In a series of recent cases, the Supreme Court has reaffirmed the profound significance of a juvenile offender’s age in sentencing,1 seemingly rendering youth status2 a mandatory sentencing consideration as a constitutional matter — in at least some cases — and under the statutory sentencing directive.3 Still, as a matter of policy, the Federal Sentencing Guidelines (Guidelines) — the required starting point for sentencing courts in federal cases and the benchmark for assessing the reasonableness of a sentence for appellate courts4 — discourage consideration of an offender’s youth and related circumstances in determining whether to depart from the recommended statutory sentencing range.5 Though after United States v. Booker6 the Guidelines have been advisory only,7 the Court has recognized that even advisory Guidelines can, at times, exert an impermissible anchoring effect on sentencing courts.8
This Note argues that Congress and the United States Sentencing Commission (Commission) should take seriously both the letter and spirit of the Court’s recent juveniles-are-different cases, which favor a return to a rehabilitative approach to young offenders. Congress should address apparent conflicts between its statutory sentencing schemes and these recent cases by expanding the range of sentencing options for juvenile offenders convicted in federal court, and the Commission should promulgate new rules regarding calculation of sentences for juveniles convicted as adults in federal court. Further, until such rules are promulgated, this Note contends that appellate courts should hesitate to presume reasonable within-Guideline sentences for juvenile offenders absent evidence that a sentencing court has considered age.
This Note proceeds in four parts. Part I provides a brief history of the Guidelines, from development through the Court’s attempts to clarify their place post Booker. Part II describes the history of the treatment of juvenile offenders in federal courts and details the Court’s recent juveniles-are-different sentencing jurisprudence. Part III argues that, for various reasons of law and policy, both Congress and the Commission should offer new guidance on how courts should approach the process of sentencing juvenile offenders convicted as adults. Finally, Part IV recommends statutory changes and amendments to the Guidelines.
I. A Brief History of the Guidelines
This Part provides a brief history of the development and evolving role of the Guidelines. Section I.A charts the embrace of a determinate sentencing regime. Section I.B briefly details the Court’s decision in Booker and describes the Court’s attempts at clarifying the muddle — and the place of the Guidelines — in the years after Booker.
For about a century until 1984, well-established tradition afforded federal district court judges wide latitude to sentence convicted criminal offenders.9 Predicated on “the offender’s possible, indeed probable, rehabilitation”10 and the notion that trial court judges “‘see[] more and sense[] more’ than the appellate court”11 and the legislature, the indeterminate-sentencing system allowed sentencing judges to define the scope and extent of punishment with little intervention from appellate courts.12 But beginning in 1933, empirical studies tracked marked disparities in judges’ sentencing practices that could not be explained by reference to the characteristics of defendants or their crimes.13 Judges’ idiosyncratic preferences carried the day, and approaches to sentencing varied within and across jurisdictions.14 Researchers and judges began to question both the rehabilitative potential of prisons15 and the propriety of offering judges such broad, unguided sentencing discretion.16
In 1975, Senator Edward Kennedy introduced legislation to address disparities in sentencing.17 Nine years later, the 98th Congress enacted and President Reagan signed, as part of the Comprehensive Crime Control Act of 198418 (CCCA), the Sentencing Reform Act of 198419 (SRA). Regarded by some as ushering in “the most dramatic change in sentencing law and practice in our Nation’s history,”20 the SRA largely repudiated the rehabilitative goal of imprisonment,21 practically abolished parole at the federal level,22 and established a right to appellate review of sentences.23 To replace the indeterminate system, the SRA created the Commission24 and directed the Commission to develop an appropriate sentencing range for “each category of offense involving each category of defendant.”25
