WASHINGTON, D.C. — “Why is life without parole categorically different? How about 50, 60, 70 years? As close to death as possible? How are we to know where to draw those lines?” Justice Antonin Scalia was first out of the box to fire questions at defendant’s attorney Bryan Stevenson.
However, on the first day of Spring in the city of cherry blossoms, all eyes and ears within the U.S. Supreme Court were focused on Justice Anthony Kennedy. Would he repeat the message of hope for young people when he so eloquently wrote for the majority two years earlier in Graham v. Florida: “Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.” (Before Graham, the Court’s decision in Roper v. Simmons had ruled the death penalty for juveniles unconstitutional.)
Relying upon scientific evidence that kids are different from adults because their brains hadn’t fully developed and thus lacked impulse control and judgment, the Graham decision held life without parole sentences for juveniles convicted of crimes other than homicides to be cruel and unusual punishment, thus unconstitutional. Would the Court reach the same holding for juveniles convicted of homicides, or will “death is different” trump “kids are different”?
In a nutshell, the eight justices who asked questions on Tuesday struggled with all kinds of criminal justice concepts: mandatory sentences, transfers to adult court, minimum age limits, individualized sentencing, mitigation evidence and society’s need for punishment and retribution for juveniles who commit murders.
Defendant’s attorney Bryan Stevenson, the executive director of the Equal Justice Initiative, led with his best argument by trying to build upon the momentum of Graham and Roper saying that “deficits in maturity, judgment and decision making found in juveniles are not crime specific.”
But Justice Kennedy seemed reserved and somewhat muted, even when he focused on the “mandatory” aspect of most states’ life without parole statutes for aggravated murders?
“What’s a trial judge supposed to do?” he questioned. “Bring in social scientists or stories of rehabilitation?” He asked both sides – Stevenson and attorneys for the states of Alabama and Arkansas — what they were arguing for: a categorical ban on life without parole sentencing for juveniles, or an end to the “mandatory” requirement, giving the trial court discretion.
Justices John Roberts and Samuel Alito seemed focused on the concepts of a national consensus, as 39 states utilized the sentence for juveniles and thousands of juveniles convicted of murder were imprisoned across the country. Justice Alito also added that “I’m not sure of the cruel and unusual point, but rather it might be a due process argument, as the defense can’t point out mitigating factors if it’s a mandatory sentence.” Justice Roberts also found a “state of mind” argument for juveniles, whereby juries will look at the requisite intent, and may not convict of murder” but a lesser crime.
Justice Sonia Sotomayor saw differences between the Miller and Jackson defendants. (Miller, high on drugs and alcohol, started a house fire that ultimately killed his neighbor. Jackson, who’d just turned 14 and also grew up in a gang-ridden neighborhood, was convicted under a “felony murder” theory as he never touched the firearm used to kill the store clerk during a robbery.) “Not every juvenile is equal and not every murder is equal,” she said, summing up both sides of today’s argument.
Justice Stephen Bryer worried aloud about minimum age: “Is there no constitution minimum age for life without parole sentencing? Can this happen at 10? At eight? Is it totally up to the states?” Justice Scalia jumped in again: “What is the minimum? Do we just pluck age out of the air? Is it the age of reason? If you say nine, 10 or 12, I’ll say why not 14.”
I attended the oral argument as one of a dozen retired juvenile judges who signed on to an Amicus Curiae brief in support of the defendants Evan Miller and Kuntrell Jackson in cases arising out of Alabama and Arkansas, respectively. I cheered the earlier Graham decision and hoped its rationale would carry forward in the Miller and Jackson cases.
But, I left the Court today convinced that the decision was not going to be as clear cut as Roper or Graham, but hoped, as an amici, that mandatory life without parole sentences for juveniles would be stuck down and that the Court just might tackle the difficult task of setting minimum age exceptions.