Life or Death: Employing State Constitutional Principles of Proportionality to Combat the Extreme Sentencing of Emerging Adults

*J.D., University of Virginia School of Law, 2021; M.A. (History), University of Virginia, 2021. I am deeply indebted to Professor Richard Bonnie, who fostered my interest in this area of law and supervised my writing of this Note, as well as Aidan Coleman, Megan Ong, and Matthew West for their thoughtful feedback. Thank you to Holly Chaisson, Scott Chamberlain, Laura Lowry, Thomas Schnoor, Michael Testa, Annabella Waszkiewicz, and all other editors of the Virginia Law Review whose efforts brought this Note to print.Show More

The U.S. Supreme Court has repeatedly held that, when facing criminal punishment, juvenile offenders must be treated differently from adults. Because those under the age of eighteen lack maturity, have heightened vulnerability to external influence, and possess a unique capacity for rehabilitation, the imposition of extreme sentences—including the death penalty, mandatory life without parole, and discretionary life without parole for non-homicide offenses—is disproportionate and unconstitutional under the Eighth Amendment.

Emerging neuroscientific research strongly indicates that the immaturity, impressionability, and corrigibility of juveniles are also characteristics of emerging adults, defined here as individuals ages eighteen through twenty. Courts, however, have consistently resisted extending Federal Eighth Amendment protections to this demographic. This Note therefore proposes challenging the extreme sentencing of emerging adults under state, instead of federal, constitutional law. All fifty states prohibit cruel and/or unusual punishment, or its equivalent, in their state constitution. Further, recent litigation in Washington and Illinois demonstrates how successful challenges to disproportionate emerging-adult sentencing under state constitutional law can be achieved. This Note advocates that litigants launch facial challenges, in particular, under state constitutional provisions as a desirable mechanism for change.

Introduction

In 2015, Jonas David Nelson was convicted of first-degree murder for the premeditated shooting of his father.¹ 1.Nelson v. State, 947 N.W.2d 31, 33 (Minn. 2020), cert. denied, 141 S. Ct. 2518 (2021).Show More On the day of the offense, Mr. Nelson was eighteen years and one week old.² 2.Id.Show More He was subsequently sentenced to a mandatory term of life imprisonment without the possibility of parole, in accordance with Minnesota law.³ 3.Id. at 34.Show More Despite the fact that the record was “replete with evidence of [Mr.] Nelson’s cognitive and social delays and years of psychological and emotional abuse,”⁴ 4.Id. at 40.Show More the Minnesota Supreme Court upheld his mandatory-life-without-parole sentence on both direct appeal and upon request for postconviction relief.⁵ 5.Id. at 34, 40.Show More As powerfully noted by Justice Chutich in dissent, Mr. Nelson was given “the functional equivalent of a death sentence, without any consideration of him, his personality, his upbringing, or his psychological attributes, solely because the offense occurred seven days after his eighteenth birthday.”⁶ 6.Id.at 41 (Chutich, J., dissenting).Show More

The U.S. Supreme Court has repeatedly held that, when facing criminal punishment, juvenile offenders—i.e., those under the age of eighteen—must be treated differently from adults.⁷ 7.See, e.g.,Roper v. Simmons, 543 U.S. 551, 572 (2005) (describing the “differences between juvenile and adult offenders” as “marked and well understood” and thus holding unconstitutional the imposition of the death penalty on juvenile offenders).Show More Juveniles lack maturity, have heightened vulnerability to external influence, and possess a unique capacity for rehabilitation.⁸ 8.SeeinfraPart I.Show More Given this reality, the imposition of extreme sentences—including the death penalty, mandatory life without parole (“LWOP”), and discretionary LWOP for non-homicide offenses—on juveniles in criminal court is disproportionate and unconstitutional under the Eighth Amendment.⁹ 9.The Supreme Court has held that sentencing a juvenile to death, Roper, 543 U.S. at 574–75, as well as imposing discretionary LWOP for non-homicide offenses, Graham v. Florida, 560 U.S. 48, 82 (2010), and mandatory LWOP for any offense, Miller v. Alabama, 567 U.S. 460, 479 (2012), violates the Eighth Amendment to the U.S. Constitution.Show More But these constitutional protections cease to exist the day one turns eighteen. Despite referring to Mr. Nelson’s case as “extremely tragic,” the Minnesota Supreme Court felt bound to follow U.S. Supreme Court precedent that “clearly limited [Eighth Amendment protection] to juvenile offenders under the age of 18 at the time of the offense.”¹⁰ 10.Nelson, 947 N.W.2d at 40 (emphasis added).Show More Had Mr. Nelson been eight days younger, the mandatory LWOP sentence that he received would have been unconstitutional as applied to him.

