DEATH BY INCARCERATION AS A CRUEL AND UNUSUAL PUNISHMENT WHEN APPLIED TO
JUVENILES: EXTENDING ROPER TO LIFE WITHOUT PAROLE, OUR OTHER DEATH PENALTY
Robert Johnson, Ph.D.* and Sonia Tabriz**

[University of Maryland Law Journal of Race, Religion, Gender and Class. 9 (2) 2009: 30-47 (forthcoming)]

I. Introduction
In Roper v. Simmons,1 the United States Supreme Court held that juveniles2 could not be
subjected to the death penalty.3 The Court emphasized that the well-documented immaturity of
juveniles makes them less culpable for their crimes and less easily deterred by the threat of
punishment.4 The Court also stressed the unformed characters of juveniles, which raised the
possibility of reform and even forgiveness for their crimes:5 Neither reform nor forgiveness is
possible with a final and irrevocable punishment such as execution because ending a juvenile’s
life prevents him from attaining “a mature understanding of his own humanity.”6 Finally, the
Court emphasized “evolving standards of decency” as evidenced by a number of state

* Professor of Justice, Law and Society, American University.
** Honors Student of Law and Society & Psychology, American University.
1

543 U.S. 551 (2005).

2

Juveniles are offenders who committed their crimes before turning 18. See id. at 574-75.

3

Id. at 568.

4

Id. at 569-71.

5

Id. at 570.

6

Id. at 574. The Court emphasizes that “there are two distinct social purposes served by the death penalty:
‘retribution and deterrence of capital crimes by prospective offenders.’” Id. at 571. As noted, these apply to
juveniles with “lesser force” due to their “diminished culpability.” Id. at 572. Significantly, while the Court does
not categorize reform or forgiveness as formal penological objectives, it is implied that, in principle, they are
possible with any punishment that offers a chance for the person to attain a “mature understanding of his own
humanity,” which requires at least the prospect of reentry into the free society. Id. at 574. See also ROBERT
JOHNSON, HARD TIME: UNDERSTANDING AND REFORMING THE PRISON 314-321 (3rd ed. 2002).

legislatures prohibiting the execution of juveniles and the increasingly rare execution of juveniles
in states where capital sentences are permissible.7 For these reasons, the Court held that death by
execution, when applied to juveniles, is cruel and unusual punishment and violates the Eighth
Amendment to the Constitution of the United States.8
In this article, we maintain that the Eighth Amendment also prohibits sentencing
juveniles to life without parole because this sanction is a death sentence in its own right. A
sentence of life without parole amounts to “death by incarceration”9 since offenders are
sentenced to die in prison, making this sanction “our other death penalty.”10 Our justice system
should not subject juveniles to death by incarceration for the same reasons that the Court in
Roper prohibited the use of death by execution with juveniles. It is well established and
accepted by the Court that, as a class, juveniles are inherently immature, impulsive, and
vulnerable to social pressure.11 Their characters are not fully formed, and hence the Court in
Roper viewed them as capable of change, and deserving of the opportunity to change.12 These

7

Roper, 543 U.S. at 567. (“As in Atkins, the objective indicia of consensus in this case—the rejection of the juvenile
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 our society views
juveniles, in the words Atkins used respecting the mentally retarded, as “categorically less culpable than the average
criminal.”). See also Thompson v. Oklahoma, 487 U.S. 815, 856 (1988) (O’Connor, J., concurring) (“Because the
death penalty is the most severe punishment, the Eighth Amendment applies to it with special force.”).

8

U.S. CONST. amend. VIII. See also Roper, 543 U.S. at 560, 568.

9

Accordingly, we use interchangeably the terms “death by incarceration,” “life without parole” (abbreviated as
“LWOP”), and “our other death penalty.” More often than not, we use the term death by incarceration to emphasize
that it is death—whether by execution or incarceration—that is the intended result of America’s two death penalties.
Also, we use the term “lifer” to refer to offenders serving a life-without-parole sentence.
10

Robert Johnson & Sandra McGunigall-Smith, Life Without Parole, America’s Other Death Penalty: Notes on Life
Under Sentence of Death by Incarceration, 88 THE PRISON J. 328 (2008), available at
http://tpj.sagepub.com/cgi/reprint/88/2/328.pdf. See also EQUAL JUSTICE INITIATIVE, CRUEL AND UNUSUAL:
SENTENCING 13- AND 14- YEAR-OLD CHILDREN TO DIE IN PRISON 4 (2008).
11

Roper, 543 U.S. at 569-71.

12

Id.

1

inherent attributes of adolescents reduce the culpability of juveniles and their susceptibility to
deterrence,13 making a final and irrevocable sanction like death by incarceration fundamentally
inappropriate.
Moreover, death by incarceration, like death by execution, denies juveniles the
opportunity to mature and earn forgiveness for their transgressions. The Court in Roper held that
juvenile offenders are inherently immature and irresponsible, but they often outgrow these
characteristics in adulthood under normal social conditions.14

However, prisons do not

promote―and rarely even permit―this positive growth and maturation.
definition, settings of punishment, not forgiveness.15

Prisons are, by

A lifetime of prison, in other words,

amounts to a lifetime of adolescent immaturity in a setting expressly designed to inflict
punishment.
Finally, death by incarceration is the most common sentence imposed on adult capital
murderers, since juries tend to select life without parole over death by execution.16 The rate at

13

Id.

14

See id. at 570 (“[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of
youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years
can subside” (quoting Johnson v. Texas, 509 U.S. 350, 368 (1992))). See also id. (“For most teens, [risky or
antisocial] behaviors are fleeting; they cease with maturity as individual identity becomes settled. Only a relatively
small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem
behavior that persist into adulthood” (quoting Elizabeth S. Scott & Laurence Steinberg, Less Guilty by Reason of
Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 AM.
PSYCHOLOGIST 1009, 1014 (2003))).
15

The modern prison is devoted to “warehousing, punishment, and retribution.” See H. BRUCE FRANKLIN, PRISON
WRITING IN THE 20TH CENTURY 338 (Penguin, 1998). See also ROBERT JOHNSON, HARD TIME: UNDERSTANDING
AND REFORMING THE PRISON 3 (3rd ed. 2002); ELIZABETH S. SCOTT & LAURENCE STEINBERG, RETHINKING
JUVENILE JUSTICE, 208-11 (2008).
16

