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					                               Locking Up Kids for Life
                                   Rebekah Murphy
                         2009-2010 KLC Child Advocacy Fellow

        On November 9, 2009 the U.S. Supreme Court hears arguments for two cases
considering the constitutionality of life without parole sentences for juvenile offenders.
Two Florida defendants challenged their life without parole sentences from crimes they
were convicted of as teenagers. At age thirteen Joe Sullivan was convicted of raping a
seventy-two year old victim. Terrance Graham, at age sixteen, was convicted of armed
burglary and attempted armed robbery. Both teenagers were sentenced to life without
parole in Florida state courts. This essay reports the current incarceration rates for
juvenile offenders, reviews the legal issues around juvenile culpability and proportional
sentencing, and examines the arguments made by Sullivan, Graham, and the state of
Florida in their Supreme Court briefs.
                                I. American Sentencing Rates
A. Adult Inmates
        Of the 2.3 million inmates in America 140,610 (9.5%) are serving life sentences,
41,095 (2.8%) are not eligible parole.1 In 1984, only 34,000 inmates were serving life
sentences.2 This significant increase in life sentences is attributable to various responses
to a perceived rise in crime in the early 1990s. Habitual offender laws and mandatory
minimums lessened judicial discretion, and put sentencing more in the hands of
legislators and prosecutors.3
        State legislatures also passed laws facilitating the transfer of juvenile offenders to
adult court and permitting prosecutors to directly file charges against juveniles in
criminal court for some offenses.4 Part of the response to the 1990s “crime spike”
involved a review of juvenile justice systems. Political rhetoric referred to juvenile
offenders as “super predators” and slogans such as “adult crime, adult time” urged
harsher penalties for juveniles.5
B. Locking up Kids
        Every State permits life sentences for juveniles. Forty-five permit life sentences
without parole. Oregon is one of five states that prohibit life without parole sentences for
juvenile offenders.6 Nationally, 6,807 juveniles are serving life sentences, 1,755 are not
eligible for parole.7 Over half of the nearly 7,000 juveniles serving life sentences were

1
  ASHLEY NELLIS & RYAN S. KING, THE SENTENCING PROJECT, NO EXIT REPORT 1
(2009), available at
http://sentencingproject.org/doc/publications/publications/inc_noexitseptember2009.pdf.
2
  No Exit Report, at 3.
3
  No Exit Report, at 28.
4
  No Exit Report, at 28.
5
  As a result of these ‘reform’ efforts, the Sentencing Project reports that: “juveniles
convicted of murder are more likely to receive a life sentence than adults.” No Exit, at 34.
6
  No Exit Report, at 29, table 6 (Alaska, Colorado, Kansas, and New Mexico constitute
the other four); see also Sullivan v. Florida, Petitioner’s Brief, 2009 WL 2159656, at 54-
55.
7
  Id.

                                             -1-
convicted in five states: California, Texas, Pennsylvania, Florida, and Nevada.8 Most of
these juveniles are male,9 and over half are black.10 Their crimes vary, but most are in
prison for homicide offenses, sexual assault, or kidnapping.11 Most states reserve life-
without-parole sentences for juveniles convicted of homicide offenses.12 Only 106
juveniles are serving life-without-parole sentences for non-homicide offenses, 77 are in
Florida.13
C. State Comparisons
         The Sentencing Project reports that 5.3% of the prison population in Oregon is
serving life sentences, or 719 inmates, but only 1.1% of the prison population serves life
without parole sentences, 143 inmates.14 14 of the 719 inmates serving life sentences are
juveniles; juveniles make up 1.9% of life sentence inmates.15 State law prohibits juvenile
offenders from serving life-without-parole sentences.16
         At 5.3%, Oregon’s percentage of inmates serving life sentences is lower than
many other states.17 20% of California’s prison population, for example, serves life
sentences, but similar to Oregon, only 2.2% of all inmates are serving life without parole
sentences. Juveniles constitute 7.7% of inmates sentenced to life, 2,623; and 239 of
juvenile inmates are serving life-without-parole sentences.18
         Oregon’s northern neighbor Washington sentenced 12.5% of its prison population
to life, and 3.4% of the inmates serve life without parole.19 2.8% of inmates serving life
sentences are juveniles, and 28 juveniles are serving life without parole.20
         Florida, the state that convicted Joe Sullivan and Terrance Graham, sentenced
11.3% of its prison population to life sentences, and 6.7% of the population to life-
without-parole.21 Juveniles make up 3.1% of life sentence inmates, and 96 juveniles are
serving life without parole sentences. 22
         Pennsylvania locks up the most juveniles for life without parole, with 345 life-
without-parole juveniles in prison; nearly 70% are juveniles of color.23
D. Federal Law



