The juvenile damned

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OPINION

Sentencing children to life without parole is cruel and unusual.

Lara Bazelon

October 12, 2009


After a one-day trial in 1989, Joe Sullivan was found guilty and sentenced to life in prison without the possibility of parole. He was 13 years old.

Sullivan’s case arose in Florida, which forbids anyone that age from driving, voting, marrying without judicial consent or even riding a bicycle without a helmet. These prohibitions rest on the sound logic that teenagers are still children — too immature and impulsive to be trusted with such grave responsibilities and weighty choices. But when it comes to breaking the law, Florida inexplicably abandons this reasoning. If the transgression is considered sufficiently serious, the child is tried as an adult.

That is what happened to Joe Sullivan. Then it got worse. Following his conviction for the noncapital offense of sexual battery, the judge imposed the kind of punishment reserved for the most violent, incorrigible and irredeemable felons: permanent incarceration in an adult prison. With that sentence, Sullivan took his place among the juvenile damned, a tiny class of child offenders locked up for life in this country with no hope of release. There are a total of nine 13-year-olds in this group. When 14-year-old offenders are added, the number rises to 73.

Sullivan’s lawyers, a team led by Bryan Stevenson of the Equal Justice Initiative, hope to reduce that number to zero. On Nov. 9, the U.S. Supreme Court, which has agreed to hear Sullivan’s case, will decide whether a life-without-parole sentence for someone younger than 18 amounts to cruel and unusual punishment under the Eighth Amendment. The Court will also hear the companion case of Terrance Lamar Graham, who received a life-without-parole sentence for a noncapital offense at the age of 17. Because the punishment was imposed at a probation violation hearing, Graham was sentenced to die in prison without the benefit of a trial, a jury or proof beyond a reasonable doubt.

Boiled down to its essence, the petitioners’ position is that a ruling in their favor is a logical extension of the Court’s 2005 decision in Roper v. Simmons, which outlawed the death penalty for children younger than 18 years of age on identical grounds. In a 5-4 decision authored by Justice Anthony Kennedy, the Court declared: “When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to obtain a mature understanding of his own humanity.”

A STRONG, PERSUASIVE ARGUMENT

Sullivan and Graham’s argument — that adherence to Roper‘s teachings requires the abolition of life-without-parole sentences for adolescents — is strong and persuasively presented. A punishment is “cruel” if it is excessive and therefore contravenes the “basic precept of justice that punishment for crime should be graduated and proportional.” A punishment is “unusual” if it is implemented so rarely “that a national consensus has developed against it.” The petitioners have shown, relying in large part on empirical data, that permanently depriving adolescents of their liberty is both cruel and unusual.

In Roper, the Court found that capital punishment for juveniles was cruel in part because the inherent immaturity of child offenders makes their conduct “not as morally reprehensible as that of an adult.” The Court noted that juvenile offenders have difficulty appreciating the long-term consequences of their actions and controlling their impulses. The short-sightedness and impetuosity of teenagers, combined with their greater susceptibility to the influences of their peers and their inability to extricate themselves from dangerous or negative surroundings, mean that juveniles have a “diminished capacity” that makes them less blameworthy — and thus less deserving of retribution — than their adult peers. Additionally, young adolescents are a work in progress — trying on and discarding a number of identities in the fraught and complicated process of growing up. Their adult selves may bear little physical or emotional resemblance to the angry, destructive teenagers they once were, undercutting the argument that they must be permanently removed from society.

The findings of neuroscientists and developmental psychologists lead to the same conclusion when applied to life-without-parole sentences for juvenile offenders like Sullivan and Graham: They are cruel within the meaning of the Eighth Amendment. Anyone who has ever raised a teenager, befriended one or been one knows the extent to which that teenager can be self-involved, present-oriented, misguided and overly influenced by a peer group. But it is also true that upwards of 90% of them outgrow it. An amicus brief filed by former juvenile offenders, who grew up to be a U.S. senator, an assistant U.S. attorney, a best-selling author and a Tony-nominated actor, makes this point powerfully. Life-without-parole sentences, had they been handed down in those cases, would have made these accomplished and productive lives impossible. By disallowing the great probability that young offenders will grow and change profoundly and for the better, life-without-parole sentences are not only pitiless, but are excessive in a way that the Eighth Amendment forbids.

The Court in Roper found that the death penalty for juveniles was unusual because 30 states outlawed it and even where it was “on the books,” it was seldom used. Similar statistics hold for life-without-parole sentences for 13- and 14-year-olds. The data assembled by Sullivan’s lawyers demonstrate that only six states have 13-year-old offenders serving life-without-parole sentences, and only 12 additional states have 14-year-olds doing so. When one looks beyond our borders to the practices of other nations — as the Court did in Roper — the numbers become even starker: “The United States,” Sullivan’s lawyers wrote, “stands alone in sentencing children to die in prison without hope of ever winning release.”

It is time the Court put an end to this shameful practice by applying Roper to life-without-parole sentences for juveniles. Our evolving standards of decency demand nothing less.

