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Retribution versus the possibility of redemption. Those values were at the core of Supreme Court arguments today in two cases. They both test whether it is cruel and unusual punishment to sentence a juvenile to life in prison without parole for a crime that does not involve a death.
Heres NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: Florida leads the nation in sentencing juveniles to life in prison without parole for non-homicide crimes. Nationally, of 111 such cases, 77 are in the Sunshine State. So its fitting that todays cases both come from Florida. One involves a 13-year-old convicted of rape, the other a 16-year-old convicted of armed robbery. Bryan Stevenson represents Joe Sullivan, now 33, convicted of rape at the age of 13.
Mr. BRYAN STEVENSON (Founder and Director, Equal Justice Initiative): To say to any child of 13 that youre only fit to die in prison is cruel. And we believe that the Constitution prohibits that kind of punishment.
TOTENBERG: On the steps of the Supreme Court today, Stevenson said his client was convicted primarily with the testimony of two older accomplices who got very light sentences. Whats more, the defendants court-appointed lawyer filed no appeals and was later disbarred.
The second case involved Terrance Graham, who at 16, participated in a robbery where an accomplice hit the store manager with a pipe. His probation for that crime was revoked when he was arrested fleeing the scene of another armed robbery - and this time he was sent away for life. His lawyer Bryan Gowdy argues that a life term for such an offense doesnt fit the crime.
Mr. BRYAN GOWDY (Lawyer): Terrance did not take a life, yet his sentence was the same as the harshest sentence for the most heinous murder.
TOTENBERG: But Florida Solicitor General Scott Makar defended the penalty in both cases.
Mr. SCOTT MAKAR (Solicitor General, Florida): We have a serious crime problem in Florida over the years, so that justifies, in our view, the stiff penalties that have been assessed.
TOTENBERG: Inside the courtroom, the argument focused on the Supreme Courts 2005 decision striking down the death penalty for juveniles. That 5-to-4 ruling written by Justice Anthony Kennedy stressed that juveniles are less culpable because of their immaturity. But it also noted that death is different from other punishments. Juvenile advocate Bryan Gowdy contended that, like the death penalty, life in prison without the possibility of parole cruelly ignores the difference between adolescents and adults.
Justice Ginsburg: Are you drawing the line at homicide? Answer: Yes. Society has said that murder is different. Justice Alito: Are you saying that no matter what a person does, commits the most horrible series of non-homicide offenses that you can imagine, a whole series of brutal rapes, assault that renders the victim a paraplegic, but not dead, no matter what the person at some point must be made eligible for parole? Lawyer Gowdy maintained that while a juvenile may be held in prison for life, to deny him a chance at rehabilitation and parole would be to deny him any hope.
Justice Kennedy, who may well be the critical vote in this case: Why does a juvenile have a constitutional right to hope, but an adult does not? Answer: Because the juvenile is less culpable and over time will change and may reform. Chief Justice Roberts seemed to advocate a middle ground. Instead of drawing a bright line at age 18, wouldnt it make more sense to require states to consider age as a factor? So that if you do have a case where its the 17-year-old whos one week shy of his 18th birthday and its the most grievous crime spree you can imagine, you can determine that life without parole might be appropriate.
Answer: Adolescents are different in that we cannot tell at this age whether theyre going to reform or not. Justice Scalia: Doesnt your argument ignore the fact that one of the purposes of this punishment is retribution? Answer: We concede that the state has the right to exact retribution, but here, even the prosecutor only recommended 30 years. Justice Sotomayor: Whats the difference between a month before 18 and a month after? Answer: There isnt much difference, but you have to draw the line somewhere. And as this court recognized in striking down the death penalty for juveniles, society has generally drawn the line at 18 as the age of maturity when individuals are considered old enough to vote, to drive and to marry.
Next up on the juvenile side of the argument was defense lawyer Bryan Stevenson, who contended that while drawing the line at 18 is preferable, drawing it at 14 is imperative. Chief Justice Roberts interjected that while the death penalty is reserved for the worst of the worst, life without parole is not reserved for the worst of the worst.
Answer: We think that with regard to non-homicides, life without parole occupies the same end-of-the-line status that the death penalty does with homicide. Defending life in prison without parole in both cases today was the Florida Solicitor General Scott Makar. He argued that the court should not do anything to contradict what he called the national trend for tougher juvenile sentences and abolition of parole. Chief Justice Roberts: Youre arguing for a categorical rule of your own that age should not be considered in sentencing.
Justice Kennedy: Whats the states interest in keeping the defendant in custody for the rest of his life if hes been rehabilitated at some point and theres no longer a real danger? Chief Justice Roberts: Which of these cases is worse? After hemming and hawing, the states lawyer said the rape was worse than the armed robbery. Justice Sotomayor then pointed to statistics showing that nationally, the median sentence for rape is 10 years. In light of that, she wondered, why this rape by a 13-year-old justifies life in prison without parole.
Justice Breyer: As a general matter, human beings are uncertain about how much moral responsibility to assign to individuals in a particular category. Is it appropriate to sentence someone to life in prison without parole at the age of 10? No. Eleven? No. Seventeen? Yeah, maybe. We are in an area of ambiguity. What justifies taking a persons whole life away? The justices themselves seemed divided and uncertain on the question.
Nina Totenberg, NPR News, Washington.
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