This report was undertaken in response to litigation and legislation against the use of life-without-parole sentences for juvenile offenders. Following several challenges in state supreme courts, interest in the issue has only grown since the U.S. Supreme Court agreed to hear two cases challenging life-without-parole-sentences for juvenile offenders on Eighth Amendment grounds. Recent years have also witnessed the introduction, in several states, of legislation prohibiting the practice. California’s experience with such legislation is typical.

California Misled

In 2007, State Senator Leland Yee introduced a bill to radically alter the sentence of life without parole for juvenile offenders in California. Specifically, Senate Bill No. 999 would have ended the use of these sentences prospectively. Under the legislation, any juvenile offender convicted of first-degree murder, with any number of aggravating circumstances (such as multiple murders, murder for hire, murder of a police officer or firefighter, and torture of the victim ), would be punishable by, at most, a life sentence with the possibility of parole after 25 years.

The debate over the measure was conducted largely by national special-interest groups. On one side were a variety of activist groups that have engaged on this issue in a number of states, including the American Civil Liberties Union (ACLU), Human Rights Watch (HRW), Amnesty International (AI), Equal Justice Initiative, and NAACP Legal Defense and Educational Fund. On the other side, opposing the legislation, were local groups representing prosecutors, police, and victims. These opponents ultimately proved successful, and the bill died at the conclusion of the legislative session.

In February 2009, with the support of the same activist groups, Senator Yee introduced an even more radical proposal than Senate Bill No. 999. Without banning life-without-parole sentences for juveniles, Senate Bill No. 399 would allow any prisoner who has served 10 to 15 years of a life-without-parole sentence for an offense committed when he or she was less than 18 years old to petition the sentencing court for “recall” (i.e., cancellation) of the existing sentence, a rehearing, and a new reduced sentence. The court would then choose whether to accept the petition.

The court would have no such choice, however, if the prisoner satisfies three of eight criteria, including whether the prisoner had an adult codefendant; has “maintained family ties” while in prison; has not maintained ties with criminals outside of prison; suffered from “cognitive limitations” at the time of the offense (perhaps even being a juvenile); has taken a class while in prison; used self-study while in prison; and has taken some “action that demonstrates the presence of remorse.” Notably, whether the prisoner would present a danger to the community is not among the criteria.

With these easily satisfied criteria, practically every prisoner sentenced to life without parole for an offense committed while a juvenile would be entitled to recall and a resentencing hearing. Under this system, individuals sentenced to life without parole could actually be released from prison before those sentenced to lesser terms for less serious or less heinous offenses.

After quick initial progress, the 2009 legislation met the same fate as its predecessor. The bill cleared the California Senate in early June, having passed through two committees with little opposition, before going down to a quick and unexpected defeat at the end of the month in the Assembly’s Committee on Public Safety.

News coverage of the 2007 and 2009 measures has generally been one-sided, with reporters quoting the sponsor of the bills and activist supporters. More troubling are the unsupported assertions made by supporters, including that “children” should never face severe adult sentences, that Roper cast doubt on the constitutionality of life without parole for juvenile offenders, that ending such sentences would significantly reduce prison overcrowding, and that many who were serving such sentences were mere accomplices to or observers of the crimes with which they were charged.

Further, the sponsor’s statement in the bills’ official analyses contained highly questionable assertions of fact. For example, the statement for the current version of the bill claims that “59% of youth sentenced to LWOP are first-time offenders” and that “45% of the youth sentenced to life in prison did not perform the murder they were convicted of.” It provides no sources for or explanation of these claims. It also states that “70% of the youth acted under the influence of adults” and that, “in 56% of these cases, the youth received a higher sentence than the adults.”

The bill further claims that “[t]he U.S. is the only country in the world that sentences kids to life without parole.” This is simply false. As even Amnesty International and Human Rights First acknowledge, at least 11 other countries allow life without parole for juvenile offenders, and the true number is likely greater, as explained below. The bill’s sponsor and supporters have made many other claims that do not stand up to even light scrutiny.
Our skepticism in the face of these assertions led us to research these claims. The leading sources on life without parole for juvenile offenders, and frequently the only sources consulted by those with an interest in the issue, were one-sided reports by many of the same activist groups that had supported the California legislation. This was, we learned, no accident.

