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March 20, 2012

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

March 20, 2012 at 07:58 PM | Permalink


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I don't think you're going to see a creative outcome to this one. The court likes its recent Atkins-Roper-Graham line. It may feel a lot like policy more than con interp, but they – including (perhaps especially?) Kennedy – have reconciled themselves to that in this area of law. The truth is lots of their cases are, essentially, policy decisions, it's just usually those decisions happen to coincide with conservative policy outcomes and so you don't hear so much bitching and moaning as you do with this line. But the idea that they're going to invent an elegant solution to this one and import Tison or Simmons or Apprendi? Not a chance. Maybe a small dose of Lockett, but even that is unlikely. The key insight is, they like where they've been recently in this area, even though there are some problems with where they're at.

Posted by: dm | Mar 20, 2012 9:14:55 PM

"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."

A common law tradition that was directly borrowed from Catholic canon law. http://www.newadvent.org/cathen/09691b.htm

New Advent tries to distance the church from this little reality but in truth it's grounded in the fact seven is the age at which a person can receive first communion. https://en.wikipedia.org/wiki/First_Communion

I remember when the sex abuse scandals in the Church first began to break into the news cycle one Catholic bishop opined that the priests had broken no ecclesiastical law. He was quickly silenced though the statement is 100% true.

Point being I'm not sure that we as a society want to base our understanding of the age at which a child is able to form intent and thus consent on the Catholic Church via Blackstone. It might lead us to some uncomfortable places.

note: see Ericka, I can find an 'icky perv' angle even in an innocuous post about an obscure legal topic. It's amazing what you can learn when you are willing to study a little bit o' history.

Posted by: Daniel | Mar 20, 2012 9:28:04 PM

Dahlia Litwick's account of the oral arguments suggest that few of the justices were interested in exploring the murder v. felony murder distinction, perhaps for fear of opening up a can of worms in adult cases where that distinction has been rejected.

Kennedy's nascent suggestion that mandatory life without parole may be constitutionally impermissible, but that life without parole as the top end of a range of sentences which may be considered on an individualized basis does fit fuzzily with a lot of ideas: mitigation evidence in death penaty cases, the notion that juveniles should have individualized consideration of their youth at some stage of the process by a neutral (which doesn't exist in most Juvie LWOP states due to direct file rules for serious crimes), and with the practical reality that judges are probably going to use their discretion to eliminate 90% of the hardest Juvie LWOP cases if they are given discretion. No judge given a choice between a LWOP sentence and a long fixed term of years sentence would ever have imposed a Juvie LWOP sentence in Jackson, or even if one did, might have been reversed on direct appeal for abuse of the discretion that was available. Kennedy's rule would also avoid what I think many justices see in hindsight as a mistake about setting an arbitrary half-way guideline in Juvie death penalty cases.

Wisconsin recently upheld a juvie LWOP sentence in a scheme of the kind Kennedy envisions, so there is tangible evidence that the limitation wouldn't destroy juvie LWOP entirely, satisfying its supporters (as would those who want to worst case scenario to drive juvie murderers to make plea bargains).

Posted by: ohwilleke | Mar 21, 2012 10:16:17 PM

Look also at "Natural Life", a feature length documentary film challenging the inequities in the justice system by depicting stories of 6 juveniles sentenced to Life Without Parole.

Natural Life is now entering its post production phase. Dozens of hours of footage – close to fifty interviews as well as reenactment scenes in and out of prison -- have been shot, assembled and transcribed.

We have launched a Kickstarter site in order to obtain the funding for this final stage and would very much appreciate your help in spreading out the word and making this project known to the widest group of people interested and invested in restoring social justice! The hope is to have the piece be completed and be ready for distribution before the end of summer 2012.

The URL of the Kickstarter site is -

Posted by: Natural Life | Mar 22, 2012 9:44:50 AM

He tried to trust in quite a few states' having set thresholds of 15 or older for life without parole

Posted by: hr dissertation titles | Oct 17, 2012 9:22:28 AM

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