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Life prison sentences for minors divide court
No chance of parole is cruel for non-homicide cases, attorneys say

By Robert Barnes
Washington Post Staff Writer
Tuesday, November 10, 2009

The Supreme Court appeared split Monday along familiar ideological lines over whether the Constitution forbids locking up forever juveniles whose crimes fall short of homicide.

Attorneys for two Florida men sentenced as teenagers to life in prison without parole argued that such terms violate the Eighth Amendment's prohibition of cruel and unusual punishment.

Certainly it is unusual, said Bryan Stevenson, the attorney for Joe Harris Sullivan, who was sentenced at age 13 for raping an elderly woman. Only two cases exist of someone that young receiving life in prison without parole, he said, both in Florida.

"But we also contend to say to any child of 13 that you are only fit to die in prison is cruel," Stevenson said. "It can't be reconciled with what we know about the nature of children, about the character of children. It cannot be reconciled with our standards of decency."

But conservatives on the court wondered where the Constitution makes such distinctions based on age. "There is certainly nothing in the Eighth Amendment that suggests there is a difference between 16 and 17," Chief Justice John G. Roberts Jr. said, or any other line that the advocates would have the court draw.

The attorneys pointed out that the court made such a distinction in 2005, when it decided that it was unconstitutional to execute anyone younger than 18 for murder. But as Roberts and others reiterated through the nearly two hours of arguments, "death is different."

The advocates said the meaning of the decision was also that adolescents are different.

Justice Anthony M. Kennedy, who wrote the majority opinion in that 5 to 4 decision, wondered why adults could be sentenced to life in prison without parole if juveniles deserved another chance.

"Why does a juvenile have a constitutional right to hope, but an adult does not?" he asked.

"Because the juvenile is different than an adult," said Bryan Gowdy, the attorney for Terrance Jamar Graham, who was sentenced at 17 to life in prison without parole for an armed robbery and a home invasion.

"A juvenile is less culpable. He's -- we know over time he will change and potentially reform, as opposed to an adult," he said. "Once you are fully formed, you are more culpable and you don't have that same inherent capacity to change."

But Justices Antonin Scalia and Samuel A. Alito Jr. said that retribution is also part of the equation, and that society has a right to punish severely for heinous crimes, even those by juveniles.

Alito recounted a string of juvenile offenses in Florida "so horrible that I couldn't have imagined them if I hadn't actually seen them." Scalia added: "One of the purposes is retribution, punishment for just perfectly horrible actions. And I don't know why that value of retribution diminishes to the point of zero when it's a person who's, you know, 17 years, 9 months old."

Because of their different clients, the attorneys asked the court for different standards. Gowdy said the court should abolish life without parole for any non-homicide crime committed by someone younger than 18. He said he thinks it is constitutional to impose such a sentence on a juvenile who killed.

Stevenson said the court should not allow life without parole for any crime, homicide or not, committed by someone younger than 14.

Florida Solicitor General Scott D. Makar said those are categorical rules that go "against the national consensus and the national trend" of treating violent juveniles more like adults, subjecting them to tougher penalties and eliminating parole, both for adults and juveniles.

Roberts suggested a finding that he said would be somewhere in the middle. Rather than having rigid rules based on age, he said it would be better to require judges to consider the defendant's age when imposing harsh sentences, and then having courts review whether they are disproportionate to the crime.

Justice Ruth Bader Ginsburg said Roberts's idea would not solve the basic problem: that juveniles are still developing and are not fully culpable for their actions. Decisions about whether they have reformed can be made only later. The question is, "Has this person overcome those youthful disabilities?" she said.

Several justices seemed troubled by the patchwork of laws covering juveniles and an uneven distribution of those juveniles serving life without parole for non-homicides. Of 111 such juveniles nationwide, 77 of them are in Florida, with the rest spread across only six other states.

Justice Sonia Sotomayor pressed Makar on the minimum age at which a child in Florida could be subjected to the circumstances that could lead to a sentence of life without parole. He said there is no minimum.

"So a 5-year-old could be put away for life?" she asked.

"That is, theoretically," Makar answered. "We would hope that the system would not allow that."

Stevenson's client, Sullivan, is now 34, and the court spent much of its time in his case on Florida's argument that he was procedurally barred from bringing his claim so late. Stevenson argued that his challenge could come only after the court's decision in 2005, but even justices sympathetic to Sullivan's case questioned Stevenson on the point.

But if the court were to find for Graham that life without parole is unconstitutional for juveniles, they agreed that would also give Sullivan a new claim.

The cases are Sullivan v. Florida and Graham v. Florida.

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