Transcript: SCOTUS oral argument of Bryan Stevenson on life sentences for 14-year-old children
Evan Miller v. Alabama
Supreme Court oral argument of Bryan A. Stevenson on behalf of the petitioner on March 20, 2012:
MR. STEVENSON: Mr. Chief Justice, and may it please the Court:
In Graham v. Florida, this Court recognized that children are inherently characterized by internal attributes and external circumstances that preclude a finding of a degree of culpability that would make a sentence of life imprisonment without the possibility of parole constitutionally permissible under the Court’s Eighth Amendment excessiveness analysis.
While the issue in Graham involved juveniles that were convicted of non-homicide offenses, these deficits in maturity and judgment and decision making are not crime-specific. All children are encumbered with the same barriers that this Court has found to be constitutionally relevant before imposition of a sentence of life imprisonment without parole or the death penalty.
In fact, in Roper, this Court acknowledged that these differences between children and adults exist even in the cases involving the most aggravated murders.
These deficits, these differences, are even more pronounced in young children.
JUSTICE GINSBURG: Mr. Stevenson, but in Roper, the Court also made the point — when it ruled out the death penalty, it said, “To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction.”
So, the Court in Roper seemed to be anticipating this case and suggesting that — that it was all right, it was constitutional.
MR. STEVENSON: There’s no question, Justice Ginsburg, that the — the default sentence in Roper was life imprisonment without parole, but we actually think that, specifically with regard to that provision, there is no greater deterrent effect, and these deficits, that these problems that children experience, lend themselves to an analysis that is subject when the punishment is life imprisonment without parole. Like the death penalty -
JUSTICE SCALIA: What about 50 years? Is that — is that too much?
MR. STEVENSON: What the Court held in — in Graham -
JUSTICE SCALIA: Well, you know, once - once you depart from the principle that we’ve enunciated that death is different, why is life without parole categorically different from 60 years or 70 years or - you know, you’d be back here next term with a 60-year sentence?
MR. STEVENSON: Justice Scalia, I think you’re absolutely right, that there is a point at which a term-of-year sentence could constitute the same kind of judgment -
JUSTICE SCALIA: Okay.
MR. STEVENSON: — as life imprisonment without parole.
JUSTICE SCALIA: Good.
MR. STEVENSON: But there is a distinction obviously between life imprisonment without parole and any other term sentence. Those sentences in most instances, if the sentence is not too extreme, do permit the possibility of release. And what this Court held in Graham is not that the State forfeits the ability to incarcerate for life -
JUSTICE SCALIA: I’ll change my — I’ll change my question to 50 years without possibility of parole.
MR. STEVENSON: Yes. And -
JUSTICE SCALIA: Then you have no — no distinction, right?
MR. STEVENSON: Well, I think there, it would be a tough case. I think imposed on a juvenile, a 50-year sentence -
JUSTICE SCALIA: Without -
MR. STEVENSON: — would not create the meaningful possibility of release that this Court ordered in the Graham context. It would be right on the line, but I think 50 years would actually be on the other side of a meaningful possibility of release. It would be sort of a cynical reaction, if this Court were to say we ban life without parole for these kinds of offenders, it would be somewhat problematic to suggest that we’re going to get as close to death as possible and then facilitate some kind of review. I think what we’re interested in -
JUSTICE SCALIA: How about 15 years old? 15, 60 years; or 14, 70 years?
MR. STEVENSON: I think all of the -
JUSTICE SCALIA: What — what’s the distinction between 14 and 15?
MR. STEVENSON: Well, I think from a sentencing perspective, all of those sentences would be problematic. But the distinction between a 14-year-old and a 15-year-old for constitutional purposes is that, of course, the younger you are, the more compelling are these deficits, these distinctions, that -
JUSTICE SCALIA: I understand, but how are we — how are we to know where to draw those lines? We can’t do it on the basis of any historical tradition, certainly.
MR. STEVENSON: Well, I think that -
JUSTICE SCALIA: The common law left it up to the jury to take account of the youthfulness of the offender.
MR. STEVENSON: Well, what I think -
JUSTICE SCALIA: They’re all entitled to jury trial, right -
MR. STEVENSON: Yes.
