By John Weston Parry, J.D.
During this election season, income inequality, the destructive remnants of slavery, unfairness in how the police and prosecutors enforce the laws against people of color, and harsh and abusive immigration policies and proposals have received most of the media’s attention. In many ways, however, these travesties and indignities pale in comparison to the destructive impact of the collective forces that have made it extremely difficult, if not impossible, for many American children to escape lives of poverty, incarceration, and crime. As with Americans who have severe mental disabilities, being a juvenile in need is an extremely distressing and often dangerous proposition, for them and society.
It often seems as if we would rather send aid to other nations to support our often misguided and sometimes corrupt foreign policy initiatives, then to meaningfully address a social cancer that for many years has been devouring a substantial part of our future generations. Whether it is because of deficits in health care, education, income, safety, security, family supports, and/or opportunities for growth and prosperity, we consistently deprive, neglect, and abuse large segments of our infants and children. We even do this to our own offspring at times, but most of all we do it to those children who appear to be different from us. This level of mistreatment is similar to the dilemma that befalls persons with mental disabilities.
As with people who have severe mental disabilities, we push children in need headlong into lives of poverty, addictions, incarceration, and/or crime from which only the relatively lucky few emerge unscathed. Many even end up in solitary confinement for no better reason than it’s more convenient for prison administrators. We have done this generation, after generation, after generation. In the process, almost every segment of our society, including those segments where the abuse, neglect, and inequality have been most rampant, have developed their own socio-economic-political explanations of why the human carnage is someone else’s responsibility or fault.
The fact of the matter remains that this carnage is all our responsibility and fault, much like the conditions that produced the Holocaust were not only the responsibility of Germany, Japan, Italy, and the Vatican, but also most of the people in Europe and United States. What ultimately separated the Allies from Nazi collaborators was what those countries did—and were willing to do—to bring an end to the Holocaust and restore Germany and Japan to normalcy within the world community after World War II had ended. Those were difficult choices with compelling rationales for doing what human decency required.
What has been happening to American children in need and people with severe mental disabilities has been an ongoing travesty spanning more than half-a-century. The worst results have been death, catastrophic disability, and indeterminate, prolonged incarceration in circumstances that are unconscionably inhumane. The paths of juveniles in need and people with severe mental and physical impairments have been closely aligned. A high percentage of those who were neglected and abused have been dumped into our criminal justice system serving lengthy periods of incarceration, despite their obvious diminished culpability and care and treatment needs.
Today, the states and the federal government have an opportunity to reverse a major miscarriage of justice that juveniles in need and people with severe mental disabilities face in the criminal justice system. For more than half a century now, many millions of defendants with diminished culpability have been deprived of substantive due process because their sentences have not been proportional to their crimes. Instead, courts have tended to increase the length of time that these vulnerable defendants must spend incarcerated because they are presumed to be particularly dangerous or they have nobody in their corner to help them fight back. They become disposable human commodities.
Montgomery v. Louisiana Summary
Justice Kennedy’s opinion in Montgomery v. Louisiana, No. 14-280 (U.S. Sup. Ct., Jan. 25, 2016), provides a legal framework that could spark judicial and legislative sentencing reforms on behalf of juvenile defendants and those with severe mental disabilities based on the once vital Anglo-American legal concept of diminished culpability. It posits that punishment should be proportional to blameworthiness after accounting for any demonstrable, psychological factors—typically developmental immaturity and/or mental disorders—that limited the defendant’s awareness and/or decision-making abilities in committing the crime(s) charged.
Montgomery decided the narrow legal question of whether states must apply the Supreme Court’s decision in Miller v. Alabama, 567 U.S. ___ (2012), retroactively. In Miller the Court ruled that the Eighth Amendment’s prohibition on cruel and unusual punishment barred states from mandating life sentences without parole for defendants who were juveniles when they committed their crimes. In a 6-3 opinion, written by Justice Kennedy, the Montgomery Court decided that states are required to implement the constitutional principle of Miller retroactively.
