The Blog of the Legal Times has a very interesting report about a post-decision filing by the Solicitor General’s office in Graham v. Florida, the case in which the Supreme Court declared unconstitutional giving juveniles life sentences without parole for non-homicide crimes.
The May 24 letter to Court Clerk William Suter, obtained by the Blog of Legal Times, clarifies the information that led Justice Anthony Kennedy to write in his majority opinion that “there are six convicts in the federal prison system serving life without parole sentences for [juvenile] non-homicide crimes.” In the ruling, Kennedy had indicated that because Florida did not provide data about the number of juveniles sentenced to life without parole in the state and federal systems, the Court set out on its own to find out accurate information. Kennedy cited letters sent by officials in Nevada, Utah, Virginia, and the federal Bureau of Prisons to the Court library filling the information gap.
Katyal’s letter focused on the information submitted by Bureau of Prisons in its letter, “of which this office became aware only upon the release of the Court’s decision,” and which was “submitted in response to a confidential request from Court personnel.”
Katyal said that because of “time constraints,” the number of six federal prisoners was arrived at by consulting “automated inmate records,” rather than presentence reports and other documents. Since the decision came down, Katyal said a “careful review” of presentence reports was conducted, leading to the conclusion that “it appears that none of the six inmates listed … is serving a life sentence based solely on a nonhomicide crime completed before the age of 18.” Katyal explained that all of the inmates cited by the Bureau of Prisons were convicted for criminal conduct that continued after they reached 18, or involved killing someone.
If, as the SG’s filing suggests, there are no federal prisoners currently serving life sentences without parole for non-homicide crimes committed as juveniles, this might explain why the SG failed to file a brief in the case.
UPDATE: Crime and Consequences has the SG’s letter. Kent Scheidegger’s notes that it is unclear whether Graham threatens any of the six sentences. He further comments:
Nobody comes out looking good in this. The Court should know better than to engage in ex parte fact gathering and using the results as a basis for making constitutional law. The SG should have known that at least some federal judgments were in jeopardy from an adverse ruling and defended the federal law accordingly.
After getting federal law wrong in Kennedy v. Louisiana, it is surprising to me that Justice Kennedy would freelance the acquisition of facts for his Graham opinion. If the number of federal prisoners sentenced to life without parole for nonhomicide crimes committed before the age of 18 was important, the Court could — and should — have asked for briefing from the SG. (Indeed, the SG didn’t even know about that Court’s freelance request for info from the Bureau of Prisons until the opinion was released.) The Court didn’t, and the result is another Eighth Amendment opinion by Justice Kennedy with embarrassing mistakes.
More from Josh Blackman here.
Steve says:
Perhaps this is why there are limits on judges conducting outside research, outside the corrective process of the adversary system…
May 27, 2010, 9:24 pmHappyFederalist says:
I don’t see how post-decision research could help answer whether the SG should have filed a brief. At the time she had to make the decision, she didn’t have this information available.
May 27, 2010, 9:38 pmLubaf says:
HappyFederalist:
It answers another question: Whether it would have made any difference whatsoever if she had filed a brief.
May 27, 2010, 9:55 pmOrenWithAnE says:
And yet somehow she made the right choice — the SG is not obligated to defend Federal laws that have never been invoked.
May 27, 2010, 9:56 pm1040 says:
has anybody paged master bader to let him know?
May 27, 2010, 10:31 pmKent Scheidegger says:
The question of whether the Graham decision will overturn any of these sentences is more subtle. The letter doesn’t say “committed before the age of 18,” it says “completed before the age of 18.” Some of the cases involve ongoing criminal conduct spanning the 18th birthday. How does Graham apply to that scenario? We don’t know.
For two of the cases, the letter says that the juvenile or his cohorts killed someone but does not say he was convicted of a crime where death of a person was an element. How was the killing determined? As a sentencing factor? Does that get the case out of the scope of Graham? Does that raise an Apprendi problem?
I expect that several of these inmates will file 2255 petitions based on Graham, and one or more may eventually prevail.
A link to the actual letter is at Crime & Consequences, BTW.
May 27, 2010, 10:48 pmrpt says:
He’s working on the blog posts to cite to in the blog posts linked to in his comment. That’s why he’s paid the big bucks by the Corporate Enterprise Institute.
