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October 23, 2007

Does Roper suggest young juve LWOP is unconstitutional?

The Baltimore Sun today has this effective editorial, entitled "Too young to die in prison," which builds off the Equal Justice Initiative's recent new report (available here, overviewed here) on life terms for offenses committed by young teenagers.  Here are snippets from the editorial:

Teenagers serving life sentences without the possibility of parole have been condemned to die in prison. It's a death sentence without an executioner, it's perilously close to cruel and usual punishment, and it simply shouldn't be allowed. 

States, such as Maryland, that let juveniles spend the rest of their lives behind bars ignore what researchers and others have shown to be true: These offenders lack the physical and emotional maturity to make rational decisions. A life sentence, with the appropriate parole eligibility requirements and restrictions, would keep these young criminals behind bars for a lengthy period and prevent their release until an appropriate time.

A report issued last week by the Alabama-based Equal Justice Initiative found that nationally, more than 2,225 juveniles, age 17 and younger, have received life without parole sentences. Of those, 73 were 13 or 14 — children by almost any measure — when they committed their crimes....

Their crimes may have been terrible, but there is a reason we have different systems for juvenile offenders: Society recognizes the differences between teenagers and adults; the key difference is that parts of their brains that control impulses, emotions and reasoning are less developed.

Juveniles are barred from buying cigarettes or beer; they can't enlist in the military and aren't supposed to watch R-rated movies unless accompanied by a parent or guardian.  And yet when they commit a serious crime, it's as if they have morphed into adults for purposes of their punishment....

The Supreme Court recognized all these differences when it barred the execution of juveniles, no matter the crime.  But a mandatory life sentence without possibility of parole is just as fatal in its way, and should be prohibited for the same reasons.

I share the editorial's instinct that a fair reading of Roper supports an argument that life without parole for young teenagers is constitutionally excessive under the Eighth Amendment.  I suspect others may agree.  But it is telling (and troubling) that these viable constitutional arguments on behalf of young offenders facing life terms have not gotten nearly the traction and attention — from courts, the media or academics — that has been given to older offenders facing lethal injections.

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Yes, it suggests it. However I don't think that for strategic reasons that anyone is going to be making this claim any time soon. At the moment, I think a majority is happy to see kids sent to jail for the rest of their lives and snicker at their familes.

But, in declaring LWOP to be unconstitutional, there are difficult habeas issues. I don't think that a federal court could order a state to supervise someone on parole, or even to resentence someone to parole. Also, I am unsure whether a constitutional standard of "an amount less than life" could be articulated. What would the Supreme Court say, "The most that a poor kid could be sentenced to is 30 years, because that is almost life?"

Posted by: S.cotus | Oct 23, 2007 12:11:01 PM

S.cotus,

Though you usefully identify one (of many) practical reasons that courts are timid about Eighth Amendment objections to long prison terms, you (and appellate courts) should realize it is not their job to "predict" what sentence would be constitution. Rather, then should just do their job by adjudicating the claim before them --- by saying the current sentence is or isn't constitutionally excessive --- and leave it to the other branches to engineer an appropriate response.

Posted by: Doug B. | Oct 23, 2007 1:18:42 PM

In the current Supreme Court line-up, there are probably at least four Justices who would uphold such sentences, with only Justice Kennedy's vote being at all in doubt. Bringing such a case would really be a risky strategy, because if you lose, you end up with a bad precedent on the books that's difficult to erase.

And that's assuming that the four so-called liberals are on your side, and they very well may not. The defense bar has been pretty successful at getting death sentences overturned, but not so successful with grossly disproportionate prison terms. Most of the justices seem to think that death is different, but that there's practically no such thing as an prison term that's constitutionally cruel or unusual.

Posted by: Marc Shepherd | Oct 23, 2007 1:31:17 PM

But it is telling (and troubling) that these viable constitutional arguments on behalf of young offenders facing life terms have not gotten nearly the traction and attention — from courts, the media or academics — that has been given to older offenders facing lethal injections.

