Inquiring into the juvenile mind
At 10 a.m., and again at 11 a.m., on Monday, the Supreme Court will examine the latest question on the punishment of juveniles who commit crimes — this time, crimes that do not lead to the death of the victim. Similar but not identical, the cases are Graham v. Florida, being argued at 10, and Sullivan v. Florida, at 11. Florida’s Solicitor General, Scott D. Makar will argue for the state in both cases. Representing Terrance Jamar Graham, by Court appointment, will be Bryan S. Gowdy of Mills Creed & Gowdy in Jacksonville; Joe Harris Sullivan will be represented by Bryan A. Stevenson of the Equal Justice Institute in Montgomery, Ala. The briefs and other filings in the cases can be found on ScotusWiki, here and here.
Four years after ending the death penalty for any minor who commits murder, the Supreme Court now is ready to analyze the next most severe penalty for a juvenile: life in prison without any chance of release, for a crime in which the victim is not killed. The issue will be examined in cases involving teenagers who were 13 and 17 at the time of their crimes — the 13-year-old convicted of sexual battery, the other youth convicted at age 17 of probation violation following a felony robbery when he was 16. Once again, the Court is inquiring into the degree of moral responsibility of minors, as well as into current moral standards, as factors in punishing youthful offenders.
The Supreme Court has said repeatedly, as it decided death-penalty cases (often putting limits on such sentences, or ruling them out altogether in some situations, that “death is different.” That perception has led to a complex jurisprudence of capital punishment, including a flat ban on that penalty for some specific crimes (rape, for example) and some individuals in a specific group (minors and mentally impaired individuals).
The Court, however, has not yet constructed a full constitutional guidebook for long prison sentences, although it has settled on one principle: a sentence for a term of years in prison will be struck down if it is “grossly dispoportionate” to the crime, judged on a case-by-case, rather than across-the-board, basis. Applying that test, the Court looks at how serious the crime was, how harsh the penalty was, and how a sentence compares to that for other criminals in the same area, and in other areas, for the same crime.
Florida’s First District Court of Appeal has taken that principle to mean that each case must be judged on its own facts, so that a blanket rule is not to be adopted– either for a category of crimes, or a specific group of criminals. Thus, for juvenile offenders, it said in one of the cases now before the Supreme Court: “This court declines to implement a per se ban on the sentencing of juveniles to life imprisonment.” And, in that case, it found that the sentence of life without possibility of parole was not “grossly disproportionate” to the crime.
In reaching that conclusion, the state court started with the proposition that “death is different.” And that, in brief, provides the test for the Supreme Court as it examines a life prison sentence, with no chance of release, for a youth who committed a non-homicide crime while still a minor. But the Court also is being asked to reinforce the cultural notion that “being young is different,” for criminal responsibility.
The Court already has given some indication that it will at least begin its analysis by looking at different scenarios. Instead of granting review of a single case involving a life term for a minor whose victim was not killed, the Court simultaneously accepted two cases, did not join them for review, and set them for hearing separately. At least at the outset, it appears that two rulings, not one, are likely to emerge.
There are several differences between the two cases: each youth’s age at the time of the crime — one was 13 when he actually received the life term, the other was 17 at the time of the crime and 19 when sentenced; one youth committed multiple crimes as a younger teenager, the older youth had several crimes on his record when given the life sentence after getting lenient treatment after his first crime; one case brought a full review in the lower court of the sentencing issue, the other did not; one is clearly within the Court’s authority to hear the constittional issue, the other has some procedural doubt about it.
No one outside the Court can know which of those differences may have persuaded the Court to grant both cases. However, that may begin to become clear when the Court hears oral argument.
Taking the cases in the order in which the Court will hear them on Nov. 9, begin with the case of Terrance Jamar Graham, of Jacksonville. In July 2003, he and two accomplices went to a barbecue restuarant in Jacksonville with the aim of robbing it. When the manager would not give them money, one of the youths hit him with a steel bar; Graham then fled the scene. Two months later, his father reported to police that he thought Terrance was committing burglaries with other youths.
He was arrested and charged — as an adult — with one count of burglary with an assault or battery — a first-degree felony that could have led to a maximum sentence of life. He was also charged with attempted armed robbery, a second-degree felony. He pleaded guilty to both, and was given three years on probation added to nine months in county jail.