Lara Bazelon will be the 2010-2012 civil justice clinic fellow at the University of California Hastings College of the Law.

Florida a leader in putting kids in jail for life

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By FRED GRIMM

[email protected]

The latest measure of Florida’s medieval mind set comes in at 77.

Juxtapose that number against the 109 juveniles in all of the United States who have been consigned to prison until death for crimes not involving murder or attempted murder.

Of the 109, 77 are locked up in Florida prisons, according to a study by the Public Interest Law Center at Florida State University.

Florida may skimp on educating children, but when it comes to perpetual incarceration for kiddies, we’re like no place else.

“We’ve far exceeded what goes on in the rest of the nation,” said Paolo Annino, the center’s supervising attorney.

The 50-state study found that 39 states have no juvenile convicts in non-homicide cases serving life without parole. After Florida, with 77, Louisiana is the next-most-draconian state on the law center’s list with 17.

ALONE AMONG NATIONS

If Florida stands alone amid the states in its fervor to lock up juveniles for life, even for nonlethal crimes, then we’re also set off from the rest of the world. Amnesty International, in a brief filed with the U.S. Supreme Court, stated: “Every other country in the world has rejected the practice of giving this sentence to offenders who were under 18 at the time they committed a crime.”

The Supreme Court, during this fall’s term, will hear arguments over whether life sentences for kids convicted of crimes like armed robbery, rape and burglary so violates civilized norms that it constitutes cruel and usual punishment.

In 2005, the court tossed out the death penalty for juveniles, citing “evolving standards of decency.”

Florida, of course, would be the last place to recognize evolving standards of decency in criminal justice. (An evolving standard of decency, in more-civilized locales, would not contemplate the state stashing sex offenders into a homeless camp under the Julia Tuttle Causeway.)

Both of the juvenile life-without-parole appeals up before the court (to be heard simultaneously) are Florida cases: a 13-year-old given life for rape in 1989 and a 16-year-old armed robber sent off for life in 2005.

NOT INTENDED

What is it about Florida? “I don’t think this was intended,” said Professor Annino. “It wasn’t as if Florida lawmakers decided, OK, let’s put all these kids in prison, life without parole, for non-murders. It wasn’t planned or intended as social policy,” he said. “It was more of an accident.”

Back in the early 1990s, several deadly attacks on international tourists in Florida added a sense of urgency to a get-tough-on-juvenile-crime attitude in the Legislature. Juvenile offenders “were threatening the state’s bedrock tourism industry,” the state’s lawyers explained in their Supreme Court brief. Annino said the Legislature streamlined the process to try kids as adults, with adult sentences, with little consideration of the unintended consequences.

Lawmakers surely didn’t envision 13-year-old non-killers trucked off to prison for life, although Florida has two such cases among the 77 prisoners.

But undoing get-tough legislation, no matter how crazy, requires the kind of leadership missing lately among Florida’s risk-averse politicians. So we have kids sent to prison for life and sex offenders living under the Tuttle causeway, all to honor politically intractable laws that no serious criminologists find rational.

It’s what sets Florida apart from the civilized universe.

Teen sentenced to life without parole for death of St. Louis police officer

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ST. LOUIS POST-DISPATCH
10/10/2009

ST. LOUIS — As Antonio Andrews was about to be sentenced Friday to spend the rest of his life in prison, he spoke out for the first time since being accused of killing a city police officer.

“I hope y’all are happy,” Andrews, 17, said in St. Louis Circuit Court. “You are taking my life, and I didn’t do this. You’ve got the wrong guy.”

In August, a jury had deliberated just over five hours before deciding Andrews was the right guy, the one who shot Officer Norvelle Brown rather than take a chance of being caught carrying a gun.

Circuit Judge Dennis Schaumann imposed the only punishment available for the first-degree murder conviction — life in prison without the possibility of parole — adding 50 years more for armed criminal action.

Several members of Andrews’ family wore T-shirts to court that read: “Free Tonio.”

Some of Brown’s family was in the courtroom, too, but chose not to address the judge.

Police Chief Dan Isom, who got to know Brown through the Police Athletic League’s track team, said later that he was pleased with the sentence but knew it was a sad day for everyone involved.

“I hope this sends a message to young people to think before you act — your decisions can have life-altering consequences that you can’t take back,” he said.

Andrews was 15 when Brown was shot to death in the 1600 block of Semple Avenue on Aug. 15, 2007. The court certified Andrews for trial as an adult.

Jurors were faced with conflicting evidence. At least two eyewitnesses told detectives in video-recorded statements that they saw Andrews shoot Brown. But on the witness stand, they claimed police had coerced their statements.

One teen who was with Andrews that evening testified that they were walking to a Chinese restaurant when Brown pulled alongside them. The teens ran, and Brown gave chase, according to testimony.

The prosecutor said Andrews told his friend before opening fire that he was tired of running from the police.

Andrews did not testify.