JUSTICE SCALIA: — before they’re -
MR. STEVENSON: Well, that’s true. But, of course, in this case, Justice Scalia, and in the other case, there was no discretion for the sentence. Neither the judge nor the jury could give any effect to the age of Evan Miller, who was 14. But I also think that we’ve identified lots of laws that make these distinctions. We do provide for greater responsibilities -
JUSTICE GINSBURG: Would that satisfy you if the — if it were not a mandatory term and it was left to the trier to put — put in all the mitigating circumstances?
MR. STEVENSON: That would not satisfy me, Justice Ginsburg, for all the reasons that this Court acknowledged in Graham, that — that the problem with many of these crimes is that the offense itself can overwhelm all of these mitigating factors, all of these aspects of juvenile decision making that we think are constitutionally permissible. The other problem is that we still can’t make good judgments about whether a child — whether these characteristics are transitory or permanent.
JUSTICE KENNEDY: So, you’re saying it would be unprincipled for us to say — or at least unsupported for us to say — that the sentence cannot be mandatory, but that in some cases, it might still be imposed.
MR. STEVENSON: I think it would be principled to — to kind of strike down mandatory sentences, but I think constitutionally what this Court has recognized in Roper and in Graham, that it would be a — a mistake to equate kids with adults. And we don’t have the ability to make those judgments even if we create a different kind of process.
JUSTICE SCALIA: What do you mean -
JUSTICE KENNEDY: If you take that off the table, then you leave us with nothing but saying that the sentence is never permitted or that it’s always permitted.
MR. STEVENSON: Well, I — I don’t mean to take it off the table; I just mean to argue, as we did previously, that a categorical ban would be consistent with the Court understanding about child status and development.
JUSTICE ALITO: If you could write the opinion for us, what would you hold?
MR. STEVENSON: I would hold that children are categorically prohibited from being subjected to sentences -
JUSTICE ALITO: What’s — what’s the definition of a child for that purpose?
MR. STEVENSON: Well, we presented data in this case that would exclude a youth 14 and younger. No State that has set a minimum age for life without parole has set it beneath the age of 15, other than one. And so, we — we would make that holding. I do think it would be -
JUSTICE ALITO: So, you — you would hold you can’t — there cannot be a sentence of life imprisonment without parole for anyone under 15, but for anybody over 15, it would be permissible.
MR. STEVENSON: No, I would also hold, Your Honor, that a mandatory sentence for that cohort would also be in violation of this Eighth Amendment principle.
JUSTICE GINSBURG: Or you could say you reserve that question for another day.
MR. STEVENSON: Well, I think that the problem, Justice Ginsburg, is — is that these cases with the mandatory sentencing aspects to them create kind of a data issue that this Court has usually relied on to kind of generate an interest.
I think right now we know that excluding considerations of age and character in a sentencing determination of life imprisonment without parole is problematic. The Court in -
JUSTICE ALITO: Can you tell us where the age line needs to be drawn for constitutional purposes?
MR. STEVENSON: I — I would draw it at 18, Justice Alito, because we’ve done that previously; we’ve done that consistently.
JUSTICE ALITO: That’s where you think the logic of your argument leads.
MR. STEVENSON: That’s exactly right.
JUSTICE ALITO: And you would say that a17 — a person of 17 years and 10 months, 11 months, who commits the worst possible string of offenses still – and demonstrates great maturity — still cannot be sentenced to life imprisonment without parole.
MR. STEVENSON: That’s right, for the same reasons that we made that determination in Graham and that the Court made that determination in Roper. I understand that there are some tensions when we draw those kinds of lines -
JUSTICE SOTOMAYOR: I’m sorry. I thought you just said a second earlier that you had a bifurcated rule: No life without parole whatsoever for 15 and under, and no mandatory life for 16 — 15 and over.
MR. STEVENSON: That — that would be — I’d have two rules, Justice Sotomayor. My preferred rule would be a categorical ban on all juveniles under the age of 18. And I don’t want to retreat from that in any way. All of these deficits, all of these characteristics, that we’re talking about have been recognized to apply to all youth up until the age of 18.
JUSTICE SOTOMAYOR: How do you — how do you write the opinion to do the bifurcated rule? What justifies an absolute ban at a certain age and a modified ban above an age, and how do you deal with Harmelin with respect to the second part of your rule?