8
  Id.
9
  No Exit Report, at 3.
10
   No Exit Report, at 22.
11
   Graham v. Florida, Petitioner’s Brief, 2009 WL 2159655, at 62-63.
12
   Graham, Petitioner’s Brief at 3.
13
   Graham, Petitioner’s Brief, at 3.
14
   No Exit Report, at 14-15.
15
   Id.
16
   Id. at 29; ORS 161.620.
17
   Nevada boasts the highest rate of life sentences among its inmates, with 14.5% serving
the sentence.
18
   No Exit Report, at 14-15.
19
   Id.
20
   Id.
21
   Id.
22
   Id.
23
   Id. at 33.

                                           -2-
        In May 2009, the Juvenile Justice Accountability and Improvement Act was
introduced to Congress. Among other provisions, the Act requires that states provide
juvenile inmates “meaningful opportunity for parole or supervised release at least once
during their first fifteen years of incarceration and at least once every three years
thereafter.”24 This deviates from adult inmates convicted in federal court where all life
sentences are imposed without the possibility of parole.25 The bill is being considered by
the House Judiciary Committee, as well as the House Judiciary Subcommittee on Crime,
Terrorism, and Homeland Security.26
                            II. Legal Framework: Roper and Ewing
A. Roper
        In 2005, the U.S. Supreme Court held that the eighth amendment prohibited use
of the death penalty against juvenile offenders.27 The Court reasoned that juveniles were
less culpable than adults because juveniles are less mature, less risk averse, and their
personalities are less fixed. State legislatures recognize the differences between juveniles
and adults by precluding teenagers from certain activities, including driving, getting
married, and buying lottery tickets.28 Given these restrictions based on age, the Supreme
Court drew the line between adult and juvenile at eighteen,29 excluding juveniles who
commit offenses under the age of eighteen from receiving the death penalty.
        The Court held that executing juvenile offenders constituted cruel and unusual
punishment because juveniles are not as responsible for their criminal behavior as adult
criminals. The Court did not address the constitutionality of sentencing juveniles to life
without parole.
B. Proportionality Review
        A string of Supreme Court decisions have addressed sentence proportionality and
the eighth amendment. While the law is less than straightforward, a sentence must be
grossly disproportionate to the offense to violate the eighth amendment. The Court has
applied proportionality review to capital and noncapital cases. The Court’s
proportionality tests have not considered the age of the offender as a factor. In 1983, the
Court articulated a three-part objective criteria test that clarified existing law and gave
shape to proportionality review.30 Eight years later, the Court, in a plurality decision,
qualified that the objective criteria were not mandatory analyses for proportionality
review.31 Instead, the Court identified five principles that lower courts should consider in
reviewing the alleged disproportionality of a sentence. The Court’s most recent
24
  Juvenile Justice Accountability and Improvement Act, HR 2289, available at
http://www.govtrack.us/congress/bill.xpd?bill=h111-2289&tab=summary.
25
   No Exit Report, at 7 (six states also impose only life sentences without parole: Illinois,
Iowa, Louisiana, Maine, Pennsylvania, and South Dakota).
26
   HR 2289 Juvenile Justice Accountability and Improvement Act, supra note 24.
27
   Ropers v. Simmons, 543 U.S. 551 (2005).
28
   Id. at 569. The Supreme Court was also persuaded by international comparisons, which
characterized the United States’ practice of executing juveniles as anomalous to its
foreign counterparts.
29
   Id. at 574.
30
   Solem v. Helm, 463 U.S. 277 (1983). Solem was a 5-4 decision.
31
   Harmelin v. Michigan, 501 U.S. 957 (1991) (plurality).

