GRAHAM v. FLORIDA

Print this transcript Transcript: 

ORAL ARGUMENT OF BRYAN S. GOWDY ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument first this morning in Case 08-7412, Graham v. Florida.

Mr. Gowdy.

Mr. Gowdy: Mr. Chief Justice, and may it please the Court: Sentencing an adolescent to life without any possibility of parole condemns him to die in prison and rejects any hope that he will change for the better.

This sentence, like the death penalty, cruelly ignores the inherent qualities of youth and the differences between adolescents and adults.

At--

Justice Ruth Bader Ginsburg: Are you urging that in all cases, including homicide cases?

Or are you drawing the line at homicide?

Mr. Gowdy: --We are -- we are drawing the line, Your Honor, at -- at non-homicide cases because we recognize under the Eighth Amendment that we must look at societal consensus, and society has said that murder is different and has said that in the sentencing practices, as demonstrated by the fact that outside of Florida judges and juries have imposed this sentence on just 30 non-homicide offenders in just 6 States.

Chief Justice John G. Roberts: Thirty-eight States allow this sentence, though, don't they?

Mr. Gowdy: Thirty--

Chief Justice John G. Roberts: Thirty-eight, 39.

I know you have a little dispute, but the vast majority of States allow the imposition of this sentence.

Mr. Gowdy: --The vast majority allow it and they have for some time, and we believe that the fact that it has been allowed for so long and imposed so rarely, as the States themselves have admitted, is -- is strong evidence of societal consensus.

Justice Samuel Alito: You're making a--

Chief Justice John G. Roberts: I would have thought that would be strong evidence that they appreciate the gravity of the sentence in the particular circumstances of juveniles and therefore only impose it rarely.

Mr. Gowdy: Your Honor, I would -- I would disagree.

I would -- if -- if there's 30 -- 31 States that have allowed it and have never imposed it, in -- in our judgment, that -- that's evidence that it's very unusual, and you couple that--

Justice Antonin Scalia: No sentence can be -- can be imposed rarely?

Mr. Gowdy: --No, Your Honor, it has to--

Justice Antonin Scalia: When a sentence is imposed rarely, it becomes unconstitutional?

Mr. Gowdy: --No, Your Honor.

Justice Antonin Scalia: That's not your position?

What--

Mr. Gowdy: Our position is that you are looking at two things.

One, is it cruel?

It's cruel because life without parole is unique, is particularly cruel to adolescents because it -- it gives up on the adolescent and determines that he is forever unfit to live in civil society.

Justice Antonin Scalia: --It doesn't make it crueler to him.

I don't see why it's any crueler to an adolescent than it is to -- what -- where do you draw the line?

At 21?

Mr. Gowdy: We draw the line at 18, the same line that the Court drew in Roper.

And it's cruel because of the inherent -- the inherent qualities of youth.

Justice Samuel Alito: --And you are making a per se argument, no?

You can imagine someone who is a month short of his 18th birthday, and you are saying that, no matter what this person does, commits the most horrible series of non-homicide offenses that you can imagine, a whole series of brutal rapes, assaults that render the -- the victim paraplegic but not dead, no matter what, the person is sentenced shows no remorse whatsoever, the worst case you can possibly imagine, cannot -- that person must at some point be made eligible for parole.

That's your argument?

Mr. Gowdy: Your Honor, that's -- that's correct.

The life -- yes.

A life with parole sentence would be constitutional, and that may mean that person you describe still spends his entire life in prison, but life with parole gives some hope to the adolescent who has an inherent capacity to change.

It gives him some hope that later in time he may be released.

Justice Samuel Alito: If we agree with you--

Justice Antonin Scalia: And so if it's--

Justice Samuel Alito: --If we agree with you, at what point must the parole consideration be given?

There is a suggestion in your brief that maybe the Colorado statute, which says that a person can get parole consideration after 40 years, would be constitutional.

Is that your position?

Mr. Gowdy: Your Honor, our position is that it should be left up to the States to decide.

We think that the -- the Colorado provision would probably be constitutional.

We will have to see what different States do.

I mean, but -- but, yes, even that long amount of time would give at least some hope to the adolescent offender.

Chief Justice John G. Roberts: What about -- what if it's the -- pursuant to the usual State parole system, and it turns out that grants parole to 1 out of 20 applicants?

Mr. Gowdy: I think all that would have to be required, Your Honor -- I think that would be sufficient.

All that would have to be required is a meaningful opportunity to the adolescent offender to demonstrate that he has in fact changed, reformed, and is now fit to live in society.

It -- that's all.

That's all we are asking for.

We are not asking that it be automatic right to get back out.

If Terrance Graham or Joe Sullivan--

Chief Justice John G. Roberts: It seems to me that your -- your argument suggests that you are, quite rightly, focusing on the particular facts that have life without parole.

But if you concede that it's all right to have a sentence of 50 years and then a consideration where 1 out of 20 people are granted parole, I think it suggests that the line you would draw is -- is pretty artificial -- or certainly suggests that the next case we will get is somebody with life with parole after 50 years.

Mr. Gowdy: --Your Honor, first, I'm -- I'm not conceding that with 50.

The question was asked about 40.

But I understand--

Chief Justice John G. Roberts: Are you saying there is something in the Eighth Amendment that draws a distinction between 40 and 50 in that case?

Mr. Gowdy: --Your Honor, I'm saying that this sentence that we are here today before is unequivocally, unmistakably a condemnation that you will never be released from prison, and so this sentence clearly falls on the line of being cruel because it tells an adolescent, for an adolescent mistake, you can never live in civil society.

There will be other sentences that people will argue are the equivalent of this sentence, and -- and people may argue that with a 50-year sentence.

But this sentence here is unequivocal, and there is no question that it's cruel because of -- of the fact that it rejects any hope that the adolescent can be changed.

Justice Ruth Bader Ginsburg: Is it a fact that--

Justice Anthony Kennedy: I'm interested in -- in two different things and you can address them during the course of your argument.

One is the assumption of the argument seems to be that there are in place parole -- throughout all the States -- parole systems which are effective, which are operating, and that they have the capacity to make accurate judgments about rehabilitation.

What can I read -- what -- what studies do you have to -- that -- that comment on that?

Secondly, unrelated, at some point I think you ought to talk about the procedural bar, which is something you go over very, very, very -- let's see -- that's Sullivan.

Justice Ruth Bader Ginsburg: --That's the other case.

Justice Anthony Kennedy: Pardon me.

That's Sullivan, yes.

Mr. Gowdy: With leave, I will let Mr. Stevenson answer about the procedural bar.

But on the first question, Your Honor, I would point you to the amicus brief filed by the various correctional officers that talk about the types of programs that can be done.

I think that that has -- is very thorough and -- and would answer it far better than I can in a couple minutes up here.

But, yes, to answer short, we -- we believe that -- that the parole systems in place can be effective to do this, and in all seven States where there are currently non-homicide juvenile offenders, they all have functioning parole systems.

Even Florida has it.

Even though it -- it abolished parole in 1983, Florida still has 6,000 parole-eligible inmates and last year they heard over -- they made over 1,700 parole determinations.