MR. STEVENSON: Yes.
JUSTICE SOTOMAYOR: Harmelin says we don’t look at individualized sentencing.
MR. STEVENSON: Yes.
JUSTICE SOTOMAYOR: So, how do we get rid of the mandatory if that’s what we’re were going to do?
MR. STEVENSON: It’s a challenge, and I -and I concede that. But I — and so, the first part of my answer would be that I think the easier rule to write would be that there is a categorical ban on all life without parole sentences for all children up until the age of 18, acknowledging -
JUSTICE SCALIA: How — how do I come to that decision? What do I — just consult my own preferences on this matter? Something like 39 States allow it. I mean, the American people, you know, have decided that that’s the rule. They allow it. And the Federal Government allows it. So, I’m supposed to impose my — my judgment on — on what seems to be a consensus of the American people?
MR. STEVENSON: Well, at least in this case, you’d look to your precedent in Roper and in Graham, which drew that line.
JUSTICE SCALIA: Well, that’s not going to help me, you know.
MR. STEVENSON: Well, I understand -
MR. STEVENSON: I understand, Justice Scalia, but I don’t think you can draw much comfort in the fact that 39 jurisdictions make this theoretically possible. That same number existed in the Graham context. Most of those jurisdictions have not addressed a minimum age for life without parole. In fact -
JUSTICE ALITO: What do you mean when you say that, that they have not addressed it? If a State law allows it, have they not addressed it?
MR. STEVENSON: Yes. That is, what the State permits is that -
JUSTICE ALITO: So, legislators don’t understand that their law permits this?
MR. STEVENSON: I don’t think we can read into a transfer judgment, which is the only judgment that they’ve made. They’ve said that some children of some age can be treated like adults. They haven’t talked about what that — what the punishment should be.
And the reason why I say that, Justice Alito, is that in many of these States, there’s no minimum age for trying a child as an adult.
JUSTICE ALITO: But I don’t really understand this argument. You mean the legislatures have enacted these laws, but they don’t realize that, under these laws, a — a person under the age of 18 may be sentenced to life imprisonment without parole for - for murder. They don’t understand that?
MR. STEVENSON: They — they have not considered that or adopted or endorsed it, would be more accurate.
JUSTICE KENNEDY: That’s difficult because the statistics show there are 2300 prisoners now under sentence of — with life without parole for juvenile murders and they’re — that were committed under 18; 2300 nationwide.
MR. STEVENSON: That — that’s correct.
JUSTICE KENNEDY: So, it’s very difficult to assess your answer to Justice Alito that, oh, the legislatures don’t know about this.
MR. STEVENSON: Well, in — that answer -that number, Your Honor, is partly rooted in the fact that these sentences are mandatory. There is no one capable, once the court makes a decision to try the
child as an adult, to do anything to consider the status of children.
JUSTICE KAGAN: Mr. Stevenson -
JUSTICE ALITO: If you think these legislators don’t understand what their laws provide, why don’t you contact them? And when they — when you tell them, do you realize that in your State a — a 16-year-old or a 17-year-old may be sentenced to life imprisonment without parole for murder, they’ll say: Oh, my gosh, I never realized that; let’s change the law.
MR. STEVENSON: Well, I — I mean, I don’t think there are any legislatures that are — that are quick to make their sentences less — more compassionate, more responsive to — to juvenile crime of any sort. But -
JUSTICE ALITO: So, they’ve made a decision on this. Now, maybe it’s a bad decision -
MR. STEVENSON: Yes.
JUSTICE ALITO: — but I really don’t understand how you can argue that they have not made a decision on this -
MR. STEVENSON: I think -
JUSTICE ALITO: — and they are not aware of what their law provides.
MR. STEVENSON: Yes. I think the strength of my argument, Justice Alito, is that the States that have actually considered, discussed, and passed laws setting a minimum age for life without parole have all set that minimum age above 15. That’s my primary argument. Thirteen States have done it; all of them except for one have set it at 18 -
JUSTICE ALITO: And you think there’s a difference between the State that says expressly a juvenile below a certain age may be sentenced to life imprisonment without parole and a State that says that if a person is convicted of capital murder, that sentence may be imposed and, in another — in another provision, says that juveniles may be transferred for prosecution as adults.
