On June 25, 2012, the US Supreme Court ruled unconstitutional the mandatory sentence of life without the possibility of parole (LWOP) for crimes committed by juveniles. The decision is a partial victory for children’s rights advocates and supporters of rehabilitative justice. It also highlights the ways that the US sharply diverges from international norms—and Chinese practice.

The US Supreme Court Building in Washington, DC

The recent Supreme Court ruling concerned the separate cases of two young men, Kuntrell Jackson and Evan James Miller, who were convicted of murder for crimes they each committed at the age of 14. Jackson had been sentenced for his part in a video store robbery in Arkansas in which another boy shot and killed the clerk. Miller beat a man with a baseball bat in a trailer home in Alabama, and then set fire to the residence; the man later died of his injuries and smoke inhalation. Both boys were tried as adults and received mandatory sentences of life without the possibility of parole. At issue before the Supreme Court was whether it is cruel and unusual to impose mandatory LWOP sentences in cases where the defendant was a minor at the time of the crime.

In the cases of Jackson and Miller, the court found that the mandatory sentences violated the 8th Amendment ban on cruel and unusual punishment, citing, among other things, research on the immaturity and impulsivity of adolescent cognition and behavior. The ruling follows a string of recent decisions by the high court that recognizes the unique condition of juvenile offenders. In 2005, the court ruled in Roper v. Simmons that it is unconstitutional to impose capital punishment for crimes committed by juveniles, and in 2010 the court found in Graham v. Florida that states cannot sentence a juvenile offender to LWOP for a crime in which no one was killed. While this recent decision bans mandatory LWOP sentences—where a court automatically and necessarily applies the sentence based on the crime—for juvenile offenders, the high court stopped short of saying that sentences of life without the possibility of parole, including those applied at the judge’s discretion, were in themselves cruel and unusual.

More than 2,500 people in the United States are currently serving LWOP for offenses committed before the age of 18, according to The National Conference of State Legislatures. Imposition of the sentence underscores the fixation on lengthy prison terms that sets the US radically apart from the international community. The UN Convention on the Rights of the Child specifically prohibits LWOP for crimes committed by minors, but the US, joined only by Somalia, has not ratified the treaty. “Virtually every other country in the world either has never engaged in or has rejected [LWOP for juveniles] … because such sentences violate the principles of child development and protection,” says an amicus brief filed by Amnesty International and others on Miller’s and Jackson’s behalf.

LWOP for prisoners of any age is counter to the spirit of international conventions, including those to which the US is a party. Article 10.3 of the International Covenant on Civil and Political Rights (ICCPR) states that: “the essential aim of [penitentiary systems] shall be [prisoner] reformation and social rehabilitation.” In many countries—like Brazil, Colombia, Norway, Portugal, and Spain—life sentences, let alone LWOP, simply do not exist. The Council of Europe deplored life sentences in its 1977 Treatment of Long-Term Prisoners, and, in the Rome Statute, the International Criminal Court states that even sentences for the most heinous crimes—including genocide, war crimes, and crimes against humanity—should be reviewed after 25 years.

The ICCPR’s aims of reformation and social rehabilitation are difficult to foster where opportunities to reenter society are precluded. Because the sentence allows such exclusions, LWOP is sometimes referred to as “true life” or “death behind bars.” Given its severity, most of the handful of countries that use the sentence apply it extremely rarely. England and Wales, for example, only have a few dozen prisoners serving LWOP.

More than 40,000 people are serving LWOP in the United States, according to data compiled in 2008 by The Sentencing Project. (This is in addition to the roughly 100,000 people serving sentences of life with the possibility of parole.) In the last 30 years, the number of Americans serving LWOP has tripled, due in part to the debate over capital punishment and politicians’ attempts to appear “tough on crime.” Prosecutors and legislators in favor of the death penalty began passing LWOP laws in the early 1970s to hedge against the possibility that the Supreme Court would abolish capital punishment. After the court ruled the death penalty permissible in 1976, abolitionists also started to support LWOP as an alternative to death.

Studies have shown that juries who are aware of life without the possibility of parole as a sentencing option are less likely to impose a capital sentence, but the overall effect of LWOP on capital punishment is more complicated. A 2006 study in the Harvard Law Review found that LWOP statutes decrease death sentences, but do not decrease executions. This suggests that juries select LWOP in borderline cases that would be more likely to be commuted, reduced, or overturned anyway. Since LWOP sentences are imposed far more broadly than death sentences, the most significant result of introducing the penalty has been more LWOP prisoners, not fewer executions. In some states the scope of crimes punishable by LWOP has even grown to include first-time, non-violent offenses.

China: Life and Death with Reprieve

China’s criminal justice system does not have LWOP sentences for juveniles or adults. Some argue that China’s extensive use of the death penalty—Dui Hua estimates that China executed 4,000 people in 2011—precludes the need for LWOP; however, Chinese lawmakers have rejected the sentence at least in part because of their support for rehabilitation, rather than their desire for harsher punishment.

Although juveniles who commit “extremely serious crimes” can be given up to life imprisonment, maximum terms are rarely used and are discouraged by the national policies of “combining leniency and severity” and “education first, punishment second.” In 1997, revisions to China’s Criminal Law lowered the maximum sentence for juveniles to life imprisonment from “death with two-year reprieve.” The latter is a death sentence that is modified to a term of life imprisonment or fixed-term imprisonment of 25 years, both with the possibility of reduction, as long as no deliberate offense is committed during the initial two years of imprisonment. Official sources say that in the vast majority of cases—an estimated 99.9 percent of cases according to 《死刑通论》 [The General Theory of the Death Penalty] (1995)—the sentence does not result in execution.

By 2006, people sentenced to death with two-year reprieve generally served around 18 years, while people sentenced to life imprisonment served around 15 years, according to Yanzhao Metropolis Daily. Though these figures may have increased following the 8th Amendment to China’s Criminal Law—the 2011 amendment increased mandatory minimum time served for life sentences—prisoners with either sentence remain eligible for sentence reductions. (Since at least 1997, people sentenced to more than 10 years or life imprisonment for violent crimes were ineligible for parole (假释) but eligible for sentence reductions (减刑), which are more common than parole in the Chinese justice system.)

Renowned Chinese legal scholar Gao Mingxuan has opposed introducing LWOP in China. Source: Zhejiang Legal News

Death with two-year reprieve is still a death penalty, but since the great majority of cases are commuted, in practice, it is generally more lenient than LWOP. In an article published in 2007, Xin Ke (辛科), an assistant professor at Shandong University of Political Science and Law, proposed replacing the uniquely Chinese sentence with LWOP as part of a plan to abolish capital punishment. While the Chinese government says that China is not ready for abolition, several officials and legal scholars cited additional reasons for rejecting Xin’s proposal. Represented by Gao Mingxuan (高铭喧), president of the China Branch of the International Association of Penal Law, this group supported death with two-year reprieve not only for its ability to gradually reduce the number of executions, but because it reinforces both social harmony and the idea that “everyone can be reformed” (人总是可以改造的)—an idea clearly not embodied by LWOP.

The recent US Supreme Court decision banning mandatory LWOP for juvenile offenders moves the US one step closer to meeting international norms on the rights of the child. But while children’s level of development and experience clearly affords them differential consideration under the law, their exemption from life without the possibility of parole should not be exceptional. As demonstrated by the aversion of the international community, the sentence is as unforgivably punitive and unproductive as the death it was meant to replace.