Tuesday, November 10, 2009

Is the Supreme Court about to discover a new right?

It was just a few years ago when the Supreme Court decided that "cruel and unusual punishment" included the execution of someone who committed a crime a few months short of his 18th birthday. Now the question before the Court is whether or not it would be cruel and unusual to sentence someone to a lifetime sentence for a crime committed before the 18th birthday. Few states have such provisions, but there are some that do and those sentences were challenged Monday at the Supreme Court.
The court in 2005 decided that it was unconstitutional to execute juveniles who had committed murder. Now, advocates for youthful offenders are asking the court to declare that sentencing juveniles convicted of nonlethal crimes to "die in prison" should also be forbidden.

Attorney Bryan S. Gowdy, who represents a man who was sentenced to life without parole at age 17, told the justices that his client and others imprisoned as juveniles deserve a right to prove that they have changed.

He said his client, Terrance Graham, now 22, seeks a "meaningful opportunity" at some point to show that he is "fit to live in society. That's all -- that's all we're asking for."

Graham was sentenced after he violated his probation by taking part in a home invasion. A year earlier, he had been convicted of armed robbery.

The justices also heard a second case from Florida, which imprisons more than 70 percent of juveniles sentenced to life without parole nationwide. Joe Harris Sullivan, now 34, was one of only two 13-year-olds in the nation to receive the sentence -- in his case, for two counts of sexual battery.

The lawyers said such sentences violate the Eighth Amendment, an argument that found little favor with the court's more conservative justices.
The question is not whether this is good policy. The question is whether such sentences rise to the level of cruel and unusual and so can be determined unconstitutional over the choice of the individual state legislatures.

It sounds, as Lyle Denniston writes, as if the Chief Justice is going to try to construct a new solution with a proportionality test that could be applied depending on how old the juvenile was at the time and how gruesome was the crime.
Chief Justice John G. Roberts, Jr., made a strong — and repeated — effort on Monday to recruit a majority of the Supreme Court in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence. With a number of Justices wondering where to draw an age line if the categorical approach were used, the Chief Justice’s initiative seemed to have a good chance of gaining adherents as the Court heard Graham v. Florida (08-7412) and Sullivan v. Florida (08-7621).

Lawyers for the two youths, who committed non-homicide crimes at age 16 and 13, sought to persuade the Court that the only way to deal constitutionally with no-release sentences for minor offenders was to declare all such sentences forbidden. While there was much sympathy evident among some — not all — of the Justices for treating juveniles differently, it did not appear that there was a clearcut majority for taking away altogether the life-without-parole option even in cases where the victim of a youth’s crime did not die.

The Chief Justice’s alternative would apparently be a declaration that the Constitution’s Eighth Amendment ban on cruel and unusual punishment required judges to take the offender’s youth into account in setting any sentence for a term of years, then judge whether that sentence was “proportional” both for an offender of that age and for the particular crime. The question on how attractive that option might be — say, to Justice Anthony M. Kennedy — was whether that would be a meaningful inquiry that would in reality give youths’ some chance of avoiding having the state give up on them entirely.
It sounds like the kind of a compromise that could draw in Justice Kennedy and bring in those on both sides. Whether that was what the Founders had in mind when they wrote the 8th Amendment is another question.