US Supreme Court Watch An Overview of Graham v

							US Supreme Court Watch: An Overview of Graham v. Florida--Does life without parole
for non-homicidal crimes committed by juveniles violate the 8th Amendment?

Bob Costello*

Florida has 77 of the 106 people in the United States serving life sentences without the
possibility of parole for non-homicidal crimes committed as juveniles.1 Terrance Graham was
16 when he was an accomplice to an armed burglary and attempted armed robbery of a
restaurant. Graham was charged as an adult and pled guilty to the two charges. The trial judge
withheld adjudication and gave Graham 3 years probation, 12 months in the county detention
center (Graham had 101 days credit), and 100 hours of community service. The court also
certified Graham as an adult for future violations of Florida law.2

In June 2004, Graham was released from county jail, and one month before his eighteenth
birthday, he committed armed robbery in a home invasion. At another home invasion, an
accomplice was shot. Graham drove the group to the hospital and sped off, almost crashing into
an unmarked detective’s police car. The detective in the unmarked police car gave pursuit until
Graham hit a telephone pole.3

The court charged Graham with the following probation violations:

   1. Possessing, carrying, or owning any weapon or firearm;
   2. Committing the offenses of Home Invasion Robbery, Fleeing/Attempting to Elude Law
      Enforcement, Aggravated Chase; and
   3. Associating with persons engaged in criminal activity.

The trial judge found Graham guilty of armed burglary with an assault or battery and sentenced
him to life in prison. The judge also found him guilty of attempted armed robbery and sentenced
Graham to 15 years in prison. His probation was revoked.4

In June 2006, Graham appealed his conviction to Florida’s First District Court of Appeal. He
claimed that the sentence violated the prohibitions on cruel and unusual punishment, was grossly
disproportionate, and violated the International Covenant on Civil Political Rights. The court
affirmed Graham’s conviction in a May 2008 decision. The Florida Supreme Court declined
jurisdiction in August 2008.5

Graham’s attorney filed a writ of certiorari to the United States Supreme Court, which the Court
granted. The following information stems from the briefs submitted by the parties.

                In Roper v. Simmons, 543 U.S. 551 (2005), this Court held that the
                characteristics of juvenile offenders, in particular their diminished
                culpability and capacity for change, rendered the death penalty
                unconstitutional as applied to offenders who committed their offenses
                before the age of 18 years old, even though the death penalty is otherwise
               constitutional when applied to adult offenders. These same considerations
               require that a life-without-parole sentence imposed on a juvenile offender
               for a non-homicide is unconstitutional.

               The Eighth Amendment prohibits grossly disproportionate sentences of
               imprisonment. Under its well-settled precedent, this Court considers the
               sentence’s underlying penological purposes and legislative judgments; the
               harshness of the sentence compared to the gravity of the offense; and a
               comparison of the sentencing laws and practices of the States and the
               international community. No single factor is dispositive.

               The argument that “death is different” does not alter this analysis or cabin
               Roper to capital cases. In both capital and non-capital cases, the Court
               also has examined the offender’s characteristics to determine whether a
               sentence is grossly disproportionate.6

The brief outlines Graham’s personal story, which involved crack-cocaine addicted parents and
long-term depression that he likely developed at an early age due to this parents’ addictions. He
was diagnosed with attention deficit hyperactivity disorder, but his mother instructed him not to
take the prescribed medicine.7

Graham’s brief also detailed the procedural aspects related to the probation violations, which
ultimately led to his life without parole sentence. Graham had no right to a jury trial, and the
court was required to find only by a preponderance of the evidence that the violations were
committed.8

               The Court’s conclusions in Roper were undergirded by three broad,
               categorical differences between adults and juveniles: (1) an absence of
               maturity, (2) an increased susceptibility to external pressures, and (3) a
               less fixed and more transitory personality. . . . The Court concluded that
               these uncontestable categorical differences are supported by undisputed
               scientific evidence, the laws of the States, the Court’s own jurisprudence,
               and basic common sense. . . . Each difference is relevant to the instant
               case.9

Finally, Graham’s brief explains that the unconstitutionality of his sentence is confirmed by the
fact that he is one of only a handful of juveniles, in any state, who has been sentenced to life
without parole for a non-homicidal offense.

The brief for the State Attorney General of Florida argues that the sentence is constitutional
because Graham’s “sentence is objectively not grossly disproportionate, it does not violate the
Eighth Amendment and the judicial inquiry ends.”10
The State Attorney General points out that serious violent crimes that stop short of murder are
eligible for life sentences. The United States Supreme Court has confirmed life sentences for
drug possession and for the commission of 3 non-violent theft related offenses.11

The brief for Florida explains how the law responsible for Graham’s sentence was passed in
response to the record number of juvenile crimes in Florida in the early 1990s.

                By the 1990s, violent juvenile crime rates had reached unprecedented high
                levels throughout the nation. Florida’s problem was particularly dire,
                compromising the safety of residents, visitors, and international tourists,
                and threatening the state’s bedrock tourism industry. . . .

                Florida, like over forty other states, purposefully confronted its juvenile
                violent crime problem. Indeed, it took unprecedented steps. The Florida
                legislature, which typically meets annually in a single 60-day session, was
                convened in two special sessions in 1993 to address rising crime problems,
                one specifically addressing juvenile crime. . . . Florida’s governor, who
                convened the legislature, did so because it “is widely recognized that
                juvenile crime has become the greatest single crime problem in America
                today.” . . . The legislature comprehensively reviewed juvenile crime
                issues in its regular session in 1994, producing the Juvenile Justice Act,
                which facilitated the transfer of juvenile offenders to adult criminal courts
                and gave judges discretion to impose either juvenile or adult sanctions in
                some cases. . . . The Act’s primary goal was to protect society by
                emphasizing “control, discipline, punishment, and treatment” of juvenile
                offenders. Fla. Stat. § 39.002(1)(c) (1995). The Act broadened the ability
                to prosecute older juvenile offenders, and those who commit serious
                violent crimes, as adults. Fla. Stat. § 39.0587(1)(e) (1995).12

Graham’s brief has an extensive section devoted to explaining the purpose of punishment and
argues this Florida law has one aim, which is to punish and not to rehabilitate, which for
juveniles is unconstitutional.

The United States Supreme Court heard oral arguments for this case on November 8, 2009. It
was combined with Sullivan v. Florida, a case centered on a 13-year-old who received a life
sentence without parole for the rape of an elderly woman.
1
  Adam Liptak, Weighing Life in Prison for Youths Who Didn’t Kill, New York Times, November 8, 2009, A 24.
2
  Graham v. Florida (No. 08-7412),Brief for Respondent at 6,
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-7412_Petitioner.pdf.
3
  Id. at 7.
4
  Id. at 10, 15.
5
  Id. at 15-17.
6
  Graham v. Florida (No. 08-7412), Brief for Petitioner at 24,
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-7412_Petitioner.pdf
7
  Id. at 11.
8
  Id. at 15.
9
  Id. at 37.
10
   Brief for Respondent at 18.
11
   Id.
12
   Id. at 1-3.


*Bob Costello is Associate Professor and Chairperson of the Criminal Justice Department at
Nassau Community College (Garden City, New York) and an adjunct faculty member in the
Sociology Department at Hofstra University. He received both a Master’s degree in Sociology
and a law degree from St. John’s University, a Master’s degree in Criminal Justice from SUNY
Albany, and a Doctor of Education degree from Dowling College. He can be reached at
Robert.costello@ncc.edu.