Transcript: SCOTUS oral argument of John Neiman on life sentences for 14-year-old children

Evan Miller v. Alabama

Supreme Court oral argument of John C. Neiman on behalf of the respondent on March 20, 2012:


MR. NEIMAN: Thank you, Mr. Chief Justice, and may it please the Court: Imposing life without parole sentences on aggravated murder offenders like Evan Miller is in line with the national consensus, is morally justified, and is consistent with legitimate penological goals.

I’d like to touch on all three of those points at some juncture today if I can, but I’d like to start if I can with the conversation Mr. Stevenson was having with a few of the Justices about the national consensus issue in this case and more particularly what we can infer about the judgment of legislatures and ultimately the people, based on the statutes we have in this case and the very different set of circumstances we’re looking at here than the circumstances the Court was looking at in Graham.

Exhibit A on that front is the fact that out of the 39 States or jurisdictions that allow this sentence, as Mr. Stevens has indicated — or Mr. Stevenson has indicated, a good chunk of them, 27 in all, make the sentence the minimum sentence under the statute. That’s an important fact both because it tells us a little bit about the retributive goals that the legislatures were trying to achieve through these statutes, but it also -­


JUSTICE KENNEDY: Life without parole is the minimum?

MR. NEIMAN: Life without parole is the minimum sentence for anyone who commits an aggravated murder or at least certain kinds of aggravated murders in 27 of those jurisdictions.

JUSTICE KENNEDY: That’s also — that’s also the maximum because there could be no death penalty.

MR. NEIMAN: For a juvenile, yes, Justice Kennedy, that’s correct. And effectively the message that the legislatures are sending is that with respect to aggravated murders, the worst of the worst kinds of murders, there are effectively two sentences. There is either the death penalty or there is some sort of mitigating circumstance. The person is at least going to serve life without parole in order to -­

JUSTICE BREYER: Of the numbers, the 79 to 82 — I guess there’s some disagreement whether it’s 82 or 79. Regardless, in your opinion, or maybe it’s in the briefs — I just can’t remember it — of those, say, 79, how many are there for reasons of mandatory sentence where they would not — no one could consider the individualized nature of the crime or the criminal?

MR. NEIMAN: We don’t have precise statistics, sir. I should say I -­

JUSTICE BREYER: What’s your estimate?

MR. NEIMAN: I can’t vouch to the statistics on that point.

JUSTICE BREYER: That’s all right. What’s your estimate?

MR. NEIMAN: My answer is I don’t know, in terms of how many are mandatory and how many are not. Mr. Stevenson -­

JUSTICE BREYER: Well, how many come from the States that have this mandatory system? That shouldn’t be too hard to find out.

MR. NEIMAN: Well, overall, Mr. Stevenson cited about 8 who were sentenced pursuant to non-mandatory schemes, of the 79 to 82.

JUSTICE BREYER: Non-mandatory. So –

­MR. NEIMAN: Correct.

JUSTICE BREYER: So, you think it’s almost — it’s probably 90 percent.

MR. NEIMAN: According to Mr. Stevenson’s statistics, it’s about 90 percent of the cohort that comes from the mandatory jurisdiction.

JUSTICE BREYER: And that’s — all right. It’s about 70 or 71, and I remember reading a statistic somewhere where they managed to count up the number of possibilities, i.e., serious murders committed by those under 15 over 50 years or some long number of years, and it was somewhere in the 70,000s, what was it? Or 20,000s? What was it?

MR. NEIMAN: Your Honor, the statistics I have seen that Mr. Stevenson cited in his reply brief had 7500 -­

JUSTICE BREYER: Seventy-five hundred?

MR. NEIMAN: — as the number of arrests of persons under the age of 15 for committing homicide or non-negligent manslaughter.

JUSTICE BREYER: I’ll read it.

MR. NEIMAN: But that -­

JUSTICE BREYER: It’s about 1 percent.

