Legal Commentary

Supreme Court to Review Life Without Parole For Children

By TChris

The Supreme Court Justices are obviously avid TalkLeft readers. How else to explain the Court's agreement to decide whether the imposition of a sentence of "life without parole" upon a juvenile offender for a crime other than murder is constitutional? After all, the Court granted certiorari in two cases raising the issue yesterday, just four days after this TalkLeft post declared such sentences to be "costly, cruel and foolish." When TalkLeft speaks, the Supreme Court listens!

Yeah, right. To be fair, the Justices might be readers of the Los Angeles Times editorial page, from which the "costly, cruel and foolish" language was borrowed. Or maybe they just thought the issue had merit. If so, they were right.

If, as the Court reasoned in Roper v. Simmons, the death penalty is unconstitutional when applied to crimes committed by children because children are "immature, unformed, irresponsible and susceptible to negative influences, including peer pressure," the penalty of life without parole suffers from the same infirmity. It assumes that a child, whose intellectual and emotional development is incomplete, will never change, even after reaching adulthood, and therefore deserves no chance of parole. [more ...]

That the reasoning is parallel does not guarantee that the Supreme Court will apply a death penalty precedent to a lesser punishment than death. The Supreme Court has often declared that "death is different," and the finality associated with death might be viewed as having a different character than the finality of life without parole.

Still, Justice Scalia argued in his Roper dissent that the majority's condemnation of juvenile death sentences would logically extend to sentences of life without parole. If Justice Scalia said so, it must be true.

On the other hand, Justice Kennedy's majority opinion in Roper observed that the death penalty was unnecessary to deter juvenile crime because the possibility of being sentenced to life without parole would remain as an effective deterrent. Does that box in Justice Kennedy, or will he deem that language inapplicable since the cases before the Court don't involve murders? It's one thing to take away a child's freedom forever as punishment for murder, and another to do so as punishment for a home invasion.

Just as interesting is whether Justice Kennedy (or the other Justices) will be inclined to look at international norms to decide what is "cruel and unusual" in the United States. Justice Kennedy did so in Roper and was criticized by a vast army of right wing punditry (and by Justice Scalia). Will he shy away from recognizing the evolving standards of decency that have shaped the rest of the western world, or will he be moved by the recognition that "[t]he United States is alone in the world in making routine use of life-without-parole sentences for juvenile offenders"?

That the Court accepted the cases for review indicates that at least four Justices think the issue is worth deciding. My prediction is that the decision will be 5-4 with Justice Kennedy casting the deciding vote. My ability to predict how he'll vote is about as reliable as a coin toss. Progressives can only hope that Justice Kennedy is an avid TalkLeft reader ... or at least that he respects the LA Times editorial board.

Full post as published by TalkLeft on May 05, 2009 (boomark / email).