Children Are Constitutionally Different, But Life Without Parole and De Facto Life Sentences Are Not:  Extending Graham and Miller to De Facto Life Sentences

October 1, 2023

Under the U.S. Supreme Court’s current juvenile sentencing jurisprudence, a juvenile may legally receive a prison sentence of hundreds of years without parole in instances in which a sentence of life without parole would be unconstitutional.  This illogical state of affairs is the result of the Court’s silence on whether its holdings in Graham v. Florida and Miller v. Alabama, which together limit the availability of juvenile life without parole sentences, also apply to so-called de facto life sentences.  De facto life sentences are lengthy term-of-years sentences that confine offenders to prison for the majority, if not the entirety, of their lives.  Whether Graham and Miller apply to such sentences has been the subject of staunch disagreement among various federal courts of appeals, leaving some juvenile defendants’ hopes for eventual life out of prison up to the interpretive whims of the judges in their jurisdiction.

This Note contends that although the Supreme Court has taken important steps toward protecting juveniles from receiving cruel life without parole sentences, its decisions mean little if sentencing judges are allowed to impose term-of-years sentences that are functionally equivalent.  This Note argues that to close this sentencing loophole, Graham and Miller should apply equally to life without parole and de facto life sentences.  Given the Supreme Court’s apparent unwillingness to clarify this issue, this Note posits that it is incumbent upon state courts to step in.  By extending Graham and Miller to bar de facto life sentences under their state constitutions, state judges would not only protect juveniles from cruel and unusual punishment, but also create the basis for more expansive Supreme Court juvenile sentencing jurisprudence in the future.

October 2023

No. 1