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The topic of juvenile justice was before the U.S. Supreme Court today. Justices heard arguments in two murder cases, testing whether it is cruel and unusual punishment to sentence a 14-year-old to life in prison without parole. As NPR's legal affairs correspondent Nina Totenberg reports, there are 79 people serving life terms for crimes committed when they were 14 or younger.
NINA TOTENBERG, BYLINE: The American legal system treats minors as both less culpable and less responsible. Fourteen-year-olds, for instance, are not allowed to drink, marry, vote or even drive. And modern science has shown that the brains of minors are literally less developed, meaning juveniles are more impulsive and less able to see the consequences of their actions.
The Supreme Court made these points in striking down the death penalty for juveniles in 2005 and in invalidating life without parole for non-homicide crimes. But today, the question was whether it's cruel and unusual punishment to sentence kids 14 and younger to life without parole for murder.
On the courthouse steps, defense lawyer Bryan Stevenson said that even if life without the possibility of parole is ruled out, kids may still end up serving life terms because many won't win parole.
BRYAN STEVENSON: If we win, the United States will still have the harshest punishment scheme for children in the world.
TOTENBERG: But Candy Cheatem, the daughter of one of the victims, said that even if her father's murderer is rehabilitated in prison, he should not be released.
CANDY CHEATEM: Even in that case, I feel that for the goal of retribution, he deserves to be where he's at regardless of whether he's rehabilitated or not.
TOTENBERG: Inside the Supreme Court chamber, defense lawyer Stevenson faced an immediate question from Justice Ginsburg. When the court struck down the death penalty for juveniles, she observed, it noted the availability of life without parole. Doesn't that suggest that the court thought the penalty is constitutional?
Justice Scalia: I thought modern penology has abandoned rehabilitation as a goal and now focuses on punishment. Scalia noted that 39 states have laws that make life without parole the punishment for murder, even for juveniles. What do I do, just impose my own preference instead of what seems to be the consensus of the American people?
Lawyer Stevenson contended that, in fact, most states have not agreed to subject 14-year-olds to life without parole. State legislatures pass laws that allow juveniles to be tried as adults, and then the juveniles are automatically subject to the same penalty as adults - here, the mandatory term of life without parole for murder.
Justice Alito, sarcastically: You mean the legislatures didn't know what they were doing? Why don't you contact them to tell them?
Alito, Scalia and Chief Justice Roberts clearly weren't buying any of Stevenson's argument. But the critical vote in these juvenile sentencing cases in the past has been Justice Kennedy. He and several other justices focused on a narrower question - whether the mandatory sentences here are unconstitutional because the jury cannot consider the defendant's age, background or even his intent.
Stevenson said that 80 percent of the life without parole sentences for those 14 and younger are in states where the penalty is mandatory for murder. And in many of these states, even minors convicted of second-degree murder, with no intent to kill, get a mandatory term of life without parole. Alabama and Arkansas, where today's crimes took place, are among those states.
Justice Sotomayor: I do see a world of difference between these two crimes, because in one, the juvenile was not the shooter.
Justice Breyer: Is there a constitutional minimum age for life without parole? What about for a 10-year-old or an 8-year-old?
Alabama Solicitor General John Neiman said 10 states put the minimum age at 12, and many more at 13 or 14.
Arkansas Assistant Attorney General Kent Holt told the justices that his state legislature's judgment is that murder is the worst crime, and that since the death penalty is off the table for juveniles, the minimum penalty they can get is life without parole. If the juvenile were to get any less, said Holt, that would be double dipping his access to leniency.
Holt said that the defendant in the Arkansas case, 14-year-old Kuntrell Jackson, acted with reckless indifference when he participated in a robbery where one of his pals had a gun and shot the 28-year-old cashier.
Justice Sotomayor: So he was guilty of felony murder unless he could prove that he counseled against the murder.
Justice Breyer: What is the argument for not allowing a jury at least to consider his degree of responsibility before imposing a sentence of life without parole?
Answer: Teenagers must know that if you commit the worst crime, you will get the worst punishment.
Nina Totenberg, NPR News, Washington.
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