MR. NEIMAN: It -­

JUSTICE BREYER: One percent. If I carry that number around in my mind, that 1 percent of those who might have obtained this terrible penalty, 1 percent are actually given it?

MR. NEIMAN: Your Honor, as Graham indicated, that denominator is crucial. But the 7500 number cannot be the appropriate denominator for determining whether actual sentencing practices indicate a national consensus against this practice. The reason why is because that 7500 number is not the number of convictions; it’s not the number of opportunities that judges have had to impose this sentence. It is the number of arrests, and it’s the number of arrests over the course of 40 years in every jurisdiction, including those that don’t impose life without parole at all.

JUSTICE BREYER: I see. All right.

JUSTICE SOTOMAYOR: Counsel -­

JUSTICE ALITO: It’s not even for homicide offenses that would qualify for life imprisonment without parole for an adult. It’s for any non-negligent homicide; isn’t that right?

MR. NEIMAN: That’s correct, Justice Alito. And the real denominator here, the one the Court ought to look at when it considers the role that actual sentencing practices play in the analysis, ought to be the number of aggravated murder convictions.

JUSTICE BREYER: All right, but what is -­

MR. NEIMAN: That’s a number we don’t have.

JUSTICE BREYER: It’s not going to be easy to get to this, I guess. So, I’ll — but I want to be sure you do at some point. And I’m not certain it’s a — it’s a cruel and unusual punishment argument. It may be more of a due process argument. But I want to know the justification — giving all those statistics that you’ve seen and that was in Roper and so forth -­ procedurally speaking, what is the justification for not giving the defendant any opportunity to point to mitigating features in his lack of development, in his age, in his upbringing, et cetera? That to me is a difficult question, but before we get to that topic, I’d — go ahead.

JUSTICE SOTOMAYOR: Actually, I do want to ask, and it dovetails with what Justice Breyer is asking, the Enmund/Tison line for adults, which is we can’t execute someone who hasn’t killed, intended to kill, or was reckless in killing. This is a question more in the Jackson case, because I think it’s an issue there. But although all murder is heinous and regrettable, there are different kinds of murder. That’s why some people are subject to the death penalty and others are not. And I do see a world of difference between the Miller killing and the Jackson killing vis-à-vis the individual defendants’ personal liability.

So, assuming there are different kinds of -­of killings, of murder, should we be looking at the Enmund/Tison line at all? Should we be talking about its application to juveniles in a different way? Being Enmund/Tison basically, okay, felony murder if you know that there’s a gun involved, but should that line be the same for juveniles?

And, if so, then how do you go back to justifying, as Justice Breyer spoke about, the mandatory nature of life imprisonment without parole, given that not every juvenile is equal and not every murder is equal with respect to them?

MR. NEIMAN: Justice Sotomayor, the clearest line the Court could draw on this front would be the line that the Court initially set out in Graham as between homicide and non-homicide offenses. Perhaps there would be some question about whether an Enmund-type felony murder counts as a homicide offense or not, but my suggestion is that it would, at least if the Court is looking for a clear line that wouldn’t undermine too much of what the Court set out in Graham
in terms of clearly distinguishing between homicide and non-homicide offenders. Nonetheless, I certainly agree that there are fundamental differences between certain kinds of murders, and I think that judgment is reflected in the
legislation we have in at least 27 of these States, where aggravated murder in the very — in the very least carries with it a life without parole sentence for any defendant regardless of the mitigating circumstances or the like.

JUSTICE SOTOMAYOR: But that’s not an individual legislative determination. That’s — that’s just a -­

MR. NEIMAN: It is a legislative determination that aggravated murder as a class of offenses is so contrary to society’s values and so contrary to the dignity that we assume that every victim ought to be afforded, that life without parole is the appropriate sentence.

