Graham v. Florida

By Patty Garin and David Kelston

In Roper v. Simmons, 543 U.S. 551 (2005), the Court announced a “categorical rule” prohibiting the death penalty for defendants who committed their crimes (homicide in the Roper case) before the age of 18. The death penalty is reserved, the Court said, for the most culpable defendants, and juveniles cannot with reliability be among those offenders because of an undeveloped sense of responsibility, heightened susceptibility to negative influences and outside pressures, and their “more transitory” and “less fixed” character. Thus, in Graham v. Florida, 130 S.G. Ct.2011 (2010), the Court, relying on Roper, announced another categorical rule: life sentences without the possibility of parole for non-homicide offenses committed by juveniles offend the Eighth Amendment’s prohibition on cruel and unusual punishment. Justice Kennedy wrote for the five member majority (he was joined by Justices Stevens, Ginsburg, Breyer and Sotomayor), with the Chief Justice concurring on narrower grounds.

Terrance Graham, 16 years old and with three other juveniles, attempted to rob a barbecue restaurant in Jacksonville, Florida. An accomplice struck the manager in the head with a metal bar, and the youths fled without taking any money. Graham was arrested, pled guilty, and was sentenced to probation. Despite his seemingly earnest promises to the court to reform, he was arrested less than six months later. The court found he had violated his probation by a home invasion robbery (he was not in fact convicted of this offense), and he was sentenced to the maximum sentence for the earlier armed robbery to which he had pled: life imprisonment, which, because Florida has abolished its parole system, left executive clemency, an exceedingly rare occurrence, as his only chance for release. Justice Kennedy’s opinion for the Graham Court was simple, logical, persuasive and welcome.

Established Eighth Amend-ment jurisprudence, he began, requires that the punishment be proportional to the crime, with the analysis beginning with “objective indicia of national consensus” – i.e., what our evolving national standards of criminal law provide. While federal law and a significant majority of the states permit life sentences for juveniles in non-homicide cases, the Court found that in fact only a handful of states actually imposed such sentences. Thus, wrote Justice Kennedy, “it is fair to say that a natural consensus has developed” against such sentences. Next, relying on the Roper analysis (since community consensus alone is not determinative), the Court, noting that “[l]ife without parole is an especially harsh punishment for a juvenile,” found the sentence without sufficient “penalogical justification” – the purposes of retribution deterrence, or incapacitation were all found wanting when considered in these circumstances. The Court then announced its categorical rule: “This Court now holds that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.”

What is most welcome about the Graham decision is that the Court – too often willing to be activist these days in the wrong direction – did not shy from a salutary categorical rule when it could easily have decided the case on narrower grounds based on the facts before it. Also telling was Justice Thomas’s dissent, joined in whole by Justice Scalia and in part by Justice Alito, showing that at least three of the justices indeed adhere to an originalist jurisprudence which, in its purest incarnation, purports to tolerate little evolution since the time of the founders and, in this case, finds the whole notion of proportionality a judicial “creation.” Justice Stevens’s concurrence – an answer to the dissenters – reminds us of why we will miss him: the “Court wisely rejects [Justice Thomas’s] static approach to the law. Standards of decency have evolved … . They will never stop doing so.”

Under current Massachusetts law, a child as young as 14 will receive a life sentence without the possibility of parole if he or she is convicted of first degree murder. See M.G.L. c. 119 § 74; M.G.L. c. 265, § 2. All youth 14, 15 and 16 charged with first or second degree murder are automatically tried as adults in Massachusetts Superior Court. See M.G.L. c. 119, § 74. (“The juvenile court shall not have jurisdiction over a person who had at the time of the offense attained the age of fourteen but not yet attained the age of seventeen who is charged with committing murder in the first or second degree.”) There is no point in the proceedings where the judge or jury can consider the juvenile’s age, life history, potential for rehabilitation or other mitigating factors. In Massachusetts, every child convicted of first degree murder who was 14 to 16 at the time of the offense receives

a mandatory life without parole sentence. There are no exceptions.

As of September 2009, there were 57 males in Massachusetts serving life without parole sentences for crimes committed when they were 14 to 16. (See Until They Die a Natural Death, Children’s Law Center of Massachusetts, September, 2009). African American youth in Massachusetts are disproportionately affected by the juvenile life without parole sentences. While they only make up 6.5% of the population of all children under age 18, African American youth are 47% of those sentenced to serve life terms without the possibility of parole for a childhood offense. Sixty-one percent of youth under age 18 sentenced to life without parole in Massachusetts were young boys of color. See Until They Die a Natural Death, p. 14.

The Massachusetts sentencing scheme for juveniles convicted of first degree murder is one of the harshest in the country and in the world. Only one other state, Connecticut, mandates both that all 14 to 16 year olds be tried in adult court and that all 14 to 16 year olds convicted of first degree murder receive a natural life sentence. All other states allow for discretion either by the district attorney or judge concerning the court (juvenile or adult) or the sentence. Six states and the District of Columbia prohibit all life without parole sentences for juvenile offenders. The states that permit a sentencing court to use its discretion in sentencing a convicted juvenile to life without the possibility of parole have sentenced markedly fewer juveniles to this sentence than have states where life without parole is a mandatory sentence as in Massachusetts.

The United States is the only country in the world that subjects juvenile offenders to the possibility of a life without parole sentence. See Amnesty International and Human Rights Watch, The Rest of Their Lives: Life Without Parole for Youthful Offenders in the United States in 2008 2 2008, p. 1. We have 2,484 serving the sentence; the rest of the world has none.

Relying on Roper and Graham and the recent scientific developments in adolescent brain development and adolescent psychology, it is likely that juvenile life without parole sentences will soon be challenged in Massachusetts as unconstitutional both under the Eighth Amendment and Art. 26 of the Massachusetts Declaration of Rights. In April of 2010, John Odgren, the mentally-ill adolescent with Asperger’s Syndrome who killed a classmate at Lincoln Sudbury High School – for no apparent reason – was convicted of first degree murder and sentenced to life without parole. Although John Odgren has a life-time of mental health issues, no criminal record, and, due to his Asperger’s Syndrome, functions socially and emotionally at about the level of a 12 or 13 year old, he was sentenced to spend the rest of his life in prison. The Court had no opportunity to consider the many mitigating factors in sentencing this very young and very mentally ill defendant.

As the Supreme Court recognized in Graham, “juvenile offenders cannot with reliability be classified among the worst offenders” and their transgressions are “not as morally reprehensible as that of an adult.” “From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” It is time for Massachusetts to reform its sentencing scheme for juveniles charged with murder.

Patty Garin is a partner at Stern Shapiro Weissberg & Garin in Boston;  David Kelston, member of the Mass. Chapter Board of Directors, is a partner at Adkins Kelston Zavez, also in Boston.