is ripe to ban mandatory LWOP sentences as applied
to the intellectually disabled.
CONCLUSION
Mandatory LWOP sentences for those defendants found to be intellectually disabled violate the Eight Amendment's ban on cruel and
unusual punishment. The punishment is cruel because it subjects a class
of defendants that by definition has lower levels of culpability to an
incredibly severe and final punishment without consideration of mitigating factors. As applied to the intellectually disabled, mandatory
LWOP violates our society's modern notions of decency and proportionality in sentencing. Mandatory LWOP is an unusual sentence because use of mandatory minimum sentences have fluctuated over time
and there is no national consensus supporting its use. Where there are
legitimate proportionality concerns as applied to a group of offenders
proven to have deficient levels of logical reasoning and moral culpability, the Supreme Court has shown a recent and repeated proclivity for
ruling harsh sentences unconstitutional for that class of offenders. Furthermore, the justifications behind LWOP - retribution, deterrence, and
incapacitation - fail as applied to the intellectually disabled defendant.
For those reasons, mandatory LWOP has been banned in a population
189 Martha Teichner, The cost ofa nation of incarcerationCBS NEWS (Apr. 22, 2012), http://
www.cbsnews.com/8301-3445_162-57418495/the-cost-of-a-nation-of-incarceration/ (reporting
that, with 2.4 million people behind bars, it cost on average $31,307 to keep each prisoner
there).
190 See supra notes 38-39 and accompanying text.
191 States With and Without the Death Penalty, DEATH PENALTY INFORMATION CENTER,
http://www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited May 21, 2014).
192 Bazelon, supra note 176.
774
GARDOZO PUB. LAW POLICY &'ETHICSJ.
V 12:737
[Vol.
with comparable reduced culpability: juveniles.
In addition,
prosecutorial control of sentencing decisions in these cases seems
counterintuitive to the court's reliance on societal standards of decency
and the trend of legislatively prescribed sentencing.
Instead, those jurisdictions that do currently have mandatory
LWOP sentences should permit consideration of alternative sentences
where the court has determined the defendant to be intellectually disabled. My ultimate recommendation is for individualized sentencing
similar to what was granted in Miller, with an LWOP sentence still on
the table, just not without consideration of mitigating factors by the
sentencing body. Because only 26 jurisdictions would need to change
sentencing procedure in their codes, and only six of those jurisdictions
do not currently have a procedure in criminal court for determining
intellectual disability, very little movement is needed from state legislatures. In addition, the costs of implementing these changes are likely to
be marginal at most. Mandatory LWOP sentences for the intellectually
disabled cannot be allowed to stand.
2014]
LWOP FOR THE INTELLECTUALLY DISABLED
775
TABLE I
State
Parole
DP? system?
Mandatory LWOP?
Intelectual Disability
Definition?
Cite
Mental Health
Determination
Statute
§ 15-24-2
Alabama
Yes
Yes
Yes, for 4th felony
Ala. Code § 13A-54
conviction with 2
9(c)( ) (2000).
Class A felony priors
Arizona
Yes
Yes
Yes, for 3rd serious
offense
Ariz. Rev. Stat. Ann. Below an I.Q. of
§ 13-706 (2009)
70-75.
Arkansas
Yes
Yes
Yes, for a conviction
of 1st degree Sexual
assault with a prior
serious felony conviction and 3rd violent felony
Ark. Code Ann.
4-501(c)(3),
(d)(1)(A) (West
2011).
Connecticut
No
Yes
Yes, for Class A felony murder with
special circumstance
or capital felony
committed prior to
April 25, 2012
Conn. Gen. Stat.
Ann. §53a-35a
(West 2013)
Significant limitation Conn. Gen. Stat.
in intellectual func
Ann. § Ig (2012).
tioning and deficits
in adaptive behavior
that otiginated dot
ing the developmental period before age
18
Delaware
Yes
No
Yes, for 4th felony
(3rd conviction for
certain felonies)
Del. Code Ann. tit.
11, § 4214(b) (West
2012).
Significantly subaver- Del. Code Ann. tit.
age level of intellec11, § 4209(d)(3)
tual functioning,
(2013).
defendant's adaptive
behavior is substantially impaired,
existed before 18yo
Federal
System
Yes
No
Yes, for 3rd violent
felony
18 U.S.C.A.
§ 3559(c)(1) (2006).