Doug, stop with these complaints about how you perceive others to be mis-prioritizing their work. I think you fail to spend adequate time discussing Darfur, the plight of homosexuals & women in Iran, and AIDS in Africa.

You blog about sentencing. That's great. You could also be blogging about poverty, about bankruptcy, about "victims' rights," or about Hurricane Katrina. But you've made choices. You blog instead of taking on more pro bono representation of defendants receiving ill-considered sentences. Why is that? Or, alternatively, why aren't you sending applications to USAOs and seeking to reform the system from within, one sentence at a time.

Get a grip. Not everyone shares your priorities, and it's not a failing for them to do so.

Posted by: Seriously | Oct 23, 2007 1:54:19 PM

Giving kids LWOP seems clearly cruel under Roper, but is it unusual? Don't many states have the option of sentencing kids to LWOP? And isn't the trend, if there is one, point in the direction of the sentence becoming more usual?

Posted by: | Oct 23, 2007 2:18:07 PM

The number of children doing LWOP is now 74. Pennsylvania sentenced Qu'eed Batts to LWOP Tuesday.

Batts was 14 when he committed the crime for which he will do life. His mother was just 13 when she gave birth to him and handed him off among relatives and foster homes in four different states. His father is doing an extended federal sentence. He was physically abused by one foster mother, and for a time, placed alone in a homeless shelter. At 12 he was jumped in to the Bloods, the rest is as they say history.

At sentencing the trial court noted Batts 'was controlled in his actions in part by [a notorious local gang leader], a vicious man who in this court's opinion deserves to share his life sentence.' The local gang leader plead, cooperated, and received considerably less than life.

The trial judge summed it up best: 'In a sensible world, [giving Batts life] would serve as a mighty deterrent, we don't live in a sensible world.'

I suspect Batts is not that dissimilar to many of the other 73 sentenced to die in prison for crimes committed before they were 15.

Posted by: anon | Oct 23, 2007 2:25:08 PM

To answer my own question from above, in case anybody was wondering, here are the approximate state break downs with respect to LWOP for kids.

In 19 states, kids younger than 18 are never eligible for LWOP.
In 31 states, kids younger than 18 are eligible.

Thus, the penalty is hardly unusual, at least in the sense that it is theoretically possible.

The breakdown of states that allow kids to be sentenced to LWOP is as follows:

In 4 states, kids 11 or younger are eligible.
In 3 states, kids starting at 12 are eligible.
In 7 states, kids starting at 13 are eligible.
In 11 states, kids starting at 14 are eligible.
In 3 states, kids starting at 15 are eligible.
In 3 states, kids starting at 16 are eligible.

Nevada gets the prize for being the most cruel: you can apparently be 8 in Nevada and still get LWOP!

This information comes from an Amnesty international report titled, “The Rest of their Lives.”

Posted by: | Oct 23, 2007 2:46:48 PM

One must balance the "cruelty" of LWOP to children to the inevitable victims of their predations if they are let out.

It's a depressing thing, to say the least.

Posted by: federalist | Oct 23, 2007 3:22:53 PM

Doug, I don’t think it is that simple. Here is why:

Most juvenile LWOP cases are state cases. The question that would be presented to the Supreme Court is either: 1) is his sentence constitutionally excessive?; or 2) is the statute which prevents parole for certain crimes (as applied to juveniles) unconstitutional.

Now, the Supreme Court could strike down the statute, but where would that leave us? With the Supreme Court ordering the juvenile placed into the parole system at a later date? What if the state has no parole system? With the Supreme Court modifying the sentence? Would the Supreme Court simply be telling state courts to determine what is the maximum absolute term that could be given to a juvenile? (This seems like the most likely possibility.)

The way you frame the question is somewhat strange. The problem with “LWOP” is the “WITHOUT PAROLE” part. You seem to be arguing (or saying that some are arguing) that the 8th amendment REQUIRES parole for some sentences. To my knowledge, the Supreme Court has never gone there and for the federalism reasons outline above, I don’t think the would every want to.