Brown, 22, on the force for one year, had fired a single shot from his pistol before it jammed, according to testimony. Fellow officers found the gun lying near him. Brown had been hit once in the shoulder, through an opening in his bullet-resistant vest.

The Supreme Court and juveniles: International comparisons

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Thursday, October 08, 2009

The Supreme Court and Juveniles: International Comparisons

Bernard E. Harcourt

In response to the LA Times opinion piece on juvenile sentences of life imprisonment without parole—the Sullivan and Graham cases pending before the Supreme Court—the National Organization of Victims of “Juvenile Lifers” challenges the claim that the United States is the only jurisdiction to sentence minors to life imprisonment without parole—calling this “misinformation.” So I’ve done even more research, and, sadly (actually, I am not entirely sure how to feel), the conclusion sticks.

The best and most thorough information on international comparisons is at the Center for Law and Global Justice at the University of San Francisco School of Law. And the bottom line is that the US is now alone in this domain.

There were a number of earlier reports that Israel incarcerated several minors—seven juveniles, to be exact—to life without parole. The University of San Francisco had documented those cases in an extensive report in 2007 in which they also urged other countries, such as Australia, to clarify their legal prohibitions on juvenile LWOP. Another report issued in February 2008, that was written in part by the outstanding University of Chicago Mandel Clinic, also indicated that there were juveniles in Israel serving life sentences without the possibility of parole.

Following those reports, however, the University of San Francisco investigated the Israeli cases and confirmed that the juveniles in question are entitled to parole review. Here is the most recent information that the USF Center for Law and Global Justice provides:

“NEW INFORMATION ON JUVENILE LWOP GLOBAL PRACTICE FEBRUARY 2008–The Center has now confirmed with Israeli officials that children given life sentences, including those in the Occupied Territories which have been the subject of serious concern by the Center and other human rights groups, are entitled to parole review. There remains the concern that parole review is difficult to pursue and rarely granted. The new confirmation by Israel means that the United States, with 2,381 such cases, is now the only country in the world known to either issue the sentence or to have children serving life without parole.”

Given that none of the parties or amici in the Sullivan and Graham cases have been able to identify a single juvenile serving life imprisonment without parole outside our borders, and given also that Israel and the other mentioned countries (South Africa and Australia, for instance) have all signed on to Article 37 of the Convention of the Rights of the Child prohibiting juvenile LWOP sentences—only the United States and Somalia have not!—I think it is fair to conclude that the United States is indeed alone in this practice.

[Now, this naturally raises the next question: whether international norms should inform the Supreme Court’s consideration of domestic constitutional values. I frankly think this is a bit of a scholastic debate that seems to (overly) preoccupy some legal academics, a couple of Supreme Court justices, and most right-wing talk show hosts. The simple truth is that, for most human beings and for anyone who does not have an overly constricted view of constitutional interpretation, it’s telling that we are the only nation in the world who would be willing to impose life imprisonment without parole on a 13-year-old boy who is convicted of rape, a non-homicide offense. But then again, I’ll just let the Scholastics debate this one…]


Posted 11:42 AM by Bernard E. Harcourt [link]

While adolescents may reason as well as adults, their emotional maturity lags

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ScienceDaily (Oct. 8, 2009) — A 16-year-old might be quite capable of making an informed decision about whether to end a pregnancy – a decision likely to be made after due consideration and consultation with an adult – but this same adolescent may not possess the maturity to be held to adult levels of responsibility if she commits a violent crime, according to new research into adolescent psychological development.

“Adolescents likely possess the necessary intellectual skills to make informed choices about terminating a pregnancy but may lack the social and emotional maturity to control impulses, resist peer pressure and fully appreciate the riskiness of dangerous decisions,” said Laurence Steinberg, PhD, a professor of developmental psychology at Temple University and lead author of the study. “This immaturity mitigates their criminal responsibility.”

The findings appear in the October issue of American Psychologist, published by the American Psychological Association.

Steinberg and his co-authors address this seeming contradiction in a study showing that cognitive and emotional abilities mature at different rates. They recruited 935 10- to 30- year-olds to examine age differences in a variety of cognitive and psychosocial capacities.

The participants took different tests measuring psychosocial maturity and cognitive ability to examine age patterns in numerous factors that affect judgment and decision-making. The maturity measures included tests of impulse control, sensation-seeking, resistance to peer influence, future orientation and risk perception. The cognitive battery included measures of basic intellectual abilities.

There were no differences among the youngest four age groups (10-11, 12-13, 14-15 and 16-17) on the measures of psychosocial maturity. But significant differences in maturity, favoring adults, were found between the 16- to 17-year-olds and those 22 years and older, and between the 18- to 21-year-olds and those 26 and older. Results were the same for males and females, the authors said.

“It is very difficult for a 16-year-old to resist peer pressure in a heated, volatile situation,” Steinberg said. “Most times, there is no time to talk to an adult to inject some reason and reality to the situation. Many crimes committed by adolescents are done in groups with other teens and are not premeditated.”