So the -- the administrative burden to the State of adding these--

Justice Samuel Alito: But Florida has abolished parole, has it not, going forward?

Mr. Gowdy: --Going forward, it has abolished parole--

Justice Samuel Alito: So eventually, if things are allowed to take their course, the Florida parole board will go out of business.

Mr. Gowdy: --And Florida could choose to make that sentence and instead impose a sentence, as its prosecutor recommended here, a 30-year determinant sentence, if Florida doesn't want to reinstitute parole.

We are not saying it has to do parole.

That's just one of several constitutional options.

Justice Anthony Kennedy: What -- what would you do if there were a crime spree and there were different jurisdictions?

One jurisdiction imposes for 35 years, the next jurisdiction for another 35 years, to be served consecutively.

Mr. Gowdy: Well, Your -- Your Honor, I -- I think that the -- that you would get into the question about whether that sentence is the equivalent of life without parole, and there could be an argument made that if you -- obviously, if you sentence someone to 150, 200 years, there's no conceivable hope of ever release, 150 years without parole.

Justice Anthony Kennedy: So the second jurisdiction has the obligation, but not the first?

Is that the way it works?

Mr. Gowdy: I would think that the -- if you had that -- I would think that the -- that the judge making that sentence would have to take that into consideration, that this sentence is going to -- based on all adolescent conduct -- it has to be all adolescent conduct, not if some of the conduct is post-juvenile.

But, yes, I would think that the -- that the second sentencing judge would need to take that into consideration.

Justice Antonin Scalia: --So he -- he could sentence up to 1 year before the life expectancy of the -- of the person in prison?

That -- that would be okay?

Mr. Gowdy: I -- I wouldn't say that would be okay, Your Honor.

I think that--

Justice Antonin Scalia: Well, what's he supposed to do?

How many years can he give--

Mr. Gowdy: --I think--

Justice Antonin Scalia: --consecutive?

Mr. Gowdy: --I think there has to be some--

Justice Antonin Scalia: There obviously does.

What do you propose?

I propose, you know, 1 year before his life expectancy.

Mr. Gowdy: --Your -- Your Honor, I think that would be coming so close to the -- the constitutional line, it would be -- it would be difficult to see that as constitutional, but -- but--

Justice Antonin Scalia: Oh, 1 year before life is also unconstitutional?

Mr. Gowdy: --Your Honor, I'm--

Justice Antonin Scalia: Two years before life?

Mr. Gowdy: --Your -- Your Honor, there would definitely be a -- a difficult line to draw at that case.

Life without parole, though, is unequivocal.

And even that sentence that you are describing, there is some difference between it and life without parole, because only life without parole makes the unequivocal assessment that the adolescent cannot be returned to civil society.

Chief Justice John G. Roberts: We have -- you are arguing for a categorical rule.

Mr. Gowdy: Yes.

Chief Justice John G. Roberts: Your friend on the other side is arguing for a categorical rule, always permissible.

But we have a precedent that suggests in -- in an individual case, you assess the proportionality of the sentence to the crime.

Now, we know from Roper that death is different, and we know from Roper that juveniles are different.

Wouldn't it make sense to incorporate the consideration of the juvenile status into the proportionality review?

So that if you do have a case where it's the 17-year-old who is 1 week shy of his 18th birthday and it is the most grievous crime spree you can imagine, you can determine that in that case life without parole may not be disproportionate.

But if it's -- and I know you would argue that these are the facts here -- if it's a less grievous crime and there is, for example, a younger defendant involved, then in that case maybe it is disproportionate.

Why -- why doesn't that seem more sensitive?

And it avoids all of the line-drawing problems we have been discussing.

Mr. Gowdy: Well, two things: First, Your Honor, Roper states, and the science -- states it based on the science, that at that age we cannot make a determination about whether or not the adolescent will or will not reform.

Even an expert psychologist, psychiatrist cannot do it.

Chief Justice John G. Roberts: Oh, I understand.

But I don't think they'll say that we can't make that determination at 17 years 51 months, but we can make that determination at 18 years 1 month.

Mr. Gowdy: Well, anywhere you draw the line, Your Honor, you're going to come up with an example where you are 1 day before or 1 day after, and the Court in Roper struggled with where to draw the line between maturity and immaturity, and it concluded, rightly so, to draw the line at 18 based on both the science and the legislative determinations.

Chief Justice John G. Roberts: But that is because, as they told us, death is different.

And you do -- once you decide that, you do have to draw a line somewhere.

I'm just wondering why we have to go all the way in with you or all the way with your opponent when our precedent allows us to consider an issue of this sort on a caseby -- case basis.

Mr. Gowdy: I think it's because adolescents are different.

Adolescents are different in that we can't tell at this age whether they are going to reform or not.

And all we are proposing is that an adolescent not necessarily be released, but that he be given a later opportunity.

And it boils -- it just comes down to adolescents are different, Your Honor, and the determination can't be made at age 17 even for the most heinous crimes that are committed.

Justice Ruth Bader Ginsburg: Is there any difference in the terms of incarceration making this harsher than otherwise?

I think you suggested in -- in your brief that educational and vocational training is not given to people who are in for life without parole because they will never be out on the street so they don't need to be transitioned back.

Mr. Gowdy: If I understand your question, would it be different if those type of programs are made available to life-without--

Justice Ruth Bader Ginsburg: My question is, first, you say that they are not available.

Mr. Gowdy: --Yes.

Justice Ruth Bader Ginsburg: Is that -- that's so?

Mr. Gowdy: Yes, that is generally true.

And the -- and the very website that the State of Florida cites makes a point of saying that the programs are for the purpose of reentry into society, and so those are obviously the opposite of what life without parole is.

You are never going to reenter society.

And it's generally true that those programs are not available to offenders who get life without parole, and that's what makes the sentence so particularly cruel, to give up on a kid at that point in his life.

Justice Ruth Bader Ginsburg: So what are the terms of incarceration?

They just stay in their cells and--

Mr. Gowdy: Well, Your Honor, I think it varies obviously by facility by facility.

But the sentence means you are going to stay in your cell and die there.

You are going to stay in your cell for 60 or 70 years, whenever you reach your natural death, and die there.

You know, they -- they do have some limited freedoms, as the State of Florida has pointed out, the same types of freedoms that people on death row have.

But ultimately both sentences mean that you are going to die in a State-controlled institution.

And they are very hopeless--

Justice Antonin Scalia: I don't think -- the same kind of freedom that people on death row have?

I--

Mr. Gowdy: --Well, the State makes the point in their brief, Your Honor, that you have the right to exercise your religion, you have the -- you have the right to petition the courts.

Justice Antonin Scalia: --Aren't they released into the general population for exercise, for -- which I don't think death row inmates are.

Mr. Gowdy: Your Honor, I -- obviously everything varies facility by facility, but it's--

Justice Antonin Scalia: Well, I doubt whether this varies.

I -- I don't know of any principle where if you are in for life, you are in solitary.

Mr. Gowdy: --Well, I'm not -- I'm not -- you are correct.

I'm not suggesting they are in solitary confinement.