                                            -3-
examination of proportionality, its plurality decision in Ewing, applied proportionality
review to a noncapital case, purportedly using the five principles from its prior case.32
These three cases are explained below.
        1. Solem and Harmelin
        In its 1983 Solem decision, the Court identified three factors for determining
whether a sentence is so disproportionate to the offense that it violates the 8th
amendment: 1) gravity of the offense and the severity of the punishment; 2) sentenced
imposed on other criminals in the same jurisdiction; and 3) the sentences imposed for
commission of the same crime in other jurisdictions.33 Jerry Helm, the defendant, was
convicted of writing a bad check and sentenced under a habitual offender statute because
he had six prior felony convictions.34 The Court affirmed the Eighth Circuit’s holding
that Helm’s life sentence without parole was grossly disproportionate to his offense and
violated the eighth amendment.35
        Applying the above objective criteria facts, the Court noted that Helm’s current
and past crimes were not acts of violence, and overall did not reflect a level of culpability
proportionate to a life sentence without parole.36 The Court made a point to say that it
was not overruling Rummel v. Estelle, which set a deferential standard for legislatively
mandated sentences for recidivist offenders,37 but distinguished the defendant in Rummel
from Helm by parole eligibility.38 Helm’s sentence was considerably harsher because he
was not given the possibility of parole.39
        The Harmelin decision was eight years after Solem.40 Unlike the defendant in
Solem, Harmlein was a first-time offender and was not sentenced under habitual offender
laws.41 Harmelin was sentenced to life without parole for possessing over 600 grams of
cocaine.42 In a plurality decision, the Court upheld the sentence; the justices were split
over why the sentence did not violate the 8th amendment. A three-justice concurrence
deviated from the objective criteria test of Solem, and outlined five principles of
proportionality for sentence challenges under the eighth amendment.43
        Justice Kennedy applied the proportionality test to noncapital offenses and
enumerated the five principles of the test: “the primacy of the legislature, the variety of
legitimate penological schemes, the nature of our federal system, and the requirement that
proportionality review be guided by objective factors” and most importantly that “the
eighth amendment does not require strict proportionality between crime and sentences.”44

32
   Ewing v. California, 538 U.S. 11 (2003) (plurality).
33
   Solem, 463 U.S. at 290-92.
34
   Solem, 463 U.S. at 279-80.
35
   Id. at 283-84.
36
   Id. at 296-97.
37
   Id. at 297.
38
   Id.
39
   Id.
40
   Harmelin, 501 U.S. 957.
41
   See id. at 995.
42
   Id. at 961.
43
   Id. at 998-1001.
44
   Id.

                                            -4-
Under Kennedy’s reasoning, only extremely disproportionate sentences violate the eighth
amendment.
        2. Ewing
        In Ewing, also a plurality, Justice O’Connor used reasoning from Kennedy’s
Harmelin concurrence.45 Ewing was arrested for stealing three golf clubs.46 At the time
of the offense, Ewing was on probation from a nine-year prison term.47 The court traced
Ewing’s criminal history from a theft conviction in 1984 to his most recent convictions-
three burglaries and one robbery-the offenses behind his nine-year sentence and resulting
probation.48 Although the offense at issue-theft of three golf clubs valued at $1,200-
could have been charged as a misdemeanor-California’s three strike laws required the
prosecutor to take into account Ewing’s prior serious or violent felonies.49 Given this
criminal history, California law required the offense be charged as felony grand theft.50
        The trial court had discretion to reduce the charge to a non-felony offense.
Rejecting Ewing’s motion to amend the charge, the trial court upheld the offense as
charged, admitting the allegations of four of Ewing’s prior serious or violent felonies.51
Under the three strikes sentencing mandates, Ewing was sentenced to twenty-five years
to life. The California Court of Appeals affirmed Ewing’s sentence; the state supreme
court denied review. Ewing’s petition for certiorari was granted by the U.S. Supreme
Court.52
        In the judgment, the Court first articulated the deferential review given to state
legislative policy.53 The Court reasoned that Ewing’s sentence met the state’s legitimate
penological goals of punishing not only the offense at issue, but also the history of
criminal noncompliance on part of the offender.54 In considering the appropriateness of
Ewing’s sentence, the Court noted Ewing’s extensive criminal history and the soundness
of the state policy behind habitual offender laws.55 The Court acknowledged that the
sentence was lengthy, but deferred to the “rational legislative judgment” of the California
state legislature.56 A majority of the Court concurred in the judgment-that Ewing’s
sentence of twenty-five years to life for stealing three golf clubs valued at $399 each-did
not violate the eighth amendment.57
        Sullivan and Graham present the Supreme Court with another chance to review
proportionality, and consider whether an offender’s age is a factor in determining if a
sentence violates the eighth amendment.

