Thursday, April 21, 2011

LWOP For Juveniles On Chopping Block?

Reconsidering Sending Juvenile Killers to Prison for Life:

Almost a year ago, the Supreme Court ruled that sentencing juvenile offenders to life without the possibility of parole violated the Eighth Amendment’s ban on cruel and unusual punishment — but only for crimes that did not involve killings. The decision affected around 130 prisoners convicted of crimes like rape, armed robbery and kidnapping.

Now the inevitable follow-up cases have started to arrive at the Supreme Court. Last month, lawyers for two other prisoners who were 14 when they were involved in murders filed the first petitions urging the justices to extend last’s year’s decision, Graham v. Florida, to all 13- and 14-year-old offenders.

The Supreme Court has been methodically whittling away at severe sentences. It has banned the death penalty for juvenile offenders, the mentally disabled and those convicted of crimes other than murder. The Graham decision for the first time excluded a class of offenders from a punishment other than death.

This progression suggests it should not be long until the justices decide to address the question posed in the petitions. An extension of the Graham decision to all juvenile offenders would affect about 2,500 prisoners.

In my juvenile delinquency classes, we've been discussing last summer's Graham v. Florida (here), and watching the Frontline documentary When Kids Get Life the entire week. We also discussed the banning of executions for juveniles, and whether SCOTUS might eventually re-think LWOP (life without parole) sentences for juvenile killers as well.

As I opined here last May, "given the tenuous culpability in Felony Murder statutes (which disproportionately affect juvenile offenders), I wonder if those statutes might not fall next."

According to the article, the LWOP question might mirror the capital decisions from 1988 and 20005: incrementally.

Much of the logic of the Graham decision and the court’s 2005 decision banning the death penalty for juvenile offenders, Roper v. Simmons, would seem to apply to the new cases.

The majority opinions in both were written by Justice Anthony M. Kennedy, who said teenagers deserved more lenient treatment than adults because they are immature, impulsive, susceptible to peer pressure and able to change for the better over time. Justice Kennedy added that there was an international consensus against sentencing juveniles to life without parole, which he said had been “rejected the world over.”

One factor cuts in the opposite direction. Justice Kennedy relied on what he called a national consensus against the punishment for crimes that did not involve killings. Juvenile offenders were sentenced to life without parole for such nonhomicide crimes, he wrote, in only 12 states and even then rarely.

There does not appear to be such a consensus against life without parole sentences for juveniles who take a life. That may be why opponents of the punishment are focusing for now on killings committed by very young offenders like Mr. Lotts.

That strategy follows the one used in attacking the juvenile death penalty, which the Supreme Court eliminated in two stages, banning it for those under 16 in 1988 and those under 18 in 2005.

That was the Thompson v. Oklahoma case, forbidding juvenile executions for those 15 and under, followed 17 years later by Roper.

Meaning, the court could rule LWOP sentences for certain juvenile killers (say, those under 16) unconstitutional first, followed by an eventual ban on all LWOP sentences for those under 18 down the road. Or they could tackle felony murder itself. But doing it incrementally would commute around 70 or so sentences initially, then set the stage for a more broad eradication later.

Predictably, the get-tough bloggers are having none of it.

Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation, a victims’ rights group, said that categorical approaches were misguided in general and particularly unjustified where murders by young offenders were involved.

“Since I think Graham is wrong,” he said, “extending it to homicides would be wrong squared.”

“Sharp cutoffs by age, where a person’s legal status changes suddenly on some birthday, are only a crude approximation of correct policy,” he added.
Yeah, kinda like the drinking age (some birthday), driving age (some birthday), marrying age (some birthday), consensual sex age (some birthday), etc. All "crude approximations of correct policy," right?

The court has drawn age-related bright lines in a variety of decisions over the years, especially those relating to juveniles. The idea this some "crude approximation" is merely code for "I don't agree with it."

Opponents of sanity aside, there seems to be at least a 5 justice majority (perhaps 6) which is willing to restore a bit of sanity to juvenile criminal procedure and sentencing. For that, let us give thanks and praise.

1 comment:

LgLafa said...

Doing a presentation on this next week! You wore off on me so well, Prof. Krohn :)