But they are locked up for the rest of their life, and they're not allowed to rejoin civil society even if, as some of the former juvenile offenders who filed a brief in this case, can demonstrate that they have become model citizens.

Justice Samuel Alito: And why isn't the -- the most sensible way to deal with the problem that you are raising, the one that the Chief Justice suggested, to permit as-applied proportionality challenges that take into account the particular circumstances of the juvenile in question, rather than this per se rule that you are advocating, which would deprive the State of Florida from reaching the judgment that there are some -- there are some juveniles, some individuals who are short of their 18th birthday, who cannot -- who deserve imprisonment in -- life imprisonment without parole?

Some of the actual cases that -- in which this sentence has been imposed in Florida involve factual situations that are so horrible that I couldn't have imagined them if I hadn't actually seen them.

Raping an 8-year-old girl and burying her alive.

Are you familiar with that case?

Mr. Gowdy: I am not familiar with that particular case.

No.

Justice Samuel Alito: Raping a woman in front of her 12-year-old son and then forcing the son to engage in sexual conduct with the mother.

Are you familiar with that case?

Mr. Gowdy: Yes, Your Honor, I am familiar with that case.

Your Honor, the reason, first of all, the Court has said and said so clearly in Kennedy that murder is different.

In the Kennedy decision, you also said: Horrible facts, someone who raped their stepdaughter.

But yet this Court drew a line and exempted from capital punishment adult defendants who commit horrible crimes.

But to get to the core of your question as to why not do it on a case-by-case basis, because you can only make the determination about the adolescent later in life.

And I -- we would agree that there should be a case-by-case determination as to -- as to whether or not that offender should spend his whole life in prison, but we say it needs to happen later, once he has matured, once he's reached past adulthood, because when you're--

Justice Antonin Scalia: You assume -- doesn't your argument assume that the only purpose of punishment is deterrence in the sense of protecting society from this person in the future, so that, you know, once that's no longer a problem, we should let this person out.

But that isn't the only purpose of punishment that we've acknowledged.

One of the purposes is retribution, punishment for just perfectly horrible actions.

And I don't know why that value of retribution diminishes to the point of zero when it's a person who's, you know, 17 years 9 months old.

Mr. Gowdy: --We are not suggesting that it goes to the point of zero.

We're not -- and we concede the State has a right to -- to exact retribution from the juvenile offender.

And in this case, 30 years would have been a lot of retribution for Terrance Graham, both--

Justice Antonin Scalia: Most States didn't -- don't think so, or many States don't think so.

Mr. Gowdy: --Well, Your Honor, we -- but a Juvenile is -- not only does he have an inherent capacity to grow; he is less culpable.

And so to exact the most -- for a non-homicide crime whether you are adult or juvenile, this is the most severe punishment you can receive, and to exact that most severe punishment for a less culpable offender that the Court has recognized is a less culpable offender doesn't -- is too much retribution.

We are not saying the State can't exercise retribution, but that life without parole is -- is too much for those types of crimes.

Justice John Paul Stevens: Mr. Gowdy, can I ask this question?

Mr. Gowdy: Yes, Justice.

Justice John Paul Stevens: If your client in this case had been processed in the juvenile system instead of the adult system, what would the maximum penalty he could have received been?

Mr. Gowdy: He would have had to have been released when he was 22 years.

Justice John Paul Stevens: So the choice is between that short a term and an indefinite term?

Mr. Gowdy: No, no, Your Honor.

We -- we concede that the State of Florida may continue to prosecute juveniles in adult court and that makes sense in order to get a term of years that is longer than you can get in juvenile court.

And in this case, if the judge had gone along with the prosecutor's recommendation, it would have meant a 30-year sentence for my client, which would have been far longer than he could have gotten in the juvenile court.

Worse--

Chief Justice John G. Roberts: The logic in Roper was very straightforward.

It says,

"Death is reserved for the worst of the worst. "

I think that was the quote.

We know that juveniles are not the worst of the worst, for the reasons you have articulated, that they are not fully developed, don't have moral sense to the same extent as an adult.

But life without parole is not reserved for the worst of the worst, and so it seems to me that the logic of our precedent suggests that you can't necessarily rely on the juvenile status to exempt them from a penalty that is not reserved for the worst of the worst, but perhaps it makes sense to consider in a particular instance whether the penalty is disproportionate, given the juvenile's characteristics that you suggest.

Mr. Gowdy: --Well, I guess we will come back to the point that I think life with parole would be a long sentence, and I don't -- I don't see how you can do it on a case-by-case basis at age 17.

You can certainly do it--

Justice Ruth Bader Ginsburg: --Is there -- is there disproportionality review generally in Florida and particularly for juvenile offenders?

Mr. Gowdy: --There is no -- no.

Under Florida law, there is no basis to challenge a sentence as being excessive or disproportionate as long as it's at the statutory maximum.

Chief Justice John G. Roberts: Well, there wasn't prior to our death penalty jurisprudence, either.

And I thought we reviewed proportionality as a matter of Federal law in the Solem case.

Mr. Gowdy: Right.

I guess I understood Justice Ginsburg's question as if under Florida law.

Justice Ruth Bader Ginsburg: Yes.

Chief Justice John G. Roberts: Right.

Mr. Gowdy: Can you--

Chief Justice John G. Roberts: Well, so did I, but we are talking about constitutionality under the Eighth Amendment--

Mr. Gowdy: --Right.

Chief Justice John G. Roberts: --which is Federal law.

Mr. Gowdy: I guess a -- I know under Federal -- under Federal sentencing law, statutory law, there's a reasonableness review.

And I was -- I guess I was trying to draw a comparison with, and maybe I'm not answering the question correctly, that we don't have that in Florida.

Justice Ruth Bader Ginsburg: Yes, that's what I meant, whether you'd have to create a -- a procedure that does not exist in Florida for proportionality review.

Mr. Gowdy: Well, there would -- it would have to be strictly Federal law.

It would have to be a procedure on a -- if you do this case-by-case suggestion, it would -- it would have to be strictly based on Federal constitutional law, because--

Justice Antonin Scalia: Oh, sure, but you can make that claim in Florida courts, can't you?

Mr. Gowdy: --You can--

Justice Antonin Scalia: Can't you argue in Florida courts that this sentence is disproportionate and violates the Eighth Amendment, whereupon the Florida courts would have to decide?

Wouldn't they have to decide that question?

Mr. Gowdy: --You -- you could make that argument.

And we do -- we do -- I should point out to the Court that we do have a fallback position in our papers based on Mr. Graham's offense of armed burglary and -- and the fact that in only two States could Mr. Graham have gotten this sentence and that the only State that has actually imposed it for a first-time armed burglary is Florida.

And it--

Justice Ruth Bader Ginsburg: But there is a problem with that argument in this case, because the sentencing judge made it quite plain that he was treating Graham as a recidivist, not as a first-time offender.

He said -- Graham got a very light sentence, just 12 months in detention and then 3 years' probation, and the judge said: Now, you better toe the line or else you could be put away for a long time.

And then he committed -- it really was -- the sentence was for the later activities, even though they weren't proved beyond a reasonable doubt.

