INTRODUCTION

“There can only be a few issues where government policies in countries like Libya and Burma appear more progressive than those in the United States. Juvenile sentencing is one of them,” the American Prospect reported in 2007.[1]

In 2022, the US continues to trail the world in juvenile sentencing by remaining the only country in the world that allows sentencing juveniles to die in prison.[2] Such aberration is, however, justified by resorting to the unique or rather exceptionalist nature of the American jurisprudence under the US Constitution, which itself is a global outlier.[3] 

Recent case-law reforms, however, have shown otherwise. The Supreme Court of the United States (hereinafter “the Court”) has moved towards meeting international customs by prohibiting some extreme sentences for juvenile offenders under the Eighth Amendment. This progressive trend, however, has left one category of sentencing practices unaddressed entirely: de facto life sentences, or life sentences with a term that exceeds the offender’s life expectancy.[4] Due to this negligence, lower courts have interpreted de facto life sentences and their constitutionality under the Eighth Amendment in vastly different ways.

This Note assesses precedents to determine the constitutionality of juvenile de facto life sentences. This Note argues that imposing de facto life sentences on juveniles violates the Eighth Amendment in light of the “evolving standards of decency”[5] principle, which permits the Court to establish standards and requirements affording juvenile-specific Eighth Amendment protections. This Note first discusses the legal background of the principle and the protections it affords. This Note then defines de facto life sentences with and against other life sentences and, by evaluating a circuit split, applies controlling precedents’ standards, and requirements against de facto life sentences. Finally, this Note applies the “national consensus”[6] test under the “evolving standards of decency” principle to determine that de facto life sentences are cruel and unusual for juveniles.

LEGAL HISTORY

I.     The “Evolving Standards” Test and Juvenile-specific Eighth-Amendment Protections

The Eighth Amendment provides that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”,[7] establishing the outer limits of criminal punishment in the American criminal justice system. To interpret the meaning of “cruel and unusual,” the Court introduced the principle of “evolving standards of decency that mark the progress of a maturing society”[8] (hereinafter “evolving standards” test). Under this test, a punishment becomes unconstitutional when there is a “national consensus” against it[9]. The test has permitted the Court to categorically prohibit a number of punishments.

One subset of such prohibitions has been of the harshest punishments, such as the death penalty,[10] for juvenile offenders. In cases affording the prohibition of these punishments, the Court determines that juvenile offenders have a lower level of culpability due to their immaturity and higher capacity to change compared to adults and, therefore, inflicting upon them the most severe and irrevocable punishments is especially harsh.[11] To prove that such judgment meets the “evolving standards of decency… of a maturing society,” the Court turns to state legislatures and practices to determine if the majority of states have prohibited these punishments for juveniles.[12] If so, the Court can conclude that there is a “national consensus” on prohibiting these punishments and can prohibit them under the Eighth Amendment.

The “evolving standards” test has permitted judiciary shifts in the meaning of “cruel and unusual” over time. Precedents have demonstrated shifts towards an increasingly broad understanding and, therefore, prohibition of cruel and unusual punishments for juvenile offenders. This Note argues that the test permits the Court to understand and prohibit de facto life sentences as cruel and unusual punishments.

A.     Roper v. Simmons

Roper categorically prohibits the imposition of the death penalty for all offenders under the age of 18.[13] The offender in the case, Christopher Simmons, was 17 years old at the time of being convicted of first-degree murder in 1993.[14] He was initially tried as an adult and the jury unanimously recommended the death penalty.[15] The Court at the time had denied the prohibition of the death penalty for offenders of his age in Stanford v. Kentucky, which explicitly states that the death penalty for offenders over 15 but under 18 was not categorically prohibited because there was no national consensus against it.[16] Simmons appealed, citing mitigating factors associated with his juvenile status such as his impulsiveness, immaturity, troubled childhood, etc., which the lower court denied.[17]

In 2002,[18] Atkins v. Virginia categorically prohibits the imposition of the death penalty on intellectually disabled people, overruling a precedent by citing that standards of decency have evolved and there is a new national consensus against imposing the death penalty on intellectually disabled people.[19] Simmons petitioned for resentencing in light of Atkins and his petition was granted by the Missouri Supreme Court. He argues that his characteristics as a juvenile, namely his neurobiological and psychological difference from adults, are parallel to Atkins and, therefore, it logically follows that the Eighth Amendment must prohibit the death penalty for all juveniles to meet the evolved standards of decency since Stanford.[20] The Missouri Supreme Court agreed.[21] The case was later granted consideration by the Court, which affirmed the decision.[22] This decision is the landmark decision of Roper v. Simmons.

