Left, The Associated Press/Graham Family; right, Glenn Paul/Equal Justice Initiative



Updated, Nov. 9, 5:15 p.m. | Round 3: Kent Scheidegger and Marc Mauer on what the Supreme Court justices asked and what that might reveal.

Is life without parole cruel and unusual punishment for juvenile offenders convicted of non-homicide crimes?

Marc Mauer of the Sentencing Project and Kent Scheidegger of the Criminal Justice Legal Foundation are debating this question today on Room for Debate.

On Monday, the Supreme Court heard arguments on the cases of Terrance Graham and Joe Sullivan, two prisoners in Florida who were sentenced to life without possibility of parole for crimes they committed as minors. In 2005, the court ruled that the Eighth Amendment’s ban on “cruel and unusual punishment” prohibited the execution of juvenile offenders. Does sentencing a teenager to die in prison for crimes in which no one was killed also violate the Eighth Amendment?

Go here to read Round 1 of the debate.

Go here to read Round 2, where Mr. Scheidegger and Mr. Mauer respond to each other’s positions.

Go here to read Round 3 for their take on what happened at the Supreme Court argument.

Round 1

Proportionate Justice

Marc Mauer is the executive director of the Sentencing Project and the author of “Race to Incarcerate.” The Sentencing Project submitted an amicus brief supporting the petitioners, Terrance Graham and Joe Sullivan.

There are more than 1,700 people in the United States serving sentences of life without parole for crimes committed as juveniles. No other nation has even a single person serving such a sentence. Now the Supreme Court will consider an extreme outcome of this policy, two cases of juveniles serving no-parole life terms for non-homicide offenses.

Children do not have fully matured levels of judgment or impulse control, and they are uniquely capable of change.

There is no question that the two juveniles, Joe Sullivan and Terrance Graham, were convicted of very serious offenses. So why is it problematic to incarcerate them for life?

First, children are different than adults. As the Supreme Court noted in its 2005 decision in Roper v. Simmons banning the death penalty for juveniles, children do not have fully matured levels of judgment or impulse control, and are more susceptible to peer pressure than adults. Brain imaging research documents that adolescent brains are not fully developed, particularly in areas that control reasoning and risk taking. It is for these reasons that all states already impose age restrictions on voting, driving and consuming alcohol.

Read more… Children are also uniquely capable of change. No matter how serious a crime committed by a 13-year-old, there is no means of predicting what type of adult he or she will become in 10 or 20 years. That’s why we need professional parole boards to consider whether and at what point they are capable of returning to society. The diminished capacity of young offenders renders life-without-parole sentences “cruel and unusual punishment” banned by the Eighth Amendment. As the Supreme Court noted in the Roper decision, there is a “basic precept of justice that punishment for crime should be graduated and proportioned to the offense.” The two Florida cases fail on this principle because they involve non-homicide offenses and because of the way the sentences were imposed. Many of the juveniles serving life without parole sentences are doing so as a result of the harsh penalties adopted by many states in the 1990s that automatically transfer certain juvenile cases to adult court. Upon conviction in adult court, they are often sentenced to mandatory life terms. Thus, at no point is there an opportunity to permit consideration of the individual circumstances of the child and the potential for rehabilitation. The impact of these policies can be seen in the Sullivan and Graham cases, both sentenced in Florida courts. Of the 109 juveniles nationally who have been identified as serving life without parole terms for a non-homicide, 77 are in Florida alone. It is difficult to imagine that young people in Florida are so much more violent or beyond redemption than children in any other state, but it’s not difficult to determine that sentencing policies in that state have produced these results. Joe Sullivan was convicted of sexual battery at the age of 13. He is now 33 and confined to a wheelchair as a result of multiple sclerosis. It would seem reasonable for the court to allow for a consideration of whether he and Terrance Graham still present a threat to public safety.

Society’s Proper Defense

Kent Scheidegger is the legal director of the Criminal Justice Legal Foundation. He wrote an amicus brief supporting the State of Florida in the Graham and Sullivan cases.

One month before his 18th birthday, Terrance Graham committed a string of home invasion robberies. In one invasion, he stuck a gun in the resident’s stomach and ordered his cohorts to ransack the house.

The question for the sentencing judge was not whether to give Graham a second chance. He had already received a second chance. The previous year a judge had let him off easy for another violent robbery.

Judges should be allowed to impose a life sentence on the very worst juvenile offenders.

Graham got only 12 months in jail plus probation for that crime. Almost as soon as he was released, he chose to spit in the face of society’s mercy and take up robbery once again. In light of Graham’s choice of the criminal path despite all efforts to help him choose better, the judge decided a life sentence was needed for protection of the innocent.

The second case before the Supreme Court involves a sentence imposed 20 years ago when Joe Sullivan was 13. A life sentence is rare at that age, but Sullivan was a rare 13-year-old. He broke into the home of an elderly woman and committed a savage rape, a crime so vicious it is hard to imagine anyone doing it, much less a 13-year-old.