Under the Commission’s promulgated Guidelines, district courts follow a three-step process. At the first step, the court calculates the applicable Guideline range, including any appropriate sentencing enhancements. For this step, the Commission devised a sentencing table which focuses primarily on two factors: the seriousness of an offense26 and the offender’s prior criminal history.27 On the sentencing table, a judge is to find the point at which the base offense level intersects with the offender’s criminal history category — a sentencing range.28 At the second step, the court may consider motions for departure from this range. As enacted, the SRA required sentencing courts to select a sentence from within the Guideline range unless “there exist[ed] an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission.”29 Critically, in determining whether circumstances existed that might justify departure from the Guidelines, courts could “consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.”30 Finally, at step three, a court may consider the recommended Guideline range and § 3553(a), which requires that judges “impose a sentence sufficient, but not greater than necessary” to satisfy the purposes of punishment and mandates considerations — seemingly apart from the Guidelines and policy statements offered by the Commission — of “the nature and circumstances of the offense and the history and characteristics of the defendant.”31
Though the SRA survived early challenges,32 a series of cases beginning in 2000 disrupted application of the Commission-designed framework.33 The most significant challenges came in companion cases United States v. Booker and United States v. Fanfan.34 A fractured Court held that the Guidelines are subject to the rule set out in Apprendi v. New Jersey and Blakely v. Washington — the Sixth Amendment requires a jury, rather than a judge, to find any facts that increase the possible range of sentences for an underlying crime.35 But instead of striking down the SRA or the Guidelines, the Court determined that the Sixth Amendment problem could be remedied by excising the provisions that made the Guidelines mandatory and those that set forth a de novo standard of appellate review of departures from the Guidelines.36 In place of the de novo standard, federal courts of appeals were told to review sentences for “reasonableness.”37 Most critically, the Court declared that “district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing,”38 an approach that the Court acknowledged was “not the system Congress enacted,” but which “nonetheless continue[d] to move sentencing in Congress’ preferred direction.”39
Following Booker, the Court rendered a series of decisions regarding how judges should apply the now-advisory Guidelines. In Rita v. United States,40 the Court held that appellate courts may apply a nonbinding presumption of reasonableness when reviewing within-Guideline sentences.41 Then in Gall v. United States,42 the Court held that appellate courts were not permitted to assume that sentences outside of the Guideline range were unreasonable, but could consider the extent of deviation from the Guideline range.43 Beyond simply “calculating the applicable Guidelines range,”44 district courts must also “giv[e] both parties an opportunity to argue for whatever sentence they deem appropriate,”45 and must “consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party.”46 Accordingly, sentencing courts were barred from presuming reasonable within-Guideline sentences.47 That same Term, in Kimbrough v. United States,48 the Court held that district courts are free to disagree with and disregard the policy choices reflected in the Guidelines49 and may determine that the Guideline recommendation is “greater than necessary” under § 3553.50
The upshot of the Court’s post-Booker decisions is that while the Guidelines and the Commission’s policy statements no longer have the force of law, the Guidelines remain a vital — and required — starting point for all federal sentencing. In short, a sentencing court must still calculate a criminal history level and offense level and use that information to determine the advisory Guideline range. Only then is a court free to adjust — upward or downward — based on its judgment that the Commission’s recommendation does not account for all of the relevant § 3553 factors. On review, an appellate court must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, [or] failing to consider the § 3553(a) factors.”51
II. A Brief History of Juvenile Prosecutions in Federal Court
This Part provides a brief history of juvenile-justice policy, with particular emphasis on the shifting positions on consideration of adolescence in federal courts. Section II.A describes the creation of separate state juvenile-justice systems and later federal efforts to keep juveniles out of federal courtrooms. Section II.B describes the Commission’s guidance on the sentencing of juvenile offenders. Section II.C explains the Supreme Court’s recent juveniles-are-different sentencing jurisprudence.