A Small but Coordinated Movement

Opponents of tough sentences for serious juvenile offenders have been working for years to abolish the sentence of life without the possibility of parole. Though representing relatively few, these groups are highly organized, well-funded, and passionate about their cause. Emboldened by the Supreme Court’s decision in Roper, which relied on the “cruel and unusual punishments” language of the Eighth Amendment to the Constitution to prohibit capital sentences for juveniles, they have set about to extend the result of Roper to life without parole.

These groups wrap their reports and other products in the language of Roper and employ sympathetic terms like “child” and “children” and Roper-like language such as “death sentence” instead of the actual sentence of life without parole. Their reports are adorned with pictures of children, most of whom appear to be five to eight years old, despite the fact that the youngest person serving life without parole in the United States is 14 years old and most are 17 or 18 years old.

A careful reading of these groups’ reports, articles, and press releases reveals that their messages and themes have been tightly coordinated. There is a very unsubtle similarity in terminology among organizations in characterizing the sentence of life without parole for juvenile offenders. For example, they consistently decline to label teenage offenders “juveniles” despite the fact that the term is used by the states, lawyers, prosecutors, state statutes, judges, parole officers, and everyone else in the juvenile justice system. Instead, they use “child.”

There is nothing wrong, of course, with advocacy groups coordinating their language and message. The problem is that this important public policy debate has been shaped by a carefully crafted campaign of misinformation.
The issue of juvenile offenders and the proper sentence they are due is much too important to be driven by manufactured statistics, a misreading of a Supreme Court case, and fallacious assertions that the United States is in violation of international law. Instead, the debate should be based on real facts and statistics, a proper reading of precedent, an intelligent understanding of federal and state sovereignty, and a proper understanding of our actual international obligations.

The Public Is Disserved by a One-Sided Debate

Regrettably, that has not been the case, as opponents of life without parole for juvenile offenders have monopolized the debate. As a result, legislatures, courts, the media, and the public have been misled on crucial points.

 One prominent example is a frequently cited statistic on the number of juvenile offenders currently serving life-without-parole sentences. Nearly all reports published on the subject and dozens of newscasts and articles based on those reports state that there are at least 2,225 juveniles sentenced to life without parole. That number first appeared in a 2005 report by Amnesty International and Human Rights Watch, The Rest of Their Lives: Life Without Parole for Child Offenders in the United States.

But a careful look at the data and consultation with primary sources—that is, state criminal-justice officials—reveals that this statistic is seriously flawed. As described below, officials in some states reject as incorrect the figures assigned to their states. Others admit that they have no way of knowing how many juvenile offenders in their states have been sentenced to life without parole—and that, by extension, neither could activist groups.
Nonetheless, this statistic has gone unchallenged even as it has been cited in appellate briefs and oral arguments before state supreme courts and even in a petition to the United States Supreme Court. All of these courts have been asked to make public policy based on factual representations that even cursory research would demonstrate are questionable.

Another example is the unrealistic portrait of the juvenile offenders who are sentenced to life without parole that activist groups have painted. Nearly every report contains sympathetic summaries of juvenile offenders’ cases that gloss over the real facts of the crimes, deploying lawyerly language and euphemism to disguise brutality and violence.

For example, consider the case of Ashley Jones. The Equal Justice Initiative’s 2007 report describes Ms. Jones’s offense as follows: “At 14, Ashley tried to escape the violence and abuse by running away with an older boyfriend who shot and killed her grandfather and aunt. Her grandmother and sister, who were injured during the offense, want Ashley to come home.”

