WASHINGTON, March 18 (UPI) -- Nearly 10 years ago, in Lawrence County, Ala., a 14-year-old boy holding a baseball bat stood over a man he had robbed and repeatedly beaten, telling him, "I am God. I've come to take your life."
After hitting the man in the head a final time with the bat, the 14-year-old and a friend set the man's trailer on fire. Despite the beating, Cole Cannon was still alive and conscious. He managed to ask, "Why are y'all doing this to me?" Then he was burned alive.
The boy, Evan Miller, was sentenced to life in prison without parole, even though he was just 14 when he committed the crime. His friend, 16 at the time of the crime, was allowed to plead guilty to felony murder in exchange for testimony, and sentenced to life with a chance of parole.
Miller's case, along with the Arkansas case of a defendant who also was sentenced to life without parole for a homicide committed at age 14, is set for argument in the U.S. Supreme Court Tuesday.
At issue is whether the Constitution bans a sentence of life without parole for those who committed murder while under age 18, or whether some crimes are so repellent they demand the harshest punishment short of the death penalty, no matter what the age of the defendant.
In the words of lawyers from both sides of the case, what do you do when human beings who are "works in progress" commit acts that are "unspeakably sad"?
The odds are pretty good the U.S. Supreme Court, or at least a narrow majority of the nine justices, will find the Miller sentence and others like it constitutionally excessive.
In 2005's Roper vs. Simmons, the high court rejected its own precedent and ruled 5-4 that the Eighth Amendment, which bans "cruel and unusual punishments," prohibits executing a convicted defendant who committed murder before 18.
The case involved a 17-year-old in Missouri, Christopher Simmons, who resolved to commit murder. He and a friend invaded the home of a woman, used duct tape to cover her eyes and mouth and bind her hands, put her in her minivan and drove to a state park.
"They reinforced the bindings, covered her head with a towel, and walked her to a railroad trestle spanning the Meramec River," the majority opinion said. "There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below."
On the same day searchers recovered the woman's body from the river, Simmons "was bragging about the killing, telling friends he had killed a woman 'because the bitch seen my face.'"
Simmons was sentenced to death. In the meantime, the U.S. Supreme Court ruled 6-3 in 2002's Atkins vs. Virginia that executing the mentally retarded violated the Eight Amendment, setting up the 5-4 ruling in Simmons' case in 2005.
Justice Anthony Kennedy, a key swing vote writing for the majority, said in Roper vs. Simmons: "The Eighth Amendment's prohibition against 'cruel and unusual punishments' must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. ... Rejection of the imposition of the death penalty on juvenile offenders under 18 is required by the Eighth Amendment. Capital punishment must be limited to those offenders who [citing Atkins] commit 'a narrow category of the most serious crimes' and whose extreme culpability makes them 'the most deserving of execution.'"
Referring to foreign criticism of U.S. executions of those who committed murder before 18, Kennedy said: "The overwhelming weight of international opinion against the juvenile death penalty is not controlling here, but provides respected and significant confirmation for the [Supreme Court's determination that the penalty is disproportionate punishment for offenders under 18."
Scalia, as usual, was biting in dissent.
"The [Supreme] Court ... proclaims itself sole arbiter of our nation's moral standards -- and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures," Scalia said. "Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five members of this court and like-minded foreigners, I dissent."
Five years later, Kennedy led a 6-3 majority that ruled in Graham vs. Florida and Sullivan vs. Florida it is unconstitutional to sentence someone to life for a non-homicide crime committed as a juvenile -- again because sentencing someone to life for a non-lethal crime committed before the age of 18 violates the Eighth Amendment's ban on cruel and unusual punishments.
At the time, 37 states, the District of Columbia and the federal government allowed sentences of life without parole for a juvenile non-homicide offender in some circumstances, Kennedy said. However, he added, an examination of the actual practice in those states shows it was little-used.
Evan Miller's case, set to be heard by the justices Tuesday, deals with actual murder but also relies on the Eighth Amendment -- and the 14th Amendment, which allows the Bill of Rights to be applied to the states.
"This case presents important constitutional questions regarding the propriety of imposing a mandatory sentence of life imprisonment without parole on a 14-year-old child ... ," his petition to the Supreme Court said. "Evan Miller is one of only 73 [U.S.] children who have been condemned to be imprisoned until death for an offense committed when they were 14 years of age or younger. Evan, like nearly all of these young adolescents, was sentenced under a statute that made a life-without-parole sentence mandatory, precluding any consideration of his age or other mitigating circumstances which would call for a sentence of less than lifelong incarceration. ...
"In the vast majority of [U.S.] states, no child Evan's age has ever received such a sentence," the petition said. "Only 18 states have imposed such sentences on children 14 or younger. ...
"Internationally, the United States is the only country in the world where death-in-prison sentences have been imposed on" children convicted of murder.
The petition cites the reasoning in the Roper and Graham rulings, which "stress three key features of youth as bearing on the judgment that young offenders are significantly less culpable than adults: children's lack of maturity, their vulnerability to negative external influences and the fact that they are not fully formed personalities but rather human works in progress."
In its merit brief to the U.S. Supreme Court, Alabama expressly rejects the notion that a consensus has been building against this kind of punishment for children.
"Policymakers face no easy task when they decide what society should do with teenagers who commit the worst forms of murder," the brief said. "These cases are tragic for everyone involved, and they raise questions that admit of no obvious answers. The offenders have extinguished at least one person's life in a way that is unspeakably sad, and the loss will burden the victims' loved ones for the rest of their days. Choosing a response that best respects our nation's values is among the most difficult decisions any government must make.
"But most American [state] governments have made this choice, and they have adopted a judgment that is decidedly different from the one Miller proposes. Most legislatures have not just made it theoretically possible for courts to impose life-without-parole sentences on 14-year-olds who are transferred to adult court and convicted of aggravated murders. They instead have made it mandatory and have otherwise expressly endorsed the practice."
The Miller case is different from the 2005's Roper vs. Simmons "where the juvenile death penalty was at issue and a majority of American jurisdictions had abolished it," and different from 2010's Graham vs. Florida "where the defendants had not committed murder and legislatures thus had not endorsed life-without-parole sentences in so definitive a way," Alabama said. "The fact that judges have imposed this sentence on few 14-year-olds does not evince a de facto consensus against it. It instead reflects the reality that few 14-year-olds ever commit murder, and prosecutors appropriately exercise discretion when they do.
"The Eighth Amendment stands as no barrier to these sentences."