See Death Penalty Information Center, Facts About the Death Penalty (September 17, 2009),
http://www.deathpenaltyinfo.org/documents/FactSheet.pdf; see also AMNESTY INTERNATIONAL USA, Death Penalty
Trends (August 2009), available at http://www.amnestyusa.org/abolish/factsheets/DeathPenaltyFacts.pdf. See also
AMNESTY INTERNATIONAL USA, Executions By State in the U.S. (September 22, 2009), available at
http://www.amnestyusa.org/death-penalty/death-penalty-facts/executions-by-state/page.do?id=1011590. It is
revealing that the State of Texas, which until recently did not allow capital juries to consider LWOP as an
alternative to death by execution, has had far and away the highest rate of capital sentences and executions in the

2

which juries select death sentences (death by execution) has dropped dramatically while the
popularity of death by incarceration has grown.17 This trend reaffirms the role of death by
incarceration as our “other death penalty.” As such, death by incarceration should be excluded
from use with juvenile offenders. Following the logic of Roper, lifetime incarceration is too
severe a sanction for a juvenile offender who is less culpable than an adult offender and
possesses an inherent ability to change under suitable conditions. We contend that a life sentence
with the possibility of parole should constitute the most extreme sanction permissible for juvenile
offenders. This sentence leaves open the opportunity for personal change, forgiveness, and
ultimately, a chance at life in free society.
II. THE ESSENTIAL GOALS OF PUNISHMENT, RETRIBUTION AND DETERRENCE, CANNOT BE
ACHIEVED BY DEATH BY INCARCERATION WHEN APPLIED TO JUVENILE OFFENDERS
Roper barred the execution of juveniles, in part, because juveniles as a class are
inherently immature, impulsive, short-sighted, and vulnerable to social pressure.18 Moreover,

nation. Id. Uniformly, states that offered LWOP as a sentencing option have dramatically lower rates of capital
sentences and executions. Id. See also Paul Purpura, Surge in Death Penalty Prosecutions Slows in Jefferson Parish,
THE TIMES-PICAYUNE (New Orleans), July 6, 2009, available at
http://www.nola.com/news/index.ssf/2009/07/surge_in_capital_cases_slows_i.html. In the words of Denny Leboeuf
of New Orleans, director of the ACLU’s John Adams Project, “Executions are down, death sentences are down,
capital prosecutions are down…” See also Interview with Harun Shabazz, Death Penalty Defense Unit, Office of the
Maryland State Public Defender’s Office (June 17, 2009) (“since the LWOP sentencing option was introduced in
Maryland in 1987, jurors are more likely to give a non-death sentence in a capital case. Moreover, prosecutors are
more likely to enter a plea agreement in which the death notice is dropped. For instance, in Baltimore County, cases
litigated under the old rules (with no LWOP sentencing option) resulted in a 44% death sentence rate.
Subsequently, cases litigated under the new rule (with the LWOP sentencing option) resulted in a 19% death
sentence rate.”). Thus, the experience in Maryland is that the rate of death sentences has dropped substantially since
the introduction of life without parole as an option. See also DEATH PENALTY INFORMATION CENTER, Studies: Ohio
Prosecutors Increasingly Seeking Life Without Parole Instead of Death Penalty (citing A. Welsh-Huggins, Ohio
Prosecutors Using New Life Without Parole Option, AKRON BEACON J., June 22, 2008) (“there has been a sharp
drop in the use of the death penalty in Ohio as prosecutors are taking advantage of a new law allowing them to seek
a sentence of life without parole without first pursuing the death penalty.”).
17

AMNESTY INTERNATIONAL USA, Death Penalty Trends (August 2009),
http://www.amnestyusa.org/abolish/factsheets/DeathPenaltyFacts.pdf.

18

Roper, 543 U.S. at 569 (“[J]uveniles are more vulnerable or susceptible to negative influences and outside
pressures, including peer pressure.”).

3

their characters are not fully formed.19 In other words, juveniles are immature through no fault of
their own; their personalities are works in progress.20 By clear implication, juveniles can change
and hence might one day earn forgiveness for their transgressions. As a result of these attributes,
the Court in Roper determined that the two main purposes of punishment, retribution and
deterrence, cannot be successfully achieved when the death penalty (death by execution) is
applied to juveniles.21 Juveniles should not be subjected to final and irrevocable sanctions like
the death penalty as a proportionate punishment for even the worst crimes.22 The death sentence
will not effectively deter juveniles since they lack self-control.
We suggest that retribution and deterrence cannot be achieved by sentencing juveniles to
death by incarceration, our other death penalty. Offenders sentenced to death by incarceration
experience a civil death. By “civil death” we mean that “their freedom―the essential feature of
our civil society―has come to a permanent end.”23 Therefore, in the same way that the final and
irrevocable nature of death by execution makes it an ill-suited and disproportionate punishment
for juvenile offenders, the final and irrevocable nature of death by incarceration is too severe a
sanction for juveniles as well.

19

Id. at 569-71.

20

See Andrew Von Hirsch, Proportionate Sentences for Juveniles: How Different Than Adults? 3 PUNISHMENT AND
SOC’Y 221, 223 (2001).
21

Roper, 543 U.S. at 574.

22

See ELIZABETH S. SCOTT & LAURENCE STEINBERG, RETHINKING JUVENILE JUSTICE 131-39 (2008). By contrast,
an adult who is merely immature is fully culpable for his actions. The immaturity of adult offenders is seen as an
aggravating condition, adding to the likelihood of severe punishment.

23

Johnson, supra note 10 at 328-29 (2008).

