Justice Anthony Kennedy took center stage Tuesday as the US Supreme Court began examining two cases testing whether life in prison without parole is cruel and unusual punishment for someone who committed murder at age 14.
Much of the two hours of argument in the cases from Arkansas and Alabama were directed at Justice Kennedy, who is widely seen as wielding the potential swing vote that could win the case for either side.
Based on his questions, Kennedy appears to be searching for a means to rule for the two juveniles and somehow invalidate the mandatory imposition of life without parole for some category of young offenders.
Such a ruling would extend the same reasoning embraced by the high court in two landmark cases involving juveniles, and it would add another precedent to an emerging jurisprudence of juvenile punishment.
In 2005, the high court invalidated the death penalty for those age 18 and younger. Five years later, the court again cited the same reasoning and ruled that sentencing a juvenile to life without parole for a non-homicide crime also violated the Eighth Amendment’s ban on cruel and unusual punishment.
Both cases were decided by 5-to-4 votes, and both were written by Justice Kennedy.
Now the justices are being asked to extend that same reasoning yet again, this time to bar the imposition of life-without-parole sentences to convicted murderers who were 14 years old at the time of their crime.
“We are not suggesting that states should not be able to impose very harsh punishments and very severe sentences on even children who commit these kinds of violent crimes,” Bryan Stevenson, a Montgomery, Ala., attorney, told the justices.
“What we are arguing is that they cannot do so [while offering them] no hope of release,” he said.
Stevenson told the court that young offenders are less culpable than adults for the crimes they commit. Studies have shown that biologically and psychologically, teens are more susceptible to peer pressure and more prone to impulsive and reckless behavior. Studies show that their judgment and character are not yet fully formed.
These factors must be considered in meting out appropriate punishment for crimes, Stevenson said. His argument wasn’t simply for leniency. He said life in prison with the possibility of parole could be an appropriate sentence in certain cases.
But he said that sending a 14-year-old to prison with no hope of release is cruel and unusual under the Constitution’s Eighth Amendment.
“It would be cruel to declare these children fit only to die in prison given what we now know about their status, about their development, and about their potential,” he said.
Urging the high court to uphold Alabama’s sentencing scheme, the state’s solicitor general, John Neiman, said it should be up to state lawmakers to decide whether to punish the state’s worst criminals with a mandatory sentence of life without parole – even when they are as young as 14.
“The government’s primary goal here is expressing the retributive judgment about the wrongfulness of murder,” he said. “I think governments are quite legitimate and quite reasonable when they also say that they don’t want to roll the dice on convicted murderers.”
Arkansas Assistant Attorney General Kent Holt offered a slightly different argument. “The punishment for this crime reinforces the sanctity of human life and it expresses the state’s moral outrage,” he told the justices.
“You say the sanctity of human life, but you are dealing with a 14-year-old being sentenced to life in prison, so he will die in prison without any hope,” Justice Ruth Bader Ginsburg replied. “I mean, essentially, you’re making a 14-year-old a throwaway person.”
Solicitor General Neiman told the justices that there would be a significant cost to forcing states to revive their parole systems for certain offenses.
“Why not just let these guys get their parole hearings, give them hope, and likely they won’t get parole anyway,” Mr. Neiman said, highlighting the counter-argument that granting parole hearings is relatively cost-free.
“The cost is to the victims and their families who have to endure what are often very painful parole hearings,” he said.
“When those come up on a frequent basis, that sort of retraumatization process is something that governments can legitimately take into account when they decide – for aggravated murder – that a life-without-parole sentence is an appropriate sentence,” Neiman said.
Currently there are an estimated 79 individuals in American prisons serving a life sentence without the possibility of parole for crimes they committed when they were 14 years old.
Roughly 2,300 individuals are serving life without parole for crimes committed when they were younger than 18 years old.
Thirty-eight states and the federal government allow life without parole sentences for those 14 and older. Twenty-six states have made the sentence mandatory.
The cases at the high court involve two young offenders convicted of murder.
Kuntrell Jackson was 14 when he and two friends tried to rob a video shop in Blytheville, Ark., in 1999. Two of the boys confronted the shopkeeper with a shotgun and demanded money while Mr. Jackson stood at the shop doorway. When the shopkeeper denied having any money, Jackson allegedly walked into the shop to the counter and told the shopkeeper: “We ain’t playin.’ ”
The teen with the gun again demanded money. When the shopkeeper threatened to call police, she was shot in the head and killed. The boys ran from the store without any money. Although he was not the triggerman, Jackson was deemed to have played a significant enough role in the killing to warrant a sentence of life without the possibility of parole.
The second case involves Evan Miller, who was 14 at the time he and a 16-year-old friend decided to rob Mr. Miller’s neighbor. The plan was to get the neighbor drunk and steal money from his wallet.
The neighbor awoke as Miller attempted to slip the now-empty wallet back into his pocket. The neighbor grabbed Miller by the throat and a fight broke out. Miller and his friend beat the neighbor with a baseball bat and then set his trailer on fire.
As the smoke and flames grew more intense, the boys heard the neighbor coughing. The friend started back to pull the man from the flames, but Miller allegedly stopped him.
The neighbor died of smoke inhalation. The friend later testified against Miller, who was convicted and sentenced to life in prison without parole.
The cases are Evan Miller v. Alabama (10-9646), and Kuntrell Jackson v. Hobbs (10-9647).
A decision is expected by late June.