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Joe Sullivan: Among the inmates who must be given a “meaningful opportunity” for release after the Supreme Court ruling in Graham v Florida. |
The U.S. Supreme Court’s decision to ban life without parole sentences for juveniles convicted of non-homicide offenses is by no means the end of the controversy about the thorny subject.
Youth advocates already are searching for ways to build upon the ruling to obtain a ban on life without parole for those convicted of homicides committed when they were juveniles. At the same time, states such as Florida that favor lifetime incarceration for juveniles are threatening simply to replace the LWOP sentences with extremely long prison terms for the youths in question.
The ruling does not prohibit “very stern sentences for juveniles,” Florida Attorney General Bill McCollum said in a statement immediately after the court’s May 18 decision in Graham v. Florida. He said he expects Graham to “be resentenced to a very long term in prison.”
McCollum said he would work with legislators for solutions that “can better protect Florida’s citizens, families and guests.”
In its ruling, the court for the first time created a “category” of offenses that merit a specific type of sentence. The justices breached their own rules that had singled out the death penalty as the only type of sentence that was different.
“It is inevitable that some juveniles sentenced for lesser homicides will try and build off Graham, that LWOP is problematic no matter what crime they committed,” said Douglas Berman, a law professor at the Ohio State University and author of the Sentencing Law and Policy blog.
For now, it means that 37 states, the District of Columbia and the federal government need to change their laws about lifetime sentences for juveniles.
In the Graham case, six Supreme Court justices decided that the life sentence a Florida judge imposed in 2006 on Terrance Graham, now 23, was “cruel and unusual punishment.” Graham pleaded guilty at age 16 to armed burglary and assault and received a short sentence and probation. Six months later, when he was 17, he was involved in a home invasion robbery and pleaded guilty to violating the terms of his probation.
The minimum sentence Graham could have received was five years. He was sentenced to the maximum of life in prison, which, because Florida has no parole, meant life in prison with no possibility of release.
Five of the concurring justices agreed that all juveniles should be protected from LWOP sentences for non-homicides. Chief Justice John Roberts, who agreed with five other justices regarding Graham’s specific sentence, disagreed with expanding the ruling to all such juveniles.
In a separate opinion, Roberts favored the notion that a juvenile’s age should be factored into sentencing on a case-by-case basis, a view he repeatedly expressed during oral arguments in the case last November.
“A categorical rule avoids the risk that … a court or jury will erroneously conclude that a particular juvenile is sufficiently culpable to deserve life without parole for a non-homicide,” Justice Anthony Kennedy wrote in the majority opinion. “It also gives the juvenile offender a chance to demonstrate maturity and reform.”
Kennedy, who also wrote the majority opinion in the 2005 case Roper v. Simmons that deemed the death penalty for juveniles to be unconstitutional, used some of the logic from that earlier ruling. It was partly based on evidence of juveniles’ diminished culpability in committing crimes.
“The court has pretty much never used the Eighth Amendment to invalidate anything other than death penalty,” said Bryan Gowdy, Graham’s attorney.
The three dissenting justices, who were not persuaded that Graham’s sentence was cruel and unusual, echoed Roberts’ belief that the categorical decision was unwarranted.
“Neither the Eighth Amendment nor the court’s precedents justify” the decision to impose a categorical ban, Justice Clarence Thomas wrote for the three dissenters. Joining Thomas were Justices Antonin Scalia and Samuel Alito.
A case argued in tandem with Graham’s, Sullivan v. Florida, was “dismissed as improvidently granted” by the court. The petitioner, Joe Sullivan, was 13 when he received an LWOP sentence for a non-homicide.
Sullivan’s lawyer, Equal Justice Initiative (EJI) Executive Director Bryan Stevenson, said the case was dismissed because the rule created in the Graham decision covered both cases.
Long-term impact
Juvenile advocacy organizations uniformly reacted to the court’s ruling by calling it a “step forward” or a “step in the right direction.” Essentially all the advocates would like to see LWOP banned for all juveniles, including those convicted of homicides. That is a much larger group – 2,400 inmates are serving LWOP sentences for homicides they committed as juveniles, compared with 129 non-homicide LWOP inmates.
Recent state court appeals of LWOP sentences for juvenile homicides – which used the Roper death penalty ban as a basis for their arguments – have failed. In Christopher Wallace’s Wallace v. State, the Delaware Supreme Court said the U.S. Supreme Court’s decision in Roper “would not have recognized a sentence of life without parole as an acceptable alternative to death as a punishment for juveniles who commit intentional murder in the first degree, if such a sentence would violate the Eighth Amendment.”
The Connecticut Supreme Court rejected Anthony Allen’s claim in State v. Anthony Allen with more sympathetic language. “We agree that the large number of juveniles serving life sentences in the United States as compared to those few other countries that permit such a sentence raises deeply troubling questions,” the justices said. But “in the absence of a constitutional prohibition against the imposition of a life sentence without the possibility of release, the wisdom of this sentencing scheme remains with the Legislature.”
Graham v. Florida creates just such a categorical ban on LWOP sentences for an entire class of people. The justices in the majority did not offer any explanation as to why homicide convicts do not belong in the class, but experts expect juvenile homicide convicts and even adults to appeal their LWOP sentences using Graham.
