Throwaway People

“You're making a 14-year-old throwaway person.”

Justice Ruth Bader Ginsburg’s phrase fell into the Supreme Court chamber with an ominous clang, like the sound of metal doors slamming.

Not surprisingly, Kent Holt, an assistant Arkansas attorney general, tried to mute the clang. Speaking of Evan Miller, who committed murder at 14 and is now challenging his sentence of life without parole, Holt said, “I'd respectfully disagree that he's a throwaway person.” 

“What hope does he have?” Justice Sonia Sotomayor asked. 

Well, Holt responded, he could ask for a commutation of his life-without-parole sentence. He cited a 1979 Arkansas case stating that 30 such requests had been granted in the five years before.

This seemed like a slim hope when Bryan Stevenson, Jackson’s lawyer, rose to rebut Holt. Commutations had become rare in the last 30 years, he said: Since 2007, there has been only one.

The gates of Dante’s Hell carried the inscription, “Abandon all hope, ye who enter.” For thousands of American prisoners, sentenced to life in prison without parole, the doors of the correctional system bear the same invisible legend. Many of them, of course, are lucky to have escaped so lightly—for those who commit aggravated murder, life without parole, or LWOP, is the common alternative to the death penalty.

But somewhere around 80 of these hopeless cases are there because of crimes they committed at the age of 13 or 14. The question in the two cases—Jackson v. Hobbs and Miller v. Alabamaargued Tuesday is: When, under the Constitution, can society just give up on a child and banish him or her for life? When does such a sentence violate the Eighth Amendment’s ban on “cruel and unusual punishments”? Is there something qualitatively different about such a sentence when the offender is not even grown—and when, under the Supreme Court’s precedent in Roper v. Simmons, he or she could not constitutionally be put to death?

Roper, decided in 2005, held that a prisoner cannot be executed for a crime committed before the age of 18.  More recently, in the 2010 case of Graham v. Florida, the Court held that juveniles cannot be sentenced to LWOP for crimes other than homicide. Both majority opinions, written by Justice Anthony Kennedy, reasoned that these sentences are “disproportionate” to the juvenile offender’s guilt. The reasons are three. First, the offenders lack the maturity to foresee the consequences of their actions. Second (quoting Roper), “juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” And third, “the character of a juvenile is not as well formed as that of an adult,” meaning that deeming a young person incapable of reform makes little sense.

Those three statements could also be made of the juveniles in Jackson and Miller. The difference with Roper is that they’re not facing execution; the difference with Graham is that their victims died.  And the difficulty of drawing a new Eighth Amendment line is illustrated by the differences between the two facts: Kutrell Jackson, at the age of 14 years and three weeks, was with two older friends when they decided to rob a liquor store. One of the other boys produced a sawed-off shotgun; the older two went into the store. Jackson remained outside, then came in as they were confronting the clerk, 28-year-old Laurie Troup. One of the older boys fired; the three ran out. Troup’s body was later found by her mother and her 11-year-old son.  Jackson didn’t fire and was apparently unaware of the gun until moments before the crime. He was prosecuted for “felony murder,” a charge to which his own lack of intent to kill is more or less irrelevant, because he took part in the robbery.  

By contrast, Evan Miller and a friend tried to rob a trailer-park neighbor, 52-year-old Cole Cannon, after he fell asleep during an evening in which he and the boys shared liquor, prescription meds, and marijuana. When Cannon awoke, Miller knocked him unconscious with a baseball bat, saying (according to his co-defendant), “I am God, I’ve come to take your life.” Then the boys set fire to Cannon’s trailer; he died, choking in the blaze.

Horrible acts, though one seems more clearly culpable than the other. But both were performed at 14, an age at which (according to an amicus brief filed by the American Psychological Association, the American Psychiatric Association, and the National Association of Social Workers) “adolescent brains are not fully mature in regions and systems related to higher-order executive functions such as impulse control, planning ahead, and risk avoidance.”  Briefs for both of the boys—who were jointly represented by Bryan Stevenson, executive director of the Equal Justice Initiative and Professor of Clinical Law at New York University Law School—cite copious recent research using brain-imaging techniques to document the proposition that, scientifically, “children are not simply miniature adults.”

