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July 7, 2009

Gearing up for the SCOTUS juve LWOP cases on the horizon

I was pleased to receive word this week that the Institute of Bill of Rights Law had chosen one of the two juve LWOP cases, Sullivan v. Florida, for its moot court event as part of its Supreme Court Preview 2009-2010.  The Institute's decision to moot this juve LWOP case confirms my instinct that Sullivan (and the companion case Graham) are perhaps the most important and interesting cases on the Supreme Court's current docket. 

Adding to my excitement, today I came across this effective new piece about Graham and Sullivan from the online magazine Miller-McCune.com.  The piece is titled "Should Minors Ever Face Life Without Parole?," and here are a few excerpts:

In the term beginning this October, the Supremes will hear two cases — one involving a 13-year-old sex offender, the other a 17-year-old probation violator present when a felony murder occurred — both aiming to challenge life-without-parole sentences for juveniles (known by the unwieldy acronym JLWOP). Concurrently, the House Subcommittee on Crime, Terrorism and Homeland Security has been gathering testimony on a bill that would mandate parole hearings for JLWOP prisoners. The bill covers federal cases and gives states a financial incentive to comply with its terms.

"There is so much attention on this issue right now," says Baylor Law School professor Mark Osler, who has testified in favor of the proposed House bill, H.R. 2289. "I think in part it's because you have groups doing a good job advocating on it, and the idea is becoming more and more prevalent — that instead of wholesale change, we are smoothing off the rougher edges of the justice system, and that includes a focus on children."

Opponents to a change suggest that a focus on the prisoners as children, and not offenders, is wrong-headed and ahistorical. In its brief before the Supreme Court in the 13-year-old sex offender case, the State of Florida Attorney General's Office wrote, "Outside the context of the death penalty, this Court has always examined whether a sentence is grossly disproportionate under the Eighth Amendment by examining the sentence in relation to the offender's instant offense and prior offenses, not the individual characteristics of offender, such as age or mental capacity."...

The United States is one of the few countries that hand out JLWOP sentences. A 2005 Amnesty International study found that life without parole for juveniles is theoretically available in a dozen countries, but besides the U.S., only three others actually had teens serving such sentences — Israel with seven, South Africa with four and Tanzania with one.

In contrast, Sentencing Project Executive Director Mark Maurer noted in his testimony before the House subcommittee that 2,500 U.S. teenagers are incarcerated with no hope of release, most of them people of color. A majority of these — as many as 60 percent — are first-time offenders, and more than one quarter were convicted of felony murder, meaning they were participating in a crime when a murder occurred, but didn't do the actual killing.

Other recent posts on juve LWOP and the Graham and Sullivan cases:

July 7, 2009 at 06:16 PM | Permalink


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Vile, sickening, criminal lovers. Families of murder victim should form direct action groups, bring bats, and break their knees. They need to suffer for years as the relatives of murder victims are suffering.

This excellent lawyer client should have been executed at 14. We would be 5 innocent murder victims ahead.


The lawyers and judges that loosed this freak should pay.

Posted by: Supremacy Claus | Jul 7, 2009 8:46:53 PM

Thanks for your views, Doc.

Posted by: S.cotus | Jul 8, 2009 3:49:55 AM

Scotus: Check out 8.4 (b).


Posted by: Supremacy Claus | Jul 8, 2009 7:29:04 AM

Doug, I don't remember seeing it on SL&P, but fyi Texas abolished life without parole for juveniles this year legislatively. The Governor signed it. It's now a 40-year minimum for juveniles convicted of capital murder in TX. Here's the legislation.

Posted by: Gritsforbreakfast | Jul 8, 2009 7:42:02 AM

"... and more than one quarter were convicted of felony murder, meaning they were participating in a crime when a murder occurred, but didn't do the actual killing."

Huh? That doesn't mean anything of the sort. Sure, an accomplice *can* be convicted under the felony murder rule, but to say that everyone convicted under that rule is a nontriggerman is preposterous.

Following the link from the story to Mauer's testimony, yes, he really did say that, on page 2.

Posted by: Kent Scheidegger | Jul 8, 2009 12:26:16 PM

This case seems very weird. First of all (putting aside any issues of timeliness of waiver), why do these cases have to be decided now. I get that one of the guys has been incarcerated for 20 years, but is the Court really going to say that someone is eligible for parole in 20 years? That seems unlikely. Moreover, statutes change. Shouldn't a wait and see approach be taken?

Second, there's the "what is parole" issue. Parole can be a matter of grace or a matter of right, with gradations in between. Since the Eighth Amendment evinces no intent to define "parole", it hardly seems that the Court should be doing so. And if any sort of parole is ok (i.e., completely grace-based), then why doesn't the availability of executive clemency get the job done.

Finally, there's the issue of what crimes were committed and how old the offender was when the crime was committed. It's easy to see 17 year olds having no parole for murder. What about 13 year olds. And will there be a gradation for crimes? It seems perfectly reasonable to me for a state to say, if you murder someone, you simply have lost all right to walk in society.

Posted by: federalist | Jul 9, 2009 1:34:04 PM

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