May 27, 2010, 10:49 pmtvk says:
To repeat HappyFederalist’s point, this doesn’t excuse the SG from not filing a brief. First, the SG’s office didn’t know that there were no non-homicide prisoners. Second, even the fact that Federal law provides the possibility–never exercised–still invokes her obligation to defend it. Third, it was hardly clear before the Graham decision that the court would limit its holding to “non-homicide” juvinile crimes. For all the SG knew at the time, the court might have eliminated life sentences for all juviniles.
May 27, 2010, 11:58 pmCrazyTrain says:
Exactly. It is totally inappropriate for them to have done this confidentially.
May 28, 2010, 12:15 amDisplaced Midwesterner says:
There’s still a lot we don’t know about this, which isn’t surprising. Apparently the SG’s Office analyzed the PSRs of the specific inmates listed in the BOP letter, which it did not know about earlier, and determined they were not within the non-homicide juvenile LWOP category. But it’s unclear whether or not that was what the SG thought earlier. I of course have no idea what all was reviewed in deciding whether to file an amicus brief or not, but it wouldn’t surprise me if the office conducted some sort of review, thought there was no one serving such a sentence in federal custody, declined to file a brief, and then read the opinion and thought, what, “6? Who are these guys?” and looked into those particular 6.
May 28, 2010, 12:17 amOrenWithAnE says:
Why would she be obligated to defend a law that is never used?
May 28, 2010, 12:24 amMahan Atma says:
Several commenters in the last thread pointed out the improbability of such sentences, including me. It’s something that ought to be obvious to anyone who actually practices federal criminal law with any frequency.
Law professors ought to get more experience in practice, if you ask me…
Hey, where’s Hans Bader?!?
May 28, 2010, 12:39 amRich Rostrom says:
The meta-questions here are: how often do court rulings turn on errors of fact by the court? And is anyone checking for such errors? ISTM that rulings should be audited, and that a finding of error should be cause for appeal or review fo some kind.
May 28, 2010, 1:26 amSteve says:
Second, even the fact that Federal law provides the possibility–never exercised–still invokes her obligation to defend it.
This is kind of a made-up principle. The obligation to defend Federal laws is a matter of practice, not something that is engraved in stone somewhere. John Roberts declined to defend a direct challenge to a fairly prominent statute (minority preference requirements in broadcast licensing) and I don’t recall anyone suggesting he was unqualified to be Chief Justice for that reason.
I have my doubts that the SG’s office even made a conscious decision not to get involved in this case, but nowhere is it written that the SG must go to the mat to defend a purely theoretical authority which is never exercised. The argument that the DOJ is disrespecting Congress by declining to defend its statute is weakened by the fact that it is ultimately the DOJ, and not Congress, which decides whether the authority to request a life sentence will ever be exercised.
May 28, 2010, 1:28 amLior says:
Oren: In what sense is the law not “used”?
It is not the US Attorney but the judge that selects the sentence, so it is the judge that “uses” the law. In Graham’s case the prosecutor recommended a lighter sentence, but the judge decided on life without parole. For federal cases The Attorney General (or the President) can direct all federal prosecutors to never ask for life without parole for juveniles, but they can’t direct all federal judges to never impose such sentences. Since neither Congress nor the Judiciary (as institutions) can file briefs in support of the law, the SG is supposed to represent their interests.
May 28, 2010, 1:36 amAnonsters says:
Suppose the Solicitor General thinks some statute is unconstitutional. The statute is challenged. Unless instructed otherwise by the Attorney General or President, wouldn’t it actually be a violation of the SG’s oath of office to defend the statute?
May 28, 2010, 1:36 amSteve says:
Unless instructed otherwise by the Attorney General or President, wouldn’t it actually be a violation of the SG’s oath of office to defend the statute?
I don’t think so, for the same reason it’s okay to defend someone you think is guilty. You don’t violate the Constitution by making an argument. In fact, if the court likes your argument and decides the statute is constitutional, I guess that means you were wrong in the first instance.
I think we are better off if the SG makes a habit of defending direct challenges to federal statutes, with very rare exceptions. I’m not sure what to think about indirect challenges like the Graham case.
May 28, 2010, 1:44 amAnonsters says:
I think the situations of a practicing attorney and of an Executive Branch political appointee are slightly different, both as a practical matter and as a theoretical matter.
