Moving further along the constitutional line between adults and children in the criminal courts, the Supreme Court on Tuesday turned to life-without-parole sentences for youths who commit murder, and appeared to be reaching for a compromise. If the indications from the hearing hold, the Court might allow such sentences to be imposed on youths, but not as a mandatory matter for younger teenagers. And it could choose to forbid that penalty at all for some, but where that line might be drawn was far from clear – although it might wind up at 12 or younger. In more than 90 minutes of argument in two cases, there was no sign that a majority would come together on a flat ban for such a sentence for anyone under age 18 — the preferred outcome sought by two youths’ lawyer.
For decades, the Court has been drawing lines on criminal punishment for the young, and it has not been an easy process. Although the Court has regularly accepted the notion that children are less responsible for their conduct than adults, and that the Constitution must account for that, it has divided deeply as it applied that to the severity of the punishment it will allow. So far, it has barred the death penalty for any youth under age 18 for any crime, and it has similarly nullified life-without-parole for any minor whose crime did not result in someone’s death. It turned Tuesday to life-without-parole as a sentence for murder in cases involving 14-year-olds convicted under mandatory sentencing laws in Alabama and Arkansas.
In the cases of Miller v. Alabama (10-9646) and Jackson v. Hobbs (10-9647), most of the Justices appeared to share the sentiment expressed early by Justice Anthony M. Kennedy that the Court did not want to be forced to choose between two opposite choices: no life-without-parole sentences for any minor, or no limit on the sentence for anyone no matter how young. And there also seemed to be considerable support for Kennedy’s apparent willingness to focus mainly on the question of whether such a sentence should be mandatory and, if so, whether that should be keyed to a specific age. Kennedy’s views may be crucial, since he has been the author of the Court’s key rulings on youths’ sentencing.
Kennedy told Bryan A. Stevenson, the Montgomery, Ala., lawyer who argued both cases for the youths involved, that if he insisted on “taking off the table” any such sentence for a minor, “you leave us with nothing to say” except a stark either/or constitutional conclusion. “You are forcing us into a bipolar situation,” Kennedy said at another point. Stevenson did not back off from his ultimate preference, but did suggest that the Court might want to have a separate constitutional rule keyed to age: no life-without-parole for anyone under age 15, but no mandatory sentence of that kind for anyone up to age 18. He told Justice Ruth Bader Ginsburg that it would not be acceptable to simply take away the mandatory imposition of such a sentence for anyone under 18, leaving it available even for the youngest children.
Several Justices, starting with Justice Sonia Sotomayor, wondered just what theory or measure the Court would use to draw such lines, and thus how the Court might write an opinion that made such distinctions. Stevenson, in the main, suggested that the Court could rely on scientific evidence about the “deficits” in understanding and judgment that exist for youths, which he said do vary by specific age. “The younger you are,” the lawyer contended, “the more compelling the deficits.”
Justice Antonin Scalia reacted the most skeptically to that line of argument, remarking that, under the common law, it was left to the jury to decide how to take into account the youth of the criminal being tried before them. By testing out various lengthy years of punishment, to see how Stevenson would react, Scalia made it clear that he was not open to new constitutional limitations for youths convicted of murder. Once it is accepted that “death is different,” Scalia commented, there is no basis for having a different age category in determining punishment for one who kills. That, essentially, was the argument made in the two cases by lawyers for the states: if a youth commits the “worst of crimes,” they should be as legally responsible as anyone who does so, the states’ counsel contended.
Stevenson ran into some difficulty, especially with Justice Samuel A. Alito, Jr., when discussing how the Court should treat the fact that 39 states have sentencing laws that would permit life-without-parole for a youthful murderer. Stevenson contended that, in most of those states, the legislators had not really thought about whether that would lead to such sentences for the very young. “I don’t understand how you can argue that,” Alito said. The 39 legislatures had passed laws permitting such a sentence, so “how can you say they have not addressed it?”
The lawyer countered that there is evidence that some state legislators have, in fact, thought explicitly about the implications. In the 13 states that have barred a life-without-parole sentence for those below a specific age, 12 of them have said it could not be imposed on a youth whose crime was committed before age 18. The other barred it for youths ages 14 and younger . In the other states, Stevenson said, the legislatures simply did not set a minimum wage but made life-without-parole apply to all who committed the more serious murders.
John C. Neiman, Jr., the state of Alabama’s solicitor general, argued that the fact that there are 39 states that would allow such a sentence for a specific crime without regard to the offender’s age is proof of a “national consensus” that such punishment is not constitutionally excessive. His main difficulty — and it was the same for Kent G. Holt, an assistant state attorney general for Arkansas, in the second case — came from the fact that many of the states in that group make such a sentence mandatory. Justice Stephen G. Breyer led the verbal assault on that proposition, wondering what justification a state could have for not allowing a young offender to make any argument to “mitigate” what Breyer called “this terrible penalty.” Justice Kennedy later wondered the same thing. Kennedy also wondered if there were data that would indicate what proportion of youthful offenders given long sentences are able to be rehabilitated, implying that he might be sympathetic to some option for a youth ultimately to gain release.
