Legal Sidebari

Third Circuit Invalidates De Facto Life
Sentences for “Non-Incorrigible” Juvenile
Offenders
April 30, 2018
Since the Supreme Court has held that the Eighth Amendment constrains the ability to impose sentences
involving lifetime imprisonment on juvenile offenders, state and federal courts have grappled with the
scope and applicability of these limitations. This issue frequently has arisen when a juvenile offender’s
sentence is not labeled as imprisonment for a term of life without the possibility of parole, but effectively
covers the entirety of the offender’s remaining lifespan. The U.S. Court of Appeals for the Third Circuit
(Third Circuit) recently ruled in United States v. Grant that the Eighth Amendment prohibits “de facto”
life without parole (LWOP) sentences for a non-incorrigible juvenile offender (i.e., a juvenile who retains
the possibility of rehabilitation). The Third Circuit went further to recognize a rebuttable presumption that
non-incorrigible juvenile offenders “should be afforded an opportunity for release before the national age
of retirement.” As such, federal sentencing courts in the Third Circuit will be required to consider, in
addition to statutorily prescribed sentencing factors, the defendant’s life expectancy and the national age
of retirement before sentencing a non-incorrigible juvenile offender to a prison term that meets or exceeds
the offender’s expected mortality without the possibility of parole. This decision adds to the lower courts’
split as to the circumstances where lengthy sentences for juvenile offenders run afoul of the Eighth
Amendment.
The Eighth Amendment bars the use of excessive penal sanctions by the federal government; a
requirement made applicable to the states through the Fourteenth Amendment. In a series of cases, the
U.S. Supreme Court has established categorical rules prohibiting certain punishments for juveniles on the
grounds that such sanctions run afoul of the Eighth Amendment’s prohibition on cruel and unusual
punishment. These prohibitions include the death penalty in Roper v. Simmons, at least de jure LWOP for
non-homicide crimes in Graham v. Florida, and mandatory LWOP for homicide offenses in Miller v.
Alabama. In each decision, the Court relied on what it characterized as an established and evolving
national consensus that juveniles’ quantifiable behavioral and cognitive limitations diminish the moral
culpability of juvenile offenders and consequently, impact their appropriate punishment.
Graham and Miller in particular have prompted lower courts to more carefully consider the imposition of
lengthy criminal sentences for juvenile offenders. In Graham, the Court held that the imposition of de jure
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LWOP sentences for juvenile offenders of non-homicide crimes constituted cruel and unusual
punishment. The Graham Court noted that LWOP sentences contradict the notion of rehabilitation when
applied to a population “who are most in need of and receptive to rehabilitation.”
Most recently, in Miller, a divided Supreme Court found that the imposition of a mandatory LWOP
sentence on a juvenile offender convicted of a homicide offense is unconstitutional, as it would be
inappropriate to apply such sentences to those juveniles whose behavior was not “incorrigible” and who
retained the possibility of rehabilitation. Miller dictates that lower courts must consider “how children are
different, and how those differences counsel against irrevocably sentencing to a lifetime in prison.” As
such, sentencing judges must consider mitigating factors such as family dynamic, the circumstances of the
juvenile’s offenses, and the likelihood of rehabilitation. While the Miller decision was limited to
mandatory LWOP sentences for juveniles convicted of homicide offenses, questions remain as to the
applicability of the Miller rationale to other forms of sentencing.
Lower federal courts (along with numerous state courts) have grappled with the scope and applicability of
Graham and Miller when applied to de facto life sentences for juvenile offenders. To date, the Supreme
Court has declined to grant certiorari to review judicial opinions (sometimes arising within the same
judicial circuit) that seek to apply Graham and Miller to juvenile offenders who receive non-mandatory
sentences that effectively or plainly constitute LWOP. Some courts have taken an expansive reading of
these cases to prohibit de facto life without parole sentences for juvenile offenders, at least when such
offenders are not found to be incorrigible, while others have taken a more narrow reading. For example,
the Sixth Circuit held that an 89-year sentence given to a juvenile, non-homicide offender did “not violate
clearly established federal law.” The court held that Graham and Miller were inapplicable because neither
case “establish[ed] that consecutive, fixed-term sentences for juveniles who have committed multiple
non-homicide offenses are unconstitutional when they amount to the practical equivalent of life without
parole.” Similarly, courts in the Seventh, Eighth, and Tenth Circuits declined to extend Miller to grant
habeas review of non-mandatory de jure or arguably de facto LWOP sentences imposed on juvenile
offenders (though another Tenth Circuit panel subsequently expressed skepticism as to aspects of the
court’s earlier ruling, and the Seventh Circuit later appeared to narrow the scope of this ruling).
Conversely, some courts have used a broader reading of Graham and Miller. Courts in the Seventh, Ninth
and Tenth Circuits had relied on and arguably expanded upon the holding of Miller to invalidate lengthy
terms of imprisonment (100, 254 and 155 years respectively). For example, in Budder v. Addison, the
Tenth Circuit granted federal habeas relief when it struck down a 155-year sentence (three life-with-
parole sentences plus 20 years) imposed on a juvenile non-homicide offender. As the sentences were to
run consecutively, the juvenile would have to serve 131.75 years before becoming eligible for parole, thus
denying him a realistic opportunity to obtain release. The court reasoned that Graham created a
categorical rule that the Eighth Amendment is violated when a juvenile receives “any sentence that would
deny a juvenile non-homicide offender a realistic opportunity to obtain release, regardless of the label a
state places on that sentence.”
Another approach, taken by some state courts, has been to construe Supreme Court rulings relating to
LWOP as applying to a de facto or de jure LWOP sentence imposed for a particular offense, but not to
situations where a juvenile offender’s aggregate sentence for multiple offenses extends beyond his life
expectancy. Complicating matters further, some reviewing courts, when assessing whether a lengthy
sentence imposed upon a juvenile offender is constitutionally permissible, have assessed the prospect of
“geriatric release” from incarceration differently. In some cases, for instance, a reviewing court has
deemed the potential release of a juvenile offender only upon reaching an advanced age as insufficient to
satisfy the standards of Graham, whereas other courts have found that the possibility of parole upon
reaching an advanced age might be permissible, at least when the offender would be expected to live a
number of years following release.