I think that Graham admitted to a couple of -- to more armed robberies.

Isn't that so?

Mr. Gowdy: --He -- he admitted to the police, and I don't want to get too much into the facts, but that -- but even if Your Honor concedes that he was convicted of all those crimes, which he was not convicted of, but the judge, as you say, correctly relied upon for this sentence, then we only have two States that we know of that have imposed life without parole for a recidivist robbery or burglary crime, and that's California and Florida.

And we -- we've set forth that argument to give the Court that option, but we believe our primary argument, the categorical rule, is more logical because of the fact that you can't do a case-by-case determination of an adolescent at the time -- based on his juvenile offense.

And maybe, in these horrible crimes--

Justice Sonia Sotomayor: But you haven't answered Justice Alito's point, which is: What's the difference a month before he's 18 and a month after?

What makes us more capable at the 18th birthday to--

Mr. Gowdy: --Well, you--

Justice Sonia Sotomayor: --to affirm a judgment that someone can't be -- can't be -- can't be rehabilitated?

Mr. Gowdy: --There is not much difference, Your Honor, but the line has to be drawn somewhere.

And society, as this Court recognized in Roper, has generally drawn that line at 18--

Justice Sonia Sotomayor: Well--

Mr. Gowdy: --as between the--

Justice Antonin Scalia: A line has to be drawn somewhere only if we accept your approach that there has to be a categorical exemption.

A line does not have to be drawn somewhere if you adopt the approach of, case by case, decide whether this is proportional, given how old the individual was, given the nature of the crimes, and all of the other factors.

You don't have to draw a line then, and that's the attraction of that approach.

Mr. Gowdy: --You -- I -- I think that the -- based on -- I would just ask to conclude and then I will sit down.

Based on the -- on what scientists have told us, the categorical approach is the most logical approach because we can't tell which adolescents are going to change and which aren't.

Chief Justice John G. Roberts: Thank you, Mr. Gowdy.

Mr. Makar.

ORAL ARGUMENT OF SCOTT D. MAKAR ON BEHALF OF THE RESPONDENT

Mr. Makar: Mr. Chief Justice, and may it please the Court: The categorical rule that Petitioner seeks here would undermine what Florida and other States have adopted in terms of juvenile justice.

And in particular, it would go against three major trends, that being strong punishment for serious violent crimes by juveniles; second trend, transfer laws allowing juveniles to be treated as adults; those laws have been enacted in the last 15 years--

Justice Ruth Bader Ginsburg: Did that--

Justice Anthony Kennedy: I didn't -- I didn't hear the second.

Mr. Gowdy: I'm sorry.

The three trends are: The strong punishment for juveniles that States have enacted over the last 15 -- 20 years; the various transfer and waiver laws that States have enacted over the last 10, 15, 20 years allowing juveniles to be transferred into adult court; and then finally, what is really at issue is parole.

Parole has been eliminated in many States.

Fifteen States have totally eliminated it in the last 10, 15 years.

So what they are seeking is a categorical rule that goes against the national consensus and the national trend.

The concession here was that Graham's sentence could be even up to life as long as there is the possibility of parole.

We believe that's very telling.

In their brief, they point out that Graham could have been sentenced to something just short of his actuarial life.

His actuarial life is around 64 years old, which means just about a 46-year sentence.

And the standard that we suggest here is that there cannot be any categorical rule, for the reasons Justice Alito pointed out.

We have--

Chief Justice John G. Roberts: Well, but you are arguing for a categorical rule of your own.

You are saying that under a -- under -- juveniles under the age of 18, what, it's never -- it can be never determinative that they are juvenile in setting the sentence as a matter of Federal law?

Mr. Makar: --Well, Mr. Chief Justice, we do agree in Florida and other States as well that age does matter, and we ask that there be three things that the Court look at.

First, look at the legislative structure.

Florida structure doesn't -- Florida structure is a very balanced, thoughtful approach, in waiving children into the adult court only when it's a violent crime and only under certain -- when certain ages are in play.

Look at the age.

It does play a role.

The judicial discretion plays a role.

The trial judge--

Justice John Paul Stevens: May I ask this: Is there a minimum age when a juvenile can be transferred to -- to adult procedures?

Mr. Makar: --It's a three-tiered system, Justice Stevens.

And let me--

Justice John Paul Stevens: Well, I'm just interested in one.

Is there a minimum?

Mr. Makar: --Yes.

The way in which--

Justice John Paul Stevens: Is that an arbitrary line, or how do you -- how do we know it shouldn't be higher or lower than the line?

Mr. Makar: --Well, the legislature has set the line at 14-15 for certain crimes and 16-17 for others.

And then for indictment, where it goes to a grand jury, there is no age limitation.

That has been on our books for the better part of 50, 60 years, allowing indictment -- allowing the grand jury to make a decision about whether the particular juvenile shall be brought into the adult court.

So--

Chief Justice John G. Roberts: But then the -- what is your objection to an approach that when you are dealing with life without parole, for the reasons that your brother has articulated, you must as a matter of Federal law consider the juvenile status of the defendant before that sentence is imposed?

Mr. Makar: --Well--

Chief Justice John G. Roberts: In other words, not a -- not a categorical rule that it automatically makes a difference, but not a categorical rule that it can never make a difference?

Mr. Makar: --Well, sure.

And as I say, there's the three factors I would ask the Court to look at.

First, the structure that we have here in Florida, which many States have, that deal with the age.

Age does matter.

Ninety-nine out of 100 juvenile offenders in our system do not go into adult court, and an even smaller percentage of that ultimately get into the adult sanctions.

The trial judges in Florida, unless -- unless it's a very violent crime, have some discretion to sentence as to age.

If you look at the transcript here in the joint appendix, the trial judge here struggled with this, struggled with age, and said: Juvenile sanctions are inappropriate; youthful offenders -- youthful offender sanctions are inappropriate; I'm going to sentence you to -- to adult.

Justice John Paul Stevens: Yes, but could I interrupt with one question?

Isn't it correct that the age is relevant on whether or not to transfer the person to the adult system, but once he's in the adult system, age is entirely immaterial?

Mr. Makar: That's not accurate, Justice Stevens.

Under the statute 985.226, 227, and 225, we have a system in which the grounds are set for when juveniles can be either mandatorily or discretionarily brought into the adult system.

And then under the statute 985, the punishment is graduated.

In other words, for the lower offenses, the juvenile sanctions must be considered and the youthful offender sanctions must be considered.

It's only in certain limited instances, like indictment, where it's a life offense, where the juvenile has been indicted for life, that the trial judge is forced to do adult sanctions.

In this case, Graham was under the discretionary direct -- direct file, meaning that the prosecutor had discretion whether to bring the case or not.

He brought it into the adult system.

Graham accepted being processed as an adult.

He was put on probation, and then--

Justice John Paul Stevens: I still don't understand.

Just to make sure I get the point correct: After the decision has been made to have them prosecuted in the adult system, at that -- after that decision has been made, is the age of the defendant a relevant factor in sentencing?

Mr. Makar: --The age -- they get a presentence report.

The age is woven in--

Justice John Paul Stevens: I understand, but statutorily?