Chief Justice Roberts, along with Justices Ginsburg, Breyer, Sotomayor and Kagan, joined Kennedy to form the Court’s majority. None of those justices filed concurrences, meaning they signed on to Kennedy’s entire opinion, word for word. Justice Scalia, however, filed a vigorous dissent, joined by Justices Thomas and Alito. Justice Thomas also dissented individually. The dissenters opined that the Court lacked jurisdiction to make any such ruling, which would interfere with the right of states to implement collateral constitutional matters as they see fit. This the dissenting justices said should be the result even if doing so denied this new constitutional right to defendants, who had been sentenced before Miller was decided.
The facts of the current case were important. Montgomery, in 1963 as a 17-year-old had killed a deputy sheriff in Louisiana. He was found guilty under a verdict of murder without capital punishment, which in that state meant that he automatically received a life sentence without parole. In those days, Montgomery probably had been fortunate not to have received the death penalty, even though he had been a juvenile.
Montgomery claimed that for nearly fifty years he had done everything he could to rehabilitate himself. Thus, he sought the opportunity to demonstrate that he deserved parole after becoming a model prisoner. He filed for relief with the state to challenge his mandatory life sentence. The Louisiana Supreme Court rebuffed his application, ruling that Miller did not control because how Louisiana chose to implement this new constitutional right was a collateral matter for the state to decide.
On direct appeal the threshold issue was whether the U.S. Supreme Court had jurisdiction to decide the case. Six justices determined that the Court had jurisdiction. The majority disagreed that how states choose to retroactively implement Miller, which bars them from issuing a mandatory life sentences without parole to juveniles, is a collateral matter. Those sentencing decisions implicate “substantive constitutional rules,” regarding the protected constitutional status of juvenile defendants.
The majority cited Penry v. Lynaugh, 492 U.S 302, 330 (1989), in which the Court had assumed jurisdiction of that case to decide an issue involving the constitutional status of defendants with mental retardation (now intellectual disabilities). There the majority had denied the constitutional right of defendants with mental retardation not to be executed, which thirteen years later was overruled in Atkins v. Virginia, 536 U.S. 304 (2002). The Supreme Court had jurisdiction in this case for similar reasons because the issue to be decided involved the constitutionally-protected status of being a juvenile.
The majority then determined that denying a defendant, who had been a juvenile when he committed his crime, all opportunities to challenge the life sentence he had received was a substantive constitutional violation. This was because the Supreme Court had determined that the law under which he had been sentenced was null and void. The status of juveniles being constitutionally different in terms of culpability had been established in a string of Supreme Court decisions beginning with Roper v. Simmons, 543 U.S. 551 (2005) and Graham v. Florida, 560 U.S. 48 (2010). Together those two cases bar the execution of juveniles under any circumstance and life sentences for juveniles who have committed non-homicide crimes. Like Roper and Graham, Montgomery was “`fac[ing] a punishment that the [state]… cannot impose on him.’”
At the same time, there would be no “onerous burden” on the states to rectify these continuing injustices. All the states have to do is afford juveniles like Montgomery the opportunity to challenge their life sentences with evidence that demonstrates they have changed enough in positive ways to justify their being paroled. Such an opportunity would allow those inmates to test the underlying rationale of Miller that even juveniles who have committed awful crimes are capable of change. For many years this was a central tenet of American law, and continues to be in most industrialized nations.
Moving Diminished Culpability Into the Twenty First Century
Justice Kennedy’s opinion in Montgomery establishes a potential framework for moving the legal concept of diminished culpability into the Twenty First Century, consistent with the best evidence from social science. Legal recognition of diminished culpability would not only benefit juveniles, but also persons with severe mental disorders as the American Bar Association, the American Psychiatric Association, and the American Psychological Association have long recommended.
The symmetry between the diminished culpability of juveniles, due to their developmental immaturity, and of persons with mental disorders due to cognitive deficits and impairments, may not be perfectly aligned, but it is very close, conceptually. This is why Kennedy’s opinion repeatedly makes persuasive analogies to landmark Supreme Court decisions involving persons with mental disorders. Penry and Atkins both involved defendants with intellectual disabilities. Ford v. Wainwright, 477 U.S. 399, 416-417 (1986), established a constitutional prohibition against executing defendants while they are mentally incompetent, but, as with Atkins, unwisely left it to the states to determine how that prohibition should be implemented.
