Analysis

Chief Justice John G. Roberts, Jr., made a strong — and repeated — effort on Monday to recruit a majority of the Supreme Court in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence.  With a number of Justices wondering where to draw an age line if the categorical approach were used, the Chief Justice’s initiative seemed to have a good chance of gaining adherents as the Court heard Graham v. Florida (08-7412) and Sullivan v. Florida (08-7621).

Lawyers for the two youths, who committed non-homicide crimes at age 16 and 13, sought to persuade the Court that the only way to deal constitutionally with no-release sentences for minor offenders was to declare all such sentences forbidden.  While there was much sympathy evident among some — not all — of the Justices for treating juveniles differently, it did not appear that there was a clearcut majority for taking away altogether the life-without-parole option even in cases where the victim of a youth’s crime did not die.

The Chief Justice’s alternative would apparently be a declaration that the Constitution’s Eighth Amendment ban on cruel and unusual punishment required judges to take the offender’s youth into account in setting any sentence for a term of years, then judge whether that sentence was “proportional” both for an offender of that age and for the particular crime.  The question on how attractive that option might be — say, to Justice Anthony M. Kennedy — was whether that would be a meaningful inquiry that would in reality give youths’ some chance of avoiding having the state give up on them entirely.

On another issue at stake, in the Sullivan case, whether the Court had authority even to hear that case on the constitutional question, the strongest hint was that the Court might find that Florida law had barred that appeal.  If so, that would not mean, however, that Joe Sullivan, the youth in that case, would not benefit from a ruling in the case of Terrance Graham providing some assurance that youth could be a decisive factor in long-term sentences for minors.

After the Chief Justice and Justices Samuel A. Alito, Jr., and Antonin Scalia had opened the questioning by commenting on the difficulty of drawing a specific constitutional line, Roberts then moved in with the suggestion that the Court not rule categorically — for either side — but rather go for a proportionality analysis.

The Chief Justice, noting that the Court in the Roper v. Simmons in 2005 decision had said that “death was different” but also that being a juvenile also was different, asked: “Wouldn’t it make sense to incorporate the consideration of juvenile status into the proportionality review? So that if you do have a case where it’s the 17-year-old who is one week shy of his eighteenth birthday and it the most grievous criime you can imagine, you can determine that in that case life without parole may not be disproportionate.”

Terrance Graham’s lawyer, Bryan S. Gowdy of Jacksonville, said that scientific studies accepted by the Court in Roper indicated that one cannot make a determination, before age 18, whether a juvenile will or not reform as he grows up.  The comment only produced more quibbling from the conservative Justices on how an arbitrary line could be justified.

Justice Sonia Sotomayor soon joined in to question what makes anyone more capable of reading the future development of a juvenile simply because he had passed his 18th birthday.  Gowdy said that the Court “had to draw the line somewhere,” and, in Roper, he said, the Court chose 18.  Justice Scalia quickly retorted: “Only if we accept a categorical approach.” Otherwise, he said, “we would not have to draw a line.”

The state of Florida’s lawyer, Solicitor General Scott D. Makar from Tallahassee opened his argument by contending that a categorical bar on life-without-parole for minors would run counter to trends in treating juveniles over past couple of decades, frustrating states in their attempts to deal with rising juvenile crime while still remaining sensitive to the needs of youthful offenders.  Soon, he, too, encountered the Chief Justice’s hostility to a categorical rule on the state’s side, that life-without-parole was always allowed.

After Makar had said that Florida acknowledged that youthful age “does matter,” Justice Sotomayor asked for help in drawing the line where life-without-parole would be permissible.  Would it be unconstitutional if the youth were only 10? she asked. If that is too early, she said, why would 14 or 15 not be too early?  Makar would only concede that “I think it [age] does matter.”  Sotomayor was not satisfied, next asking about a no-release sentence for a five-year-old.

Chief Justice Roberts interrupted to test on what legal basis Makar was suggesting that age does matter, and then suggested himself that it would be the Eighth Amendment.  And, once again, he suggested that, under that Amendment, one could “just say age has to be considered.”

Makar’s toughest questioner was Justice Ruth Bader Ginsburg, who sharply criticized Florida’s lack of any “proportionality” review under its own state laws, and drew unfavorable comparisons between state restrictions on juveniles on drinking, driving and marrying even while allowing sentencing as if they were adults.

The Sullivan case, argued section, brought some of the same exchanges, but was dominated by questions of whether the Court had jurisdiction to hear the case.  Justice Ginsburg commented very early to Joe Sullivan’s lawyer, Bryan Stevenson, that “before you get to the particulars of this case, there is a serious question” about whether Florida law barred the challenge to the no-release sentence.

Several Justices said that, if the Court were to decide that the Roper decision was a death penalty-only case and thus did not apply to life sentences, then Florida’s “procedural bar” did, in fact, prevent Sullivan from making his challenge in 2007 to a sentence he received in 1989.  “You’re out of court” if Roper does not apply, Justice Scalia said.

When Stevenson did get a chance to discuss the merits, he sought to persuade the Court that, whatever line it might draw against life-without-parole for minors, it definitely should rule it out for 13-year-olds.  Once again, though, he encountered the Chief Justice’s apparent agenda.  “If we require consideration of age under the Eighth Amendment,” Roberts commented, “we avoid all these line-drawing problems.”

Makar, making a return appearance in the Sullivan case, had to spend much of his time trying to clear up confusion about how often the life-without-parole sentence is given to juvenile offenders, in Florida and elsewhere.  With Justice Stephen G. Breyer leading the questioning of the state’s lawyer, the difficulties of drawing age lines that would properly reflect the capacity for “moral responsibility” became more evident.

Breyer did draw from Makar the minimal concession that, if the Court were to rule in the Graham case that Roper did apply to no-release sentences, and that were made retroactive, then Sullivan would be allowed — under Florida law — to file a new challenge to his sentence.

The Court is expected to decide the case no earlier than January.

Posted in Graham v. Florida, Sullivan v. Florida, Uncategorized