Tuesday, November 10, 2009


Day One, Graham, and Sullivan

Yesterday was the first class day of a new quarter at Baylor Law School. We move fast-- fall graduation just occurred on Saturday!

The quarter started with a bang for me, too. I was shocked (and pleased) to find that 50 students were in my sentencing class. I have never had more than 30 in the past, and usually the class is about 20, so 50 is a giant increase. My bet is that more students are interested in criminal law than ever. At least that is my hope; I am going to do my best to make it a great class.

If you doubted that sentencing is important, intriguing, and practical, read the stories tomorrow about the Sullivan (argument transcript here) and Graham (argument transcript here) cases that were argued yesterday in the Supreme Court. As many of you know, the subject of these cases, the sentence of juvenile life without possibility of parole, is of great interest to me.

It sounds like the Chief Justice made clear in oral argument that he would like the court to consider something other than a bright line constitutional ruling based on age-- he would prefer that sentencing judges be forced to take age into account when sentencing juveniles to lengthy sentences. While I'm certain this is a good idea, I'm not sure it answers the precise question before the Court in these cases, which is specifically whether or not that sentence is cruel and unusual. Thorough process is good, but the question is about outcomes, and the answer needs to address outcomes.

UPDATE: It appears that Uber-blogger Doug Berman agrees with me, though he uses the much more sophisticated (and accurate) term "textualism" to describe this approach.

I hate these kind of bright line rules that the court is forced to come up with. I've seen evil in juveniles and adults. However, creating a bright line rule between a 12 or 13 yr old and the next birthday is really ridiculous. It should be up to the trial courts to have discretion to decided based on the FACTS, not the age.
It can be perfectly fine to sentence a 13 to life if the judge or jury is convinced it's necessary.
It seems like the proper forum for this is in the legislatures in the various states that employ this and by changing perceptions there, rather than create a rule based on the date someone is born rather than what they actually did.
The reasoning of Roper required that state consensus be considered, along with the court's own judgment and world consensus. In Roper the majority worked hard to establish the consensus, something that will be impossible in this case without an even more magical approach to statistics than that employed in Roper. The Court's own judgment will decidedly become a heavier factor in 8th Amendment analysis if Sullivan and Graham suceed in a bright-line rule. The liberal coup may be complete...let the Court's judgment supplant that of the State legislatures, after all, they know best. World consensus was not even alluded to in argument.

That said, having spent some time reading over the transcripts, I think that Kennedy is going to join Roberts, Scalia, Alito and presumably Thomas in the majority opinion. I even think it possible that Sotomayor may go with the majority on this one. She did not seem to be comfortable with a bright-line rule favoring Graham and Sullivan. The Chief Justice has a reasoned approach that requires a case-by-case analysis that does little to disturb the judicial systems in place. Simply put, there will be an 8th Amendment requirement to consider the age of a juvenile when a sentence of life without parole is imposed. Done and done. My only hope is that Scalia writes the opinion, if for no other reason than the fact that I appreciated his sarcasm in Roper with regard to statistics.
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