Q and A on Sullivan v. Florida and Graham v. Florida Oral Argument with David Hudson, Jr.

Can you briefly review how this case got to the Court?
These cases arose from the Court’s 2005 decision in Roper v. Simmons in which the Court ruled that the death penalty for juveniles violated the Eighth Amendment and constituted “cruel and unusual punishment.” The Court emphasized that while “death is different,” children are different too.

The next logical progression for attorneys defending juveniles was to argue that the second harshest penalty—life in prison without the possibility of parole—also constitutes cruel and unusual punishment. In one sense, both of these cases represent attractive vehicles for the challengers because both of these defendants received the harsh sentence for non-homicide offenses.

What were the main issues before the Court?
The Court’s decision will address which basic point takes precedence—death is different or children are different. The Court could confine its ruling in Roper v. Simmons to just the death penalty or it could extend the reasoning of Roper to also eliminate life in prison without the possibility of parole.

The Sullivan case also presents some interesting procedural hurdles, as there is at least an argument that Sullivan could have raised a similar type challenge years earlier. Another issue for the Court is whether it should adopt some sort of categorical age rule—keep in mind that Sullivan was only 13 when he committed his crime—such as under 15—or under 18—or no categorical rule at all.

How did the oral argument go?
Oral argument was interesting—each side in both cases (Sullivan and Graham and then the state of Florida in each case) faced tough questioning. It is nearly impossible to predict, but what stood out to me was Chief Justice John Roberts’ questioning about simply deciding these matters on a case-by-case basis (taking age into account) rather than imposing a categorical rule. There certainly seems to be a segment of the Court that might find that attractive. On the other hand, the state of Florida received some really tough questioning that showed how really rare it is to have a 13 or 14-year-old receiving a life sentence without the possibility of parole, particularly for a non-homicide offense. It is just such a young age to receive such a harsh penalty—that appeared to be a theme that came out of the Sullivan arguments.

What do you think the Court saw as the strongest argument?
I think many members of the Court were taken aback at the statistics of just how rare someone the age of Joe Sullivan is given such a harsh sentence.

Which argument seemed to get the least traction with the justices?
One argument that may be tough is when the petitioner in Graham argued that life imprisonment without parole for juveniles is cruel and unusual but yet so many states still allow it as an option on the books. The better argument was to show how rarely the sentence is imposed.

Were there any questions or discussions that surprised you?
I was somewhat surprised at Justice Kennedy’s questioning in Graham about the effectiveness of parole decisions. I thought he made some interesting points with his questioning. I thought it was also interesting that both Justices Ginsburg and Sotomayor had a tough line of questioning about the potential procedural bars facing the petitioner in Sullivan. I was somewhat surprised that the Court got very specific and detailed in their questioning—Justice Sotomayor was a good example of this—about the statistics of just how often this sentence was imposed on 13-and 14-year-olds.

What was the media coverage of the argument like? If there was any, do you think it was a fair representation?
I thought the media coverage was sparse. The stories of Terrence Graham and Joe Sullivan are very compelling and the press by and large did not pick up on it very well. The coverage that was done was fair but it failed to go into sufficient depth and certainly didn’t capture the stories of these defendants with enough detail or substance. Frankly, I was surprised the cases didn’t receive more coverage.

Did any of the justices show their hand?
I would not want to hazard a guess, but Chief Justice Roberts sure seemed to want these matters handled on a case-by-case basis. Given some of the probing questions about the statistics involving the rarity of the sentence for 13-and 14-year-olds, it wouldn’t surprise if the Court created a categorical rule between 14 and 15.