In contrast, differences in cognitive capacity measures increased from ages 11 to 16 and then showed no improvements after age 16 – exactly the opposite of the pattern found on the psychosocial measures. Certain cognitive abilities, such as the ability to reason logically, reach adult levels long before psychosocial maturity is attained, Steinberg said.

“Medical decisions are those where adolescents can take the time to understand and weigh options provided by health care practitioners,” said Steinberg. “Rarely are these decisions made in the heat of the moment without consultation with adults. Under these circumstances, adolescents exhibit adult maturity.”

Two friend-of-the-court briefs filed by APA in cases heard by the Supreme Court spurred questions about these maturity differences and the apparent inconsistency between APA’s positions in the two cases. In its amicus brief filed in Roper v. Simmons (2005), the case that abolished the juvenile death penalty, APA presented research showing that adolescents are developmentally immature in ways that are relevant to their criminal culpability. In an earlier brief filed in Hodgson v. Minnesota (1990), which upheld adolescents’ right to seek an abortion without parental approval, APA presented research regarding cognitive abilities that bear on medical choices, showing that adolescents are as mature as adults.

APA differentiated these two scenarios by looking at the decision-making processes required for each situation. In the Hodgson case, APA described adolescents as being competent to make informed and sound health care decisions. In the Roper case, APA characterized adolescents as too short-sighted and impulsive to warrant capital punishment, no matter what the crime. APA placed the research about psychosocial development of adolescents in the context of a court’s need to determine as part of a death penalty sentence that the perpetrator can reliably be assessed as among the “worst of the worst.”

In November, the Supreme Court is slated to hear two cases concerning the constitutionality of sentencing juveniles to life without the possibility of parole. “Similar questions about adolescent development may be raised in these cases,” Steinberg said. APA has filed an amicus curiae brief in those cases presenting relevant research, including Steinberg’s most recent study, to the court.

Adolescents’ legal rights, said Steinberg, should be guided by accurate and timely scientific evidence on the nature and course of psychological development. “It is crucial to understand that brain systems responsible for logical reasoning and basic information processing mature earlier than systems responsible for self-regulation and the coordination of emotion and thinking,” he said.

Journal reference:

  1. Laurence Steinberg, Elizabeth Cauffman, Jennifer Woolard, Sandra Graham, Marie Banich. Are Adolescents Less Mature than Adults? Minors’ Access to Abortion, the Juvenile Death Penalty, and the Alleged APA ‘Flip-Flop’. American Psychologist, 2009; Vol. 64, No. 7 DOI: 10.1037/a0014763
Adapted from materials provided by American Psychological Association, via EurekAlert!, a service of AAAS.

The Supreme Court begins session with new issues and a new face

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Audio: http://www.npr.org/templates/story/story.php?storyId=113533758

October 6, 2009

The U.S. Supreme Court returned to session Monday with a new team member in newly-appointed Justice Sonia Sotomayor. The court is expected to delve directly into several important cases that could re-shape the law as it relates to the separation of church and state, gun rights and free speech, among other areas. Kimberle Williams Crenshaw, a law professor at UCLA and Columbia University, and former Supreme Court reporter Eva Rodriguez, who now writes for The Washington Post, offer analysis on what can be expected in the current session.

TRANSCRIPT:

Copyright © 2009 National Public Radio®. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

MICHEL MARTIN, host:

On to other news. The Supreme Court began its session on Monday with a new Justice, Sonia Sotomayor, and a new raft of cases that could re-shape and the separation of church and state, gun rights, free speech, and more. With us now to talk about the cases before the court is Eva Rodriguez. She’s a writer for The Washington Post editorial board. She’s a former Supreme Court reporter and a former editor-n-chief of Legal Times.

Also with us is Kimberle Williams Crenshaw. She’s a law professor of law at Columbia University and UCLA. Welcome to you both. Thank you so much for joining us.

Ms. EVA RODRIGUEZ (Writer former Supreme Court reporter, The Washington Post): Thanks.

Professor KIMBERLE WILLIAMS CRENSHAW (Law, Columbia University, UCLA): I’m happy to be here.

MARTIN: Eva Rodriguez I want to begin with you. You began your Sunday column with the quote that “Here’s the truth, a lot of important, really important Supreme Court cases would put most of us to sleep” end quote. But, you say that this session – not so much. How so? There are some headline grabbers here?

Ms. RODRIGUEZ: And they are and they’re both interesting and the kind of cases that would trigger natural conversations over dinner on a Saturday night. They involve things that we as human beings and as citizens of this country care about, you know, whether we could lock up a juvenile for life without parole. Whether, you know, there is a right to have a cross on public land.

All of these kind of things that, you know, sort of this informed intelligent, you know, people we would naturally debate, as opposed to the constitutionality of an accounting board.

MARTIN: Oh dear.

Ms. RODRIGUEZ: Don’t go there.

