Death is different, but is it all that different from life without parole?

The law, lawyers, and the court.
Nov. 5 2009 5:02 PM

Forever Young

Death is different, but is it all that different from life without parole?

Joe Sullivan. Click image to expand.
Joe Sullivan

Next week, the Supreme Court will hear a case testing whether the Eighth Amendment's ban on cruel and unusual punishment prohibits sentencing a teen to life in prison without parole. Punishment is generally deemed "cruel" if it's more than "graduated and proportional." It is constitutionally "unusual" if imposed so infrequently "that a national consensus has developed against it." If those concepts sound squishy and vague to you, well, you can just imagine what Antonin Scalia is feeling right now.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

The seeds for this particular constitutional battle were sown in Justice Anthony Kennedy's majority opinion in a 2005 case, Roper v. Simmons, banning capital punishment for juveniles. That case hinged on the growing national consensus against executing teens, bolstered by scientific studies finding teenage brains to be underdeveloped in ways that make their owners less culpable than adults. The question for the court this time around is not just whether teens are really different from adults but whether being sentenced to die in prison is truly all that different from being sentenced to die there by lethal injection.

The court ordered two different Florida cases to be argued on the same day—at least suggesting it may resolve each one differently (the court may simply find that age 13 is too young for life without parole but 17 is not). In Joe Sullivan's case, he and two accomplices robbed a 72-year-old woman, then he and a confederate allegedly returned to her home and raped her. Sullivan was tried in adult court and sentenced to life without parole. He was 13. Terrance Jamar Graham tried to rob a restaurant with two accomplices. He was charged as an adult and pled guilty. When he violated probation, Graham was sentenced, without trial, to life without parole. He was 17. In both cases the sentencing judges were certain these boys were beyond hope or help.

The cases force Justice Kennedy, once more the court's likely deciding vote, to confront the neurological and behavioral science he relied upon in the Roper case. Writing there for five justices, Kennedy found teens prone to "impetuous and ill-considered actions and decisions" and more "vulnerable … to negative influences and outside pressures, including peer pressure." Perhaps even more important, he concluded that "the character of a juvenile is not as well formed as that of an adult." For all these reasons, wrote Kennedy "the penological justifications for the death penalty apply to [juveniles] with lesser force than to adults." The twin social goals—of retribution and deterrence—are not served if the offender is not as culpable as an adult for their crimes.

That same neuroscience has been deployed again in this case to urge the court to take note of basic structural differences between teen and adult brains. But it's not just neuroscience urging courts to treat teens differently: A dramatic friend-of-the-court brief submitted by a group of former juvenile offenders, including Tony-nominated actor Charles Dutton and former Wyoming Sen. Alan Simpson, argues that "it is fundamentally inhumane to give up on a youthful offender." Detailing Dutton's youthful conviction for manslaughter, and Simpson's early experiments with arson and guns, the brief contends that teenagers are risk-takers by nature; some are just unluckier than others: "Had circumstances been different—had [Simpson] not been fortunate regarding where his stolen bullets struck or what was damaged by his arson—he might have been jailed for the rest of his life."

On the other side of the case, the state of Florida focuses not on the age of the offenders or the unseen chemical mysteries of the teenage brain, but on the fact that Roper was a death penalty case. As the Supreme Court has repeatedly told us over the years, "death is different." The arguments against killing juveniles don't map onto the sentence of life without parole. Advocates for life without parole believe that courts should stay out of the brain science business altogether. Just last week an Italian judge reduced an adult murderer's prison sentence based on evidence that his genes were linked to his violent behavior. Sentencing someone's genes or frontal cortex quickly becomes a very complicated business—one that might someday be used to extend sentences rather than just shorten them.

Talk of Italian courts leads us inexorably to the elephant lurking in the courtroom next week when Sullivan and Graham are argued. Because the other highly controversial strand in Kennedy's Roper analysis was what he described as "the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty."

An estimated 2,574 juveniles in the United States are serving life without parole. This is a uniquely American form of punishment. As Sullivan's lawyers argue, "the United States stands alone in sentencing children to die in prison without hope of ever winning release." Now, Justice Kennedy cares a good deal about international norms and conventions. But in the wake of his decision to cite foreign law in his opinion on executing juveniles, Kennedy faced outraged calls for his impeachment. Some of his colleagues see references to foreign law as worse than citation to Bazooka Joe comics. Whether he wants to revive that fight will likely be a factor as he thinks through the present cases.

There's one other mystery at the heart of the Sullivan and Graham cases that makes predicting their outcomes next to impossible. In his opinion in Roper, Kennedy wrote, most enigmatically, that "when a juvenile commits a heinous crime, the state can exact forfeiture of some of the most basic liberties, but the state cannot extinguish his life and his potential to attain a mature understanding of his own humanity." Looking at Sullivan, Graham, Sara Kruzan, and the other children sentenced to die in prison for acts they committed as teens, one has to wonder whether life without parole meets Kennedy's standard for what a state may reasonably do to a child. These complex cases may thus turn on whether Kennedy believes a teenager can possibly attain a "mature understanding of his own humanity" in a prison cell to which his jailers have thrown away the key.

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