Children have been viewed and treated differently under American law since the early 1800s.52 Separate state juvenile-justice systems were created during this era.53 These systems focused on rehabilitating offenders under the age of eighteen, saving these children — whose parents or guardians were unable or unwilling to do so — from the stigma of being branded criminals.54
But as juvenile-justice systems popped up in states across the country into the 1930s, the federal government continued to treat juvenile offenders just as it treated adults.55 Recognizing that the acts for which children were being convicted would likely have been treated as juvenile delinquency cases in state courts56 and that the average federal court was not equipped to “give the case of the child offender the peculiar consideration which it should receive,”57 a Commission led by former Attorney General George Wickersham recommended that the federal government withdraw from prosecuting juveniles.58 The Federal Juvenile Delinquency Act of 193859 (FJDA) codified these recommendations, and amendments made to the FJDA by the Juvenile Justice and Delinquency Prevention Act of 197460 barred the federal government from prosecuting juvenile delinquency unless the Attorney General certified that either (1) a state court did not have jurisdiction over the matter or refused to accept authority over the matter or (2) the state lacked the services to address the needs of the juvenile.61
In 1950, Congress enacted a robust alternative sentencing system designed to treat and rehabilitate, rather than to punish, youth offenders.62 The Federal Youth Corrections Act63 (FYCA), which included provisions applicable to juveniles under eighteen years of age and for young adult offenders as old as twenty-six, expanded the universe of sentencing options64 and required rehabilitative treatment in facilities separate from adults when “practical.”65 The FYCA also provided a route for youth offenders to have their convictions set aside.66
As part of a wave of shifts to a determinate sentencing regime, the FYCA was repealed in 1984 when Congress enacted the CCCA, which abolished federal parole and established the Commission.67 The CCCA also authorized federal prosecutions of juveniles when the Attorney General — or, in practice, an assistant U.S. Attorney — certifies that the case holds “a substantial Federal interest.”68
The mid-1980s and 1990s ushered in even coarser treatment of youth due to the rise in popularity of the myth of the juvenile “superpredator,” purported “radically impulsive, brutally remorseless youngsters, including ever more pre-teenage boys, who murder, assault, rape, rob, burglarize, deal deadly drugs, join gun-toting gangs and create serious communal disorders.”69 Though the pundits who spun these theories turned out to be wrong about the future of crime,70 cultural lore around the superpredator claim contributed to Congress enacting and President Clinton signing the Violent Crime Control and Law Enforcement Act of 199471 (VCCLEA). Among other things, the VCCLEA authorized the federal prosecution of juveniles as adults for certain crimes of violence72 and increased penalties for juveniles in possession of a handgun or ammunition.73
The chief consequence of these developments was that while most youth were not prosecuted in the federal system,74 the few youth offenders who were — whether because a federal prosecutor used her discretion to waive the youth into the adult system75 or because no jurisdiction accepted authority over the youth76 — appeared before judges who had little experience in juvenile justice. Such youth also faced tougher penalties and longer sentences, and, if convicted, often served those sentences farther from home than if those same youth had been prosecuted or treated in a state system.77 Further, and perhaps more significantly, as noted in the Congressional Research Service’s manual Juvenile Delinquents and Federal Criminal Law,78 “[j]uveniles transferred for trial as adults in federal court are essentially treated as adults, with few distinctions afforded or required because of their age. Even the [Guidelines] instruct sentencing judges that an offender’s youth is not ordinarily a permissible ground for reduction of the otherwise applica[ble] sentencing guideline range.”79
The Commission offers only two pieces of generally applicable youth-related guidance,80 both of which discourage consideration of age and neither of which provide guidance for circumstances in which consideration of youth may be appropriate or desirable. First, section 5H1.12 provides that “[l]ack of guidance as a youth and similar circumstances indicating a disadvantaged upbringing are not relevant grounds in determining whether a departure is warranted.”81 Second, age is listed as a “[d]iscouraged [g]round[] for [d]eparture[],” a category of characteristics that the Commission has determined are not typically relevant in setting an outside-of-the-proposed-Guideline-range sentence.82 The Commission provides that age, including youth, “may be relevant in determining whether a departure is warranted, if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.”83
