A Stone of Hope: Legal and Empirical Analysis of Juvenile Lifer Parole Decisions

Abstract

In a recent line of cases, the Supreme Court has held that sentencing juveniles to life in prison without the possibility of release on parole violates the Eighth Amendment in all but the most rare cases. In response, many states have extended the possibility of release on parole to individuals serving juvenile life sentences. Whether the possibility of parole can render juvenile life sentences constitutional is a topic of ongoing debate among courts, litigants, and scholars. Thus far, that debate has not engaged with one of the most longstanding critiques of parole systems: that parole-release decisions are arbitrary and capricious. This article develops this critique within existing Eighth Amendment jurisprudence, arguing that the principles used to determine whether death penalty decisions are arbitrary and capricious ought to apply analogously to parole-release decisions among individuals serving life with the possibility of parole sentences for juvenile convictions (“juvenile lifers”). The article then applies this Eighth Amendment analysis to an original empirical study of 426 parole decisions among juvenile lifers in California. The study provides evidence that parole decisions are as arbitrary and capricious with respect to a measure of rehabilitation as death penalty decisions were to a measure of culpability when the Supreme Court struck the death penalty as arbitrary and capricious in 1972. The article concludes by proposing an alternative structure for parole-release decisions among juvenile lifers. The proposal calls for a bifurcated process in which release would be mandatory if a parole candidate has met objectively measurable criteria, and release would be discretionary if a parole candidate has not met these criteria.