By Matan Kotler-Berkowitz and Elijah Wiesman on November 12, 2020.

Click here for PDF version.

Introduction

A. Brett Jones

On August 9th, 2004, fifteen-year-old Brett Jones was attacked by his grandfather.[1] Backed into a corner, Jones stabbed his grandfather eight times with the object he had in his hands at the time, a steak knife.[2] He then unsuccessfully tried to perform CPR to save him.[3] Jones was subsequently convicted of murder and sentenced to life in prison.[4] The Mississippi Circuit Appeals Court upheld his sentence on appeal.[5]

While Jones was in prison, the United States Supreme Court ruled twice on the issue of juvenile life without parole sentences.[6] First, the Court held that sentencing juveniles to life without parole may violate the Eighth Amendment, which bars capital punishment for children and prohibits a sentence of life without the possibility of parole for a child who committed a nonhomicide offense[7] and second, that the initial ruling applied retroactively,[8] including to Jones’s case. The rulings did not ban life without parole sentences for juveniles outright; rather, life without parole sentences were reserved for the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.[9] The rulings, however, provided no guidance on the parameters of either term, instead leaving the structure and substance of such a determination up to the states. The Court was inconsistent in defining who might be eligible for life without parole[10] and gave no evidentiary standard for sentencing hearings.[11]

When Jones appealed his sentence a second time he was found incorrigible and once again told that he would remain in prison for life.[12] In its decision, the court ignored a wealth of mitigating factors, including that he committed his crime when he was a child, he was abused as a young child and abandoned by his mother, and he had a family history of mental health issues.[13]Most importantly, the court disregarded how Jones had been a model inmate for the decade that he had been incarcerated: he had earned his GED, was involved in only one disciplinary incident in twelve years (in a prison rife with gang violence), and he was actively working with a psychologist to address his mental health issues caused by his history of abuse.[14] Despite the clear evidence of Jones’s progress, the sentencing authority held the ultimate power to decide arbitrarily that, based on his early malfeasance, Jones would not develop into a reformed member of society, and that his actions reflected “irreparable corruption”[15] rather than “transient immaturity.”[16] Without considering any of those factors, the court declared that Jones was permanently incorrigible, affirming Jones’s sentence to die in prison for a crime he committed as a child.[17]

B. Framing the Article

Over the past two decades, a number of Supreme Court cases have defined the constitutionally permissible parameters for sentencing juvenile offenders who have committed the most serious crimes.[18] Recognizing that children and adolescents are distinct from adults, the Court first declared the death penalty for juveniles “cruel and unusual” and thus unconstitutional.[19] The Court subsequently concluded that sentencing a juvenile to life in prison without the possibility of parole was also unconstitutional, but with one critical caveat—if the court found the child to be “incorrigible” that child could be sentenced to die in prison.[20]

The “incorrigibility” standard, which Miller v. Alabama alluded to and Montgomery v. Louisiana expounded upon, states that life without parole is a constitutional punishment for the “rare juvenile offender whose crime reflects irreparable corruption.”[21]By setting this standard, the Court requires trial courts to find juveniles “incorrigible” before sentencing them to life without parole. Such a standard forces trial courts to accurately predict the future and discern whether or not the juvenile will ever be redeemable.

This Article argues that the incorrigibility standard is harmful, unscientific, and arbitrary, and thus unconstitutional. It discusses the history of children being treated differently from adults with regards to criminal punishment and explores the vast scientific literature which demonstrates that incorrigibility is an unprovable, arbitrary, and nonsensical standard to apply to children. Next, this Article argues that these aspects, taken together, amount to a violation of the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment. Lastly, the Article addresses possible stare decisis arguments that may be raised in the course of overturning part of the holding of Miller v. Alabama and argues that such a ruling would not have significant stare decisis or workability issues.

