John C. Neiman Jr., Alabama’s solicitor general, has 30 minutes to make the case for locking up kids for life. Before he can get very far in that vein, Justice Stephen Breyer gets him to confirm that in 90 percent of the 39 states with life-without-parole sentences for juveniles, such sentences are mandatory. Neiman doesn’t disagree. Justice Sonia Sotomayor then notes that “there are different kinds of murder. And I do see a world of difference between the Miller killing and the Jackson killing.” She asks Neiman to justify the “mandatory nature of life imprisonment without parole, given that not every juvenile is equal and not every murder is equal with respect to them?”
Perhaps with Scalia’s earlier line of questioning in mind, Breyer works the opposite end of the spectrum, asking Neiman, “What's the minimum age, to which you could give for a murder a child life without parole? I mean, you could have an instance of a 10-year-old or an 8-year-old? ... And if there is a minimum, what is it in your opinion?”
Neiman replies that “there is a minimum now,” but when Breyer asks what that minimum age is, he says, “I would be hesitant to commit to a minimum without further factual development.” Breyer then retorts, Scalia-ishly: “Do you want to say 12? Do you want to say 10? Do you want to say 9? Because as soon as whatever you say, I'm going to say, ‘and why not 14?’ ”
And Scalia, not to be outdone snaps back, “But you just plucked some number out of the air! Why can't I pluck one out of the air, if you pluck one out of the air?”
Neiman winds up by reminding the court that “a lot of people hear about life-without-parole sentences, and ... one of their pragmatic responses is, well, what's the cost to all this? Why not just let these guys get their parole hearings, give them that hope, and likely they won't get parole anyway? ... But the cost is to the victims and their families who have to endure what are often very painful hearings and parole hearings. And when those come up on a frequent basis, that sort of re-traumatization process is something that governments can legitimately take into account.”
The second argument proceeds along similar lines with only Justice Sotomayor concerned about the fact that Jackson seems to have been more unlucky than murderous. Stevenson reminds the court of another way in which children are different from adults: “It's not just their inherent internal attributes,” he explains. “It's also the external circumstances that they find themselves in. Kuntrell Jackson was born in a household where there was nothing but violence and guns and people shooting each other. His grandmother shot his uncle. His mother shot a neighbor. His brother shot someone. They were all put to jail. But, unlike an adult, these children don't have the ability to escape.”
Kent Holt, an assistant attorney general from Little Rock, seems slightly amazed that the teens of Arkansas can’t simply be grateful that they aren’t being executed. He begins to describe the young people sentenced to these tough sentences as “double dipping” because the death penalty is off the table for them, and then they get to “come back again and say, ‘oh, and by the way, I'm a youth, so I should get not the lesser punishment, I should get the lesser, lesser punishment.’ ” He adds that “the principal justification in this case lies with the retributive principle that society needs to convey the message that Laurie Troup's life ... was more important than the money in that cash register.” He goes on to add that “the punishment … for this crime reinforces the sanctity of human life and it expresses the state's moral outrage that something like this could happen.” Ginsburg cuts him off to observe: “You say the sanctity of human life, but you're dealing with a 14-year-old being sentenced to life in prison, so he will die in prison without any hope. I mean, essentially, you're making a 14-year-old throwaway person.” Justice Sotomayor wonders what possible benefit there can be from giving these children “no hope.”
Chief Justice John Roberts counters that by asking: “Do we know how old Laurie Troup was when she was shot?” Holt replies: “Yes, Your Honor. Laurie Troup was 28 years old when she was shot. She was discovered by her mother and her 11-year-old son.”
Stevenson finishes his rebuttal by reminding the justices that “children are uniquely more than their worst act.” The court appears poised to accept some version of that argument. The fact that 14-year-olds are children is not in dispute today. Nor is the fact that a child’s worst act—even when it’s murder—can’t be the sole determinant of their sentence. What to do about it and the next time the court is asked to deal with children? That bit isn’t clear at all.
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