So, I think there is a — there is an inference to be made there about the legislative judgment, particularly because the sentence is a minimum one. The three-Justice concurrence you mentioned, Justice Sotomayor, from Harmelin makes this point -­point quite vividly.

In Solem v. Helm, the Court had struck down a sentence under the gross disproportionality analysis,and the Harmelin concurrence indicated that the Court was a little more comfortable doing that, because the sentence in that case was above the minimum and, thus, did not reflect the judgment of the legislature. But when we’re talking about the minimum sentence, it’s fair to infer that that’s the sentence that the legislature thought as a class, in terms of a
class of offenses, that would be the minimum appropriate sentence for that particular crime. Now, Justice Breyer -­

CHIEF JUSTICE ROBERTS: When you — it’s a little confusing to me, but when you refer to “minimum,” I assume that was because of the statutes prior to Graham had death as one of the other options, that that is no longer an option. So, it’s — it’s a little awkward to refer to it as minimum when it’s also a maximum.

MR. NEIMAN: That’s correct, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: When you have -­ when an individual is prosecuted for an aggravated murder that carries this sentence, is it typical to also charge lesser included offenses?

MR. NEIMAN: Yes, Mr. Chief Justice, and -­

CHIEF JUSTICE ROBERTS: And — and in general, what is the distinction between exposure to the — the maximum crime and a lesser included crime? In other words, what is the difference between
aggravated murder and manslaughter? It typically turns on the state of mind, doesn’t it?

MR. NEIMAN: That’s correct, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: So, is there any reason to think that juries in a case where they’d have the option for lesser included offenses might be concerned in light of the age of the defendant about whether or not the requisite intent was formed? It seems to me that some of the issues that we’ve suggested justify a different treatment of juveniles have to do with mental development, and those same issues would be taken into account by a jury in considering which of a list of offenses the juvenile should be convicted of.

MR. NEIMAN: Mr. Chief Justice, it’s certainly within the realm of reason and possibility for -­

JUSTICE GINSBURG: Was it — was it a factor in Miller’s case? Was there a lesser — lesser offense that was charged?

MR. NEIMAN: Yes, Justice Ginsburg, there were lesser included charges of at least felony murder, which has a very different intent type element to it. But Miller, at least with respect to the charge on the capital murder committed in the course of arson, which is an intentional murder, was found guilty by the jury on that charge.

JUSTICE GINSBURG: He was — the — there was also a felony murder charge in the Miller case?

MR. NEIMAN: Yes, Justice Ginsburg, there were two felony murder charges, one as to the robbery in the case and one as to the arson in the case.

JUSTICE SCALIA: So — so, it may not be realistic to speak of mandatory life without parole. It’s only mandatory if the youth is convicted of the highest charge brought, but it remains within the power of the jury, in light of the youth, to convict him of a — of a lesser offense which would not produce mandatory life imprisonment without parole.

MR. NEIMAN: I suppose that’s so, Justice Scalia.

JUSTICE KAGAN: But, Mr. Neiman -­

JUSTICE KENNEDY: Are juries instructed that life without parole is a necessary consequence of their decision? I suppose a defense attorney could argue it.

MR. NEIMAN: Justice Kennedy, actually, I think you are right to the extent you’re suggesting that juries probably don’t — aren’t actually instructed on that point. And, in fact, it would probably be reversible error, I suppose -­

JUSTICE KENNEDY: I would think so.

MR. NEIMAN: — for a jury to be instructed on that point. Nonetheless, the judgment that legislatures have reached in terms of setting life without parole as the floor for, you know, any murderer is one that was — that’s reasonable and justified and -­

JUSTICE KAGAN: Mr. Neiman, I wonder if we can go back to the issue that Justice Breyer left on the table, and this doesn’t have much to do with how many States do what, but instead just to say that in the death penalty context, we’ve insisted on individualized sentencing. And in Graham, of course, we equated juveniles who were sentenced to life without parole to people who — to adults who were sentenced to death and said that those two should be treated equivalently.

