As the Supremes prepare to hear oral argument in Graham v. Florida and Sullivan v. Florida today, one has to wonder why.  The underlying issue is whether life without parole is a constitutional sentence to impose on a juvenile for an offense less than homicide.  As Liptak states in the New York Times,

There are just over 100 people in the world serving sentences of life without the possibility of parole for crimes they committed as juveniles in which no one was killed. All are in the United States. And 77 of them are here in Florida.

Florida.  What in the world would make them think that this was the right thing to do?  Because life plus cancer was too harsh?

The state’s attorney general, Bill McCollum, explained the roots of the state’s approach in the first paragraph of his brief in Mr. Graham’s case.“

Bythe 1990s, violent juvenile crime rates had reached unprecedented highlevels throughout the nation,” Mr. McCollum wrote. “Florida’s problemwas particularly dire, compromising the safety of residents, visitorsand international tourists, and threatening the state’s bedrock tourismindustry.” Nine foreign tourists were killed over 11 months in 1992 and1993, one by a 14-year-old.

A terrible problem.  A simple solution. One that, in retrospect, demonstrates how simple solutions can seem so right at the time, but aren’t. 

Shay Bilchik, who served as a state prosecutor in Miami from 1977 to 1993 and is now the director of the Center for Juvenile Justice Reform at Georgetown,said the state took a wrong turn. “We were pretty aggressive in thoseyears in transferring kids into criminal court,” he said.

Hesaid later research convinced him that his office’s approach was muchtoo aggressive and had not served to deter crime. “My biggest regret,”he said, “is that during the time I was in the prosecutor’s office, wewere under the false impression that we were insuring greater publicsafety when we were not.”

But now it’s the law, and Florida hasn’t been reluctant to use it.  So the issue comes before the Supreme Court. 

Is it unconstitutional to impose a sentence of life without parole on a juvenile for a crime short of murder?  How does one tell?  There is no clear test for such a decision.  What makes it so harsh, so wrong, that a couple of Supreme Court justices will know which way to vote?  And ultimately, it comes down to that, a couple of justice.  Maybe just one justice.  Guided by what?

The problem is that our Constitution was never meant to decide such questions.  When we get to the point of sentences short of death, the determination of propriety is purely normative, a personal vision of right and wrong.  There’s no hard rule to guide the Supreme Court.  There’s no test to measure it. 

That any legislature would conclude that ever-increasing harshness is the answer to every criminal problem is crazy, but the founding fathers never counted on Florida.  There was never an expectation that such simple, and such baseless, solutions would be enacted.  There was an expectation that if you put enough good people in a room, sanity and good judgment would prevail.  They would know, for the balance of human experience, that such simple solutions were just plain ridiculous.  No one would ever do something so foolish as resort to the ridiculous.  And yet they have.

I don’t know that it is unconstitutional.  I don’t know that the Constitution micromanages such details in the criminal decisions of a state.  I don’t know how we can tell if it would, what test would be applied to reach such a decision.

But LWOP for kids at all, no less for crimes short of murder, is just nuts.  Absurd overkill is not something that any rational, reasonable legislature should ever enact.  And yet they do, even though there’s no empirical evidence to show that it makes any sense at all. 
The problem is that states that have approved of the sentence of LWOP argue their emotional justification, the super-predator fallacy, the harm to victims, the crime wave, the need to stop these children. 

If LWOP parole is constitutional, what will they do when they figure out that it doesn’t change the way children think and behave?  Can life plus cancer be far behind if this sentence?  Can the Constitution serve as a substitute for sound, rational judgment?  It wasn’t meant to be, but when states can’t manage to control the exercise of mindless fiat, the enactment of simple solutions, there’s no choice.  Somebody has to stop the madness, and the Supreme Court will be the last resort.