“Seriously,” You seem to not understand that people lawyers and law professors specialize in fairly narrow fields. When they do this they see injustice in whatever field they are studying. Sure, to people outside the field it might not matter, but that is simply because they have not studied it. Now, I find it somewhat strange that Americans have suddenly developed an “interest” in the Sudan. Why? It is in Africa. They have nothing in common with the US. They probably would not like us, anyway. “Blogging about poverty” is pretty much a waste of a law degree, because lawyers are trained to analyze details, whereas people with less education tend to think that by complaining about the “big picture” they can change it.

Now, truth be told, a lot of sentencing issues DO involve poverty. I don’t see why he is obligated to become an Assistant United States Attorney, moreover, if he did, he would be obliged to follow whatever policy the DOJ (as his client) sets on the issue.

Anon, FWIW, I think that number goes up if you consider the mandatory 99-year sentences as “life.”

Posted by: S.cotus | Oct 23, 2007 3:30:47 PM

Seriously: I do not mean to be telling people to change their priorities. Rather, my goal and hope is to help people refine their perspectives on sentencing issues.

I understand and respect those who choose to invest time/energy in advocacy against the death penalty because of a unique concern about life/death issues. (For similar reasons, I understand and respect those who choose to invest time/energy in advocacy against abortion or against war.)

That said, I think it is important for those who advocate against the DP to appreciate some indirect consequences of their work. Advocacy for LWOP has been a large part of advocacy against the DP, and as a result we now have lots of states with mandatory LWOP for certain juve offenders who get tried as adults.

Put another way, given that anti-DP advocacy may be contributing to other sentencing problems, I think it is appropriate (and important) for me to spotlight the consequences of others' sentencing priorities.

Posted by: Doug B. | Oct 23, 2007 3:41:06 PM

Well, if you want to start “balancing” the harm to the victim, I say, “let’s go.”

I think that in all murder trials, the moral character of the alleged victim should be completely fair game. His credit report, school records, and medical records should be admissible. After all, the jury should know precisely much of a loss to society was caused by the victim’s death. If he didn’t attend college, then his life obviously was worth less to society than someone who did. If he has a record of drug use and bad debts, then the jury should be told that they should weigh the actual benefit to society that his death has caused.

Next, the defendant should be able to show what harm his incarceration would cause. Everyone that likes he would explain what good they would do. Experts could testify about what good they might do.

Posted by: S.cotus | Oct 23, 2007 3:41:41 PM

S.cotus, go back and re-read what I wrote . . . . I was talking about the unknowable victims of these guys once they get out . . . .

Your post is entirely besides the point.

Do you really believe any of this drivel?

Posted by: federalist | Oct 23, 2007 4:58:27 PM

This is the simple reason that Death Penalty claims are being made, but LWOP claims aren't: 18 U.S.C. § 3599.

Posted by: anonymouse | Oct 23, 2007 5:09:25 PM

Federalist, for every crime—from petty larceny on up—there is some possibility that any punishment (short of death) will be insufficient, and the offender will commit more crimes. Since you don't appear to be proposing an automatic death penalty for all crimes, it seems you support the basic concept that just punishment involves some risk of recidivism. Death for all offenses is the only risk-free penalty.

The public policy question is whether we know enough about any 11-year-old to say that he or she should be condemned to die behind bars, with no opportunity to re-evaluate that decision years or decades in the future. Yes, it's true that re-evaluating that offender entails some risk. But on some level you appear to understand that justice does involve risk, as otherwise we would impose the death penalty for traffic tickets. After all, those who get traffic tickets are not the safest drivers, and there is a chance they'll go out and kill someone from behind the wheel.

Posted by: Marc Shepherd | Oct 23, 2007 6:07:37 PM

Marc, I believe my post says that we should "balance". Which, of course, entails considering both sides.

The problem, of course, is that people who simply argue that the state is being a big meanie never get to the issue I raise.