Such reflexive deference has resulted in those states that still have the death penalty competing to figure out innovative ways that would allow them to execute defendants, despite their severe mental impairments. That judicially-invented loophole should be closed when it is being used in such a cavalier manner to allow states to circumvent the Constitution. It also results in constitutional rights being substantially different based on the state involved.
While this deference to states in implementing constitutional rights has produced many injustices, so has the incremental nature of constitutional developments based on Supreme Court precedents. Surely if it is unconstitutional to execute persons with narrowly defined intellectual disabilities and juveniles, it also should be unconstitutional to execute people with severe mental disorders who have cognitive impairments or deficits that surpass what is likely to be caused by developmental immaturity alone.
For instance, the close legal parallel between juveniles and persons with intellectual disabilities due to their shared developmental immaturity should be readily apparent. Unfortunately, the law only recognizes an intellectual disability as grounds for reducing culpability in capital cases if it occurred before the defendant turned 18, whether or not the degree of diminished culpability is the same or greater for someone who is similarly impaired after they turn 18. That makes little sense. Furthermore, there are close parallels between those who are developmentally immature and people with severe mental disorders more generally, if the measure is how their impairments can diminish culpability. In fact, the cognitive deficits associated with these disorders can be considerably more incapacitating than developmental immaturity by itself.
Moreover, all three of these groups of individuals—juveniles, people with intellectual disabilities, and people with other mental disorders—have certain things in common that have contributed to them being sentenced to excessive periods of incarceration within the criminal justice system in inhumane circumstances:
- despite their developmental and other cognitive limitations, when they are sentenced for a crime, their diminished culpability generally is not recognized, or is ignored based on some legal fiction;
- they are members of vulnerable populations that historically have endured abuse, neglect, and discrimination;
- they often are presumed to be especially dangerous without any substantive justification; and
- it is likely that they would be perceived as considerably less dangerous, and thus more deserving of parole or conditional release, if they received appropriate rehabilitation, care, and treatment, which is rarely available.
Given these similarities, it should not be surprising that the majority’s opinion in Montgomery could easily apply to all of these vulnerable populations, not just juveniles. The Court’s rationale should be viewed expansively, which is exactly how the dissenters interpreted Kennedy’s words. Justice Scalia observed, sarcastically, that “as we know, the Court can decree anything,” while Justice Thomas complained that the Court’s reasoning “lacks any logical stopping point.”
For too long the criminal justice system, with the Supreme Court’s assistance, has been obsessed with maximizing sentences and denying release to anyone who is perceived as being potentially dangerous, even if that perception has no meaningful basis in fact. The justices continue to hide behind the principle that their decisions should go no further than is necessary to decide a case, instead of doing what logic and clear thinking demand. In Miller, for example, the Court opined that:
“[S]entencing courts [must] consider a child’s `diminished culpability and heightened capacity for change’ before condemning him or her to die in prison….’ [A]lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect `irreparable corruption.’”
Yet, implicit in that passage are two logical fallacies. First, assuming culpability is diminished for juveniles due to their developmental immaturity—which social science and the Supreme Court have agreed upon—why should the American legal system continue to arbitrarily limit the reach of this type of diminished culpability to executions and life in prison? The concept should apply to all sentencing matters involving juveniles and people with intellectual disabilities.
Prior to the 1980’s, we had a juvenile justice system that implemented diminished culpability. Unfortunately, that system was unbalanced because it not only recognized diminished culpability, but arbitrarily provided that all culpability ended once a juvenile turned 21. In order to get past that counterproductive sentencing dynamic, the criminal justice system overreacted by creating a preposterous legal fiction: juveniles who commit serious adult-like felonies should be considered to be as culpable as adults and thus should be tried as adults. There is no logical reason why diminished culpability could not be applied today in a rational framework using a legal calculus that is consistent with what we know from social science and medicine about developmental immaturity and deficits in cognition.