Significantly subaver- 18 U.S.C.A. § 3596
age general intellec- (1994) and relevant
tual functioning
notes of decisions.
existing concurrently
with significant deficits in adaptive
behavior, both were
manifested before
age 18
Significant subaverage general intellectual functioning,
concurrent impairments in adaptive
behhavior, manifested during the
developmental
period
Ala. Code
(1985).
Ariz. Rev. Stat. Ann.
§ 13-753 (2011).
(West).
5
5- Significantly subaver- Ark. Code Ann.
5age general intellec4-618 (West 1993).
tual functioning
accompanied by a
significant deficit or
impairment in adaptive functioning
manifest in the
developmental
period before 18; or
I.Q. below 65
776
CARDOZO PUB. LAW POLICY & ETHICS j
[Vol. 12:737
Florida
Yes
No
yes, for 3-time violent felony offender
Fla. Stat. Ann.
§ 775.084(4)(c)(1)
(a), (4)(d)(1) (West
2012).
Intellectual disability
is subaverage intellectual functioning
concurrent with deficits in adaptive
behavorior, originating before 18yo,
expected to continue
indefinitely, resulting
in the person having
a substantial handicap
Fla. Stat. Ano.
§ 393.063(21)
(2013); see also Fl
Stat. An. § 921.137
(2006).
Georgia
Yes
Yes
Yes, for 2nd serious
violent felony
Ga. Code Ann.
§ 17-10-7 (b)(2)
(West 2013).
For DP purposes:
when a person is
presently unable to
know why he or she
is being punished
and understand the
nature of punishment
Definition
of developmental
disability: chrinic
disability attributable
to intellectual disability manifested
22
before
yo with
deficient adaptive
abilities
Ga. Code Ann.
§ 17-10-60 (1988).
Ga. Code Ann.
§ 37-1-1(8) (2009).
Hawaii
No
Yes
Yes, for first deg.
Murder
Haw. Rev. Star.
§ 706-656 (West
1996).
Intellectual disability Haw. Rev. Stat.
is significantly sub§ 333F-1 (West
average general intel- 2011).
lectual functioning,
associated with current profound
impairments in
adaptive behavior,
manifested during
developmental
period.
Iowa
No
No
Yes, life sentence for
conviction of Class
A felony
lowa Code Ann.
§ 902.1 (West
2011).
Diagnosis of mental lowa Code Ann.
retardation as
54.1(9A) (West
defined in the diag- 2013).
nostic and statistical
manual of mental
disorders, fourth edin on
Kansas
Yes
Yes
Yes, for 3rd sexually
violent crime
Kan. Stat. Ann.
§ 21-6626 (West
2011).
Significantly subaver- Kan. Stat. Ann.
age general intellec§ 76-12b01(d) (West
tual functioning
2012).
existing concurrently
with deficits in
adaptive behavior
and manifested during the developmental period
2014]
Louisiana
LWOP FOR THE INTELLECTUALLY DISABLED
Yes
No
Yes, for certain 3rd
felonies
La. Rev. Stat. Ann.
§ 15:529.1 (2010).
777
La. Code of Crim.
Significant limitaProc. Ann. art.
tions in both intellectual functioning
905.5.1 (2010).
and adaptive behavior, onset before age
18
I
Massachussetts No |Yes
Yes, for first deg.
Murder, bc. DP
ruled unconstitutional
Mass. Gen. Laws
Ann. ch. 127
§ 133A (West 2012);
DP ruled unconsitutional in Commonwealth v. ColonCruz, 393 Mass. 150
(1984).
;ignificant limitaMass. Gen. Laws.
ions in both intelAnn. ch. 123B § 1
ectual functioning
(West 2013).
id adaptive behavor, onset before age
18 and consistent
vith most recent
lefinition from
.merican Associaion on Intellectual
md Developmental
Disabilities
Yes
Mississippi
Yes
Montana
Yes Yes
yes, LWOP
Miss. Code Ann.
§ 99-19-83 (West
1977)
Yes, for 2nd violent
felony or 3rd less
aggravated felony
Mont. Code Ann.
§ 46-18-219 (West
2001).
+
Miss. Code Ann.
Substantial limita§ 41-21-61(f) (West
tions in present
2010).
functioning, manifested before age 18,
subaverage intellectual functioning
existing concurrently
with limitations in
adaptive skill areas
Developmental disa- Mont. Code Ann.
biliry is attributable
§ 53-20-102(8)
to mental retardation (West 2007).
originating before
18yo, expected to
continue indefinitely,
resulting in the person having a substantial disability
778
CARDOZO PUB. LAW POLICY & ETHICS
New
Hampshire
Yes
New Jersey
|No IYes
Yes
[Vol. 12:737
Yes, for 3rd aggravated felonious sexual assault
N.H. Rev. Stat.
