To a certain extent, the American criminal justice system recognizes the reality that children are fundamentally different from adults. Indeed, the juvenile criminal system is built around the idea that children who commit crimes can be rehabilitated.1 This framework for understanding young offenders came to the fore in the past couple of decades in a string of U.S. Supreme Court decisions. In Roper v. Simmons,2 the Supreme Court held that, under the Eighth Amendment’s proscription against cruel and unusual punishment, juveniles could not be sentenced to death.3 Five years later in Graham v. Florida,4 it extended that ban to sentences of life without parole (LWOP) for nonhomicide crimes,5 followed shortly thereafter by a ban on mandatory LWOP sentences for juveniles who commit homicide in Miller v. Alabama.6 Recently, in Lucero v. People,7 the Colorado Supreme Court held that the bans from Graham and Miller do not extend to aggregate term-of-years sentences, even when those sentences approach or exceed the juvenile’s life expectancy.8 This decision is at odds with the U.S. Supreme Court’s Eighth Amendment jurisprudence. The court should have applied Graham and Miller protections to Lucero’s eighty-four-year sentence, thus extending coverage to de facto LWOP9 and pushing the legislature to set statutory maximums for juvenile parole eligibility.
In 2005, at the age of fifteen, Guy Lucero, Jr., attended a birthday party.10 Lucero, who had suffered from mental health problems from a young age, had been off his medication for several months.11 A member of the North Side Mafia gang, Lucero got into an argument with a member of a different gang.12 He left the party but later returned with his father, who was also a member of the North Side Mafia and who had been in and out of prison for the majority of Lucero’s life.13 Lucero’s father lured the opposing gang member outside, at which time Lucero rode by in a car and shot a gun at the house.14 The gang member was not shot, but four others sustained nonfatal injuries.15
Lucero was tried as an adult before a jury.16 After two witnesses testified that Lucero was the shooter, Lucero was convicted “of conspiracy to commit first-degree murder, attempted first-degree murder, and two counts of second-degree assault.”17 The trial court sentenced him to serve consecutive sentences for each conviction, for a total of eighty-four years.18 The court of appeals affirmed on direct appeal.19 Lucero filed a motion for sentence reduction, arguing, among other things, that his lengthy aggregate sentence was a de facto LWOP sentence and thus, a violation of the Eighth Amendment under Graham.20 The trial court denied the motion, and the court of appeals affirmed.21 In rejecting Lucero’s Eighth Amendment argument, the appellate court reasoned that he would be eligible for parole before his expected death at age seventy-five.22 The Colorado Supreme Court granted certiorari.23
The Colorado Supreme Court affirmed but disagreed with the court of appeals’ reasoning. Writing for the court, Justice Eid24 emphasized that Graham and Miller do not apply to aggregate term-of-years sentences.25 Rather, the court read Graham and Miller to characterize LWOP as “a particular type of sentence,”26 “imposed as punishment for a single crime.”27 Since Lucero was not given the specific sentence of “life without parole,” but rather, an aggregated sentence, the court found that the protections of Graham and Miller did not apply.28 Thus, the court not only affirmed the judgment of the appellate court but also went further to find that Eighth Amendment LWOP protections did not apply to aggregate term-of-years sentences at all.29
Justice Gabriel concurred in the judgment, essentially agreeing with the court of appeals. He first reviewed the string of U.S. Supreme Court cases that quickly expanded protections against life-ending and lifelong sentences, noting the Court’s repeated references to the scientific consensus that differences between juveniles and adults mitigate criminal culpability.30 He also cited cases from other jurisdictions that had found lifelong aggregate sentences to be the functional equivalent of LWOP.31 This citation included Budder v. Addison,32 in which, just two months prior, the Tenth Circuit had relied on Graham to grant habeas relief for a de facto LWOP sentence.33 To Justice Gabriel, all these cases demonstrated “an unmistakable progression toward providing more protection for juvenile offenders facing a potential sentence of life behind bars with no realistic opportunity for release.”34 Thus, he concluded, protections articulated by the U.S. Supreme Court should be read broadly to extend to de facto LWOP. However, upon such an expansion, Justice Gabriel still had to answer the question: how long is too long? Justice Gabriel promoted the court of appeals’ tactic of using life expectancy to cap the upper limit.35 In a few short sentences, Justice Gabriel confirmed that Lucero would be eligible for parole within his expected lifetime and thus had not received a de facto LWOP sentence.36
The Lucero court read Graham and Miller too narrowly, focusing on the formalist distinction between LWOP and term-of-years sentences at the expense of the U.S. Supreme Court’s discussion of the special characteristics of juveniles. For Lucero, the implications of the court’s decision are troubling: his sentence afforded him no truly meaningful opportunity to prove his rehabilitation, yet he was denied the protections that the Supreme Court has granted to similarly situated juveniles. The Supreme Court’s rationales for restricting juvenile LWOP should thus extend to de facto LWOP. However, while various courts have attempted to fashion a rule distinguishing merely lengthy sentences from de facto LWOP, none of the judicially created solutions have been particularly effective. Instead, courts should call on their legislatures to mandate an upper limit for juveniles on years spent in prison before parole eligibility, thus focusing on the possibilities of rehabilitation rather than painstakingly delineating the outer limits of “life.”
