Proportionality, Youth and Innocence

As reported in today's NY Times (here), the certiorari petition in Sullivan v. Florida (docket sheet here), raises the question of whether a sentence of life in prison without eligibility for parole is cruel and unusual punishment for a non-capital crime committed by a 13-year-old. The state has until February 20 to file a response to the petition. (Respondents are not required to file a response to a cert petition and, in fact, are often well-advised not to file a response: Doing so consumes resources and may alert the Court to the importance of the case; if the Justices are considering granting review, they will call for a response, at which point the respondent makes its arguments why the Court should not hear the case.)

The Times story (although apparently not the cert petition itself) raises three separate issues: proportionality, juvenality, and innocence. The first two appear to be intertwined in this case; the third (mostly) does not. Let's consider them in turn.

The Supreme Court's capital jurisprudence has long recognized that proportionality is one requirement of the Eighth Amendment. Thus, even though the traditional common law approach imposed the death penalty for all felonies, it is well established that the death penalty is disproportionate for just about every crime other than murder. I say "just about every" rather than "every" because last year's ruling in Kennedy v. Louisiana distinguished crimes against individuals from "crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State." How exactly "drug kingpin activity" is a crime against the state rather than individuals is unclear, but in any event, outside of this possibly exceptional though somewhat odd category, the rule now appears to be that only crimes resulting in the death of a victim can result in the death penalty.

But what about the proportionality of non-capital sentences? The Court's jurisprudence in this area both affirms that there is some such requirement and that judicial review within this category is extraordinarily deferential. Thus, the Court has upheld California's three-strikes law, which can subject offenders to life imprisonment for repeatedly shoplifting videos. (The plurality opinion in the leading case, Lockyer v. Andrade , is a bit more complicated because Justice O'Connor made reference toAndrade's other crimes---such as residential burglary---and because it arose in the context of a federal habeas corpus case, in which federal courts are already required by the Anti-Terrorism and Effective Death Penalty Act to give deference to state court rulings.) Given that non-violent recidivists can be given what amount to life sentences, it is hard to imagine that life without eligibility for parole is a disproportionate punishment for the crime of raping a 72-year-old woman, the offense for which Sullivan was convicted.

Accordingly, the real issue in Sullivan is whether life without eligibility for parole is disproportionate for a 13-year-old who rapes a 72-year-old woman. One possibility would be that life without eligibility for parole is disproportionate for a 13-year-old who commits any crime, even mass murder. Under Roper v. Simmons, juveniles cannot be sentenced to death. Likewise, under Kennedy and Coker v. Georgia, no one can be sentenced to death for committing rape. But the assumption in both of those cases---and an assumption of some people in the death penalty abolitionist movement more broadly---has been that life imprisonment is an adequate penalty where capital punishment is unavailable. Given that, I imagine that if the Court grants cert, the Justices will be at least a bit reluctant to announce a blanket rule that minors cannot be given life imprisonment without eligibility for parole.

The question then will be one of line-drawing: How serious must the crime be (rape seems to satisfy whatever threshold might reasonably be found) and how old must the offender be before life without parole is acceptable. Here one can expect the Court to try to answer the second question by looking around at what most states do (its approach in Kennedy, Roper and other recent cases) and perhaps by taking note of a further argument that is less about proportionality per se than it is about what we might call the possibility of "redemption:" One could argue that it is cruel and unusual to assume (by denying any possibility of parole) that a 13-year-old is forever unreformably evil.

Finally, it is worth noting the lingering question of whether Sullivan committed the offense. This issue is distinct because quite obviously life imprisonment without eligibility for parole is a constitutionally disproportionate punishment for an innocent. However, in Oregon v. Guzek, the Supreme Court held (unanimously) that there is no Eighth Amendment right of a capital defendant to introduce new evidence of innocence at the penalty phase of his trial. Justice Scalia, joined by Justice Thomas, wrote a concurrence in the judgment arguing that the Eighth Amendment would not be offended even by a rule that forbade a capital defendant from arguing against the death penalty based on residual doubt from the guilt phase of the trial. The majority did not reach that issue, and so it is at least technically an open question. But that question will not be rsolved in Sullivan, even if the Court grants review.

Posted by Mike Dorf