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The United States Supreme Court is set to decide two cases that could eliminate life without parole for juveniles convicted of non-homicide offenses.

On November 9, 2009, the Court heard arguments in two cases, Graham v. Florida and Sullivan v. Florida, in which petitioners challenged the constitutionality of life without parole for juveniles convicted of non-homicides as “cruel and unusual” under the Eighth Amendment. Chief Justice Roberts made significant efforts to garner support for his position that the punishment should be allowable, but that the juvenile’s age must be taken into account when imposing such a sentence. The outcome of both cases is uncertain, as the Court appears likely to be divided on the issue, according to the Supreme Court of the United States (SCOTUS) blog.

On November 19, 2009, the Criminal Law Society and the Criminal Law Brief of the Washington College of Law held a panel with leaders and practitioners representing both sides of the debate. The panel was moderated by Professor Mary Fan and included, for the petitioners’ side, Jody Kent and Vincent Southerland, and for the respondents’ side, Scott Burns and Cully Stimson. Both sides had a chance to make their case before opening the floor to questions.

For the petitioners, Kent and Sutherland pointed to juveniles’ accepted legal status as a basis for a separate set of punishments for adults and juveniles. They argued that different treatment is justified because of developmental differences between adults and juveniles. Each cited studies suggesting that the human brain is not completely developed until well into the twenties, meaning that behavior and self-control can change significantly from the late teens to adulthood. They both criticized the ineffectiveness of the retributive justice system in the U.S., citing depressing prison statistics that are the American reality: 2.5 million Americans are in prison; the U.S. is essentially alone in allowing the practice of life without parole for non-homicide juvenile offenders; and there are 109 such offenders serving life sentences in the U.S. In short, the petitioners’ arguments criticize the U.S. failure to adhere to standards of juvenile sentencing set by the global community, citing scientific evidence and international legal customs in support of their position.

For the respondents, Burns and Stimson both questioned the accuracy of the petitioners’ statistics and stressed the vile nature of the crimes committed by the majority of juveniles sentenced to life without parole. Stimson argued that there must be some response to the “terrible juvenile crime problem” in the U.S. and that the imposition of harsh sentences “sounds like good law.” Stimson went on to explain that some people “cannot be rehabilitated,” citing what Stimson considered the skewed characterization by groups like Human Rights Watch and Amnesty International of cases like that of Ashley Jones. Burns asserted that victims not perpetrators need protecting, and that the people of each state should be able to decide what kinds of penalties criminals should pay for their crimes. These arguments are classic victims’ rights arguments with a strong demand for retributive punishment as a deterrent to crime.

Both sides of this panel had compelling, but largely incommensurate arguments. One side advocated persuasively for the rights of juvenile felons and the other for the rights of victims, but both appear to have missed mentioning the actual differences between a life sentence with or without the opportunity of parole. The only certain difference between the two punishments is the eventual review of the sentence by a parole board. For a juvenile convicted of a non-homicide crime, the possibility of parole does not necessarily mean that he or she will be paroled. The parole board will have the final word, meaning that serving either life without parole or life with the possibility of parole could be the exact same sentence with only one difference — the opportunity for review.

Review is arguably one of the processes that makes a justice system equitable. Review is certainly one of the most important parts of the U.S. criminal justice system. Without review, a bad jury conviction cannot be overturned and an unfair judge can have the last word. Even in the best system of jurisprudence, such outcomes cannot be avoided. With the opportunity for review, injustice can potentially be remedied. Review should be a more significant part of future discussions on juvenile sentencing and should not be drowned out by the valid yet fairly predictable arguments from both sides of this debate.