Kicking the Can.

The Supreme Court heard oral arguments (1, 2) yesterday in the criminal justice cases I discussed on Friday, which concern the constitutionality of sentencing minors to life in prison without parole . Dahlia Lithwick tries to count the votes:

At the end of two hours, I think I can count three votes for a case-by-case proportionality review, three votes for a categorical rule, one vote for something I can't yet identify, one vote I can't quite discern, and one vote for not asking questions. Does all that add up to five votes for anything?

The disposition of the cases, in other words, seems likely to be the kind of "minimalism" the Court has become particularly enamored of -- that is, it may dispose of the cases while not developing a rule that would give significant guidance to future cases. With respect to Sullivan -- the case involving a 13-year-old given life without parole in a sexual assault conviction riddled with procedural defects -- a majority of the Court strongly signaled that, under current law, Joe Sullivan was procedurally barred from bringing a suit. And as Lithwick notes, even a minimalist decision giving Terrance Graham a new sentencing hearing would at least have the advantage of allowing Sullivan to challenge his sentence under the new rule (or quasi-rule as the case may be).

As for the content of a new potential standard, Lyle Denniston predicts that at least a plurality of the Court is likely to rule "in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence." So the Court may create the possibility of ruling that a few outlying life-without-parole sentences given to adolescents are unconstitutional while upholding others. Given the inherent vagueness of such a standard, whether such a ruling would help either prisoner in Florida or federal courts going forward is anyone's guess.

--Scott Lemieux