In Graham v. Florida, 560 U.S. 48 (2010), the U.S. Supreme Court barred the sentence of life without the possibility of parole (LWOP) for crimes committed by anyone under eighteen years of age. Grounded in the Cruel and Unusual Punishments Clause of the Eighth Amendment, the Court’s holding recognized only one exception: juvenile LWOP might be permissible in cases involving homicide.

Despite its seemingly straightforward character, the Graham holding has spawned considerable litigation in the lower courts over its scope and application. Two interesting appellate decisions from last month highlight some of the difficulties.

In the first, U.S. v. Mathurin, the Eleventh Circuit had to consider whether a 685-month prison term should be treated as the functional equivalent of an LWOP sentence for Eighth Amendment purposes.  

Mathurin was convicted of committing multiple armed robberies and carjackings while he was still seventeen. By its terms, his sentence — more than fifty-seven years — would hold him until he was seventy-four and seven months. Was this in effect an impermissible LWOP sentence?

As the Eleventh Circuit noted, lower courts have split over the question of whether a sentence to some definite period of imprisonment can ever violate Graham.

On this important question, the Eleventh Circuit decided not to decide, holding that Mathurin would lose one way or the other.

Assuming for the sake of argument that a term-of-years sentence might violate Graham, the court proceeded to compare Mathurin’s sentence with his life expectancy. This analysis, too, raised an interesting and difficult question: should a defendant’s life expectancy be calculated based on the projected mortality of all Americans of the defendant’s age and sex, or should more fine-grained actuarial tables be used? Mathurin argued that his race (black) should be taken into account. An average American male of Mathurin’s age is expected to live until 77, but an average black American male of the same age is expected to live only until 73. That difference might be pivotal to the constitutional analysis, given a sentence that aimed to imprison Mathurin until age 74.

Once again, the Eleventh Circuit avoided the difficult legal question. The court observed that federal prisoners qualify for up to 54 days of “good time” per year — credit based on good behavior behind bars that can hasten the inmate’s release date. If Mathurin earned all of the good time available to him, then he would be released at age 67, which was within even the shorter life expectancy urged by his counsel. On that basis, the Eleventh Circuit held that his sentence did not violate the constitutional ban on juvenile LWOP.

I wonder, though, if this life-expectancy-based analysis is really consistent with the spirit of Graham. The analysis seems to assume that the constitutional values of Graham are adequately served if a defendant gets out of prison the day before he dies, or exits in a wheelchair with profoundly impaired mental or physical capacities. Yet, the reason the Supreme Court found Terrence Graham’s sentence unconstitutional was because it gave “no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.” If a real opportunity for fulfillment, reconciliation, and hope are the goal, then we should not be aiming for a sentence that minimally offers the potential for release a few days, or weeks, or months before death. Given the elevated risks of long-term disability and chronic disease that accompany age, as well as the many challenges most returning prisoners face in establishing themselves as contributing members of society, it might be more in the spirit of Graham to require an opportunity for release by, say, age 60.

The second new case, Commonwealth v. Perez, comes from the Supreme Judicial Court of Massachusetts. Perez was convicted for his role in two armed robberies and a nonfatal shooting, all of which occurred when he was seventeen. For these offenses, Perez received a sentence of 32.5 years, with parole eligibility after 27.5 years.

At first blush, this would seem a much easier Eighth Amendment case for the government than Mathurin. After all, Perez’s sentence was considerably shorter than Mathurin’s and provided an opportunity for parole release that would almost certainly be reached before he died.

However, Perez was able to draw on an unusual feature of Massachusetts law, which gives an opportunity for parole release to juveniles convicted of murder after fifteen years in prison. Thus, Perez’s parole eligibility was more than twelve years later than it would have been if he were convicted of a much more serious crime. Although this result does not directly contravene Graham, it does seem inconsistent with the Supreme Court’s recognition of murder as a uniquely serious crime for which uniquely serious punishments may be appropriate.

Although Perez invoked the Eighth Amendment in his argument, the Massachusetts high court ultimately decided the case on state constitutional grounds without reaching the federal constitutional question. More specifically, the court relied on the cruel and unusual punishments clause of Article XXVI of the Massachusetts Declaration of Rights, which has been interpreted more broadly in the past than its Eighth Amendment counterpart.

Citing Article XXVI, the Supreme Judicial Court overturned Perez’s sentence in light of the disparity between his sentence and the sentences imposed on juvenile murderers in Massachusetts. However, the court did not categorically rule out the possibility of a harsher sentence for a nonhomicide than a homicide crime. Rather, the court held only that such sentences are presumptively unconstitutional. The presumption can be overcome based on a showing of “extraordinary circumstances.” The inquiry, ruled the court, is “ultimately whether the sentence is proportionate to the offender, as a juvenile, and to the particular offenses.” Thus, for juvenile nonhomicide defendants like Perez, the sentencing court must conduct a hearing to weigh the considerations that were emphasized by Graham and its progeny:

• “the particular attributes of the juvenile, including immaturity, impetuosity, and failure to appreciate risks and consequences”;
• “the family and home environment,” from which juveniles cannot normally remove themselves; and
• “the extent of the juvenile’s participation in the conduct and the way familial and peer pressures may have affected him.”

In the end, the court remanded Perez to the trial court for a hearing on these factors.

While the particular homicide-nonhomicide disparity at issue in Perez is not likely to arise in many other states, the opinion by the Supreme Judicial Court provides a timely reminder that state courts are generally free to interpret their own state constitutions so as to compensate for any unduly narrow interpretations of Graham in the federal courts.

Cross posted at Life Sentences.