4

The sentence of death by incarceration is explicitly designed to bring finality to life
sentences by precluding the possibility of parole.24 Under the sentence of death by incarceration,
it can be said as a matter of law that “life means life” because these prisoners are slated to spend
the remainder of their natural lives behind bars, gaining release only upon their deaths.25 This
sentence, like a death sentence, is final and absolute by its very terms. And while it is true that
any sentence can be changed while the prisoner is alive, the fact that sentences of death by
incarceration can, in theory, be changed during the life of the prisoner may lead some to infer
that this sanction is not, in practice, final and irrevocable. But as we have noted, sentences of
death by execution also can be changed during the life of the condemned prisoner, a life that can
extend for many years (over twenty years on some death rows).26
In fact, sentences of death by execution are changed often, because these sentences are
frequently the subject of successful litigation. Some litigation, for example, has given rise to
decisions that emptied existing death rows27 or removed certain classes of people from the

24

ASHLEY NELLIS & RYAN KING, THE SENTENCING PROJECT, NO EXIT: THE EXPANDING USE OF LIFE SENTENCES IN
AMERICA 1, 4 (2009), available at http://www.sentencingproject.org/doc/publications/inc_noexit.pdf (“Even though
life sentences [h]ave existed for a long time, historically they were generally indeterminate, with the possibility of
parole to serve as an incentive for behavioral modifications and improvements...The expansion of LWOP sentencing
in particular was intended to ensure that ‘life means life.’”).
25

See SCOTT E. SUNDBY, A LIFE AND DEATH DECISION: A JURY WEIGHS THE DEATH PENALTY 37 (2005). Even so,
prosecutors may try to raise doubts about whether life without parole really means that the prisoner is locked up for
his life. Unless such doubts are directly addressed by the defense, there may be a tendency for jurors to doubt the
finality of this sanction since, in principle, any sanction, including death by execution, can be changed at some point
in the future. Similarly, some jurors are inclined to doubt the finality of death by execution because they doubt the
finality of all sentences.
26

Death Penalty Information Center, Time on Death Row, http://www.deathpenaltyinfo.org/time-death-row (last
visited Dec. 27, 2009) (“Death row inmates in the U.S. typically spend over a decade awaiting execution. Some
prisoners have been on death row for well over 20 years.”).
27

See Furman v. Georgia, 408 U.S. 238 (1972); see also Woodson v. North Carolina, 428 U.S. 280 (1976).

5

purview of death by execution.28 These various cases resulted in the release of thousands of
formerly condemned prisoners into the general prison population with life or life without parole
sentences.29 Moreover, beyond the sweeping effects of changes in case law, sentences of death
by execution are regularly overturned on an individual basis. Research reveals that as many as
sixty percent of capital sentences are reversed on appeal, leading to sentences of life without
parole (death by incarceration), life with parole, and, in some cases, to lesser, negotiated
sentences or even acquittal.30 There is no comparable body of cases that applies to sentences of
death by incarceration, and existing evidence suggests that these sentences are rarely voided or
changed for any reason.31 Thus, in practice, death by incarceration may well be more final and
irrevocable than sentences of death by execution.32
Offenders sentenced to death by incarceration, like prisoners condemned to death by
execution, experience a final and irrevocable sentence that culminates in deaths that are untimely
28

See Ford v. Wainwright, 477 U.S. 399 (1986) (exempting the insane from the execution-eligible population). See
also Coker v. Georgia, 433 U.S. 584 (1977) (exempting rapists); Atkins v. Virginia, 536 U.S. 304 (2002) (exempting
the mentally retarded); Roper v. Simmons, 543 U.S. 551 (2005) (exempting juveniles).

29

See BUREAU OF JUSTICE STATISTICS, OFFICE OF JUSTICE PROGRAMS, U.S. DEPARTMENT OF JUSTICE, CAPITAL
PUNISHMENT, 2007 – STATISTICAL TABLES (2007),
http://www.ojp.usdoj.gov/bjs/pub/html/cp/2007/tables/cp07st10.htm. Of the 7,547 persons sentenced to death
between l977 and 2007, 3,228 (or 42.8%) have been removed from death row primarily because of successful
appeals. Id. See generally JOAN M. CHEEVER, BACK FROM THE DEAD: ONE WOMAN’S SEARCH FOR THE MEN WHO
WALKED OFF AMERICA’S DEATH ROW (2006).
30

See JAMES S. LIEBMAN, JEFFREY FAGEN & VALERIE WEST, A BROKEN SYSTEM: ERROR RATES IN CAPITAL
CASES,1973-1995, ii-iii (2000), available at
http://www2.law.columbia.edu/instructionalservices/liebman/liebman_final.pdf.
31

See SUNDBY, supra note 25, at 38 (“[S]ince l978 in California, no one has ever had a life sentence commuted to a
lesser sentence.”).
32

See Paul Purpura, Surge in Death Penalty Prosecutions Slows in Jefferson Parish, THE TIMES-PICAYUNE (New
Orleans), July 6, 2009, available at
http://www.nola.com/news/index.ssf/2009/07/surge_in_capital_cases_slows_i.html. The drop in death sentences, in
the words of Jelpi Picou, executive director of the Capital Appeals Project in New Orleans, “reflects the emerging
view that life without parole is an incredibly serious punishment and that juries, prosecutors, the public and family
members of victims are increasingly preferring the certainty of [this] sentence over the confusions, delays, multiple
retrials and high error rates that are inherent in capital cases.” Id.

6

and undignified.33 Long-term prisoners, and especially those serving terms of life without parole,
can be expected to experience poor health relative to their cohorts in the free world. This
problem escalates dramatically after they reach the age of fifty, leading to shortened life
expectancies and early deaths.34 Most of these prisoners die “alone, unmourned, a disgrace in
the person’s own eyes as well as in the eyes of society.”35 In cases of death by incarceration as
33

See ROBERT JOHNSON, DEATH WORK: A STUDY OF THE MODERN EXECUTION PROCESS 151-63 (2nd ed. 1998).

34

See James W. Marquart, Dorothy E. Merianos & Geri Doucet, The Health Related Concerns of Older
Prisoners:Implications for Policy, 20 AGING & SOCIETY 79, 85 (2000). See also Seena Fazel et al., Health of Elderly
Male Prisoners: Worse than the General Population, Worse than Younger Prisoners, 30 AGE & AGEING 403, 404–
06 (2001), available at http://ageing.oxfordjournals.org/cgi/reprint/30/5/369.pdf.; CHRISTOPHER J. MUMOLA &
MARGARET E. NOONAN, U.S. DEP’T OF JUSTICE, DEATHS IN CUSTODY STATISTICAL TABLES 15 (2009), available at
http://www.ojp.usdoj.gov/bjs/dcrp/dcst.pdf; Melonie Heron et al., Deaths: Final Data for 2006,NAT’L VITAL
STATISTICS REP., Apr. 17, 2009, at 1, 22, available at http://www.cdc.gov/nchs/data/nvsr/nvsr57/nvsr57_14.pdf. (For
a six year period (2001-2006), the annual average rate of illness-related death in state prison rose sharply from thirty
per 100,000 for inmates aged twenty-five to thirty-four, to 118 per 100,000 for those aged thirty-five to forty-four,
and then up to 493 deaths per 100,000 for those forty-five to fifty-four and quadrupling again to 1,987 per 100,000
for those fifty-five and over. The comparable mortality rate for Americans in the free world for men fifty-five and
over is 659.7 per 100,000, or fully two thirds lower than the prison rate. The older prisoners dying in prison today
are not primarily prisoners serving LWOP, but these mortality figures suggest that this is the death rate those
prisoners will likely experience as they age.); Brie Williams & Rita Abraldes, Growing Older: Challenges of Prison
and Reentry for the Aging Population, in PUBLIC HEALTH BEHIND BARS: FROM PRISONS TO COMMUNITIES 56, 56,
58-59, 61-64 (Robert Greifinger ed., 2007). Although prisoners have complicated health histories and the delivery of
health care services in prison is an immensely challenging undertaking, these statistics are nevertheless troubling.
35