And I’m wondering whether that doesn’t suggest that the rules we have in the death penalty context about individualized sentencing ought to apply to juveniles who are sentenced to life without parole?

MR. NEIMAN: Justice Kagan -­

JUSTICE KAGAN: Regardless of, like, how many States do what and how many times this happened, but just, you know, two facts: We’ve insisted on this in the death penalty context, and we’ve equated the death penalty context to juveniles without life -­parole in Graham.

MR. NEIMAN: Justice Kagan, the answer on that front, I think, is that Harmelin effectively sets a bright line here such that individualized sentencing is only required in a — in a death penalty case. And it does so -­

JUSTICE KAGAN: Yes, but Harmelin is pre-Graham, and in Graham we equated these two things, adults sentenced to death and juveniles sentenced to life without parole.

MR. NEIMAN: Well, the reason why Harmelin drew that line and, I guess more to the point, the reason why Woodson v. North Carolina and Lockett v. Ohio held that individualized sentencing was required in the death penalty context was not because the sentence happened to be the highest sentence that someone could receive, but because the sentence was death. And there were certain -­

JUSTICE ALITO: In Graham, didn’t the Court reject the idea of individualized sentencing in which youth would be taken into account on a case-by-case basis?

MR. NEIMAN: That’s correct, Justice Alito. The States were here jumping up and down asking for that precise result, and we did not get it. And the reason why, the result the Court thought was appropriate was rather than allowing the defendant to argue for mitigating circumstances and for the State to respond with aggravating circumstances in one of these cases, the answer was for the juvenile to get a mitigation trump card.

And in one of these sentencing proceedings, the juvenile would be able to say: I’m a juvenile, and that means that I don’t get the highest sentence I otherwise would get. I win the sentencing phase as -­as a matter of law.

JUSTICE KAGAN: But the fact that we’ve said that individualized sentencing was not enough in one context does not suggest that individualized sentencing ought not to be the rule in a different context where there is no categorical bar.

MR. NEIMAN: Justice Kagan, the response on that front, I think, is that the rule from Woodson and Lockett requiring individualized sentencing was one that’s specifically tailored to the unique aspects of the death penalty, aspects that remain unique, notwithstanding Graham and the rule it imposed with respect to juveniles.

But also Woodson and Lockett — although I realize that the premise of your question is that we should not look at what other States are doing, the premise of Woodson and Lockett was that States had widely rejected mandatory death penalty sentencing, and we know from the legislative record here that States have done quite the contrary when it comes to mandatory life without parole sentencing -­

JUSTICE BREYER: So, is that — I have — I understand your arguments, both sides. I think I’ve pretty much got the arguments on the question of the individualized sentencing. You can make an argument that it should be individualized, life without parole, up to age 18; say 7 through 17. And there’s an argument the other way which you’re making. Okay.

What I want to know is your argument the opposite way on this one. What’s the minimum age, in your opinion, or is there any constitutional minimum at all in respect to which you could give for a murder a child life without parole? I mean, you could have an instance of a 10-year-old or an 8-year-old. I mean, is it totally up to the States, or is there a minimum? And if there is a minimum, what is it in your opinion?

MR. NEIMAN: Yes, Justice Breyer, I think there is a minimum now.

JUSTICE BREYER: What is it?

MR. NEIMAN: It — I would be hesitant to commit to a minimum without -­

JUSTICE BREYER: Well, do your best.

MR. NEIMAN: — without further factual development.

JUSTICE BREYER: Do your best.

MR. NEIMAN: It would -­

JUSTICE BREYER: Do you want to say 12?

MR. NEIMAN: It would depend -­

JUSTICE BREYER: Do you want to say 10? Do you want to say 9? Because as soon as whatever you say, I’m going to say: And why not 14?

MR. NEIMAN: Okay. Well, I -­

(Laughter.)