Justice Elena Kagan, noting that the Court has insisted upon a focus on the individual offender when a judge is considering a death sentence, wondered why the same approach should not apply to juveniles faced with a life-without-parole sentence. Neiman countered that the Court had made it clear that this was required only in the context of the death penalty, and that states are entitled to have mandatory term-of-years sentences. Justice Breyer suggested that one option might be to require that the individualizing of sentences should be required for any youth who committed murder while under age 18.
Breyer, though, also got a conversation started about whether there was a specific age below which no youthful offender should be sentenced to life-without-parole. “If there is a minimum, what is it?” Breyer asked. Neiman, feeling forced to make a choice, said that if he were a defense lawyer, he would suggest that the cut-off line should be at age 12. Justice Scalia promptly accused the state’s lawyer of “plucking a number out of the air,” and wondered why any particular number could not be chosen, with no rationale behind it.
Justice Ginsburg and other members of the Court explored whether the definition of a dividing line might be borrowed from the maximum age at which a state allows a juvenile offender to be transferred out of the juvenile justice system to be tried as an adult in a regular court. Neiman said that, in his state, that age was 14. These exchanges seemed to be show that some of the Justices might use that as an indicator of when states deemed youths to have matured enough to be held fully responsible for committing serious crimes.
When the Court turned to the second case, it found itself examining whether it should make a difference, in a juvenile’s murder case, whether the individual facing a life-without-parole sentence had actually killed someone, or intended that a crime go forward knowing that someone might be killed. Justice Sotomayor, in fact, stepped in before Stevenson even began that argument to ask him how the Court would write an opinion that drew a line against a life-without-parole sentence for a youth who had a role in a murder case but was not the actual killer, and did not intend that there be a murder. The attorney suggested that the Court start with the language it used in ruling out a life-without-parole sentence for a young person who had committed a crime in which no one was killed — the decision in Graham v. Florida, two years ago.
In Arkansas, Stevenson said, a youth involved in a murder case who does not kill the victim is always subject to a life-without-parole sentence if prosecutors show that the individual — though having no intent to kill — acted in a way that showed “deliberate indifference to the value of human life.” But, he went on, since a life-without-parole sentence is mandatory in that situation, it can be imposed on a 14-year-old without the judge or jury being given any chance to consider his age, and even without any chance to consider the fact that another individual accused in the case actually got a lesser sentence.
Several of the Justices seemed inclined to regard more sympathetically a youth facing a mandatory sentence, especially one who did not actually kill the victim. But the argument quickly turned back to the Court’s exploration of where a dividing line should be drawn in any juvenile murder case. Justice Breyer pressed Stevenson to offer arguments that are “not totally random” for a cut-off age, say at age 14. The lawyer said that all but one of the states that have set a minimum age for a life-without-parole sentence set it above 14, and that most of the states set 14 as the minimum age at which they will transfer a youth to be tried as an adult.
Arkansas’s attorney, Holt, urged the Court to keep the focus on the crime that has been committed, not on the offender. Murder, he said, is “the worst of all crimes,” and the law seeks to punish its commission with the heaviest of sentences to show society’s intolerance of taking a human life. ”That is the line that society draws,” he argued. Now that the Supreme Court has barred the death penalty for minors who commit murder, Holt said, any youth who is sentenced to life-without-parole is deserving of that sentence. Life-without-parole, he said, is a “lesser sentence,” so a youth who commits murder should not be allowed to seek “a lesser lesser sentence.”
But that line of argument did not dissuade the Justices from returning to the issue of how to take a youth’s age into account in sentencing. After Holt told Justice Ginsburg that 14 was the youngest the state of Arkansas would allow a youth to be transferred to adult court, Justice Kennedy stepped in to ask why that approach should not be applied to sentencing, too.
In a moment, Justice Ginsburg said that sending a 14-year-old prison to prison under a sentence that means he will die in prison meant that this “essentially makes a 14-year-old a throwaway person.” Holt objected to that characterization, saying that the state wanted him to be put in a position “to realize the enormity of his crime.” And, when Justice Sotomayor wondered what hope such a youth has, the state’s lawyer said that he could apply to have his sentence commuted, despite the fact that he had been sentenced to life-without-parole.
This piece is reprinted with permission from SCOTUSblog.
Lyle Denniston has been covering the Supreme Court for fifty-four years. In that time, he has covered one-quarter of all of the Justices ever to sit, and he has reported on the entire careers on the bench of ten of the Justices. He has been a journalist of the law for sixty-four years, beginning that career at the Otoe County Courthouse in Nebraska City, Nebraska, in the fall of 1948. He is not an attorney.
*Photo at top by Flickr user Mark Fischer
Updated: February 08 2018