Johnson, supra note 10 at 344. See also RONALD H. ADAY, AGING PRISONERS: CRISIS IN AMERICAN CORRECTIONS
128 (2003); see also JOHN CORLEY, LIFE IN FOUR PARTS: A MEMOIR, IN EXILED VOICES: PORTALS OF DISCOVERY –
STORIES, POEMS, AND DRAMA BY IMPRISONED INMATES 41, 53-54 (Susan Nagelsen ed.2008).
Anecdotal evidence on untimely and undignified deaths in prisons can be quite compelling. Describing the
frequency of death in Angola prison in a recent seven-year period, LWOP inmate John Corley observed the
following: “196 prisoners died in Angola, an average of about 30 per year. Five were killed by the state, two were
killed by other inmates, four killed themselves. The 185 others, average age slightly over fifty, died of a variety of
ailments and diseases. Seven were thirty or younger; the youngest was nineteen. Nineteen were over seventy, the
oldest eighty-three.” The grim circumstances of these deaths were described as follows: “They died from the
recklessness and deprivation of their pasts, the drugs and booze, the poverty leading to undiagnosed health
conditions. They died because years of continuous incarceration sucked the very life from them, slowly, a day at a
time, a torment worse than an inquisitional persecution. They died in dark rooms behind locked doors calling for
their mamas.” Id. at 53. See also Marilyn Buck, Dear Liz, 30 FEMINIST STUD. 274 (2004). The horrors of a death
in prison are the subject of prisoner poetry, including a poem by Marilyn Buck, an LWOP inmate (a “lifer”), called
“Dear Liz”: “we talked of death / there was no one else who would / talk of death makes people nervous / tongues
stutter / we are all dying every day / you told me you wanted to scream / you’re not dying / like I’m dying / alien
forms feed on my flesh / they are nearly finished.” See also Marilyn Buck, Not a Life Sentence, 30 FEMINIST STUD.
276 (2004). Buck’s “Not a Life Sentence” is about a woman serving a short term who dies before her sentence ends
due to poor medical care, a chronic complaint of prisoners: “only a few years to do / the prisoner’s health crumbles /
their complaints callously dismissed / shut up in correction’s closets / only a year left to do / the prisoner dies.” Id.
Often, prisoners are demonized even in death, dying in shackles, in isolation from even the few friends they may
have made in prison. See Margeret Ratcliff, Dying Inside the Walls, 3 J. PALLIATIVE MED. 509, 509-11 (2000).
See also ERIN GEORGE, A WOMAN DOING LIFE (forthcoming 2010).

7

well as death by execution, death is the intended and expected outcome of the sentence. With
both sanctions, death is untimely because it is hastened by the actions of the state. These deaths
are also undignified, occurring with the stigma of dying in the intrinsically degrading conditions
of America’s maximum security prisons.36
Death by incarceration is a death sentence and should therefore be reserved, alongside
death by execution, for the worst offenders. Today, as a practical matter, we restrict death by
execution to adults convicted of capital murder.37 If we maintain this restriction with sentences
of death by incarceration, we would achieve retributive justice: culpable adult capital murderers
would give their civil lives―permanently forfeiting their freedom―in return for the natural lives
they have taken.38 Any other application of the sentence of death by incarceration would be
unjustified; the punishment would be excessive and therefore disproportionate to the crime
committed. By this reckoning, we argue that death by incarceration should be reserved for the
crime of capital murder committed by an adult offender, subject to the procedural safeguards
attendant to capital trials.39 Much of the Supreme Court’s death penalty jurisprudence is
premised on the notion that “death is different,” meaning that death is uniquely final, irrevocable,

36

See ROBERT JOHNSON, LIFE UNDER SENTENCE OF DEATH: HISTORICAL AND CONTEMPORARY PERSPECTIVES, IN
AMERICA’S EXPERIMENT WITH CAPITAL PUNISHMENT: REFLECTIONS ON THE PAST, PRESENT, AND FUTURE OF THE
ULTIMATE PENAL SANCTION 647, 661-65 (James R. Acker et al. eds., 2d ed. 2003); VICTOR HASSINE, LIFE WITHOUT
PAROLE: LIVING IN PRISON TODAY 184-86, 193-94, 222 (quoting Robert Johnson & Ania Dobrzanska eds., Oxford
Univ. Press 4th ed. 2009) (1996).
37

See DEATH PENALTY INFORMATION CENTER, Death Penalty for Offenses Other than Murder,
http://www.deathpenaltyinfo.org/death-penalty-offenses-other-murder (last visited Dec. 27, 2009). There are capital
crimes on the books other than murder, but no one has been executed for a crime other than murder since the
reinstatement of the modern death penalty in 1976. Id.

38

See Robert Johnson, A Life for a Life?, 1 JUST. Q. 569, 577-78 (1984); see also Johnson, supra note 33 at 242-43.

39

See Johnson, supra note 10 at 344. See also HUGO ADAM BEDAU, DEATH IS DIFFERENT: STUDIES IN THE
MORALITY, LAW AND POLITICS OF CAPITAL PUNISHMENT 4 (1987); see also Gregg v. Georgia, 428 U.S. 153, 188
(1975).

