Adam Liptak, in his New York Times Sidebar column, raises what at first blush seems like a ridiculous question: If life without parole is unconstitutional for juveniles, is it permissible to sentence a child to 100 years in prison? Isn’t the point that children should not be sentenced to die in prison?
That sounds straightforward enough. But there are two ways to understand the decision, Graham v. Florida.
One is formal. The court may have meant only to bar sentences labeled “life without parole.” On that understanding, judges remained free to impose very long sentences — 100 years, say — as long as they were for a fixed term rather than for life.
Alito said it was fine in his dissent, but that’s Alito and it was only said in dissent, so who cares?
The other way to understand the decision is practical. If the Eighth Amendment’s prohibition of cruel and unusual punishment requires that young offenders be left with a glimmer of hope that they may someday be released, it should not matter whether they were sentenced to life in so many words or as a matter of rudimentary actuarial math.
Whether it’s called “life” or a term of years in excess of any remote chance of ever getting out is form over substance. Sure, everyone thought the Supreme Court’s Graham decision meant something for juveniles, reflecting its rejection of the overly harsh “child predator” myth and a recognition that children haven’t developed the maturity and responsibility sufficient to be held so accountable, and punished so severely, that their life was over. That’s what we thought.
Except they never quite said so, and have since taken a pass on the opportunity to clear up the confusion they invariably leave behind.
“Some courts have held that such a sentence is a de facto life without parole sentence and therefore violates the spirit, if not the letter, of Graham,” Judge John M. Rogers wrote for a unanimous three-judge panel. “Other courts, however, have rejected the de facto life sentence argument, holding that Graham only applies to juvenile non-homicide offenders expressly sentenced to ‘life without parole.’ ”
Applying the reasoning of the Graham decision to long fixed sentences, Judge Rogers added, “would lead to a lot of questions.” An appeals court in Florida last year listed some of them in upholding a 76-year sentence meted out to Leighdon Henry, who was 16 when he committed rape.
“At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: 20, 30, 40, 50, some lesser or greater number?” Judge Jacqueline R. Griffin wrote for the court.
The Supremes denied cert to Chaz Bunch, who was 16 when convicted and sentenced to 89 years in prison, making him eligible for parole at 95, after the 6th Circuit affirmed his sentence.
While it seems too obvious for argument that a sentencing court can’t do one way what would be unconstitutional another, so that if life without parole violates the 8th Amendment’s prohibition on cruel and unusual punishment, so too would a 100 year sentence. To suggest otherwise is sophistry of the Alito sort.
And yet the Supremes weren’t sufficiently concerned with Bunch’s homecoming at age 95 to take the case and refine their message, leaving circuit courts hanging as to whether Graham means what it says or says what it means.
The reason seems most like to be Judge Griffins question: if a term of years that serves as a de facto life sentence is no good, then what is acceptable? How many years is acceptable under the 8th and when does a sentence cross the line? If a defendant is younger than 18, can you add the difference in years to the end of the sentence since his life expectancy will be longer? Okay, that last one seems a bit too trial, but still it’s part of the equation, and it’s one of many smaller question that have and will arise:
Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria?” Judge Griffin asked.
That is a reasonable question. But Bryan Stevenson, the executive director of the Equal Justice Initiative in Montgomery, Ala., said it was the wrong one. “The idea isn’t to get the person as close to death as possible before you deal with the possibility of their release,” he said. It is, rather, to give juvenile offenders a sporting chance, perhaps after decades in prison, to make the case that they deserve to get out, he said.
While the words “sporting chance” may be a bit flip, the point remains. These are children, and there should be some hope of redemption and return to society, if only for the last few years of a life in being. But putting that concept into action is hard work, and it appears the Supremes, having opened the door to the question, have no answer. So rather than finish the job they’ve started, they will spend their time ironing their robes while Chaz Bunch’s 89 year sentence goes unreviewed.
If it were up to me, the answer would be that any sentence imposed on a juvenile that’s long than it takes for a police officer’s pension to vest would be unconstitutional. But then, I’ve yet to get a call from my senator informing me that my name has been put in the mix for the next Supreme Court opening. For me, 100 years is a lot of life to lose. Too much.