Both the Missouri Supreme Court and the Supreme Court employed the “evolving standards” test to justify categorically exempting juveniles from the death penalty.[23] The decisions precede the evolved standard that all offenders under the age of 18 at the time of the offense should be sentenced considering the specific characteristics of juveniles, and that these characteristics render imposing on them the harshest sentence cruel and unusual.

B.     Graham v. Florida

Six years after the decision of Roper, Graham categorically banned life without parole (LWOP) for non-homicide offenders under the age of 18.[24] Petitioner Graham was convicted of burglary when he was 16 and sentenced to LWOP.[25] At the time of his sentencing decision, Florida had abolished the parole system.[26]

Graham refers to Roper[27] and maintains Roper’s holding that juveniles are generally less culpable than adults.[28] In addition, Graham committed a non-homicide crime. Given that even adult homicide offenders could be sentenced to LWOP under some circumstances, the Court found it inadequate to justify sentencing a non-homicide juvenile offender to LWOP.[29] The Court then rules that non-homicide juvenile offenders have twice diminished culpability compared to adult homicide offenders.[30] Furthermore, the Court likened the irrevocability of LWOP to the death penalty[31] and provides that the State must provide juvenile offenders with “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”[32]

In addition to the Court’s judgment, objective indicia of state legislatures and practices were used to prove if there is a national consensus against LWOP for juveniles. The Court ruled that, since LWOP was only actively practiced in 11 states, American society had sufficiently evolved to veer away from imposing LWOP on juveniles. The combination of the Court’s judgment and objective indicia indicate that imposing LWOP on juveniles fails the “evolving standards” test and is not constitutional.[33]

Different from Roper, Graham primarily relies on the frequency of the actual sentencing of LWOP to juveniles rather than the number of states that statutorily permit such a sentence.[34] This approach demonstrates the de facto element of the “evolving standards” test. In other words, Graham rules that the test considers not only what is crucial and unusual on paper but also in practice. This de facto ruling is significant for testing the cruelty and unusualness of de facto life sentences.

C.     Miller v. Alabama

Miller furthers the categorical approach of the previous two precedents to ban mandatory LWOP for all juvenile offenders, including homicide offenders.[35] Petitioner Miller murdered his neighbor in arson and was eventually tried in an adult court.[36] He was found guilty and mandated LWOP without adequately considering the “distinctive attributes of youth.”[37]

While Graham and others emphasize the categorical difference between a homicide crime and a non-homicide crime, Miller rules that this difference does not change the precedents’ holding that juveniles are less culpable than adults.[38]The characteristics of juvenile offenders, therefore, must be considered at all times by a sentencer regardless of the crimes committed. A mandatory LWOP scheme prevents such consideration at the outset and, therefore, is unconstitutional.[39]

Miller again affirms the “evolving standards” test and its necessity but does not employ it because it does not categorically prohibit a category of sentences altogether. The Court only bans LWOP from being sentenced on a mandatory scheme. Because it refused to employ the test and afford a categorical prohibition of LWOP for all juvenile offenders, Miller was cited against the categorical prohibition of de facto life sentences for juvenile homicide offenders in later federal court decisions.[40] In the next section, this paper will reinterpret Miller and its controlling precedents, in light of the “evolving standards” test, to show that their rulings require the categorical prohibition of de facto life sentences for juvenile offenders.