The Court is on record agreeing, but the two previous cases both centered around death. It’s one thing to say that a state can’t kill a juvenile killer (Simmons explicitly noted that LWOP was a suitable punishment for murder); it’s another to say that it can’t impose LWOP on a child in a case where nobody was killed. It is yet another thing to say that it can’t impose it on a child who actually has killed and has done so under circumstances that might earn execution if the child were over 18.



Much of the questioning from the bench Tuesday pushed on this issue. “If you could write the opinion for us, what would you hold?” Justice Samuel Alito asked Stevenson. Stevenson hedged.  LWOP for 14-year-olds would be out, he said. Oh, Alito asked, then “for anybody over 15, it would be permissible.”

“No, I would also hold, Your Honor, that a mandatory sentence for that cohort would also be in violation of this Eighth Amendment principle,” Stevenson said.

This was a dangerous path, especially when Stevenson’s briefs had focused so intently on the difference between a 14-year-old and a 17-year-old in brain development. Justice Ruth Bader Ginsburg urged him to defer the question of older children “for another day.”

“I'm sorry,” Justice Sotomayor asked. “I thought you just said a second earlier that you had a bifurcated rule: No life without parole whatsoever for 15 and under, and no mandatory life for 16-15 and over.”

“The easier rule to write would be that there is a categorical ban on all life without parole sentences for all children up to the age of 18,” Stevenson said.

Later, Justice Sotomayor pushed him to adopt a fallback position—one barring LWOP for juveniles in cases where the facts show no specific intent to kill. That would help Jackson but not Miller.  Stevenson, representing both, was reluctant to throw one client overboard. “Juvenile intent is a much more complex issue,” he said. Sotomayor mused that the Court might come up with a rule in which (1) LWOP is barred for those under 15; (2) LWOP for older juveniles could be imposed on a case-by-case basis for those over 15 where there was an intent to kill. 

That would be an improvement, Stevenson admitted, because today “children are being convicted of homicide offenses where there is no intent to kill.”

(None of the argument concerned a rule that such young offenders could not be given long sentences, extending far past their 21st birthdays; the only question was whether the sentences could offer no hope at all for parole someday.)

The question of how many children are facing LWOP is a charged one. Neither side challenged Stevenson’s figure that “79 plus or minus one or two” offenders have been sentenced to LWOP for crimes committed at 13 or 14. That number is important because part of Eighth Amendment analysis is whether the practice is rare. Stevenson argued that the small number of sentences proved it is; the state defendants argued that it’s a pretty good chunk of the small number of young teens convicted for homicide. The only available figures show that it is about 1 percent of the number of juvenile homicide arrests.  Justice Alito pointed out that that is a “broader category.” Stevenson had to agree.

Justice Scalia, as might be predicted, was troubled by the idea of a rule “just plucked ...  out of the air.” Justice Alito challenged Stevenson’s numbers. Chief Justice Roberts brought the focus back to the fate of Laurie Troup. Given what we know of Justice Thomas, that suggests four votes against any new rule. Justices Ginsburg, Breyer, Sotomayor, and Kagan seemed to be groping for a rule that extended Simmons and Graham without stretching them too far.

That leaves Justice Kennedy, the author of both of the earlier opinions. His questions mostly focused on the issue of discretion in sentencing. (In many states, a juvenile convicted of capital murder must be sentenced to LWOP.) He also asked John Neiman, the solicitor general of Alabama, why the state believed that LWOP would deter juveniles from killing.

“We think that deterrence is in the mix,” Neiman responded, “but it's certainly not the primary goal that these statutes serve.” The “primary goal,” he said, was punishment—“bringing society's retributive force to bear on those who commit the worst sort of crimes.”

“Retribution, of course, is related to personal culpability,” Kennedy answered. “ ... that loops back into the minor problem.”

“That's exactly right, Justice Kennedy,” Neiman said. “But I think one point on which Mr. Miller and the State fundamentally disagree here is  ... what we can conclude about a juvenile's culpability when the juvenile has committed aggravated murder.”

The answer to that question seems to lie with the Sphinx of Sacramento and with it, the fate of “79 plus or minus one or two” children on whom the doors of hope have slammed forever.    

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