Six months after getting out of jail, he was arrested on charges of a new felony — home-invasion robbery, and eluding police. By then, he was 17 years old. After this incident, prosecutors charged him with violating his probation for the first crime. He admitted to the eluding charge and, when asked by police, admitted other robberies. By the time his sentencing actually occurred, Terrance was 19.
The judge lectured him on his wayward life. “I don’t understand why you would be given such a great opportunity to do something with your life [a reference to the leniency on the first time] and why you would throw it away….We can’t help you any further…If I can’t do anything to help you, if I can’t do anything to get you back on the right path, then I have to start focusing on the community and trying to protect the community from your actions.” For the probation violation, the judge imposed the sentence of life without possibility of parole.
Relying on the Supreme Court’s 2005 decision in Roper v. Simmons, ruling out the death penalty for any minor who committed murder, Terrance’s lawyers contended that it would be cruel and unusual punishment under the Eighth Amendment to sentence him — or any juvenile — to life without parole. Ultimately, that argument, and others, were rejected by the Florida Court of Appeal, applying what it understood to be the Supreme Court standards for judging whether a term of years in prison was “grossly disproportionate,” upheld the sentence, and the Florida Supreme Court refused review.
Joe Harris Sullivan of Pensacola, Fla., was 13 years old in 1989, when he and two other youths broke into an elderly woman’s home to burglarize it. The woman was not home at the time; the youths took jewelry and some coins, and left. Later that day, Sullivan and one of the others returned, and one of them sexually assaulted her, vaginally and orally; she also was beaten. She suffered bruising and a vaginal injury that required surgery.
Sullivan was identified at trial, by the victim’s somewhat hazy recollection of the voice of her attacker (whom she had not seen, because her head was covered). One of the other youths said Sullivan was the attacker. Joe was convicted. At sentencing, prosecutors listed 17 prior crimes in the prior two years, and noted that the youth had spent time in juvenile detention facilities. The judge concluded that, given the record and the sexual battery conviction, Joe should be treated legally as an adult under Florida law; he was sentenced to life in prison for that crime.
His lawyer at the trial (later disbarred) filed a post-trial brief saying there were no legal issues to be raised. In 1992, Joe, without a lawyer’s help, filed a post-conviction challenge in state court, but that failed and he did not appeal. When a lawyer agreed to help him, and sought to prove Joe’s innocence through a DNA test, that, too, failed because all such evidence had been destroyed.
After the Supreme Court’s Roper decision against the death penalty for juveniles, lawyers for the youth filed a new challenge, claiming that the Justices had created a new constitutional right, and Sullivan should be allowed to take advantage of it.
A state court rejected the challenge in a brief ruling, finding that it had been filed too late. In its decision, the Circuit Court turned down Sullivan’s claim that he could not have raised his constitutional claim earlier, because the Supreme Court had not yet decided Roper; the state court said Roper was a capital case, only. His plea was based on an exemption under Florida law, allowing an after-deadline filing based on the argument that a new constitutional right had emerged in the meantime. If the issue were properly before it, the state tribunal said, it would reject it anyway, since the Roper decision did not even apply to his claim.
Before the Graham and Sullivan cases had reached the Supreme Court, lawyers for Christopher Frank Pittman, a South Carolina youth who had committed a double murder — the victims were his grandparents — when he was 12 years old and was sentenced to 30 years in prison without a chance for parole asked the Supreme Court to extend the Roper rationale to such long prison terms. The Supreme Court denied review without comment on April 14, 2008.
The following November, Terrance Graham’s lawyers appealed his case to the Supreme Court. The state waived a response, but the Justices asked for one on Dec. 15. Earlier in December, Joe Sullivan’s lawyers appealed his case; again, the state waived a response, and the Justices asked for one on Jan. 21. The Court examined the two cases more than once, then granted them, separately but simultaneously, on May 4, 2009.
Petitions for Certiorari
Terrance Graham’s lawyers asked the Court on Nov. 20 to hear his case, in a spare petition with only six pages of argument. It directly posed the question: whether it was cruel and unusual punishment under the Eighth Amendment to impose a sentence of life in prison without a chance of parole for a juvenile who committed a crime in which the victim was not killed. The petition insisted that the sentence was only for his first and only conviction — armed burglary and robbery — and not for the other incidents that the sentencing judge had taken into account.
