Court on the spot after Washington State killings

In the wake of the horrible massacre of four Tacoma, Wash.-area police officers, there's been a lot of talk about the fallout for former Arkansas Gov. Mike Huckabee, a Republican. While in office, Huckabee commuted the lengthy prison sentence of the main suspect, Maurice Clemmons, with the result that he got out of prison in 2000 after about 11 years. Huckabee, who might repeat his 2008 run for president in 2012, has faced criticism of his liberal use of the pardon power already; now he’ll face more.

But the case really puts the U.S. Supreme Court on the spot. Here’s why: The court is currently trying to decide whether it is unconstitutional to sentence anyone under the age of 18 to life in prison without parole for a non-homicide crime. The basic issue is whether the constitution allows states the power to conclude that some teenagers are so irredeemable and violence-prone that they may be locked up forever -- or whether youths are so inherently less culpable, and their personalities are still so malleable that it constitutes "cruel and unusual punishment" to deprive them of all hope of release.

Maurice Clemmons was never sentenced to life without parole, but he was given a total of 108 years behind bars for a string of armed robberies, burglaries and other offenses he took part in as a 17-year-old. Citing his tender age at the time of the crimes, Huckabee commuted Clemmons' sentence to 47 years, which made him eligible for immediate parole.

It's not strictly true that Huckabee's action put Clemmons directly on the path to his alleged crimes in the state of Washington. Clemmons committed another armed robbery in 2001, a year after his release, and went back to prison, but he served just three years of a ten-year sentence before being granted parole again -- amazingly, considering his record. A few days before allegedly gunning down the cops, he made $15,000 bail in Washington on a child rape charge.

Still, Huckabee's charitable intuition toward Clemmons seems stunningly misplaced in hindsight. Yet this is essentially the same intuition that lawyers for Florida inmate Terrance Graham are asking the court to follow.

Graham was sentenced to life without parole at 17 for an armed home invasion. He got the sentence partly because he had returned to crime after receiving a lenient punishment for an earlier attempted robbery. (In a companion case, another Florida inmate, sentenced to life without parole at 13 for raping a 72-year-old woman, asks the court to set the bar at age 14.)

At oral argument, Justice Samuel A. Alito asked Graham’s counsel:

You can imagine someone who is a month short of his 18th birthday, and you are saying that, no matter what this person does, commits the most horrible series of non-homicide offenses that you can imagine, a whole series of brutal rapes, assaults that renders the victim paraplegic but not dead, no matter what, the person is sentenced shows no remorse whatsoever, the worst case you can possibly imagine, cannot -- that person must at some point be made eligible for parole.

That's your argument?

To which the reply was:

Your Honor, that's correct. A life -- yes. A life with parole sentence would be constitutional, and that may mean that person you describe still spends his entire life in prison, but life with parole gives some hope to the adolescent who has an inherent capacity to change. It gives him some hope that later in time he may be released.

Clemmons' history seems instead to reinforce the intuition of Chief Justice John G. Roberts Jr., who suggested at oral argument that the constitution and the court's precedents merely require a more flexible standard: that a defendant's youth be taken into account at sentencing on a case by case basis.

As we all know, the court never considers anything except the constitution, the law and the arguments of counsel. Such matters as how the public might react if the justices were seen to take the side of a teenage career criminal, just after a former teenage criminal got back on the street and allegedly slaughtered four police officers in cold blood, do not enter into their decisions.

Still, I can’t help thinking that, after the murder of the four cops, the chances that Terrance Graham is going to win his case just got a little bit slimmer.

