A Criminal Enterprise

Addressing Concerns About Striking Down Juvenile Life Without Parole Sentences

Posted in Uncategorized by Bidish J. Sarma on August 26, 2009

On May 4, the Supreme Court granted certiorari in two cases that challenge the constitutionality of life without the possibility of parole sentences for juveniles (“JLWOP sentences”).  According to SCOTUSblog, these two cases – Sullivan v. Florida (08-7412) and Graham v. Florida (08-7621) – will be argued on Monday, November 9th.  The Court did not consolidate the cases.  Instead, it will hear them separately, and, presumably, decide them separately.

Beyond the speculation about why the Court took two separate cases (SCOTUSblog’s Lyle Denniston posted a helpful analysis here), questions remain about the strength of the overall claim that JLWOP sentences contravene the Eighth Amendment’s ban on cruel and unusual punishment.  Notably, the Heritage Foundation recently posted this report defending JLWOP sentences.  (Professor Berman’s Sentencing Law and Policy blog contains several links to other recent posts about JLWOP sentences and the Sullivan and Graham cases here.)

Rather than respond to the arguments set forth by the Heritage Foundation, I respond instead to the doubts expressed by someone sympathetic to the Petitioners in the cases before the Court.  Last week, Sherry Colb wrote here that though she “hope[s] that the Supreme Court says that life imprisonment without the possibility of parole is unconstitutional for non-homicide offenses committed by juvenile offenders,”  she is still “left strangely unconvinced by the arguments that have been marshaled to support the claim that juvenile life imprisonment violates the Eighth Amendment.”  Because I view these honest doubts expressed by one of the cause’s supporters as reasonable concerns the Justices may have, I will take a brief look at each of them.

First, Professor Colb notes that “If the adolescent brain is functionally ‘impaired,’ in an important sense, compared with the adult brain, then the Eighth Amendment should ban far more than life imprisonment for non-homicide offenses for juveniles: It should ban that punishment for all offenses committed by juveniles.”  I agree.  I think she is right – “the argument about juvenile capacity has no obvious stopping point at either non-homicide offenses or at life imprisonment itself.”  However, she does not explain why this implication weakens the Eighth Amendment claim.  Of course, the Supreme Court may have prudential concerns about starting down a path that has no clear stopping point.  However, evidence of limited culpability compels the Court to come up with a workable solution.  Justices cannot duck the hard questions, unless they dismiss the cases as improvidently granted – an unlikely outcome.  At the same time, the Court can proceed with caution.  The Court only decides the cases before it, and can limit the breadth of its holdings to encourage further percolation of related-but-peripheral issues in the lower courts.  Indeed, this seems to be a favored strategy of the Roberts Court.  The Supreme Court need not have all the answers to all the questions that findings in favor of Joe Sullivan and Terrance Graham may raise.

The second problem Professor Colb identifies is that “the adults who commit violent crimes may share far more with violent adolescents than they do with mature, well-adjusted adults. . . . Yet such people routinely receive long and unforgiving prison sentences.”  This certainly seems to be the case.  There are at least two responses.  First, those adults who suffer from chronic mental illnesses or who are mentally retarded may have a strong Eighth Amendment argument against their long and unforgiving sentences.  The reality is that criminal justice system is teeming with mentally ill and mentally retarded individuals who have limited culpability for their bad acts.  Unfortunately, our society has failed these people miserably.  Rather than devise alternative strategies to simultaneously promote safety and respect these individuals, we are reactive.  We wait until they slip up and then we toss them in jail to remove them from society and make their plight invisible to us.  However, our own failure to address the challenges posed by mental illness and mental retardation does not mean the Eighth Amendment tolerates the extraordinarily harsh punishment of individuals whose are not fully culpable for their crimes.  That the fate of some categories of adults may be linked to the fate of juveniles is clearly reflected in the death penalty context (as Roper v. Simmons relied upon Atkins, future cases may rely upon Sullivan and/or Graham).  The second response is that a rule for juveniles will not necessary open the floodgates for all adults who claim they lack the requisite culpability to justify lengthy prison sentences.  Juveniles are a discrete, legally cognizable class.  Though line-drawing inevitably leads to overinclusiveness and underinclusiveness, the Court demonstrated its willingness to recognize categorical differences between juveniles and adults when it decided Roper.  The death penalty jurisprudence also suggests that the Court recognizes some classes of adults (like the mentally retarded), but also leaves others (for now, those with mental illnesses) to challenge their sentences on an individual basis.

Next, Professor Colb writes that “[t]he diminished capacity of juveniles [to reliably control their behavior], then, is of the sort that has fallen out of favor as a basis for mitigating and excusing anti-social conduct (at least outside the death penalty context).”  I think Colb’s argument here is not quite nuanced enough.  Her reference to the Insanity Defense Reform Act is misplaced because the insanity defense is an excuse, not a mitigating circumstance.  This is an important difference.  Someone who could not distinguish between right and wrong is viewed as “not guilty” by reason of his insanity.  Sullivan and Graham, however, argue not that their conduct should be excused (with a “not guilty” verdict), but rather that their sentences are too harsh.  Insanity goes to the finding of criminal liability; the juvenile inability to reliably control behavior goes to the severity of the punishment.  So, Colb is right that the diminished capacity of juveniles is not a basis for “excusing” anti-social conduct, but she is wrong that it is not a basis for “mitigating” it.  (To the extent that her statement is descriptively accurate – in other words, if it’s true that in practice courts do not consider youth mitigating – these cases provide the Court with an opportunity to reverse that tide.)

Professor Colb’s final argument is that “to the extent that execution is meant to serve the function of incapacitating irredeemably violent people forever, the availability of life imprisonment without the possibility of parole provides a roughly equivalent substitute for that. Without this substitute, the inability to execute youthful offenders – in at least some cases – might appear far more threatening.”  This is an interesting point.  This concern may actually provide a justification for the Court to reserve JLWOP sentences for homicide offenses.  Anyhow, although it may be true that rulings in favor of both Petitioners would alarm the public, factual information about how incarceration and parole actually works could reduce the perceived threat.  Few juveniles who have committed serious violent crimes (such as murder or rape) would be paroled before they reached old age.  And, inmates released when they reach their 60s or 70s will pose little to no threat on the outside.  This problem is one of public perception and lack of information, not one of constitutional magnitude.

The Sullivan and Graham cases pose pressing and fascinating questions to the Supreme Court.  Professor Colb raises some legitimate concerns, but these concerns should not dissuade the Court from striking down JLWOP sentences as unconstitutional.

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  1. […] Two cases present the Court with the question of whether life without parole sentences for juveniles who commit non-homicide crimes are unconstitutional under the Eighth Amendment.  I wrote about these cases – Graham v. Florida and Sullivan v. Florida – here. […]


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