The Commission’s take on youth appears to be out of step with the Supreme Court’s recent juveniles-are-different sentencing jurisprudence, which suggests that youth status should frequently — and perhaps always — be a consideration for sentencing courts. The juvenile sentencing revolution began in 2005 with the landmark decision in Roper v. Simmons.84 In Roper, the Court held that execution of individuals who were under eighteen years old at the time of their capital crime was prohibited by the Eighth Amendment.85 Though relatively narrow in its holding, the Roper Court issued some broader observations about the nature of youth — observations that had widespread implications and ushered in a cultural and legal shift in the treatment of youth who commit crimes. The Roper Court documented three overarching differences between juveniles under eighteen and adults that the Court believed “demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders.”86 First, youth tend to lack maturity and have “an underdeveloped sense of responsibility.”87 Second, juveniles tend to be more susceptible to negative influences and peer pressure.88 Third, “the character of a juvenile is not as well formed as that of an adult.”89 Based on these differences, the Court reasoned that juveniles had diminished capacity,90 and that, as a result, “it is evident that the penological justifications for the death penalty apply to them with lesser force than to adults.”91
Relying on Roper, the Court in 2010 held in Graham v. Florida92 that the Eighth Amendment prohibited imposition of life without the possibility of parole on a juvenile who did not commit homicide and, thus, that sentencing courts must give juvenile nonhomicide offenders sentenced to life without parole a “meaningful opportunity to obtain release.”93 The Court noted that even assuming that some juvenile nonhomicide offenders possess “‘sufficient psychological maturity, and at the same time demonstrat[e] sufficient depravity,’ to merit a life-without-parole (LWOP) sentence, it does not follow that courts taking a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change.”94
Just two years later, the Court further extended the reach of Roper. In Miller v. Alabama,95 the Court held that mandatory life imprisonment without parole for those under the age of eighteen at the time of their crimes violated the Eighth Amendment.96 Writing for the Court, Justice Kagan noted that “Roper and Graham establish that children are constitutionally different from adults for purposes of sentencing.”97 Justice Kagan reiterated that “the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.”98 She further noted that:
By removing youth from the balance . . . [mandatory penalty schemes] prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender. [Doing so would] contravene[] Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.99
Recently, in Montgomery v. Louisiana,100 the Court deemed Miller’s pronouncement a new substantive constitutional rule — one that “prohibits ‘a certain category of punishment for a class of defendants because of their status or offense’”101 — that, under the Constitution, must have a retroactive effect.102 Writing for the Court, Justice Kennedy declared that “Miller requires a sentencer to consider a juvenile offender’s youth and attendant characteristics before determining that life without parole is a proportionate sentence.”103
Though the specific holdings of the juveniles-are-different quartet were limited to death penalty and LWOP cases, there may be reason to believe that the Court’s observations about the nature of adolescence apply just as vigorously to at least some noncapital and non-LWOP crimes. First, the same immaturity, impulsivity, and susceptibility to influence that the Court noted might lead a juvenile offender to commit a violent crime might also lead a juvenile to commit any other adult crime for which she could face federal charges. Psychological, sociological, and criminological evidence demonstrates104 — and the Court’s sweeping language arguably suggests — as much.105 The jurisprudential shift capped off by Roper can and should be understood as describing a class of defendants — defined by the nature of the person rather than the crime — for which the justifications for punishment are categorically weaker.106
Second, as Professors Carol Steiker and Jordan Steiker have observed, though the Court once treated the capital sentencing process as separate and distinct from the noncapital system, this difference appears to be eroding, and the juveniles-are-different cases appear to be at the fore of the shift.107 As they explain: “Graham essentially imported the proscription against disproportionate punishment from the Court’s capital jurisprudence into its non-capital jurisprudence and transformed a ‘death-is-different’ doctrine into a more general limitation on excessive sentences.”108 And Miller, they argue, “further blurs the boundaries of capital and non-capital doctrine, perhaps pointing toward a unitary Eighth Amendment jurisprudence” with respect to juveniles if not adult offenders.109 The kids-are-different cases can and should be read as a progressive doctrinal broadening that will encompass a more complete class of juvenile offenders.
Third, several state high courts and a handful of federal courts of appeals have held that a juvenile’s age must be considered where multiple sentences can cumulatively constitute a term of natural life imprisonment without parole.110 In so doing, these courts have rightly recognized that “[t]here is more to Miller”111 than its explicit holding forbidding mandatory life without parole. Instead, the “logic of Miller” extends to, at least, discretionary, de facto life sentences where a term beyond that of a natural life may be imposed.112 In light of these decisions, there is good reason to wonder whether the explicit limiting principle that the Miller Court attempted to cast onto its juveniles-are-different holdings — applying Roper and Graham to the “harshest” and “most severe” punishments — will prove unadministrable. The lower limit of the “harshest” and “most severe” punishments is, after all, blurry.