MARTIN: Don’t go there, okay, but just going back a little bit the Court customarily doesn’t hear an argument before the first Monday in October, but there was an exception this year for a campaign finance case? What’s the issue here and why did community here in D.C. because actually the Court had heard this case earlier in the Spring and we were expecting in June or July a decision. Instead, the justices has said well, never mind we want to re-hear this case and by the way, we want to address different questions. And what happened is, they went from a really, you know, ishky-pishky(ph) case in spring to a bomb in the – in the fall.

And it goes to the heart of whether, basically, we can regulate how much money if any corporations may give to campaigns. It was rare also – I mean exceedingly rare – that they heard the case in September and not, you know, after the first Monday in October, when they usually start. So this was weird all around.

MARTIN: Oh, interesting. And Kimberle Williams Crenshaw, there’s a civil rights case that’s a little bit under the radar this term but you nevertheless feel is important. That’s Lewis(ph) v. Chicago, and like that blockbuster Riche(ph) case of last session that we all talked about, it involves alleged racial discrimination in hiring firefighters.

In this case, an appeals court overturned a ruling favorable to black firefighters on technical grounds. What’s the issue in this case, and why do you feel that’s so important?

Ms. CRENSHAW: Well, you know, this issue is very similar to the Ledbetter case because on the substance, on the merits of the case, the plaintiffs were able to prove that the hiring practices were, in fact, discriminatory. So this case is pretty much like Riche in that the firefighters are making an argument. This time, there was actually a case. A court decided that they had prevailed in proving that the use of particular kinds of tests discriminated against potential firefighters.

The problem, according to the Court of Appeals, was that the case was initiated late. In other words, you have 300 days from the injury, the first injury, to actually file the case. The plaintiff’s lawyer filed the case within 300 days of the promotions that were based on the test. He did not file it within 300 days of announcing the test. And the Court of Appeals has determined that the time that they should have filed it was when the tests were announced, as opposed to when the promotions actually commenced.

Now, why is this important? Now, this is a technical case. This is part of the Roberts court’s kind of legacy. This is what they do very well. They manage technical issues that have huge substantive consequences. That’s what they did with Ledbetter, and this was overturned basically by a congressional action.

This is going to be a similar kind of case. The real question is: Is this sending a message that the court should be fairly narrow and circumscribed when the question is technical questions that preclude plaintiffs from actually getting into court? This is a very significant concern on the part of those who feel that the courts have been pushing certain kind of plaintiffs out of court altogether.

MARTIN: I understand what you’re saying. In the Ledbetter case, for people who don’t remember it, it was a question of a question of how soon after Lilly Ledbetter found out that she had been a victim of vast pay disparities could she go to court to seek a remedy. And the original law had a very narrow window, and that’s why Congress stepped in. And that was one of the first bills that President Obama signed when he took office.

Briefly, professor, there’s also this case where the court will explore whether the sentence of life without parole is cruel and unusual punishment for juvenile offenders. Can you tell us about that?

Ms. CRENSHAW: Yes. So there are two cases, companion case, Graham versus Florida and Sullivan versus Florida, and basically it takes up a concern that the court looked at a few years ago. This had to do with whether giving the death penalty to defendants who committed their crimes while they were juveniles violates basically not only our Constitution but broader human rights idea against cruel and unusual punishment. And Justice Kennedy provided the key vote that held that it in fact was unconstitutional.

So now the question is: If a juvenile commits a crime and is sentenced to life without the possibility of parole, is that also cruel and unusual. And it’s important to note that we are the only country in the world that has any juveniles who are currently incarcerated without the possibility of parole. It’s 2,500 or so defendants. And the United States was the only country basically to oppose a United Nations efforts to render this a human rights violation. So the question is whether that earlier case will apply to this, whether Justice Kennedy’s general opposition to the death penalty would carry over to life without the possibility of parole.

MARTIN: If you’re just joining us, you’re listening to TELL ME MORE from NPR News. We’re talking about the new session of the Supreme Court with law professor Kimberle Williams Crenshaw and Eva Rodriguez, an editorial writer for The Washington Post, a former Supreme Court reporter and former editor-in-chief of Legal Times.

Eva, the court is hearing arguments today, as I understand it, that ostensibly is about animal cruelty but actually is a free speech case. Can you tell us about that?

Ms. RODRIGUEZ: Yeah, it involves a man who describes himself as a dog trainer and a dog lover. He happens to love pit bulls, and he produces these videos, hour-long, two-hour-long videos that he describes as educational on how not to train your dog, how not to, you know, let your dog run wild, but how to use your dog to ward off predators like coyotes or to hunt wild boar. Well, in the process, he’s included some pretty gruesome footage in this, and…

MARTIN: Of the consequences of mis-training or poor training?

Ms. RODRIGUEZ: That’s how he claims. That’s how he frames it, okay? The Humane Society and others say, you know, that’s just not true, and he just likes to, you know, show gruesome film.

So the question here, though, is it a violation? You know, he was prosecuted. Let’s put it this way. He was prosecuted under a law that says you cannot show or peddle material that shows a live animal being tortured, maimed or killed. And the question is: Does that law basically violate his First Amendment right to, you know, to show these films?