DE FACTO LIFE SENTENCES                                                                                                                                                                      I.     Definition

De facto life sentences are of “sufficient length to presumably keep the offender in prison for the rest of his or her natural life.”[41] Such sentences are, therefore, functionally equivalent to LWOP as offenders sentenced to either will die in custody. The Court, however, has not directly addressed de facto life sentences in its previous holdings. It has, however, acknowledged that “in some cases . . . there will be negligible difference between life without parole and other sentences … for example, . . . a lengthy term … This reality cannot be ignored.”[42] This holding implies the possibility that de facto sentences can be considered to fall under the same category as LWOP even if it is labeled as life with the possibility of parole (LWP).

One penological question in defining de facto sentences involves the length required for a life sentence to be a de facto life sentence or to exceed an individual’s natural life expectancy. Different lengths have been proposed across states, as sentencing questions involve policy decisions that are traditionally deferred to state legislatures.[43] For this Note, the length required for a life sentence to be considered a de facto life sentence is presumed to be 50 years.[44]

A. Implications of Controlling Precedents for De Facto Life Sentences

Controlling precedents have established the necessity of the “evolving standards” test to assess the constitutionality of a sentencing practice. The test is two-sided. First, the practice must uphold the standards established by the Court using the “evolving standards” test—the evolved standards—including those in Roper, Graham, and Miller. While Miller did not employ the test, its decision bases itself on the confluence of Roper and Graham and another decision that is evoked by Graham[45] and, therefore, sets standards that are logically necessary for meeting “evolving standards.” Second, after assessing “objective indicia of society's standards, as expressed in legislative enactments and state practice,” no new national consensus should arise against the practice at the time of assessment.[46] Otherwise, American society is considered to have evolved to abandon the practice constitutionally.[47]

1.     Meaningful Opportunity to Obtain Release

One established standard that the Court holds is that LWOP is unconstitutional for non-homicide juvenile offenders because it does not provide juveniles with a “meaningful opportunity to obtain release,” failing the penological goal of rehabilitation.[48] The absence of such an opportunity, therefore, is what renders life sentences unconstitutional. This standard of constitutionality is key for demarcating de facto life sentences from other LWPs. De facto life sentences, as functional equivalents of LWOP, do not give juvenile offenders a “meaningful opportunity to obtain release” while other LWPs do. Therefore, while the provision of “meaningful opportunity to obtain release” as a standard of constitutionality only concerns juvenile non-homicide offenders, the provision applies to categorizing de facto life sentences under the same category as LWOP.

The Court, however, does not elaborate further on the meaning of the requirement for States to give juvenile offenders a “meaningful opportunity to obtain release.” Instead, it has deferred the interpretation and compliance of this requirement to the States in the first instance.[49] Coupled with the fact that the Court has not yet directly addressed de facto life sentences, circuit courts have applied this Court’s holdings to the constitutionality of de facto sentences in vastly different ways.

                                                                                                                                                            II.     The Circuit Split

Since Miller, circuits split on whether a de facto life sentence implicates juvenile-specific Eighth Amendment protections. The Third, Seventh, Ninth, and Tenth Circuits rule that de facto life sentences are unconstitutional[50] while the Eighth Circuit rules otherwise.[51]

Circuit holdings that rule de facto sentences as unconstitutional stress that previous holdings of the Court about LWOP apply to de facto life sentences. The Seventh Circuit emphasizes that a sentence of two consecutive 50-year prison terms is a de facto life sentence that is controlled in the same way as LWOP by Miller.[52] The Tenth Circuit applies the categorical bar on LWOP for nonhomicide juvenile offenders to judge that a 155-year LWP is unconstitutional.[53] The court requires that the State resentence in such a way that would provide for “some realistic opportunity to obtain release.”[54] The Ninth Circuit considers a 254-year sentence with parole until the offender is 144 years old to be materially the same as LWOP under Graham because both do not offer an opportunity for parole during the offender’s natural lifetime.[55] The Third Circuit found a de facto life sentence for a non-homicide juvenile offender, who is found not to be incorrigible by the state, to be inconsistent with the Court’s holding in Miller that LWOP only is to be imposed on incorrigible offenders.[56] The court also importantly held that a sentence “that meets or exceeds the life expectancy of a juvenile offender who is still capable of reform is inherently disproportionate,”[57] implying that a de facto life sentence is unconstitutional not only because it is the same as LWOP but because it itself stands as a cruel and unusual punishment.

