Supreme Court Justice Anthony Kennedy (UPI Photo/Roger L. Wollenberg) | License Photo
WASHINGTON, Nov. 8 (UPI) -- Every once in a while society pauses to take stock, usually through the courts, to see if its actions measure up to "evolving standards of decency."
The U.S. Supreme Court takes up the gauntlet Monday when it hears two Florida cases involving penalties handed out to juveniles. At issue: Is it constitutional to sentence someone to life in prison for a non-homicide committed when the defendant was a juvenile?
Lawyers commenting on the cases refer to the punishment as "LWOP" -- not a slur on our Italian-American heritage but an acronym for "life without parole."
Is LWOP appropriate for a repeatedly violent 17-year-old? If appropriate for a 17-year-old, is it appropriate for a 13-year-old, like the violator in one of the Florida cases?
If the thought of LWOP for children offends you -- is there really a difference between execution and sentencing someone to die behind bars 60 or 70 years after a conviction -- should the brutality of a juvenile's crimes influence the severity of his or her penalty? What if a judge believes a juvenile is irredeemable and on a path that sooner or later will lead to murder?
And what about the wishes of the public? Many conservatives argue it is up to the states and their lawmakers -- not the courts -- to decide the "evolving standards of decency." Legislatures across the country have been constructing harsh penalties to combat the emergence of juvenile "super predators," the ABA Journal reports.
The two cases before the high court present strikingly different facts.
Joe Harris Sullivan was 13 in 1989 when he and several older juveniles burglarized an elderly woman's house in Pensacola. Prosecutors say he went back after the burglary and sexually attacked her so savagely, he severely injured her.
Prisoner advocates such as the Equal Justice Initiative say Sullivan is one of only two 13-year-olds in the United States sentenced to life without parole for an offense that did not involve a homicide, he was "fingered" by the older defendants (who served brief sentences), identified by the victim only by voice and the DNA evidence from his rape charge was destroyed by officials before it could be used as evidence. The group says Sullivan is mentally retarded and now in a wheelchair.
Sullivan is black and his victim was white.
Terrance Graham was 16 when he pleaded guilty to armed robbery with assault or battery (an offense that could carry a life sentence) and robbery of a restaurant in which a fellow defendant hit the manager over the head with a steel pipe. The plea was conditional on Graham spending a year in detention and three years on probation.
He was released in June 2004. By the following December Graham at 17 was conducting a home invasion in which he and two others forced a man to the floor and Graham held a pistol to the man's head, demanding money.
After his arrest, Graham admitted committing several other robberies in the same neighborhood. On conviction, he was sentenced to life without parole for violating his parole.
Like Sullivan, Graham is black. His victims were white and Hispanic.
Now, unless the Supreme Court steps in, Sullivan and Graham are likely to die in prison.
Luckily for them, the high court has been moving steadily toward jurisprudence that takes into account the relationship between a criminal's ability to be responsible for a crime and the severity of a sentence.
In 2002's Atkins vs. Virginia, the Supreme Court ruled 6-3 the Eighth Amendment's ban on cruel and unusual punishment should be seen in terms of the "evolving standards of decency that mark the progress of a maturing society," and that the execution of mentally retarded inmates was unconstitutional.
In contrast, the high court had to make its way gradually toward banning executions for those who had committed homicides when they were minors.
After a plurality of justices decided in 1988's Thompson vs. Oklahoma that those who committed murder before the age of 16 could not be executed, a narrow majority decided the next year a defendant who killed when 15 or 16 could be executed.
Then came 2005's Roper vs. Simmons. In that case, a 5-4 majority concluded the Eighth Amendment, applied to the states by the use of the 14th Amendment, banned the execution of all those who committed murder before the age of 18.
Ashley Nellis, research analyst for the Sentencing Project in Washington, told the ABA Journal: "Striking down juvenile LWOP sentences is a natural evolution from the Roper decision. It hopefully would reverse some of the policies over the last few decades that were overly punitive with respect to juvenile defendants."
Lyle Denniston, dean emeritus of the Supreme Court press corps, the only person to earn a plaque in the high court press room, has speculated the justices may take divergent paths in disposing of the cases.
Writing for Scotusblog.com, Denniston says "there is at least a chance that Sullivan might not be allowed to raise his constitutional argument, because it could be found to have come too late." Sullivan didn't raise his constitutional argument until 20 years after his conviction.
However, Sullivan's lawyers, he points out, aim their arguments specifically to those sentenced to life in prison without parole for a crime committed when a violator was 13 -- suggesting that a 13-year-old is far less responsible than a 17-year-old.
The Equal Justice Initiative, in a friend-of-the-court brief in support of Sullivan, says "nationwide ... only 73 such sentences (for those under 14 have) been imposed in a quarter of a million cases where they could have been," adding "13- and 14-year-olds as a class are much less mature than 17-year-olds," the Journal reported.
If Sullivan doesn't pan out, the justices could still make a constitutional finding in Graham.
Roper vs. Simmons, out of Missouri, offers a glimpse at how the court may rule in at least one of the Florida juvenile cases. Justice Anthony Kennedy, a key moderate swing vote who remains on the court, wrote the 5-4 majority opinion in Roper, concluding that the execution of those committing a murder before age 18 was unconstitutional.
The numbers bode well for Graham and Sullivan as well. Only retired Justice David Souter is missing from the four-member liberal bloc that joined Kennedy to form the narrow majority. His place has been taken by Justice Sonia Sotomayor, also likely to vote in concert with the liberals.
In the Roper minority, moderate conservative Justice Sandra Day O'Connor has been succeeded by conservative Justice Samuel Alito.
In other words, the 5-4 Roper court remains ideologically intact.
And Kennedy's words in writing the majority opinion in Roper seem prophetic as to how he might write in at least one of the Florida cases, whether the majority rules for or against the two men:
"Although the (Supreme) Court cannot deny or overlook the brutal crimes too many juvenile offenders have committed, it disagrees with (Missiouri's) contention that, given the court's own insistence on individualized consideration in capital sentencing, it is arbitrary and unnecessary to adopt a categorical rule barring imposition of the death penalty on an offender under 18," Kennedy wrote. "An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability and lack of true depravity should require a sentence less severe than death. When a juvenile commits a heinous crime, the state can exact forfeiture of some of the most basic liberties, but the state cannot extinguish his life and his potential to attain a mature understanding of his own humanity."
Predictably, the Graham and Sullivan cases have evoked a large coterie of supporters, including religious organizations, celebrities and nuns.