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My So-Called Life Without ParoleThe Supreme Court looks at life sentences for teen offenders.

By Dahlia LithwickPosted Monday, Nov. 9, 2009, at 8:04 PM ET

Joe Sullivan. Joe SullivanIn 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.

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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 18^th 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.

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Dahlia Lithwick is a Slate senior editor.

Photograph of Joe Sullivan by Glenn Paul/Equal Justice Initiative.

COMMENTS

Chief Justice Roberts and Justice Alito appeared to agree that the rarity of the sentences suggests that the criminal justice system is making discerning rather than arbitrary judgments in reserving the punishment for extreme cases.

—Adam Liptak, New York Times, today

Then again, it might suggest that this punishment is utterly arbitrary, imposed by a handful of judges with, say, a self-serving motive like reelection or election to a higher court, or on the basis of race and economic status. Or whatever.

Which these very cases illustrate.

What we do know is that the quality of their legal representation, and whether or not they were represented by public defenders or instead by, say, someone from John Roberts' old law firm at a cost of $700 per hour, makes no difference. We know this because Roberts said so at an oral argument last month, when he effectively admitted to having improperly gouged his former clients because the result in their cases would have been the same had the client hired a storefront lawyer at $100 per hour, been represented by a public defender, or represented themselves.

And we know that secret prosecutorial misconduct isn't a factor, because the prosecutor's colleagues would have revealed it to the defendant's lawyer even though it would lead to the whistleblower's being fired. We know this because Roberts and Alito joined three of their colleagues three years ago in saying that, well, government employees are always willing to risk their jobs in order to perform their jobs ethically by, say, informing the other side that evidence was falsified, and so there's no public need for the law to protect them from being fired for acting ethically. (There is, however, a public need for a judicially created policy that allows and in fact encourages prosecutors to frame criminal suspects. We know this, too, because Roberts and Alito said so last week.)

As for Kennedy's observation that the purpose of a law that allows judges to sentence juveniles to life without chance for parole not as a deterrent but instead as retribution, I have to presume that the Eight Amendment's prohibition of cruel and unusual punishment doesn't have an exception for cruel and unusual punishments whose purpose is to punish. Although the texualists and originalists on the Court might decide in these cases to write one into that Amendment, with Kennedy's help, given that Roberts apparently has convinced four of his colleagues, including Kennedy, that it would serve the interests of the Eight Amendment to pretend that the law at issue in Florida and six other states, which currently allows judges to consider the age of the juvenile when sentencing him, should be limited constitutionality to allowing judges to consider the age of the juvenile when sentencing him.

Tautologies and syllogisms are useful, I guess, when you want to look dumber than a rock. Or when you know that you can impose a fairyland style of jurisprudence upon the country if you're a group of five self-styled conservative Supreme Court justices.

-- la savante
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