The Court is Right: Children are 'Constitutionally Different.'


Individuals told as children that they are unworthy of ever living again in a free society have renewed hope this week because of a U.S. Supreme Court decision reaffirming its call to hold young people accountable in age-appropriate ways.

Now it is up to resentencing courts and parole authorities to ensure that happens.

The Supreme Court's historic ruling, in Montgomery v. Louisiana, held as retroactive its 2012 decision in Miller v. Alabama, which banned mandatory life without parole sentences for children. Montgomery is the fourth decision from our nation's highest court in just over a decade establishing that children are “constitutionally different” from adults, and that their child status is therefore relevant to sentencing—thereby making them less deserving of our harshest available punishments.

In the 6-3 decision written by Justice Anthony Kennedy, the Court said, “Miller… did more than require a sentencer to consider a juvenile offender's youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of 'the distinctive attributes of youth.'”

But the ruling alone does not guarantee that individuals eligible for relief will be granted their due meaningful opportunities for second chances. It is now the responsibility of state decision- makers—namely judges and parole board officials—as they consider the fate of the thousands of individuals granted relief under Montgomery, to focus on the family- and home-life circumstances these individuals encountered as children, and apply current adolescent development research to their assessments.

Most importantly, the Court's ruling means that authorities must look beyond the facts of the crimes—even those with the most tragic outcomes—to see the growth and potential for rehabilitation of the individuals before them.

If a child can be rehabilitated, he or she cannot be sentenced to life without parole.

Henry Montgomery, the petitioner in this week’s case, was convicted of killing a deputy sheriff in East Baton Rouge, La., in 1963. Montgomery was just 17.

In cases such as his, some resentencing judges or parole boards might be tempted to look only at the facts of Montgomery's crime from five decades ago and decide that the severity of his actions render him unworthy of a second chance. Now, doing so would constitute a clear violation of the Court's decision.

Instead, the re-sentencing court or parole board must consider evidence that demonstrates Montgomery has been a role model for fellow inmates. He was a coach and trainer for a boxing team he established, worked in the prison silk-screening shop, and served as a counselor to other prisoners. They must consider evidence of his remorsefulness, and his work to rehabilitate himself.

When individuals like Montgomery can show they have been rehabilitated, or have the potential to be rehabilitated, they must be given a new sentence that either ensures a second chance or allows them to earn a second chance. This ruling gives hope to individuals sentenced as children to die in prison—and to their families. Many have been afraid to dream of this new day, because in the four years since the Miller decision, some judges have disregarded the Court's call to make life-without-parole sentences for children “uncommon.”

Some parole boards have greeted individuals coming up for review with hearings that essentially constituted new trials while denying them the right to counsel and giving weight only to the prosecution's position.

The acknowledgement that “kids are different”—which forms the very core of the Miller decision and has been embraced by many policy and opinion leaders, including conservative columnist George Will, Pope Francis and President Obama—has been recklessly disregarded.

This week's ruling makes clear that this must change.

The new standard for reviewing the sentences of those previously condemned as children to die in prison not only inspires hope. It is a strong message to decision-makers charged with reviewing these cases, requiring them to employ a more robust process that includes, among others, the following key elements:

  • Right and access to counsel before judges and parole boards for individuals being resentenced;
  • A qualified defense team trained in representing children and experienced with homicide cases, as articulated in the Campaign for the Fair Sentencing of Youth's “Trial Defense Guidelines: Representing a Child Facing a Possible Life Sentence ;”
  • Hearings that resemble those in capital cases, where the results of a full investigation of the defendant's life are presented.

The fates of thousands of individuals now rest in the hands of these judges and parole boards. Justice and the letter of the law demand that resentencing authorities affirm that children are different from adults and ensure that their reviews of these cases appropriately account for both these differences and for children's unique capacity for rehabilitation.

As Justice Kennedy concluded in this week's decision, “In light of what this court has said in Roper, Graham, and Miller about how children are constitutionally different from adults in their level of culpability, … prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.”

Jody Kent Lavy is director and national coordinator at the Campaign for the Fair Sentencing of Youth, the only national organization working exclusively to replace life-without-parole and other extreme sentences for youth with age-appropriate, trauma-informed accountability. She welcomes comments from readers.

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