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November 9, 2009

Chief Justice apparently taking command in the Graham and Sullivan juve LWOP cases

This early report from SCOTUSblog, which is titled "Analysis: The Chief leads on juvenile sentences?," concerning on this morning's arguments in the big juve LWOP cases argued this morning heightens my expectation and hope that we could get some interestingly different line-ups in the decisions in these cases.  Here is the start of Lyle Denniston's analysis:

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).

Interesting.....!  And more commentary on this front to follow when I get a chance to consume the transcripts in these cases late tonight.

A few older CJ Roberts-related posts and some newer posts on the Graham and Sullivan cases:

November 9, 2009 at 02:46 PM | Permalink


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Bullshit. Anything the CJ comes up with will be some handwaving that blocks federal courts (ahem the 9th) from interfering and lets state courts make all the decisions (similar to how constitutional claims were handled pre-Warren court).

No way in hell will Mr Umpire sign off on a concrete rule that has teeth.

Posted by: . | Nov 9, 2009 2:55:31 PM

I don't really understand how a categorical approach and a proportional approach are opposite of one another. Any test of proportionality must be a delineation of some category. 0/0 is not a proportion. Proportions have limits somewhere. So you don't escape the arbitrariness of line drawing with proportionality review, you merely cloak it.

I guess that's the object but it seems blatantly disingenuous of the CJ.

Posted by: Daniel | Nov 9, 2009 5:31:15 PM

Given how proportionality review has worked with other sentences I am going to be very surprised if a strong form of review is established. And as brought up (by Alito?) at the end of Graham this does in fact threaten to undo the death is different line. I also didn't see Kennedy being especially favorable towards these offenders.

Unless some very weak proportionality review is endorsed I am going to be very surprised if these come out wider than 5-4. I also find the several times repeated point that at least 30 (and possibly 38 or 39) states allow such sentences as Graham but that they are rare telling.

I am glad to see I was wrong earlier and that it is Sullivan with the procedural problems.

Posted by: Soronel Haetir | Nov 9, 2009 8:28:03 PM

Bright lines reduce disputes and decrease lawyer income. The CJ wants fuzzy, debatable criteria, without real definition, so as to generate endless litigation for the rent seeking aims of the CCE.

Rent seeking trumps all ideologies, all personal values, and all loyalties.

Posted by: Supremacy Claus | Nov 9, 2009 9:05:24 PM

the problem with many of these sentences is outlier judges -- i.e., the hanging judge in the jurisdiction who gives LWOP to a kid for an armed burglary when neither probation nor the prosecutor requests it and other similar cases get much shorter sentences. Such a judge will not be affected by having to check a box that says "I consider youth before imposing LWOP." Intentionally or not, CJ is selling a weak tea that will help few or no defendants.

Posted by: anon | Nov 9, 2009 10:12:33 PM

I would also be interested in the co-defendant who got LWOP based on a homicide. If Graham was somehow implicated in that I could see it making a difference to the judge.

I do think Graham's lawyer did a poor job in trying to minimize the recidivist nature of the sentencing consideration. When you try to downplay that sort of thing it may tend to turn the already skeptical against you.

Posted by: Soronel Haetir | Nov 9, 2009 11:08:25 PM

Life without parole, is comparable to a death sentence. To say to any child below 18th that you are only fit to die in prison is cruel. It is not right. It should be seen case-by-case review. Do not generalized it.

Posted by: united states bankruptcy court | Nov 10, 2009 1:36:22 AM

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