On Monday the Supreme Court heard oral arguments in Graham v. Florida, in which a juvenile was convicted of armed robbery at the age of 16 and sentenced to life imprisonment; he now asks the court to reduce his sentence on the grounds that such a punishment for someone who committed his non-homicide crime before the age of majority is “cruel and unusual punishment” (an 8th Amendment right).

What are these lawyers thinking?

Bryan S. Gowdy, Esq., the convict’s lawyer, seems to think that his client’s sentence is excessive because he committed his crime at a tender young age. The Florida State Solicitor General, Scott D. Makar, Esq., seems to think that states have the right to sentence criminals to any punishment they like (as long as the punishment is neither cruel nor unusual), since criminal statutes and punishments are entirely in the purview of the states.

• Sidebar: The oral arguments were fascinating. They focused on issues not emphasized in the briefs. The justices recognized a number of issues that the lawyers did not: 1) both lawyers were making categorical arguments that would require judges to evaluate every convict differently, 2) states are phasing out parole entirely, so the issue of L-WOP is nearly moot, 3) “science” doesn’t identify the age at which the brain matures as 18, so it is impossible to draw a bright line between juvenile and adult offenders, 4) statistical studies indicate that criminality tends to wane once a criminal reaches his mid 20s (and no one mentioned that females are more law-biding) so the older a convict is the less likely he is to become a repeat offender after release from prison, 5) rehabilitation is not the purpose of the criminal justice system, as in the juvenile justice system, 6) but both systems intend to separate offenders from society and if a convict is provably reformed then that purpose is moot, 7) all punishments are intended to be punishment, first and foremost, 8) Graham was sentenced more harshly than one of his accomplices, who murdered someone, 9) the prosecutor and the judge disagreed about the appropriate sentences for the three accomplices . . . .

8th Amendment

From reading the oral arguments transcript, I suspect that the justices will not buy the argument that L-WOP (Life without Parole) is cruel and unusual punishment, since imprisonment is clearly neither cruel nor unusual (if you define “unusual” as most lawyers seem to do—“not widely used”).

While I do not interpret the admonition against “cruel and unusual punishment” as a lawyer does, I do not think that L-WOP for a minor is a violation of the 8th Amendment. My question is: Does the Supreme Court ever find in favor of a plaintiff on totally different grounds than those the plaintiff’s lawyer presents to them?

• Sidebar: The justices questioned both sides about the consistency of the Florida statutes on a number of issues, as well as the consistency with which judges apply certain penalties to certain types of crimes. The way in which Graham was sentenced to L-WOP while a homicidal accomplice got only about 11 years is what I think is meant by “unusual.”

5th Amendment—Due Process

I oppose the idea of a separate juvenile justice system for anything other than misdemeanor crimes. Juveniles who commit felonies ought to be tried in the adult criminal justice system before juries of adult citizens. However, such juveniles should be held in a juvenile detention center until he or she is 17 or 18, when he/she can be judged “competent to stand trial” as an adult.

Any adult who is not competent to “assist in his own defense” is not “competent to stand trial” in the criminal justice system. Defendants with serious mental disorders or who are under the influence of drugs and alcohol or who have serious physical ailments requiring medical treatment do not stand trial until they overcome these conditions. This is an important component of “the due process of the law.”

So why isn’t youth also a condition that must be overcome before a juvenile can stand trial as an adult? Why isn’t it a violation of “due process” to try a child as an adult, even though his brain is physically incapable of fully mature thought processes—when he is still clearly incompetent to stand trial?

The Constitution provides no requirement for a separate juvenile justice system; it is the states’ invention, designed to protect the criminal court system from being overwhelmed by the sorts of destructive mischief that kids tend to get involved in. It also provides “reform schools” (juvenile detention centers) where minors are shielded from the general prison population’s influence and given an education.

The current policy of trying minors as adults for serious crimes—and sentencing them to prison—has been adopted because younger and younger people are committing serious crimes. The impulse is understandable, but the current system is also seriously flawed. In that I concur with Graham and his attorney.

If I were Graham’s lawyer (and of course I am not a lawyer at all), I would have argued that my client was denied due process of law. He was tried as an adult at age 13 for one felony and sentenced to a short twelve-month sentence with the admonition that he needed to be very careful to obey the law after that or else--the state of Florida would be harsh. Once he was released on parole, he committed several armed robberies and at 16 was convicted on one of those charges. For this he received L-WOP.

The first trial, conviction, and sentence were clearly a violation of his due process. He ought not to have been tried as an adult at 13. He could not possibly assist in his own defense. He could not possibly understand the implications of the judge’s admonitions. In prison he could not possibly have learned anything in one year other than how to be a criminal. This was a violation of due process.

Graham ought to have been held in the juvenile justice system until he was at least 17 before being tried on the first crime. Thirteen to 17 is only four years, the length a kid should spend in high school. He would have been educated by the time of the trial. He still would have been convicted by a jury. A judge would then have been able to evaluate his capacity to stay out of trouble and could have sentenced him to time served if it was appropriate.

That is due process of law—in this non-lawyer’s opinion.