Supreme Court justices struggled Monday with whether the 8th Amendment's ban on cruel and unusual punishment should apply to juvenile offenders serving sentences of life without parole.
Lawyers for two men sentenced as teenagers to spend the rest of their lives behind bars in Florida argued that the justices should abolish such sentences for non-homicide offenses committed by teenagers.
Brian Stevenson, a lawyer for Joe Harris Sullivan, who was put away at age 13 for raping an elderly woman, said, "To say to any child of 13 that you are only fit to die in prison is cruel. And we believe that the Constitution prohibits that kind of punishment."
The justices also heard the case of Terrance Jamar Graham, who was sentenced at 17 for armed robbery while on parole. The justices grappled with whether they should draw a bright-line rule at a particular age.
Justice Sonia Sotomayor asked, "Do you think that it categorically violates the Eight Amendment for a 10 year old to be sentenced to life without parole?... If 10 is in my judgment too early, why isn't a 14, 16 or 18 year old?"
Justice Ruth Bader Ginsburg wondered if a line could be drawn not at the age of the offense, but whether the offense included murder.
But Chief Justice John Roberts worried that if the court were to try to draw a line, "everybody with a different client is going to have a different line."
Roberts, joined by other conservative justices, suggested that the court could avoid line-drawing problems if it were to rule that the issue could be decided by judges on a "case-by-case basis."
"You just simply say age has to be considered as a matter of the Eighth Amendment," he said.
But lawyer Stevenson said that such an analysis wouldn't solve the problem. "It is, in part, because these kids are so vulnerable, are so at risk in this system," he said.
Scott Makar, the solicitor general of Florida, said that the crimes committed by Graham and Sullivan were so violent that life without parole was justified.
"We like to think that it is only used rarely," he said, "in those cases that are justified for public safety purposes where we have very serious violent offenders."
Three quarters of the states allow life without parole for juveniles but there are only 111 juveniles serving such sentences. Seventy-seven of those are in Florida, according to a recent study.
It was only four years ago that the court banned the death penalty for juvenile offenders. Justice Anthony Kennedy, who wrote the opinion, relied on scientific data that showed that juveniles had not sufficiently matured to warrant a death penalty sentence.
"The susceptibility of juveniles to immature and irresponsible behavior," Kennedy wrote, "means their irresponsible conduct is not as morally reprehensible as that of an adult."
The United States is the only country in the world that allows such a punishment. But victims' rights advocates argue that the attention should be focused on the crimes the young men committed.
In court briefs, the state of Florida described how Graham, just shy of his 17th birthday, joined with accomplices to bludgeon a restaurant manager over the head to steal money.
"Shortly after his release from a county jail," writes Bill McCollum, the attorney general of Florida, " Graham almost immediately resumed an even more violent criminal life."
In court, the trial judge castigated Graham, who had been given a lenient sentence for his first violent offense and chose to "throw it away" after his release.
"Given your escalating pattern of criminal conduct, it is apparent to the court that you have decided that this is the way you are going to live your life and that the only thing I can do now is to try to protect the community from your actions," the judge said.
But some experts say that juveniles can change.
"I believe that kids are just less responsible then adults, and we can't hold them to the same standards of criminal culpability," said Laurence Steinberg, a professor at Temple University in Philadelphia.
"They are worse at making decisions, they are more easily coerced by others, and they have more trouble controlling their impulses," he said.
Steinberg provided information for legal briefs on behalf of both Graham and Sullivan.
Because the United States is the only country in the world that imposes life without parole for juveniles, the case brings up the thorny question of whether the justices should look for guidance from international law when considering the U.S. Constitution.
Justice Antonin Scalia has long been a critic of such a use of foreign law. Other more liberal justices have stressed that there is simply no harm in looking to see how other countries have dealt with difficult issues.
In Roper v. Simmons, the 2005 decision striking down the use of the death penalty for juvenile offenders, Kennedy infuriated some conservatives by writing, "the opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation of our own conclusions."
A decision is likely by early next year.