If a camel is a horse designed by committee, the Justices seem to be bent on trying to send kids to prison on a camel of their own design. From Adam Liptak at the New York Times :
Chief Justice John G. Roberts, Jr. suggested a compromise approach that did not involve categorical distinctions but would instead require consideration of the offender’s age in deciding whether the sentence was proportional to the crime case by case.
“We know from Roper that death is different, and we know from Roper that juveniles are different,” the chief justice said. “Wouldn’t it make sense to incorporate the consideration of the juvenile status into the proportionality review?”
Probably no one told him that they sentence kids on a case by case basis now. Then there’s Justice Alito:
Justice Samuel A. Alito Jr. seemed to join the chief justice in rejecting what he called a per se approach while remaining open to “proportionality challenges that take into account the particular circumstances of the juvenile in question.”
But Justice Alito added that some juvenile offenders deserve life without parole, describing cases “so horrible that I couldn’t have imagined them if I hadn’t actually seen them” — “raping an 8-year-old girl and burying her alive” and “raping a woman in front of her 12-year-old son and then forcing the son to engage in sexual conduct with the mother.”
Of course, if the cases weren’t nasty, ugly and horrible, they wouldn’t be sentenced to LWOP in the first place. Justice Breyer saw it as ageism issue:
Justice Stephen G. Breyer said the words of the Eighth Amendment might justify categorical distinctions, at least for the youngest offenders. “It’s pretty unusual to have this,” he said. And, at least for 13-year-olds, he continued, “it is a cruel thing to do to remove from that individual his entire life.”
This may have something to do with the onset of puberty, which is happening at an increasingly early age according to statistics from Victoria’s Secrets. Justice Ginsburg was unprepared to take the lower road.
Other justices noted that the law routinely makes distinctions based solely on age. “Think of the teenager who can’t drink, can’t drive, can’t marry,” said Justice Ruth Bader Ginsburg, adding that those legal lines were not drawn case by case. “They say no juvenile can drink — no juvenile.”
Justice Kennedy appears to be the only one who questioned whether there was a rational basis behind LWOP:
Justice Anthony M. Kennedy, the author of the Roper and Kennedy decisions, both by votes of 5 to 4, said his “initial instinct” was that life without parole was no more effective in deterring crime than life with the possibility of parole.
But Justice Antonin Scalia said deterrence was not the only reason for punishment. “One of the purposes is retribution, punishment for just perfectly horrible actions,” he said. “And I don’t know why the value of retribution diminishes to the point of zero when it’s a person who’s, you know, 17 years, 9 months old.”
This, of course, brings us back to the case by case determination.
Jeff Gamso, being an Ohio criminal defense lawyer who has faced defending against the death penalty, points out that a sentence of LWOP is a sentence of death, albeit one that takes longer to carry out. In contrast, Mike at Crime & Federalism argues
As I argued earlier, there is no hard, rational basis to draw a line under the 8th Amendment cruel and unusual punishment clause to hold that a sentence of life without parole for children under the age of 18 is unconstitutional. And yet it appears that a majority of the court believes that it’s wrong, though the expressed views vary widely on how wrong, what should be done about it and where the line should be drawn.
Without a bright line, we’re right back where we started. The age of the defendant versus the “horribleness” of a crime is no less normative a basis for its imposition than we now face, Both factors are already part of the mix, and yet LWOP is imposed. And to use Justice Scalia’s argument against him, retribution isn’t the only purpose of sentencing.
The real battle may be over whether the age of 18 or 13, or some number in between, is the proper cut off. Historically, the age of 18 has divided juvenile from adult, though that line has been fudged when it comes to prosecution, and it’s not entirely clear why 18 was made the cut off age in the first place and whether it remains, given changes in society, the correct age. On the other hand, no rational parent of a 14 year old will argue that she’s mature enough to do as she pleases, and suffer the consequences.
What’s missing from this discussion, and the argument before the Supreme Court, is an empirical understanding of children, or their development, of the changes they go through and their reasoning and comprehension processes. Without this, we’re just making this stuff up. Making stuff up, however, has long been a tradition at the Supreme Court.
Jeff Gamso, being an Ohio criminal defense lawyer who has faced defending against the death penalty, points out that a sentence of LWOP is a sentence of death, albeit one that takes longer to carry out. In contrast, Mike at Crime & Federalism argues
Is this mere speciesism? Is so, that’s fine by me. We are human, and for whatever reason, we get to decide the fate of our own. That we do so with a greater degree of sensitivity and understanding than is employed with vicious animals is a perk of being at the top of the food chain. He may be right that we should be less absolute with other species, but the argument doesn’t support the position that we should behave less thoughtfully when dealing with our children.Why do these “children” not deserve life in prison? Because ten years from now they’ll realize, “It was wrong to rape and torture a woman before requiring her to perform oral sex on her own son”? Because they just made a mistake, and are deserving of a second chance? Really…Why should these teenagers be released?The teenagers in the Dunbar Village Incident are privileged to remain alive. A just society would have put them down like the savage animals they are.
Oh, I know, but they are human – as if that is a self-proving argument rather than mere speciesism. If the Dunbar Village teenagers are human, then either human needs redefined; or humanity needs to be taken out by an asteroid.
As I argued earlier, there is no hard, rational basis to draw a line under the 8th Amendment cruel and unusual punishment clause to hold that a sentence of life without parole for children under the age of 18 is unconstitutional. And yet it appears that a majority of the court believes that it’s wrong, though the expressed views vary widely on how wrong, what should be done about it and where the line should be drawn.
Without a bright line, we’re right back where we started. The age of the defendant versus the “horribleness” of a crime is no less normative a basis for its imposition than we now face, Both factors are already part of the mix, and yet LWOP is imposed. And to use Justice Scalia’s argument against him, retribution isn’t the only purpose of sentencing.
The real battle may be over whether the age of 18 or 13, or some number in between, is the proper cut off. Historically, the age of 18 has divided juvenile from adult, though that line has been fudged when it comes to prosecution, and it’s not entirely clear why 18 was made the cut off age in the first place and whether it remains, given changes in society, the correct age. On the other hand, no rational parent of a 14 year old will argue that she’s mature enough to do as she pleases, and suffer the consequences.
What’s missing from this discussion, and the argument before the Supreme Court, is an empirical understanding of children, or their development, of the changes they go through and their reasoning and comprehension processes. Without this, we’re just making this stuff up. Making stuff up, however, has long been a tradition at the Supreme Court.
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Good post on a difficult issue.
On the subject of your last paragraph, Lyle Denniston of SCOTUSBLOG notes that:
“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 shows 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.”
Mr. Denniston’s entire Argument Preview is worth reading.
The shame is that this reflects the amicus perspective and doesn’t appear to have made it’s way into the parties’ positions or the justices comments at argument. It’s unfathomable that no one, during oral argument, questioned the empirical basis for this “common sense” approach.