No Life in Prison Without Parole for Kids Charged with Non-Homicide Offenses

It is RARE that I whoop out loud when listening to NPR in the morning. The affair is usually quiet and gentle, me sipping my tea and getting ready, NPR telling me what's right and wrong with the world. But this morning, there was cause for WHOOPING when NPR announced that The Supreme Court of The United States handed down Graham v. Sullivan and ruled that life in prison without parole (LWOP) for juveniles not convicted of homicide is no longer, as a matter of law, permissible under the Eighth Amendment (the one that prohibits cruel and unusual punishment).

The Supreme Court had me at Roper v. Simmons, back in 2005, when it elimiated the death penalty for juveniles. The actual legal rulings in Graham and Roper are but the sweet center of a delicious, decadent piece of candy. The layers that get the court to its decision pack the most punch. An example is how Justice Kennedy starts the opinion. It was something that struck me but may have eluded those just reading it for its legal precedent. Justice Kennedy starts it off by telling us about petitioner:

"Petitioner is Terrance Jamar Graham. He was born on January 6, 1987. Graham's parents were addicted to crack cocaine, and their drug use persisted in his early years. Graham was diagnosed with attention deficit hyperactivity disorder in elementary school. He began drinking alcohol and using tobacco at age 9 and smoked marijuana at age 13."

He is saying here, without actually saying it (in fact he never says it), that this kid never had a chance. And Justice Kennedy, along with Stevens, Ginsburg, Breyer and Sotomayor joined in this implicit acknowledgement that this kid, and others like him, never had a chance. And that that Terrance Graham, and others like him, should have a chance.

In Roper, the court relied heavily on the amicius briefing of the American Medical Association and the American Psycholocial Association to reach its ultimate conclusion that youth are categorically less culpable than adults. In Graham, the court relied on Roper, going even further :

"No recent data provide reason to reconsider the court's observations in Roper about the nature of juveniles. As the petitioner's amici point out, developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain in volved in behavior control continue to m ature through late adolescence."

The court really really emphasizes, AGAIN, that youth, by virture of their less formed brains and moral systems, are categorically less culpable than adults. The court is concerned that States cannot be trusted to acknowledge this fact and protect youth from harsh sentences by themselves. The Court's precludes ANY state in this United States from having LWOP be a consideration for juveniles convicted of non-homicide offenses.

The Court gets quite reflective and inspirational and says: "Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconiliation with society, no hope. Maturity can lead to that considered reflection which is the foundation for remorse, renewal and rehabilitation."

An important issue that Kennedy continuously considers is that services, such as education and training, are typically not offered to those serving LWOP. That means at the tender age of, say 13 (and some states go much younger), an LWOP sentence deprives a child of education, of LEARNING. Considering, the Court notes, what we know about kids and their "diminished culpability," three hots, a cot and four walls for eternity seems a bit of a stretch, or, as the court puts it "Cruel and Unusual Punishment."

The Court rarely impresses me, but when it does, I want to propose my eternal love and indentured servitude to its justices. At the end of the opinion, the Court notes that global consensues is against LWOP. While the State stomps around saying "International Law is not binding," the court gently reminds the State that that is not the question. The question is whether or not LWOP is cruel and unusual punishment and "in that inquiry, the overwhelming weight of international opinion against life without parole for non-homicide offenses committed by juveniels provides respected and significant confirmation for our own conclusions." You tell 'em, SCOTUS.

I plan to spend the evening reading over the substantive and amicus briefing in Graham, to get new ideas on how to continue to force Judge's to listen to the CLEAR and UNCONTESTED FACT that youth are different than adults and that our legal system, more and more, in theory, is leaning into that notion. Now to get the notion to become practice.

Next Stop: Auto-Decline charging? This is where the State, in its unfettered discretion, may charge an child as an adult for certain crimes if the youth is of a certain age. As the trend seems to be towards remembering that juveniles are CHILDREN despite having committed, in some instances, what may appear to be brutal acts, we advocates for youth may have a fighting chance to fight against this draconian practice. We may be able to go one step further in the fight to give kids back their youth.

The Supreme Court Says Be a Good Defense Lawyer!

Just when you think no one values good defense lawyers, the Washington Supremes delivers State v. A.N.J, 68 Wn.2d 91, 225 P.3d 956 (2010). ANJ is, at its core an effective assistance of counsel case, but the language of the court's opinion and its references go so much further.

First of all, ANJ is a kid, a juvenile, charged with a Class A sex offense. Sure, kids don't do life off a Class A sex offense like adults, but once convicted of a sex offense, a youth has to register, possibly serve time at a juvenile facility, do intensive treatment AND most importantly, CANNOT SEAL HIS OR HER OFFENSE. Unfortunately, ANJ didn't get to consider all of this in a meaningful way before pleading guilty to a crime that would haunt him for the rest of his life.

ANJ pled guilty to first degree child molestation when he was 12-years old. He spent very little time alone with his counsel prior to entering a plea of guilty, Most of the attorney's "client" time was spent with ANJ and his parents and even that time was limited.

A highlight from this opinion is when the Court references Washington Defender Association's Standards for Public Defense Services. These are not standards that are required in the practice of defense law, but the Washington State Bar Association has endorsed them and now the Supreme Court of Washington has also. The lawyer in ANJ happened to be a public defender, but many of the standards should guide those of us in private practice as well because the potential failure to provide adequate, let alone meaningful, defense is not limited to overworked public defenders, particularly in the arena of juvenile law. ANJ reinforces the commitment ALL defense attorney should have to providing their client of ANY age with good, solid and thorough lawyering.

The Supreme Court provided some guidelines for what might be necessary to be effective counsel, including: investigation, experts and thorough, private counseling. When I read the opinion for the first time I thought "Obviously!"

I've always been the kind of lawyer ANJ wants us all to be, even when I was a public defender. It was nice to get a shout out from the Supremes!