The Eighth Circuit is the only Circuit that rules that a de facto life sentence for a juvenile offender is constitutional. It argues that the State, by resentencing the offender from LWOP to a 600-month sentence, “carefully and thoroughly applied the teaching of Roper, Graham, and Miller ‘that children are constitutionally different from adults for purposes of sentencing.’”[58]

                                                                                                                                III.     US v. Jefferson Was Wrongly Decided

Jefferson considers a 17-year-old offender, Robert James Jefferson, who committed the crime of murder by shooting a drug debtor and a bystander, among other crimes.[59] Consistent with the State’s sentencing guidelines at the time, he was sentenced to LWOP on a mandatory scheme in 1998.[60] After Miller was decided, Jefferson appealed his sentence and demanded resentencing. Consistent with another decision that Miller retroactively applies,[61] the district court granted the appeal and resentenced him to 600 months in prison. Jefferson appealed the sentence to the Eighth Circuit, which affirmed the lower court’s decision.[62]

The Jefferson decision cites that Miller did not hold that the Eighth Amendment categorically prohibits imposing LWOP on a juvenile offender but that, because a mandatory scheme “prevented the sentencing judge or jury from taking into account that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes,” states must have the discretion to consider youth factors before sentencing juvenile offenders.[63] This citation is appropriate as Jefferson involves a discretionary sentencing practice on a juvenile offender of a homicide crime.

The Jefferson court then argues that because Miller only requires sentencers to consider youth in sentencing juvenile offenders, Jefferson’s 600-month sentence is constitutional because he “was resentenced under now-advisory federal guidelines after a hearing in which the district court carefully and thoroughly applied … Miller.”[64]

The Eighth Circuit court does not disagree that a 600-month sentence is functionally equivalent to LWOP, implying that this Court’s holdings on LWOP apply to de facto life sentences. Instead, the court emphasizes the discretionary power of sentencers in sentencing juvenile offenders as long as youth is considered and dismisses Jefferson’s argument that the sentencer fails to weigh youth factors “as informed by recent Eighth Amendment jurisprudence regarding juveniles.”[65]It argues that it “[d]id not abuse its discretion” by “hearing testimony of Jefferson, his uncle, and a clinical psychologist who interviewed Jefferson” and affirms that Jefferson’s youth “should have received significant weight.”[66] Yet youth factors disappear in the court’s analysis of the appropriateness of the sentence. It decides that “600 months in prison was an appropriate resentence” by giving “significant weight to the extreme severity of Jefferson's crimes.”[67]  An analysis that procedurally acknowledges youth factors but subsequently focuses only on the severity of crimes misses the purpose of Miller, which requires sentencers to substantively weigh youth factors in sentencing juvenile offenders. The court finessed the matter, in the name of multi-factor analysis, by replacing the analysis of whether the sentence meets the offender’s culpability with that of whether the sentence is proportional to the crime. The latter constitutes a proportionality test that has been historically applied to both children and adults.[68] Therefore, the Jefferson court cannot say that the sentencing decision “carefully and thoroughly applied the teaching of Roper, Graham, and Miller ‘that children are constitutionally different from adults for purposes of sentencing’”[69] if it uses the same sentencing standard for adults and children.

This failure in sentencing shows the inherent defect of the discretionary sentencing approach to fully consider youth factors. Although many states have enacted laws to govern the treatment of juvenile offenders at the sentencing stage, these laws ultimately put the treatment at the discretion of the subjective judgment of sentences. A juvenile offender can be sentenced to LWOP or a de facto life sentence if sentencers decide that he or she is incorrigible, or “irredeemably depraved.”[70] In practice, however, this sentencing approach permits the weighing of the severity of the crime to prove that a juvenile is incorrigible at the outset despite mitigating factors of youth. Precedents such as Jones v. Mississippipermit sentencers the discretion to extrapolate immutable characteristics about a child based on a single event in that child’s life.[71] Graham specifically warns against such an approach because it “would not allow courts to distinguish with sufficient accuracy the few juvenile offenders having sufficient psychological maturity and depravity to merit a life without parole sentence from the many that have the […] capacity for change.”[72] The failure of Jefferson court to make such a distinction is demonstrated by Jefferson’s “‘extraordinary’ rehabilitation in prison,” a fact the court itself acknowledged.[73] Nor can a discretionary sentencing approach account for “special difficulties encountered by counsel in juvenile representation, given juveniles' impulsiveness, difficulty thinking in terms of long-term benefits, and reluctance to trust adults.”[74]