The Pennsylvania Supreme Court intentionally waited until the Graham decision to schedule arguments in the separate cases of Qu’eed Batts and Ian Cunningham, who are appealing LWOP sentences for murder on Eighth Amendment grounds. Batts was convicted of first-degree murder, and Cunningham was convicted of second-degree murder. Under Pennsylvania law, both convictions carried an automatic sentence of life without parole.
“We’re going to be dealing with Graham and its implications for Pennsylvania” for a long time, said Marsha Levick, chief counsel for the Juvenile Law Center in Philadelphia.
In Louisiana, there are no current challenges of juvenile LWOP sentences before the state’s high court, said Dana Kaplan, executive director of the Juvenile Justice Project of Louisiana. But she said her organization is looking at case files of people sentenced to life without parole for a homicide committed while a juvenile to see whether one or more could be appealed using the Supreme Court’s holding in Graham.
Two juvenile LWOP sentences for homicides are being appealed in Mississippi by the Equal Justice Initiative, which represented Joe Sullivan in the case the U.S. Supreme Court heard with Graham in November.
In some states , there is a very small window for a juvenile LWOP homicide appeal. Pennsylvania inmates who want to file post-conviction motions based on the court’s Graham ruling only have 60 days to do so, according to Defender Association of Philadelphia attorney Bradley Bridge. If such an appeal is rejected by the state court, he said, he could appeal the judgment to higher courts under Graham.
Bridge said he hopes appellate lawyers and the Pennsylvania judicial system can figure out a way to handle en masse the approximately 450 Pennsylvania inmates sentenced as juveniles to life without parole sentences for homicides.
“It makes sense to have that be centralized,” he said, “instead of about 450 petitions in front of 30 or 40 judges.”
Short-term impact
As a result of the Graham v. Florida ruling, the District of Columbia and all but 13 of the states face significant policy decisions to bring them into compliance with the court’s view.
The immediate impact of the decision will be in the 11 states that are incarcerating at least one of the 129 inmates sentenced to LWOP for a non-homicide committed as a juvenile. Those states are: Florida, California, Delaware, Iowa, Louisiana, Mississippi, Nebraska, Nevada, Oklahoma, South Carolina and Virginia. The federal government also has six inmates serving juvenile LWOP sentences.
The court told the states they must “give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”
Florida, where Graham is held, is home to 77 of the 129 inmates who are serving life without parole for non-homicide crimes committed as juveniles.
Graham’s case automatically will come up for resentencing, and Gowdy said he will continue to handle the case, with the assistance of a criminal defense attorney. Most of the other 128 convicts whose sentences are affected by the court’s ruling will have to file post-conviction motions, and many are not entitled to court-appointed counsel to do so, according to several lawyers involved with the ruling.
Jody Kent, director of the Campaign for the Fair Sentencing of Youth, said most of those 128 “did not have top-performing attorneys” during the proceedings that landed them in prison for life.
The Equal Justice Initiative is likely to take on many of the resentencing motions. “We’re going to help as many people as we possibly can, given our resources,” said Stevenson, the director. “The reason we got involved in this in the first place is because hundreds of kids never received assistance in challenging their sentences.”
Just identifying all of the inmates eligible to file motions will be a challenge. Stevenson said his organization has developed a “working knowledge” of many of them. But it’s possible that some of the 129 identified in this case are not eligible, if for example, they were sentenced to LWOP on a non-homicide in a situation where a judge didn’t feel it was necessary to sentence on an associated homicide charge.
There may also be inmates serving LWOP sentences for non-homicidal felonies committed as juveniles who were not identified in the list assembled for the Graham case. “It’s going to be a really complicated process,” Stevenson said.
Thirteen states have laws that conform with the high court’s ruling. Alaska, Colorado, Montana, Kansas, Kentucky and Texas do not permit LWOP sentences for any juvenile offender. Connecticut, Hawaii, Maine, Massachusetts, New Jersey, New Mexico and Vermont all allow for juvenile LWOP sentences, but only for those convicted of homicides.
The court did not specify exactly how sentences for the juvenile LWOP inmates should be restructured. “It is for the state,” the court said, “to explore the means and mechanisms for compliance.”
The Campaign for the Fair Sentencing of Youth – which advocates trying all juveniles in juvenile court – favors a review in a life sentence after 10 years of incarceration.
California is considering such an approach. Senate Bill 399 could require 10-year reviews of sentences for LWOP juveniles who fit certain criteria.
“I hope states take a sensible approach,” and review sentences “at a point in time when the juvenile has matured,” said Gowdy, Graham’s attorney. “It doesn’t make sense to wait [for parole hearings] until they’re 80 or 85.”
Gowdy called such life sentences or sentences that require a 60-year minimum the “functional equivalent” of life without parole. He said states that try to substitute something like that for LWOP “will be facing challenges from people like me.”
He declined to say what the benchmark might be for such “functional equivalent sentences.” Colorado, for example, mandates parole opportunities for any juvenile sentenced to 40 years or longer.
“That has been our bane because 40 years is now considered an acceptable number,” said Mary Ellen Johnson, executive director of the Pendulum Foundation in Colorado, an advocacy organization that was influential in pushing for her state’s ban on LWOP sentences for juveniles.
She believes the standard should be a review of sentencing once an inmate turns 30. “Studies show that violent behavior decreases dramatically after age 30,” she said. “Age, above all, is the best determinant factor regarding recidivism and criminal behavior.”
