‘This Comes Down to Who We Are as Americans’

Tell me how Human Rights for Kids advocates for juvenile justice, specifically ending harsh sentences like life without parole?

Our advocacy is done on a number of different fronts in the public education space, in direct advocacy in legislatures, and in the court system. Starting with the latter, we file amicus briefs in particular cases that come up before state and federal courts of appeal, arguing on behalf of children who may be subject to extreme punishments. We want to make sure that the court recognizes that there’s this evolving standard of decency that has taken place across the country as it relates to the way that children are being treated and the way that policymakers have begun to evolve their thinking on how kids should be held accountable. Those briefs have been really powerful. The one we filed in a prior case got cited by both the majority and the dissent in the recent U.S. Supreme Court case Jones v. Mississippi, which I think highlights how much of an impact the brief has had on the justices at the Supreme Court with helping to lay the groundwork for a renewed understanding for why it’s so important that there be constitutional protections in place for kids. 

On the policy front, we work alongside many different partners including the Campaign for the Fair Sentencing of Youth, who are the lead organization on a lot of the issues when it comes to extreme sentencing for youth. We provide testimony, talking about everything from juvenile behavioral development science to the legal dynamics that have shifted and evolved over the years, helping to make a compelling case to state policymakers for why reforms are so needed. 

And then we educate the American public as well as public policymakers on the reasons why it’s important not to sentence children to these extreme punishments. A lot of our work is centered around trying to bring U.S. policy in line with universally accepted human rights principles, particularly those found in the U.N. Convention on the Rights of the Child as well as the International Covenant on Civil and Political Rights, which we are a party to. Unfortunately, the U.S. has been really heavily criticized in recent years because we’ve been failing to live up to the standards of those international human rights principles. So we’ve been trying to bring that information to the American public so they understand we are out of line with the international community and we’re in violation of international human rights law when it comes to the treatment of children in the justice system. 

As you know, the U.S. Supreme Court took a step back with the recent Jones decision, saying that courts don’t have to find that a defendant is incorrigible in order to sentence him or her to life without parole. What are the implications of the ruling?

Obviously, we were disappointed with the ruling. We were hoping that the Court was going to require that judges have a factual finding of irreparable corruption before a child can be sentenced to life without parole. We’ve already seen, to some degree, the ramifications of not having that in place. Perhaps the best example was when, not even a week after that decision came down, Evan Miller, who is the namesake of the Miller v. Alabama decision, was resentenced to life without parole by a judge in Alabama. There are these national outlier states like Alabama where judges are rogue. They don’t frankly care about the human rights of children, and they’re willing to flout these constitutional requirements as well as these international human rights norms. Without proper guardrails, judges like that are going to sentence children to life without parole, which is one of the big overarching concerns. 

The biggest areas of worry are for people who were in situations like Miller where they hadn’t been resentenced yet. They were still awaiting resentencing, and so the question is how this will affect decisions that judges make as well as people who have gone through the resentencing, like Brett Jones. Despite overwhelming evidence that they weren’t irreparably corrupt, that they had been rehabilitated, and that they could safely be given that opportunity to demonstrate for a parole board that they’re fit to reenter society, they were still sentenced to life without parole nonetheless. 

The concern is particularly acute the younger you get with children. Miller and Jones were both 14 and 15 years old, respectively, which is pretty young. Most of the kids that we see in the system who are facing these sentences were 16 or 17 years old. When you start talking about eighth-graders, which is essentially what Miller was when he was sentenced to life without parole for the crime he committed, that is particularly disturbing. I think everyone should be shocked by it. Certainly we would define what happened to Miller as cruel and unusual punishment, even though the Court hasn’t made that direct determination yet. 

The ramifications are going to be most felt for people in that situation as well as for kids in states that allow life without parole when they’re being sentenced going forward. 

From a broader practical standpoint, the decision doesn’t have the same impact that it might have had had it been issued five or six years ago. Thankfully, in the nine years since the Miller decision, the number of states that ban life without parole more than quadrupled. Those are states as conservative as West Virginia, Utah, and Arkansas to as liberal as California, Vermont, and Washington. We saw this extraordinary movement away from these extreme punishments for children and the vast majority of children who were eligible for resentencing, both in states that have mandatory as well as discretionary life without parole, get the chance to be resentenced. 

One of the things that we argued to the Court in our brief in the Malvo case in 2019 was that the vast majority of states understood Miller and Montgomery as impacting kids that had been sentenced to mandatory as well as discretionary life without parole. They recognized that in order for a child to be sentenced to life without parole, there did need to be this finding of irreparable corruption. At that time, only six states that had not acted to give children the opportunity to be eligible for parole or to be resentenced to something other than life without parole. Between 2019 and 2021 when the Jones decision was announced, that number dwindled to four states. Both Virginia and Maryland banned life without parole retroactively for children in the last two years. There are only four states where the state Supreme Court hasn’t allowed resentencing to go forward, the legislature hasn’t acted, and people haven’t had the opportunity to argue for something other than life without parole. So from a practical standpoint, most of the kids in the country have already benefited from the decision and the broader interpretation of Miller and Montgomery. 

