If Americans parented their children the way the Supreme Court parents us, we’d be in deep trouble. If we learned anything at all from Dr. Sears, it was: Be consistent, be coherent, and follow through. Yet over the last few years, as the justices have struggled to figure out whether to treat teenage criminals differently than adults, they have done so with mincing sideways steps, relying on masses of experts at every turn, and laying down markers for the next case that are immediately ignored or contradicted in the next case. I don’t know whether this is the best method for clarifying the Eighth and 14th Amendment prohibitions on cruel and unusual punishment, but it’s definitely a violation of the cherished precepts of Dr. Benjamin Spock.
In 2005, in Roper v. Simmons, the court ended the death penalty for any minor convicted of murder, partly relying on the existence of the alternative sentence of life without parole for those juveniles. Five years later, in Graham v. Florida, the court did away with the life-without-parole sentence for juveniles who were guilty of any crimes other than homicide. It was only a matter of time, therefore, before lawyers for juvenile offenders were back at the court asking to eliminate life without parole for kids who had in fact committed murder but were only 14 at the time of their crimes. Indeed Bryan Stevenson, the lawyer for a pair of 14-year-old defendants appealing their sentences at the court today, seems to be tiring of this gradual approach. In his argument this morning, he urges the justices to save themselves—and presumably himself—some time and do away with the life-without-parole sentence for all juveniles under 18 today.
The two cases are heard over the course of two hours, although they raise almost identical issues. In 2002, Evan Miller and another minor went to the trailer of 52-year-old Cole Cannon to steal his baseball cards. They beat him with a baseball bat and set fire to his trailer. Cannon died of smoke inhalation. Miller himself had suffered horrific abuse for most of his young life. An Alabama jury sentenced him to life without parole. In 1999, Kuntrell Jackson participated in the armed robbery of a video store. The clerk, Laurie Troup, died of gunshot wounds, although Jackson was not the triggerman. An Arkansas jury found him guilty of felony murder and likewise sentenced him to life without parole. Stevenson rests his argument in both cases on the logic that prevailed in both Roper and Graham: Namely, juveniles are less morally culpable than adults for their crimes. Unlike adults, their brains are still undeveloped and they are capable of reform and redemption in ways that adult criminals are not. Stevenson opens by explaining that in Graham, “this Court recognized that children are inherently characterized by internal attributes and external circumstances that preclude a finding of a degree of culpability that would make a sentence of life imprisonment without the possibility of parole constitutionally permissible.” He will use the word “children” 18 times in the first argument alone.
Justice Antonin Scalia starts off the bargaining this morning by questioning Stevenson on whether a sentence of 50 years for a juvenile murderer is enough. “Why is life without parole categorically different from 60 years or 70 years?” Then he asks Stevenson why 14 years old is the magic number: “What’s the distinction between 14 and 15?” he asks.
Justice Ruth Bader Ginsburg asks whether it would be acceptable to Stevenson to just do away with mandatory life without parole punishment and just leave it to the judge and jury to decide the sentence. Stevenson doesn’t like that option; he says he wants a clear prohibition on these sentences based on the argument that “it it would be a mistake to equate kids with adults.” Justice Kennedy balks at the prospect of such a sweeping rule. “You leave us with nothing but saying that the sentence is never permitted or that it’s always permitted,” says Kennedy.
Justice Samuel Alito asks Stevenson for his definition of “children” for the purpose of this case. Stevenson wants to draw the line at age 18. That’s a rough argument to make because while there are only 79 people in prison with a life-without-parole sentence for crimes committed when they were 14 or younger, there are around 2,300 who have earned the sentence for crimes committed before they were 18.
One issue for the court is how common such draconian sentences are. If they are vanishingly rare, the court can more readily find them unconstitutional. So Scalia asks Stevenson where he gets the idea that the states don’t like to hand out these sentences to youngsters: “Something like 39 States allow it,” Scalia points out. “I mean, the American people, you know, have decided that that’s the rule.” Stevenson begins to bicker about whether all 39 of those states expressly adopted the rule, or did so without understanding the implications for juveniles, at which point Alito stops him: “If you think these legislators don’t understand what their laws provide, why don’t you contact them? And when you tell them, ‘do you realize that in your state a 16-year-old or a 17-year-old may be sentenced to life in prison without parole for murder?’ They’ll say, ‘Oh, my gosh, I never realized that. Let’s change the law.’ ”
Kennedy returns to his discomfort with the “mandatory nature” of these sentences and refers to the amicus briefs which tell “compelling stories of rehabilitation” of juvenile murderers. Scalia—who not surprisingly chooses to speak on behalf of the tough-love school of jurisprudence—jumps in to observe that “modern penology has abandoned that rehabilitation thing.”