Emerging neuroscientific research, however, strongly indicates that the hallmark characteristics of youth—immaturity, impressionability, and corrigibility—are present in individuals older than eighteen, too.¹¹ 11.See infra Subsection II.B.1.Show More Cognitive development continues well into a young person’s twenties, and society recognizes the relative immaturity of this demographic through prohibitions on activities such as drinking and firearm possession.¹² 12.SeeElizabeth S. Scott, Richard J. Bonnie & Laurence Steinberg, Young Adulthood as a Transitional Legal Category: Science, Social Change, and Justice Policy, 85 Fordham L. Rev. 641, 645 (2016); Karen U. Lindell & Katrina L. Goodjoint, Juv. L. Ctr., Rethinking Justice for Emerging Adults: Spotlight on the Great Lakes Region 11–12 (2020), https://jlc.org/sites/default/files/attachments/2020-09/JLC-Emerging-Adults-9-2.pdf [https://perma.cc/U8GG-PBR9].Show More As a consequence, the proportionality considerations relevant for those under eighteen are arguably as compelling for “emerging adults”—defined here as those ages eighteen, nineteen, and twenty—as they are for juveniles. Despite this reality, emerging adults have not been granted protection against the harshest of criminal sentences under the Federal Constitution, and claims of disproportionality under the Eighth Amendment have been universally quashed.¹³ 13.See infra Part III.Show More Given the current composition of the Supreme Court, seeking federal constitutional protection against disproportionately harsh sentences for emerging adults seems futile.¹⁴ 14.See infra Part III.Show More The more effective realm for such advocacy, this Note posits, is in the states.

This Note proposes that advocates redirect focus and challenge the extreme sentencing of emerging adults as disproportionate under state, instead of federal, constitutional law. All fifty states prohibit cruel and/or unusual punishment, or its equivalent, in their state constitutions.¹⁵ 15.See infraSection IV.A.Show More Further, many have interpreted these clauses to be broader and more protective than the Federal Eighth Amendment.¹⁶ 16.See infra Section IV.A.Show More Attention should therefore be directed toward challenging extreme sentences for emerging adults under these provisions.

Recent litigation in Washington and Illinois illustrates how this can be achieved. In 2021, the Washington Supreme Court held that imposing mandatory-LWOP sentences on those ages eighteen through twenty violates the state’s constitutional provision against cruel punishment.¹⁷ 17.See infra Section IV.B.Show More Over the last few years, Illinois state courts have also struck down the harshest criminal sentences as applied to emerging adults, holding that they violate the state constitution’s proportionate penalties clause.¹⁸ 18.See infra Section IV.C.Show More Challenging emerging-adult sentencing in these ways is a promising strategy for future advocacy efforts across the country.

The contributions of this Note are threefold. First, while theories about emerging adulthood have existed for two decades, they have only recently been argued in court.¹⁹ 19.SeeJeffrey J. Arnett, Emerging Adulthood: A Theory of Development from the Late Teens Through the Twenties, 55 Am. Psych. 469, 469 (2000).Show More This Note comprehensively surveys recent cases from both state and federal courts and synthesizes the arguments that have—and have not—been successful, a notable contribution to the literature. Second, academics and scholars have advocated generally for the consideration of proportionality in sentencing²⁰ 20.See, e.g., Jim Staihar, Proportionality and Punishment, 100 Iowa L. Rev. 1209, 1222–23 (2015) (arguing that those who commit more serious crimes deserve more severe punishments).Show More and explored how state constitutional provisions could be utilized to further such aims.²¹ 21.See, e.g., Gregory S. Schneider, Sentencing Proportionality in the States, 54 Ariz. L. Rev. 241, 273–74 (2012) (discussing how state judiciaries could engage in proportionality review under state constitutional law).Show More However, none have applied these principles to the extreme sentencing of emerging adults, and this Note will be the first to advocate for such a path forward nationwide. Finally, the power of state constitutional law is significantly underappreciated in academic literature,²² 22.SeeGary S. Gildin & Jamison E. Colburn, Introduction: State Constitutionalism in the 21st Century, 115 Pa. St. L. Rev. 779, 781 (2011) (“State constitutional law is a vibrant, albeit still underappreciated, area of legal study.”); Richard S. Frase, Limiting Excessive Prison Sentences Under Federal and State Constitutions, 11 U. Pa. J. Const. L. 39, 64 (2008) (encouraging “litigators, courts, and scholars to be less ‘Fed-centric’”).Show More despite the fact that it has profound and direct impact on those prosecuted in state courts across the nation. This Note contributes to the academic conversation by explaining how state constitutional law can be used as a powerful tool to inspire positive, tangible change, helping advocates structure their thinking and supplying them with arguments for state court practice.