MR. STEVENSON: I -
JUSTICE ALITO: There’s a difference between those two?
MR. STEVENSON: There is. And that’s because the — the transfer question, which is what informs whether children can be subject to these sentences or not, is a very different question. It’s a question about whether the juvenile system that may mandate release at age 18 or age 21 is adequate for an offender. It’s not a judgment that that child should therefore be subject to life imprisonment without parole.
And so, you have this disconnect. You have transfer judgments, which this Court recognized in Thompson and in Graham were not proxies for sentencing judgments. And because of that, it is a very different calculation.
The second point is that if there is no minimum age for trying children as adults or even prosecuting children as adults, I think we’d have to concede that there is an age at which a life without parole sentence would be constitutionally impermissible for any crime. And to the extent that the State hasn’t addressed that, which they clearly haven’t — you know, in this cohort of 79 children with life without parole for crimes at 14 and younger, more than half come from States where there’s no minimum age for trying children as adults.
That means in that State, a 10-year-old child would arguably have been contemplated by the legislature to be an appropriate person for life without parole, or an 8-year-old child and a 6-year-old child, and I think that asks too much of these statutes.
JUSTICE SOTOMAYOR: Counsel, there is no question that you’re dealing with a much smaller universe of children sentenced to life without parole who are 14 and under. There’s an argument that that’s because so few of them commit the crimes. But putting that aside, the universe is rather small.
MR. STEVENSON: Yes, Your Honor.
JUSTICE SOTOMAYOR: All right? There is a much, much larger group, as Justice Kennedy pointed out, for life without parole for juveniles at 15 and above.
MR. STEVENSON: Yes.
JUSTICE SOTOMAYOR: Go back to my question.
MR. STEVENSON: Yes. Yes.
JUSTICE SOTOMAYOR: I need an answer to it.
MR. STEVENSON: Yes.
JUSTICE SOTOMAYOR: Which is, assuming -
MR. STEVENSON: Yes.
JUSTICE SOTOMAYOR: — the bifurcated theory that you proffered, tell me how we get around Harmelin. How would you write that decision?
MR. STEVENSON: Yes. Well, I think that, first of all, what this Court has relied on when it has looked at these numbers, what it has been trying to figure out, are these objective indicia of society’s standards, its mores, its decency meter, if you will.
And we’ve looked at these numbers to inform us, are these sentences that are — that are consistent with evolving standards of decency, or are they now beyond a maturing society? And we’ve always found in these data some measures. In the death penalty context, we’ve looked at that in the Roper area, in the Atkins area, and we’ve been able to make some judgments. The reason why we could do it in these death penalty cases is that, unlike the cases here, the death penalty determination is discretionary. The sentencer is required to consider and evaluate a range of mitigating circumstances and facts, including age, that help us assess whether the determination that death is the appropriate punishment means something in a society still trying to evolve.
Here that’s not true. The majority of these sentences are mandatory. So, the number tells us less about what the Constitution requires -
JUSTICE KAGAN: Mr. Stevenson, do you have statistics about how many of these sentences are imposed in under 18-year-olds in non-mandatory States?
MR. STEVENSON: The — the data on the larger population is not as precise, Justice Kagan, as it is with our younger population, but the majority of States are mandatory States, and the estimates are about that 85 percent of those sentences are mandatory sentences. Certainly, the States that have the largest populations — Michigan, Pennsylvania — these States have mandatory regimes.
JUSTICE KAGAN: So, you think it would be true, going up to age 18, that 80-plus percent are imposed in States that have mandatory systems?
MR. STEVENSON: That — that’s correct. And, in fact, the overwhelming majority of those sentences come from a handful of States where there is very little discretion to impose a sentence other than life imprisonment without parole.
And because of that feature, I don’t think, Justice Sotomayor, that the — that the reliance on the number is quite as powerful here as it has been in the death penalty context, where that number represented a very communal judgment with a lot of factors.
JUSTICE SOTOMAYOR: There wasn’t a majority in theory in Harmelin, and — but at least three Justices spoke about a gross disproportionality.
MR. STEVENSON: Right.
JUSTICE SOTOMAYOR: Is it your views that life — a mandatory life without parole for someone like a juvenile is grossly disproportionate?
