Scalia points out that Gowdy assumes the only purpose of punishment is deterrence, "so once that's no longer a problem, we should let this person out. But one of the purposes is retribution—punishment for just perfectly horrible actions."
Says Gowdy: "Thirty years would have been a lot of retribution for Terrance Graham."
Ginsburg asks whether under the Roberts system "you'd have to create a new procedure that does not exist in Florida for proportionality review."
Scott Makar is Florida's solicitor general, and he will argue both cases. Unfortunately he's something of a mumbler, which forces the court's senior membership to serially bark at him to speak louder and slower and another justice to teach him how to crank up the lectern. Roberts beats on him awhile for proposing a categorical rule as rigid as his opponents—that LWOP is always constitutional. Then Justice John Paul Stevens asks whether Florida has a "minimum age when a juvenile can be transferred to adult procedures."
Ginsburg notes that the judge in the Graham case far exceeded even the punishment recommended by the prosecutor. "This judge, I think, surprised everyone in the courtroom."
Now it's Justice Sonia Sotomayor's turn to sing a round of "Where Do You Draw the Line on Adulthood." She asks Makar whether it "categorically violates the Eighth Amendment for a 10-year-old to be sentenced to life without parole?" Then she starts the chorus: "If 10 is too early, why isn't 14, 16, or 18?"
She also takes him to task for exaggerating the violence of Graham's crimes: "You are not seriously suggesting that the crimes at issue here are comparable to a rape or a permanent infliction of serious disability that Justice Alito spoke of?" (He is.)
Asks Ginsburg: "Do we know why Graham's co-perpetrators' sentences were dramatically lower" than his? (Because they helped the prosecution.)
Scalia makes another pitch for doing away with categorical rules, but Ginsburg insists that line drawing is not a sin: "Florida does recognize the difference between an adult and a minor. And you have to make that line. Teenagers can't drink, can't drive, can't marry."
To the extent you've tuned in today to play Read the Tea Leaves With Kennedy, here's a clue. He says, "My initial instinct is that the difference in life with parole and life without parole is just not a factor in deterrence. ... What is the state's interest in keeping the defendant in custody for the rest of his life if he has been rehabilitated and is no longer a real danger?"
Muses Scalia: "I guess there is also no empiricism on whether the committed juvenile feels a lot better knowing that he will get out when he is 75 years old than he would feel knowing that he was there for life."
Makar says that speaking of empiricism, he has his doubts about the other side. He points out that his opponents "are asking that a constitutional rule be established on studies that have just been generated literally over this summer and have not been subject to meaningful review."
Before he can begin his rebuttal, Gowdy stumbles into Round Two of Read the Tea Leaves With Kennedy, who muses: "Why does a juvenile have a constitutional right to hope, but an adult does not?"
The Sullivan case proceeds more or less along the same lines as Graham except that what should be the easier case—of the 13-year-old—may be procedurally barred from the high court's review. But Sullivan's lawyer, Bryan Stevenson, gives an impassioned performance. He insists that "to state to a child of 13 that you will die in prison is cruel," and that "if you accept that Florida has adopted life without parole for a child of 13, you also have to accept that they have adopted it for a child of 6 or 5."
Stevenson is a master of the numbers today. When Justice Stephen Breyer asks him how many nonhomicide convicts under 18 get LWOP, Stevenson says, "One-hundred and eleven." When Breyer asks how many of the 111 are in Florida, Stevenson says "Seventy seven." When Breyer asks how many states the others are in, Stevenson says, "Six."
Breyer will get testy when Makar gets these same numbers wrong in his view. (Makar seems to be counting homicide offenses as nonhomicide offenses.) Breyer then argues that, when dealing with young people, there are some human beings who could make a moral argument against "taking a person's entire life away."
Since it appears that several justices believe the Sullivan challenge is procedurally barred, they begin to comfort themselves and Sullivan's lawyer that the 13-year-old can nevertheless still win by losing if he then brings a new challenge after they decide Graham. Which certainly sounds like there are at least five votes to do something nice for Graham and all the future Grahams of America. Whether that something nice will involve ending life without parole for juveniles or just asking judges to take age into account in ensuring that juvenile sentences are proportional is unclear. At the end of two hours, I think I can count three votes for a case-by-case proportionality review, three votes for a categorical rule, one vote for something I can't yet identify, one vote I can't quite discern, and one vote for not asking questions. Does all that add up to five votes for anything? Ah, ah, ah .... You do the math.