MR. NEIMAN: I will say — I would argue if I were the State up here trying to defend a 12-year-old’s sentence, I would argue that that was the line. So, a 12 — well, no — well, yes. Someone who’s either -­

JUSTICE BREYER: Do you see the difficulty? All right. So, now put yourself in my position, because my -­

JUSTICE SCALIA: Gee-whiz. You know, I was beginning to agree with you -­

(Laughter.)

JUSTICE SCALIA: — about this case, because I thought you were appealing to what the American people think about the line or maybe to the common law. Now, the common law had a rule of — of the age of reason. I think below 12, you couldn’t — at least you couldn’t impose the death penalty. Maybe you couldn’t even convict for a felony. But you just pluck some number out of the air.

MR. NEIMAN: No — no -­

JUSTICE SCALIA: Why can’t I pluck a number out of the air if you pluck one out of the air?

MR. NEIMAN: Justice Scalia, I was about to give Justice Breyer the arguments that I would make if I were the State in those circumstances about why that’s the line. Reason number one is national consensus.

JUSTICE ALITO: If we look to objective indicia, as all of the cases in this line have, what is the lowest age as to which you can say there is any indication of a societal consensus that this is okay? Wouldn’t it be 14?

MR. NEIMAN: Well -­

JUSTICE ALITO: How many States allow it for a 13-year-old or a 12-year-old?

MR. NEIMAN: The number of States that allow it for a 12-year-old are somewhere around — well, I suppose that number is close to 10 or so.

JUSTICE GINSBURG: Is -­

MR. NEIMAN: So, that’s one reason why I would draw the line around 12 or so. If you look at, for example, the table -­

JUSTICE ALITO: So that 10 States will allow it for a 12-year-old. How many would allow it for a 13-year-old? Do you happen to know?

MR. NEIMAN: At that point, we’re getting up to much more substantial numbers. I guess when we get up to 14, we’re somewhere in the realm of 30 or more.

JUSTICE GINSBURG: Is it taken into account when the — the child is in the juvenile system initially, has to be moved to the adult system. Is the judgment — is there any cutoff on the transfer? Or can a child be transferred to the adult system at any age?

MR. NEIMAN: Well, that I think is the appropriate line in terms of thinking about what the minimum is here. The answer depends on the jurisdiction. In Alabama, 14 is the minimum. But that number is, compared to a lot of other jurisdictions, a little high. There -­

JUSTICE GINSBURG: So, if you’re — if you’re under 14, you can’t be transferred out of the juvenile system?

MR. NEIMAN: That’s correct. In Alabama, if you’re under 14, you can’t be transferred out. Now, many other States, at age 13, you can be transferred in — or you can be transferred into the adult system, which is why there are few 13 year-olds serving this sentence. But -­

JUSTICE GINSBURG: So, if he were only 13, he would get out when? When he was 21?

MR. NEIMAN: In Alabama, the juvenile justice system’s jurisdiction terminates at 21, yes.

JUSTICE BREYER: That’s why he’s arguing that the legislatures don’t focus on it. If you do a public opinion poll, or just ask me, for example, or ask anyone, you say the question is: Should — at what age should juveniles be able to be transferred out of the juvenile system into the adult system?

You might get one answer. Maybe 14, maybe 15, maybe 12.

But if you put the question, at what age should they be receiving a mandatory life without parole, the answer might be different. And his point is they never ask that question. They ask the first question, not the second. And that disturbs me enough to think that I can’t think the answer to this question that I asked you just relies on public opinion polls or even just the number of States. I’m not sure about it.

But that’s why I want to hear your response, because it sounds like we’re arguing between whether it should be 13, 12, or 14, in terms of an absolute cutoff.

So, how do I approach that? I’m asking you for help on that one. I know you have a side in this. But I say, well, we’re talking about 14, and we have all this scientific literature and so forth.