It quickly ran over arguments borrowed from the Roper decision, cited what it said were conflicting rulings in state courts, and suggested that the Court do “the humane thing” of hearing his plea. It argued that “imprisoning a juvenile for life is inhumane where the juvenile did not commit a homicide.” He said he was given the same sentence he would have received had he “intentionally murdered someone” — a fact, since Roper had ruled against a death penalty for a minor convicted of a homicide.
The state, asked by the Court to respond, spent some effort in urging the Court not to hear the case in reviewing Graham’s criminal record, including offenses of which he was not convicted but which he had admitted to police. It called him “a violent recidivist.” It disputed the claim that state courts were divided on juvenile sentencing and said that many offenders younger than Graham had been given life prison sentences for violent crimes, especially where the youth was a repeat offender.
Roper, it argued, had to do with death sentences only, and for other sentences, it said, the Court had always used a proportionality analysis. It added that Graham got exactly the sentence that the Supreme Court had allowed for juveniles in Roper.
Joe Sullivan’s counsel took his case to the Court on Dec. 4, with a fully developed petition that dwelled very heavily upon his age when sentenced — 13. “In the vast majority of states,” it said, “no one Joe’s age has received a life-without-parole sentence.” Only one other 13-year-old in the nation, it said, had received a sentence for a non-homicide, and that youth, too, was in Florida. With sharp rhetoric, the petition suggested that the reality of Joe’s situation was that he had been “sentenced to die in prison for sexual battery.” His case, it said, was “freakishly rare.”
Besides raising the Eighth Amendment issue squarely, the Sullivan petition poses a second question: whether the Court would grant review of his case years after his sentence — the passage of time that would rule out any chance he could challenge his life term in federal court. As a basis for using the Court’s discretion to hear the appeal, his lawyers suggested that the Eighth Amendment claim he was making had only “recently evolved” — in Roper, of course, in 2005.
The state, responding at the Court’s urging, re-phrased the question it deemed at stake, as to whether state courts had acted unconstitutionally when they enforced state procedural rules and dismissed his challenge as simply having been filed too late. The state thus questioned whether the Court had any authority to hear Sullivan’s complaint about his sentence.
“What Sullivan is asking this court to do is to treat his petition as if this Court was conducting a direct review of his conviction,” the state said. Sullivan’s lawyers, it added, had not identified any post-conviction case in which the Court conducted what amounted to direct review of a state court ruling. The brief in opposition also argued that Sullivan had not properly presented his Eighth Amendment challenge in state court, and, in fact, the state court did not rule on it because his claim was barred under state procedural rules.
Lawyers for Terrance Graham filed a merits brief that far more broadly explores the legal issues than their petition had, and in the process they put forth a complex legal rationale than seeks to counter every argument the state had mounted against his Eighth Amendment challenge. The brief attempted to meet directly the state’s argument that "death is different" — the basis for the state’s contention that the Court’s Roper analysis does not apply to a sentence of a term of years, like life. The lawyers also sought to turn to their advantage the state court’s rationale that term-of-years sentences are to be judged by a "grossly disproportionate" standard. They managed to do so without departing from the basic strategy that a life sentence without parole is always unconstitutional for a juvenile’s non-homicide crime.
First, the brief contended that the only thing different about the Supreme Court’s special jurisprudence in capital cases is that it sets up a procedure for deciding, in a specific case, whether the punishment of death is appropriate in that case alone. That procedure does not have anything to do with a non-homicide crime by a juvenile, the brief asserted.
To find whether a death penalty is justified in a given case, the brief noted, there has to be an "individualized determination" that death is proper for that individual, even if that penalty otherwise would fit the crime. That includes individual characteristics that might make death inappropriate. Graham does not seek such an individualized determination, and, his lawyers contend, it is not possible with a juvenile to know how they will turn out in the future. Roper itself, the brief noted, ruled out such predictions as sentencing factors for juveniles.
Second, the brief suggested that a judge evaluating a sentence’s validity, whether it be death or some term of years, must follow the same analytical path: in neither situation can the sentence be "grossly disproportionate" to the crime. Using that mode of analysis, "Graham’s [life] sentence is grossly disproportionate when viewed through the prism of his status as a juvenile offender," according to the brief. It added that the characteristics of juveniles, as Roper found, make them less culpable for criminal conduct. Life without parole, for a young offender whose character is still being formed, does not serve the state’s desire for retribution or deterrence, nor does it leave the juvenile with any chance to become rehabilitated. "Juveniles are more malleable and capable of reform than adults," the brief said, so "it is cruel to simply ‘give up’ on them," as life without parole does.