45
   Ewing, 538 U.S. 11.
46
   Id. at 28.
47
   Id. at 17-18.
48
   Id. at 18.
49
   See id. at 19.
50
   Id.
51
   Id.
52
   Id. at 20.
53
   Id. at 24-25.
54
   Id. at 29.
55
   Id.
56
   Id. at 30.
57
   Id. at 30-31.

                                           -5-
                                  III. Sullivan and Graham
         Joe Sullivan and Terrance Graham have a lot in common: both are black, both
come from poor families in Florida, and both are serving life-without-parole sentences in
Florida state prisons. The similarities continue: both men, as teenagers were involved in
burglaries with the help of older teenage accomplices. Both were convicted in adult
court; and both unsuccessfully challenged their life without parole sentences to
unsympathetic Florida state courts. In 2009, the U.S. Supreme Court granted certiorari to
hear both of their cases.
A. Sullivan v. Florida-Facts
     In 1989, mentally disabled thirteen-year-old Joe Sullivan robbed an elderly woman’s
home with two older teenage boys.58 They entered the unoccupied home the morning of
May 4, 1989. Later that same day the victim was raped by an assailant she did not see.
One of Sullivan’s co defendants implicated Sullivan as the rape assailant; Sullivan was
indicted by a grand jury and transferred to criminal court.
     In addition to the co defendant’s allegation, a police officer identified Sullivan as the
young man he saw leaving the apartment after the alleged rape, and the victim testified
that Sullivan sounded like the person who raped her, when voice identification was done
at trial. Further, Sullivan’s palm print was found on a plaque the victim owned. Based
on the above evidence, a six-person jury convicted Sullivan of rape following a one-day
trial.
     The defendant’s appointed counsel filed an Anders appeal claiming there were no
issues to appeal.59 Sullivan was sentenced to life without parole. Without the assistance
of counsel, Sullivan spent the first six years of his incarceration challenging his sentence to
no avail. After the Roper decision, Sullivan case interested his current lawyers, who filed
a post-conviction motion under a Florida procedural rule claiming that Sullivan had new
constitutional rights under Roper.60 The trial court denied the motion as untimely, and
the court of appeals affirmed per curiam, which precluded review by the Florida Supreme
Court. 61
B. Graham v. Florida-Facts



58
   Facts available from both parties’ briefs: Sullivan v. Florida, Respondent’s Brief, 2009
WL 2954164 at 5-7; Sullivan v. Florida, Petitioner’s Brief, 2009 WL 2159656, at 3-5. In
their briefs for certiorari, petitioner describes Sullivan as having no prior convictions
(because all his prior offenses were adjudicated in juvenile court), while respondent
reports that Sullivan had been “found guilty of seventeen criminal offenses” in the two
years preceding his conviction. Sullivan, Respondent’s Brief in Opposition to Certiorari,
No. 08-7621, at 5.
59
   Sullivan’s appointed lawyer did not raise the issue of competence at trial, nor did
anyone else. After Sullivan’s trial, the lawyer’s bar license was suspended for other
matters and not been reinstated. Sullivan, Petitioner’s Reply Brief in Support of
Certiorari No. 08-7621, at 4.
60
   Sullivan, Respondent’s Brief, at 7.
61
   Sullivan, Respondent’s Brief, at 7-8.

