It Just Takes Longer (with Update)

When a jury is deciding whether to sentence someone to death or to life without the possibility of parole (LWOP), all it's really deciding is how the person is to die. Either way, the sentence is death in prison. It's just that LWOP doesn't include a murder. And the expectation, if not always the reality, is that it takes longer.

That's a piece of what the Supreme Court will be considering Monday morning in a pair of related but not identical cases: Graham v. Florida and Sullivan v. Florida.* I've made reference to these cases and the basic issue they raise a few times now (here and here and here). This time I want to give them more direct attention, both because they are up right now and because they give me an opportunity to say some other things. (Were it not for the digressions and asides, would you read this blawg at all? Would I write it?)

Both cases emerge from this stark fact reported by Adam Liptak in Saturdays N.Y. Times.

There are just over 100 people in the world serving sentences of life without the possibility of parole for crimes they committed as juveniles in which no one was killed. All are in the United States. And 77 of them are here in Florida.

And although they differ in what may be legally significant ways (whether the differences have actual legal significance is something we won't know until the court actually rules), they raise the same fundamental question.

Does the Constitution allow an LWOP sentence for a crime in which nobody was killed when the crime was committed by a person before the age of 18?

There are three starting points when you try to offer a legal answer, depending on how you view the Constitution and the Supreme Court. There's a fourth if you just engage in the RealPolitik of the Court.

1. If you're a narrow-minded textualist who believes that things are generally permitted if they are not forbidden, you look at the words of the Constitution and notice that it doesn't say anything about either children or life without parole (or life or parole, for that matter) and wonder if there's something in the words "cruel and unusual" that applies here anyway.
2. If you're a believer in precedent, you look at what the Court said in 2005, in Roper v. Simmons (the death penalty for juveniles is unconstitutional) and wonder whether LWOP for kids is different in meaningful ways from death for kids. And you look at Kennedy v. Louisiana and wonder whether the rule about no death for non-homicides also means no LWOP.
   
3. If you believe in balancing tests, you look at the awfulness of the crimes and mutter about equivalence and rehabilitation and sentences that seem over the top.
   
4. If you're a believer in a growing, breathing, living Constitution, you look at what's going on in the states and search your heart and read the statistics and decide just how yucky you think it is to put kids away forever.
   
5. If you're a cynical outside observer engaged in RealPolitik, you try to figure out what Sonia Sotomayor and Anthony Kennedy will do.

It should be no surprise to anyone who's read this blawg for a bit that I've got a foot in most of those camps. (Don't try to count my feet. It's a metaphor.)

Textualism
Analytically, you really do have to start with the text. And it's true that the text really doesn't say anything about LWOP or kids. It allows the deprivation of both life and liberty with due process. (That's the Fifth Amendment and the Fourteenth.) And it prohibits "cruel and unusual punishments." (The Eighth Amendment, applied to the states through the Fourteenth.) But it doesn't give any actual guidance about what process is due or when a punishment is cruel or unusual or both. (Nor does it specificy whether it is prohibiting cruel punishments, unusual punishments, or only punishments that are both cruel and unusual.) Damn confusing document.

But even the most literal-minded textualists are willing to acknowledge (I think) that something doesn't have to be specifically forbidden in order to be forbidden. There's at least some Fourth Amendment limitation on wiretaps, for instance, even though there were no wires to tap when the Bill of Rights was adopted and the word doesn't appear. The thing is that we know what the most rigid textualists think about cruel and unusual punishment. Justice Thomas, joined by Justice Scalia told us in Baze v. Rees. It involves some sort of torture. (I'm omitting citations without indication.)

[T]he evidence we do have from the debates on the Constitution confirms that the Eighth Amendment was intended to disable Congress from imposing torturous punishments. It was the absence of such a restriction on Congress' power in the Constitution as drafted in Philadelphia in 1787 that led one delegate at the Massachusetts ratifying convention to complain that Congress was "nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline." Similarly, during the ratification debate in Virginia, Patrick Henry objected to the lack of a Bill of Rights, in part because there was nothing to prevent Congress from inflicting "tortures, or cruel and barbarous punishment[s]."

But the text need not be read so narrowly, need not be constrained by Patrick Henry's fears. And, anyway, who's to say that LWOP for kids isn't torturous?

Precedent
Then there's Roper. The Court said, as it routinely does, that death is different. And it said that kids are different. From that (and from looking at the states and the world and the data and their hearts), five of the Justices concluded that the death penalty for juveniles was unconstitutional. It's a starting point, perhaps. But where in the case does it start? If Roper is essentially about death, because death is different, then it's irrelevant. If Roper is essentially about kids being different, then it's relevant but doesn't really give an answer.

Are they different enough for LWOP to be prohibited? There is, of course, no proper answer to that question. It is, rather, a law school question. Lawyers and judges routinely pay verbal obeisance and declare fealty to it. We argue by analogy (A like B, therefore A; no, A is like the rejected C, therefore not A.) because that's the proper framework for what we do. Whether it has any real world application is a wholly different matter.

Balance
Balancing tests work this way. You look at the importance of something, and then you look at the problems with it. Then you decide whether it's more important or more problematic.

High courts love balancing tests because they let them do whatever they want. Lower courts like them less because they can't always pass the buck and say that the high court forced this or that decision. Lawyers can live with them in practice because they allow us to argue whatever we want though they make it tough to give clients the information they want. (Will I win?) Clients hate them in practice because they want advice and information that's exact (Will I win?), and all we can do is give probabilities or discuss arguments.

In these cases, the test goes something like this. (I was going to do this with a catchy graphic of the scales of justice, but I can't figure out how.)