MR. STEVENSON: It is, for the very reasons that the Court articulates in both Roper and Graham. We’re not arguing that life without parole is disproportionate to the crime of aggravated murder. We’re arguing that the status of children, with all of the deficits that childhood status creates, makes that kind of judgment cruel.
JUSTICE KENNEDY: If we can focus on the mandatory aspects of the case, I think — I know you’d prefer a more general rule — it may be that we have to have your general rule. I’m not sure. If I’m the trial judge, and I have to determine whether or not I’m going to give life without parole, and it’s discretionary, what — what do I look at? Are — can I get social scientists to come in and tell me what the chances of rehabilitation are? Are there — are there statistics?
Now, we have some quite compelling stories of rehabilitation in this case. I don’t know if they’re isolated; I don’t know where they are in the statistical universe of how often rehabilitation is — is demonstrated and is real. What do I look at? What’s a judge supposed to do?
MR. STEVENSON: Well, I think one of the problems, Your Honor, with — with trying to make these judgments is that — that even psychologists say that we can’t make good long-term judgments about the rehabilitation and transitory character of these young people. That’s the reason why in Graham this Court didn’t permit that kind of discretion. We know that -
JUSTICE SCALIA: Well, I thought that modern penology has abandoned that rehabilitation thing, and they — they no longer call prisons reformatories or whatever, and punishment is the — is the criterion now. Deserved punishment for crime.
MR. STEVENSON: Well -
JUSTICE SCALIA: Now, if that’s the criterion, is everything that you say irrelevant?
MR. STEVENSON: I -
JUSTICE SCALIA: Let’s assume I don’t believe in rehabilitation, as I think sentencing authorities nowadays do not. Both at the Federal and the State levels, it’s been made clear.
MR. STEVENSON: Well, I — I — no. I think it would still be relevant, Justice Scalia, but — but I also don’t think that correctional facilities have identified themselves as having no role to play in the rehabilitative process. I mean, one of the problems with this sentence of life imprisonment without parole is that it actually bans and shields this population from a whole range of services that are specifically designed to rehabilitate: education services, treatment services, anger management programs. All of these programs exist within prisons, including the Federal prisons, because we do care how people perform when they are released. And so, corrections is still very much the heart and soul of what we do. But even if it wasn’t, punishment nonetheless has to be proportionate, and recognize that it can be excessive. And what this Court has said is that when you’re looking at children, to equate the failings of a child and an adult would be cruel. It would be unfair to — given our knowledge and understanding of what developmental science has taught us and what we know about kids.
JUSTICE KENNEDY: Well, again, it seems you’re just forcing us into a — a bipolar position. We’re either going to say that you can’t prevail at all or that everyone under 18 is — cannot get life without parole. I don’t see this middle course -
MR. STEVENSON: Yes.
JUSTICE KENNEDY: — which you seem to have abandoned, and you can’t tell me how a judge would apply it if we — if we chose not to abandon it.
MR. STEVENSON: Well, I — I don’t intend to abandon it, Justice Kennedy. I mean, obviously, I’m arguing for this categorical ban, but I think the Court could obviously do something else.
We think that there is a basis for concluding, unquestionably, that a child under the age of 15 should not be exposed to life without parole based on this Court’s precedents and on the data that’s presented. The Court could set a categorical line there and, at the same time, make a determination that subjecting any child under the age of 18 to life without parole where there is no ability to consider age is fundamentally at odds with what this Court has now constitutionally recognized in both Roper and Graham.
JUSTICE GINSBURG: Mr. Stevenson, may I ask you a case — a question specifically about the Miller case? There were two boys involved in this horrendous crime. The older one took a plea and got life with parole. Was the plea offered to Miller?
MR. STEVENSON: No plea was offered to Miller. The — what tends to happen, and there was some evidence of this that was developed earlier, is that the question was who was going to give a statement first, who was the most cooperative, whose lawyer is most effective at accomplishing that. There were some complaints. There’s a post conviction pending now that makes some allegations about what the lawyer didn’t do to facilitate a plea. But, no, there was no offer of life with parole made to Evan Miller.
And one of the difficulties, of course, in these cases is that, you know, the younger you are, the more vulnerable you are, the less experienced you are, and the less capable you are of managing these dynamics in the criminal justice system that sometimes can be very outcome-determinative.