8

and severe.40 It is our contention that death by execution is different from other sanctions in
essentially the same way that death by incarceration is different from other sanctions.
For our purposes here, it is clear that the sentence of death by incarceration should be
strictly prohibited for any juvenile crime, no matter how severe. The Court in Roper offers
support for this proposition: “Retribution is not proportional if the law’s most severe penalty is
imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by
reason of youth and immaturity.”41 Death by incarceration is one of the two most severe
penalties prescribed by the law―each a form of death penalty. Therefore, based upon the Court’s
own reasoning in Roper, this sanction should be prohibited with regard to juvenile offenders.
The sentence of death by incarceration also fails to serve as a viable deterrent, which was
another primary purpose of punishment considered by the Court in Roper, in the same way that
death by execution fails to serve as a viable deterrent.42 Life without parole is, of course, a
severe sanction, but the Court made no effort to argue that juveniles would be deterred by this
sanction any more effectively (or ineffectively) than by a sentence of death. The opposite is
likely true, based upon the reasoning of the Court. Death by incarceration involves a death in
prison that will be, in many cases, even more distant in time, and hence more abstract and
psychologically remote to juveniles than death by execution.

40
41

See also Bedau, supra note 39 at 4; see also Gregg, 428 U.S. at 188.
Roper v. Simmons, 543 U.S. 551, 571 (2005).

42

Juveniles have been recognized by the Court as unlikely to employ “the kind of cost-benefit analysis that attaches
any weight to the possibility of execution.” Id. at 561-62. The Court did note that any “residual deterrent effect” of
the death penalty was not lost since “the punishment of life imprisonment without the possibility of parole is itself a
severe sanction, in particular for a young person.” Id. at 572.

9

The Court pointed to the inherent immaturity and impulsivity of juveniles to explain why
they are less culpable for their crimes and less likely to be deterred by the threat of punishment.43
By the same token, juveniles are also unlikely to be deterred by the threat of death by
incarceration. Because juveniles are characterized by “an underdeveloped sense of
responsibility,”44 they are far less likely to have performed an intricate cost-benefit analysis, a
characteristic of a mature adult, prior to committing their crime. It is also unlikely that a juvenile
can fully comprehend the absolute nature of a death penalty, whether by incarceration or by
execution. Death by incarceration is a final and irrevocable sanction that unfolds over years or
even decades in captivity, culminating in an untimely, undignified, and often physically painful
death due to violence or debilitating illness.45 These deaths are, in our view, likely more painful
and perhaps even less dignified than deaths by execution. We wonder if the typical adult
offender can fully appreciate the enormity of death by incarceration and the nature of death in
confinement at some unknown but often distant point in the future. If adult felons are unlikely to
fully comprehend the sentence of death by incarceration, surely it is beyond a juvenile’s
comprehension.
As the plurality held in Thompson v. Oklahoma,46 an earlier Supreme Court case
prohibiting the execution of juveniles ages fifteen and under, the notion of deterrence among
juveniles is “so remote as to be virtually nonexistent.”47 Successful deterrence requires that the

43

Id. at 569-71.

44

Id. at 569.

45

Violence (including suicide) and illness (including AIDS) are the main causes of death in prison. See Christopher
J. Mumola & Margaret E. Noonan, U.S. Dep’t of Justice, Deaths in Custody Statistical Tables 3 (2009), available at
http://www.ojp.usdoj.gov/bjs/dcrp/dcst.pdf.
46

487 U.S. 815 (1988).

47

Roper, 543 U.S. at 572.

10

potential offender possess a fully developed and rational mind. Thompson and, subsequently,
Roper, which extended the ban on executions to all juveniles, demonstrates that the Court has
agreed that juveniles are, by nature, immature in their thoughts and actions, and hence incapable
of grappling with the sorts of concepts and ideas that would lead to deterrence.48

Thus,

deterrence not only fails to provide an adequate justification for sentencing juveniles to death by
execution, but also fails to provide an adequate justification for sentencing juveniles to death by
incarceration.
III. DEATH BY INCARCERATION FAILS TO PROVIDE JUVENILE OFFENDERS WITH A CHANCE AT
REFORM AND FORGIVENESS
In keeping with the Court’s contention in Roper, all juvenile offenders, no matter how
serious their crimes, should be afforded the possibility of reform. According to Roper, “the
signature qualities of youth are transient: as individuals mature, the impetuousness and
recklessness that may dominate in younger years can subside.”49 As a result, “a greater
possibility exists that a minor’s character deficiencies will be reformed.”50
A sentence of death by incarceration would preclude reform51 and the possibility to earn
forgivness, which Roper also found true of death by execution.52 Prisons are not settings of
forgiveness. Nor are they settings in which young persons can mature into responsible, moral
adults. Prisons are monuments to punishment and exclusion, and the code of life in prison

48

Id. at 561; Thompson, 487 U.S. at 835.

49

Roper, 543 U.S. at 570.

50

Id.

51

Id. at 569-71.

52

Id. at 569-71.

11

embodies the exact sort of immaturity, impulsivity, and aggression that the Court in Roper
claims that juveniles may overcome if given suitable punishments.53 Under present sentencing
practices, however, juveniles as young as thirteen years old, some of them first time offenders,
have been sentenced to death by incarceration.54 To deny juveniles, as a matter of law, any hope
that they may one day escape the moral cesspool that is prison, is to condemn them to a lifetime
of extreme suffering that is ended only by their deaths. More importantly, to deny them even the
opportunity to be heard by a parole board is to ignore the most basic premise upon which the
Court in Roper ruled: “When a juvenile offender commits a heinous crime, the State can exact
forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his
potential to attain a mature understanding of his own humanity.”55
A sentence of death by incarceration extinguishes the juvenile’s life in a free society,
condemning him to a mere existence in the often brutal netherworld of prison. A life relegated to
prison, where emotional immaturity is the norm, effectively extinguishes the juvenile’s potential
to attain “a mature understanding of his own humanity.”56 As they age, juveniles serving life

53

See Johnson, supra, note 45 at 19-20, 135-55; see also VICTOR HASSINE, LIFE WITHOUT PAROLE: LIVING IN
PRISON TODAY 77, 112-14, 148-51, 159-64, 195, 217-18, 223-24 (citing Robert Johnson & Ania Dobrzanska eds.,
Oxford Univ. Press 4th ed. 2009) (1996).
54

See EQUAL JUSTICE INITIATIVE, CRUEL AND UNUSUAL: SENTENCING 13- AND 14- YEAR-OLD CHILDREN TO DIE IN
PRISON 4 (2008).
55

Roper, 543 U.S. at 573-74 (2005).