MR. NEIMAN: Justice Breyer, the reason why it’s fair to infer that legislatures would have concluded that a 14-year-old, for example, in Alabama would be subject to a mandatory life without parole sentence is precisely because it’s mandatory. Surely, the legislatures understood that when they were transferring persons who committed crimes like aggravated murder that were well within the heartland of the crimes for which the transfer statutes were intended, those offenders would be subject to the minimum sentences at least. It’s quite another thing to say, well, the legislature might have enacted a statute providing for transfer for a 14-year-old; and for a non-homicide crime, they might have assumed that the person would get less than the maximum in terms of life without parole.

But, surely, the legislators understood that those offenders would at least get the minimum.

And the reason why the line is more safely drawn at 13 or 12, it’s because if you look at, for example, the tables from the Department of Justice reports that both sides and the amici have cited listing the transfer ages, by and large, the number seems to cut off at 12 or so. And 12 would be on the very bottom end of the range; and if I were a defense attorney, I’d be arguing much harder for a line at 13 than 12. I imagine if I were a defense attorney, I’d be arguing for an even higher line than that.

But the point is that if we’re going to judge this in terms of objective indicia of what society has decided, that seems to be the line that society has drawn. That line is -­

JUSTICE KENNEDY: In the — in the Petitioner’s briefs, the idea of deterrence kind of drops by the way side. Have there been any studies that show that there is a deterrence value? I remember in Roper, there was actually discussion among the young people before they committed the crime as to whether or not they could get the penalty. It was actually right there in the record. Does the State rely on the deterrence component of the punishment here?

MR. NEIMAN: Justice Kennedy, we think that deterrence is in the mix, but it’s certainly not the primary goal that these statutes serve when -­

JUSTICE KENNEDY: Is it retribution?

MR. NEIMAN: Retribution, Justice Kennedy, would be the primary goal, bringing society’s retributive force to bear on those who commit the worst sort of crimes.

JUSTICE KENNEDY: Retribution, of course, is related to personal culpability. We said that in Tison, and that loops back into the minor problem.

MR. NEIMAN: That’s exactly right, Justice Kennedy, but I think one point on which Mr. Miller and the State fundamentally disagree here is what we can conclude about a juvenile’s culpability when the juvenile has committed aggravated murder. The reason why Graham came out as it did, the reason why life without parole was not permissible, was because Graham himself had not committed murder. The Court there said that meant that Graham’s culpability was twice diminished, once because he was a juvenile and once because he had not committed murder. Well, here we have the hypothetical from Graham where the one level of diminishment is gone. And Miller has — Miller is entitled to a one-level diminishment because of his juvenile status, but he’s not entitled to that second level of diminishment, which he is what he’s seeking here.

JUSTICE KENNEDY: Are you aware of any statistics that give us some quantitative sense as to how many juveniles after years and years of prison show significant rehabilitation? Do we know anything about that?

MR. NEIMAN: Justice Kennedy, I know of no statistics on that particular front. I imagine that some vignettes could be told about success stories and some vignettes could be told about stories that were not success stories and -­

JUSTICE SCALIA: Do you have any reason to think that juveniles are any better than anyone else as far as learning from prison is concerned? I mean, recidivism is a big problem, isn’t it? People who’ve been to prison go out and commit the same crimes again, don’t they?

MR. NEIMAN: That’s exactly right, Justice -­

JUSTICE SCALIA: Is there any reason to think that juveniles are any different?

MR. NEIMAN: Justice Scalia, I haven’t seen any studies that would suggest that juveniles do better, particularly when they’re subjected to the sorts of crimes that I think everyone would have — or the sorts of offenses, let me say, that I think everyone would agree the Constitution would have to permit a sentence of, say, 40 years minimum or the like.

So, I just don’t think — I think society -­society’s primary goal here or the government’s primary goal here is expressing the retributive judgment about the wrongfulness of murder and why it’s different from, not homicide, but 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. Society acts with particular revulsion when a convicted murderer commits a crime again.