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The Third Circuit’s decision in Grant is one of the most recent rulings addressing Miller and Graham’s
applicability as they pertain to the sentencing of juvenile offenders. The appellate court concluded that
considerations related to a juvenile’s diminished culpability should not only apply to “de jure” LWOP
sentences, but also to the imposition of “de facto” LWOP. Grant involved the review of a 65-year
sentence without parole imposed upon a juvenile offender who had not been found to be incorrigible by
the sentencing court and who had been convicted of several offenses including conspiracy, racketeering,
drug trafficking, and firearm violations. The defendant, who was sixteen years old when he committed the
criminal offenses, challenged his sentence, arguing that it amounted to a de facto life sentence. The circuit
court agreed. Analyzing the Supreme Court’s decisions in Roper, Graham, and Miller, the Third Circuit
concluded that there is no constitutionally meaningful difference between a de jure LWOP sentence and a
de facto one. The same penological concerns regarding maturity and culpability exist. Moreover, both
forms of LWOP deny non-incorrigible juvenile offenders the opportunity to be rehabilitated and/or to
atone for their mistakes and to prove that they are worthy of being given an opportunity to reintegrate into
and contribute to society. As such, the circuit court found that Grant’s sentence violated the Eighth
Amendment.
The appellate court went further and established a framework for federal courts within the circuit to apply
when sentencing non-incorrigible juvenile offenders. Generally when a defendant is convicted of a federal
offense, a sentencing judge must consider the statutory sentencing factors under 18 U.S.C. §3553(a) when
it considers the appropriate length of imprisonment to order. Such factors include “the nature and
circumstances of the offense and the history and characteristics of the defendant,” providing adequate
deterrence, and “protect[ing] the public from future crimes of the defendant.” In addition to these factors,
the Third Circuit articulated two new factors: the juvenile defendant’s life expectancy and whether there
exists a meaningful opportunity for release. The Grant court held that sentencing courts must conduct an
individualized evidentiary hearing to determine the juvenile defendant’s life expectancy. In determining
the offender’s life expectancy, courts may start with actuarial tables but should also consider other
external factors such as medical history, genetics, and other pertinent expert testimony. Once the court
determines the juvenile’s life expectancy, next the sentencing judge must craft a sentence which affords a
meaningful opportunity for release from incarceration. The Third Circuit declined to establish a bright-
line age for when a juvenile is still able to have a meaningful reentry into society. Instead, it decided that a
national “retirement age” should be the outer parameter. As such, the court established a rebuttable
presumption that non-incorrigible juvenile offenders should “be afforded an opportunity for release at
some point before the age of retirement.” The Third Circuit continued, however, that sentencing judges
retain discretion to impose a different sentence in exceptional cases after weighing the other statutorily
based sentences factors, the defendant’s life expectancy, and whether there was a meaningful opportunity
for release. The Third Circuit also concluded that the defendant’s sentencing package argument was not
properly preserved as it was not raised with the lower court. One member of the panel dissented from this
portion of the majority opinion, while agreeing with the majority’s conclusions concerning the
constitutionality of de facto LWOP and factors that should be considered by the lower court during
resentencing.
The future implications of this decision remain unclear. The Supreme Court had previously declined to
resolve the circuit split on whether de facto LWOP for juvenile offenders was categorically
unconstitutional. Following Grant, it would appear that sentencing judges in the Third Circuit will be
required to consider additional sentencing factors when crafting sentences for juvenile offenders. Persons
already sentenced for offenses committed as juveniles to de facto LWOP within the Third Circuit may be
eligible for resentencing based on the reasoning of Supreme Court precedent concerning Miller’s
retroactive application to LWOP sentences of juvenile offenders. While Congress may not statutorily
overturn the Grant court’s ruling regarding the unconstitutionality of de facto LWOP for non-incorrigible
juvenile offenders, in the event that lawmakers agree with the decision and wish to provide uniformity

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throughout the judicial circuits, legislation could be considered that would statutorily limit the
availability of LWOP for juvenile offenders.








Author Information

Alison M. Smith

Legislative Attorney




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