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May 28, 2010

Interesting revision of data on juve LWOPs in the federal system

The Blog of Legal Times his this new post reporting that through "an unusual filing with the Supreme Court this week, Acting Solicitor General Neal Katyal said some of the information that the Court used in its recent Graham v. Florida decision, supplied to the Court by a federal official without the SG's knowledge, was inaccurate."  Here is more:

Katyal's letter focused on the information submitted by Bureau of Prisons in its letter, "of which this office became aware only upon the release of the Court's decision," and which was "submitted in response to a confidential request from Court personnel."

Katyal said that because of "time constraints," the number of six federal prisoners was arrived at by consulting "automated inmate records," rather than presentence reports and other documents. Since the decision came down, Katyal said a "careful review" of presentence reports was conducted, leading to the conclusion that "it appears that none of the six inmates listed ... is serving a life sentence based solely on a nonhomicide crime completed before the age of 18." Katyal explained that all of the inmates cited by the Bureau of Prisons were convicted for criminal conduct that continued after they reached 18, or involved killing someone.

Apart from the unusual nature of the Court's own data-gathering project, the letter is also noteworthy as it may relate to Solicitor General Elena Kagan's nomination to the Supreme Court.  Ordinarily in state cases like Graham v. Florida, the federal government weighs in, if the outcome could affect federal law or policy.  The government stayed out of the Florida case, however, in spite of the fact that federal law does permit sentencing of juveniles as young as 13 to life without parole, as the Court noted.  If six actual federal inmates were affected by the Florida case, it might have made the SG's decision to stay out of the case more notable.

Over at Crime & Consequences, Kent has this effective post, "Kagan, Graham, and ex parte research,"  reporting on these developments and closing with these astute thoughts:

Nobody comes out looking good in this. The Court should know better than to engage in ex parte fact gathering and using the results as a basis for making constitutional law. The SG should have known that at least some federal judgments were in jeopardy from an adverse ruling and defended the federal law accordingly.

May 28, 2010 at 09:02 AM | Permalink

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Comments

This makes it two in a row for Eigth Amendment cases, where the original opinion cited to factual inaccuracies. In Kennedy, the correct facts cut against the reasoning of the majority; in Graham, the correct facts would have helped support the holding. Regardless, I wonder how this surely unwelcomed "two in a row" sits with the Justices themselves.

Posted by: DEJ | May 28, 2010 12:36:11 PM

indeed, a very interesting post! The government stayed out of the Florida case, however, in spite of the fact that federal law does permit sentencing of juveniles as young as 13 to life without parole, as the Court noted

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