Alabama, holding a mandatory sentencing scheme of life-without-parole for juveniles is unconstitutional under the Eighth Amendment.2 In order to determine whether a punishment is cruel and unusual, the Supreme Court ³ORRN>V@ EH\RQG KLVWRULFDO FRQFHSWLRQV WR WKH HYROYLQJ VWDQGDUGV RI GHFHQF\ WKDW PDUN WKH progress of a matuULQJ VRFLHW\ ´ Graham 6 &W DW LQWHUQDO TXRWDWLRQV RPLWWHG ³7KH basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised ZLWKLQ WKH OLPLWV RI FLYLOL]HG VWDQGDUGV ´ Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality RSLQLRQ 7KH DSSOLFDELOLW\ RI ZKDW LV FUXHO DQG XQXVXDO SXQLVKPHQW FKDQJHV ³DV WKH EDVLF PRUHV RI VRFLHW\ FKDQJH ´ Kennedy v. Louisiana, 554 U.S. 407, 419 (2008). We first note that Conley was born on May 14, 1992, and he murdered his brother on November 28, 2009. He was seventeen years, six months, and two weeks old. He pleaded guilty on September 13, 2010, and was sentenced on October 15, 2010, at the age of eighteen years and five months. Our review of other states reveals that the overwhelming majority provide for the possibility of LWOP sentences to individuals under the age of eighteen.3 These decisions have been made by the legislature. The legislature has made a policy decision that this is what we want to do. The Eleventh Circuit has written, ³the death penalty is not required to deter juveniles from committing murder because a life without parole sentence is deterrence enough, particularly for a juvenile.´ Loggins v. Thomas 654 F.3d 1204, 1223 (11th Cir. 2011). In Roper v. Simmons, 543 U.S. 551 (2005), the United States Supreme Court held that it was cruel and unusual punishment to sentence an individual under the age of eighteen to death. However, Roper recognized that life without parole was still a viable sentence for juveniles, noting the LWOP sentence was a severe enough sanction to not need the death penalty for juveniles. 543 U.S. at 572. The implication of Roper, then, is that a sentence of life without parole for a
2
We held Oral Argument on November 14, 2011, at Indiana University South Bend. The Eighth Amendment Constitutional issue had not been briefed by either party. We asked the parties to amend their briefs to address this issue. Briefing was completed February 28, 2012. 3
Only Alaska, Colorado, Kansas, Kentucky, Maine, Montana, New Mexico, New York, Oregon, Texas, and West Virginia do not allow for LWOP sentences for those under the age of 18. National Conference of State Legislatures, Juvenile Life Without Parole (JLWOP), February 2010, (available at www.ncsl.org/documents/cj/jlwopchart.pdf) (last viewed June 27, 2012).
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