I. Children Are Different from Adults in the Eyes of the Law

In recent years, the Supreme Court has held that children are a distinct class of individuals who ought to be treated differently in the eyes of the law, specifically with respect to punishment for heinous crimes that might otherwise warrant harsh sentences including death or life without parole.[22]

The Court first adopted this reasoning in Roper v. Simmons, in which it declared that the death penalty for juveniles is unconstitutional.[23] It held that “three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders.”[24] All three distinctions—lack of maturity, susceptibility to peer pressure, and transitory personality traits[25]—are based upon the well-established scientific findings that a child’s brain does not fully develop until their mid-twenties.[26] This was the first time the Court considered scientific evidence of adolescent brain development in ruling on a case regarding criminal punishment for minors.[27]

It was also in Roper, however, that the Court broached the possibility that some crimes committed by juveniles “reflec[t] irreparable corruption.”[28] Curiously, the concept was introduced even as the Court acknowledged that “it is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”[29] While the Court seemed to understand that distinguishing between “incorrigible” juveniles and those capable of rehabilitation is “difficult even for expert psychologists,” it still held that some children are definitively beyond repair.

Nonetheless, the Court continued to distinguish between children and adults in Graham v. Florida, in which it found life without parole sentences unconstitutional for juveniles in all non-homicide offenses.[30] The Court held that the decision as to whether a “juvenile offender forever will be a danger to society [would require] mak[ing] a judgment that [he] is incorrigible.” However, the Court again amplified its rejection of “incorrigibility” in children when it cited a state court ruling which held that ‘‘incorrigibility is inconsistent with youth.”[31] In doing so, the Court indicated that incorrigibility as a concept simply cannot be applied to juveniles, seemingly contradicting their logic in Roper that incorrigibility was workable. The Court went on to refer to the same factors cited in Roper, and reiterated that children must be considered inherently less culpable[32] due to their greater capacity for change.[33] Because “the concept of proportionality is central to the Eighth Amendment,”[34] the Court established the principle that “[a]n offender’s age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.”[35] In doing so, the Court opened the door to a myriad of cases differentiating between children and adults.[36]

The first of such cases was Miller v. Alabama, in which the Court ruled that the Eighth Amendment forbids the sentence of life without parole for most juveniles, including those who committed homicide, so long as the Court takes into account the inherent attributes of youth.[37] The Court reasoned that since “we viewed this ultimate penalty [life without parole] for juveniles as akin to the death penalty, we treated it similarly to that most severe punishment.”[38] Miller acknowledged numerous additional reasons that children’s actions are significantly less likely to be “evidence of irretrievabl[e] deprav[ity],”[39] including that children cannot control the environment in which they reside to the same extent that adults can, and that they lack the ability to comprehend the consequences of their actions.[40] Thus, when the Court’s rulings on the matter are taken in concert, it is clear that the Court understands that there are simply too many determining factors by which a child’s mental capacity differs from that of an adult’s to be considered under the same set of legal parameters. Nonetheless, the Court chose to keep the possibility of life without parole on the table for those deemed incorrigible.[41]

The Court subsequently ruled in Montgomery v. Louisiana that the holding in Miller applied retroactively. All offenders sentenced to life without parole as juveniles before Miller would be granted the opportunity for parole if it could be determined that they were not incorrigible at the time of their conviction. Emphasizing the necessity of providing parole for juveniles sentenced to life in prison, the Court reminded sentencing authorities that many juvenile crimes simply reflect “transient immaturity,”[42] and that when an inmate would be eligible for parole they may “have since matured.”[43] The Court thus acknowledged that the majority of juvenile crimes are a result of inherent immaturity and not deserving of the harshest punishment otherwise available.

In Montgomery, the Court also insisted that incorrigibility, which it had recently understood to be “inconsistent with youth,” is in fact a constitutionally-sound standard. It held that Miller prohibited life without parole “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”[44] Thus, by admitting that distinguishing between incorrigible youth and those capable of rehabilitation is nearly impossible, while also allowing sentencing courts to find certain children to be incorrigible, the Court thoroughly confused the issue. It provided no clear definition of incorrigibility, no reliable process for making such a finding, nor any standards by which lower courts should proceed, thus, making way for potentially unchecked racially biased sentences. This vague standard and absence of procedure has yet to be clarified by the Supreme Court; the latter is the issue that Jones seeks to rectify in his case by petitioning for a formal fact-finding requirement to determine his incorrigibility at the time of the crime.[45]

In summary, since Roper v. Simmons, the Court has defined children as a distinct class, to be punished differently under the law due to their developmental differences. In recent years, the Court has banned the death penalty for juveniles and outlawed life without parole sentences for all juveniles, except for those deemed to be incorrigible by the sentencing authority.[46] This begs the question: Is it scientifically impossible, or simply difficult, to predict whether a juvenile will remain irreparably corrupt for the duration of their lifetime?

