In Minnesota, those who commit certain serious crimes, including first-degree murder, must be sentenced to life imprisonment without the possibility of release. Since 2012, however, this statutory penalty has been unconstitutional as applied to juveniles.
In Miller v. Alabama, the U. S. Supreme Court held that the Eighth Amendment’s prohibition of cruel and unusual punishment forbids a sentencing scheme that mandates life in prison without the possibility of release for juvenile homicide offenders. Miller effectively struck down the majority of states’ juvenile sentencing statutes and required a proactive response from state courts and legislatures. (Cara Drinan, “Misconstruing Graham and Miller, 91 Washington University Law Review 785-87 (2014).)
In Minnesota, our courts have been grappling with the implementation of Miller. Nevertheless, subsequent efforts to change the Minnesota Heinous Crimes Act, and bring it into conformity with constitutional requirements, have languished in the Legislature.
In the meantime, those of us who have handled juvenile homicide offender cases — prosecutors and public defenders — have been litigating, and sometimes re-litigating, issues of first impression regarding juvenile sentencing. Under Miller and Montgomery v. Louisiana (2016), sentencing a juvenile to life without parole is excessive under the 8th Amendment for all but the rare juvenile offender whose crime reflects “irreparable corruption.” The court required that a sentence court follow a certain process and consider an offender’s youth and attendant characteristics and circumstances before imposing a particular penalty. But what constitutes “irreparable corruption”? What criteria should be used to determine whether a particular offender satisfies this standard?
As the courts answer these challenging questions on direct and collateral review, the lack of finality for crime victims and offenders has been difficult and poignant. The costs on the criminal justice system have been high. The courts have been deciding juvenile homicide offender sentencing issues on a case-by-case basis, but it is the Legislature that has the power to fashion statewide sentencing policy and leverage the expertise of key stakeholders in the criminal justice system. Minnesota is one of only nine states that has not acted in the wake of Miller to bring its sentencing statute into compliance with U.S. Supreme Court requirements.
In 2016, when I served as Minnesota State Bar Association president, I established a citizens’ commission to create solutions to this seemingly intractable issue. The Commission on Juvenile Sentencing for Heinous Crimes, chaired by Judge Kathleen Gearin (retired) and John Kingrey (retired executive director of the Minnesota County Attorneys Association), is composed of some of the most distinguished stakeholders in the criminal justice system from diverse backgrounds in law, politics, public safety, and academics—legislators, prosecutors, criminal defense attorneys, judges, and experts in corrections, child psychology, and neuroscience.
The commission met seven times between January and December 2017, conducting a comprehensive study of juvenile homicide offender sentencing and rehabilitation. It studied the history and development of juvenile Eighth Amendment jurisprudence, the response of the 50 states to Miller, the status of Minnesota’s offenders who were sentenced to life without the possibility of release as juveniles, the processes and procedures associated with trying juveniles as adults in Minnesota, the juvenile supervision system and criteria used to evaluate adult certification, the implications of neuroscience and adolescent brain development for juvenile sentencing and rehabilitation, and neuropsychological criteria for evaluating adult certification and rehabilitation.
The commission’s work involved much study, robust discussion, and consensus building regarding legislative options and the criteria for evaluating an offender’s youth and attendant circumstances and characteristics before imposing a particular sentence. Gearin observed, “Working on this commission renewed my belief that open minded, dedicated people from all parts of the criminal justice system can successfully work together to tackle a difficult issue and reach consensus for the public good. The participating legislators from both parties were a key part of the process.”
The commission ultimately identified two options for the Legislature to bring the Heinous Crimes Act into conformity with the United States Constitution. The Legislature could (1) amend the law to specify the factors that should be used to sentence juveniles who are convicted of crimes under the Heinous Crimes Act or (2) eliminate the sentence of life without the possibility of release for juveniles who are convicted of crimes under the statute and establish a sentence of life in prison with the eligibility for parole after a specific term of years.
If the Legislature chooses to retain the option of a life without the possibility of release sentence, the commission recommends that the Heinous Crimes Act be amended to provide that in determining whether a defendant should receive the sentence of life without the possibility of release, a court shall consider (1) the nature and circumstances of the offense, including any mitigating and/or aggravating facts; (2) the defendant’s age and intellectual capacity at the time of the offense; (3) the extent of the defendant’s participation in the offense; (4) the effect, if any, of familial pressure or peer pressure on the defendant’s actions at the time of the offense; (5) the defendant’s immaturity, impetuosity, or failure to appreciate risks and consequences at the time of the offense; (6) the defendant’s mental, emotional, and psychological health; (7) the defendant’s background, including his or her family, home, and community environment; (8) the nature and extent of the defendant’s prior delinquency and/or criminal history, and the defendant’s prior history of delinquency programming and treatment; and (9) any other circumstances relevant to the determination of irreparable corruption or transient immaturity.
The commission also recommends that prior to sentencing, a court must order a psychological evaluation or a psychiatric evaluation conducted by a licensed professional with expertise in forensic evaluations of juveniles.
The commission makes no recommendation on which option the Legislature should adopt. The commission is adamant, however, that the Legislature must act. The MSBA Assembly adopted the commission’s report at its December 2017 meeting. The commission’s recommendation that the Legislature take action to fix our unconstitutional statute is an MSBA legislative priority this session. The MSBA will work to educate members of the Legislature regarding the commission’s work, leaving it to the key criminal justice stakeholders to craft an ultimate statutory solution.
Although either option would redress our unconstitutional sentencing scheme, public defenders and prosecutors will be pursing the second option at the Legislature this session. “The Minnesota County Attorneys Association has previously supported legislation that would eliminate the sanction of life without release for juveniles convicted and sentenced as adults for first degree murder in Minnesota and establishing a sentence of life in prison with the possibility of release after 25 years in such cases, and we continue to support this option,” Dakota County Attorney James Backstrom stated.
Additionally, “In prior legislative sessions, we joined with the Minnesota County Attorneys Association in full support of legislation eliminating life without release for juveniles. We look forward to continuing our work on this issue with the MCAA, as well as other stakeholders, in the upcoming session,” stated State Public Defender William Ward.
Kingrey and Gearin expressed their appreciation to the commission membership in developing recommendations that would bring our statute into conformity with Miller, as well as the MSBA for identifying this issue as a legislative priority.
Members of the Commission on Juvenile Sentencing for Heinous Crimes
Chairs: Judge Kathleen Gearin and John Kingrey. Members: Justice Paul Anderson (retired), Thomas Arneson, James Backstrom, Jean Burdorf, Judge Bradford Delapena, Senator Dan Hall, Senator Jeff Hayden, Representative John Lesch, Shelley McBride, Kelly Mitchell, Perry Moriearty, Representative Marion O’Neill, Dr. Dawn Peuchold, Professor Francis Shen, John Turnipseed, William Ward, and Robin Wolpert.