III. The Commission Should Promulgate Rules Instructing Federal Judges About How to Consider Age in Sentencing Juvenile Offenders
This Part argues that the Commission should promulgate rules instructing federal judges about how and when to consider age in sentencing offenders for crimes committed as juveniles. Section III.A offers a preliminary note about the current constitutional inapplicability of some statutory mandatory minimum sentences to juveniles convicted in federal court, an issue that Congress itself will likely need to address. Section III.B details why the Commission’s current policy statements discouraging consideration of youth seem to be in tension with courts’ statutory sentencing obligations under 18 U.S.C. § 3553. Section III.C argues that federal transfer provisions and wholly discretionary, case-by-case variance provide insufficient guidance for judges sentencing juvenile offenders.
The Roper–Graham–Miller–Montgomery quartet left at least two things clear: offenders may never be sentenced to death for crimes committed while they were juveniles, and sentencing judges must consider the age of offenders before sentencing them to mandatory life in prison without the possibility of parole for offenses committed before their eighteenth birthdays. Because the Supreme Court had categorically eliminated mandatory death sentences decades before the juvenile sentencing revolution,113 judges could easily implement the first of these rules. The second, however, stands in some tension with a line of cases upholding mandatory LWOP sentences for adult offenders and presents a problem for juvenile sentencing that Congress itself, rather than the Commission, likely must solve.
With regard to adult offenders, the Supreme Court has upheld mandatory sentences, including life without the possibility of parole. In Harmelin v. Michigan,114 the Court rejected individualized consideration outside of the capital sentencing context, reasoning that the “qualitative difference between death and all other penalties” justified the refusal to extend such consideration.115 Since Harmelin, lower courts have been required to sentence offenders to at least the statutory mandatory minimum, except in very rare circumstances,116 even where the sentencing judge considers the statutory minimum substantively unreasonable for the particular defendant.117 Post-Miller, however, a judge cannot constitutionally apply a mandatory minimum LWOP sentence to a juvenile offender. She must, at least, consider affording the possibility of parole even where doing so is not allowed by the letter of the statute and is, thus, not a constitutionally authorized punishment.
The Miller Court dismissed the notion that its new rule was in tension with Harmelin, noting that “Harmelin had nothing to do with children and did not purport to apply its holding to the sentencing of juvenile offenders” and reiterating the vague precept that “a sentencing rule permissible for adults may not be so for children.”118 But this explanation fails to provide much guidance for a federal district court judge faced with the — admittedly rare — task of sentencing a juvenile offender where the statutory minimum sentence is life without the possibility of parole.
Recently, the Fourth Circuit confronted such a case. In United States v. Under Seal,119 the Fourth Circuit affirmed a district court’s denial of a motion to transfer a juvenile for prosecution as an adult for murder in aid of racketeering where the mandatory statutory penalty was either death or life imprisonment.120 In so doing, the court noted that district courts do not have discretion to sentence a defendant to less than the statutory mandatory minimum, rejecting the government’s argument that the court could sever the statutory provision that could not be constitutionally applied and instead sentence the defendant to a term of years.121 The Fourth Circuit observed:
Congress unambiguously informed individuals that murder in aid of racketeering was punishable by death or mandatory life imprisonment. Congress provided for no other penalty. However, a juvenile like the Defendant could not be sentenced to either of those punishments after Miller. Nor would that juvenile have notice at the time of the alleged crime that he could be subject to any other punishment, such as imprisonment to a term of years.122
The court concluded that “prosecution [could] not constitutionally proceed.”123
Under Seal highlights a critical tension between determinate sentencing regimes, like the VCCLEA, that sweep in adult and juvenile offenders alike in the name of eschewing individualized consideration as weak on crime, and the Court’s recent juveniles-are-different sentencing jurisprudence. A court now has two options: excise the unconstitutional statutory provisions and sentence a juvenile based on the discretionary judgment of the sentencing judge without connection to the statutory penalty124 — a solution fraught with separation of powers concerns125 — or refuse to allow the prosecution of juveniles to continue. Perhaps neither option is ideal,126 and, working with the Commission, Congress should make clear how courts should approach sentencing in these cases.