II. Incorrigibility Is Impossible to Prove in Children

There is a broad scientific[47] and legal[48] consensus that it is impossible to predict incorrigibility in children and adolescents. In Section II.A we note the differences between juvenile and adult brains. We explore the ways in which these developmental discrepancies in adolescent brains lead to increased risk-taking and criminal behavior without such behavior usually persisting into adulthood. While there are some juveniles for whom such behavior persists, as we show in Sections II.B and II.C, extensive studies— many of which the Supreme Court has relied on[49]— demonstrate the impossibility of predicting future incorrigibility from both a psychological and sociological perspective.

A. Difference in Adolescent Brains

Structural and functional changes occur in brains during adolescence and young adulthood.[50] While undeveloped adolescent brains contain plenty of dopamine, sometimes referred to as the “engine” of the brain, they lack a fully functioning prefrontal cortex, which works as the “breaks” to help the brain make deliberate choices.[51] Thus, children are more likely to engage in risky or criminal behaviors without such behavior persisting into adulthood.[52] This fact has been widely accepted, both scientifically[53] and by the Court.[54] This characteristic of adolescence applies to smaller-scale criminal activities, such as shoplifting or trespassing, and to more serious offenses for which a juvenile could be labeled incorrigible, such as murder. Most serious juvenile offenders, like their smaller-scale counterparts, tend to stop their criminal activities over time,[55] but it remains impossible to reliably predict whether such criminal behaviors will in fact stop.[56]

B. Psychological Difficulties in Predicting Incorrigibility

A wide range of psychological studies have been conducted to explore the prediction of incorrigibility in juveniles. One such study found that “there is currently no basis in current behavioral science nor well-informed professional knowledge that can support any reliable forensic expert opinion on the relative likelihood of a specific adolescent’s prospects for rehabilitation at a date that may be years to decades in the future.”[57] Indeed, in the vast majority of cases, forensic mental health experts (“FMH experts”) are left guessing as to whether a juvenile would recidivate if released from jail in the future. In fact, FMH experts have been forced to conform to a system[58] in which they are not fully able to carry out their duties, considering that no scientific method exists for predicting incorrigibility with any degree of accuracy. FMH experts have attempted to create metrics[59] that might predict a juvenile’s ability to reform, but the research to support these metrics is extraordinarily slim.[60]

C. Sociological Difficulties in Predicting Incorrigibility

In addition to neurological and psychological attempts to predict incorrigibility, some studies approach the problem from a sociological perspective. These studies attempt to use the offender’s life circumstances and previous behaviors to predict future violent behavior.

One such study examined a wide range of factors, including individual medical and physical factors, individual psychological factors, family factors, school factors, peer-related factors, community and neighborhood factors, and situational factors.[61] This study found a correlation between certain factors present in childhood and adolescence and later violence. For instance, poor academic standing, early childhood aggression, and poverty led to an increased likelihood of being arrested for violent crimes later in life.[62] However, this study examined trends over a large set of data, and as such, it cannot predict that such a crime will undoubtedly occur by an individual. Additionally, the study did not find any unique combination of factors where one would be able to predict an individual’s incorrigibility with any reasonable certainty.

Another study examined the real-world limitations of predicting future violent behavior in the criminal justice system. The study analyzed the predictions of future dangerousness of adult inmates sentenced to death in the Texas prison system.[63] It concluded that the experts who were tasked with predicting “future dangerousness” of those convicted were wrong ninety-five percent of the time.[64] This study represents the near-impossibility of predicting the potential for reform in adults. Since an adolescent’s future behavior is widely recognized to be unpredictable,[65] whereas adult behavior is understood to be more stable, the rate of error for juveniles is likely even higher.

These studies highlight the two fundamental problems with using sociological studies and statistics to predict incorrigibility. First, attempts to predict future incorrigibility has had extremely high error rates. Second, even if a study with a significantly lower error rate existed, the Supreme Court has held, in McCleskey v. Kemp, that courts should not use statistical trends to prove a particular point about an individual’s case.[66] If the Court is to apply the same logic to incorrigibility, studies analyzing large pools of adolescents cannot be used to say decisively that a certain juvenile will be incorrigible. While these studies are vital in developing intervention programs to decrease the likelihood of violence for at-risk juveniles, they simply cannot be applied to predict which at-risk juveniles will be forever incorrigible in a court of law. Therefore, the question remains: Is it constitutionally problematic that incorrigibility is a standard that lacks scientific backing?