56

Id. at 574. See also Johnson, supra note 10 at 340 (2008).
I don’t know how I’m going to [make it]. There’s a man who lives next
door to me. He’s about seventy years old and his crime was multiple
murders back in the sixties. He has been in here ever
since…Sometimes I wonder if and how I’m going to manage living in
here that long. I think when you come to prison you stop developing
which is why he is also very childish. He got arrested at a very young
age like me and I wonder. I think it’s pretty obvious that I stopped
developing the minute I was arrested. You don’t develop in here. That
stops and you are basically stuck at whatever age you were when you
were arrested. So, I see this seventy year old man with the mentally

12

without parole can become more emotionally stable within the highly structured routine of prison
life, but they typically do not become more emotionally mature and autonomous; if anything,
lifers become less emotionally mature and autonomous and more dependent on prison routine to
manage their daily existence.57 They live on the surface of things, by routine and rote; their lives
are superficial, which is why lifers seem not to mature emotionally as the years pass. They
typically get through each day on “automatic pilot,” with little thought or reflection. Prisons can
be compared to a deep freeze in the sense that personal autonomy―the capacity for mature selfmanagement―stops at the point of entry into prison.
If one needed a good working definition of cruel punishment, it would be a lifetime of
extreme suffering that commences when the offender is a child, unformed in character and
susceptible to environmental pressures pushing him toward a future that is beyond his
comprehension, let alone his control. Can anyone seriously contend―or better, provide
evidence―that a juvenile has any meaningful understanding of a sentence to prison for the
remainder of his life? Given the coping deficiencies common to children, together with the
inordinately long sentences that stretch out before them, a sentence of death by incarceration is a
sanction more cruel even than death by execution. Death by execution at least offers an end to
the offender’s suffering within a decade or so, and can be legally accelerated if the prisoner

[sic] of a twenty-three year old and I was arrested when I was nineteen.
Id.
57

Robert Johnson & Ania Dobrzanska, Mature Coping Among Life-Sentence Prisoners: An Exploratory Study of
Adjustment Dynamics, 30(6) Corrections Compendium 8-9, 36-38 (2005). See also Johnson supra note 10 at 342.
LWOP inmates and other long-term inmates often cope better―and in a narrow sense, more maturely―with the
stresses of prison life than they did with the stresses of life in the free world, though the younger the prisoner is
when he starts his term, the more difficult the subsequent adjustment. See also VICTORIA R. DEROSIA, LIVING
INSIDE PRISON WALLS: ADJUSTMENT BEHAVIOR 29, 39-40 (1998).

13

drops his appeals and submits to execution.58 By contrast, many lifers and other prisoners are
confined in modern prisons in what amounts to long-term solitary confinement, and go long
periods without access to radio, television, or the company of others. The law provides no
escape for them. Psychological research suggests that the mental life of the long-term prisoner in
maximum, and especially supermaximum, incarceration is a tumultuous and precarious one, and
one marked by acute suffering, even agony, that must seem endless to the prisoner.59
Moreover, the punishment of death―the execution itself―especially using lethal
injection, is quick and may even be physically painless, particularly compared to the agony often
associated with the deaths suffered by lifers, who die from traumatic violent attack, suicide, or
chronic and often debilitating illness. And even if execution is physically painful, the pain of
execution lasts minutes, not days, months, or years, as is typically the case with deaths due to
illness, a main cause of death among lifers.60 It is clear, then, that the suffering of prisoners
condemned to death row is no more intense than that of prisoners relegated to long-term solitary
confinement or even regular maximum-security confinement for the remainder of their lives. For

58

See Elizabeth Cepparulo, Roper v. Simmons: Unveiling Juvenile Purgatory: Is Life Really Better than Death? 16
TEMP. POL. & CIV. RTS. L. REV. 225, 248-49 (2006); See also John H. Blume, Killing the Willing: “Volunteers,”
Suicide and Competency, 103 MICH. L. REV. 939, 939-40, 951-52 (2005); See also Craig Haney, A Culture of Harm:
Taming the Dynamics of Cruelty in Supermax Prisons, 35 CRIM. JUST. AND BEHAV. 956, 962 (2008); see also Terry
A. Kupers, What To Do With the Survivors? Coping With the Long-Term Effects of Isolated Confinement, 35 CRIM.
JUST. AND BEHAV. 1005, 1014 (2008); see generally David Lovell, Patterns of Disturbed Behavior in a Supermax
Population, 35 CRIM. JUST. AND BEHAV. 985 (2008); see also Peter Scharff Smith, The Effects of Solitary
Confinement on Prison Inmates: A Brief History and Review of the Literature, 34 CRIME AND JUST. 441, 476-88
(2006); see ROBERT JOHNSON, LIFE UNDER SENTENCE OF DEATH: HISTORICAL AND CONTEMPORARY PERSPECTIVES,
IN AMERICA’S EXPERIMENT WITH CAPITAL PUNISHMENT: REFLECTIONS ON THE PAST, PRESENT, AND FUTURE OF THE
ULTIMATE PENAL SANCTION 647 (James R. Acker, Robert M. Bohm & Charles S. Lanier eds., 2nd ed., 2003).
Death row confinement can offer comparable stresses, but the duration of death row confinement, on average, is
much shorter than the period of time in confinement served by LWOP inmates (“lifers”).
59

Haney, supra, note 58 at 956 and accompanying text (citing Craig Haney, Mental Health Issues in Long-Term
Solitary and “Supermax” Confinement, 49 CRIME & DELINQUENCY 124 (2003)).
60

Christopher J. Mumola, Medical Causes of Death in State Prisons, 2001-2004, Bureau of Justice Data Brief,
available at http://www.ojp.usdoj.gov/bjs/pub/pdf/mcdsp04.pdf.

14

juveniles, the remainder of their lives can extend for sixty, seventy, or even eighty years, which
makes a sentence of death by incarceration a remarkably severe and invasive sanction.
In the words of one juvenile prisoner sentenced to death by incarceration, “I wish I still
had the death sentence…Really, death has never been my fear. What do people believe? That
being alive in prison is a good life? This is slavery.”61 The slavery reference, though unsettling,
may be apt. The profound arbitrariness of sentencing juveniles to death by incarceration is
magnified by the racially biased way in which this death penalty is administered. Black juvenile
offenders receive the sentence of death by incarceration as much ten times more than white
juvenile offenders.62
Arbitrary and extreme suffering virtually eliminates any possibility that a juvenile can
improve himself and mature as a human being. Meaningful, positive change is only possible if
juvenile offenders have some hope that they may one day return to society. The opportunity to be
considered by a parole board gives juveniles a reason to strive to grow and show that they are
worthy of another chance at life in the free world. For some juvenile offenders, release may
never materialize. No one is guaranteed forgiveness and second chances must be earned. As a
practical matter, lifers with parole eligibility typically are released at a very low rate―as low as
.01 or .02 percent per year in California.63 But hope is kept alive by the promise that a person

61

Cepparulo, supra note 58 at 225.

