Analysis: A limited break for juveniles
In state prisons scattered across ten states, and in a handful of federal penitentiaries, a group of 129 prisoners on Monday gained a new constitutional right from the Supreme Court, but not one of them yet knows whether the ruling will lead to freedom. Each of them, convicted as minors and sentenced to life in prison without the chance of release, learned that it would no longer be possible for any juvenile to get that sentence in the future if the crime did not involve murder. But the Court did not rule that any of those 129 must now be released, or even that any of them must be re-sentenced. That was not what they won.
Instead, each of the 129 must be given some chance to show, at some point in the future, that they have matured enough while in prison that they might then be ruled “fit to rejoin society” (in the Court’s phrase) rather than staying in prison for the rest of their lives. And, while every other juvenile who commits a serious “non-homicide” crime from now on has won a right not to be sentenced to life without potential release; the decision leaves open the possibility that conviction for such a juvenile might lead to a definite prison sentence of perhaps 40 or more years, thus stretching their confinement long into the future, perhaps to old age.
The 6-3 decision in Graham v. Florida (08-7412) produced an outpouring of writing from the Court, including a fervent complaint by three dissenters that the majority was simply using raw power to rule by “judicial fiat,” but the ruling’s practical effect on juvenile offenders was far from clear. In declaring that the Eighth Amendment’s ban on cruel and unusual punishment is violated by a life-without-parole sentence for a juvenile whose crime did not involve murder, the Court did make a new constitutional declaration. That is a flat, or categorical, rule, and thus it lays down the juvenile sentencing rule from here on — but for new sentencing proceedings only, it appears.
When Justice Anthony M. Kennedy’s opinion reached the point of creating a remedy for past violations of that rule, however, his opinion said flatly that “a state need not guarantee the offender eventual release.” Any sentence for a non-homicide crime by an individual under age 18 at the time of the crime must include, Kennedy wrote, “some realistic opportunity to obtain release” before the individual’s life ends. What the offender must show in that situation, according to the opinion, is “demonstrated maturity and rehabilitation.”
The Constitution, according to the ruling, “does not require the state to release” a juvenile offender “during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives.” All that a state may not do, the ruling said, is make the judgment “at the outset” — that is, at the time of sentencing — that the youthful offender “never will be fit to reenter society.”
Justice Kennedy also made clear that, at this point, the Court was not going to go beyond the mandate of “some meaningful opportunity” to seek release. “It is for the state, in the first instance, to explore the means and mechanisms for compliance” with that mandate, the opinion said.
Justice Clarence Thomas, in the part of his dissenting opinion that attracted the support of Justices Samuel A. Alito, Jr., and Antonin Scalia, forecast the consequences of the Court’s having left that part of the remedy uncertain. Predicting that the courts of the nation will be embroiled for years in clarifying litigation, Thomas listed these questions for the future: “What, exactly, does such a ‘meaningful’ opportunity entail? When must it occur? And what Eighth Amendment principles will govern review by the parole boards the Court now demands that states empanel?”
And Thomas also pointed out, indirectly, that one of the next court battles is likely to be over whether Monday’s ruling will lead to new constitutional limits on mandatory minimum sentences for juvenile offenders in non-homcide cases. In a footnote, he cited the fact that Colorado, a state that forbids life-without-parole sentences for such offenders, does allow them to be sentenced to up to 40 years in prison. And, that footnote added, even the lawyer representing a Florida juvenile in this case conceded that such a sentence “would probably be constitutional.”
Another sequel issue that seems certain to arise is whether the Graham ruling will have any impact on life-without-parole sentences for adults who commit crimes short of murder. While the Kennedy opinion is focused heavily upon the lack of maturity and judgment among juveniles, some of the language of the opinion about the harshness of life-without-parole sentences may lead some adult inmates under such sentences to see some hope for a new Eighth Amendment challenge.
There is another possible limitation lurking in what the Court did on Monday on juvenile sentencing: without explanation, it simply dismissed as “improvidently granted” a second Florida juvenile offender’s case, Sullivan v. Florida (08-7621). The Justices had reviewed that case separately from the Graham case, but then disposed of this second one without saying why. In fact, what had happened in that case in Florida courts was that, for procedural reasons, state courts refused to rule formally on the same Eighth Amendment challenge that ultimately prevailed Monday in the Graham case. That raises the possibility that some of the other 129 juvenile offenders now serving life-without-parole sentences for non-homicide crimes may have had their chances to take advantage of the new ruling foreclosed by procedural flaws.
In the Sullivan case, his lawyers had asked the Court to look beyond the procedural defect found in his case by Florida courts, and give him, too, a ruling on the Eighth Amendment question. By dismissing the case, without more, the Court simply declined to do so. Whether Florida courts, or a federal judge in a future federal habeas case, would now take on that task remains to be seen.