Tuesday, May 5, 2009

An End to LWOP for Juveniles?

What a great note to end the semester on in Juvenile Delinquency, especially since we spent so much time discussing this very issue.

Justices To Take Up Life Without Parole for Juveniles:

WASHINGTON — The Supreme Court agreed on Monday to consider whether the reasoning that led it to strike down the death penalty for juvenile offenders four years ago should also apply to sentences of life without the possibility of parole.

The court accepted two cases on the issue, both from Florida and neither involving a killing. In one, Joe Sullivan was sentenced to life without the possibility of release for raping a 72-year-old woman in 1989, when he was 13. In the other, Terrance Graham received the same sentence for participating in a home invasion robbery in 2004, when he was 17 and on probation for other crimes.

In the majority opinion in the death penalty case, Roper v. Simmons, Justice Anthony M. Kennedy wrote that teenagers were immature, unformed, irresponsible and susceptible to negative influences, including peer pressure.
As Douglas Berman at Sentencing Law & Policy states, "the principles driving Roper would seem to suggest that its impact does not stop at the execution chamber.” Meaning, though the court has been no friend to juveniles during the past 20 years or so (and will probably still greenlight strip searches come June), it has applied the brakes to the death penalty and juveniles in Roper, and a similar argument may sway five justices to eradicate LWOP for teens as well.

But it would be only a narrow majority.

At the argument of the Roper case in 2004, Justice Antonin Scalia said the rationales offered against the juvenile death penalty applied just as forcefully to sentences of life without the possibility of parole.

“I don’t see where there’s a logical line,” said Justice Scalia, who voted in dissent to retain the juvenile death penalty.
With the announced retirement of Justice David Souter (who voted with the majority of Kennedy, Stevens, Ginsburg and Breyer in Roper), and assuming President Obama appoints a justice in the similar "left-leaning" vein, there is a real chance the court will put the kibosh on LWOP for juveniles once and for all next term.

As I wrote last February, the numbers of juveniles serving life or life without parole sentences is well over 12,000. Assuming a bit of sanity in sentencing prevails, let's hope if the court does rule this a violation of the 8th amendment, the decision is made to be retroactive as well.

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