III. The Incorrigibility Standard Violates the Eighth Amendment

A. Scientific Fact-Finding Criteria for Incorrigibility Designations Are Constitutionally Mandated, but Are also Impossible

When the Supreme Court created the incorrigibility standard, it failed to define incorrigibility and it failed to give any sentencing guidelines.[67] In states that have not independently adopted a fact-finding burden, it is possible that judges can declare a juvenile “incorrigible” without any objective measurement. This often leads to subjective and racially disparate outcomes. Such arbitrariness and lack of an objective standard is a violation of the Eighth Amendment. At the same time, the creation of any such standard (which would make an incorrigibility finding constitutional) is a scientific impossibility.

1. Lack of Fact Finding Requirement Violates Non-Arbitrary Criminal Punishment Requirement

A series of rulings on the constitutionality of the death penalty during the 1970s first established the nonarbitrary requirement for criminal punishments. First, in Furman v. Georgia, the Court issued a de facto moratorium on the death penalty for all states.[68] It held that the death penalty, as currently applied, was in violation of the Eighth Amendment.[69] While the per curiamopinion did not specify why the death penalty violated the Eighth Amendment, Justice Stewart’s concurrence stated that it was due to the arbitrary nature of its application.[70] Later, in Gregg v. Georgia, the Court addressed the constitutional concerns in Furman and declared that the statutory system under which Gregg was sentenced to death did not violate the Constitution.[71]The case found that the death penalty could not be imposed under sentencing procedures that created a high risk of arbitrary and capricious implementation.[72] Thus, where there is discretion for a death penalty sentence, discretion must be directed and limited so as to minimize the risk of arbitrary and capricious action.[73]

With the creation of the incorrigibility standard, the Court has created a situation similar to those that existed pre-Furman. Pre-Furman death penalty sentencing schemes did not limit the conditions under which a person could be sentenced to death, instead allowing the jury complete discretion to apply the death penalty at will, a violation of the Eighth Amendment. Similarly, the incorrigibility standard does not set any standards by which a juvenile might be declared incorrigible, and instead allows a judge to do so arbitrarily. According to the Court’s precedent in Gregg, a sentencing scheme cannot be applied arbitrarily; it must have objective criteria to “direct and limit” its application. Thus, the Court is obliged to either create objective criteria to direct and limit incorrigibility findings for juveniles or instruct states to do so.

In his Furman concurrence, Justice Brennan noted that the reason then-existing death penalty sentencing schemes were problematic was because “the State may not arbitrarily inflict an unusually severe punishment”(emphasis added).[74] The death penalty is unusually severe for adults and used as a last report punishment as evidenced by the fact that it is not applied in the vast majority of cases. While, for adults, life without parole sentences may not qualify as unusually severe, they do for juveniles. AfterRoper, life without parole is the most severe sentence available for juveniles. Indeed, the Miller Court likened the death penalty to life without parole for juveniles.[75] When the Court’s logic in Miller is taken in concert with the Court’s semantical logic in Furman, it would appear that life without parole for juveniles is an “unusually severe” punishment, and therefore cannot be inflicted in an arbitrary manner.

While—in most circumstances—judges are granted wide discretion when sentencing convicted criminals, the incorrigibility standard is not subject to this discretion. For example, the advisory Sentencing Guidelines are exempt from a void-for-vagueness challenge.[76] The guidelines allow for terms which are not well defined, as sentencing guidelines are primarily advisory, and do not necessarily constrain the judge’s discretion. However, the Court has held that vague criminal classifications that enable a judge to impose harsher sentences than would normally be allowed do not fall under the judges’ discretion, and are unconstitutional.[77]Such vague classifications are forbidden because they allow judges to arbitrarily decide which individuals fall under the category in question. The incorrigibility standard meets this criterion because it also vaguely defines a class of criminals that allows judges to impose harsher sentences on juveniles than would otherwise be allowed.

2. Lack of Fact-Finding Requirement Undermines Miller and Montgomery

The lack of a fact-finding requirement under the incorrigibility standard also effectively undermines the holding of Miller and Montgomery. In Miller, the Court held that sentencers must “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”[78] If sentencers are able to declare a juvenile incorrigible without any basis, the sentencer is free to ignore the requirement of “tak[ing] into account how children are different,” thus transforming incorrigibility into a meaningless label.[79] Therefore, it is the duty of the Supreme Court to clarify their rulings in Miller and Montgomery in order to maintain the integrity of the judicial system by explicitly enforcing a formal incorrigibility finding requirement.

