A uniquely American experience
The course of true love, and Eighth Amendment jurisprudence, never runs smooth. I'm not sure about love, but after yesterday's arguments before the US Supreme Court in Sullivan v. Florida and Graham v. Florida, 8th Amendment jurisprudence doesn't look like it's going to get any smoother.
Terrance Graham caught a break when he pled out to burglary with assault; although he was only 15, under Florida law the judge could have sentenced him to life. The judge, though, gave him only a nine-month jail sentence and three years of probation. But when Graham was arrested for a home invasion robbery just six months after getting out of jail, the judge was in no mood for leniency. Despite the prosecutor's recommendation of a 30-year sentence, the judge gave Graham life in prison without parole -- on the probation violation.
Joe Sullivan didn't get any breaks. Charged with rape and robbery of a 72-year-old woman, he admitted the robbery, but denied the rape. His lawyer -- since suspended from practice -- wasn't much help: the cross-examination of an accomplice who testified against Sullivan took up about a page. Sullivan's trial lasted eight hours, and the jury convicted him after thirty-five minutes. The judge imposed a sentence of life in prison without parole. On appeal, the lawyer filed an Anders brief.
Sullivan was 13 at the time. He's been in prison for 19 years, and is now in a wheelchair.
While the 8th Amendment's application to death penalty cases is muddled -- one wag suggested that the Court has adopted "the evolving standards of Kennedy" as the appropriate test -- the case law on non-homicide cases is even worse. Back in 1983, in Solem v. Helm, the Court reversed a life-without-parole sentence in a bad-check case (the defendant had priors for six mid-to-low level felonies), deciding that the 8th prohibited sentences that were disproportionate. That lasted just seven years; in Harmelin v. Michigan, the Court overruled Solem, holding that the 8th contained no proportionality guarantee. Well, maybe; Kennedy wrote a concurring opinion that a "narrow proportionality principle" could be divined from the Court's precedents. The Court affirmed California's three-strikes law in Ewing v. California in 2003 in a 5-4 decision, but only three judges could be found to support the reasoning, which was based on an application of Kennedy's analysis in his Harmelin concurrence. Two years ago, the Court denied cert in an Arizona case in which the defendant received 200 years in prison for downloading child porn.
The problem with proportionality analysis, of course, is doing it: what's taken into account? Kennedy's opinion in Harmelin wandered through four factors -- "the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors" -- before arriving at a fifth: "the Eighth Amendment does not require strict proportionality between crime and sentence." Well, that clears that up.
Graham and Sullivan sought to avoid this problem by drawing a very clear line: a life sentence without parole for a juvenile convicted of a non-homicide offense is prohibited. Justices Scalia and Alito poked at the boundaries of that argument: would a sentence of 50 years without parole eligibility be impermissible, asked Scalia, even though that exceeded Graham's life expectancy at the point the sentence was handed down? What if consecutive sentences are tantamount to life imprisonment? What about extreme non-homicide cases, Alito wondered, like a well-publicized one in which the juvenile defendant raped a woman in front of her 12-year-old son, then forced the son to have sex with the mother?
Chief Justice Roberts threw out an idea that garnered support from a couple of other justices:
Wouldn't it make sense to incorporate the consideration of the 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 is the most grievous crime spree you can imagine, you can determine that in that case life without parole may not be disproportionate.
While that may at least be an articulable judicial standard it pretty much misses the point of the whole argument. The entire concept of juvenile justice is based on the idea that juveniles and adults should be treated differently because the former have a greater capacity for change. Whether someone should be permanently removed from society, either by death or incarceration, is a decision that shouldn't be made when a person is 15 years old. As Justice Ginsberg noted, the proper time to make a determination of whether a sentence of life without parole is proportional to the crime isn't at sentencing, but after there's been sufficient time to determine whether rehabilitation is an attainable goal.
Actually, though, that's true of adults as well: the question of whether a defendant will be rehabilitated after twenty or thirty years isn't really any different if the defendant is 20 years old instead of 15. The outcry over such sentences being imposed on juveniles might be justifiable; the US has over 2,600 people serving such sentences, while the rest of the world musters a total of 12 (Israel has 7, South Africa 4, and Tanzania 1). But that is simply part of the uniquely American trend of incarcerating a lot of people for a long time; as the Sentencing Project found in 2004:
The 127,677 lifers in prison [as of 2003] represent an increase of 83% from the number of lifers nationally in 1992, which in turn had doubled since 1984. During the 1990s the growth of persons serving life without parole has been even more precipitous, an increase of 170%, between 1992 and 2003. Overall, one of every six lifers in 1992 was serving a sentence of life without parole. By 2003, that proportion had increased to one in four.
And that doesn't even include "de facto" life sentences, like the 134 years Marquis Hairston got for a trio of home invasion robberies two years ago.
It's unclear whether Graham and Sullivan will work a change of that for juveniles. There's a serious procedural problem with Sullivan's case which may keep the Court from even addressing it: he didn't raise the issue until Roper v. Simmons declared the death penalty unconstitional for those under 18.
But it's not likely to cause any second thoughts about the concept of life without parole in general. To a degree, that sentence is the result of death penalty opponents looking for an alternative to capital punishment; the unintended consequence is that the penalty is now available for a variety of crimes for which death was never on the table. But it's part of us now.
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