The U.S. Supreme Court hears arguments Tuesday in two homicide cases testing whether it is unconstitutionally cruel and unusual punishment to sentence a 14-year-old to life in prison without the possibility of parole.
There are currently 79 of these juvenile killers who will die in prison. What's more, in many states, the penalty is mandatory, meaning neither judge nor jury is allowed to consider the youngster's age or background in meting out the sentence.
In cases dealing with punishment for juveniles, context is everything. In 2005, the Supreme Court struck down the death penalty for juveniles, declaring that kids are different from adults. The court said that because of their youth, their brains are literally less developed, they are more impulsive, more subject to peer pressure and less able to see the consequences of their acts.
Two years ago, the court used the same rationale when it struck down the penalty of life without parole for nonhomicide crimes committed by juveniles. But in Tuesday's cases, the court faces the question of life without parole in homicide cases.
A case from Arkansas involves a teenager who was not the triggerman. Fourteen-year-old Kuntrell Jackson and two other kids held up a video rental store. One of the other boys pointed a sawed-off shotgun at the cashier, and when she threatened to call the police, shot and killed her. Under Arkansas' felony-murder law, Jackson was deemed just as responsible as the triggerman. He was tried as an adult for aggravated murder and, under state law, received a mandatory sentence of life without parole.
The other case, from Alabama, involves Evan Miller, a boy so brutalized as a child that by the time he was arrested for murder at age 14, he had tried to kill himself six times, the first time when he was 5 years old.
Miller and a 16-year-old friend went next-door to the home of a neighbor who was dealing drugs to Miller's mother. The neighbor, 52-year-old Cole Cannon, gave the boys liquor and marijuana. Miller consumed a fifth of whiskey as the boys engaged in drinking games with Cannon and planned to steal his wallet.
Eventually, a fight broke out and the boys severely beat Cannon, set fires in the trailer and fled, ignoring Cannon's pleas for help. Cannon died of smoke inhalation. The 16-year-old friend made a deal with prosecutors in exchange for his testimony, and got life with parole eligibility. Fourteen-year-old Miller got life without parole.
Bryan Stevenson, the lawyer who represents the boys in both of these cases, will make two basic arguments before the Supreme Court. The first is that a mandatory punishment of life without parole for a 14-year-old is cruel and unusual punishment because the defendant's age and background are irrelevant and cannot mitigate punishment.
"Judges can't consider it. Juries can't consider it. No one can consider it," says Stevenson.
The states counter that the juvenile's age has already been considered by taking the death penalty off the table.
"If the defendant is not going to get the death penalty, then at the very least, the defendant ought to get life without parole" to counterbalance the harm he has inflicted, says Alabama Solicitor General John Neiman.
But the big question before the Supreme Court on Tuesday is whether life without the possibility of parole is itself an unconstitutionally cruel and unusual punishment when it is applied to juveniles.
Defense lawyer Stevenson notes that the American legal system treats minors as both less culpable and less responsible. Fourteen-year-olds, for instance, are not allowed to drink, to marry, to vote, to serve on juries or even to drive.
"We're not saying that juvenile offenders who commit homicide can't be punished severely," Stevenson says. "They may even end up spending the rest of their lives in prison. But it's premature, excessive and unfair to say we know this juvenile will never be rehabilitated."
Indeed, a brief filed by the Council of Juvenile Correctional Administrators and other juvenile crime experts points to many amazing cases of rehabilitation. Among them is 16-year-old Scott Filippi, who shot his mother but after his release joined the Army and became a member of the Presidential Honor Guard.
Or there is Raphael Johnson, who shot and killed a classmate when he was 17, but after his release got bachelor's and master's degrees with honors and started a community policing program in Detroit. Or there is Lawrence Wu, a 15-year-old New York gang member who eventually became the editor-in-chief of the Columbia Law Review.
One of the most famous of those who have changed their lives is award-winning actor-producer Charles Dutton. By age 12, he had quit school and was living a life of fights and crime on the streets of Baltimore.
"I liked getting in trouble," says Dutton. "I enjoyed getting in fights. I enjoyed the challenge of battle."
By age 17, he was sentenced to prison for manslaughter. Even in prison, though, he continued his fighting ways, assaulting a guard and getting eight years added to his sentence. A decade or so later, he was on his way to "the hole" for solitary confinement when he picked up a book of plays sent to him by a girlfriend. It ended up changing his life. As he puts it, he found what he was "born to do."
"Up until that point in time, I didn't really concentrate on the life I had taken," he says. "But only at that moment of rediscovering my own humanity [could I] go back and have a very, very strong and sincere, heartfelt remorse for taking that life." Now, four decades later, he says he thinks of the man he killed every day and wonders who he would have been.
Dutton says he understands the desire to avenge a terrible crime, but "there's no sense in destroying a second life if that life is actually redeemable. If there's anyone who still has a modicum of redemption left in their life, it's a juvenile."
The states that have adopted life without parole for juvenile killers have a very different view.
"The one thing that we don't know is what the potential of the life would be that was snuffed out in the crime," says Arkansas Attorney General Dustin McDaniel. "The hypothetical of who might be rehabilitated in prison is a hard one to analyze, but there have to be some circumstances under which these persons can serve life without parole."
Indeed, Alabama Solicitor General Neiman notes that 38 of the 50 states authorize life without parole for a 14-year-old convicted of murder, and the federal government authorizes it for 15-year-olds. Part of the justification for that, he observes, is the notion of retribution.
"As a moral matter, it is OK for a government to say, even if there is a possibility that someone will rehabilitate themselves, if a person commits a sufficiently egregious crime, then they just deserve a very severe sentence," Neiman says.
Defense lawyer Stevenson counters that in reality, only 18 states have imposed life without parole on a 14-year-old, and only 79 killers who are 14 or younger are currently serving life-without-parole sentences.
Arkansas Attorney General McDaniel says that even if those statistics are accurate, and he disputes them, it doesn't prove much.
"It's not because society doesn't have the moral stomach to impose those sentences," McDaniel says. "It's because, realistically, 14-year-olds don't commit a lot of murders."
Finally, the states argue that life without parole is a sufficiently severe sentence that it will deter at least some juveniles from committing murder.
Defense lawyer Stevenson dismisses that argument, echoing the sentiments of many experts who deal with violent juveniles.
"Most of my clients had never heard of life imprisonment without parole and had no capacity to appreciate what it would mean," Stevenson says. "It takes them years before they even get what it means to be sentenced to life in prison without parole, because they're just not used to thinking that far ahead."