As a matter--

Mr. Makar: --Well, the statute doesn't specifically say the trial judge--

Justice John Paul Stevens: --The answer is no.

It's -- under the statutes, it's totally irrelevant after he has been transferred to the adult stage.

Is that correct?

Mr. Makar: --Not exactly, because the range of remedies the trial judge can impose is based upon what method by which the juvenile was transferred or waived into the adult court.

In Graham's case, he was allowed to have juvenile and youthful offender sanctions considered because of his age.

I mean, that's the way--

Justice Antonin Scalia: You mean the trial judge under Florida law does not have discretion to choose a lower sentence because of the -- of tender years of the defendant?

Mr. Makar: --Well, absolutely, the trial judge does.

And you can see the trial judge here grappling with that.

Justice John Paul Stevens: But the statute doesn't draw any distinctions once he is in -- in the adult--

Mr. Makar: I guess the answer to your question is there is no specific statute that says the trial judge shall consider age specifically.

Chief Justice John G. Roberts: And -- and there's -- well, I guess that answers my question.

He is not required to as a matter of Federal law.

He can say: I am not considering the fact that this is a juvenile because I think his crime should be treated as an adult crime.

Mr. Makar: No -- I mean, certainly not under any Federal constitutional principle I am aware of.

Chief Justice John G. Roberts: Well, that's what we are arguing about.

Mr. Makar: Right, right.

Well, certainly here, I mean, what we would say, assuming there is no categorical rule and the Court decides to go into the proportionality balance here, we think that certainly Graham's offense certainly is off the scales and would be grossly -- probably be -- it would be--

Justice Ruth Bader Ginsburg: --That's -- that's one of the problems, is the individual sentencing judge might think that Graham is a very bad individual, but the prosecutor had a different judgment of it.

And Florida doesn't have any kind of proportionality review, doesn't have any review -- appellate review of the sentences.

Mr. Makar: --Well--

Justice Ruth Bader Ginsburg: This judge, I think, surprised everyone in the courtroom with the -- with the sentence.

Certainly it was far beyond what the prosecutor recommended.

Mr. Makar: --Well, the prosecutor recommended 30 years, that's correct, and the judge here entered life.

As I say, that translates into -- essentially a 46-year actuarial life sentence.

That was within the trial judge's discretion, and particularly given the seriousness of the offenses that Graham committed.

We are talking about violence.

And violence does matter.

This Court has said -- and certainly in oral argument in Solem and others, the -- violence versus non-violent acts plays a major role in sentencing, and it should play a major role as well when it comes to juveniles.

I don't read Roper to say that it takes off the table lengthy sentences for violent crimes by juveniles.

Justice Sonia Sotomayor: Counsel--

Mr. Makar: Yes.

Justice Sonia Sotomayor: --Do you think that it categorically violates the Eighth Amendment for a 10-year-old to be sentenced to life without parole?

Mr. Makar: Well, the answer to that is it certainly raises a concern about the age.

Age does matter.

And as the age goes down, it does.

Justice Sonia Sotomayor: So once it matters, the question for me is -- help me draw the line -- if 10 is in my judgment too early, why isn't 14, 16, or 18?

Meaning why should a -- someone below the age of 14 be sentenced to life without parole?

That's the -- that's the Sullivan case--

Mr. Makar: Right.

Justice Sonia Sotomayor: --but it begs the question, which is age is -- matters a lot.

And so, take on your adversary's argument that it matters a lot because this is a less culpable person.

Mr. Makar: Sure.

It matters -- I think it does matter and it certainly matters from a legislative perspective, from a judicial perspective, and from an Eighth Amendment perspective.

Justice Antonin Scalia: What about historical perspective?

I mean, you might appeal to the fact that at common law, which was in effect when the Cruel and Unusual Punishments Clause was adopted, 12 years was -- was viewed as the year when a -- when a person reaches the age of reason.

And -- and the death penalty could not be inflicted on anyone--

Mr. Makar: Well, certainly that historical perspective has--

Justice Antonin Scalia: --and all felonies were the death penalty.

Mr. Makar: --Sure.

And it has importance.

To some extent, the States have displaced the common law with their juvenile justice systems.

And we -- as I say, I believe Florida's is -- is very balanced.

Going back to your question, Justice Sotomayor, I think that the way age plays a role is that we -- in our system in Florida, we have no one under the age of 13.

And that's sort of provides us--

Justice Ruth Bader Ginsburg: You have no one?

What was your answer?

Mr. Makar: --I'm sorry.

No -- no one in our system is under the age of 13 with life without parole.

You know, there are very--

Justice Sonia Sotomayor: Is that because judges haven't chosen to impose it or because your legal system doesn't permit it?

Mr. Makar: --No, the legal system permits it.

I--

Justice Sonia Sotomayor: How young could the youngest person in Florida be to be prosecuted as an adult and be eligible for life--

Mr. Makar: --Well--

Justice Sonia Sotomayor: --without parole?

Mr. Makar: --Under the indictment statute, there is no age limitation.

So, theoretically--

Justice Sonia Sotomayor: So a 5-year-old could be put away for life?

Mr. Makar: --That is theoretically.

We would hope that the system would not allow that to occur.

And that that would be certainly violative of the--

Chief Justice John G. Roberts: In -- in your earlier response to Justice Sotomayor's question, you said age certainly matters.

As -- as a -- as a matter of what law?

In other words, I understood your submission to be that there was nothing in Federal law that requires different consideration of age.

So when you say age matters, why?

Mr. Makar: --Well, we suggest that it may matter in a particular case, and when you get to the gross disproportionality--

Chief Justice John G. Roberts: Under the authority of what law?

Age matters in a particular case because of--

Mr. Makar: --Well, I -- I -- I think our -- country's traditions recognize it--

Chief Justice John G. Roberts: --Because of the Eighth Amendment?

Mr. Makar: --Well, I believe it could be certainly a part of the Eighth Amendment analysis.

I think just -- certainly age matters in the legislative branch, judicial branch, executive branch.

It matters that we look at the age and make considerations about it when Florida has made those considered judgments.

What we are saying is that if the Court decides to go down the path that's perhaps fraught with more line-drawing than one can imagine and decides that age will be a part of the proportionality, it creates serious problems.

But here--

Chief Justice John G. Roberts: I'm sorry.

Why is that?

If you go down on a case-by-case basis, there are no line-drawing problems.

You just simply say age has to be considered as a matter of the Eighth Amendment.

Justice Antonin Scalia: And then we apply a totality of the circumstances test--

Mr. Makar: --Well -- well--

Justice Antonin Scalia: --which means whatever seems -- seems like a good idea.

Chief Justice John G. Roberts: Well, we apply the proportionality review that we articulated in Harmelin, and Solem and Ewing.

Mr. Makar: --Well, of course--

Chief Justice John G. Roberts: It's already there.

Mr. Makar: --Well, if that's applied, and even if you consider age in these cases that are before the Court, they are on the violent side of the line.

They are out in the tail of the distribution in terms of seriousness of the offense.

So it would be the same result in either case.

