So, if a juvenile kills two people and wounds 20, he could not be sentenced to life without parole.

Or if a juvenile such as Jordyn Wade, who was convicted of four aggravated murders in Franklin County, Ohio, several years ago participates in the killing with multiple people, but does not actually pull the trigger, he cannot be sentenced to life without parole. 

Before describing how the legislation is based on a false premise, and why it is misguided, it’s also important to see how warped the bill is because of the case of T.J. Lane, a school shooter who killed three students and wounded three others, as described by the prosecutor who handled his case.

T.J. Lane School Massacre

On a cold February day in 2012, T.J. Lane strode into Chardon High School in Chardon, Ohio, armed with a .22-caliber semi-automatic Ruger handgun and a knife, wearing a T-shirt with “KILLER” emblazoned across the front. 

He stood next to a table where nine students were sitting. He pulled out his gun and methodically shot Russell King, Demetrius Hewlin, and Daniel Parmertor in the head, killing them instantly. He also shot Nate Mueller, Joy Rickers, and Nick Walczak. 

When Walczak struggled to get away and ran down the school hallway, Lane ran after him, and shot him in the neck, paralyzing him for life. Lane was eventually captured by police. 

The 17-year-old was tried as an adult, but avoided trial by pleading guilty to numerous charges, including three counts of aggravated murder. 

At his sentencing, Lane mocked the families of the victims and raised his middle finger at them, and said, “F— all of you.”  The judge sentenced him to life without parole for each murder, to run consecutive to each other, plus 37 years for his other crimes.

Legislation Based on a False Premise

The problem is that many, if not most, of the legislators, including a Republican senator who co-sponsored the bill in the Ohio Senate, think the Supreme Court has held that life without parole sentences for juvenile killers are unconstitutional, and that as a result, Ohio legislators are required to abolish such sentences under state law. 

At the same time, they created the new offense of aggravated homicide, which would apply to juveniles convicted of killing three or more persons and render them eligible to be sentenced to life without parole.  

State Sen. Nathan Manning, a co-sponsor of the bill, wrote in his press statement announcing SB 256 that his legislation would “bring Ohio in line with a number of … Supreme Court rulings … that declared it unconstitutional for a child be given a sentence of life without parole.” 

That premise is incorrect. The Supreme Court did no such thing. I know, because I co-authored a book, “Adult Time for Adult Crimes,” on the subject, which has been cited in Supreme Court briefs supporting the constitutionality of the rarely imposed sentence.

The bill would abolish a sentence of life without parole by giving juvenile killers who received such a sentence the chance of being paroled at the age of 40.

To be clear, the bill might be a worthwhile topic to debate and consider as a matter of policy. But the sponsors, and Legislature as a whole, should begin any policy debate with a clear understanding of what the law requires, and what their options are, as I described in my written testimony submitted to the Ohio House Judiciary Committee last week.

As is, the bill is fundamentally flawed and should be shelved, or at the very least, taken up next year with appropriate amendments.

Life Without Parole for Juvenile Killers Is Constitutional

Life without parole for juvenile killers is reasonable, constitutional, and (appropriately) rare. In response to the Western world’s worst juvenile crime problem, U.S. legislators have enacted commonsense measures to protect the public and to hold these dangerous criminals accountable.

Twenty-nine states and the federal government have set the maximum punishment for juvenile killers at life without the possibility of parole.

Activists argue that the Constitution forbids sentences of life without parole for juvenile offenders, but the Supreme Court declined to hold life without parole for juvenile killers unconstitutional in Graham v. Florida in 2010, in Miller v. Alabama in 2012, and in Montgomery v. Louisiana in 2016. 

Most juvenile offenders should not and do not have their cases adjudicated in the adult criminal justice system. Every state has a juvenile justice system, and those courts handle the vast majority of crimes committed by juveniles. We believe, as a society, that most juveniles are immature and capable of rehabilitation. 

It is true that the adolescent brain is not fully developed until the early 20s. But as a society, we draw legal lines, with 18 being the typical line between those who are tried as adults and those who are tried as juveniles. 

The vast majority of murderers under the age of 18 were 17 or 16 years old when they killed their victims. They are not “children,” as opponents of juvenile life without parole sentences refer to them. They can drive cars, go to college, get married, join the military, and in some states, terminate a pregnancy without parental permission. We don’t call high school juniors and seniors “children,” yet these are the very same people who make up the bulk of juvenile killers sentenced to life without parole.

