WASHINGTON -- In 2005, the Supreme Court banned the death penalty for minors no matter how heinous the crime. In 2010, the justices drew the same line, this time at 18-years-old for the imposition of life without parole for non-homicide offenses. Justice Anthony Kennedy, siding with the court's liberal bloc, wrote the five-justice majority opinions in both cases.
On Tuesday morning, juvenile justice reformer Bryan Stevenson delivered oral arguments in a pair of cases during which he pushed the court to go a step further and declare life without parole for juvenile murderers similarly unconstitutional. Kennedy, however, appeared uninterested in altogether eliminating the sentence, favoring instead a half-step that Stevenson advanced in his briefs but downplayed during the argument.
Stevenson's clients, Evan Miller and Kuntrell Jackson, were convicted in Alabama and Arkansas, respectively, of homicide for crimes they committed when they were 14. In 2002, Miller and a friend beat a 52-year-old neighbor with a baseball bat and then set fire to his trailer where the man burned to death. In 1999, Jackson was party to a robbery in which his co-assailant shot in the face and killed a video store clerk. Miller and Jackson are now among the 79 people nationwide serving life without parole for offenses committed when they were 14 or younger Such a sentence was mandatory in all but eight of those cases.
Stevenson delivered an ambitious argument, fearless of Justice Antonin Scalia's and Justice Samuel Alito's early attempts to trip him up on the slippery questions of line-drawing.
"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?" Scalia asked.
Stevenson confidently slid down that slope, telling Scalia that he was "absolutely right" that extended sentences of 50 years or more "would not create the meaningful possibility of release" that the court commanded two terms earlier in the non-homicide context.
Alito used Stevenson's briefs on the life-without-parole sentences for those 14 and younger in his argument. "You would hold," Alito suggested, that "there cannot be a sentence of life imprisonment without parole for anyone under 15, but for anybody over 15, it would be permissible."
Stevenson rejected that sentence even for the older group as a violation of the court's principle, set forth in 2005 when banning the death penalty for those under 18. It is cruel and unusual under the Eighth Amendment to deprive a minor of "his potential to attain a mature understanding of his own humanity," the 2005 decision said.
Justice Ruth Bader Ginsburg suggested that he "reserve that question for another day." But that suggestion went nowhere. Alito soon asked Stevenson to "tell us where the age line needs to be drawn for constitutional purposes," and Stevenson obliged.
"I would draw it at 18, Justice Alito, because we've done that previously, we've done that consistently."
"And you would say that at 17 -- 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," Alito asked.
"That's right," Stevenson replied, pointing again to the previous two cases that drew that line.
Justice Stephen Breyer later played the opposite with Alabama Solicitor General John Nieman, asking him to name a lower age limit for the sentence of life without parole. "Do you want to say 12? 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?'"
Kennedy, however, seized upon Stevenson's more modest argument, put forward in his briefs, that the court could also declare unconstitutional the mandatory imposition of life without parole, leaving juries with the ability to mete out that punishment after they considered mitigating factors such as age, mental health, and home life. So seriously did Kennedy seem to take this option that several times he tried to pull Stevenson back from his maximalist argument.
"It seems you're just forcing us into a bipolar position," Kennedy said. "We're either going to say that you can't prevail at all or that everyone under 18 ... cannot get life without parole. I don't see this middle course which you seem to have abandoned."
Kennedy is the perennial swing-vote of the Roberts court.
"I don't intend to abandon it, Justice Kennedy," Stevenson answered. "I mean, obviously, I'm arguing for this categorical ban, but I think the court could obviously do something else."
Questioning Nieman, Chief Justice John Roberts appeared to put his weight behind Kennedy.
"It seems to me that some of the issues that we have 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," the chief said.
Still, life without parole "reinforces the sanctity of human life and it expresses the State's moral outrage," Arkansas Assistant Attorney General Kent Holt said in defense of his state's sentencing law.
"You say the sanctity of human life, but you're dealing with a 14-year-old being sentenced to life in prison, so he will die in prison without any hope," Ginsburg retorted. "I mean, essentially you're making a 14-year-old a throwaway person."
Several minutes later, near the end of the two hours, Roberts made clear that despite his ambiguous stance that morning on the constitutionality of mandatory life-without-parole laws, his sympathies did not rest with the young men challenging their sentences.
"Do we know how old Laurie Troup was when she was shot," he asked Holt, referring to the video store clerk killed during the robbery that led to Jackson's conviction for felony-murder.
"Yes, Your Honor. Laurie Troup was 28 years old when she was shot," Holt said. "She was discovered by her mother and her 11-year-old son."
The justices will likely hand down their decisions in Miller v. Alabama and Jackson v. Hobbs by the end of June.
Clarification: A previous version of this story stated that Miller and Jackson are now among the 79 people nationwide serving life without parole for their juvenile offenses. This sentence has been updated to reflect that the offenses were committed at age 14 or under.