I think it’s a tough question. Look, all of these cases are tough. They wouldn’t be at the Supreme Court if there wasn’t disagreement, and there are legitimate arguments on both sides. But I think at the end of the day that as much as we hate what this man shows and possibly does that there’s a First Amendment right for him to basically, you know, archive this on film.

MARTIN: Interesting. And there’s another case involving the separation of church and state that I think a lot of people will have heard about. It involves a cross that members of the Veterans of Foreign Wars placed in California back in 1934, land that later became part of the Mojave National Preserve. What’s the issue here?

Ms. RODRIGUEZ: The issue here is: Is it a violation of the establishment clause to have, to allow, for the federal government to allow this cross on the land? You know, we’re supposed to be a government where the government does not embrace any one particular form of religion. So by allowing a cross on federal land, is the government violating that?

Now, there has been a lot of funky stuff that’s happened in this case, including an attempted land swap, where the government said okay, we’ll give the VFW, the Veterans of Foreign Wars, the acre on which this cross stands, and we’ll get another parcel of land. So hence, you know, the cross now stands on private grounds.

Well, the ACLU and others challenging this case say, you know, that’s a bogus transaction, and you’re just trying to – you know, you’re playing with us here.

MARTIN: Well, very, interesting, and there are a number of interesting cases we don’t have a chance to talk about today. We’re going to have to have you ladies back. But before we let you go, professor, I want to ask you about the newest justice, Sonia Sotomayor. She made history when she was sworn in as the first Latina to sit on the high court. She was unusually outspoken, some people thought, for a new justice. Is it unusual for…?

Ms. CRENSHAW: Oh, it was so refreshing to hear it. You know, Sonia Sotomayor, Justice Sotomayor is a rock star now. So pretty much everything she does draws a lot of attention, which I think is good for the court in general and for the public more broadly, but it’s just fascinating. In the two days that she sat, she’s talked more than Clarence Thomas has in a period of years. So we’ve got a whole new voice, literally, on the Supreme Court.

MARTIN: And we’re going to have a chance to have your voices back because we have more to talk about. Thank you. Kimberle Williams Crenshaw is a professor of law at UCLA and Columbia University, she joined us from New York; and Eva Rodriguez is a writer for The Washington Post editorial board, a former Supreme Court reporter, former editor-in-chief of Legal Times. She was here with me in Washington. Ladies, thank you both so much.

Ms. RODRIGUEZ: Thank you.

Ms. CRENSHAW: It was a pleasure.

(Soundbite of music)

MARTIN: The moms are next on TELL ME MORE from NPR News. I’m Michel Martin.

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Former Republican Senator and Charles ‘Roc’ Dutton want to end JLWOP

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When he was in high school, he helped burn down a federal building. He shot and killed a cow for fun. He stole. He violated his probation, and one night after a bar fight, he struck a police officer.

In his own words, he was a “monster.” If he had received the fullest possible sentence for his crimes, he would have spent 20 years or more, in jail. If he’d been sentenced to life in prison without parole, as some 13- and 14-year-old Americans are, he would never have gone on to college or law school. He would never have served 18 years in the U.S. Senate.

His name is Alan K. Simpson, the Wyoming Republican, whom, when he left the Senate in 1997, few would have recognized as the high school boy who had so often been in trouble with the law. He credits that night spent in jail after “belting a cop,” (the girlfriend who became his wife of 55 years refused to bail him out), as the turning point that changed his life.

Simpson knows that teenagers, even the toughest ones, can turn their lives around. He’s joined in an amicus brief other accomplished men—including Emmy-winning actor Charles “Roc” Dutton and author R. Dwayne Betts—both of whom were convicted of crimes as juveniles, and then turned their lives around. They’re asking the Supreme Court to strike down the practice of sentencing teenagers to life in prison without parole for non-homicide offenses.

This is one of the most important cases to come before the Supreme Court—which began its new term Monday. The two consolidated Florida cases that bring this issue before the court expose the practice in the Sunshine State of deciding that the lives of teenagers are over before they’ve really begun. In Graham v. Florida, Terrance Graham was sentenced to life without parole for an armed robbery he committed when he was 16. Joe Sullivan was convicted of committing sexual battery when he was 13.

Just five years ago, the Supreme Court decided in Roper v. Simmons that the imposition of the death penalty on juveniles violates the 8th Amendment prohibition against “cruel and unusual punishment.” Graham and Sullivan ultimately ask the court to determine whether imposing a form of death on teenagers for non-homicide offenses is similarly unconstitutional. There are currently nine individuals serving life-without-parole terms for offenses they committed when they were 13 or 14. Eight of the nine are black.

When the Supreme Court decides later this year whether a state can constitutionally deny teenagers the kind of second chance that enabled Alan K. Simpson and R. Dwayne Betts to turn their lives around, it will not only decide the fate of nine “lifers.” The court’s decision will also define its character and that of our country for years to come.