Because a discretionary sentencing approach is unable to fully consider characteristics of youth, and because nothing this Court says about youth factors is crime-specific, it follows that a discretionary sentencing practice is unable to decide “with sufficient accuracy” that juvenile offenders, including a homicide offender, merit a life sentence equivalent to LWOP. The confluence of Graham and Miller, therefore, necessitates a categorical ban on life sentences equivalent to LWOP, including de facto life sentences. A categorical rule avoids the risk that sentencers erroneously decide that a juvenile offender is irreparable enough to deserve these sentences and also gives him or her the meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.

Finally, giving significant weight to youth does not require them to always override, but it forces sentencers to sufficiently consider youth together with other factors, including the severity of crimes. This court, for example, should consider Jefferson’s youth with his milieu, such as being a gang member, to determine if he is incorrigible. Does his behavior inhabit a community in which his crimes are normal? The district court in Jefferson fails to do so with its two-day hearing.[75] To be fair, murder is one of the most serious crimes but appropriate discretionary analysis must recognize that the severity of a crime and what it shows about an offender’s likelihood of recidivism can diminish in light of youth and other factors.

While Miller does not prohibit LWOP, it expresses significant skepticism toward imposing it on juvenile murderers. In fact, the Court vacated, in light of Miller, three decisions that affirm discretionary LWOP for juvenile offenders.[76]Therefore, discretionary LWOP and its functional equivalents are not always constitutional. Jefferson was wrongly decided largely because it missed Miller’s skepticism on the appropriateness of imposing LWOP for juvenile offenders.

Precedents establish that characteristics of youth render juveniles less culpable than adults and that these characteristics are not crime-specific.[77] Therefore, even if the crime committed is homicidal, a juvenile offender ought to be sentenced differently from an adult and be imposed a lighter sentence. Discretionary sentencing, as in Jefferson, has failed to do so. The reluctance to create a new categorical ban on life sentences equivalent to LWOP, including de facto life sentences, for all juvenile offenders has permitted mistakes in discretionary sentencing to happen. This paper argues that a new categorical ban on de facto life sentences is necessary to prevent such mistakes in the future. 

A NEW CATEGORICAL BAR ON DE FACTO LIFE SENTENCES

In affording categorical prohibitions under the Eighth Amendment, this Court considers “objective indicia of society's standards, as expressed in legislative enactments and state practice” to determine whether there is a national consensus against the sentencing practice at issue.[78] Federal courts in precedents that rule against de facto life sentences exclusively relied on holdings of the controlling precedents and assess if there is a new national consensus against de facto life sentences. The determination of a national consensus against de facto life sentences will compel this Court to extend its established standards and requirements to prohibit de facto life sentences under the “evolving standards” test.

                                                                                                                                         I.     An Emerging National Consensus

Statistics show an emerging consensus against de facto life sentences. In 2016, only 2,089 persons were serving de facto life sentences for crimes committed while under the age of 18.[79] Eight state supreme courts have ruled that these sentences violate the Graham and Miller rulings.[80] Indiana, Louisiana, Pennsylvania, and Texas together comprise almost 60 percent of the total number of inmates serving de facto life sentences for crimes committed as juveniles, and the average number of such inmates in other states is only 20. Twelve states and the District of Columbia reported no persons serving such sentences.[81] Therefore, while 38 states still allow de facto life sentences for juvenile offenders, the sentences are rare in practice across the majority of states. Following the de facto interpretation of national consensus in Graham, there is a national census against de facto life sentences as a category of sentencing practices because states rarely impose them in practice.