Recall that under 18 U.S.C. § 3553(a), judges are required to “impose a sentence sufficient, but not greater than necessary” to satisfy the purposes of punishment and that, in selecting a particular sentence, a court must consider — seemingly apart from the Guidelines and policy statements offered by the Commission — “the nature and circumstances of the offense and the history and characteristics of the defendant.”127 The Court has made clear that a sentencing judge commits procedural error if she fails to consider the § 3553(a) factors.128
First, the Roper–Miller–Graham–Montgomery series provides strong evidence that juvenile status is a “characteristic of the defendant” for the purposes of § 3553(a) such that failure to consider juvenile status would constitute procedural error. Though none of the juveniles-are-different sentencing cases proceeded to the Supreme Court from a lower federal court — and thus none explicitly interpreted § 3553(a) — the opinions’ sweeping language about the nature of youth suggests that juvenile status is an always-relevant offender characteristic and would be regarded as a § 3553(a) “characteristic” in federal court.
Under § 3553(a), a federal judge should be required to consider youth status regardless of the crime for which a juvenile offender was convicted. The Court’s observations about the nature of youth — including associated features of immaturity, impulsivity, and susceptibility to influence — apply with no less force in nonhomicide crimes. Just as those features might lead a juvenile to participate in a gang-related murder, they might also lead a young person to participate in other crimes for which the statutorily authorized penalty is not as harsh as the penalties considered in Roper and Graham. Such crimes would seem even less likely to reflect depravity or incorrigibility, and would instead seem to reflect exactly the characteristics that the Court deemed relevant in sentencing juvenile offenders in Roper and its progeny.
Second, and relatedly, the Court has made clear that the “distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.”129 A court applying the Guidelines without considering ratcheting a sentence down based on youth applies a system premised on the sufficient and necessary penological purposes of sentencing the typical offender: an adult. The resultant sentence for a youth offender convicted as an adult then is likely “greater than necessary” under § 3553(a) when youth status is not accounted for.
Third, and perhaps most critically, some Guidelines suggest only a sentence of life in prison. For example, for a juvenile with no past criminal history — and thus a criminal history level of I — who is convicted of first-degree murder, the Guidelines recommend only life in prison.130 To be sure, under Graham and Miller, a court has no choice but to consider youth. But how should a judge account for youth? Does youth status presumptively entitle a juvenile offender to the opportunity for parole? When should a judge consider a term-of-years sentence instead of a life sentence? The Guidelines don’t say. Nor has the Court provided concrete guidance.
Case-by-case variance and federal transfer provisions provide insufficient guidance for sentencing judges. First, though a sentencing judge “may not presume that the Guidelines range is reasonable,”131 a judge concerned with having his sentence reversed on appeal is still likely to adhere to the Guidelines-recommended sentencing range — where such a range would not itself pose constitutional problems — rather than explicitly introduce the more vague § 3553(a) considerations.132 And though as a formal matter Booker increased sentencing discretion, judges have failed to take advantage of this discretion.133
Second, in light of the currently in-effect policy statements discouraging consideration of age, a judge who might otherwise regard youth as a § 3553(a) consideration and depart from the Guidelines range on that basis might worry that her sense of an appropriate consideration conflicts with the Commission’s and may decline to depart.
Third, the Court’s reasoning when it eschewed the government-suggested, case-by-case proportionality approach to juvenile capital-case sentencing applies with equal force here:
[E]ven if [a court] were to assume that some juvenile nonhomicide offenders might have ‘sufficient psychological maturity, and at the same time demonstrat[e] sufficient depravity’ to merit a life without parole sentence, it does not follow that courts taking a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change.134
The post-Booker Guidelines are a testament to Congress’s ongoing interest in promoting consistency — that is, its interest in a determinate sentencing regime that sentences offenders who commit similar crimes to similar sentences. Failure to provide guidance on the sentencing of youth in federal courts undermines this interest. As the Court suggested in Miller, juvenile offenders are a particular category of offenders. The Commission is missing an opportunity to promote uniformity in sentencing — and to motivate states to amend their processes for sentencing juveniles — by failing to provide courts with a systematic way of considering juvenile status.
Finally, behavioral economics research on choice architecture buttresses concerns about the Commission’s current guidance on youth status. In Nudge,135 Professors Richard Thaler and Cass Sunstein highlight the influence of “rules of thumb”136 and the role of anchoring.137 Anchoring establishes an initial exposure to a number that then serves as a point of reference for future calculations.138 Once armed with an anchor, a decisionmaker tends to adjust upward or downward based on that initial anchoring number, without regard for whether the anchor itself is appropriate.139 Anchoring is, on the one hand, essential to consistency in sentencing. The point of the Guidelines is, in effect, to anchor sentences toward a common nucleus of considerations.140 But with respect to juvenile sentencing — a class of offenders that is both much smaller than and categorically different from the vast majority of offenders — it is worth asking whether the Sentencing Guidelines exert an inappropriate anchoring influence.
