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Why Are Children Going to Prison for Life?

Even after a Supreme Court ruling, thousands of minors are still locked up -- and may never end up leaving.

This originally appeared on  ProPublica.

When Dennis Epps learned in June that the Supreme Court had  struck down mandatory life without parole sentences for kids convicted of murder, he was hopeful. His brother, David, was given such a sentence for home burglary-murder committed at 16 and has spent most of his 48 years behind bars.

“I was thinking he was going to get some kind of release, because he served 32 years on a life sentence,” Epps told ProPublica.

But Epps’s brother is unlikely going anywhere soon. A few weeks after the ruling, Iowa Gov. Terry Branstad announced he would commute the life without parole sentences of 38 juvenile offenders, and make them eligible for parole after 60 years. David Epps would be in his mid-seventies when he could first be released.

Under the Supreme Court’s ruling, minors can still get life without parole sentences — just not automatically after a conviction; instead a judge will need to decide, taking into account the minor’s youth.

For the roughly  2,500 juvenile offenders already sentenced to life in prison without parole, the upshot of the ruling —  Miller v. Alabama — seemed clear: “They will all get another bite at the sentencing apple,” Dan Filler, a professor at Drexel University’s Earle Mack School of Law, wrote shortly after the ruling.

That may not happen if Iowa’s governor or many other states get their way.

“Justice is a balance and these commutations ensure that justice is balanced with punishment for those vicious crimes and taking into account public safety,” Gov. Branstad said in  announcing his order.

The governor’s action, which sidesteps any potential resentencing hearings, has  sparked criticism and legal  challenges.

Stephen Bright, director of the  Southern Center for Human Rights in Atlanta who teaches at Yale Law School, called the governor’s order “questionable legally and bad public policy.”

“The main point of the Miller decision — and the main concern of any sentencing — should be individualized sentencing based on factors about each human being,” he said. “Obviously, nothing about any of the 38 individuals was taken into account, just as it was not when they were sentenced to life imprisonment without parole.”

Yet Filler, the Drexel law professor who wrote about the ruling, said it actually  leaves the details to states to iron out. “When you look at the decision closely, it implicitly leaves room for exactly what the governor of Iowa did,” he told ProPublica. “It doesn’t give us any guidance. You have to see this decision as entirely cloudy. Different states are going to try different things.”

Indeed, some states have suggested they don’t plan on rolling back minors’ life without parole sentences, pointing out the Supreme Court left unclear whether its ruling should be applied retroactively to minors already sentenced. (Twenty-six states currently have mandatory life without parole statutes for juveniles. Here’s  a list and a map showing where.)

“It is the (Alabama) Attorney General’s position that this rule does not apply retroactively,” Alabama Solicitor General John C. Neiman Jr. told us. “Ultimately whether it will apply retroactively is going to be a question that will be litigated in, and decided by, the courts.”

The ruling

In its  June 25 decision, a 5-4 majority on the Supreme Court ordered an individualized approach to sentencing for juveniles convicted of murder to consider proportionality of punishment to the nature of the crime and offender’s history.

Sentencers are now required to “follow a certain process — considering an offender’s youth and attendant circumstances — before imposing a particular penalty,” wrote Justice Elena Kagan for the majority. Among the unique characteristics of youth cited were “immaturity, impetuosity, and failure to appreciate risks and consequences.”

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