Third, in this individual case, those legal principles, the brief contended, demonstrate that his sentence was too great. The judge concluded that Graham "was incapable of ever being rehabilitated or deterred from committing more offenses."
Going beyond those core points, the Graham brief contended that life-without-parole for a juvenile has not been mandated by Florida’s legislature, thus leaving it to the unchecked discretion of a single judge. And it closed with an argument focusing on the claim that Florida leads the nation in imprisoning juveniles for non-homicide crimes, accounting for 70 percent of all such prisoners.
The merits brief made one concession that narrowed somewhat the sweep of the Eighth Amendment claim: it said that it was not challenging a life-without-parole sentence for a juvenile whoi was shown to have an intent to kill, even if the victim did not die. Thus, it said, "offenders convicted of attempted murder and felony murder would not be considered ‘non-homicide’ offenders."
The state’s merits brief in Graham begins with a review of the history of violent crime in Florida, showing that, in part, a crackdown on juvenile offenders resulted in sharp declines in youths’ serious crimes, even while continuing to be sensitive to the special circumstances of young age. The state, it argued, has a carefully calibrated system for deciding when to try a juvenile as an adult, and, it noted, Graham did not challenge being treated as an adult, so "his attempt to inject age at the sentencing phase is unwarranted."
The state also warned that, if Graham is allowed to bring in the age factor after submitting without protest to adult treatment, it would "undermine nationwide" the states’ systems of transferring young offenders out of the juvenile justice system when they commit adult crimes.
To Graham’s heavy focus on the characteristics of youthful attitudes, capacities and conduct, the state argued that Florida hardly ignores those attributes. "Our society has accounted for juvenile status in virtually every aspect of our laws and traditions," and, in keeping with that, Florida applies massive resources and special programs for juveniles who commit crimes or are at risk of doing so. This is a field, the state contended, in which states must be left free to decide on the mix of strategies.
The state’s rights argument also is energetically asserted as the Florida brief assailed the categorical rule that Graham was advancing. A whole host of questions will arise if such a rule is mandated constitutionally, the brief said, ranging from what is "life" to what is a "non-homicide" crime, and to reestablishing a system of parole to help a life-sentenced juvenile work toward rehabilitation. "Under Graham’s theory, any term-of-years sentence would be problematic," it asserted.
Joe Sullivan’s merits brief also sought to neutralize the death-is-different rationale upon which the stated relied so heavily in trying to make Roper inapplicable to juveniles’ life sentences. It did so with a straightforward argument: death and life-without-parole are, in their essential features, not really different at all. The key to either, it argued, "is that it imposes a terminal, unchangeable, once-and-for-all judgment upon the whole life of a human being and declares that human being forever unfit to be a part of civil society."
Given that, it went on, Roper "understood and explained why such a judgment cannot rationally be passed on children below a certain age. They are unfinished products, human works-in-progress. They stand at a peculiarly vulnerable moment in their lives. Their potential for growth and change is enormous. Almost all of them will outgrow criminal behavior, and it is practically impossible to detect the few who will not."
Focusing again on Joe’s age when he committed the crime that drew the life sentence, his lawyers said that at 13 it is clear that no one could make "an irrevocable judgment" that would condemn him "to be imprisoned until death." While it went on to concede that there may be ages above 13 at which the Court might draw a constitutional line against life-without-parole sentences, it should at least be set at 13. Such sentences at that age, it added, "are so vanishingly rare as to make their repudiation by contemporary American society unmistakable."
The brief, like that for Graham, sought to discredit the life sentence for juveniles by noting that it "is not the result of legislative decisions" that that was an appropriate punishment. Rather, it said, the imposition of such a sentence on a young offender is the result of two other legislative thrusts: "changing the boundaries of exclusive juvenile-court jurisdiction so as to make more children subject to adult-court prosecution," and "legislation increasing the number of adult crimes punishable by life imprisonment without parole." Still, even with that changing legal environment, is remains very rare for a 13-year-old "“ or even a 14-year-old "“ to be sentenced to life for a non-homicide crime, the brief said. In those two age groups, only 73 youths nationwide have received such sentences, it added. "The available indications are that the numbers rise sharply from age 15 upwards," thus suggesting a quite clear constitutional line.