Read more… Sullivan had already racked up an astonishing record for one so young — 17 crimes including several serious felonies. As with Graham, the judge made an individualized determination that Sullivan had spurned the second and third chances he had been given and a life sentence was now necessary. No one disputes that most juvenile offenders should be treated differently from adults. The question is whether judges will be able to impose a life sentence on persons individually determined to be far worse than the typical teen miscreant. More fundamentally, the question is who should decide what range of punishments are available for the very worst. Should that decision rest with the people, through the normal democratic process, as it always has? Or should the Supreme Court read this limitation into the Eighth Amendment’s ban on “cruel and unusual punishment,” which has never contained such a limit before? If it does, the people will be unable to change that decision except by the drastic measure of amending the Constitution. Supporters of a constitutional cutoff at the 18th birthday cite research showing that juveniles are in general less mature than adults and that the brain continues to change into early adulthood. That is true, but it does not support the conclusion. General trends of maturation do not support the notion that everyone a day short of 18 is less mature and less responsible for his acts than everyone a day older. Individuals mature at different rates. Psychological studies cited by Graham and Sullivan’s supporters show that many delinquent teenagers will desist and be law-abiding adults. Yet the same studies show that there is a hard core of life-course persistent offenders that is unlikely to desist. This group typically begins offending earlier, commits more violent offenses and remains violent into adulthood. Our society can and should defend itself against them. As our knowledge continues to grow, we should be able to change our policies accordingly. This question of sentencing policy should not be cast in constitutional concrete. It should be left to the legislatures of the states, where it belongs.

Round 2

No Magic to an Age Limit

Kent Scheidegger responds to Marc Mauer:

I agree with Marc Mauer that no juvenile should be sentenced to life without parole as a result of a “mandatory minimum” sentencing statute, without an individual evaluation. But that has nothing to do with the Graham and Sullivan cases. In each of these cases, a judge evaluated the crime, the defendant’s criminal record, and the failed prior efforts at rehabilitation before deciding that we could take no more chances on a young criminal who had already received two or more.

While denouncing mandatory minimum statutes that impose a sentence based on a single, rigid criterion, Mr. Mauer demands a “mandatory maximum” rule that forbids a sentence based on a single, rigid criterion. That approach is just as wrong, for the same reason. Culpability and potential for rehabilitation cannot be reduced to the single variable of chronological age.

Read more… Our society uses rigid age cutoffs for voting, driving, etc., as a matter of convenience and economy, not because we really believe there is anything magic about a particular birthday. We accept the inaccuracy of using age as a measure of maturity because the consequences are not severe, and individual evaluations for the entire population would be impractical. For juveniles who commit major crimes of violence such as rape, armed robbery and murder, the consequences of getting it wrong are severe, and there are vastly fewer cases. We can and should evaluate each case on the merits. In a very few cases, the right answer is life in prison.

Who Can Predict a 13-Year-Old’s Future?

Marc Mauer responds to Kent Scheidegger:

In advocating to uphold juvenile life-without-parole-sentences even for non-homicides, Kent Scheidegger misses the mark on both public safety and the law.

Mr. Scheidegger contends that there is a hard core of young offenders who will never change their criminal behavior. Yes, a relative handful of youths will persist in such behaviors well into adulthood, but we know this only retrospectively. There is no scientific method that gives us the ability to predict which 13-year-olds will become high-rate offenders over the rest of their lives.

This is precisely the reason why life-without-parole sentences are both cruel and unwise. No one suggests that youths who commit serious crimes should be released from prison unconditionally if parole is an option. The question before the Supreme Court is whether a parole review should be conducted at some point to distinguish between those youths who have demonstrated maturity and reform and those who still present a risk to public safety.

Read more… Current policy is also counterproductive for public safety. At an annual cost of $25,000 for each individual in prison, and three times that for elderly prisoners, money that could be invested in proven prevention programs for young people is instead being spent on excessively long periods of incarceration. Mr. Scheidegger asks why courts should have the power to ban state legislative policy as “cruel and unusual punishment.” It’s for precisely the same reason that the Supreme Court has struck down such state policies as racial segregation and the juvenile death penalty — because these policies violate our Constitution. So, too, does the policy of juvenile life without parole for non-homicide offenses.

Round 3

Age as a Major Factor

Kent Scheidegger on how the court might find a middle ground:

Predicting Supreme Court decisions from the oral argument is always dicey. However, it appears from the argument in the Graham v. Florida case that the justices are searching for some kind of middle ground.

There appears to be little or no support on the high bench for the categorical 18th-birthday cutoff that the defendants are seeking. That is, no justice indicated support for an ironclad rule that no juvenile could ever be sentenced to life-without-parole for a non-homicide, and several justices seemed openly hostile to this proposition.

Read more… Instead, the justices seemed to be concerned that the youth of the defendant be given its proper weight when the sentencing judge makes his decision. Few people would disagree with that proposition in the abstract. I certainly do not. Forming that principle into a constitutional rule that can be enforced by the federal courts is not easy, though. In capital cases, the Supreme Court’s 33-year experiment with micromanaging sentencing procedure has produced great delays, enormous expense, and results no one is happy with. The Court is keenly aware of that and will not want to go down the same road again. This case may end with a simple statement that the Eighth Amendment proportionality principle already in place for non-capital cases requires explicit consideration of the defendant’s youth as a major factor along with the nature of the crime and the prior offenses. That would be an anticlimactic end to a case that has produced much heated debate, but it may be the best solution available. In the companion case of Sullivan v. Florida, there is a good chance the Supreme Court will decide it does not have jurisdiction to reopen this 20-year-old case. The lawyer for Sullivan was immediately peppered from all sides with questions on that point, and it was page 14 of the transcript of the argumentbefore he got to say anything about the underlying question of the sentence.

Complicated Outcomes

Marc Mauer on what Justice Kennedy’s questions might reveal:

Predicting how the Supreme Court will rule on a case is a risky business, and I’m not a gambler. The juvenile life-without-parole cases are in some respects more complicated than the Roper case, in which the court struck down the death penalty for juveniles. In that case, the court would either find the practice unconstitutional or not. In Graham and Sullivan, though, several outcomes are possible.

The petitioners in these cases, of course, contend that life-without-parole for a non-homicide should be found to be cruel and unusual in all cases, and that is one possible ruling the court might come to. But the court could also find various middle ground positions. One would be to establish an age limit below 18 -– say, 15 years — under which these sentences would not be permissible.