CHIEF JUSTICE ROBERTS: Any idea how many juveniles subject to a sentence of life without parole do plead to a lesser sentence?
MR. STEVENSON: Well, no, it’s very hard to determine, mostly because States don’t keep data -
CHIEF JUSTICE ROBERTS: Right.
MR. STEVENSON: — on the issue.
CHIEF JUSTICE ROBERTS: Is there any reason, just — I realize it’s speculation, but wouldn’t you think prosecutors would view that as a particularly attractive offer to someone who’s young in the sense that they may regard the sentence as extraordinary themselves, that it may be particularly attractive to someone who’s young in a way that it wouldn’t be a 40-year-old, a — an offer of 25 years may not be as attractive as it is to a 15-year-old?
MR. STEVENSON: Well, they might. And I would concede, Your Honor, that this population is kind of less equipped to make determinations about whether to take a plea or whether to not take a plea than an adult.
CHIEF JUSTICE ROBERTS: It might be also a basis for — to question the statistics you put forward about how often -
MR. STEVENSON: Yes.
CHIEF JUSTICE ROBERTS: — this sentence is actually imposed. In other words, the evolving standards of decency you suggest — the prosecutors in the State may not be immune to that evolution, either.
MR. STEVENSON: They may not be, Your Honor, but we haven’t found sort of — at least in this population, any evidence that they are capable of protecting children who, we believe at least, should be protected.
And one of the interesting things, at least looking at this cohort of 79, a great number of them have older codefendants. Both of the kids in the cases before the Court today have older codefendants who got sentences that were less than life without parole. In the Kuntrell Jackson case -
CHIEF JUSTICE ROBERTS: Well, but those statistics aren’t very helpful because we have no idea in the particular cases as to whether or not perhaps the older offender was less — less guilty than the 16-, 17-, 15-year-old.
MR. STEVENSON: That — that’s right. Although in some of these cases actually, when you read the opinions, you do see the evidence of the shooter not getting the life without parole sentence and the accomplice getting it. And I guess my point would be is that -
JUSTICE SOTOMAYOR: Did that happen in Jackson?
MR. STEVENSON: Yes, it did. Yes, it did. And my point would be that it — this younger population is going to be disadvantaged in managing this aspect of the process that I think is quite important when the Court is trying to consider whether there should be a categorical ban or something less than a categorical ban.
And, Justice Kennedy, I don’t mean to suggest that the Court cannot, consistent with its precedents, make a categorical ban under 17. But I also don’t mean to suggest that if the Court can’t do that, that there aren’t ways of reconciling the precedents, with drawing a line at 15 and striking down mandatory life without parole. I would urge, for the reasons that we’ve stated, that in these circumstances it’s better to have a sentence where you can make a judgment about rehabilitation and public safety later in life. We’re not arguing that the State has to give away the authority to incarcerate someone even for the rest of their life — life without parole, which is available in this State, Alabama, would facilitate that — but create a meaningful possibility of release that this Court has ordered to be constitutionally necessary in Graham v. Florida. I see my white light is on. I’ll reserve the rest of my time for rebuttal.
Rebuttal argument of Bryan A. Stevenson on behalf of the petitioner:
MR. STEVENSON: Thank you, Mr. Chief Justice.
I just want to make clear that the rule we seek would not require States to impose the same sentence on juveniles convicted of homicides from juveniles convicted of non-homicides. The States would be free to do that if they chose to, but they could certainly create a regime where it’s life with parole where there are different ages for eligibility. In fact, the State of Nevada makes you eligible for parole after 15 years if the crime is a non-homicide, 20 years if it’s a homicide.
The States would still have a great deal of flexibility to create, consistent with this Court’s rule, a regime that makes these distinctions.
Justice Kennedy, I did want to point - direct your attention to two amicus briefs that I think respond to two of the questions you’ve raised. There is an amicus brief submitted by criminologists in this case, and it looks specifically at the question of deterrence. And what they’ve found is life without parole has not had any measurable deterrent effect. The States that don’t put juveniles — don’t subject children to life without parole have actually experienced the same level of decrease in violent crime and homicide as the States that do. And, in fact, in some of those jurisdictions, the decrease is even more significant.
