Kids Shouldn't Die in Prison

A look at the 2012 Miller v. Alabama Supreme Court decision—a victory for juvenile justice advocates—and the long hard road ahead

by Kimberlee Johnson

On June 25, 2012, the United States Supreme Court struck down mandatory life-without-parole sentences for homicide offenders who are under the age of 18 at the time of their crimes. This narrow 5-to-4 decision is a victory for both juvenile lifers and the advocates who have worked tirelessly for many years on their behalf. In the Miller v. Alabama ruling, the majority opinion as stated by Justice Elena Kagan was that juvenile life-without-parole (JLWOP) convictions violate the Eighth Amendment ban on cruel and unusual punishment.

child prisonerApproximately 2,600 citizens are currently serving JLWOP sentences. More than 2,000 of these were sentenced through the mandatory sentencing practice that the new ruling has barred; it is these prisoners who now have hope of eventual release.

Civil rights attorney Bryan Stevenson represented the defendants in the case. The executive director of the nonprofit law firm Equal Justice Initiative, Stevenson called it "an important win for children…The Court has recognized that children need additional attention and protection in the criminal justice system…[This] decision requires the lower courts to conduct new sentencing hearings where judges will have to consider children's individual character and life circumstances, including age, as well as the circumstances of the crime."

But the fight for juvenile justice is far from over. Because resentencing must be initiated by the prisoners themselves, the majority of whom lack the funds to hire an attorney, Stevenson worries that many will remain in prison. The Supreme Court has stated that prisoners seeking new hearings have no constitutional right to counsel. And youths will continue to be tried as—and incarcerated with—adults, as this ruling touches exclusively on mandatory life-without-parole sentences.

How did this happen?

Many Americans are surprised to learn that the US not only incarcerates a greater percentage of its citizens than any other country in the world but also has the dubious distinction of being the only nation that sentences children to life in prison without parole. What is this harsh sentencing based upon?

Two key factors have contributed to the large numbers of juvenile lifers. The first is mandatory transfer laws. Transfer laws, which vary by state, determine whether a juvenile will be heard in a juvenile court or prosecuted in an adult criminal court. These transfers can occur through judicial waiver (a juvenile court judge decides), prosecutorial discretion (the prosecutor decides to directly file in an adult criminal court), or legislative statute/statutory exclusion (state law mandates that it is automatically filed in an adult criminal court). Currently 29 states have automatic statutory transfer laws so that all juveniles charged with felony murder are tried in adult court at the very start, and murder charges apply to both the principal actor in the murder and any accomplices who are a par t of the original felony regardless of their role in the crime.

The second factor is mandatory sentencing laws. When statutes automatically dictate the sentence for a particular crime, the hands of judges are tied in terms of determining what may be a more just sentence given particular circumstances. Anita Colon, Pennsylvania coordinator for the National Campaign for the Fair Sentencing of Youth, illustrates this in the tragic story of her brother, Robert "Saleem" Holbrook. At the age of 16 Holbrook was given $500 by a drug dealer to serve as the lookout during a drug transaction. The transaction turned out to be a robbery/murder, and Hobrook was eventually charged and convicted of first-degree murder and sentenced to life without the possibility of parole. Despite the judge's expressed acknowledgement that Holbrook was the youngest and least culpable in the crime, Pennsylvania law mandated that he sentence the boy to life without parole. According to Human Rights Watch, 59 percent of juvenile lifers are first-time offenders, like Holbrook, with no juvenile or adult record.

books.Kids Shouldn't Die in PrisonLike the rest of the US criminal justice system, JLWOP reflects extensive racial and economic disparities. Youth of color are more likely than white youth to be transferred into adult courts for every type of offense. In Pennsylvania, 65 percent of prisoners serving JLWOP sentences are African American. White youth in adult court are twice as likely as African American youth to have a private lawyer, and youth represented by private attorneys are less likely to be convicted, regardless of race or ethnicity.

Many politicians have garnered popularity by taking tough-on crime stances and using phrases like "adult crime, adult time." Children, however, are unlike adults in one very significant way. According to Dr. Ruben Gur, director of the University of Pennsylvania Medical Center, "The evidence now is strong that the brain does not cease to mature until the early 20s in those relevant parts that govern impulsivity, judgment, planning for the future, foresight of consequences, and other characteristics that make people morally culpable…"

While our laws determine that young people are not mature enough to drive before the age of 16, vote before 18, or use alcohol before 21, trying and sentencing children as adults implies that they are capable of exercising appropriate judgment in the midst of peer pressure, tempting life circumstances, and often difficult home situations. Sadly, the recent ruling against mandatory LWOP sentences for juveniles will do nothing to change the broader situation for youths charged with violent crime. All states have laws permitting the trying of children as adults (under various circumstances), and at least 22 states and the District of Columbia have no minimum age restriction. Trying youth in adult court could also subject them to adult sentences and placement in adult prisons.