Additionally, the number of de facto life sentences served by juveniles decreased by 9% from 2016 to 2020, while that of LWOP decreased by 38%.[82] Not only does the decrease show that states are moving away from imposing de facto life sentences on juveniles as societal standards evolve but the disparity between the two decreases reflects the inability of precedents such as Miller to equally prevent the imposition of de facto life sentences and LWOP as functional equivalents. Therefore, a new categorical rule must be granted in light of controlling precedents and the new national consensus.

CONCLUSION

This Note explores the Eighth Amendment protection of juveniles from de facto life sentences in light of the “evolving standards” test. It first discusses the precedents that afford juvenile-specific Eighth Amendment protections, namely Roper, Graham, and Miller. It then defines de facto life sentences, categorizes them under the same functional category as LWOP, and distinguishes them from other LWPs against the standard of whether the sentences provide some “meaningful opportunity to obtain release.” A circuit split over whether de facto life sentences are constitutional for juvenile offenders is then presented, and this Note argues that the decision of the Eighth Circuit affirming a de facto life sentence on a juvenile offender wrongly read the purpose of controlling precedents. This Note concludes that the confluence of these precedents necessitates a categorical ban on life sentences equivalent to LWOP, including de facto life sentences, for juvenile offenders. A national consensus has also emerged against these sentences, showing that American society has evolved its standards to recognize them as cruel and unusual.

Since the Court delivered Miller, state legislative reforms have taken place to limit the use of extreme sentences such as LWOP on juveniles. Similar reforms to limit de facto life sentences as functional equivalents to LWOP should take place, and the Court can do so by banning them categorically in light of controlling precedents and a new national consensus.

[1] Ari Paul, America's Imprisoned Kids, Am. Prospect (May 10, 2007), https://prospect.org/article/america-s-imprisoned-kids/.

[2] Katie R. Quandt, Why Does the U.S. Sentence Children to Life in Prison?, JSTOR Daily (Jan. 31, 2018), https://daily.jstor.org/u-s-sentence-children-life-prison/.

[3] See, e.g., The Paquete Habana, 175 U.S. 677, 700 (1900).

[4] Cong. Rsch. Servs, Juv. Life Without Parole: In Brief 5 (2013).

[5] Trop v. Dulles, 356 U.S. 86, 100–101 (1958).

[6] See, e.g., Roper v. Simmons, 543 U.S. 551, 562–64 (2005).

[7] U.S. Const. amend. VIII.

[8] 356 U.S. at 100–101.

[9] See, e.g., 543 U.S. at 562–64; Corinna B. Lain, The Unexceptionalism of “Evolving Standards”, 57 UCLA L. Rev. 365, 366 (2009).

[10] Id.

[11] See, e.g. Id.; Graham v. Fla., 560 U.S. 48, 68 (2010).

[12] Id.

[13] 543 U.S. at 551.

[14] Id.

[15] Id. at. 557.

[16] Stanford v. Kentucky, 492 U.S. 361, 370-371 (1989).

[17] Roper, 543 U.S. at 558-59.

[18] Simmons, however, was spared an immediate execution as he moved to file a Rule 29.15 motion and, after it failed, appealed his sentence, conviction, and the denial of post-conviction relief.

[19] Id.

[20] Roper, 543 U.S. at 552.

[21] Simmons v. Roper, 112 S.W.3d 397, 399 (Mo. 2003) (en banc).

[22] Roper, 543 U.S. at 551.

[23] Simmons, 112 S.W.3d at 399 (the opinion stresses the national consensus against the death pealty on juvenile offenders, “as demonstrated by the fact that eighteen states now bar such executions for juveniles, that twelve other states bar executions altogether, that no state has lowered its age of execution below 18 since Stanford, that five states have legislatively or by case law raised or established the minimum age at 18, and that the imposition of the juvenile death penalty has become truly unusual over the last decade") (emphasis added).

[24] Graham, 560 U.S. at 48.

[25] After being sentenced to probation under a plea agreement, he committed additional crimes that breach the agreement. He was then revoked from probation and sentenced to life in prison for burglary.

[26] Graham, 560 U.S. at 48.

[27] Id. passim.

[28] Id. 68.

[29] Id.

[30] Id. at 69.

[31] Id.

[32] Id. at 75.

[33] Id. at 64.

