SCOTUS Says ... I Was Right

[Dwayne Betts]

Almost a year to the date I wrote about this JLWOP (juvenile life without parole) here, while guest posting for TNC. This was around the time when the Supreme Court was deciding to take a look at Graham v. Florida and Sullivan v. Florida. On May 17, 2010 the SCOTUS decided that it is unconstitutional to sentence a juvenile who has committed a non-homicide offense to life without the possibility of parole. You can read the 80 page decision here. As far as decisions go it's pretty interesting. One point to note is Kennedy's, in writing the opinion of the court he said:

To justify life without parole on the assumption that the juvenile offender forever will be a danger to society requires the sentencer to make a judgment that the juvenile is incorri- gible. The characteristics of juveniles make that judgment questionable.

Later on the Kennedy quotes another decision that stated "incorrigibility is inconsistent with youth." This was the crux of the issue for the court. After oral arguments I was told that one of the Justices asked if there was a constitutional right to hope. This decision says that there is.

The point, an important point, is also made that this is no guarantee that a juvenile sentenced to life with the possibility of parole will be released. It just mandates that kid have a chance. The ramifications though can be huge in that many states have abolished parole -- so I can imagine a judge giving a kid 50 years instead of life. That would raise the question of what is the definition of a life sentence.

Thomas's dissent shows that these justices go at it as they work to rule on these cases. In his dissent, Thomas turns insults on the courts, expresses true shock at their logic, and takes the time to lay out what he sees as their consistent misinterpretations of prior cases. Thomas probably foresees the next few challenges to the way we deal with juveniles being: life without parole for homicides and then juveniles sentenced as adults. He essentially argues that the matter is for the legislature and not for the court to address -- and he argues that "violence itself is evidence that an adolescent offender's behavior is not transient."

Justice Stevens, responding to Thomas's dissent, wrote this:

While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old, see post, at 4, 10, n. 3, the Court wisely rejects his static approach to the law.

For folks who wanted to see my face, I was featured on PBS's Need to Know talking about the issue and you can watch it here. You have to click on the video A Chance at Redemption to see it. Sullivan, whose case also made it to the SCOTUS with Graham's but was dismissed on a procedural error, is also on the clip. His crime raises one of the more troubling issues around juvenile life without parole and juvenile transfer to adult court. Crime is inexcusable period -- but rape, like murder, is one of the most pernicious offenses. The thing about being an advocate for changing the way we handle juveniles who have committed crimes is that I can't avoid the hard questions. When talking about JLWOP the idea of what do you do with a kid who commits a rape will come up. It came up after I wrote this commentary for NPR, and it's come up at just about every time I've talked about juveniles and prisons.

So what would I do if I were judge? Twenty years is a long time. And the reality is that no amount of time served will make the pain of the crime go away. I'm not one for the abolition of prisons, I'm just not optimistic enough to believe there will be a world where crime is so low that we won't need a jail. I do believe that we have too many, and too many people locked up in them. So what would I do -- I'd remember that twenty, thirty years is a long time -- a life time really, and that it provides ample opportunity for someone to prove that they are no longer a risk to society. A nation that recognizes the differences in judgement between juveniles and adults everywhere else -- from the abilities to get licenses, to the ability to vote, etc., etc. -- should believe in the possibility of change.