Sherrilyn A. Ifill is a regular contributor to The Root.

Justice Sonia Sotomayor taking active role

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New Justice Sonia Sotomayor was very much in evidence as the Supreme Court began its new term.

By MICHAEL DOYLE

[email protected]

WASHINGTON — A recast Supreme Court kicked off its new season Monday, with novice Justice Sonia Sotomayor immediately taking center stage.

In just an hour, the court’s newest justice asked more questions than Justice Clarence Thomas asks over the course of several years. Sotomayor’s aggressive role in a Fifth Amendment case, in turn, underscored how she could put her own stamp on a court whose 2009-2010 docket is still taking shape.

The 55-plus cases already scheduled for the coming months cover everything from gun rights and patent protection to free speech and the punishment of juveniles.

The court is likely to accept another 25 or so cases before the 2009-10 term ends next June.

As always, some cases are acutely technical; dry as dust pension disputes, for instance.

Others carry constitutional significance, a compelling set of facts or sometimes both.

On Tuesday, for instance, the court will consider the criminal conviction of a man who sold videotapes of pit bulls fighting. Virginia resident Robert J. Stevens was sentenced to 37 months in prison for violating a 1999 federal law that bans depictions of animal cruelty.

Stevens — joined by civil libertarians, book publishers and the entertainment industry, among others — argues that the law infringes on free speech.

The Obama administration defends the law as reasonable, saying that “the value of the speech” is outweighed by its “social costs.”

An equally anticipated set of cases from Florida question whether it’s cruel and unusual punishment to sentence a juvenile to life in prison without the possibility of parole.

Thirteen-year-old Joe Harris Sullivan, who already had a lengthy criminal record, was convicted in 1989 of raping a 72-year-old Pensacola woman.

Seventeen-year-old Terrance Jamar Graham, who likewise had a lengthy record, committed a home invasion robbery in Jacksonville while on probation for another violent offense. Both were sentenced to life without possibility of parole.

In a 2005 opinion written by Justice Anthony Kennedy, the court ruled out executions of individuals for crimes committed while they were minors. The new cases, to be heard Nov. 9, question whether the same reasoning about juvenile immaturity should apply to noncapital punishment.

Are life sentences for 13 year olds cruel and unusual punishment?

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By Frank James

Is it constitutional to sentence a juvenile offender who commits an offense at age 13 to life in prison without the possibility of parole?

That’s the question facing the U.S. Supreme Court this term and it’s a riveting one. On one hand, a heinous crime is still a terrible crime, regardless of the age of the offender.

But a 13-year old is still a child. And it is arguably a cruel and unusual punishment to subject someone to life in prison without parole for a crime committed when he was a child.

The Equal Justice Initiative has a compelling way to frame these cases. It says 13- and 14-year olds are being sentenced to death in prison.

It’s point: the U.S. Supreme Court may have said executing people for crimes they committed as juveniles is unconstitutional. But these sentences are in their own way death sentences, according to EJI which says there are 73 individuals in the U.S. who are serving “death in prison” sentences.

The cases the Supreme Court will be deciding is Sullivan v. Florida and Graham v. Sullivan.

Sullivan was convicted of raping a 72-year old woman when he was 13 and of burglary as well. Graham was convicted of violating parole by conducting a strong-armed robbery in which he held the victim at gunpoint.

Among those supporting Sullivan, who is now 33, are former Sen. Alan K. Simpson of Wyoming and the actor Charles Dutton, both of whom were youthful offenders, with Dutton convicted of manslaughter.

In a friend of the court brief, Dutton is quoted as saying:

“I just talked in Florida to some kids with that sentence. It was just dawning on them after ten or twelve years that their lives were over. They were kids and now they’re finished. There’s a heart-wrenching sadness on their faces, and you can see the fight is out of them. If they were given a second chance, they’d be changed human beings.”

“As long as it’s a young mind,” he says, “they’re salvageable. At those tender ages, the mind is still pliable and can be shaped. It’s not too late.”

Five Supreme Court cases to watch this term

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By Dan Fletcher

The U.S. Supreme Court reconvenes for its 2009-10 term on Oct. 5, with most of the attention going to the court’s freshest face, newly confirmed Justice Sonia Sotomayor. But Sotomayor and her eight colleagues won’t have a lot of time for orientation: the court will start immediately on a docket of controversial cases that will call on Justices to consider new facets of the Establishment Clause, gun ownership and prison terms for minors, among other issues. In total, the Justices have already agreed to hear 55 cases in the new term. Here are five to keep an eye on.

Salazar v. Buono
At issue: Whether the government can permit the display of a crucifix on public land as per the Establishment Clause.