62

See Letter from David C. Fathi, Director, US Program, Human Rights Watch, to the Secretary of the Committee
on the Elimination of Racial Discrimination (Feb. 26, 2008), available at
http://www.hrw.org/en/news/2008/02/26/united-states-was-not-forthcoming-and-accurate-its-presentation-cerd
(“Among the 2,381 US prisoners currently serving LWOP for crimes they committed as children, there are
staggering racial disparities, with black youth serving LWOP at a per capita rate ten times higher than white
youth.”); Letter from Human Rights Organizations to the Committee on the Elimination of Racial Discrimination
(Jun. 4, 2009), available at http://www.hrw.org/en/news/2009/06/04/letter-human-rights-organizations-cerdregarding-juvenile-life-without-parole-us.
63

See Alexander Cockburn, Dead Souls, THE NATION, May 4, 2009, at 9 (stating that…

15

will at some point get a parole hearing―an opportunity to be heard, re-evaluated, and possibly
granted a second chance at normal life. Hope, in turn, gives young offenders a reason to resist the
destructive forces at work in prison and to prepare for a future in the free world.64
IV. DEATH BY INCARCERATION IS THE PRIMARY PUNISHMENT IMPOSED ON ADULT CAPITAL
MURDERERS, EVIDENCE THAT IT IS A CRUEL AND UNUSUAL PUNISHMENT FOR JUVENILE
OFFENDERS
The Court in Roper barred the execution of juveniles, in part, because executions were
seen to violate “evolving standards of decency that mark the progress of a maturing society”65
and, thus, were cruel and unusual punishment. The Court used the behavior of state legislatures
as the measure of current standards of decency because legislatures presumably pass laws that
reflect the current standards of decency of the American people. In Roper, the Court considered
evidence that several state legislatures had recently passed laws that prohibited the execution of

[t]he focus on LWOP tends to blur the fact that it is very hard for lifers not doing LWOP to get out on
parole. Scott Handleman, an attorney in San Francisco who has spent much time representing prisoners in
parole cases, has been helpful with the chastening data. In California last year, 31,051 prisoners were
serving sentences of life with the possibility of parole. Of those, 8,815 have passed their “minimum eligible
parole date,” meaning they have served long enough to be receiving parole hearings. Of those, 6,272 had
hearings on the Board of Parole’s calendar last year. (Some prisoners serving beyond their minimum
eligible parole date do not get hearings in a given year because they were denied for multiple years in a
prior hearing.) Only 272 lifers were found suitable for parole by the board in 2008.
Moreover, the board’s decisions in these 272 cases were subject to Governor Schwarzenegger’s review.
The California governor has the power, in murder cases, to reverse the board’s ruling and take away the
parole date. For other life-sentence crimes, he can order the board to reconsider its decision. So only a
fraction of those whose parole cases got reviewed were actually released to the streets. In 2007 the board
found 172 lifers suitable for parole; Governor Schwarzenegger reversed 115 of those decisions, referred
eighteen back to the board for reconsideration, modified two and let stand only thirty-seven. That means in
2007 somewhere between thirty-seven and fifty-seven life-term prisoners got out of prison in the whole
state of California. Out of the roughly 30,000 prisoners who were serving sentences of life with the
possibility of parole in 2007, somewhere around 0.1 percent to 0.2 percent of these prisoners were
released… [R]elease for lifers is a rare phenomenon.).
64

See JOHN IRWIN, LIFERS: SEEKING REDEMPTION IN PRISON, 90-93, 101-02, 104 (2009). The hope that they might
atone for their crimes, redeem themselves, and once again live free appears to be a driving force in the adjustment of
some and perhaps many lifers as they age behind bars.
65

Roper v. Simmons, 543 U.S. 551, 561 (2005).

16

juveniles,66 that no legislature has passed laws in recent years that allowed the execution of
juveniles, and that the practice of actually executing juveniles was increasingly rare.67 In other
words, death by execution was alive and well with adult offenders, but was falling into disuse
with juvenile offenders. The Court in Roper also noted that Western countries that share our
democratic values had long ago banned the execution of juveniles,68 and concluded that the
actions of the state legislatures, perhaps buttressed by international trends,69 indicated that our
“evolving standards of decency” prohibit the execution of juveniles as a matter of constitutional
law.70 Juvenile offenders, the Court maintained, were “categorically less culpable than the
average criminal.”71 As a result, no matter how egregious the crime,72 the execution of a juvenile
offender would be excessive and hence would violate the Eighth Amendment ban on cruel and
unusual punishment.
66

Id. at 559-60 (citing State ex rel. Simmons v. Roper, 112 S.W.3d 397, 399 (Mo. 2003) (en banc)).

67

Id. at 567.

68

Id. at 578 (“It is proper that we acknowledge the overwhelming weight of international opinion against the
juvenile death penalty…” ); see id. at 575 (It is noted explicitly that the “juvenile death penalty” has been abolished
“by other nations that share our Anglo-American heritage, and by the leading members of the Western European
community…” ).
69

Id. at 575 (“Our determination that the death penalty is disproportionate punishment for offenders under 18 finds
confirmation in the stark reality that the United States is the only country in the world that continues to give official
sanction to the juvenile death penalty.”).
70

The Court opined that “[t]he death penalty may not be imposed on certain classes of offenders, such as juveniles
under 16, the insane, and the mentally retarded, no matter how heinous the crime” (citing Thompson v. Oklahoma,
487 U.S. 815 (1988); Ford v. Wainwright, 477 U.S. 399 (1986); Atkins v. Virginia, 536 U.S. 304 (2002)). Id. at 568.
According to the Roper Court, “[t]hese rules vindicate the underlying principle that the death penalty is reserved for
a narrow category of crimes and offenders.” Id. at 568-69. In Roper, this narrow category was construed to include
all juveniles because of their distinctive immaturity, consequently excluding them from death by execution
sentences. See id. at 564-70.

71

Id. at 567.