And even if — and even if that difference in terms of recidivism is no different, or even if the possibility for recidivism is no different, the fact that the person committed a murder once and might commit a murder again is reason enough for legislatures to be hesitant to allow for parole in these circumstances.

With respect to the penological purposes, there’s also an important purpose here with respect to the unique factors and the unique circumstances that murder victims and their families face.

I think a lot of people hear about life-without-parole sentences, and if they impose them on political grounds or policy-based grounds, one of their sort of pragmatic responses is, well, what’s the cost to all this? Why not just let these guys get their parole hearings, give them that hope, and likely they won’t get parole anyway?

And there’s really no cost to society at least in allowing that process to occur, but the cost is to the victims and their families who have to endure what are often very painful hearings and parole hearings. And when those come up on a frequent basis, that sort of re-traumatization process is something that governments can legitimately take into account when they decide that for aggravated murder — and not for other crimes but for aggravated murder — a life-without-parole sentence is an appropriate sentence.

On the moral culpability point, there would be some anomalies created by the rule that Miller is seeking here. Miller’s asking the Court to effectively hold him in the same place in terms of his moral culpability as the defendant in Graham. In other words, Graham can only get life with — life with parole because of his reduced moral culpability. And Miller is saying he should only get life without parole because of his reduced culpability.

So, that would mean one of two things: Either the Eighth Amendment would put a murderer on the same moral level as someone who committed a non-homicide crime as in Graham, or Graham himself would be back in this Court or a court of another jurisdiction arguing that because Graham held that Graham himself had categorically less culpability than someone like Miller, then Graham himself is entitled to a lesser punishment than the one that Miller, in fact, received.

JUSTICE KAGAN: When you look — Mr. Neiman, if you look at those two cases and you look at the individuals, the child’s actions in the two cases, they really are remarkably similar. They’re sort of a piece. Don’t you agree? I mean, how — how is it that the child’s actions in this case were any different from that in Graham?

MR. NEIMAN: Justice Kagan, I think that Miller’s actions were dramatically different from Graham’s actions, in part because Miller intended to kill this victim and killed the victim in a rather gruesome way. So, there’s not an element of luck here in terms of the fact that, oh, well, Graham was simply lucky that he didn’t commit -­

JUSTICE GINSBURG: That’s in — in the Jackson case. In the Jackson case, the crime was very similar to -­

JUSTICE KAGAN: I’m sorry. Justice Ginsburg is, of course, right.

MR. NEIMAN: Well, I defer to my colleague from Arkansas in terms of the distinctions between Jackson and Graham, but certainly with respect to Miller’s crime, his moral culpability is greater, and the law should recognize that.

JUSTICE KENNEDY: If the judge were to determine under a rule that the sentence can’t be mandatory whether or not life should be imposed, what would be the sorts of factors that he would look at, or do you think those are just too ineffable, too imprecise to be considered?

MR. NEIMAN: Well, Justice Kennedy, I think it certainly would be possible to have a regime under which a judge considered mitigating circumstances in a case like this. Many jurisdictions have reasonably opted for that route rather than the one that Alabama and 26 other jurisdictions have, and -­

JUSTICE KENNEDY: They’re the standard sorts of mitigating circumstances that we see in capital cases, you think?

MR. NEIMAN: Absolutely. I think that’s exactly what would happen. You would have arguments about certain murders being worse than others. And Mr. Miller would have an opportunity to argue about other mitigating circumstances relating to his background and the like, as he’s argued in his reply brief here.

But at the same time, it’s reasonable for legislatures to conclude that they’re going to draw a line in the sand with respect to aggravated murder, such that — as a floor in terms of the appropriate punishment, the defendant is going to get at the very least life without parole, a punishment that’s no doubt severe but one that is less severe than the impact that the crime has had on society.

And for those reasons, we’d ask the Court to affirm.

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