Weigh this: There are horrible crimes committed by incorrigible kids. We need to protect the public by locking 'em up forever.

Against this: Everyone has some possibility of redemption and kids especially have the ability for rehabilitation. We don't need to throw away the keys.

Living Constitution
You know. It's the rule that says the Constution means whatever it means today, regardless of what it meant when adopted - or last week, for that matter. At it's most vacuous, it's bomfog (an acronym coined by reporters covering Nelson Rockerfeller who used to talk in all his speeches about the brotherhood of man and the fatherhood of god). More substantively, it's what allows consideration of all those things that are more than Horatio dreamt of in his philosophy.

What does it do here? Who's to say? Roll everything up and see what happens.

Kennedy and Sotomayor
Sometimes you just have to do the math. Scalia and Thomas dissented in both Roper and Kennedy. If they don't believe the constitution prohibits the death penalty for juveniles who kill or for people who don't kill, it's about impossible to see why they'd think it prohibits the death penalty for juveniles who don't kill. Roberts and Alito weren't on the Court when Roper was decided, but they were there to dissent in Kennedy. I don't imagine anyone doubts how they'll vote.

Breyer, Ginsburg, and Stevens, the Court's centrists (no matter what the press keeps saying, there hasn't been a true liberal on the Court since Brennan and Marshall retired), said you can't kill kids and you can't kill people who don't themselves kill. It's a fair bet, though far from a sure thing, that they'll say you can't put kids who don't kill away forever.

And then there's Kennedy and Sotomayor.

Kennedy is, of course, the justice of literary bomfog. ("At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," he said Lawrence v. Texas, roughly quoting himself.) He's the closest thing to an old-fashioned libertarian conservative on the court today, but he's not particularly close. Since Justice O'Connor resigned, it's been clear that, on close questions, the Constitution ultimately means what he thinks it means. But what he thinks is hard to pin down. He opposed the death penalty for kids and for non-killers. But LWOP? Your guess is as good as mine.

And then there's Justice Sotomayor about whom we can simply say that we don't know.

OK, that's the framework analysis. Now, what does it all mean? On the one hand, it means that the law is, and the Constitution says, whatever five of the nine justices say it does. It means that the smart money is on Anthony Kennedy to decide Sullivan and Graham. It means that they may well come out differently.

Sullivan was 13 when he was sentenced to LWOP; Graham was 19, though he was 16 at the time of the underlying crime, so age may make a difference. So may the processes by which the cases got to the court. One or the other (or both) may be found to have waived the issue by not pursuing it properly in the lower courts. And, of course, their crimes and criminal records are different. Will any of this matter? Nobody knows.

But this isn't about prediction. It's about what's right. So let me begin with the caveat.

Scalia is not wrong to denigrate approaches to constitutional interpretation that are wholly divorced from its actual words and the framers' intentions, but we should be taking them as springboards for rather than limitations on analysis. If the Constitution means whatever five of nine justices happen to think it means this week, then it means nothing. It's just a vehicle for anarchy.

On the other hand, the Constitution is broad. And while some of its terms are simple enough. (One must be 35 years old to be President.) Others are remarkably squishy. (What is due process, anyway, and how much is due?) And, of course, our world is not the world of 1787 when the Constitution was adopted, or 1791 when the Bill of Rights was. Interpretation isn't, and really can't be, as ministerial a task as Scalia and Thomas often like to say, as Chief Justice Balls 'n' Strikes maintained at his confirmation hearings, or as the wise Latina told us at hers. And thank god.

So let's look at what we're talking about. Juveniles. Kids who were under 18 at the time of their crimes. That's an arbitrary age cut-off, of course, but it's what we use for many things, and it will have to do. They were convicted of doing seriously bad things (in Graham's case doing more while on probation). Their current sentences are death in prison with no possibility of release. It's a nightmare sentence. And it is, frankly, nuts.

Put aside the horror of a life confined and wholly without hope. Ask why we must keep the death bed patient in prison. Out of fear of just what do we refuse to release the quadraplegic? What's the point behind a sentence that allows for no review ever? And then apply those questions to kids.

If you don't believe the neurological and psychological studies of children, then perhaps you can believe the anecdotal evidence.

Here's Alan Simpson, Republican, who served 16 years in the Senate after his own childhood bouts with arson, burglary, and gun violence, writing in the Washington Post.

When a young person is sent "up the river," we need to remember that all rivers can change course.

And here's former juvenile offender, and unsuccessful Detroit City Council candidate Raphael Johnson, writing in Newsweek,

I'm proof that people, especially teens, can't be judged by the worst thing they ever did.

Sister Helen Prejean likes to make that same point: None of us is as bad as the worst thing we've ever done. And ultimately nobody is without hope of redemption.

These cases don't ask about actually releasing juveniles. They ask about possibility. Not should Sullivan or Graham be released someday but should they be allowed to seek release, and should there be a mechanism for granting it if it seems like a good idea at the time.

Put the legal and constitutional arguments aside, if you will. Ask the proper question: Why the hell would we want to impose LWOP on anyone? I get that it's something other than death to help avoid executions. But on it's own terms it's cruel and pointless. And, by the way, it's likely that it makes prison administration harder.

Now we'll return to the Constitution. A punishment that makes no logical sense and has no ultimate rational purpose except cruelty for its own sake, should be prohibited as cruel and unusual and as government action without due process. There's really never a constitutional justification for LWOP.

It's death in prison. Death penalty light.

The kids should win.

Alas, that's a goal, not a prediction.

UPDATE

Doug Berman predicts that however these cases come out, neither will be decided on a 5-4 vote.

---------
*The Court will round out its morning with a case involving patent law, Bilski v. Kappos, about which I have absolutely nothing to say.