I also want to address your question, Justice Scalia. There is — there are some studies that have established that juveniles are more likely or less likely to recidivate after an intervention than adults. Generally speaking, homicide offenders are categorically less likely to recidivate than many non-homicide offenders. Drug offenders and property crime offenders are much more likely to recidivate than — than homicide offenders.
And so, there’s a lot to support that a judgment rooted in these penological concerns would be well-supported here.
I also want to return, Justice Breyer, to your question. Mr. Neiman has — argued that we can read into these statutes a commitment to imposing life without parole at a particular age, and that age is the age of transfer. I just want to highlight that the two States with the largest populations of juveniles serving life without parole by a huge margin are Pennsylvania and Michigan, neither of which has a minimum age.
That means in those States, a child of any age can be subject to a mandatory sentence of life without parole. It’s simply not true — true that we can read into those statutes in those jurisdictions any kind of conscious commitment to thinking about age.The other point I want to make -
JUSTICE ALITO: Do you think the legislators in Pennsylvania and Michigan don’t understand what their laws provide?
MR. STEVENSON: I — I think that they haven’t thought about it. Yes, I do think that. I mean, for example — this goes to the next point I was about to make — my colleague keeps talking about aggravated murder. In the State of Pennsylvania, it’s not just aggravated murder that subjects you to a mandatory life without parole; if you’re convicted of second-degree murder — no intent — diminished — it’s still mandatory life without parole. We have 14-year-old children — and, again, that’s the largest cohort in our group — in the State of Pennsylvania convicted of clearly unintentional killings that have been subject to mandatory life without parole. South Dakota does the same thing. I think, where there is no minimum age and where you have that kind of regime, I cannot — I don’t think we can conclude that they’ve thought about, yes, it’s appropriate.
CHIEF JUSTICE ROBERTS: What if they — what if they do? I mean, what if, after our decision or even after the argument, States go back and say, look, the decision is based on the fact that they don’t think we know our law, that we haven’t thought about it; so, let’s have a hearing about it, and then we vote that, yes, there should be or, no, there should not be a minimum age; we think at 16 — whatever age they do. Then does the constitutional rule change?
MR. STEVENSON: Yes. I -
CHIEF JUSTICE ROBERTS: Once we get 30 States saying, look, we’ve thought about it and this is our answer, then whether the Eighth Amendment prohibits it or not changes?
MR. STEVENSON: No, I — I don’t think it changes, because there is an age at which this Court is obligated under the Eighth Amendment to say a sentence of this sort, a permanent judgment that life-long incarceration is — is required -
CHIEF JUSTICE ROBERTS: Right. But one of the things we take into account is societal consensus, and you say we should ignore the 30 — whatever it is –States that allow this because they didn’t really think about it.
MR. STEVENSON: Well -
CHIEF JUSTICE ROBERTS: So, I’m postulating -
MR. STEVENSON: Sure.
CHIEF JUSTICE ROBERTS: — let’s make - let’s see if they have thought about it.
MR. STEVENSON: Yes. Well, in — in that regard, Justice — I mean, Mr. Chief Justice, I think that we do have 13 States that have thought about it, that have expressly looked at this question of what the minimum age should be. And in 12 of those 13 States that have set the age above 14, most of those States have set the age at 18. So, if that’s the Court’s lens, then I think that would support the kind of rule that we’re seeking here -
JUSTICE SCALIA: What if, instead of striking down the laws in these States, why don’t we just require the State legislatures to think about it? All right? And — and then see how many think about it, and — and come up with, you know, something that agrees with you or doesn’t agree with you.
MR. STEVENSON: Well, I think that’s in part -
JUSTICE SCALIA: Wouldn’t that be more democratic somehow?
MR. STEVENSON: It might be more democratic, but I don’t think it would be consistent with the constitutional obligation that this Court has to protect people who are vulnerable from excessive punishment.
And this is a cohort that we contend is the most vulnerable and should be shielded from this excessive punishment.
- WhatTheFolly.com: Transcript: SCOTUS oral argument of John Neiman on life sentences for 14-year-old children
- SupremeCourt.gov: Evan Miller v. Alabama – petitioner’s brief (PDF)
- SupremeCourt.gov: Evan Miller v. Alabama – respondent’s brief (PDF)
- SupremeCourt.gov: Evan Miller v. Alabama – petitioner’s reply brief (PDF)