I think perhaps--

Justice Sonia Sotomayor: You are not seriously suggesting that the crimes at issue here are comparable to a rape or a permanent infliction of serious disability or any of those other very violent crimes that are close to homicide that Justice Alito spoke about?

There is a quantitative and qualitative difference between those, isn't there?

Mr. Makar: --There is, but the legislatures make the judgment about how they are going to punish those.

And in Florida, we have--

Justice Sonia Sotomayor: Well, if we -- if we have already said that you can't impose death on an adult who hasn't committed a homicide, an intentional death, and so for an adult the most serious sentence that we can give them is life without parole, why should that same sentence be given to a juvenile who we have recognized as being less capable than an adult?

And why should we permit it for a crime that's not comparable to a homicide and/or something akin in seriousness to that?

Mr. Makar: --Because it is still a very serious, violent crime.

We are talking about weapons and guns and people's lives at risk.

And the legislature has made the judgment in Florida and other States to say that that type of crime--

Justice Sonia Sotomayor: But isn't it true -- and I think one of my colleagues already questioned you -- that the prosecutor didn't think that this merited life without parole.

Didn't the parole supervisor say that this young man, Mr. Graham, was compliant with other conditions of his probation?

He went to school.

He did other things.

It does suggest some hope for him.

Mr. Makar: --Well, I think the prosecutor certainly offered up to 30 years.

And the trial judge who, as you can tell from the transcript, was familiar that there were these home invasions going on around our county, that there had been a task force established, and so forth, the -- the trial judge was aware of that and the seriousness of it.

In one instance, one of Graham's codefendants actually killed someone as a part of a home invasion.

These were serious problems afflicting our community in Jacksonville.

Justice Ruth Bader Ginsburg: Do we know why the co-perpetrators got so -- their sentences were dramatically lower.

Do we know why that was so?

Mr. Makar: Is this as to the home invasion or the armed--

Justice Ruth Bader Ginsburg: Yes.

Mr. Makar: --The home invasion -- there was an 11-year sentence for the codefendant.

Justice Ruth Bader Ginsburg: Yes.

Mr. Makar: He helped -- helped and testified and basically assisted the prosecution, so I believe he got a lower sentence.

Justice Ruth Bader Ginsburg: Because he assisted the prosecutor.

Mr. Makar: Right.

The third one is in jail, life without parole on a murder charge, life without parole on the same charge Graham has for another home invasion, and then has the other serious sentences.

So he -- for his home invasions, he is -- he is life without prison--

Justice Ruth Bader Ginsburg: I didn't think he--

Mr. Makar: --I mean, life without parole.

Justice Ruth Bader Ginsburg: --For this very offense, this home invasion, I didn't think that anyone other than Graham had gotten life without parole.

Mr. Makar: Well -- well, Graham got life without parole, and it relates back to his armed burglary with assault and battery.

He got the life sentence under that charge, which is then all part and parcel of the violation-of-probation hearing.

There were these secondary -- these second incidences of home invasions where Meigo Bailey was the codefendant who got life for murder and also for armed burglary as a part of one of the home invasions.

So they -- you know, they got serious punishment.

This is a serious punishment that was meted out to them.

Justice Ruth Bader Ginsburg: Did he -- how do you answer the argument that unlike an adult, because of the immaturity, you can't really judge a person -- judge a teenager at the point of sentencing?

That it's only after a period of time has gone by, and you see, has this person overcome those youthful disabilities?

That's why a proportionality review on the spot doesn't accommodate the -- what is the driving force of the -- your -- the Petitioner's argument is that you can't make a judgment until years later to see how that person has -- has done.

Mr. Makar: Well, Justice Ginsburg, we respect that, and certainly in Roper that was the linchpin to the decision.

Here we are in a different context that deals with these -- these terms of years, and there -- there's no constitutional right to parole.

And certainly that is a purely legislative decision to be made, and States have said we are not going to have parole.

Justice Antonin Scalia: I suppose you could say the same thing of -- of adults, of somebody over 18.

You really can't tell how redeemable this individual is until he is in prison for some time; and, therefore, you should not give anybody life without parole.

They -- they may all be savable.

So we should defer -- defer.

We shouldn't have any non-parole sentences.

Everybody should be evaluated, which was indeed the approach that -- that many jurisdictions used to take.

Wasn't that so--

Mr. Makar: True.

Justice Antonin Scalia: --when there was parole for everybody?

Mr. Makar: And it -- and it goes to the core of the State's sovereignty to decide what laws to enact.

Justice Ruth Bader Ginsburg: But Florida does -- and every State -- recognize the difference between an adult and a minor.

And you have to make the line.

We have it at 18.

But think of the teenager can't drink, can't drive, can't marry.

There are so many limitations on children just because they are children.

Mr. Makar: And, Justice Ginsburg, we ask that the same respect for our juvenile justice system be given to those laws enacted in Florida that protect the -- the juveniles.

It is the legislature on the ground there and seeing what's going on in our State that makes these decisions about who can drive, who gets the right to have a tattoo, or who gets--

Justice Ruth Bader Ginsburg: But they don't make it on a case-by-case basis.

They say no juvenile can drink -- no juvenile.

Mr. Makar: --That's true but at the same -- by the same token, the juvenile justice system in Florida -- and keep in mind we had a juvenile justice division -- department established in 1994 because of the severe problems as we outlined in our brief -- that Florida has a -- has committed resources and -- and programs and so forth to the juvenile justice system.

So given all of that, that what the Court -- I am sorry -- what the State has done as -- as to age, that's why we say that it matters.

What we are concerned about is that to pursue the categorical rule that they seek, the Court would have to, of course, abandon the various firewalls that would stand between terms of years and also the death penalty.

But, in addition, if the Court decides to go down the proportionality route, my concern is the five principles in the Harmelin concurrence about the States having the ability to have diverse juvenile justice programs and not have the -- sort of a lawnmower coming through and making them all uniform.

The Harmelin concurrence, Justice Kennedy, talked about the deference in structuring these.

And there's going to be differences.

Some States are going to have the most harsh laws.

The Eighth Amendment doesn't dictate any particular penological theory.

There's great -- and it -- it would turn the Eighth Amendment analysis on its head to first allow this diversity among the States and allow strong medicine for certain types of violent crimes and then to kind of compare them and say, well, gosh, Florida is unusual; it's different; and that shouldn't be the case whatsoever.

Justice Anthony Kennedy: If we look just at deterrence, my initial instinct is that the difference in life and life without -- life with parole and life without parole is just not a factor in deterrence.

I -- I don't know how I'd confirm that one way or the other, but let's -- let's assume that there is some basis for that intuition.

Then, insofar as the deterrence prong is concerned, since it's not a deterrent, and if you assume that there is rehabilitation, what is the State's interest in keeping the accused, the -- the defendant in custody for the rest of his life if he has been rehabilitated and is no longer a real danger?

What's the State's interest?

Mr. Makar: Well--

Justice Anthony Kennedy: And you could say retribution, but then you have judges on a case-by-case basis deciding when there should be retribution.

Mr. Makar: --Well, I think certainly the State of Florida's interest as among other States is first of all to punish.

Certainly I think deterrence plays a role.

