The Supreme Court of Washington Wades In
In 2012, the United States Supreme Court decided Miller v. Alabama, which held that homicide defendants who were less than 18 years old at the time of the crime could not automatically be sentenced to life without the possibility parole.1 Like the decisions in Roper v. Simmons2 (which prohibited the death penalty for defendants who were under the age of 18 at the time of the crime) and Graham v. Florida3 (which prohibited life without the possibility of parole for defendants who were under the age of 18 at the time of the crime and were not convicted of homicide), Miller was based on the principle that children are different and cannot be treated the same way as adults for sentencing purposes. Moreover, these decisions were based “not only on common sense—on what ‘any parent knows’—but on science and social science as well.”4 Science and common sense tells us that the brains of children are simply less developed than adults; and, therefore, children.”5
It is important to understand that Miller did not prohibit life without parole for juvenile homicide offenders. Under Miller, only “the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible” can be sentenced to life without parole.6 But, as Miller explained, the vast majority of juveniles do not fall into this category. Indeed for “the vast majority of juvenile offenders” life without parole is unconstitutional because children have “diminished culpability and greater prospects for reform.”7
On March 15, 2021, the Washington Supreme Court took a big step forward in Matter of Monschke.8 In Monschke, the Court considered the petitions ofKurtis Monschke and Dwayne Bartholomew—who were 19 and 20 years old respectively when they committed murder—asking the Court to consider whether Miller should be extended to defendants were 18-20 years old. The Washington Supreme Court agreed with them and granted relief, extending the age range of Miller.
In reaching this decision, the Washington Supreme Court looked first at the historical definition of adulthood. The Washington Supreme Court noted that, historically, the age of 21 was seen as the beginning of adulthood until 1942 when Congress lowered the age for conscription from 21 to 18 due to World War II. That was followed by lowering the age of majority generally. The Washington Supreme Court also explored the evolving Eighth Amendment standards set by the United States Supreme Court over the years in Thompson v. Oklahoma9, Roper, Graham, and Miller. Finally, the Washington Supreme Court looked at the variety of ages used in the criminal context as a whole. The Court’s conclusion from this was that the concept of adulthood is flexible and shifting, rather than rigid and set in stone.
The Washington Supreme Court next turned to the scientific aspect of it. In doing so, it arrived at the obvious conclusion: “neurological science recognizes no meaningful distinction between 17- and 18-year-olds as a class” because “biological and psychological development continues into the early twenties, well beyond the age of majority10.” The same issues regarding lack of brain development in those under 18-years-old that were the basis for prohibiting the death penalty, life without parole for non-homicide offenses, and mandatory life-without parole for homicide offenses exist in those who are 17-20 years old.
But what does this all mean? It means that, in Washington, a person who commits aggravated murder—the equivalent of capital murder in Alabama—and was under the age of 21 cannot automatically be sentenced to life without parole. The Washington Supreme Court did not prohibit life without parole for these defendants, it extended Miller’sban on mandatory life-without-parole sentences. These defendants, like all juvenile homicide offenders, must be afforded an individualized sentencing hearing that takes into account the unique aspects of juvenile defendants. As the Supreme Court phrased it in Montgomery v. Louisiana, “Miller requires that before sentencing a juvenile to life without parole, the sentencing judge must take into account ‘how children are different, and how those differences counsel against irrevocably sentencing them to a life-time in prison11.” It is only a determination has been made that the individual juvenile homicide defendant “exhibits such irretrievable depravity that rehabilitation is impossible” that he or she can be sentenced to life without parole12.
Miller developments are still going on in Alabama and around the country. The next major development will most likely come from the United States Supreme Court in Jones v. Mississippi13. In Jones, the Supreme Court will decide if there must be a formal factual finding before the Eighth Amendment permits sentencing a juvenile to life without parole. This issue is critical because if a formal factual finding is required, there is a constitutional right to have the jury make that factual finding. Many states, Alabama among them, have rejected arguments that a formal factual finding is required and that juveniles are entitled to jury sentencing. Jones was argued in the fall of 2020 and a decision will be released sometime this spring.
1Miller v. Alabama, 567 U.S. 460 (2012).
2Roper v. Simmons,543 U.S. 551 (2005).
3Graham v. Florida, 560 U.S. 48 (2010).
4Miller, 567 U.S. at 471 (quoting Roper, 543 U.S. at 569).
6Montgomery v. Louisiana, 138 S. Ct. 718, 734 (2016).
7Id. at 733-34.
9Thompson v. Oklahoma, 487 U.S. 815 (1998).
10Monschke, 2021 WL 923319 at *9.
11Montgomery, 138 S. Ct. at 734 (quoting Miller, 567 U.S. 479-80).