WASHINGTON (CN) - In arguments expected to have a far-reaching effect on sentencing, lawyers argued before the Supreme Court on Monday whether judges can hand down life sentences without parole to juveniles who, like the 13-year-old who raped a 72-year-old woman, did not commit murder.
The Court heard two related cases as it tackled the parole question, one where 13-year-old Joe Sullivan was convicted of beating and raping a 72-year-old woman in 1989, and the other where 17-year-old Terrance Jamar Graham was convicted in 2004 of a home robbery while on probation for a previous armed burglary. Both Florida boys were handed a life sentence without parole.
Solicitor General Scott Makar, who represented Florida in both cases, agreed that age should be taken into consideration during sentencing but maintained that there is no constitutional requirement for parole. He said that if his opponents were to win the case, Florida -- where courts stopped granting parole hearings in 1983 -- would have to make a special parole system for this serious group of offenders. He also asked that the rape case be dismissed on procedural grounds.
In representing the older Graham, Bryan Gowdy from Mills Creed & Gowdy said that adolescents should be granted parole, arguing that they have the capacity to change and that they are less culpable than adults. He suggested that the age of responsibility be 18-years-old, one year older than his client at the time of the crime.
Gowdy also played on emotions. "That's what makes the sentence so particularly cruel, he said "to give up on a kid at that point in his life."
In representing the younger Sullivan, Executive Director Bryan Stevenson of the Equal Justice Initiative in Montgomery, Alabama, argued that the sentence was cruel and unusual. He said that even adult rapists only get a median of ten years in prison, and called on the justices to banish life without parole for anyone younger than 14, which would put his client, who was 13 at the time, under the exemption.
Only one other person is serving a life sentence without parole for a crime committed when they were 13-years-old, Stevenson said, adding that the other offender is also in Florida.
"When a sentence is imposed rarely, it becomes unconstitutional?" Justice Antonin Scalia asked sarcastically.
But Justice Sonia Sotomayor seemed to view Stevenson's argument from a different perspective. "Explain to me why someone who commits a rape is getting 10 years and this most heinous crime for a 13-year-old justifies life without parole," Sotomayor said to Makar.
Makar replied that the sentence relies on many factors.
Some justices appeared skeptical of establishing a clear age for when parole would be mandatory, as the men's lawyers had suggested.
"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 brutal rapes, assaults that renders the victim paraplegic but not dead, Justice Samuel Alito said, "that person must at some point be made eligible for parole?"
Scalia said that the argument to treat juveniles differently from adults ignores the importance of retribution, suggesting that the crime's severity should drive the sentencing. "I don't know why that value of retribution diminishes to the point of zero when it's a person who's, you know, 17 years, 9 months old," he said.
"What's the difference between a month before he's 18 and a month after?" Sotomayor asked of Gowdy.
He replied that a line has to be drawn somewhere, and cited the Court's 2005 decision in Roper v. Simmons to exempt those under the age of 18 from the death penalty.
"A line has to be drawn somewhere only if we accept your approach that there has to be a categorical exemption," Scalia replied. "A line does not have to be drawn somewhere if you adopt the approach of case by case."
In comparing the effect of the sentence on adults and juveniles, Scalia said, "I don't see why it's any crueler to an adolescent".
"You said age certainly matters," Chief Justice John Roberts said to Makar. "Under the authority of what law?" he asked.
Makar, who appeared caught in judicial crossfire, pointed instead to the country's traditions, but he said there is no legal age limitation for a life without parole sentence.
"So a 5-year-old could be put away for life?" Sotomayor asked.
Sotomayor noted that a life sentence without parole is the most serious sentence adults can get so long as they don't commit murder. "Why should that same sentence be given to a juvenile who we have recognized as being less capable than an adult?" she asked.
Justice Ruth Bader Ginsburg also appeared concerned. "How do you answer the argument that unlike an adult, because of the immaturity, you can't really judge a teenager at the point of sentencing?" Ginsburg said.
She noted that state governments already draw a line by restricting dirking, driving, and marriage rights for adolescents, suggesting that the treatment of adolescents as adults in regards to penalties is off.
Many are questioning why the Court took both juvenile cases instead of just one. In a case analysis distributed by the Supreme Court, Vanderbilt Law School Professor David Hudson suggested that the Court might use the two cases to establish an age difference, or because the Sullivan case presents procedural problems that the Court might want to address separately.
After the court ruled in 2005 in Roper that those under the age of 18 are exempt from the death penalty, Sullivan, now in his early 30s, contended that the decision established a new constitutional right giving the courts the power to review his post-conviction challenge.
Makar argued that the Roper ruling only applied to the death penalty, so Sullivan would not have the right to have his sentence reviewed. Florida has a two-year limit on filing post-conviction motions.
It seems there is a race between the congressional and judicial branches to address the issue of parole. Virginia Democrat Bobby Scott has introduced legislation that would require that juveniles sentenced to life get a parole hearing after serving 15 years in prison.
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