In honor of 40 years of Sesame Street, today's Dispatch is brought to you by the letters L, W, O, and P (stands for life with out parole). And by the numbers 13, 17, and 2,574. And 73. And 9. And also 2. And by many, many other numbers that make you wonder how a roomful of people who went to law school presumably to avoid doing math could possibly spend two hours in a protracted exercise of freewheeling public accounting.
For the first hour, the court will do the math on Terrance Jamar Graham, who was 17 when he was sentenced to life without parole for violating the terms of his probation for an earlier armed robbery conviction. The second hour is spent on Joe Sullivan, 13 when he was sentenced to LWOP for allegedly raping a 72-year-old woman.
The estimated number of juveniles serving life without parole in the United States is 2,574. The number of prisoners given life without parole for nonhomicide offenses is 111—77 of them are in Florida. Nine is the number of people serving life-without-parole sentences for crimes committed at age 13. And two is the number of 13-year-olds serving the sentence for nonhomicide offenses. Oh, and one is the number of countries that allows life without parole for teenagers.
This matters because, for the purposes of determining whether a punishment is cruel or unusual under the Eighth Amendment, it becomes very important to squabble over constitutional long division. Or as the Count might say, "Ah, ah, ah ..."
Everything that happens today pivots on Justice Anthony Kennedy's majority opinion in a 2005 case, Roper v. Simmons, in which the court barred the death penalty for juveniles because teens are less able to control their impulses and resist peer pressure and thus are less culpable for their misdeeds. The question is whether, as Chief Justice John Roberts keeps insisting, Roper stands for the proposition that "death is different" or—as advocates for the teen offenders keep urging—for the idea that "adolescents are different."
Now, as Cookie Monster well knows, asking questions is a very good way to find out about things. (Someone should tell Justice Clarence Thomas.) So the real question for the court today is how to find LWOP for teens to be a bad idea without inviting a wholesale review of all sentencing law.
Bryan S. Gowdy, representing Graham, immediately gets into a math fight with the chief justice, who insists that if 38 states allow the LWOP sentence, it can't be all that unusual. Gowdy counts differently, saying that "if 31 States that have allowed it and never imposed it, that's evidence that it's very unusual."
Justice Antonin Scalia looks perturbed: "So when a sentence is imposed rarely, it becomes unconstitutional?"
This is when we learn the Song of the Day on Sesame Street, and today it's "Where Do You Draw the Line on Childhood?" Sing along if you know it.
Sings Scalia, "Where do you draw the line? At 21?"
Responds Gowdy: "We draw the line at 18."
Justice Samuel Alito chimes in, asking whether that line at 18 can be drawn for "someone who is a month short of his 18th birthday who commits the most horrible series of nonhomicide offenses?"
Roberts asks if a sentence of 50 years would be constitutional. Scalia wonders whether you can sentence a juvenile to serve until the year before his life expectancy? How about two years before his life expectancy? Gowdy replies that "only life without parole makes the unequivocal assessment that the adolescent cannot be returned to civil society."
Here is where the chief justice makes his pitch for eschewing any categorical rules and, instead, for "incorporating consideration of the juvenile's status into the proportionality review." If the courts could just assess whether punishments are out of proportion to the crime, there would be no need for drawing a categorical line at some arbitrary age. And proportionality review is already built into Eighth Amendment challenges. This will be Roberts' compromise proposal today: Let the courts consider the age of the juvenile on a "case by case basis." Which kind of assumes judges don't already do that, but any co-operation is better than none.
Justice Ruth Bader Ginsburg asks whether educational and vocational training are available to the LWOP kids. No. Ginsburg asks about the terms of their incarceration. Replies Gowdy: "They are going to stay in their cell and die there."
Alito, visibly dismayed, points out that "some of the actual cases in which this sentence has been imposed in Florida involve situations that are so horrible that I couldn't have imagined them if I hadn't actually seen them." He describes them in detail. They are horrible. Gowdy replies that case-by-case evaluation at sentencing just doesn't work "because you can only make the determination" about an adolescent's possibility of being rehabilitated "later in life." That's why you need parole.