Monday’s hearings on the two Florida cases, each involving juveniles who received sentences of Life Without the possibility of Parole—LWOP—has had reporters on the Supremes beat scrambling to analyze what exactly the various justices comments and questions portend for the decision.
The precedent that both SCOTUS watchers and the justices themselves are looking hard at the 2005 decision of Roper v. Simmons, which forbade the execution of offenders under 18 using the 8th Amendment as a guideline. Putting kids to death was cruel and unusual, the court concluded in ’05.
Still the U.S. remains the only country that locks up juveniles for life without any hope of redemptive recourse.
The two cases heard yesterday did not involve murder, which is the difference that allowed this particular camel to get his nose under the tent. But, it is clear to all that the point of the exercise is to look at juvenile LWOP itself.
Justice Kennedy was the crucial swing vote on the Roper case. (What else is new?) Thus all eyes are on him for these Florida LWOP cases. (WWKD?)
Still, Chief Justice Roberts has also been quite thoughtful in his questioning (in contrast with Alito and Scalia who have been their usual, scowling hard-eyed selves). It is Roberts who has floated the idea of a compromise that would look at the defendant’s age and then decide on a case by case basis whether the sentence was proportional to the crime. The NY times Adam Liptak reports Roberts as saying:
“We know from Roper that death is different, and we know from Roper that juveniles are different,” the chief justice said. “Wouldn’t it make sense to incorporate the consideration of the juvenile status into the proportionality review?”
But Justice Ginsburg argued otherwise, saying that the law makes all manner of distinctions based solely on age and for very good reason. Kids are different:
“Think of the teenager who can’t drink, can’t drive, can’t marry,” said Justice Ruth Bader Ginsburg, adding that those legal lines were not drawn case by case. “They say no juvenile can drink — no juvenile.”
The compromise idea is also problematic, say many sidelines watchers (like me, for example), because the whole notion of treating juveniles differently is that, as brain imaging and other research shows us, kids have less cognizance of their actions and—even more significantly—more ability to change as they age. So the case-by-case analysis would likely better be done at, say, the ten year mark into a sentence, not at the beginning. So make the conditions for parole very stringent for serious crimes committed by juveniles, but do away with LWOP.
Lawrence Hurley, the Los Angeles Daily Journal’s SCOTUS reporter, has a particularly clear-headed take of what Roberts and Kennedy might be thinking. (After all, Hurley is writing mostly for lawyers, judges and other legal professionals. He sees Kennedy as sitting on the fence.
Due to the DJ’s paywall, Hurley has, once again, kindly allowed me to reprint the whole thing.
You’ll find it below.
WASHINGTON – Chief Justice John G. Roberts Jr. appeared Monday to be trying to craft a compromise that would allow the Supreme Court to avoid a categorical ban on life without parole sentences for juveniles who commit non-homicide offenses.
Roberts’s proposed solution – outlined during oral argument in two cases out of Florida – is for the court to issue guidance to lower courts stating they must consider carefully the age of a defendant during sentencing. This would fall far short of what the lawyers for the two defendants are seeking.
Roberts seemed to be directing most of his remarks in the direction of Justice Anthony M. Kennedy, whom most court-watchers expect to be the swing vote.
The cases before the court involve Terrance Graham, who was 16 when convicted of armed burglary and a year older when he violated his probation; and Joe Sullivan, who was 13 when convicted of sexual battery. Graham v. Florida, 08-7412, and Sullivan v. Florida, 08-7621.
Their lawyers say life without parole for juveniles convicted of non-homicide offenses violates the 8th Amendment ban on cruel and unusual punishment. They have adopted similar reasoning to that used by Kennedy when he wrote the majority opinion banning the death penalty for juveniles in 2005. Roper v. Simmons, 543 U.S. 551.
That case, in which the court ruled 5-4 with Kennedy as the swing vote, also rested on the 8th Amendment. Kennedy wrote that juveniles are less culpable than adults who commit the same offenses. Based on Monday’s argument, it was unclear whether Kennedy is willing to extend his conclusions outside of the death penalty context.His two most revealing comments suggest he could go either way. The first came when he cast doubt on whether life without parole is more of a deterrent than life with the possibility of parole.
“My initial instinct is that the difference in life and life without parole is just not a factor in deterrence,” he said to Graham’s attorney, Brian S. Gowdy, of Mills, Creed & Gowdy in Jacksonville, Fla.
Then, on the same subject, he asked: “Why does a juvenile have a constitutional right to hope, but an adult does not?”
With Kennedy seemingly undecided, Roberts took the opportunity to argue the most suitable outcome was a requirement that – under the 8th Amendment – judges have to take special account of a juvenile’s age when deciding whether the sentence is proportional to the crime. Defendants would then have an opportunity to cite their age when appealing the harshness of a sentence and courts would handle the issue on a case-by-case basis. This would also mean the Supreme Court would not have to come up with a categorical rule that would, for example, set 18 as the minimum age for a life without parole sentence.
“Why doesn’t that seem more sensitive?” Roberts said. “And it avoids all of the line-drawing problems we have been discussing.”
Roberts may have trouble convincing his conservative colleagues to join him in a compromise. One of them, Justice Antonin Scalia, questioned whether life without parole is any worse for an adolescent than an adult when analyzing if it is cruel and unusual punishment under the 8th Amendment.
“I don’t see why it’s any crueler to an adolescent,” he said.
Justice Samuel A. Alito Jr. indicated he shared Roberts’ views.
The chief justice’s proposal would allow courts to recognize that some juveniles deserve life without parole for crimes that are “so horrible that I couldn’t have imagined them,” while also acknowledging there are instances where a more lenient sentence is suitable, Alito said.
The court’s task is perhaps made even more difficult by the fact the defendants’ lawyers themselves disagree on what rule the court should adopt. Gowdy, Graham’s lawyer, favors a ban on life without parole for anyone under 18 convicted of a non-homicide offense. Sullivan’s attorney, Bryan Stevenson, the executive director of the Montgomery, Ala.-based Equal Justice Initiative, argued for a ban on life without parole sentences for all defendants 14 or younger, regardless of the offense.
A recent Florida State University report concluded there are 109 inmates nationwide serving life without parole sentences for non-homicide offenses. Of those, 77 are from Florida.
The two cases before the Supreme Court could affect four inmates in California who received life without parole for crimes not involving murder. The state has refused to reveal their names. California is one of eight states that have sentenced juveniles to life without parole for certain non-capital crimes.
In California, only a few offenses not involving a homicide, such as kidnapping, can lead to life without parole.