Posted by: federalist | Oct 23, 2007 6:53:54 PM

Don't we here run into the same arbitrary issue that presents in Roper? You can execute a kid who kills on his 18th birthday, but not the day before. What is the scale used for this decision? LWOP for a 17 year old is cruel and unusual, but it's not if he's one year older.

If the idea is that it's not possible to accurately predict future dangerousness, doesn't that result in a belief that practically every LWOP sentence is cruel and unusual? Why is the analysis any different for a 22 year old than a 14 year old?

Posted by: JustClerk | Oct 23, 2007 7:46:59 PM

JustClerk: I think policy considerations that are not appropriate for the judicial branch come into play when determining LWOP for anyone 18 or older. But the point you raise about "one year older" or "on his 18th birthday, but not the day before" can be answered pretty easily: the state defines the age of majority for purposes of full political and social participation. Those under 18 do not vote, serve on juries, have the capacity to marry or enter into contracts without parental consent, etc. They do not have any meaningful participation in adult life. Is 18 an arbitrary age? Yes, but one rooted in our traditions and codified in our laws. The same question you pose could just as easily be posed if we were discussing age of consent, but I don't hear many arguments being made for the age of consent to be lowered to 13 for those who would impose LWOP on young people of the same age. Ironic, since they are sentencing them to physical and sexual predation anyway.
Also, as Roper pointed out, juveniles do not have the same opportunity to escape a setting that breeds criminality, because of their minority and dependence on adults, both practically and legally.
So is it line drawing? Sure, but one based on existing law, an evolving consensus and our own traditions that distinguish juveniles from adults for sentencing purposes.
I also would like to note that seven of the teenagers profiled in this report were apparently sentenced to LWOP for crimes that did not involve a fatality, which is just outrageous.

Posted by: Alec | Oct 23, 2007 8:47:26 PM

Doug wrote: "But it is telling (and troubling) that these viable constitutional arguments on behalf of young offenders facing life terms have not gotten nearly the traction and attention — from courts, the media or academics — that has been given to older offenders facing lethal injections."

And, as a practical matter, they never will until the death penalty is abolished. That's all well and good for me (i.e., there is nothing troubling about this state of affair), since I oppose capital punishment and see the state's physical act of killing any of its citizens as a much bigger concern than incarcerating a juvenile for life, although I of course also view that as oppressive and immoral. Less well and good for you, to be sure, but this reality may be a pragmatic reason for people like you to come off the fence.

Doug further wrote: "That said, I think it is important for those who advocate against the DP to appreciate some indirect consequences of their work. Advocacy for LWOP has been a large part of advocacy against the DP, and as a result we now have lots of states with mandatory LWOP for certain juve offenders who get tried as adults."

You give too much credit. LWOP is the result of a "tough on crime" mentality not shared by most DP abolitionists. Those aren't anti-DP activists sitting on the juries that hand out those sentences to juveniles. Those are ordinary members of the public who have been conditioned to believe that they need to be tough on crime to protect themselves from being murdered or raped, despite the fact that they are not in any real danger of ever succumbing to that fate. That tough on crime mentality is created and fostered by governing economic elites to maintain solidarity with (and distract) the middle class. At some point, don't you have to begin to acknowledge the dysfunction in the society that causes this kind of oppression rather than blame a small, politically weak class of activists?

Posted by: DK | Oct 23, 2007 9:33:23 PM

"And, as a practical matter, they never will until the death penalty is abolished. That's all well and good for me (i.e., there is nothing troubling about this state of affair), since I oppose capital punishment and see the state's physical act of killing any of its citizens as a much bigger concern than incarcerating a juvenile for life, although I of course also view that as oppressive and immoral. Less well and good for you, to be sure, but this reality may be a pragmatic reason for people like you to come off the fence."

I am absolutely stunned by this. Assuming that sending off an 11 year old killer for life is immoral (and I personally think that it is an admission that society has failed and the best that can be said for it is that it is a necessary evil), it has to be far more of a trangression than executing an adult capital murderer. Why does capital punishment warp priorities? Why is it such a focus of calumny? You murder someone and you pay with your own life--harsh, yes, but certainly far less harsh than committing an 11 year old to prison for life. (And if I could trust that people like those who paroled Arthur Shawcross would not be making decisions, I would be implcably opposed to LWOP for 11 year olds.)