But as adults, we also know that by the time they reach the age or 16 or 17, they know right from wrong, and they certainly know that you should not kill another human being.  

A small number of murderers evince characteristics that make them unworthy of the leniency we otherwise afford to most juvenile offenders; namely, cruelty, wantonness, and a complete disregard for the lives of others.

Some of these juvenile offenders are tried as adults, and a small proportion of them are sentenced to life without parole, the strongest sentence available to express society’s disapproval, incapacitate the criminal, and deter the most serious offenses. 

Used sparingly, as it is, life without parole for the few murderers that a judge finds “permanently incorrigible”—as required by Miller v. Alabama—is an effective and lawful sentence for the worst juvenile offenders. On the merits, it has a place in our laws.

Mandatory Life Without Parole Sentences for Juvenile Killers Are Unconstitutional

In its 2011-2012 term, the Supreme Court considered two challenges to juvenile life without parole sentences. Both cases, which were consolidated, involved mandatory-sentencing schemes that included life without parole for juvenile homicide offenders. 

In its decision, the Supreme Court found that the Eighth Amendment prohibits sentencing schemes that mandate sentences of life without the possibility of parole for juvenile murderers, but declined to consider whether it bars juvenile life without parole entirely.  

In other words, the court once again declined to hold that life without parole sentences for juvenile killers are unconstitutional. Thus, life without parole for juvenile killers, as long as the sentence is not mandatory, is an option for state legislatures. 

Significantly, not a single justice even suggested that imposing life without parole sentences for teenage murderers would violate the Constitution.

However, before such a sentence can be imposed by the sentencing judge on a teenage murderer, the judge must consider the offender’s youth and other attendant characteristics. 

The high court stated that its precedents had established that teenage offenders are to be treated differently from adults for sentencing purposes under our Constitution because their “lack of maturity” and “underdeveloped sense of responsibility” lead to recklessness, impulsivity, and heedless risk-taking, and that these distinctive attributes diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even those who commit the worst crimes. 

Miller v. Alabama did not foreclose the possibility of life without parole sentences for juvenile killers, provided the sentencing scheme is not mandatory and allows for an individualized determination. 

If the Legislature decides, as a matter of policy, to abolish juvenile sentences of life without parole, that is entirely within its discretion. However, it is not required to do so under existing Supreme Court precedent. 

Consequently, if the Legislature decides, again, as a matter of policy, to keep those sentences, that is also entirely within its discretion.

One option here that would be helpful is to craft legislation that details the factors—consistent with the holding in Miller v. Alabama—that a sentencing judge must weigh when considering the offender’s youth and other attendant characteristics. 

The factors announced in Miller v. Alabama can act as a constitutional floor, and state legislatures are free to add elements that a sentencing judge must find before imposing life without parole on a juvenile killer. 

Furthermore, such legislation could confine such sentences to 17-year-olds or provide other guardrails to limit the availability of the life without parole sentence to the worst of the worst. 

Setting the Record Straight

Some proponents of SB 256 have provided testimony that is troublesome, if not outright misleading.   

The Campaign for the Fair Sentencing of Youth testified that, “By preserving life-without-parole sentences for children, states expose themselves to Miller and Montgomery violations each time a child is charged with murder. Based on juvenile brain science and the demonstrated potential all children have for rehabilitation, the Campaign believes it is impossible for courts to accurately predict which children are ‘irreparably corrupt.’”

States do not “expose themselves to Miller and Montgomery violations” each time a juvenile is charged with murder. Most of these cases are adjudicated in juvenile court. Miller v. Alabama and Montgomery v. Louisiana don’t apply in juvenile court, because juvenile courts do not sentence those found responsible to long sentences, and can’t sentence juveniles to life without parole.

Furthermore, most juvenile killers tried in adult court aren’t sentenced to life without parole, so those cases don’t apply there either.

For those select juvenile murderers who are tried in adult court and sentenced to life without parole, there is also no danger of “Miller violations” if the sentencing judge develops a thorough record of the offender’s youthful characteristics and makes a finding that he is “permanently incorrigible.” 

How a judge must do that, and what passes muster as a proper application of the Miller v. Alabama factors, is the issue before the court this term in Jones v. Mississippi.

