The Supreme Court and Why Age Matters

The U.S. Supreme Court today heard long-awaited oral arguments on life without parole sentences for juveniles, and while the outcome is unclear, there seemed to be some agreement that age should be a factor in criminal sentences.

The defendants in the two cases before the Supreme Court today were seeking to show that it is cruel and unusual punishment -- a violation of the Eighth Amendment -- to sentence someone to life without parole for a crime committed as a juvenile. Both defendants were convicted of non-murders in Florida.

Chief Justice John Roberts (left) took control in oral arguments, according to Lyle Denniston at SCOTUSblog, and he seemed determined to persuade his colleagues that age should be a factor in determining a sentence. He and other justices, however, seemed opposed to finding that a certain age -- like 18 -- should be the constitutional cutoff for life without parole.

Doug Berman writes at Sentencing Law and Policy that Roberts has long taken an interest in the court's cloudy interpretation of "cruel and unusual," and he may be seizing this moment to make a play for clearing that up.

But there must be some age at which LWOP is cruel and unusual, right? The judges pondered whether age should be a factor for judges once a defendant is in federal court. Justice Sonia Sotomayor wondered if any age limit should exist for LWOP, whether it's five, ten, 13, 14 or 15 years old. Scott Makar, arguing on behalf of Florida, agreed that age does matter, but also admitted that theoretically a Florida judge can sentence a five-year-old to life.

Two thinkers on this issue squared off today in an enlightening three-part debate on the New York Times website. Marc Mauer, the Sentencing Project Executive Director and a sensible voice on this issue, pointed to justice Anthony Kennedy's enigmatic questions today. Kennedy asked about the value of JLWOP to the state when research fails to show any deterrent effect of longer sentences. But he didn't ask about the "unusual" nature of the punishment, from a global perspective. The U.S. has somewhere between 1,200 and 2,200 people serving life for juvenile convictions. The rest of the world has 12. Twelve. If that doesn't make us unusual, what does?

This is something I've written about before, as I think it's one of the strongest arguments for a bright line rule outlawing JLWOP. As Mauer points out, Kennedy himself referred to our unique place in the world and the "evolving standards of decency" in the court's 2005 decision outlawing the juvenile death penalty in Roper v. Simmons. It may be a bad sign that he didn't refer to the international precedent today.

Squaring off against Mauer was Kent Scheidegger of the Criminal Justice Legal Foundation. Scheidegger predicted an anticlimactic decision, with the justices ruling that judges should simply take age into consideration when sentencing people convicted in adult courts as juveniles.

A compromise like this does seem likely, and while it would be a step in the right direction, it would leave a punishment on the books that is uniquely American in its cruelty and its ineffectiveness.

Some more background and coverage of the cases:

Transcript of today's arguments in Graham v. Florida and Sullivan v. Florida

Associated Press: High Court Looks at Life Sentences for Juveniles

New York Times debate: Young Offenders Locked Up for Life

The amazing Paul Farmer, writing in the Boston Globe: A Second Chance at Freedom for Juvenile Offenders