In Peugh v. United States,141 the Court implicitly commented on the problems associated with an inappropriate anchor. The Court held that even though the Guidelines are themselves advisory, the Ex Post Facto Clause is violated when a defendant is sentenced under current Guidelines providing a higher sentencing range than Guidelines in effect at the time of the offense.142 The Court reasoned that the penalty for the defendant’s offense had effectively been enhanced because the issuance of a new formula for calculating sentences created a “significant risk” of a higher sentence143 — that is, even though the statutory sentencing terms remained unchanged, a sentence would likely be anchored by the Guidelines’ formula. As the Court has repeatedly recognized, the purposes for punishing a juvenile offender are, as a matter of course, simply different from those at play in punishing the typical adult offender. Here too, the Guidelines appear to impermissibly anchor judges to sentences that may not be appropriately applied to juvenile offenders.
IV. Recommendations
This Part provides preliminary recommendations for Congress and for the Commission to reform the Guidelines’ current treatment of youth status to align with the commands of Roper and its progeny and the statutory sentencing obligations under § 3553(a).
First, in an ideal world, the juveniles-are-different cases would inspire robust front-end assessment of transfer to adult status and provisions allowing the conviction of juveniles in federal courts. The Court’s recent hesitance about the application of formerly accepted penalties to juveniles should not merely lead to narrow consideration of the specific provisions at issue in those particular cases. Instead, Congress should first reconsider now-antiquated, pre-Roper laws that brought juveniles under the jurisdiction of federal courts. Congress should consider reenacting an FYCA–like regime, under which judges could have substantial authority to tailor a sentence to the needs of a particular juvenile offender. Such a scheme could still be tailored to promote uniformity and consistency within the category of youth offenders.
Second, Congress should address, with an additional provision of § 3553, the issue highlighted in Under Seal. Such a provision would make clear how judges should sentence a juvenile when the statutory minimum penalty cannot be constitutionally applied to that juvenile. A provision could, for example, require a judge to impose a term-of-years sentence unless a juvenile’s crimes do not reflect the transience of youth, an approach that might encourage — and honor the Court’s preference for — robust consideration of youth status.
Third, and relatedly, Congress should provide a definition for § 3553(a)’s “offender characteristics” and make clear what factors should be or cannot be considered. At present, a judge is required to apply both the Guidelines and § 3553(a) in developing a penalty, but because § 3553(a) does not make clear what might be considered, it may be neglected as a means of guiding sentencing.
To be sure, if implemented, these suggestions would require judges to do significantly more weighing of the individual facts of a given juvenile offender’s youth status and how that status bears on the offender’s culpability, receptiveness to deterrence, and capacity for rehabilitation. But concerns about judges’ capacity to weigh such factors evenly can be partially alleviated with a fourth change: the Commission should develop a robust and clear primer on the sentencing of juvenile offenders. The Court has made clear that juvenile status is not just one relevant offender characteristic, but also a particularly powerful characteristic that changes our cultural and legal conceptions of which types of punishments are appropriate and which are wholly off the table. The Commission should excise provisions of the Guidelines that discourage consideration of youth and instead encourage robust consideration of youth, not just in identifying an offender’s criminal history score or in coming up with an offense level, but as a process separate from application of the standard sentencing table.
Finally, higher courts might use the presumption of reasonableness in appellate review as a means of prompting these changes. As discussed in section I.A, in Rita the Supreme Court held that appellate courts may apply a nonbinding presumption of reasonableness when reviewing within-Guidelines sentences.144 Until Congress and the Commission address the tension between Roper and its progeny and the youth-related guidance currently offered in the Guidelines, appellate courts should deny a presumption of reasonableness to within-Guidelines sentences when there is no evidence that a sentencing court considered youth in sentencing an offender who committed a crime as a juvenile. The federal sentencing regime has not yet precisely accounted for the Court’s juvenile sentencing revolution. Doing so requires that courts, Congress, and the Commission take seriously both the letter and spirit of these juveniles-are-different cases.