The Sullivan brief does not discuss, or even list, the second question that his petition had posed and which, presumably, the Court also had agreed to hear: whether the Court would even allow Sullivan to raise before it his Eighth Amendment claim. That might well be an issue of the Court’s jurisdiction, and the state, in its merits brief, focused directly on it at the outset.
"Sullivan has ignored the fundamental question of whether jurisdiction exists," the state brief said. "Given that an adequate state law basis exists for the trial court’s ruling below [the lateness of the claim], and given tha Sullivan could have made the same Eighth Amendment claim now raised in his direct appeal in 1990…, his claim is procedurally barred and jurisdiction is lacking."
The state also contended that Sullivan’s merits brief had tallied higher numbers for young offendersy who received life sentences, and also, by implication, suggested that he was advocating no life term even for a youth who committed murder. The latter, the state argued, resulted from including in the total of 13 and 14-year-olds serving life terms some who had committed homicides. The brief then went on to suggest that it was understandable that "the data continue to evolve," because of the difficulty in evaluating the available data. The material now available, the state argued, was generated by those who oppose life terms for juveniles, raising "significant questions of accuracy and reliability."
As its final layer of response, the state’s merits brief argued that Sullivan has failed to show, using proportionality analysis, that his life sentence was grossly at variance with "the brutal crime of sexual battery."
(In his reply brief, Sullivan challenges the state’s suggestion that the Court lacks jurisdiction to hear his Eighth Amendment claim, asserting that state courts actually ruled on that claim before concluding that Sullivan was barred from making it when he did.)
The amici briefs (14 supporting Graham and Sullivan, seven behind the state, and one supporting neither side) engage primarily in a debate over the development of the juvenile brain, and the meaning of that phenomenon in the context of criminal sentences, with a secondary debate over society’s proper response to violent crime.
Some of the medical and scientific data on which advocacy and research organizations relied in supporting the Eighth Amendment challenge "“ developmental psychology and neuroscience "“ drew sometimes sharp criticism from the other side. For example, the conservative advocacy group, the Center for Constitutional Jurisprudence, attacked the data 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’."
However, the other side advanced its data without apology. For example, a group of juvenile correctional and service agencies asserted flatly that "empirical data, medical science and practical experience overwhelmingly snhows that juvenile offenders are distinct from adult offenders and that those distinctions evince a unique potential for rehabilitation." The assessment of that potential, that brief contended, can only be made after a juvenile has moved beyond adolescence. Much of that research, various groups pointed out in briefs, has already been accepted and relied upon by the Supreme Court in its Roper decision.
The critical issue for the Court, having already decided that there are constitutional differences between juvenile and adult criminals, is whether that difference counts the same "“ or less "“ when the punishment a youth faces is not execution. It is not likely to abandon altogether its reliance just four years ago upon research data supporting those differences. But it must now reexamine that data as it considers whether life with no chance of parole can really be distinguished from death, and, perhaps a more difficult inquiry, does the distinction between the two vary with the age of the offender?
If the meaning of the Eighth Amendment is the underlying constitutional question, the closely related moral question for the Justices is whether a denial of any chance at rehabilitation "“ or future freedom "“ is close to being the loss of "life," at least in some dimensions of what "life" means. As judges, the Court’s members will want to be comfortable defining the consequences of that denial in constitutional terms, but they will feel the tug of the moral question as they do so.
Does the view of the sentencing judge in Graham’s case — "We can’t help you any further" — represent a defensible constitutional judgment when the individual standing in the dock is under age 18? Is it a valid judgment because the individual committed a crime after passing the 18th birthday, but problematic before that?
Even if the Court were to answer the question with a "yes" at least when the offender is under 18, that may have only begun the inquiry. How much below 18 is that judgment a sound one under the Eighth Amendment? Sullivan’s lawyers suggested a line, perhaps, at age 15; below that, life without parole is invalid, but not at 15 or above. The Court would then have to justify the dividing line, with constitutional reasoning, even if informed by science.
In Graham’s case, another difficulty for the Court may be in judging at which age the Eighth Amendment may count for him: 16, when he committed the crime, just short of 18 when he violated probation, or 19 when actually sentenced to life without parole. In Sullivan’s case, the Court may first have to satisfy itself that the Eighth Amendment is properly before it.
In short, the inquiry may not be as easy as simply deciding whether Roper v. Simmons is only about death sentences, or whether it has a wider meaning and impact.