An 8-ft.-tall crucifix has stood on an outcrop called Sunrise Rock on the Mojave National Preserve since 1934, but in one of the court’s earliest arguments of the term, the Justices will be asked to consider whether it should be removed. The battle has been brewing for a while — the cross, erected without government approval, was slated for removal by the U.S. National Park Service after a request from Buddhists to create their own memorial near the site was denied. But in 2000, Congress hastily passed a law prohibiting the use of public funds to remove the cross, in essence tying the National Park Service’s hands. Congress declared the cross a National Memorial in 2002, and in 2003 it gave the small parcel of land to the Veterans of Foreign Wars (VFW) — the group that constructed the original cross. (See TIME’s photo-essay “Sonia Sotomayor, the Making of a Judge.”)

The removal of the cross brings up the Establishment Clause, that long-debated line separating church and state that takes its name from the First Amendment (which begins, “Congress shall make no law respecting an establishment of religion”). This case has been in the court system since early 2000, before Congress’s involvement. The National Park Service’s attempt to transfer the land to the VFW, per the 2003 congressional order, has been viewed by the lower courts as an illegal way of circumventing repeated rulings compelling it to remove the cross. (Once the land is considered private property, the Establishment Clause no longer applies.) The Supreme Court will be asked to sort out the issue — and ownership of Sunrise Rock — once and for all.

Maryland v. Shatzer
At issue: The scope of the rights of police suspects, as given in the court’s landmark 1966 decision, Miranda v. Arizona.

In Maryland v. Shatzer, Michael Shatzer was questioned by police about sexual abuse of his 3-year-old child, and after being told he had the right to counsel as part of his Miranda rights, declined to answer any questions without an attorney present. The officer never pursued Shatzer further, but nearly three years later, a different detective questioned Shatzer, at which point he admitted abuse. Shatzer now argues this confession is inadmissible because the second police officer, who was unaware of Shatzer’s original Miranda request, questioned him without an attorney present. (Read “Four Enduring Myths About Supreme Court Nominees.”)

The court has already considered a similar case in 1981’s Edwards v. Arizona, in which the court found admissions made by a suspect without the presence of an attorney, which he had requested, inadmissible. But in Edwards, these admissions were made only a day after the suspect had been given his rights — not nearly three years later. The court will be asked to decide whether to treat their decision in Edwards as a so-called “bright-line” rule — that is, one that would create an absolute standard of police conduct in regard to the Miranda rights, regardless of how much time has passed.

Graham v. Florida / Sullivan v. Florida
At issue: Whether life imprisonment for juveniles on nonhomicide charges constitutes cruel and unusual punishment.

The Eighth Amendment precludes cruel and unusual punishment, but it has long been left to the Supreme Court to define exactly what that term means. This court will be asked to consider it again in a pair of cases on the docket. In Sullivan, the petitioner was 13 years old when he was indicted as an adult and sentenced to life in prison without parole in Florida for sexual assault of an elderly woman. In Graham, a 19-year-old violated his parole by committing attempted armed robbery while on parole for two previous robbery attempts he had committed while he was a minor. He too was subsequently sentenced to life in prison without the possibility of parole.

In making their decision, the court will review its logic in 2005’s Roper v. Simmons, which held that individuals could not be sentenced to death for crimes committed under the age of 18, as the court found that minors had a “lack of maturity.” The petitioners in Graham and Sullivan are arguing for a similar standard for their noncapital offenses.

National Rifle Association v. Chicago / McDonald v. Chicago
At issue: Second Amendment rights to gun ownership.

A pair of cases challenge Chicago’s 27-year-old ban on handgun sales within the city limits. Originally designed to curb violence in the city, the ban has long irked Second Amendment advocates, who take an expansive view of the amendment’s wording that the “right of the people to keep and bear arms shall not be infringed.” But the Supreme Court had long held that the Second Amendment pertained only to federal laws, until a 2008 decision in District of Columbia v. Heller struck down a ban on handguns in Washington, D.C. The ruling marked the first time the Supreme Court acknowledged an individual right to bear arms, and it opened the door for these challenges to the Chicago regulation.

American Needle v. National Football League
At issue: Whether sporting leagues should be exempt from antitrust regulations.

Experts say American Needle may turn out to be the most important legal decision in sporting history. The sportswear manufacturer contracted with NFL teams to produce hats and headgear with official team logos. But the NFL decided to give an exclusive leaguewide license to Reebok in 2000, leading American Needle to sue, claiming the NFL’s action violated the Sherman Antitrust Act by limiting the market for who could produce team-branded merchandise.

The fundamental question for the court to decide is whether the NFL should be considered a single entity or a collection of 32 individual businesses. The answer to this question has repercussions beyond the production of licensed merchandise. If the NFL is considered a single entity, it would largely be exempt from antitrust laws, giving the league not only continued right to grant exclusive licenses for team apparel but also the ability to make decisions on a leaguewide basis. This opens the door to the NFL — rather than individual teams — determining things like ticket prices and player salaries. Indeed, the bargaining power of the NFL Players Union is based on antitrust legislation that the league would largely be immune to if it receives a favorable ruling from the Supreme Court. Other sporting leagues are watching the American Needle case closely; many have filed briefs in favor of the NFL’s position.