The judge’s account of the facts, however, presents a somewhat different picture. An excerpt:
When Ashley realized her aunt was still breathing, she hit her in the head with a heater, stabbed her in the chest and attempted to set her room on fire….
As ten-year old Mary Jones [Ashley’s sister] attempted to run, Ashley grabbed her and began hitting her. [Ashley’s boyfriend] put the gun in young Mary’s face and told her that that was how she would die. Ashley intervened and said, “No, let me do it,” and proceeded to stab her little sister fourteen times.

In a similar vein, many of the studies feature pictures of children who are far younger than any person actually serving life without parole in the United States. When these reports do include an actual picture of a juvenile offender, the picture is often one taken years before the crime was committed. The public could be forgiven for believing incorrectly that children under 14 are regularly sentenced to life behind bars without the possibility of release.

A final example is the legality of life-without-parole sentences for juvenile offenders. Opponents make the claim, among many others, that these sentences violate the United States’ obligations under international law. Yet they usually fail to mention that no court has endorsed this view, and rarely do they explain the implications of the fact that the United States has not ratified the treaty that they most often cite, the Convention on the Rights of the Child, and has carved out legal exceptions (called “reservations”) to others.

Further, they often abuse judicial precedent by improperly extending the death penalty–specific logic and language of Roper into the non–death penalty arena, an approach that the Supreme Court has repeatedly rejected. Again, the public could be forgiven for believing incorrectly that the Supreme Court, particularly in Roper, has all but declared the imposition of life sentences without parole for juvenile offenders to be unconstitutional. A more honest reading of the precedent, however, compels the opposite conclusion: that the sentence is not constitutionally suspect.

The Whole Story

Public policy should be based on facts, not false statistics and misleading legal claims. For that reason, we undertook the research to identify those states that have authorized life without parole for juvenile offenders and wrote to every major district attorney’s office across those 43 states. To understand how prosecutors are using life-without-parole sentences and the types of crimes and criminals for which such sentences are imposed, we asked each office for case digests of juvenile offenders who were prosecuted by their offices and received the specific sentence of life without parole.

The response from prosecutors around the country was overwhelming. Prosecutors from across the United States sent us case digests, including official court documents, police reports, judges’ findings, photos of the defendants and victims, motions, newspaper articles, and more. From that collection of case digests, we selected 16 typical cases, all concerning juvenile offenders, and assembled a complete record for each. Those cases are presented as studies in this report. In sharp contrast to the practices of other reports, these case studies recount all of the relevant facts of the crimes, as found by a jury or judge and recorded in official records (which are cited), in neutral language.

The text of the report itself includes a neutral analysis of the relevant case law and Supreme Court precedents, as well as an analysis of how international law affects domestic practice in this area. It also includes a rough analysis (which is all the present data will allow) of the statistics often used in activist groups’ reports and a comparison of U.S. and international juvenile crime statistics.

Based on this research, we conclude that the sentence of life without parole for juvenile offenders is reasonable, constitutional, and (appropriately) rare. Our survey of the cases shows that some juveniles commit horrific crimes with full knowledge of their actions and intent to bring about the results. In constitutional terms, the Supreme Court’s own jurisprudence, including Roper, draws a clear line between the sentence of death and all others, including life without parole; further, to reach its result, Roper actually depends on the availability of life without parole for juvenile offenders. We also find that while most states allow life-without-parole sentences for juvenile offenders, judges generally have broad discretion in sentencing, and most juvenile offenders do not receive that sentence.

We conclude, then, that reports by activist groups on life without parole for juvenile offenders are at best misleading and in some instances simply wrong in their facts, analyses, conclusions, and recommendations. Regrettably, the claims made by these groups have been repeated so frequently that lawmakers, judges, the media, and the public risk losing sight of their significant bias.

To foster informed debate, more facts—particularly, good state-level statistics—are needed about the use of life-without-parole sentences for juvenile offenders. But even on the basis of current data, as insufficient as they are, legislators should take note of how these sentences are actually applied and reject any attempts to repeal life-without-parole sentences for juvenile offenders.

Charles D. Stimson is Senior Legal Fellow and Andrew M. Grossman is Senior Legal Policy Analyst in the Center for Legal and Judicial Studies at The Heritage Foundation.