Second, there is a corollary legal fiction that juries and judges have some sort of innate ability to decide what defendants are likely to be in the future with regard to their potential dangerousness and/or capacity to improve as human beings. There is no empirical evidence supporting the presumed accuracy, reliability, or validity of such predictions. In fact, the further in the future that such predictions travel, the more likely they are to be wrong because the variables increase and become more complicated. Better judgments are made based on what a person appears to be in the present, which has always been the primary purpose of hearings for parole or conditional release. Mandating juries and judges to make future predictions about circumstances that inevitably will change over time makes little sense, assuming justice is the preferred result.
The Court reasoned in Montgomery that “[p]rotection against disproportionate punishment is the central guarantee of the Eighth Amendment and goes far beyond the manner of determining a defendant’s sentence… `The concept of proportionality is central to the Eighth Amendment….’ [C]hildren are constitutionally different from adults for purposes of sentencing.’” The majority then identified “three primary” differences between juveniles and adults, which justify more lenient punishments. All of those differences generally apply to defendants with severe mental disabilities as well.
To begin with, juveniles “`lack… maturity and [have] an underdeveloped sense of responsibility,’ leading to recklessness,’ impulsivity, and heedless risk-taking.” In other words, their cognitive status is such that they are being pushed towards behaviors out of their control, which lead to antisocial actions. In addition, they “`are more vulnerable to negative influences and outside pressures…, have limited `control over their own environment’ and lack the ability to extricate themselves from… crime-producing settings.” Furthermore, their “character is not as `well formed’…, traits are `less fixed’ … and actions [are] less likely to be `evidence of irretrievable depravity.’” In other words, with rehabilitation, education, and humane care and treatment, they are capable of improvement as human beings.
As a corollary principle, Kennedy opined that “`the distinctive attributes of youth diminish the penological justifications’ [for harsh sentencing].” Their “blameworthiness… is not as strong….’” and, with regard to deterrence, they are “`less likely to consider potential punishment” before they act. Ultimately, sentencing judges and juries should be required to “take into account `how children are different and how those differences” impact their culpability. In other words, juries and judges have a constitutional obligation to issue proportional sentences based on a defendant’s culpability. Those with reduced culpability due to their developmental immaturity deserve more lenient sentences. That principle applies equally to persons with severe mental disabilities.
One of the major obstacles to expanding the principles of diminished culpability to juveniles and persons with mental disorders in all sentencing matters has been over-reliance on the evolving standards of decency jurisprudence, which was developed under the Eight Amendment’s prohibition against cruel and unusual punishment. Justice Scalia makes a good point when he observes that logically under that jurisprudence, what is unconstitutional today may have been constitutional in the past, which is what the dissenters argued in Montgomery.
That paradox definitely was an important part of the Atkins opinion. There the majority barred the execution of persons with intellectual disabilities (narrowly defined.), even though the Court had ruled it constitutional thirteen years earlier. It is important to note, however, there were persuasive independent constitutional grounds in Atkins which could have justified the decision without having to resort to the overly ambiguous and ambitious evolving standards of decency approach.
Nonetheless, the Atkins anomaly is one reason why this counterintuitive principle, which allows what is constitutional to change over time, has serious limitations. The other reason is that if those “evolving standards of decency” should regress, many criminal and civil rights could be in jeopardy. The Trump and Cruz backlash against various minorities illustrates how that could happen. Evolving standards of decency are only beneficial in improving the law when society is evolving in a positive direction. Otherwise, those standards could easily become a punishing force that outweighs justice and fundamental fairness.
Diminished culpability should be constitutionally required, not so much because of evolving standards of decency, but because of fundamental fairness. In order to be fair, sentences must be proportional to the culpability of the defendants involved. Otherwise a basic tenant of our Anglo-American legal system continues to be deprived of its meaning and vitality. As a result, the fundamental rights of developmentally and/or cognitively impaired individuals have been marginalized, which has helped perpetuate America’s seemingly intractable cycle of extreme incarceration.