This column originally appeared on Townhall.com on November 10, 2009.
On Nov. 9, the U.S. Supreme Court heard arguments in two cases on whether it violates the Eighth Amendment for a minor (under age 18) to be sentenced to life in prison without parole where there’s no homicide involved. The answer to that question should be “no,” but it’s not clear which way the Court will go.
The High Court considered two cases from Florida with this issue. The first, Graham v. Florida, involved a 16 year-old convict who then robbed someone at gunpoint in her home in 2003. After being caught, he admitted to additional violent felonies as well, all within a few weeks of completing his sentence for previous felonies of armed burglary and assault.
The second was Sullivan v. Florida. In 1989 the defendant Joe Sullivan (then age 13) robbed a 72 year-old woman with a couple older accomplices. Later that day, Sullivan returned to beat and rape this elderly woman.
Both were sentenced to life in prison without the possibility of parole. They claim that their punishment is unconstitutional.
They make their claim under the Eighth Amendment of the Constitution. This provision of the Bill of Rights forbids “cruel and unusual punishment.” Historically, the Eighth Amendment outlawed punishments that were barbaric, such as torture or maiming, but during its more liberal years in the 1960s and 70s the Court held that punishments must also be “proportional” to the crime.
The two current cases are the predictable result of the 2005 decision Roper v. Simmons. In Roper, a 5-4 divided Court held that applying the death penalty is unconstitutional if the perpetrator was under 18 when he committed the crime. That case involved a home robbery where the woman victim saw the 17 year-old robber’s face. Realizing he had been seen, he kidnapped the woman, bound her with duct tape, and threw her off a bridge to drown in a river. A Missouri court sentenced the murderer to death, but the Supreme Court struck down that penalty.
The most troubling aspect of Roper, however, was its reliance on foreign law to interpret the meaning of the U.S. Constitution. It cited the U.N. Convention on the Rights of the Child, a treaty that the United States has never ratified. Citing that treaty and the laws in other nations, the Court (in an opinion by Justice Anthony Kennedy) reasoned that these foreign sources helped define what is “cruel and unusual” means in our Constitution.
Some are pushing for the Court to consider foreign law again in deciding the current cases.
The second of these Nov. 9 cases, Sullivan, may not be decided on the merits. There is a strong argument that under Florida law the time for making this claim ran out years ago. If so, then there’s no jurisdiction to hear the case, and it could just be dismissed.
But there’s no such obstacle in the Graham case, so the Court is going to have to decide the question of whether the sentence is unconstitutional.
Graham’s argument is summed up in his lawyer’s opening statement, that sentencing life without parole is essentially a death sentence and, “cruelly ignores the inherent qualities of youth and the differences between adolescents and adults.”
Pressed by the justices, Graham’s lawyer admitted that various other sentences, such as consecutive sentences exceeding 150 years, are the equivalent to a life sentence, and that these too would be unconstitutional. Noting the problem with that answer, Justice Antonin Scalia asked, “Where do you draw the line?” He asked, can you sentence someone to one year less than their life expectancy? Or perhaps two years less?
As argument progressed, it looked as though Chief Justice John Robert’s approach may prevail. Roberts pointed out that age is already a major factor that trial courts and juries consider in sentencing. This Florida law doesn’t require life without parole, and only allows it in extreme circumstances. Seeing that this sentence is very rarely imposed on minors, Roberts concluded that juries are already taking age into account, and can be left to continue doing so to decide whether a person of a certain age should have such a severe punishment.
The reality is, though, that there’s likely only one vote in play here, that of Justice Kennedy. Not only was Kennedy the fifth vote to strike down the death penalty in Roper, he was also part of a 6-3 vote to strike it down for mentally-handicapped criminals in Atkins v. Virginia (2002) and the fifth vote last year to strike down the death penalty for child rapists in Kennedy v. Louisiana in 2008.
But those were all death penalty cases. As everyone acknowledged during the Nov. 9 arguments, “death is different.” What will Kennedy do when life in prison is the sentence?
This will also be a telling case regarding Justice Sonia Sotomayor. Her supporters during confirmation argued that as a former prosecutor she would be a “law and order” judge. Those opposing her said she would be a knee-jerk liberal activist. These cases will put that question to the test.
As in Roper, though, one big question may be whether the Court again looks to foreign law to define the U.S.’s supreme law. Americans strongly object to life-tenured judges using the laws of other countries (most of which don’t share our values) to interpret our own law. American sovereignty means that we make our own law, regardless of what others think.
So the fate of this case is uncertain. A decision is likely to come down early next year. What the justices do here will tell us much about the future direction of law enforcement under the new Supreme Court.