A sharply divided US Supreme Court on Monday debated whether to invalidate state laws that permit juveniles to be sentenced to life in prison without parole for nonhomicide crimes.
It is a potential watershed decision. But after two hours of arguments in two different cases, it was unclear whether a majority of the high court's nine justices were in agreement on the issue.
The two cases, Graham v. Florida and Sullivan v. Florida, ask the justices to consider whether sentencing a juvenile to spend the rest of his or her life in prison is cruel and unusual punishment in violation of the Constitution's Eighth Amendment.
"It is unquestionably unusual," said Bryan Stevenson, whose client went to prison for life at age 13. "To state to a child of 13 that you will die in prison is cruel," he told the justices.
Joe Sullivan was sentenced to life without parole after being convicted of beating, raping, and robbing a 72-year-old woman. He was 13 at the time of the crime.
Terrance Graham was sentenced to life without parole after pleading guilty to armed burglary and assault and after having his probation revoked for participating in a series of armed home invasion robberies. He was 17 at the time.
Florida Solicitor General Scott Makar defended the sentences, saying they reflected a balance struck by state lawmakers and Florida judges. "It goes to the core of state sovereignty," he said, for a state to develop and administer its own justice system.
The heart of the argument is that because juveniles are more impulsive, less mature, and less able to appreciate the full magnitude of their wrongdoing, they are less morally culpable for their crimes. If they are less culpable, the argument goes, they should not be punished as harshly as adults.
A second, parallel argument is that because a juvenile's character is not yet fully formed, it is impossible for experts to accurately predict which young offenders will grow out of their violent, unlawful behaviors and which will not.
Mr. Graham's lawyer Bryan Gowdy argued that this uncertainty about which juvenile offenders are capable of reform justifies a categorical ban on life without parole sentences for juveniles in nonhomicide crimes.
"We can't tell which adolescents are going to change and which won't," he said. But he added, "Graham at 47 will not be the person he was at 17."
Mr. Gowdy and Bryan Stevenson, Mr. Sullivan's lawyer, are asking the high court to extend the reasoning of a 2005 decision in which the Supreme Court ruled 5-to-4 that the juvenile death penalty violated the Eighth Amendment.
The key fifth vote in the 2005 case was cast by Justice Anthony Kennedy. He may be in a position to cast the deciding vote again, but how he might vote was not clear by his questions and comments during the oral argument.
Chief Justice Roberts repeatedly questioned why harsh juvenile sentences like those of Sullivan and Graham couldn't be reviewed case by case to determine if they were out of proportion to the underlying crime. He said that approach – rather than a categorical ban – fit neatly with the high court's existing approach in Eighth Amendment challenges.
Gowdy countered that the high court, in the 2005 juvenile death penalty decision, drew a categorical line at age 18.
"That is because 'death is different,' " Roberts shot back, referring to the frequently cited justification for imposing special rules in capital punishment cases. The chief justice wondered aloud why the court shouldn't follow a less disruptive path toward case-by-case review.
"It just comes down to 'adolescents are different,' your honor," Gowdy replied.
Later, Justice Ginsburg raised the chief justice's proportionality issue again, saying such a review done on the spot at a juvenile's sentencing would not work. "You can't make a judgment until years later to see how that person has done," she said.
States would still be able to mete out long prison sentences in juvenile cases, Gowdy and Stevenson said, but they would have to recognize the possibility of rehabilitation.
"All that is required is a meaningful opportunity for the prisoner to demonstrate he is reformed and can play a meaningful role in society," Gowdy said.
Colorado and Texas have rewritten their juvenile sentencing laws to end life-without-parole punishment for those under 18. Instead, the maximum juvenile sentence in both states is now 40 years in prison followed by an assessment for potential parole.