Whether “death is different” than life without parole for juveniles was at the center of arguments today as the U.S. Supreme Court pondered the constitutionality of such sentences for certain young offenders.
The high court heard arguments in two cases in which plaintiffs argued that juvenile life without parole (LWOP) sentences violated their Eighth Amendment protection from cruel and unusual punishment. Lawyers for one petitioner, Floridian Terrance Graham, argued his sentence was unconstitutional because his crime was not a homicide . Lawyers for the other, Joseph Sullivan, also from Florida, argued his LWOP sentence was cruel and unusual because he was only 13 when convicted.
“Adolescents are different,” said Bryan Gowdy, an attorney for Graham. “We’re not asking for release, just the opportunity for it.”
Graham, the plaintiff in Graham v. Florida, participated in a robbery at age 16 and received a sentence of 12 months in a juvenile facility, plus three years of probation. Graham violated the terms of his probation in 2004 by committing another robbery. A judge revoked his probation and sentenced him to life without parole.
Gowdy told the court it should deem a sentence of life without parole (LWOP) unconstitutional for offenders under the age of 18 who are not sentenced for homicides.
When it comes to juvenile offenders, Gowdy argued, the evidence supports the social norm that society believes a conviction for “murder is different” from any other offense. Two pieces of evidence he used to support that argument: studies of the adolescent brain indicates juvenile offenders have an “inherent capacity to change,” and the fact that only 30 people outside of Florida are serving LWOP sentences for crimes committed as a juvenile.
Some justices took issue with the latter argument. “The vast majority of states allow [LWOP sentences], right?” asked Chief Justice John Roberts.
Yes, Gowdy acknowledged, but “31 allow it but never impose it.”
“So if a sentence is imposed rarely, does that make it unconstitutional?” Justice Antonin Scalia quickly replied.
Roberts and Justice Samuel Alito both wondered why a categorical decision was necessary. “Why isn’t the best [approach] proportionality challenges?” Alito asked, referring to the option of allowing offenders to challenge their individual sentences based on mitigating circumstances, such as age.
The relief sought by Graham’s lawyers, Alito suggested, “deprives Florida the right to decide that some [juvenile non-homicide convicts] deserve life without parole.”
Gowdy argued that the case-by-case review “needs to happen once the juvenile has matured.”
Gowdy also faced a number of questions about where the line should be drawn. “What makes us more capable” of fairly sentencing LWOP at 18 “than at 17?” asked Justice Sonia Sotomayor.
“The line has to be drawn somewhere,” Gowdy replied, to which Scalia retorted, “It only has to be drawn if we accept your claim.”
In the second case, Sullivan v. Florida, attorney Bryan Stevenson said he personally supported Gowdy’s argument for a ban on LWOP for all non-homicide juvenile cases. But he drew a clear wall around his own client’s proposition: that the court should disallow LWOP sentences for any crime committed by an offender who is under 14, regardless of the court’s decision in the Graham case.
In 1989, Sullivan was convicted for beating and raping a 72-year-old woman when he was 13 years old. After a one-day trial, he was convicted by a jury of six and sentenced to life without parole.
Stevenson’s oral argument focused mainly on the notion that LWOP sentences are freakishly rare for youths under the age of 14. Only nine inmates are serving LWOP sentences, Stevenson said, and only two were found guilty of non-homicides; both in Florida.
That is particularly unfair, Stevenson argued, in light of what occurred in Roper v. Simmons, in which the Supreme Court abolished the juvenile death penalty. Those on death row for crimes committed as juveniles were resentenced to life with parole, which means Sullivan now faces a worse sentence than they do.
Roberts and Scalia questioned Stevenson on whether the infrequent use of LWOP sentences was significant.
“The federal law allows” LWOP, Roberts said, “38 states allow it. How is there a consensus” that society does not want the option to impose it on juveniles, however young?
“We’ve established that the sentence should be rare,” said Scalia.
The decision to hear both cases surprised many following LWOP litigation, and it leaves the court a wide berth of options. It could leave LWOP on the table for all juveniles, or remove it for juveniles of a certain age or offense threshold. The court could also ban LWOP for all juvenile offenders, as it did with the death penalty in 2005.
No party in either case argued for a ban on LWOP sentences for juveniles convicted of murder, although many of the amicus briefs filed on behalf of Graham and Sullivan seemed to support an outright end to juvenile LWOP.
A question of jurisdiction may keep the court from reaching the Eighth Amendment implications of Sullivan’s case. Florida Solicitor General Scott Makar argued that Sullivan’s appeal has no basis because Florida law imposes a two-year limit on post-conviction motions in any noncapital case.
Stevenson argued that the 2005 Roper decision opened a new avenue for appeal, but if the court disagrees it may not choose to address other aspects of the case.