While natural consequences and appropriate punitive judgments are needed for children as well as adults, "the juvenile justice system was founded because youth have unique characteristics—requiring special protections and services—that reflect a greater capacity to change than adults."(1) If this is true, rehabilitation/restoration as a productive member of society is not only a worthy but also a realistic goal for them.

Consider Philadelphia native Edwin Desamour. At the age of 16, Desamour was tried and convicted of murder as an adult. Spared a life sentence, he was given seven to 20 years, going on to serve eight years in an adult prison and over 11 years on parole. Despite his misery while incarcerated, Desamour was motivated by the possibility of parole and determined to change his life around and never return. Upon his release, and with the help of community support, Desamour eventually founded the nonprofit MIMIC—Men in Motion in the Community. MIMIC is a group of men, most of whom are ex-offenders, who offer mentoring and crisis intervention to at-risk youth in order to keep them from entering the juvenile justice system in the first place. Like Desamour himself, MIMIC volunteers model what it takes to be a productive citizen and are living proof that redemption is possible.

Impact and implications of ruling

Opponents of the abolition of mandatory JLWOP argue that given the heinous and sometimes premeditated murders that are committed, JLWOP should continue in the United States. It is important to remember that to the same extent that juvenile lifers, family members of these lifers, and fair sentencing advocates feel excited, victorious, and relieved, victims' families, prosecutors, and victim-advocacy groups feel angry, defeated, and grieved.

These voices must also be heard. Jennifer Bishop-Jenkins, president of the National Organization of Victims of Juvenile Lifers, said, "This ruling invalidating the life sentences of many of our family members' murder cases comes against the backdrop of tragedy. While we understand the tragic consequences to the killers, the entire context of this decision is first and foremost the appalling and senseless murders of our innocent loved ones and the devastation left behind…

child prisoner (R Ross)

In 2008 a group of five young men were arrested in Miami for armed car-jacking, burglary, sexual battery and assault. Among them was then-13-year-old Ronald Franklin. The older members of the group pointed a finger at Ronald as the ring-leader although he was the youngest. The young man who is the main state's witness against the others served two years of a plea agreement, was released, violated terms, and is now re-incarcerated. Ronald is still being held awaiting trial in an 8×10 cell at Turner Guilford Knight Correctional Center. (Photo by Richard Ross;

The deluge of litigation, legislation, and resentencing that has been opened … by the Court will rip up the legal finality that family members have relied on. We will have to go back to court and re-engage with the offenders who ruined our lives."

As a result of Miller v. Alabama three things will happen. First, states must respond with changes in legislation. Second, courts must provide new sentencing hearings to all of the affected petitioners. Third, the public consciousness and dialogue must grow as it relates to issues of mandatory minimum sentencing, transfers of youth to adult criminal courts, and the appropriateness of adult sanctions for juveniles convicted as adults.

States must enact laws consistent with the Miller v. Alabama ruling. All states with mandatory sentencing schemes are affected by the Court's decision—and the responses have been varied. In the state of Pennsylvania, which has the highest number of juvenile lifers at 480, the chair of the Senate judiciary committee, Sen. Stewart Greenleaf (R-12), held a public hearing on July 12, 2012, to receive testimony regarding how to implement the Supreme Court's decision. This is perceived as an immediate act to achieve compliance with the higher court's mandate. Sentencing laws related to first- and second-degree homicide convictions are the primary issue. According to Lourdes M. Rosado, associate director of the Juvenile Law Center, Sen. Greenleaf is trying to get the relevant legislation passed by the end of 2012, but this process may take longer depending on the state.