John C. Neiman Jr., Alabama’s solicitor general, has 30 minutes to make the case for locking up kids for life. Before he can get very far in that vein, Justice Stephen Breyer gets him to confirm that in 90 percent of the 39 states with life-without-parole sentences for juveniles, such sentences are mandatory. Neiman doesn’t disagree. Justice Sonia Sotomayor then notes that “there are different kinds of murder. And I do see a world of difference between the Miller killing and the Jackson killing.” She asks Neiman to justify the “mandatory nature of life imprisonment without parole, given that not every juvenile is equal and not every murder is equal with respect to them?”
Perhaps with Scalia’s earlier line of questioning in mind, Breyer works the opposite end of the spectrum, asking Neiman, “What’s the minimum age, to which you could give for a murder a child life without parole? I mean, you could have an instance of a 10-year-old or an 8-year-old? … And if there is a minimum, what is it in your opinion?”
Neiman replies that “there is a minimum now,” but when Breyer asks what that minimum age is, he says, “I would be hesitant to commit to a minimum without further factual development.” Breyer then retorts, Scalia-ishly: “Do you want to say 12? Do you want to say 10? Do you want to say 9? Because as soon as whatever you say, I’m going to say, ‘and why not 14?’ ”
And Scalia, not to be outdone snaps back, “But you just plucked some number out of the air! Why can’t I pluck one out of the air, if you pluck one out of the air?”
Neiman winds up by reminding the court that “a lot of people hear about life-without-parole sentences, and … one of their pragmatic responses is, well, what’s the cost to all this? Why not just let these guys get their parole hearings, give them that hope, and likely they won’t get parole anyway? … But the cost is to the victims and their families who have to endure what are often very painful hearings and parole hearings. And when those come up on a frequent basis, that sort of re-traumatization process is something that governments can legitimately take into account.”
The second argument proceeds along similar lines with only Justice Sotomayor concerned about the fact that Jackson seems to have been more unlucky than murderous. Stevenson reminds the court of another way in which children are different from adults: “It’s not just their inherent internal attributes,” he explains. “It’s also the external circumstances that they find themselves in. Kuntrell Jackson was born in a household where there was nothing but violence and guns and people shooting each other. His grandmother shot his uncle. His mother shot a neighbor. His brother shot someone. They were all put to jail. But, unlike an adult, these children don’t have the ability to escape.”
Kent Holt, an assistant attorney general from Little Rock, seems slightly amazed that the teens of Arkansas can’t simply be grateful that they aren’t being executed. He begins to describe the young people sentenced to these tough sentences as “double dipping” because the death penalty is off the table for them, and then they get to “come back again and say, ‘oh, and by the way, I’m a youth, so I should get not the lesser punishment, I should get the lesser, lesser punishment.’ ” He adds that “the principal justification in this case lies with the retributive principle that society needs to convey the message that Laurie Troup’s life … was more important than the money in that cash register.” He goes on to add that “the punishment … for this crime reinforces the sanctity of human life and it expresses the state’s moral outrage that something like this could happen.” Ginsburg cuts him off to observe: “You say the sanctity of human life, but you’re dealing with a 14-year-old being sentenced to life in prison, so he will die in prison without any hope. I mean, essentially, you’re making a 14-year-old throwaway person.” Justice Sotomayor wonders what possible benefit there can be from giving these children “no hope.”
Chief Justice John Roberts counters that by asking: “Do we know how old Laurie Troup was when she was shot?” Holt replies: “Yes, Your Honor. Laurie Troup was 28 years old when she was shot. She was discovered by her mother and her 11-year-old son.”
Stevenson finishes his rebuttal by reminding the justices that “children are uniquely more than their worst act.” The court appears poised to accept some version of that argument. The fact that 14-year-olds are children is not in dispute today. Nor is the fact that a child’s worst act—even when it’s murder—can’t be the sole determinant of their sentence. What to do about it and the next time the court is asked to deal with children? That bit isn’t clear at all.