This wealth of precedent clearly establishes that either the Supreme Court or the states must create fact-finding criteria to “direct and limit” incorrigibility determinations. However, these precedents simultaneously reveal the fundamental problem with the incorrigibility standard. The scientific literature demonstrates that there is simply no objective, scientifically sound criteria that can be used to label a child incorrigible.[80] Because a designation of incorrigibility is a scientific impossibility, no court could apply such a designation as it would be arbitrary and thus, unconstitutional.

B. The Incorrigibility Standard Violates the “Evolving Standards of Decency”

Sentencing children to die in prison also violates the “evolving standards of decency,”[81] the standard by which the Eighth Amendment’s definition of “cruel and unusual punishment” is measured. Standards of decency in our society once allowed for the execution of children. However, such executions were outlawed in Roper in part because the Court found they no longer met the country’s (and world’s) standards of decency.[82]

Today the world’s standards of decency decry sentences of life without parole for children. The United States is the only country in the entire world that still imposes such a punishment,[83] and the only country that has not ratified the United Nations Convention on the Rights of the Child, which prohibits life without parole for children.[84] Domestically, the Court often turns to state legislatures to measure the country’s current standards of decency.[85] In Roper, for instance, the fact that thirty states had independently prohibited the death penalty for juveniles contributed to their holding that the death penalty for juveniles was contrary to the current standard of decency.[86] Similarly, as of this writing, twenty-three states and the District of Columbia do not impose life without parole sentences for juveniles.[87] Indeed, over sixty percent of the country’s life without parole sentences since Miller have occurred in just three states: Louisiana, Pennsylvania, and Michigan.[88] Thus, only a handful of states in the country broadly apply life without parole sentences for juveniles, demonstrating that the current standard of decency in the United States does not tolerate such a punishment.

Moreover, the legal academic community, another group to which the Court has often looked for guidance,[89] relatively agrees that juvenile life without parole sentences should be abolished.[90] Extensive literature supports this point of view, and while the reasonings vary, the core idea that the sentence is either unconstitutional or outdated persists throughout.

IV. The Incorrigibility Standard Violates the Equal Protection Clause

In addition to violating the Eighth Amendment, the incorrigibility standard also violates the Equal Protection Clause of the Fourteenth Amendment. Labeling children as incorrigible disparately impacts African Americans, who are found to be incorrigible at a significantly higher rate than their white counterparts.[91] In fact, seventy-two percent of the juveniles found to be incorrigible since the Miller decision in 2012 have been African American,[92] but African Americans constitute a mere thirteen percent of the general population of the country.[93] Moreover, there is ample scientific evidence indicating that Black juveniles are often viewed as significantly more culpable for their crimes,[94] while their white peers are often let off the hook, or simply sentenced more compassionately, due to their life circumstances.[95] This disparity in the way that African American youths are viewed by many in our national culture is reflected in the sentencing decisions of judges throughout the country.

While not all laws that are applied unequally are unconstitutional,[96] the Court has found that laws that are fair on their face but discriminatorily applied can be a violation of the Equal Protection Clause of the Fourteenth Amendment.[97] Yick Wo v. Hopkins[98] states that:

There is nothing in the ordinances which points to such a regulation of the business of keeping and conducting laundries. They seem intended to confer, and actually do confer, not a discretion to be exercised upon a consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent not only as to places, but as to persons. . .The power given to them is not confided to their discretion in the legal sense of that term, but is granted to their mere will. It is purely arbitrary, and acknowledges neither guidance nor restraint.[99]