Lower courts must offer the opportunity for new sentencing hearings to those currently serving mandatory juvenile life-without-parole sentences. At these hearings, mitigating circumstances and arguments (related to age, family and home environment, relevant circumstances, and the possibility for rehabilitation) can be presented, and judicial discretion may be used in sentencing. According to Rosado, a letter containing the Motion of Post Conviction Relief form has been sent to all juvenile lifers in Pennsylvania, encouraging them to file a petition within 60 days of the Supreme Court ruling, challenging their life-without-parole sentence. In Philadelphia alone approximately 250 cases are already before the Court of Common Pleas in order to have sentences revisited. As Anita Colon indicated in her July 12, 2012, testimony before the Senate Judiciary Committee in PA, "The crucial mitigating factors that my brother's trial judge was prohibited from considering all those years ago must now be taken into consideration."(2)

Lest anyone think this process will be easy, consider the extreme dissent and disagreement with regard to interpretations of the retroactivity of the Court's ruling. Chief Justice John Roberts, in his dissenting statement, said that it "is a great tragedy when a juvenile commits murder—most of all for the innocent victims. But also for the murderer, whose life has gone so wrong so early. Perhaps science and policy suggest society should show greater mercy to young killers, giving them a greater chance to reform themselves at the risk that they will kill again… Neither the text of the Constitution nor our precedent prohibits legislatures from requiring that juvenile murderers be sentenced to life without parole."(3) This statement has formed a basis upon which many district attorneys' offices are fighting to maintain (discretionary) life-without-parole sentences for those previously convicted under mandatory sentencing laws (despite the fact that any juvenile sentences lacking the possibility of parole were discouraged by the Court).

The public consciousness has been raised as a result of the Miller v. Alabama Supreme Court ruling. Opportunities for discourse must continue as issues of human rights and juvenile justice come to the fore in our society. We must contend with the issues of mandatory minimum sentencing, transfers of youth to adult criminal courts, and the appropriateness of adult sanctions for juveniles convicted as adults. People of conscience must take action. How?

  • Educate yourself about these issues. (See "Dig Deeper: Books" above.) Become part of or support the efforts of an existing organization or movement that is making progress with regard to these issues. (See "Dig Deeper: Organizations" below.)
  • Support the families of victims who died at the hands of juveniles. Support the families of incarcerated youths.
  • Host forums at your organization or job to educate others about juvenile justice issues.
  • Churches and other community organizations, donate the use of your space for community meetings. Allow flyers to be posted. Disseminate information.
  • Admit your involvement or place in this issue (e.g., victim of violent crime, family member of an incarcerated person, advocate, opponent) and voice your beliefs.
  • Write a letter (or start a letter-writing campaign) to your district attorney, state representatives, and local newspaper editor expressing your opinion about the issue.

DIG DEEPER: Organizations

  • The Campaign for Youth Justice is dedicated to ending the practice of trying, sentencing, and incarcerating youth in the adult criminal justice system.
  • The Coalition for Juvenile Justice is a nationwide coalition of State Advisory Groups and allies dedicated to preventing children and youth from becoming involved in the courts and upholding the highest standards of care when youth are charged with wrongdoing and enter the justice system.
  • The Equal Justice Initiative is a nonprofit that provides legal representation to indigent defendants and prisoners who have been denied fair and just treatment in the legal system, including juvenile offenders. Check out their excellent resources on children in adult prison.
  • Men in Motion in the Community seeks to build bridges of community support and social bonds for Philadelphia's high-risk youth, young adults, and previously incarcerated men through mentoring, community engagement, and educational enrichment.
  • The National Organization of Victims of Juvenile Lifers tells the stories of those victimized by juvenile offenders. Take some time to visit their site in order to better understand their side of the issue and to grieve their losses as well.
  • The Campaign for the Fair Sentencing of Youth is a national effort to help create a society that respects the dignity and human rights of children through a justice system that operates with consideration of the child's age, provides youth with opportunities to return to community, and bars the imposition of life without parole for people under age 18.

Kimberlee Johnson is chair of the Urban Studies Department and director of the Center for Urban Youth Development at Eastern University's Philadelphia campus. She is a member-at-large of the Coalition for Juvenile Justice. The author would like to express particular thanks to Anita Colon (Pennsylvania coordinator for the National Campaign for the Fair Sentencing of Youth); Edwin Desamour (founder of MIMIC); Lourdes Rosado, Esq. (associate director of the Juvenile Law Center); and Jeffrey Shook, Esq. (associate professor of law and social work at the University of Pittsburgh) for their time and contributions to this article. (The editor would like to thank Roger Zeperneck, board member of the Pennsylvania Prison Society, for his guidance.)


  1. Carey, Naoka and Jody Kent Lavy. Juvenile Life Without Parole. National Association of Criminal Defense Lawyers (NACDL), 2011.
  2. Testimony of Anita D. Colón, MHS Pennsylvania Senate Judiciary Committee, July 12, 2012 As requested by Chairman Stewart J. Greenleaf on Miller vs. Alabama Supreme Court ruling, p. 4.
  3. Miller v. Alabama, No 10-9646, slip opinion, at 46 (U.S. June 25, 2012).







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