We recognize that deterrence may have less impact on some juveniles, but it doesn't have -- it doesn't have zero impact.

It does have some impact--

Justice Anthony Kennedy: But it seems to me the deterrence interest is quite minimal if you assume rehabilitation or strong evidence of rehabilitation.

Mr. Makar: --Well, but the deterrence goes to those who would commit the same act.

Rather than deterring this particular individual, it goes to others who--

Justice Ruth Bader Ginsburg: I thought the question is: Will the difference between life with parole and life without parole deter anybody?

I mean any -- that -- that's what we are talking about.

And I don't think you really were urging that that difference will deter the teenager so he might think, oh, if I commit this violent crime, then I will have life without parole.

Mr. Makar: --Well, I don't -- I have not seen empiricism on this at all to say, you know, what -- does it really matter or not.

I think that as a matter of on the street people do talk about these things.

I mean, would they--

Justice Antonin Scalia: I guess there's also no empiricism on whether the committed juvenile feels a lot better knowing that he will get out when he is 75 years old than he would feel knowing that he was there for life.

Mr. Makar: --Well, I--

Justice Antonin Scalia: Do we have empirical studies about how much that improves the spirits of the committed juvenile?

Mr. Makar: --I -- I have seen none, and it -- it goes to the question here, which is that Graham will be serving a lengthy prison term.

And what he is seeking is essentially the right to get out at some point in the future and even saying that 40 years would be--

Justice John Paul Stevens: --May I ask this question?

There are an awful lot of amicus briefs in this case, and I haven't been able to read them all by any means.

Do any of the briefs or any of the materials with which you are familiar discuss the rate of -- the difference between the danger of recidivism of a young offender and one who is, say, 40 or 50 years old?

Mr. Makar: --I -- I don't have that at my grasp, but--

Justice John Paul Stevens: But it seems to me sort of -- as a matter of intuition, Justice Kennedy made the same sort of point.

It seems to me that the older people are less likely to be recidivists than the younger ones, but is -- is there any empirical evidence that says that's an incorrect or correct judgment?

Mr. Makar: --Well, in terms of recidivism, I think, number one, violence matters.

I think there are studies -- I can't quite put my finger on -- that says that the violent offenders tend to recidivate more than the non-violent.

And that as one ages -- I think Judge Posner has written a book called "Aging and Old Age" that talks about -- in one of its chapters about how age matters, and that crime rates go down as -- as the population ages.

So I mean there are those sorts of things out there that--

Chief Justice John G. Roberts: Well, along those lines -- and, again, maybe this was in the amicus briefs.

Do you have a study about what age cohort is responsible for most violent crime?

Mr. Makar: --There are -- there are studies everywhere, and I have looked at many of them, and it appears that it certainly increases from age 13, and it goes up to 14.

And it keeps going up until about 16, 17, and 18.

It peaks.

It depends on the crime, and it depends upon what jurisdiction, and so forth.

But it tends to peak in the early 20s, the late teens or early 20s.

So that's -- that's -- I think that's typical.

One thing I would point out that I haven't had a chance to say: The empirical question in this case, I think, is very important because they are asking that a constitutional rule be established on studies that have just been generated literally over this summer and have not been subject to meaningful review.

We have a concern with that.

We think that the definitional questions that they have raised, you know, about the offenses and what is life -- is life -- the studies tend to focus on life.

But what is life?

Well, in Florida we have some juveniles who are serving prison terms that have 50-, 60-, 70-, 80-year sentences, but they are not included within that study.

We also have in this case, for example, Graham, he had a -- let's say that the judge decided to give him 30 years for the main offense and 15 for the second and made them consecutive.

That's 45 years.

Graham's actuarial life--

Justice Antonin Scalia: Well, we are not sure that those 70-year sentences are any good, either, because your -- your friend on the other side, you know, is not willing to -- to pick a number at which the sentence amounts to life without parole.

Maybe a 70-year sentence does.

Mr. Makar: --Well, they've conceded, in their brief, that what this all boils down to is that if Graham wins and he gets to go back and be resentenced, that either the Florida legislature has to pass a law to reinstitute parole for this category of offenders, or the trial judge could say, okay, the actuarial table says you are going to live to be 64.2, we're going to -- I'm going to sentence you to something less--

Justice Ruth Bader Ginsburg: I thought that there was a parole system still functioning, so -- although it will be phased out over time, but for people who were incarcerated under the old regime -- and I think the suggestion was that that system would take care of the handful of people, not more than that, that this decision would involve.

Mr. Makar: --There is still a parole board.

Its functions have been minimized greatly.

It has not been applicable to anyone since 1983.

It would take a legislative act or perhaps even an executive act of some sort to reinstitute that board and to take account of these cases.

Justice Anthony Kennedy: Can you tell us just a little bit about the Florida correctional systems, the policies with respect to rehabilitation programs?

If they don't have parole, then you might say, well, they don't need rehabilitation programs or that they might need them more.

Had the rehabilitation programs been increased or decreased since the phasing out of parole?

Or is it about the same?

Or are they -- are they non-existent?

Mr. Makar: No, no.

They are in existence.

I cannot specifically answer that, Justice Kennedy, because I don't know all the different programs that are available.

There's the various programs that deal with drug offenses and alcoholism and so forth.

And there -- there are certain educational programs.

For example, when Graham was in the county jail -- that was the county versus the State -- he was able to go to school.

I don't believe there is anywhere near sort of the total absence and deprivation, sort of a Weems case, sort of we put you in a cell and you rot there for the rest of your life, at all in our system.

There's all these various rights that we pointed out in our brief that are -- enable -- they are able to have familial relationships.

They can have the Maslow's hierarchy.

I mean, they -- physiological needs and emotional needs and so forth are still available to be met in prison.

So I can't give you specific programs, Justice Kennedy, but in Florida's system, they do exist.

If there's no further questions--

Chief Justice John G. Roberts: Thank you, Mr. Makar.

Mr. Gowdy, you have 4 minutes remaining.

Justice Anthony Kennedy: Why does a juvenile have a constitutional right to hope, but an adult does not?

REBUTTAL ARGUMENT OF BRYAN S. GOWDY ON BEHALF OF THE PETITIONER

Mr. Gowdy: Because the juvenile is different than an adult.

A juvenile is less culpable.

He's -- we know over time he will change and -- and potentially reform, as opposed to an adult.

Once you are fully formed, you are more culpable and you don't have that same inherent capacity to change.

Justice Samuel Alito: But do you know anybody who is willing to say that, as a categorical matter, that -- you know, the 18th birthday is the magical date for every single person?

Mr. Gowdy: No, Your Honor, and nobody was willing to say that in Roper, but, yet, the Court still drew the line at 18 for the death penalty in Roper.

Justice Samuel Alito: Because the Court, up to this point, has said that death is different, and the rules -- the Eighth Amendment rules in capital cases are entirely different from the Eighth Amendment rules in -- in all other cases.

Mr. Gowdy: We are not -- we were not--

Justice Samuel Alito: If we -- you know, if we abandon that, then one of two things has to happen, either the rules for noncapital cases have to change dramatically, or the rules for capital cases have to change dramatically, unless death is different, in fact.