                                             -6-
        At age sixteen, Terrance Graham attempted to rob a restaurant with a juvenile
accomplice.62 During the robbery, his accomplice hit a restaurant employee with a pipe,
and the two fled the scene without any money.63 When the cops tracked Graham to his
mother’s home, he was hiding under his bed.64 Graham pled guilty, but did not stipulate
to a factual basis of the incident.65 He expressed his remorse in a written letter to the
court, in which he also promised to avoid committing crimes in the future. The
prosecutor filed charges directly in adult court. The court withheld adjudication and
placed Graham on three years probation, twelve months of which Graham was detained
at a pretrial detention center.66
        Six months after Graham was released from detention, he was allegedly involved in
another armed robbery that ended with a high-speed chase from the police, and Graham’s
arrest. His probation officer filed a probation violation complaint. At the hearing,
Graham admitted to eluding the police, but denied involvement in the armed robbery. The
police claimed that Graham admitted to this and other robberies and the victim identified
Graham as the armed assailant. Graham denied confessing. In response to the court’s
question, he said he eluded the police to make it home by his judicially imposed 10pm
curfew.67 Had he been stopped, he said, he would have violated his curfew and thus his
probation.68 Graham was found guilty of violating his parole. His probation was
revoked, and Graham was resentenced for the underlying armed burglary and attempted
armed robbery.69
        At sentencing the judge scolded Graham for blowing his chance with a very lenient
probation. The judge had discretion in sentencing- between sixty months and life without
parole.70 The State recommended thirty years for armed burglary and fifteen years for
attempted armed robbery.71 The Department of Corrections recommended no more than
forty-eight months in jail.72 The judge sentenced Graham, who had no criminal record
beyond the original robbery conviction, to life without parole. Graham, according to the
judge, was beyond rehabilitation or deterrence, and incapacitation was the only option.73
        Graham’s parents were crack-cocaine addicts. 74 He was diagnosed with ADD in
elementary school and suffered from depression from a young age.75 At his trial, the issue

62
   Graham v. Florida, Respondent’s Brief, 2009 WL 2954163 at 6-7.
63
   Id.
64
   Graham v. Florida, Petitioner’s Brief, 2009 WL 2159655, at 13.
65
   Id. at 13-14.
66
   Id.
67
   Id. at 16-17.
68
   Id. at 19.
69
   Id. at 13-15.
70
   Id. at 20-21.
71
   Id.
72
   Id.
73
   Id. at 21-22.
74
   Id. at 11-12.
75
   Id.

                                          -7-
of competence was never raised. Graham seemed confused at the probation hearing and
repeatedly asked the court to explain its findings.76
        The Florida appellate court affirmed the trial court, holding that Roper did not
govern the claim, nor did the terms of an international treaty to which the U.S. is a
signatory. The Florida Supreme Court denied discretionary review.
C. Arguments Before the Court
        1. Does Roper Apply to Life Sentences for Juveniles?
        Both petitioners use Roper as governing law. Life without parole is analogous to
death.77 Petitioners apply the court’s reasoning in Roper and argue that because juveniles
lack the culpability to be sentenced to death, they also lack the culpability to deserve life
without parole. Compared to adults, juveniles are less mature, more risk-averse, and
have a fuzzier sense of self-identity.
        a. Maturity
        Children are less mature than adults.78 State legislatures recognize this reality,
and restrict the rights of people under the age of eighteen. Juveniles cannot drive, marry
without consent, or buy lottery tickets until they reach an age at which the legislature has
determined people are mature enough to assume such responsibilities.79
        Sullivan’s attorneys argue that thirteen year olds are far less mature than adults, or
even older teenagers.80 Studies by Thomas Grisso report that one in three eleven to
thirteen year-old juvenile offenders would be incompetent under the adult criminal
standard for competence.81 Thus, as applied to a thirteen-year old juvenile offender, life-
without-parole is an exceptionally harsh sentence.
        b. Peer Pressure
        Children are more vulnerable to negative external pressure than adults.82
Juveniles are less risk averse and are less likely to consider the consequences of their
actions. This decreases juvenile’s culpability, because they are not as responsible for
their conduct as adults.83 Risk-taking peer pressures override juveniles’ premature
decision-making skills, and juveniles act without consideration of the effect of their
actions.84