72

See Roper, 543 U.S. at 556-57. The crime in Roper was grievous by any standard, so the Court has clearly
determined that the persons in the category “juvenile offender” can commit heinous offenses for which they are
never fully culpable. The prosecutor in the Roper case indicated that the crime “involved depravity of mind and was
outrageously and wantonly vile, horrible, and inhuman.” Id. at 557. The facts of the case, as summarized in the
Roper holding, pointed to a calculated, cold-blooded, and indeed wanton infliction of violence on a bound, gagged,
and utterly helpless older woman. Id. at 556-57.

17

Western countries that share our democratic values and prohibit the execution of
juveniles have also abolished the use of executions with adults.73 Since there is no substantial
trend toward general abolition in the United States, this international trend toward abolition,
standing alone, seems to have no bearing on the Supreme Court’s capital punishment
jurisprudence.74 However, we suggest that “evolving standards of decency,” as they apply to the
death penalty with adults, may be seen today in America’s capital juries. Increasingly, capital
juries are foregoing death by execution in favor of life without parole.75 It is a matter of record
that, in many such cases, life without parole is expressly described by defense attorneys and even
judges as a form of death penalty, namely, death by incarceration.76
The declining rates of traditional death sentences (death by execution) in capital cases
imply that death by incarceration is becoming our main death penalty and consequently the
sentence we are using to punish what we have deemed to be the worst offenders: adult capital
murderers. This trend alone suggests that death by incarceration is an excessive sanction for
other adult offenders whose offenses are less serious than capital murder. And by this same
logic, death by incarceration is clearly an excessive sanction for any juvenile offender, since no

73

See AMNESTY INTERNATIONAL, DEATH SENTENCES AND EXECUTIONS IN 2008, at 5, 8, 17 (2009), available at
http://www.amnesty.org/en/library/asset/ACT50/003/2009/en/0b789cb1-baa8-4c1b-bc3558b606309836/act500032009en.pdf (“Europe and Central Asia is now virtually a death penalty free zone following
the abolition of the death penalty in Uzbekistan for all crimes. There is just one country left – Belarus – that still
carries out executions.”). In addition, the United States is the primary source of executions in the Americas. The
only countries that execute more than the United States are China, Iran and Saudi Arabia. Id.

74

See Roper, 543 U.S. at 577-78.

75

See supra note 17.

76

See Lisa Rogers, Judge to Holladay: ‘You Get to Come Out of Prison in a Pine Box,’ GADSDEN TIMES (Alabama),
June 26, 2009, available at http://www.gadsdentimes.com/article/20090626/NEWS/906269983/1/NEWS04?Title=Judge-to-Holladay-You-get-to-come-out-of-prison-in-a-pine-box- (“I can impose death by
incarceration in the sentence of life without the possibility of parole,” [Federal Judge Milligan] told [defendant]
Holladay, as Holladay stood shackled and chained in an orange and white striped uniform from the Etowah County
jail. “You get to come out of prison in a pine box. ”). Id.

18

juvenile offender is sufficiently culpable to be punished in the same way as an adult capital
murderer. If Roper stands for anything, it is that some punishments are acceptable for adults but
not children. Surely, the sanction of choice for the worst adult offenders is, by definition,
inappropriate for juveniles, regardless of the nature of their crimes. No Western society executes
juveniles.77 Furthermore, no society in the world―not merely in the West―subjects juveniles to
sentences of death by incarceration.78
V. CONCLUSION
The Court in Roper held that juveniles cannot and should not be subjected to death by
execution because of their inherently immature and underdeveloped characters. Juveniles are
less culpable for their crimes and more amenable to change under the appropriate
circumstances.79 According to the Court, evolving standards of decency, as evidenced by the
behavior of state legislatures and international trends, suggest that the American people consider

77

See HUMAN RIGHTS WATCH, ENFORCING THE INTERNATIONAL PROHIBITION ON THE JUVENILE DEATH PENALTY 12 (2008), http://www.hrw.org/sites/default/files/related_material/HRW.Juv.Death.Penalty.053008.pdf.
The prohibition on the death penalty for crimes committed by juvenile
offenders—persons under age 18 at the time of the offence—is well
established in international treaty and customary law.
The
overwhelming majority of states comply with this standard: only five
states are known to have executed juvenile offenders since 2005.…the
five states known to have executed juvenile offenders since 2005: Iran
(16 executions), Saudi Arabia (3 executions), Sudan (2 executions),
Yemen (1 execution), and Pakistan (1 execution). Id.

78

See Letter to the Secretary of the Committee on the Elimination of Racial Discrimination (Feb. 26, 2008),
http://www.hrw.org/en/news/2008/02/26/united-states-was-not-forthcoming-and-accurate-its-presentation-cerd.
Human Rights Watch reports that “The United States is the only country in the world that sentences children
(persons under the age of 18) to life in prison without possibility of parole or release (known as life without parole,
or LWOP).”. Id. See also Constance De la Vega & Michelle T. Leighton, Sentencing Our Children to Die in Prison:
Global Law and Practice 42 U.S.F. L. REV. 983, 985 (2008).

79

See Roper, 543 U.S. at 569-71. To recognize the immature and unformed character of juveniles, as the Court in
Roper has done, is to implicitly acknowledge that juveniles have a claim to social conditions, such as nurturance and
education, which foster their mature development. To sentence juveniles to death―by execution or
incarceration―is to completely disown those children, and hence to abrogate the responsibility we as a society must
bear in their development.

19

executing juveniles to be cruel and unusual punishment.80 Under the logic of the Roper holding,
and mindful of capital sentencing trends that lend insight into our current standards of decency,
we suggest that death by incarceration, our other death penalty, is also cruel and unusual
punishment when applied to juveniles. The Governor of Kentucky, quoted approvingly by the
Court in Roper, made the simple and direct observation that “[w]e ought not be executing people
who, legally, were children.”81 Neither should we lock up these children in adult prisons and
throw away the key.
We have two death penalties in America: death by execution and death by incarceration.
Death by incarceration, the sentence given when a jury or judge imposes a term of life without
parole, condemns the person to die in prison. This is a death sentence, plain and simple. Like
death by execution, death by incarceration is utterly unsuitable for children no matter how
serious the crime. The crime in Roper was egregious by any standard, and yet the Court held
that death by execution was an excessive punishment because the defendant was a juvenile.82
We extend the Court’s logic in Roper and argue that death by incarceration is always an
excessive punishment for juveniles as well. Even the worst juvenile offender deserves a sentence
that offers the possibility of release back into the free world and a second chance at life.

80

See Roper, supra note 7 and accompanying text.

81

Roper, 543 U.S. at 565.

82

Id. at 556–57.

20