Where the ruling leaves us, though, is that child offenders’ fates are determined based on what state they are in when they commit a crime. We’ve created a system of ​“justice by geography.” Does that concern you?

For us, it’s one of the reasons why we view this through a human rights and constitutional lens, and they’re inextricably linked in that way. We’ve gotten to a point in this country where, at the very least, for kids under the age of 16, there’s a national consensus against sentencing them to life without parole. We would also argue that applies to 16 and 17 year olds as well. When the courts are doing this Eighth Amendment analysis of what constitutes cruel and unusual punishment, the overarching driver of that analysis is what the states have done from a policy and practice standpoint. When you’re looking at a dynamic where 25 states and D.C. have banned life without parole sentences for children, plus you have another six states that don’t have anyone serving and haven’t imposed that sentence, certainly that says to us that these life without parole sentences are inherently unconstitutional at this point in our nation’s history. 

This isn’t a liberal or conservative issue. When you have conservative states like Arkansas almost unanimously passing legislation to get rid of life without parole — the same thing in Utah and the same thing in West Virginia — that says something. This isn’t just a partisan issue that would traditionally give the Court pause. This isn’t an issue that comes down to political affiliation. This comes down to who we are as Americans. When you have individual states that have not come to that same sense of understanding, that have not embraced that same basic logic about the fact that children are different, those states become national outliers. 

It’s incredibly concerning when you have justice by geography and there are places in this country where states are tolerating these human rights abuses and constitutional violations against their children. That’s where the case becomes strongest for a federal intervention. 

I think the Jones decision is a lot more nuanced than people necessarily understand, so for that reason, we certainly hold out hope that the Court will eventually come down with a ruling completely eliminating life without parole as a violation of the Eighth Amendment’s ban on cruel and unusual punishment. 

Do you think there is hope with the Supreme Court? If the current court were presented with the right case on the constitutionality of juvenile life without parole, would we see a different type of ruling?

That’s a really complicated question. For so many of us — lawyers and advocates in the space — we’re so tunnel vision and focused on the outcome of each case that we don’t necessarily see the whole field and what it means. We try to take into account the nuance.

Another potential factor is the ideological differences about how the justices split from originalist to non-originalists viewpoints. The originalists tend to be more deferential to states, without making the determination on whether life without parole is a good thing or a bad thing. What that says to me is that there is still more work to be done from a policy standpoint in moving the states further along. But I do think there’s a threshold that we will get to where it will be undeniable for the justices to say this is a violation of the Eighth Amendment’s ban on cruel and unusual punishment. It very well could be that we’re there soon with a particular subset of child offenders, like children under 16. 

I tend to be an optimistic person, but I actually do hold out hope that this Court, even as it’s currently constructed, would in fact rule that — depending on the question presented — life without parole is unconstitutional for very young children. But also, I wouldn’t put it past this court to rule that it’s unconstitutional for all children under the age of 18. It might take a little more time for the Court to get there, but I do think it’s within the realm of possibility. 

What comes next when it comes to your work on this issue? Does it come down to starting to work on getting the right case before this Supreme Court? Or is there interest in advocacy in some of the states that remain outliers on this, like Illinois and Alabama?

On the litigation front, I do think it’s important for all litigators to take a step back, catch our breath a little bit, and recognize the tremendous progress that has been made in this space, and be a little more hesitant to bring cases right now. Introspection is good, and also taking time to strategize with national groups and think strategically about what is going to be helpful to the broader movement. 

One of our good conservative friends Marc Levin, formerly of Right on Crime, had a great piece in Newsweek where I think he really hit the nail on the head. The Court is in this wait approach. Let’s see how this continues to play out. We’ve seen tremendous progress when these questions have been presented to state lawmakers, and they have themselves been moving in this positive direction. Malcolm Gladwell talks about this idea of a tipping point, and I think we’re there right now. Over the next several years, we’re going to see more and more states continue to pass laws ending life without parole sentences for children. In the last year and a half alone, Virginia, Ohio, and Maryland all passed these laws. Just last week, we had a press conference with our partners where we unveiled federal legislation, including a bill by Congressman Bruce Westerman, a conservative Republican from Arkansas, which would ban life without parole sentences at the federal level. A few weeks before, Senator Durbin and Senator Grassley introduced the exact same provision on the Senate side in the First Step Implementation Act of 2021. We know there is broad bipartisan support in both the Senate and the House for ending life without parole sentences for children. We believe the federal government can and should do it in this Congress, and we’re going to continue to fight like hell to make sure that that happens. And at the same time as that’s happening, the work continues at the state level. 

The way that we are responding as a broader advocacy community to this moment is to just double down. We’re not going anywhere. This is the human rights fight of our lives.