76
   Graham, Petitioner’s Brief, at 17.
77
   In Graham the petitioner makes both an as-applied and a facial challenge. Sullivan’s
brief is an as-applied challenge. However, both parties argue that Roper should apply to
at least life-without-parole sentences for non-homicide offenses committed by juveniles.
In extending the reasoning of the Roper decision, the arguments suggest that life without
parole is a cruel and unusual punishment for juveniles, like the death penalty.
78
   Graham, Petitioner’s Brief, at 38.
79
   See Sullivan v. Florida, Petitioner’s Brief, 2009 WL 2159656, at app. A (listing “[l]aws
establishing minimum age for rights and responsibilities” for every state).
80
   Petitioner Sullivan’s Brief asks the Court to compare a seventh grader with a high
school senior to illustrate the difference between a twelve or thirteen year old and a
sixteen or seventeen year old. Id. at 13-14.
81
   Sullivan, Petitioner’s Brief, at 22 n.23.
82
   Graham, Petitioner’s Brief, at 40-41.
83
   Id.
84
   Id.

                                            -8-
        c. Transitory Personalities
        Juveniles' personalities are still forming, which makes them less accountable for
their actions.85 As teenagers grow into adults, they learn more about themselves and the
world around them, and this shapes their personalities and identities.86 In Roper, the
Court drew the line between childhood and adulthood at eighteen, based on a number of
legislative rights that apply when a person turns eighteen year-old.87 Overall, petitioners
contend that these differences between juveniles and adults justify lesser criminal
punishment. The Roper Court concluded that executing juvenile offenders violated
juveniles’ constitutional rights; petitioners allege that locking up juveniles for life without
the possibility of parole invokes the same constitutional concerns.
        d. “Death is Different”88
        The state of Florida, respondent in both cases, alleges that “death is different.”
Roper does not apply to these cases because these defendants are alive. Defendants
sentenced to prison for life can be visited by friends or family, can continue their
education, and can exercise their religious beliefs.89 In its response to Sullivan’s appeal
for certiorari, Florida also suggested that life-without-parole inmates might benefit from
legislative or executive action. For example, the Florida legislature could pass a law
prohibiting life sentences for juveniles and apply it retroactively, or the governor of
Florida could grant clemency to a defendant serving a life sentence.90 The Roper
decision does not indicate that the Court intended to exclude juvenile offenders from
lengthy prison sentences.
        2. Grossly disproportionate?
        In addition to arguing whether or not Roper applies, the parties also make
arguments about proportionality. The state of Florida argues that neither Sullivan nor
Graham has proven that their sentences are grossly disproportionate to their convicted
offense. Absent any inference to gross disproportionately, the Court defers to the state
trial court’s imposed sentence. Graham contends that age should be a factor in
proportionality review, and that based on Roper, life-without-parole sentences for
juveniles are per se grossly disproportionate and thus in violation of the eighth
amendment.
        a. Respondent: Sentences are Proportionate to Offense
        In both cases, the state of Florida cites the narrow proportionality principle and
notes sentences are rarely invalidated because a court finds the sentence grossly
disproportionate to the offense.91 Florida cites Solem as the only case where the Court
held that the sentence did violate the 8th Amendment; and Helm was convicted of a
seventh nonviolent, the triggering offense being a bad check written for $100. The line
of cases discussing proportionality clearly establishes a standard of review highly
deferential to state sentencing policy.

85
   Graham, Petitioner’s Brief, at 41-42.
86
   Sullivan, Petitioner’s Brief, at 22-23.
87
   Graham, Petitioner’s Brief, at 39-40.
88
   Sullivan, Respondent’s Brief, at 38.
89
   Sullivan, Respondent’s Brief, at 38.
90
   Sullivan, Respondent’s Brief, at 20.
91
   Graham, Respondent’s Brief, at 23-24.

