As Youth Today and myriad other news sources reported earlier this week, the U.S. Supreme Court will hear two cases that may affect states' ability to impose life without parole (LWOP) sentences on juveniles offenders. Here are a few half-baked thoughts and notes on the subject:
1. The decision to hear these cases may save the anti-LWOP movement from Bernie Madoff. You read that right. As we reported back in Decemberl, Madoff's multi-billion dollar Ponzi scheme caused the abrupt end of the JEHT Foundation, which had a small but aggressive portfolio in juvenile justice. The foundation served as a primary funder for perhaps the three most visible LWOP-focused organizations in the country:
* ACLU of Michigan, for the Juvenile Life Without Parole Initiative, headed by Michigan civil rights attorney Deborah LaBelle, which continues to seek a ban on LWOP sentences in the state.
* University of San Francisco Law School, got $160,000 from JEHT to "lay the groundwork for a ban on juvenile life without parole, by strengthening opposition to its use in human rights forums, and subsequently using this opposition in litigation to advocate for an end to the practice in the United States." The school produced a report in 2007, and director Michelle Leighton said the project is still operational.
* Equal Justice Initiative (EJI), New York, received $500,000 from JEHT to "reduce sentences of life without parole for crimes committed by 13- and 14-year olds and to establish new Eighth Amendment jurisprudence declaring such sentences to be cruel and unusual punishment and therefore unconstitutional."
EJI is the reason Joe Sullivan's case (one of the cases to be reviewed by the court) is where it is, and the organization will be able to see it through to the end. But JEHT represented a quarter of the organization's total revenue, and 85 percent of the funding dedicated to do juvenile LWOP work. So new money will have to come from somewhere, and a high-profile Supreme Court case might attract the kind of attention necessary to land it.
"That would be nice," EJI Executive Director Bryan Stevenson said. "I don't think it's that people are reluctant" to fund EJI, he said. "The problem is, there just aren't that many foundations" that work on juvenile justice, period.
There is one new kid on the block in terms of LWOP work: the National Campaign for the Fair Sentencing of Youth, a D.C.-based organization overseen by Jody Kent, who used to run the ACLU's National Prison Project. Kent said the campaign is funded through the U.S. Human Rights Fund, which pooled money from a couple of foundations for the project.
2. It is unlikely that the court will abolish life without parole as an option for all juvenile offenders. Both of the cases the court will hear apply to the same universe of LWOP recipients: those who were not involved in a case that resulted in a death. The best guess on the percentage of the 2,574 or so juveniles sentenced to life without parole for a non-homicide crime is 7 percent.
A proposed law in California would ban LWOP there for any juvenile, which in one fell swoop would protect about 13 percent of the nation's youths. Forty-two states currently allow for LWOP sentences for juveniles.
3. What would a split decision mean? The court will hear the cases separately. It's possible that the court could overturn the sentence of Joe Sullivan, who was 13 when he was convicted, yet let stand that of Terrence Graham, who was 17 when he was sentenced after a parole violation involving an armed home invasion.
That could trigger an interesting debate. The vast majority of states use the age of 17 or 18 as the age that determines whether a youth is a juvenile or an adult. Florida falls in that vast majority, so both individuals were juvenile offenders in the eyes of the law.
If the court order a parole hearing for Sullivan but not Graham, advocates are certain to questions how to draw the line: If youths under 17 or 18 are juveniles, why would a young teen warrant treatment different from an older teen?
EJI embodies the belief that there is a difference. It litigates only on behalf of prisoners who received LWOP when they were 14 or younger. There are 74 such cases right now, compared with more than 2,000 cases involving juveniles sentenced when they were between 15 and 18.
Stevenson explained that the approach is pragmatic. EJI believes all juveniles should have a chance at parole, but for now believes it can have the most impact focusing on very young teens.
If the court rules that LWOP for anyone under, say, 15 is cruel and unusual, that's a line of demarcation. Would that make it harder for proponents of a universal ban on juvenile LWOP to advance the cause?
"That's hard to predict," said Kent.
4. Does this hold some backdoor promise for eventual challenges to transfer laws? This is something of a wild card. Would a decision that limited the use of LWOP for juveniles be tantamount to saying that juveniles certified as adults are less culpable than actual adults tried as adults?
Despite the hopes of some advocates, it's hard to envision a day when systems could not try at least some juveniles in adult court. If Sullivan wins his appeal, could that open the door to the argument that any adult sentence is cruel and unusual for those under the age of 13, or 14? A lot of states have no age threshold on transfers at the moment.
"Potentially," Stevenson said of possible challenges to transfer laws. "The law has gotten pretty bad on transfers."
In a lot of states, Stevenson said, "the presumption now [for violent felonies] is that the juvenile will be tried as an adult." The burden is on the juvenile to demonstrate why he should not be transferred.
And really, the growing propensity over the years to transfer youths to adult court is the underlying cause of the LWOP problem (the judge in Graham's case could have opted for juvenile sentencing, but did not because of Graham's "escalating pattern of criminal conduct," according to court transcripts). It's not always a matter of fed-up judges transferring youths that the JJ system couldn't fix: 60 percent of LWOP recipients are first-time offenders.
5. This is a way bigger deal if you work in Pennsylvania, Michigan, Louisiana and Florida. More than half of the 2,574 inmates doing life for a crime committed as a juvenile were sentenced in those states.
If the court chooses to ban LWOP for really young offenders, Pennsylvania and Florida will be most affected. They hold half of the offenders sentenced to LWOP when they were 14 or younger. If the court chooses to ban LWOP in non-homicide cases, Florida will be the most affected. One-fifth of Florida's juvenile LWOP cases stemmed from non-homicide cases.