While a law may be facially neutral, if it is applied in an overwhelmingly discriminatory manner (borne of unfettered discretion conferred on the administrator), the law is unconstitutional.[100] In cases of incorrigibility, often the only difference between a juvenile being sentenced to life without parole and a juvenile given the possibility of parole is race; this is due to the unchecked power given to sentencing judges to make such a determination. Just as those administrators in Yick Wo were given indiscriminate latitude in determining who would and would not receive a permit, sentencing judges in this context are given indiscriminate latitude in determining who is or is not considered incorrigible. While the purpose of this Article is not to challenge the discretionary authority judges ordinarily have in sentencing hearings, the power to designate a child as incorrigible is of a different nature. Sentencing judges ordinarily have discretion to consider a range of subjective factors, such as an individual’s life circumstances and other mitigating and militating factors. A finding of incorrigibility, however, is fundamentally a factual determination. Because the Court and the states have not offered any guidance to judges in making such a determination,[101]judges are free to arbitrarily determine who is incorrigible. A finding of incorrigibility opens the door to arbitrarily apply a punishment that is harsher than would otherwise be permitted under the U.S. Constitution. Therefore, in cases involving an incorrigibility designation, this latitude given to judges leaves room for an arbitrary, unequal application of a facially neutral law.

In fact, the Court has held that the Equal Protection Clause of the Fourteenth Amendment “embodies a general rule that States must treat like cases alike but may treat unlike cases accordingly.”[102] In doing so, the Court further advances the idea that arbitrary distinctions between cases must not be the reason for differing outcomes. Thus, if there are two like cases regarding the incorrigibility of the defendant, but the African American juvenile is sentenced to life without parole, and the white juvenile is not, the Court must follow its own logic that this is an inherent violation of the Equal Protection Clause. Although McCleskey v. Kemp held that general statistics regarding the disparate application of a punishment based on race did not inherently necessitate the removal of such a punishment from the justice system altogether,[103] the incorrigibility standard is distinct in its arbitrary, factually indefensible nature. Indeed, in McCleskey the Court stated that racially charged jury verdicts were admissible because “the mode for determining guilt or punishment has been surrounded with safeguards to make it as fair as possible.”[104] That is to say, McCleskey addressed a punishment whose application through jury verdicts was standardized and regulated. However, in cases of incorrigibility, the defendant is not afforded the required safeguards that would protect against the disparate application of the standard,[105] and thus there exists an equal protection violation pursuant to Yick Wo.

V. Burden, Workability, and Overturning Precedent

As with any potential Supreme Court ruling that would overturn precedent, there is the issue of stare decisis. There is both a fear that such a ruling would create issues of onerous burden and workability as well as an institutional misconception of precedent.[106] The primary potential workability issue is that removing the incorrigibility standard would force states to resentence each of the individuals currently serving sentences of life without parole for crimes they committed as juveniles, which could place a burden on the justice system.

A. Burden and Workability

With regards to the potential impact of removing the incorrigibility standard, such a ruling can be structured in a way which would mitigate any potential adverse effects of the ruling. The Court could utilize the same standard as it did in Montgomery for dealing with such cases. In Montgomery, the Court stated that those sentenced as juveniles did not need to be resentenced in a formal hearing.[107] Rather, the possibility of parole could simply be added to their existing life sentence. The same mechanism could be applied to the sentences of those designated as incorrigible, currently serving life without parole, which the Court held did not “impose an onerous burden on the States.”[108]

Furthermore, the Montgomery ruling had the potential to affect up to 2,800 cases nationwide,[109] whereas this ruling is smaller in scope (fewer than 1,100 cases),[110] as it would only affect the rare offender already deemed incorrigible. Simply put, the potential burden of removing the incorrigibility standard would be far less complicated than the burden created by Montgomery.

Removing the incorrigibility standard would not only create fewer new problems, it would eliminate two significant burdens and workability problems created by the Montgomery ruling.

First, it would resolve a burden on the states that Montgomery created. As Justice Scalia noted in his dissent, Montgomery’s holding requires that a state determines whether the offender is incorrigible at the time of sentencing if the state wants to maintain their sentence.[111] A formal hearing would be required if states want to uphold life without parole sentences.[112] States now need to conduct new hearings for each individual who has been sentenced to life without parole as children, often needing to prove that a person was incorrigible at the time of their crime, decades after they were first sentenced.[113] As such, if the incorrigibility standard is nullified, this burden would be removed.

Second, the lack of guidelines surrounding incorrigibility has created a workability issue, as the states are split over the implementation of Miller. In many states, including Mississippi[114] and Idaho,[115] there is no requirement for an evidence-based determination of incorrigibility, and thus it is simply left up to the judge’s discretion to determine whether or not a child is beyond repair.[116] This often leads to a judge declaring a juvenile incorrigible without any fact finding to support that declaration.[117] In other states, including Georgia[118] and Illinois,[119] there is a requirement for formal proceedings to show mitigating circumstances or incorrigibility factors, and in others, such as Massachusetts,[120] where the incorrigibility standard has been declared unconstitutional completely.