                                             -9-
         Florida contends that Ewing clarified the narrow proportionality principle of
Harmelin, suggesting that Solem’s objective criteria factors was not a blanket test meant
to cover all proportionality cases.92 Rather, the comparative analysis articulated in Solem
only applied in cases where the defendant sentence met a threshold inference of gross
disproportionality.93
          The state notes that Graham’s triggering offense was a person crime, armed
burglary, and the offense came relatively soon after a lenient probation term for a prior
burglary conviction. Further, his offenses are not among the more “passive” felony
crimes; Graham’s crimes attempted harm and threatened violence.94 Graham’s
convictions were not for minor felonies and his sentence is not shockingly long.95 The
trial judge conducted an individualized sentencing hearing and determined that in light of
Graham’s recent violent offense and the similar nature of the triggering conviction,
Graham was not eligible, or even interested in rehabilitation and incapacitating him was
necessary for community safety.96 Florida rejects Graham’s argument that age should be
considered in proportionality review.97 Graham’s age was expressly considered, both in
the charging decision and the individualized sentencing hearing.98
         Making a similar argument to its position in Graham, respondent argues that
Sullivan’s life sentence without parole for the rape of seventy-two-year old victim does
not raise an inference of gross disproportionality.99 Because the sentence does not raise
the inference, Kenney’s Harmelin opinion rejects a comparative analysis.100 The
respondent’s analysis in Sullivan mirrors that of Graham.
         b. Proportionality Review for Juvenile Offenders Cannot Ignore Roper
         Sullivan does not address proportionality review. Graham argues that
proportionality review is inconsistent with Roper when applied to juvenile offenders.
The Court’s review considers an offender’s prior serious felonies to determine if the
offender must be incapacitated under state recidivist sentencing statutes. 101 According to
Roper, juveniles are distinguished from this class of most culpable offenders.102
Punishment efficacious for adult offenders may not serve the same penological purpose
for juveniles.103 Graham concludes that a proportionality review of Graham’s sentence
must consider his age at the time of the offense.104 When age is considered, a life
sentence without parole is grossly disproportionate for a sixteen year-old offender with
one prior conviction.

92
   Id. at 27.
93
   Id.
94
   Id. at 29.
95
   Id. at 28.
96
   Id. at 29.
97
   Id. at 31-32.
98
   See id. at 31.
99
   Sullivan, Respondent’s Brief, at 22.
100
    Id. at 25.
101
    Id. at 32.
102
    Id. at 32-33.
103
    Id. at 33.
104
    Id.

                                          - 10 -
         c. Theories of Punishment
         To support the disproportionality of Graham’s sentence, his attorneys argue that
sentencing juveniles to life without parole serves no penological value.105 The sentence
incapacitates a juvenile for his entire adult life before he has even reached adulthood.106
Life without parole sentences precludes any successful rehabilitation, particularly harsh
for first time offenders like Graham.107 As a retributive punishment, the sentence is
disproportionately harsh as applied to juvenile offenders.108 Finally, other juvenile
offenders are unlikely to be deterred by the threat of life-without-parole sentences
because juveniles are unlikely to consider the consequences of their actions.
         Florida contends that the purpose of transferring juveniles to adult court is to
impose adult sentences. Other than Roper, age has never been a factor in determining
eighth amendment violations.109 State legislatures and prosecutors have already
considered the age of these juvenile offenders and determined that their conduct should
be adjudicated in adult court.110 Further, life without parole is not a disproportionate
sentence for violent felonies.111 In fact, the Court has upheld life without parole for
offenses less heinous than armed burglary and rape.112
         d. Life-without-parole is the ultimate sentence for juveniles
         Petitioners argue that if the Court is not persuaded to apply Roper to noncapital
cases, consider in the alternative, that life-without-parole is the harshest sentence
currently available to juvenile offenders. Only particularly heinous crimes, such as
homicide, should warrant a life sentence without parole.113 Graham argues that most
juveniles serving life-without-parole sentences were convicted of homicides. Juveniles
serving for non-homicide offenses were largely convicted of sexual assaults and
kidnapping.114 Graham was sentenced to life without parole for armed burglary with an
assault or battery and attempted armed robbery. The judge sentenced Graham to life
without parole for the former, and fifteen years in prison for the latter.115
         Florida counters that, contrary to petitioner’s reports, it is not unusual for
juveniles who commit non-homicide offenses to be sentenced to life.116 Nor is Florida’s