I have zero qualms about executing murderers, attempted murderers, child rapists and a whole host of criminals. But committing an 11 year old to life imprisonment with no possibility of parole does give pause, a ton of it. And it's not squeamishness, but a sense that the child doesn't have the moral responsibility for his actions that an adult has and that we as a society have an obligation to the child.

Am I that far off base?


Posted by: federalist | Oct 23, 2007 9:49:42 PM

On the one hand, I am uncomfortable with giving a kid LWOP. Especially a young kid.

On the other hand, if the kid has killed someone, I am even more uncomfortable with giving him a chance to do it again.

So, if he is to be let out someday, there needs to be a really good way to tell that he has reformed himself.

Is that even possible?

Posted by: William Jockusch | Oct 23, 2007 10:42:39 PM

Though not a Catholic, I do recognize myself as a Christian. The Catholic church has some of the clearest and well-thought-out views and statements on the State's role and responsibilities in regard to Criminal Justice. Personally, I would put more faith in them than the result of a straw poll of public opinion:
http://www.catholic-ew.org.uk/cherishinglife/cl41.htm
193) For Christians the right of the State to punish offenders with imprisonment is governed by the requirements that the punishment be just, reasonable and likely to be effective. Prison sentences should reflect the gravity of the crime. A sentence is effective if it establishes justice and facilitates rehabilitation. Pope John Paul II has written, 'In this way authority also fulfils the purpose of defending public order and ensuring people's safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated' (The Gospel of Life, paragraph 56). A system of justice should generally aim to integrate the criminal back into society, whenever this is possible without further endangering other members of society. Since the exhortation of the Gospel is to be reconciled with one's brother or sister, a Christian response should never be 'Lock them up and throw away the key.' We encourage courts and governments to explore further forms of restorative justice in which criminals face the results of their crimes with the aim of facilitating recognition of what they have done and reconciliation.

194) Accepting the need to maintain peace in society, the Church has allowed the possibility that capital punishment may be used as a last resort in extreme situations. However, Pope John Paul II has stated that 'as a result of steady improvements in the organisation of the penal system, such cases are very rare, if not practically non-existent.' (ibid.) This statement of the Pope is exceedingly strict and shows a development of the Church's practical judgement on this matter.

Posted by: peter | Oct 24, 2007 7:33:03 AM

So, if he is to be let out someday, there needs to be a really good way to tell that he has reformed himself.

Is that even possible?

With absolute certainty? Of course not. Every release entails some degree of risk. If you want risk-free punishment, the only solution is to send everyone away forever.

Posted by: Marc Shepherd | Oct 24, 2007 10:34:01 AM

"But the point you raise about "one year older" or "on his 18th birthday, but not the day before" can be answered pretty easily: the state defines the age of majority for purposes of full political and social participation. Those under 18 do not vote, serve on juries, have the capacity to marry or enter into contracts without parental consent, etc. They do not have any meaningful participation in adult life. Is 18 an arbitrary age? Yes, but one rooted in our traditions and codified in our laws."

But sentencing is supposed to be individualized. Thankfully, not as many people commit crimes as want to vote, marry, or enter into contracts, so we don't need arbitrary rules that apply to everyone.

Posted by: katie | Oct 24, 2007 11:50:35 AM

How the tune would change if it was your child. You would be begging your butts off for a second chance at any age.

Posted by: Nancy | Oct 25, 2007 6:59:13 PM

Lascio un salutino. Ciao! Andrea

Posted by: Forza Juventus | Oct 28, 2008 7:56:50 AM

Nancy's contribution is important.

Unquestioning support for "get tough" policies and practices is the province of those lucky folks who've never seen a close friend or relative savaged by the system.

Posted by: John K | May 5, 2009 6:02:52 PM

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