Mr. Gowdy: --Well, I -- first, we -- we are not asking that the procedural rules in the intricate individualized death penalty sentencing scheme be transported or moved over to the noncapital cases.

Justice Samuel Alito: I know you are not asking for that, but that -- isn't that where this, logically, is going?

If death is not different, then there should be uniform rules across the board.

Mr. Gowdy: Absolutely not, Your Honor, because those rules make no sense when you are talking about adolescents, who are different, because those -- which a Court recognized in Roper, that those rules can't be applied to adolescents because we -- you can't, as a sentencer, predict the future.

And so, though death is different, it's not different in any critical respects here because the punishment, life without parole, just like death, says that the offender is forever irredeemable, is forever unfit to live in society, and must die in prison.

Justice Samuel Alito: Why does it say that?

Why doesn't it just say that, in this particular case, what this individual has done is so bad that, even if this person can be rehabilitated and would not present a danger to -- to society at age 60 or 70, that this person is -- should be sentenced to life without parole?

That's -- that's what it means for an adult offender.

Mr. Gowdy: Your -- Your Honor, I think the only difference here is -- between life without parole and life with parole, is that there will be a determination later, at age 30 or 40 or sometime thereafter, as to whether that is the right sentence.

And the -- the parole official, just like the judge, can consider the offense as the offender, as a juvenile.

We're just saying that you can't make that complete determination at such a young age, and--

Chief Justice John G. Roberts: One reason States--

Mr. Gowdy: --and you will have a more accurate determination later.

Chief Justice John G. Roberts: --One reason States and the Federal government moved to abolish parole in -- in recent decades was, with depressing regularity, prisoners released on parole committed crimes again.

And I'm just -- is there any empirical evidence that tells us how often people, say, from 17 -- 17-year-olds, when released, commit crimes again, as opposed to 18 to 20-year-olds?

Mr. Gowdy: Your Honor, as my brother noted, I think that the evidence shows that, as people get older, they are less likely to recommit crimes.

Chief Justice John G. Roberts: But isn't that -- I remember some of those studies that -- I mean, the cutoff, there's sort of a magic age at some point, where people over the age of 35, or whatever, typically don't engage in violent activity.

Mr. Gowdy: It -- it decreases over time, undoubtedly, and that's -- that supports, I think, our argument here, that the -- that Terrance Graham, at age 47, will not be the person he was at age 17.

I see my time is up.

I'll sit down.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Anthony Kennedy: And the second case in which I have the opinion for the Court is Graham versus Florida, number 08-7412.

The petitioner Jamar Graham was sentenced by the state of Florida to life without parole for armed burglary with assault or battery, a crime he committed at the age of 16.

The sentence was imposed after Graham was charged with additional serious crimes at the age of 70.

He challenges his sentence under the Eighth Amendment's cruel and unusual punishments clause, the Eighth Amendment's prohibition is applicable to the states under the Due Process Clause of the Fourteenth Amendment.

Rejecting Graham's Eighth Amendment challenge the first District Court of Appeal of Florida affirmed the judgment and sentence and we now review that ruling.

The Eighth Amendment forbids Cruel and Unusual Punishments.

The concept of cruelty is not merely descriptive, it necessarily embodies a moral judgment.

To determine whether a punishment is cruel or unusual, the courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society.

This Court's precedents establish that the Eighth Amendment forbids the imposition of otherwise permissible punishments when they are disproportionate to the offense or to the offender's culpability.

The present case involves an issue the Court is not considered previously, and that is a categorical challenge to a term of years sentence.

Here the sentencing practice itself is in question rather than the application of a particular sentence to a particular defendant, so the appropriate analysis is a categorical one.

Under this approach the Court must determine whether there is a national consensus against the sentencing practice at issue and then it must decide and exercise of its own independent judgment whether the punishment violates the Constitution.

The laws of 37 states as well as the District of Colombia and the federal government permit sentences of life without parole for juvenile non-homicide offender in some circumstances, 13 states do not allow them.

Relying on this metric, the State and its amici who filed supporting briefs for the state, argue that there is no national consensus against the sentencing practice at issue.

However, an examination of actual sentencing practices in jurisdictions where the life without parole for juvenile non-homicide offenders is permitted by statute discloses a consensus against its use.

There are only 129 juvenile non-homicide offenders serving life without parole sentences across the nation.

A significant majority of those, 77 in total, are serving sentences imposed in Florida.

The rest are in prison in just 10 states and the federal system.

Thus only 12 jurisdictions in fact sentence juvenile non-homicide offenders to life without parole and most of those imposed the sentence quite rarely.

Well 26 states as well as the District of Columbia do not impose the sentence at all despite apparent statutory authority.

Although we recognize a consensus against the use of this sentence the task of interpreting the Eighth Amendment remains our responsibility.

Our cases have established that juveniles have lessened the culpability and so are less deserving of the most severe punishment.

It is also well settled that the defendants who do not kill or intend to kill are less deserving of the most severe penalties.

It follows that when compared to an adult murderer a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.

A life without parole sentence is the second harshest sentence available.

It is especially hard for a juvenile.

The various penalogical justifications for life without parole either are inapplicable or apply with weakened force to juvenile non-homicide offenders.

These offender's diminished moral culpability makes the sentence disproportionate on retributive grounds.

As for deterrence juveniles characteristics make it less likely that they will be deterred by possible punishments than adults are.

Incapacitation is an impermissible rationale to support the sentence of life without parole because it requires a sentence or to make a judgment that juvenile is incorrigible at the outset of the sentencing and as made clear in Roper versus Simmons, the characteristics of juveniles make those judgments questionable.

Finally life without parole sentences forswear entirely the goal of rehabilitation.

Defendants serving life without parole sentences are often denied access to the vocational training or other rehabilitative services that are available to other inmates and for juvenile offenders who are most in need of and receptive to rehabilitation the absence of rehabilitation, rehabilitative opportunities or treatment makes the disproportionality of the sentence all the more evident.

Penalogical theory is not adequate to justify life without parole for juvenile non-homicide offenders.

This determination, the limited culpability of juvenile non-homicide offenders and the severity of life without parole sentences all lead to the conclusion that the sentencing practice under consideration is cruel and unusual.

The Court now holds it for juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.

The state need not guarantee eventual freedom to juveniles convicted of non-homicide crimes, but it must give them some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.

It is for the states in the first instance to explore the means and mechanisms for compliance.

The judgments of other nations in the international community are not dispositive as to the meaning of the Eighth Amendment, but the Court finds support for its conclusion in the fact that the United States in continuing to impose life without parole sentences on juveniles who did not commit homicides adheres to a sentencing practice rejected the world over.

The judgment of the First District Court of Appeal of Florida is reversed.

The case is remanded for further proceedings not inconsistent with this opinion.

Justice Stevens is filed a concurring opinion in which Justices Ginsburg and Sotomayor joined.

The Chief Justice has filed an opinion concurring in the judgment.

Justice Thomas has filed a dissenting opinion in which Justice Scalia joins and in which Justice Alito joins in part.

Justice Alito has also filed a dissenting opinion.