The Campaign for the Fair Sentencing of Youth also testified that “SB 256 takes an important step toward constitutional compliance for youth convicted of serious crimes by abolishing life without parole, providing meaningful opportunities for parole review after serving a term of years, and setting forth the factors particular to youth to be considered at the time of original sentencing and at the parole review.” 

There are a number of problems with that statement.

First, as stated above, the Supreme Court has never held that life without parole sentences for juvenile killers are unconstitutional.  Thus, the “step toward constitutional compliance for youth convicted of serious crimes by abolishing life without parole” is confusing at the least, and misleading at best.

There is no step to take, as the Ohio Legislature is not required to abolish juvenile life without parole sentences. As a matter of policy, state legislatures can keep the sentence for juvenile killers or abolish it. 

Second, legislatures are not required to set forth “factors particular to youth to be considered at the time of original sentencing.” Rather, sentencing judges are required to apply the Miller v. Alabama factors to any juvenile killer who is facing a possible life without sentence.

And since the court in Montgomery v. Louisiana held that Miller was to be applied retroactively, all juveniles serving life without parole sentences must get a new sentencing hearing, and if the government seeks a sentence of life without parole, the sentencing judge must apply the Miller factors. 

How this is done is up to the discretion of the judge, as informed by the Supreme Court’s decision in Miller.

The Ohio Legislature could pass legislation detailing the factors a sentencing judge must consider, so long as they are not inconsistent with Miller. That’s its choice. Absent such legislation, sentencing judges will apply the factors announced in Miller in individual cases.

The Misleading International Law Argument

The Campaign for Fair Sentencing of Youth also provided misleading testimony about U.S. treaty obligations and international law. It testified, “Sentencing children to die in prison directly violates Article 37 of the United Nations Convention on the Rights of the Child, which prohibits the use of ‘capital punishment and life without the possibility of release’ as sentencing options for people younger than 18.”

But the United States is not a party to the controversial U.N. Convention on the Rights of the Child, and for good reason. The Senate has refused to ratify that treaty, as it undermines the family, freedom of religion, and our sovereignty. 

The Campaign for Fair Sentencing of Youth misleads the committee when it claims that the main reason why senators from both parties have refused to ratify that controversial treaty is over the juvenile life without parole issue.   

As we detailed in our book “Adult Time for Adult Crimes,” the United States (and, by extension, the individual states) are not required by the Convention Against Torture or the International Covenant on Civil and Political Rights to ban life without parole sentences for juvenile killers. 

Finally, the suggestion that international law and our treaty obligations require state legislatures to abolish juvenile life without parole sentences has been trotted out by opponents of such sentences for years, and been repeatedly rejected by the Supreme Court. 

Options for the Ohio Legislature

Sponsors of the legislation have been misled about, or fail to understand, the Supreme Court’s jurisprudence with respect to the constitutionality of life without parole sentences for juvenile killers. The premise of the legislation is flawed: The sentence is not unconstitutional, as long as it is not mandatory.

If the legislation advances out of committee next week, the House speaker should refuse to bring up the bill because it is based on a false premise. The bill would expire at the end of the year.

Alternatively, the legislation should be amended so as not to apply retroactively. It is simply not fair to the victims of these horrible crimes, and their families, to have to relive these cases over and over. 

Since the court’s decision in Miller v. Alabama already requires the sentencing judge to hold a new sentencing hearing to determine whether the murderer is “permanently incorrigible,” the victims will be put through hell again. 

Fairness and compassion for victims’ rights dictate that the Legislature not victimize them again by passing legislation that applies to those who have been sentenced already and whose convictions have been upheld on appeal. 

The governor always has the power to commute their sentences or give them a pardon. 

Legislators could hold meaningful hearings next year on the factors that judges must consider under the Supreme Court’s Miller v. Alabama case before sentencing an appropriate teenage murderer to life without parole. The “permanently incorrigible” standard could act as a floor, and the Legislature could require a sentencing judge to analyze specific additional factors and make findings before considering a sentence of life without parole. 

There’s no compelling reason to hastily enact legislation related to juvenile life without parole sentences in Ohio. The sentence is rarely sought, and rarely handed down, and only for the most heinous murderers. 

Rather than rush through a bill based on a false premise, Ohio legislators should table this bill and start from scratch next year with a full understanding of Supreme Court precedent, and consider the options discussed here and in my written testimony.