Under Eighteen to Life

In back-to-back cases on Monday morning, advocates argued for a constitutional ban on life-without-parole sentences for juveniles guilty of non-homicidal crimes.

Many will argue that these cases are about arbitrary line drawing -- but this is a line that symbolizes the standards of decency in our society. The United States is the only country in the world that imposes sentences lifetime without parole on juveniles. That could change.

"Kids are different," said Bryan Gowdy, counsel for one of the juvenile defendants, standing at the Supreme Court steps following his case. "Scientists say this, and we all know it from experience."

The cases, Graham v. Florida and Sullivan v. Florida, involve teenagers who were 17 and 13 at the time of their offenses -- two of the 111 youths nationwide given lifetime imprisonment without parole for crimes less than murder.

In Roper v. Simmons, the seminal 2005 decision which banned the death penalty for offenses committed by juveniles, the Court acknowledged that children are considered different in the eyes of the court. Now, the Court is essentially considering whether to extend its conclusion about the death penalty in Roper to lifetime confinement sentences for juveniles.

Throughout the morning arguments, Gowdy, representing Graham, repeated the phrase "children are different than adults." Drawing parallels from the Court's previous Roper rhetoric that "death is different," Gowdy attempted to persuade the justices that juveniles are not fully developed and therefore have the ability to transform, citing the Court's decision in Roper.

The current situation, Gowdy argued, is that the penalty for an adolescent mistake is that "you can never again live in civil society." Gowdy argued parole is more just because we know more about a juvenile defendant's development later in life, so we can make better retributive and rehabilitative decisions at that time.

But such an argument troubled Justice Kennedy, the probable swing vote.

"Why does a juvenile have a constitutional right to hope, but an adult does not?" he asked.

Gowdy responded without hesitation, "Because the juvenile is different than the adult -- and has an inherent capacity to change."

Florida Solicitor General Scott Makar insisted that a state trial judge could always exercise discretion to ensure 8th amendment concerns -- protection against cruel and unusual punishments -- are addressed, as provided for in Florida statute. While Makar was pushing forward this train of logic, Justice Stevens seemingly snapped to attention and pointed out that the Florida statute does not draw distinctions between juveniles and adults and that the trial judge is not required to even consider juvenile status. Bryan Stevenson, counsel for Sullivan, meanwhile spent the majority of his argument addressing procedural concerns and insisting the Court needed to clarify Roper because the Florida courts had based their harsh rulings against juveniles on a misguided interpretation of Roper.

In a mathematic approach to justice, both sides used numbers to demonstrate the supremacy of their arguments. Makar cited the statistic that 99 out of 100 juveniles remain in Florida's juvenile court system and thus are not subjected to the possibility of lifetime without parole sentences. Data and stats were frequently flung back by the justices to support the petitioners, with Justice Roberts acknowledging that the older defendants get, the less likely they are to commit crimes again.

In perhaps the most colorful language of the case, the conservative advocacy group, the Center for Constitutional Jurisprudence, submitted an amicus brief arguing against the ample data that juveniles are not fully developed, as "advocacy masquerading as science ... 'Matching neurological data to legal criteria can be much like performing a chemical analysis of a cheesecake to find out whether it was baked with love'."

Stevenson displayed expert control over imprisonment statistics, seemingly impressing justices like Breyer, who was visibly frustrated with Makar's inability to recall numbers or understand certain classifications. In a case that focuses on the potential for mistakes by state trial judges, Makar's mumbling and bumbling of statistics juxtaposed with Stevenson's pin cites and passionate plea against the inaccuracy of proportionality tests might have made it easier for the Court to adopt a categorical ban. After all, the less subjectivity available to state trial judges, the less chance there is for error.

Justice Sotomayor pressed Makar in one of the more definitive moments of the oral argument. Sotomayor cited Roper and stated that the Court has decided that there is no death sentence for juveniles. And, the Court has decided that there is no death for non-homicide offenses for adult criminals. Sotomayor concludes that juveniles should therefore have some lesser sentence for non-homicide offenses than adults.

In his closing, Stevenson rallied around the incongruity of using such sentences as deterrents and questioned how we can reconcile such punishments in a modern society "This is clearly unusual," he said, "and we also argue that it is unnecessarily cruel to say to a child under 13 that you are only fit to die in prison." He continued, "This cannot be reconciled with our standards of decency."

At the press conference on the steps Stevenson continued his fight, addressing some concerns he avoided during his more procedural and case-law focused argument. "My biggest concern is that the kids who get these sentences are the poor kids, the minorities, who cannot afford representation. I don't think the best way to proceed is a case-by-case basis."

Just across the street from the Supreme Court, several representatives at the Capitol have their eye on the outcome of this case. Rep. Bobby Scott and Rep. John Conyers have proposed The Juvenile Justice Accountability and Improvement Act of 2009 (HR2289), which would require an opportunity for parole for juveniles sentenced to life in prison.

Rep. Scott attended yesterday's case and said afterward, "Hopefully the legislation will be unnecessary because the Supreme Court will rule that you cannot sentence juveniles to lifetime-without-parole."

He added, "We've had a lot of people coming out of the White House saying that torture worked. We've got lifetime-without-parole for juveniles. Other countries will hesitate to extradite if we continue such barbaric practices ... This is the only country on earth that sentences lifetime-without-parole for juveniles. Only one on earth."