[34] Id. (“[a]n examination of actual sentencing practices in those jurisdictions that permit life without parole for juvenile nonhomicide offenders, however, discloses a consensus against the sentence”) (emphasis added).

[35] 567 U.S. 460 (2012).

[36] Id. at 469.

[37] Id. at 472.

[38] Id. at 473 (“Graham's flat ban on life without parole applied only to nonhomicide crimes, and the Court took care to distinguish those offenses from murder, based on both moral culpability and consequential harm [...] But none of what it said about children--about their distinctive (and transitory) mental traits and environmental vulnerabilities-is crime-specific.”).

[39] Id. at 460.

[40] See, e.g., United States v. Jefferson, 816 F.3d 1016, 1017 (8th Cir. 2016).

[41] U.S. Sent’g Comm’n, Life Sentences in the Fed. Sys. 16 (2022).

[42] Graham, 560 U.S. at 71.

[43] See, e.g., Ewing v. California, 538 U.S. 11 (2002).

[44] This choice of length is informed by the rationale of the Sentencing Project for statistical purposes, and it does not prevent sentences with length lower than 50 years to be considered under judiciary holdings against VLS. See The Sent'g Project, No End in Sight: Am.’s Enduring Reliance on Life Imprisonment 37 (2021) (“life expectancy of a 33-year-old male (the typical age for someone entering prison with a homicide conviction) serving a long-term or life sentence was about 40 additional years. This suggests that to survive a lengthy sentence, one must be released before the age of 73. Add to this the increased probability of a premature death for those who are incarcerated, one can see that a minimum sentence of 50 years or more as equivalent to “virtual life” is reasonable”).

[45] See, e.g., Roper, 543 U.S. at 552

[46] Graham, 560 U.S. at 48.

[47] See, e.g., Roper, 543 U.S. at 553 (“objective indicia of national consensus here-the rejection of the juvenile [****6] death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice-provide sufficient evidence that today society views juveniles…as ‘categorically less culpable than the average criminal’”).

[48] Graham, 560 U.S. at 75.

[49] Id.

[50] See United States v. Grant, 887 F.3d 131, 142 (3d Cir. 2018); McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016); Moore v. Biter, 725 F.3d 1184, 1192 (9th Cir. 2013); Budder v. Addison, 851 F.3d 1047 (10th Cir. 2017).

[51] United States v. Jefferson, 816 F.3d 1016 (8th Cir. 2016).

[52] McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016).

[53] 851 F.3d at 1047.

[54] Id. at 1059.

[55] 725 F.3d at 1192.

[56] 887 F.3d at 142.

[57] Id.

[58] 816 F.3d at 1019.

[59] Id. at 1017.

[60] Id.

[61] Montgomery v. Louisiana, 136 S. Ct. 718, 736 (2016).

[62] Jefferson, 816 F.3d at 1016.

[63] Miller, 567 U.S. at 472.

[64] Compare Jones v. Mississippi 141 S. Ct. 1307 (2021).

[65] Jefferson, 816 F.3d at 1020.

[66] Id. at 1021.

[67] Id.

[68] See, e.g., Harmelin v. Michigan, 501 U.S. 957 (1991).

[69] Jefferson, 816 F.3d at 1019.

[70] Graham, 560 U.S. at 77.

[71] Hannah Duncan, Youth Always Matters: Replacing Eighth Amendment Pseudoscience with an Age-Based Ban on Juvenile Life without Parole, 131 Yale L. J. 1936, 1991 (2022).

[72] Roper, 543 U.S. at 572-573.

[73] Jefferson, 816 F.3d at 1020.

[74] Graham, 560 U.S. at 49.

[75] Jefferson, 816 F.3d at 1018.

[76] See Blackwell v. California, 133 S. Ct. 837 (2013); Mauricio v. California 133 S. Ct. 524 (2013); Guillen v. California, 133 S. Ct. 69 (2012).

[77] 560 U.S. at 473.

[78] Id. 48.

[79] The Sent'g Project, Youth Sentenced to Life Imprisonment 3 (2019).

[80] Id.

[81] Id.

[82] The Sent'g Project, supra note 39, at 17.