Drawing lines
Kuntrell Jackson was walking through the 'hood with a cousin and another friend when the trio starting talking about robbing a local video store, an endeavor for which the chances of success were augmented by the fact that the cousin was carrying a shotgun. "Success" is a fleeting concept, in this case: they fled without any money when the cousin killed the clerk. For his part, Jackson was convicted of aggravated murder and aggravated robbery, and given the mandatory sentence of life imprisonment without possibility of parole. All but the most liberal of us aren't going to get overly worked up about that.
Would that change if I told you that the robbery took place less than three weeks after Kuntrell Jackson's 14th birthday?
Two years ago, in Graham v. Florida, the Supreme Court held that imposition of a life-without-parole sentence on a juvenile for a non-homicide offense violated the 8th Amendment's proscription against cruel and unusual punishment. On Tuesday, the Court heard argument in two cases, Miller v. Alabama and Jackson v. Hobbs, on whether that prohibition should be extended to punishment for homicide as well.
To a certain extent, Graham, and the Court's other decisions on the scope of the Cruel and Unusual Punishment Clause, point the way for resolution of Miller and Hobbs. Ten years ago, in Atkins v. Virginia, the Court held that capital punishment couldn't be inflicted on the mentally retarded. Three years later, they extended that prohibition to juveniles in Roper v. Simmons, and followed that up in 2008 by holding in Kennedy v. Louisiana that the death penalty couldn't be imposed for a non-homicide offense. What's the common thread in all of these? Categorization: the Court ruled that a particular punishment couldn't be imposed on a particular category of defendants: the mentally retarded, juveniles, non-homicide offenders, and juvenile non-homicide offenders. So just make the same call here -- either you can impose LWOP on juvenile homicide offenders or you can't -- and call it a day.
From the oral argument, though, it didn't look like any of the justices were comfortable with that result, one way or the other. In fact, Justice Kennedy chided the defense attorney (who argued both cases) for pursuing an all-or-nothing result, telling him that "you're forcing us into a bipolar situation."
Jokes about which justices are bipolar aside, Kennedy's question perhaps inadvertently pointed to the whole problem with the analysis: if you don't adopt a clear it-is-or-it-isn't formulation, where do you go? As the astute reader might have noticed, there's a "one of these is not like the others" quality to the Atkins/Simmons/Kennedy/Graham quadrilogy: in all but Graham, the Court was dealing with capital punishment. The reason for that is that the Court has been particularly loathe to extend 8th Amendment analysis to disproportionality of a prison sentence. The closest it came to that was back in 1983 in Solem v. Helm, in which it struck down an LWOP for a defendant who'd forged a $100 check, but received that sentence because he'd had six prior non-violent felony convictions. Eight years later, though, the Court backed off of that, upholding in Harmelin v. Michigan an LWOP sentence for possessing more than 650 grams of cocaine, and rejecting most of Solem's analytical framework. Then in two separate opinions handed down the same day in 2003, the Court upheld California's "three-strikes" law, which had resulted in 25-to-life sentences for two defendants convicted of theft offenses which ordinarily would have been classified as misdemeanors.
The reason for the Court's reluctance to wade into that thicket are obvious: it's virtually impossible to come up with any coherent scheme of analyzing, let alone resolving, the issue. In fact, Kennedy, who wrote the opinion in Graham, recognized as much, noting that in previous cases involving a disproportionality argument regarding the length of a sentence, the comparison had to be made between the gravity of the crime and the severity of the penalty; Graham, on the the other hand, dealt with "a particular type of sentence as it applies to an entire class of offenders," which gets you back into the Court's familiar terrain of categorizing defendants.
So if you don't apply the bright line test -- LWOP is permissible for juveniles, or it isn't -- what do you do? Draw the line somewhere else. The defense attorney (the same one argued both cases) responded by suggesting a two-tiered approach: no mandatory LWOP for anyone under 18, and no LWOP at all for anyone under 15. Sotomayor and several other justices openly wondered about the logical or legal basis for doing so, and the defense suggested that scientific research on the "deficits" that juveniles have in understanding and judgment might serve as such a basis. That's somewhat slippery, but it did serve as part of the rationale in Graham, the Court noting there that juveniles have “a lack of maturity and an underdeveloped sense of responsibility,” and thus, while “a juvenile is not absolved of responsibility for his actions, his transgression is not as morally reprehensible as that of an adult.”
There's probably enough support among the justices for that point of view that a Graham-like solution will be in the offing. Graham, after all, didn't prohibit a state from imprisoning a juvenile for life, it just required the states to "give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Of course, that presents another line-drawing opportunity: what's a "meaningful" opportunity? As Scalia pointed out in the oral argument on Tuesday, if the Court accepts this argument, what's to keep someone from coming in and claiming that a 50-year sentence for a juvenile is cruel and unusual, because he should have an opportunity prior to that to claim he's been rehabilitated?
We'll see what happens when the Court's decisions came down, but the betting line after oral argument is that they're not going to do anything to clarify 8th Amendment jurisprudence.
Comments