Developmental disa- N.H. Rev. Star.
6
6
Ann. § 51: (III)(e) bility is attributed to Ann. § 171-A:2(V)
(2013)
an intellectual disa(2008)
bility, originating
22
before
yo,
expected to continue
indefinitely, severe
disability to individual's ability to function normally in
Yes, on 3rd felony
conviction but
parole eligible after
70yo and served
35yrs
N.J. Star. Ann.
§ 2C:43-7.1 (West
2003).
society
Person in a state of
N.J. Star. Ann.
significant subnor§ 39:4-207.2 (West
mal intellectual
2010).
development with
reduction of social
competence, existing
prior to adolescence
and expected to be
of lifelong duration
North
Carolina
Yes Yes
Yes, for 3rd violent
felony
N.C. Gen. Stat.
Ann. § 14-7.12
(West 1994).
Significantly subaver- N.C. Gen. Stat.
age general intellec- Ann. § 15A-2005
Lual functioning,
(West 2001).
:xisting concurrently
with significant limirations in adaptive
Functioning, both of
which were maniFested before the age
,f 18
I
I
',outh
Carolina
Yes IYes
S.t. Code Ann.
Yes, tor 2nd or Srd
conviction of serious § 17-25-45 (2010).
offense
Significantly subaver- S.C. Code An. § 44age general intellec- 20-30(12) (2011).
tual functioning
existing concurrently
with deficits in
adaptive behavior
and manifested during the developmental period
2014]
LWOP FOR THE INTELLECTUALLY DISABLED
Yes, for 2nd or 3rd
conviction of serious
violent offense
Texas
Yes
Yes
Yes
Yes, for 2nd serious
felony
779
Tenn. Code Ann.
5 40-35-120(g)
(West 2010).
IQ below 70, defiTenn. Code Ann.
cits in adaptive
§ 39-13-203 (West
behavior, must man- 2010).
ifest before 18yo
Tex. Penal Code
Ann. § 12.42(c)(4)
(West 2011).
Significantly subaverage general intellectual functioning
concurrent with deficits in adaptive
behavior and manifested during the
developmental
oeriod
Tex. Health &
Safety Code Ann.
§ 591.003(7-a)
(2011).
I
Yes, for 3rd violent
Va. Code Ann.
felony. Those not
§ 19.2-297.1 (West
convicted of sexual
1996).
violent crime can
petition for parole at
60yo(10yrs) or
65yo(5yrs)
Disability originating Va. Code Ann.
before 18yo, charac- § 19.2-264.3:1.1
terized concurrently (West 2003).
by significantly subaverage intellectual
functioning and significant Imitations in
adaptive behavior
Yes, upon 3rd felony Wash. Rev. Code
or 5th misdemeanor Ann. § 9.92.090
involving fraud
(West 1992).
Significantly subaverage general intellectual functioning
existing concurrently
with deficits in
adaptive behavior,
both were manifested during developmental period
Wash. Rev. Code
Ann.
§ 10.95.030(2)(a)
(West 2010).
W. Va. Code Ann.
§ 27-1-3 (2010).
Washington
Yes
West Virginia
No Yes
Yes, for 2nd conviction of murder
W. Va. Code Ann.
§ 61-11-18 (West
2000)
Subaverage intel.
functioning manifesting during developmental period
with inadequate
adaptive behavior
Wisconsin
No Yes
Yes, for those
deemed persistent
repeat offenders
Wis. Stat. Ann.
§ 939.62 (West
2008).
Developmental disa- Wis. Stat. Ann.
bility is attributable
§ 51.01 (2006).
to intellectual disability, can be
expected to continue
indefinitely, and
constitutes a sub-
Wyoming
Yes
Yes, for violent felony conviction with
3 felony priors
Wyo. Stat. Ann 610-201 (West 1982)
(amended by 2013
Wyo. Sess. Laws Ch.
18).
stantial handicap
Yes
Significantly subaver- Wyo. Stat. Ann.
age general intellec- 1-102(xiii) (West
tual functioning
2008).
concurrent with deficits in adaptive
behavior and manifested during the
developmental
period
No mandatory LWOP
I
8-