Miller and Jackson: The Court Struggles to Frame the Issue

On reading the transcripts in the two juve LWOP cases that the Supreme Court heard today, Miller and Jackson, I'm struck by how confused the Justices are about how to frame the issues. The advocates certainly didn't seem to give the Court the help it was looking for.

Arguing for petitioners, Bryan Stevenson proposed a rule that seemed a bald policy proposal rather than one rooted in any legal authority: a flat ban on life without parole for defendants who were under 15 at the time of the crime, and a ban on automatic or mandatory life without parole for those between the ages of 15 and 18. He tried to rely on several states' having set thresholds of 15 or older for life without parole but had a hard time establishing a benchmark or national consensus, given that 39 states authorize life without parole for at least some juveniles for at least some crimes.

The Court seemed to have no clearer ideas about how to frame the issue. Justice Scalia repeatedly referred to the jury as a safeguard in authorizing the penalty, even though, as Justice Kennedy pointed out, juries cannot be told of the penalty, so the idea that they are authorizing the penalty is a fiction. If anything, Justice Scalia's passion for jury checks upon the government (in the Apprendi line of cases) ought to cut the other way here, where prosecutors' charging decisions trigger mandatory sentences while leaving juries in the dark.

In keeping with his formalism, Justice Scalia (as well as Justice Alito) made some fair points about the dangers of slippery slopes and distinguishing sentences of life from 60 years, 50 years, et cetera. I was surprised that neither he nor anyone else reached back to the common law's benchmarks for youths, in which those under 7 are conclusively incapable of crimes and those under 14 are rebuttably presumed incapable, according to Blackstone. That might roughly track the line Stevenson was trying to draw, except that it would erect only a presumption rather than a flat ban.

Justice Kennedy complained about the false dichotomy proposed by petitioners: that mandatory life without parole was either categorically forbidden or categorically permissible. That framing is in part attributable to Justice Kennedy's prior ruling in Graham, which rejected the Chief Justice's case-by-case approach to categorically forbid life without parole for juveniles who do not kill. I don't see the Court repudiating Graham, but neither do I think the Court will simply extend those precedents.

Justice Sotomayor, interestingly, kept emphasizing the Enmund / Tison line of capital cases limiting which minor actors in a murder can receive the death penalty. The signal seems to be that all the death penalty doctrines, which were previously cabined by the death-is-different line, are now fair game for argument in this area.

In that vein, it struck me that no one did nearly enough with the Woodson / Lockett / Eddings line of death-penalty cases, which require that the trier of fact have some discretion to mitigate penalties based on the particulars of individual cases. From the tenor of the argument, it seemed that many Justices were looking for a safety valve, a way to allow individualization for the least bad juvenile accomplices rather than for a flat ban. Some of the Justices' comments indicated that they recognized that Miller's crime was more heinous than Jackson's and might be looking for ways to differentiate the two.

If the Justices wanted to regulate such decisions, there are subtler ways to do so than extending Graham's ban. They could require that juries be informed of the penalty and affirmatively authorize the sentence, by extending either Simmons v. South Carolina or Apprendi to inform juries and require them to affirmatively authorize the penalty. That could harken back to the colonial tradition (discussed in my last post) of allowing juries flexibility to show mercy. Or the Court could forbid using life without parole as a plea-bargaining chip, so that juvenile defendants don't wind up with the longest sentence simply because they are reckless in choosing to go to trial.

As with Florence v. Burlington County earlier this term, the Court granted certiorari to address what seemed an excess of the criminal justice system, only to discover that trying to fix the problem would entangle the Court in a thicket of arbitrary line-drawing. Perhaps the difficulty of the exercise will scare them off, or perhaps they will embrace Justice Sotomayor's suggestion that the category of life without parole be whittled down further to those who personally kill, intend to kill, or attempt to kill and are not simply lookouts or getaway drivers. Predictions here are too hazardous--the actual outcome is anyone's guess.

Stephanos Bibas