A Criminal Enterprise

What Does the Constitution’s Text Say About Juvenile Life Without Parole Sentences?

Posted in Cases, News by Bidish J. Sarma on November 10, 2009

Yesterday, the much-awaited and highly-anticipated oral arguments in Sullivan and Graham took place at the Supreme Court.  The transcripts of those arguments are available here and here.

Though the Justices focused much of their attention on the arbitrariness that line-drawing inherently entails (as well as some procedural problems presented in Sullivan), little attention was given to the text of the Eighth Amendment.  Professor Berman at Setencing Law and Policy has this timely post on his blog.  I wanted to share a sizable portion of it as food for thought:

I have suggested that a textualist approach to the Eighth Amendment might make some seemingly hard cases not quite so hard.  In my mind, the Sullivan case argued yesterday in the Supreme Court is one of those cases that seems like it should be relatively easy for a true Eighth Amendment textualist.

Here is the full text of the Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  In Sullivan, the Court is considering the constitutionality of a prison sentence of life without the possibility of parole for a 13-year-old who committed a rape.  For a textualist, the question would seem to be whether Joe Sullivan’s punishment under these circumstances is “cruel and unusual.”  

Part two of the textual analysis seems easy: Joe Sullivan’s sentence is surely “unusual.”  Sullivan is one of only two 13-year-olds to have received an LWOP sentences for a non-homicide offense in perhaps all of American history.  Because the constitutional text references “unusual” (as opposed to “unique”) punishments, a true Eighth Amendment textualist would likely have to conclude that Sullivan’s sentence satisfies the second prong of the Constitution’s punishment prohibition.

The claim the Joe Sullivan’s sentence is also “cruel” could generate more debate, though this term also seems a relatively easy call within a nation conceived in liberty that generally considers children less responsible (and worthy of more protection) than adults.  Specifically, in light of American traditions and commitments, I have a hard time envisioning a sentence more “cruel” than one which confines a juvenile to spend his entire life in prison with no hope or chance for freedom based on an act committed at age 13 which did not take another human life.

Though there was precious little focused textualist discussion in the juve LWOP cases argued yesterday, I did get the sense from the cold transcript that Justice Breyer and perhaps also Justice Sotomayor were drawn to these textualist concepts.  It would be somewhat ironic if these Justices (and not an avowed textualist like Justice Scalia) end up being the only ones who take the text of the Eighth Amendment seriously in Graham and Sullivan.

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