Intriguing early report on SCOTUS arguments in today's JLWOP cases

Lyle Denniston in this lengthy post at SCOTUSblog has an interesting and thoughtful report on the oral arguments this morning in the Supreme Court in in Jackson v. Hobbs and Miller v. Alabama, the two cases concerning the constitutionality of sentencing a 14-year-old killer to life without parole.  Here are excerpts of his report:

Moving further along the constitutional line between adults and children in the criminal courts, the Supreme Court on Tuesday turned to life-without-parole sentences for youths who commit murder, and appeared to be reaching for a compromise. If the indications from a one-hour hearing hold, the Court might allow such sentences to be imposed on youths, but not as a mandatory matter for younger teenagers. And it could choose to forbid that penalty at all for some, but where that line might be drawn was far from clear – although it might wind up at 12 or younger.  In more than 90 minutes of argument in two cases, there was no sign that a majority would come together on a flat ban for such a sentence for anyone under age 18 — the preferred outcome sought by two youths’ lawyer....

In the cases of Miller v. Alabama (10-9646) and Jackson v. Hobbs (10-9647), most of the Justices appeared to share the sentiment expressed early by Justice Anthony M. Kennedy that the Court did not want to be forced to choose between two opposite choices: no life-without-parole sentences for any minor, or no limit on the sentence for anyone no matter how young. And there also seemed to be considerable support for Kennedy’s apparent willingness to focus mainly on the question of whether such a sentence should be mandatory and, if so, whether that should be keyed to a specific age. Kennedy’s views may be crucial, since he has been the author of the Court’s key rulings on youths’ sentencing....

Once it is accepted that “death is different,” Scalia commented, there is no basis for having a different age category in determining punishment for one who kills. That, essentially, was the argument made in the two cases by lawyers for the states: if a youth commits the “worst of crimes,” they should be a legally responsible as anyone who does so, the states’ counsel contended....

John C. Nieman, Jr., the state of Alabama’s solicitor general, argued that the fact that there are 39 states that would allow such a sentence for a specific crime without regard to the offender’s age is proof of a “national consensus” that such punishment is not constitutionally excessive. His main difficulty — and it was the same for Kent G. Holt, an assistant state attorney general for Arkansas, in the second case — came from the fact that many of the states in that group make such a sentence mandatory. Justice Stephen G. Breyer led the verbal assault on that proposition, wondering what justification a state could have for not allowing a young offender to make any argument to “mitigate” what Breyer called “this terrible penalty.” Justice Kennedy later wondered the same thing. Kennedy also wondered if there were data that would indicate what proportion of youthful offenders given long sentences are able to be rehabilitated, implying that he might be sympathetic to some option for a youth ultimately to gain release.

Justice Elena Kagan, noting that the Court has insisted upon a focus on the individual offender when a judge is considering a death sentence, wondered why the same approach should not apply to juveniles faced with a life-without-parole sentence. Neiman countered that the Court had made it clear that this was required only in the context of the death penalty, and that states are entitled to have mandatory term-of-years sentences. Justice Breyer suggested that one option might be to require that the individualizing of sentences should be required for any youth who committed murder while under age 18....

When the Court turned to the second case, it found itself examining whether it should make a difference, in a juvenile’s murder case, whether the individual facing a life-without-parole sentence had actually killed someone, or intended that a crime go forward knowing that someone might be killed. Justice Sotomayor, in fact, stepped in before Stevenson even began that argument to ask him how the Court would write an opinion that drew a line against a life-without-parole sentence for a youth who had a role in a murder case but was not the actual killer, and did not intend that there be a murder....

Several of the Justices seemed inclined to regard more sympathetically a youth facing a mandatory sentence, especially one who did not actually kill the victim. But the argument quickly turned back to the Court’s exploration of where a dividing line should be drawn in any juvenile murder case.

Arkansas’s attorney, Holt, urged the Court to keep the focus on the crime that has been committed, not on the offender. Murder, he said, is “the worst of all crimes,” and the law seeks to punish its commission with the heaviest of sentences to show society’s intolerance of taking a human life. "That is the line that society draws,” he argued.  Now that the Supreme Court has barred the death penalty for minors who commit murder, Holt said, any youth who is sentenced to life-without-parole is deserving of that sentence. Life-without-parole, he said, is a “lesser sentence,” so a youth who commits murder should not be allowed to seek “a lesser lesser sentence.”...

In a moment, Justice Ginsburg said that sending a 14-year-old prison to prison under a sentence that means he will die in prison meant that this “essentially makes a 14-year-old a throwaway person.” Holt objected to that characterization, saying that the state wanted him to be put in a position “to realize the enormity of his crime.” And, when Justice Sotomayor wondered what hope such a youth has, the state’s lawyer said that he could apply to have his sentence commuted, despite the fact that he had been sentenced to life-without-parole.

UPDATE:  The SCOTUS oral argument transcripts from Miller v. Alabama is available at this link and from Jackson v. Hobbs is available at this link.