The reason for these differences is clear: in the words of the Illinois Supreme Court, “these cases present a difficult issue because the pertinent United States Supreme Court opinions [Miller and Montgomery] are not models of clarity [regarding incorrigibility].”[121] Because of this lack of clarity, state courts have difficulty applying Miller and Montgomery in a consistent and fair manner. Accordingly, removing the incorrigibility standard would resolve these workability issues created by Montgomery.

B. Overturning Precedent

There is also the issue of the Court’s inherent unwillingness to overturn the precedent itself. It is certainly true that removing the incorrigibility standard would overturn the precedent in Miller, which set that standard less than a decade ago. However, while it would be overturning the specifics of the previous ruling, it would be in line with the spirit of Miller, and in line with the direction the Court has gradually been moving to over the last fifteen years.[122]

The Court’s progression from Roper through Montgomery to gradually stricter limits on juvenile sentencing, as well as its hesitancy to wholeheartedly endorse the notion of incorrigibility,[123] shows that this further limitation would be following in the path the Court has already set out. Removing the incorrigibility standard would indeed be in line with the essential holding of Miller: “children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”[124] In this way, a ruling to remove the incorrigibility standard would not be directly overturning the principles underlying Miller’s precedent, but rather continuing in the Court’s progression towards “the evolving standards of decency that mark the progress of a maturing society.”[125]

Indeed, Miller overturned precedent in the same manner that removing the incorrigibility standard would. The precedent that life without parole was constitutional for homicide offenses was set by Graham only a few years prior, and Miller removed that restriction, thereby overturning the holding of Graham. In much the same way, the precedent that life without parole is constitutional for those deemed “incorrigible” was set by Miller and would be overturned by this hypothetical ruling removing the incorrigibility standard.

C. Consistency with the Government’s Treatment of Children at Large

Removing the incorrigibility standard would more closely align the Court’s rulings with children’s treatment under federal and state guidelines, as well as the Court’s own longstanding holdings on the issue.

One way that the United States federal government—and every single state government—acknowledges juvenile neurological differences is through compulsory education legislation. The governments contend that if a child is not fully developed, it is mandatory that they be in school so that they can rely on their educators to “prepare students to live a productive life and become good citizens, while obeying the social and legal rules of society.”[126] Indeed, Shannon Lewry of the Notre Dame Law Review observes that, the commonly held belief that children are in need of adult supervision and developmental assistance until the age of eighteen is at odds with the Supreme Court’s holding that there are certain juveniles incapable of further development.[127] Compulsory education laws even extend to juveniles who are incarcerated in nearly every state, further demonstrating society’s belief that children—even those incarcerated—require and deserve guidance and education to develop into functioning adults.[128] Finally, the fact that states see fit to educate children even in prison further supports the claim that the widespread standard of decency in the United States embraces the idea that children are both worthy of growth and capable of change.

Additionally, the Court’s prior rulings consistently maintain that juveniles are a distinct class, in cases which extend far beyond the Eighth Amendment, noting that “‘our history is replete with laws and judicial recognition’ that children cannot be viewed simply as miniature adults.”[129] For instance, the Court has held that a child’s age and immaturity must be considered in regard to police confessions[130] and to the reasonable person standard for negligence lawsuits.[131] None of these prior rulings note that certain children are incorrigible. Instead, these rulings all recognize that “the law has historically reflected the same assumption that children characteristically lack the capacity to exercise mature judgment and possess only an incomplete ability to understand the world around them.”[132] Simply put, kids have much to learn. An incorrigibility designation stands in contradiction to this, insisting that kids have learned everything they are going to.

Conclusion

When the Court set the incorrigibility standard in Miller, it created an unjust, unscientific, and wholly arbitrary system for sentencing juveniles to life in prison without the possibility of parole. The standard forced sentencing courts to predict how a child will behave many decades in the future, which is contrary to the overwhelming evidence regarding the nature of adolescent offenders. Therefore, this standard violates the Eight Amendment and the Equal Protection Clause of the Fourteenth Amendment, and condemns children, who are potentially capable of reform, to die in prison. The Court should correct this unconstitutional punishment by removing the incorrigibility standard and banning life without parole sentences for all minors.