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Tuesday, February 03, 2009

13 year-olds in prison for life...and the Eighth Amendment

In today's Times, Adam Liptak has a very interesting piece detailing the situation in which a defendant was sentenced to life without parole for a crime he committed at age 13. A quick overview:

In 1989, someone raped a 72-year-old woman in Pensacola, Fla. Joe Sullivan was 13 at the time, and he admitted that he and two older friends had burglarized the woman’s home earlier that day. But he denied that he had returned to commit the rape. The victim testified that her assailant was “a colored boy” who “had kinky hair and he was quite black and he was small.” She said she “did not see him full in the face” and so would not recognize him by sight. But she recalled her attacker saying something like, “If you can’t identify me, I may not have to kill you.” At his trial, Mr. Sullivan was made to say those words several times. “It’s been six months,” the woman said on the witness stand. “It’s hard, but it does sound similar.” The trial lasted a day and ended in conviction. Then Judge Nicholas Geeker, of the circuit court in Escambia County, sentenced Mr. Sullivan to life without the possibility of parole.

Sullivan's case is now winding its way through the courts; according to Liptak, his lawyers have recently petitioned the Supreme Court to determine whether a sentence to die in prison is a constitutionally compatible response to a non-homicidal crime committed by a 13 year old. (I tried a quick search for the cert petition but didn't find it; if anyone has it, please forward it along.)  My views after the jump.
My quick sense is that although the Court's Eighth Amendment non-capital proportionality review has been relatively stingy in light of Ewing vCalifornia, 538 U.S. 11 (2003), this case would be a good candidate for reviewing and revisiting those principles and how they apply. For one thing, remember that Ewing was a recidivist with some serious priors (a robbery and several burglaries). He was a grown-up when he committed his crime, and he was eligible for release after 25 years under the 3 strikes rule. By contrast, Sullivan was barely a teenager, and as far as I can tell, without any priors. Justice Kennedy's concurring opinion in Harmelin, which enunciated the now-controlling framework for analysis in proportionality review of non-capital crimes, addressed a non-recidivist who was tagged for life b/c of 600+ grams of cocaine possession. While the defendant there wasn't able to get relief under the 8A (a pretty kooky outcome), at least there the defendant was not 13 years old when he committed the crime. One last point: normally the SCT would look to see if there's a split to resolve among the circuits before weighing in. But as Liptak points out, outside Florida there are no persons in prison for life without parole for non-homicidal crimes commited at the age of 13. In Florida, there's only one other person who fits that criteria, though his conviction involved attempted murder. The fact that Florida is an outlier here may be a good indication that by objective criteria this is a grossly disproportionate response. (Cf. Coker v. Georgia, where Georgia was an outlier with respect to executing rapists of "adult" women; the victim in Coker was 16--and married.)
I also think that in light of the communicative conception of retributivism that was embraced by a majority of the Court in its Panetti decision in 2007, there are certain restraints on punishment that the Supreme Court must embrace. As I argue in my forthcoming article on Panetti and the future of the Eighth Amendment, the Court's constitutional elevation of a communicative conception of retributive justice in Panetti has broad implications -- and beyond the capital context too. 

Punishment, under the Court's view now, requires that the defendant be a fit interlocutor for the communicative nature of punishment. The suggestion that a 13 year old satisfies that fitness requirement in the way that a mature adult does is difficult to accept. Moreover, by insisting on competence and guilt as jointly necessary criteria for punishment, Panetti entails a "negative retributivism" constraint on state punishment. That constitutional constraint supervenes on other legitimate penological objectives such incapacitation or general deterrence. Negative retributivism means that one can only be punished if one is guilty and only as much as one's offense reasonably permits by reference to (desert) or (what comparable offenders with comparable offenses receive); I recognize that the materials in parentheses are not identical, but I offer the second one as a way to care for evenhandedness across cases, which is an important feature of legal accounts of retributive justice. 

Thus, putting aside for now the very pronounced and reasonable concerns that he had a flimsy trial, Sullivan cannot constitutionally be punished in excess of what would be determined to be reasonably proportionate to the severity of his offense. Given that we punish adults with much more severe crimes and far worse records with far less severe punishments, both in and outside Florida, it seems clear to me that Sullivan should be able to raise these Panetti-inspired arguments with some success.  (Oddly enough, similar arguments of mine were found in Panetti's briefs to some effect). Of course, these are the claims that I think would follow from Panetti's reasoning, properly understood and extrapolated. I invite the lawyers and scholars interested in the scaffolding beneath these claims to read the article, a draft of which can be found here.

Posted by Administrators on February 3, 2009 at 10:13 AM in Article Spotlight, Criminal Law, Dan Markel | Permalink


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Also see the case of Ashley Jones in the Northern District of Alabama. Her Sec. 2254 petition is, I believe, currently before the 11th Circuit.

She's represented by the Equal Justice Initiative.

Posted by: Matthew Reid Krell | Feb 3, 2009 7:02:09 PM

Simon, if the cert petition is correct, ie, that Sullivan was both 13 and mentally disabled, I would view that as sufficient to be conclusive in this case that he's not a fit interlocutor for punishment.

But I do also think that there's something important to the idea that even if Sullivan were emotionally mature and indeed an 18 or 19 year old when he committed this offense, his sentence and trial would strike me still as raising lots of questions about gross disproportionality and sufficient procedural due process, for reasons alluded to by Berman and Liptak. Brian, I'm looking forward to reading Rachel's piece. Thanks for the link.

Posted by: Dan Markel | Feb 3, 2009 1:50:24 PM

Also consider what the SCOTUS said about the differences between adults and children for the purposes of the death penalty in Roper v. Simmons (2005) (holding death penalty unconstitutional sentence for crime committed by someone under age 18). I've been involved in litigation trying to extend this case's reasoning to juvenile LWOP cases in general.
On the "death is different" argument (one we bump into often in our litigation), see this nice piece by Rachel Barkow:
I look forward to reading Dan's paper and the cert petition.

Posted by: Brian J. Foley | Feb 3, 2009 1:26:15 PM

The suggestion that a 13 year old satisfies that fitness requirement in the way that a mature adult does is difficult to accept.In the mine run of cases, certainly. But there are extraordinary cases. Is there not wisdom in Blackstone's observation that under English law at the time, "the capacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent's understanding and judgment," and that while there was a strong presumption against finding one who was under fourteen (in the post's argot) "a fit interlocutor for the communicative nature of punishment," that presumption was rebuttable in extraordinary cases?

Posted by: Simon | Feb 3, 2009 1:10:12 PM

Thanks for the tip! The petition also notes that the record shows that Sullivan is mentally disabled. Depending on the nature and severity of his disability, his case would be bolstered further by my reading of Panetti and its fitness requirement for punishment.

Posted by: Dan Markel | Feb 3, 2009 10:35:26 AM

Trying again on that cert. petition link, with an html tag for the link...


Posted by: Anon | Feb 3, 2009 10:27:27 AM

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