This argument proceeds in five Parts. Part I considers proportionality as a philosophical concept, documenting its use in federal constitutional law to date, and reviews the Supreme Court’s Eighth Amendment jurisprudence as it relates to juveniles. Part II explains why the Supreme Court has remained faithful to the age of eighteen as a cutoff for constitutional protection against extreme sentencing but challenges the justifications provided by the Court in light of modern developments in neuroscience and social science. Part III surveys the failed efforts to gain federal constitutional protection for emerging adults, and Part IV explains why the most effective route forward for emerging adult justice will instead be under state constitutional law, highlighting Washington and Illinois as case studies of success. Part V recommends that litigants seek facial, as opposed to as-applied, protection of emerging adults and addresses counterarguments to that proposal.

1. Nelson v. State, 947 N.W.2d 31, 33 (Minn. 2020), cert. denied, 141 S. Ct. 2518 (2021). ↑
2. Id. ↑
3. Id. at 34. ↑
4. Id. at 40. ↑
5. Id. at 34, 40. ↑
6. Id. at 41 (Chutich, J., dissenting). ↑
7.  See, e.g., Roper v. Simmons, 543 U.S. 551, 572 (2005) (describing the “differences between juvenile and adult offenders” as “marked and well understood” and thus holding unconstitutional the imposition of the death penalty on juvenile offenders). ↑
8. See infra Part I. ↑
9. The Supreme Court has held that sentencing a juvenile to death, Roper, 543 U.S. at 574–75, as well as imposing discretionary LWOP for non-homicide offenses, Graham v. Florida, 560 U.S. 48, 82 (2010), and mandatory LWOP for any offense, Miller v. Alabama, 567 U.S. 460, 479 (2012), violates the Eighth Amendment to the U.S. Constitution. ↑
10. Nelson, 947 N.W.2d at 40 (emphasis added). ↑
11. See infra Subsection II.B.1. ↑
12. See Elizabeth S. Scott, Richard J. Bonnie & Laurence Steinberg, Young Adulthood as a Transitional Legal Category: Science, Social Change, and Justice Policy, 85 Fordham L. Rev. 641, 645 (2016); Karen U. Lindell & Katrina L. Goodjoint, Juv. L. Ctr., Rethinking Justice for Emerging Adults: Spotlight on the Great Lakes Region
    

    11–12 (2020),

    https://jlc.org/sites/default/files/attachments/2020-09/JLC-Emerging-Adults-9-2.pdf [https://perma.cc/U8GG-PBR9]

    .

    ↑

13. See infra Part III. ↑
14. See infra Part III. ↑
15. See infra Section IV.A. ↑
16. See infra Section IV.A. ↑
17. See infra Section IV.B. ↑
18. See infra Section IV.C. ↑
19. See Jeffrey J. Arnett, Emerging Adulthood: A Theory of Development from the Late Teens Through the Twenties, 55 Am. Psych. 469, 469 (2000). ↑
20. See, e.g., Jim Staihar, Proportionality and Punishment, 100 Iowa L. Rev.
    

    1209, 1222–23 (2015) (

    arguing that those who commit more serious crimes deserve more severe punishments)

    .

    ↑

21. See, e.g., Gregory S. Schneider, Sentencing Proportionality in the States, 54 Ariz. L. Rev. 241, 273
    

    –7

    4 (2012) (discussing how state judiciaries could engage in proportionality review under state constitutional law). ↑

22. See Gary S. Gildin & Jamison E. Colburn, Introduction: State Constitutionalism in the 21st Century, 115 Pa. St. L. Rev. 779, 781 (2011) (“State constitutional law is a vibrant, albeit still underappreciated, area of legal study.”); Richard S. Frase, Limiting Excessive Prison Sentences Under Federal and State Constitutions, 11 U. Pa. J. Const. L.

    39

    , 64 (2008) (encouraging “litigators, courts, and scholars to be less ‘Fed-centric’”). ↑