105
    Graham, Petitioner’s Brief, at 43-47.
106
    Id.
107
    Id.
108
    Id.
109
    Graham v. Florida, Respondent’s Brief, 2009 WL 2954163, at 22.
110
    See id. “Age has been taken into account repeatedly in this case, in a manner that
ensures that Graham’s sentence is constitutional. Id. at 31.
111
    Id.
112
    Id. at 23 (citing cases where mandatory life sentences were upheld for theft and drug
possession).
113
    Sullivan’s attorneys did not use this argument because Sullivan was convicted of
raping an elderly woman.
114
    Graham, Petitioner’s Brief, at 62-63.
115
    Graham, Respondent’s Brief, at 15. Graham never admitted involvement in the armed
robbery. Id. at 12.
116
    Graham, Respondent’s Brief, at 34-35 (reporting that nearly half of the juveniles
serving life sentences in Florida were convicted of non-homicide offenses).

                                           - 11 -
juvenile sentencing record “out of line” with other states.117 Eighty percent of states
impose life without parole on juvenile offenders, and a majority use the sentence for non-
homicide convictions.118 The respondent argues that no national trend supports the
petitioners’ argument that life-without-parole sentences for juveniles committing non-
homicide offenses are rarely imposed and unusually harsh.119

117
    Id. at 36-37.
118
    Id.
119
    Numerous amici have been filed on behalf of the parties:
     In Support of Respondent:
     • Center for Constitutional Jurisprudence 2009 WL 3022910 [citing Daubert;
         discussing neurological evidence]
     • National Organization of Victims of Juvenile Lifers, 2009 WL 3043972
     • National District Attorneys Association, 2009 WL 3052486
     • States of Louisiana et al., 2009 WL 3090454
     • Criminal Justice Legal Foundation, 2009 WL 3115801
     • Solidarity Center for Law and Justice, The Sovereignty Network, et al., 2009 WL
         3052485
     In Support of Petitioner:
     • American Bar Association, 2009 WL 2197339
     • NAACP Legal Defense & Education Fund, National Association of Criminal
         Defense Lawyers, 2009 WL 2197340
     • Disability Rights Legal Center, 2009 WL 2197341
     • Educators 2009 WL 2247126
     • American Psychological Association, National Association of Social Workers, and
         Mental Health America, 2009 WL 2236778
     • Council of Juvenile Correctional Administrators, National Association for Juvenile
         Correctional Agencies, National Juvenile Detention Association, National
         Partnership for Juvenile Services, American Probation and Parole Association, and
         International Community Corrections Association, 2009 WL 2236777
     • American Association of Jewish Lawyers and Jurists, American Catholic
         Correctional Chaplains Association, American Correctional Chaplains
         Association, American Friends Service Committee, Buddhist Peace Fellowship,
         Church Women United, The Council of Churches of the City of New York,
         Engaged Zen Foundation, The General Synod of the United Church of Christ,
         Islamic Shura Council of Southern California, Karamah: Muslim Women Lawyers
         for Human Rights, Mormons for Equality and Social Justice, National Council of
         the Churches of Christ in the U.S.A., National Council of Jewish Women, New
         Jersey Regional Coalition, Office of Restorative Justice, Archdiocese of Los
         Angeles, Prison Fellowship Ministries, Progressive Jewish Alliance, Queens
         Federation of Churches et al., 2009 WL 2236776
     • Mothers Against Murderers Association et al., 2009 WL 2236774
     • Center on the Administration of Criminal Law, 2009 WL 2236773

                                          - 12 -
                                        IV. Conclusion
        Sullivan and Graham will argue their cases before the U.S. Supreme Court this
November. Terrance Graham was sentenced to life without parole in 2006 at age 19. Joe
Sullivan, sentenced back in 1989, has been in prison almost twenty years, he is now 33.
Both committed their convicted offenses as teenagers, and both challenge the
constitutionality of their absolute life imprisonment.




   •   The Sentencing Project, 2009 WL 2219303
   •   Former Juvenile Offenders, 2009 WL 219302



                                         - 13 -

				
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