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September 9, 2011

Does Graham create constitutional problems for juve LWOP for murder accomplice?

The question in the title of this post is the one now facing the Arkansas Supreme Court, as detailed in this local article headlined "Teen’s life sentence unconstitutional, lawyer argues."   Here is how the piece begins:

A lawyer for an Arkansas teenager serving a life sentence for capital murder argued today before the Arkansas Supreme Court that the sentence was unconstitutional because his client was only 16 at the time of the crime and did not fire the fatal shot.  A lawyer for the state told the justices the sentence is consistent with federal and state case law.

The high court heard oral arguments but did not immediately issue a ruling in an appeal by Lemuel Session Whiteside, 19, who was convicted of capital murder and aggravated robbery and sentenced to life in prison without possibility of parole in the January 2009 shooting death of James London Sr., 30, in Little Rock.

Authorities never accused Whiteside of shooting London.  Cambrin Sain Barnes admitted to being the gunman and pleaded guilty to first-degree murder and aggravated robbery in exchange for a 40-year sentence.  But prosecutors said Whiteside — who declined to plead guilty — gave the murder weapon to Barnes and told him where to find London.

Tom Sullivan, attorney for Whiteside, told the justices today that in the case Graham v. Florida, the U.S. Supreme Court said a sentence of life without parole is too severe for a juvenile for any offense other than homicide.  Such a sentence violates the Eighth Amendment protection against cruel and unusual punishment, the court said in that decision.

Sullivan said that as he interprets the decision, Whiteside should not have been sentenced to life without parole because he did not kill London. “In this case the defendant is not the shooter, and there has been no proof of an intent to kill,” he said.

Justice Robert Brown asked Sullivan if he was asking the justices to expand the Graham v. Florida decision.  Sullivan said he was only asking them to interpret how the decision should apply to a defendant who is convicted of murder but did not kill anyone.  The decision “leaves open this middle ground,” Sullivan said. 

September 9, 2011 at 07:48 AM | Permalink


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Does Graham impose a "triggerman" rule? The idea is preposterous. Of course, never underestimate the ability of some liberal, criminal-coddling judge to swallow such nonsense. Murder is murder.

Posted by: federalist | Sep 9, 2011 8:08:01 AM

You mean libertarian judge, as in one in favor of liberty.

Posted by: speaking just for me.... | Sep 9, 2011 8:31:56 AM

In a word: no. Graham clearly made an exception for juveniles convicted of murder. Felony murder is still murder and as long as it is they will continue serving their life sentences.

Posted by: MikeinCT | Sep 9, 2011 11:05:40 AM

speaking just for me --

Personally, I'm opposed to liberty for a person of sound mind who furnishes the murder weapon to a buddy knowing or having reason to know how it's going to be used. Nor are the Arkansas courts about to restore your pal to "liberty." The only question is whether he'll be in the slammer for life or just for a really, really long time.

Posted by: Bill Otis | Sep 9, 2011 11:08:57 AM

How about attempted murder? How about vol. manslaughter? Graham says (in dicta) that "homicide" might be different and the 8th Amendment may allow for LWOP for juveniles -- but that does leave a lot open. If we focus on "culpability," as Graham instructs us to do, then Whiteside's argument makes a lot of sense. After all, the Court doesn't allow all those guilty of felony murder to be eligible for the death penalty if they are adults -- only those felony murderers who acted with reckless disregard of a high probability of death. So, juveniles who are not the worst of the worst shouldn't get the worst sentence, either.

Lots of felony murder cases involve offenders who are guilty of intending to steal but not to kill. It's not clear to me that kids in this situation, who we know don't consider consequences in the way that adults do, should be given the same LWOP sentences as cold-blooded juvenile torture-murderers. Graham merely requires a second look at some of these cases after the kids have grown up -- think of the juveniles in the film Sleepers. They intended to steal some hotdogs, not kill anyone. They were stupid, but didn't act with "reckless disregard of a high probability that they would cause a death."

The Court isn't giving anyone a get out of jail free card, it's just saying that we may not be omniscient about whether kids are "evil" when we first sentence them to LWOP. Maybe we should take another look when they get to be my age... Or are you all the same as you were when you were 13?

Posted by: Linda Meyer | Sep 10, 2011 12:39:21 PM

I seriously question the premise that Graham instructs us to focus on culpability given that the demarcation of the unavailability of LWOP is not the mental state of the offender but rather the consequence of the action. No matter how depraved, no matter how intentional, no matter how many intended victims, and no matter what injury is inflicted so long as no one dies then Graham does not permit LWOP. Often the result of death or not is more of function of chance as opposed to any lack of desire on behalf of the defendant.

Posted by: David | Sep 10, 2011 7:55:34 PM

David, your comment encapsulates the utter bankruptcy of Graham.

Posted by: federalist | Sep 11, 2011 9:30:19 PM

Linda Meyer has a good comment.

As to David, yes, death is different. And, yes, "chance" sometimes is the deciding factor. A person might be executed, with or without Supreme Court jurisprudence, based on if a person died. It might just be chance that the person died -- the angle of the bullet or whatever. Such is how things work.

Posted by: Joe | Sep 12, 2011 10:54:36 AM

the sentence was unconstitutional because his client was only 16 at the time of the crime and did not fire the fatal shot.

Posted by: luxury apartments london | Nov 13, 2012 7:03:32 AM

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