The Colorado Supreme Court emphasized the “repeated and unambiguous” discussion of LWOP throughout both Graham and Miller.37 It also homed in on the U.S. Supreme Court’s use of the phrases “a particular type of sentence”38 and “particular penalty”39 to describe LWOP. This reading of Graham is far too narrow. The overarching reasoning of Graham and Miller focused instead on the unique characteristics of juveniles that call for alterations in sentencing. In Graham, the Court differentiated its new categorical rule for “an entire class of offenders”40 from other categorical rules that turn on “the nature of the offense.”41 There are distinctive features about this group of defendants, regardless of their crimes, that make LWOP an inappropriate punishment42 — youth are less culpable and mature,43 more receptive to rehabilitation,44 and would suffer longer under an LWOP sentence.45 As a result, Graham held that juveniles should have a “meaningful opportunity to obtain release”46 and repeatedly emphasized the goal of rehabilitation. Miller used the same logic to expand the ban to mandatory LWOP sentences for homicide crimes.47 Lucero’s reading of Graham and Miller, then, focused purely on the specific sentence of LWOP, without grappling with the fundamental reasoning that the Court employed.
Under this broader reading of Graham and Miller, the Supreme Court’s reasoning about the uniqueness of juveniles applies to de facto LWOP sentences. If it is inappropriate to sentence any juvenile to LWOP for a nonhomicide crime solely because of her status as a juvenile, it is equally inappropriate to sentence the same juvenile to a term-of-years sentence that amounts to a lifetime in prison without the possibility of parole. The exact sentence received does not change one’s identity as a juvenile, a status the Supreme Court has already decided should preclude LWOP.
The weightier question before the Colorado Supreme Court, then, was not whether lengthy sentences can be considered de facto LWOP, but rather, at what point? While the majority avoided the question entirely, Justice Gabriel proposed a solution in his concurrence. Many other courts have grappled with various options in recent years as well. The solutions have generally been one of two kinds: using life expectancy as an upper limit, or setting a number of years at which all juveniles become parole eligible. However, both types of solutions have their own problems that will generate more litigation in the future.
Although intuitively appealing, Justice Gabriel’s approach of using life expectancy is not nuanced enough to identify de facto LWOP and leads to inequality in application. Many courts have used life-expectancy tables48 to delineate between an acceptably long sentence and one that becomes de facto LWOP.49 Unfortunately, there are many reasons why life expectancy is a flawed metric for calculating life sentences: life expectancy estimates the average life span of a population, not of an individual;50 it does not take into account the effects of long-term incarceration or medical history on a person’s life span;51 and allowing the first opportunity for parole to run up against a juvenile’s expected death does not actually allow for a “meaningful opportunity for release.”52 Indeed, Justice Gabriel did not take into account evidence of Lucero’s “difficult childhood [or] his mental health history”53 when calculating his life expectancy, despite the fact that these factors mean Lucero, like many incarcerated individuals, will probably lead a shorter life than the official life-expectancy estimate. On the other hand, even if judges could personalize each estimate by including every variable for which there is data, there is then inequality in sentencing based on certain characteristics, especially those that are constitutionally protected.54 Thus, the use of life expectancy is unable to provide a fair solution.
The second solution — setting a maximum number of years before parole eligibility — overcomes the equity issue with which the use of life expectancy is entangled. This is a solution that state legislatures are starting to implement.55 Based on early evidence, such a statutory maximum on parole eligibility has improved juveniles’ access to meaningful opportunities for release.56 However, if courts were to create this type of rule, they would arguably be encroaching on legislative power.57 Courts attempting to implement something similar have struck down sentences as unconstitutionally long only on a case-by-case basis.58 This method, however, is slow, and the relief is often mild, as courts strike down only the most extreme cases first, slowly chipping away at the acceptable length of time of imprisonment.
To implement the bright-line solution of setting a maximum number of years before parole eligibility effectively, the Lucero court should have set a standard derived from Graham and Miller, which the legislature would then be called to interpret and implement. In Graham, the Supreme Court included language on next steps: “What the State must do . . . is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance.”59 From the broad demands of this statement, the actual line drawing then falls to state legislatures, as they are best positioned to “explore the means and mechanisms” through hearings, expert testimony, and other evidence.60 To comply with the rationale of Graham and Miller, legislatures would no longer be looking at defining what “life” means, but rather, trying to determine when rehabilitation is possible.61 To do so, legislatures should question how long it would take for a juvenile to grow out of her “transient immaturity”62 and be effectively rehabilitated, keeping in mind that the maximum governs only parole eligibility, not a promise of parole itself.63 They may need to consult neuroscience and developmental research, legal and policy research,64 and extant exemplars of statutory maximums65 to determine at what point juvenile offenders would be able to be rehabilitated. In instituting this standard, the court should have struck down Lucero’s eighty-four-year sentence and called upon the Colorado legislature to pass a statute drawing a definitive line66 with such goals in mind.67
The U.S. Supreme Court has made clear that juveniles are a class of their own, especially for the purposes of sentencing, and thus, they must be allowed a “meaningful opportunity for release.” Following this reasoning, the Lucero court should have extended Graham and Miller to ban lengthy term-of-years sentences as de facto LWOP. Then, to resolve the difficult question of which sentences constitute de facto LWOP, the court should have pushed the legislature to draw the line, after setting a standard that requires consideration of the special characteristics of juveniles and the goal of rehabilitation. This focus on a meaningful opportunity to prove rehabilitation, rather than defining LWOP in relation to death or based on formal distinctions, advances the goals of Graham and Miller, honoring the central purpose of the juvenile justice system: rehabilitating young people so that they can lead full lives outside prison walls.