May 28, 2010, 1:49 amAnonsters says:
And does anyone know how (and whether) 28 U.S.C. § 530D operates in reality?
May 28, 2010, 2:12 amSteve says:
And does anyone know how (and whether) 28 U.S.C. § 530D operates in reality?
I cannot tell you the first thing about reality, but I can tell you what Bush’s signing statement said.
May 28, 2010, 2:19 amGuy says:
Seems like it was pretty clear to me, given that the question presented stipulates that only non-homocide crimes are at issue. The Court has the power to go beyond the question presented if they need to, but they rarely do so, you might as well suggest that the Court could have found that LWoP was unconstitutional as applied to anyone, so the SG should have made an appearance just in case.
May 28, 2010, 4:08 amJosh Blackman says:
Do you think there is anything odd about the Court, ex parte, doing research without asking any of the parties to brief it?
Certainly if the Court wanted BOP statistics, they could have asked the SG to brief it. Rather, they obtained data that no one else had access to–and in this case, it seems that data was flawed.
And, I wonder what other mistakes SCOTUS makes, that are never noticed.
http://joshblackman.com/blog/?p=4563
May 28, 2010, 7:53 amStelman says:
Of course the court does tons of research without benefit from any party. That’s the Libraries job, and a significant part of the clerks. It looks like a request went to the Library, the Library made inquiry of the research arm of BOP and the in that sense it seems uncontroversial. I think the Court erred in not subjecting this information to any test for Judicial Notice. I also think they should instruct the Library to make requests simultaneously to the agency and the solicitor. And the government should instruct all agencies not to respond absent solicitor involvement.
May 28, 2010, 8:08 amA wrinkle in the US Supreme Court’s recent decision that juveniles cannot get life without parole says:
[...] tip to Volokh Conspiracy for the initial [...]
May 28, 2010, 8:47 amHouston Lawyer says:
To paraphrase, the court may be entitled to make up its own law, but it is not entitled to make up its own facts.
May 28, 2010, 8:48 amstanonymous says:
After getting federal law wrong in Kennedy v. Louisiana, it is surprising to me that Justice Kennedy would freelance the acquisition of facts for his Graham opinion.
After reading Kennedy v. Louisiana, I was left with a very low opinion of Justice Kennedy as a judge, and his freelancing here is not surprising to me.
May 28, 2010, 9:06 amSteve says:
Maybe Justice Kennedy assumed the unitary executive would tell itself about the request.
May 28, 2010, 9:13 amUrso says:
Under the Roper/Graham “reduced culpability” theory, I think if any part of the criminal act occurred after he 18th birthday, those cases don’t apply. Justice Kennedy believes there’s a magical aura of culpability that flickers down on you; once you hit 18 you’re expected to suddenly mature and say, “wait! All of a sudden it occurs to me that committing crimes is wrong- I never realized this before!” Any crimes you’ve committed before your 17th birthday are bad, sure, but they’re not that bad. Boys will be boys.
But if on your 18th birthday you don’t achieve this burst of moral inspiration, but continue in your criminal ways, Justice Kennedy believes it’s totally fine to lock you up and throw away the key. As a grown adult who’s 18 years and one day, you should know better than a mere child of 17 years and 364 days.
May 28, 2010, 10:52 amOrenWithAnE says:
Prosecutors seek a particular sentence within the range allowed by statute. AFAICT, no prosecutor has ever sought LWoP for a minor convicted of a non homicide crime.
May 28, 2010, 11:23 amDjDiverDan says:
Count me among those who is (a) not bothered at all by the SG’s decision (for whatever reason) to not file an Amicus Brief in Graham; and (b) VERY bothered by the notion that the Supreme Court, or any of the Justices, could conduct their own factual investigation as part of deciding a case — even if they try to justify it as part of the search for “a growing national consensus” on the meaning of the 8th Amendment. When the Court conducts its own factual investigation, it has no obligation to advise the parties, or give them access to the results of that investigation, or give either party the opportunity to challenge, by cross-examination of the Court’s sources or production of their own sources, any conclusions the Court (or a Justice) may reach based upon that investigation. We would all be very upset if juries were free to conduct their own factual investigations prior to reaching a verdict, especially if that investigation, the methods, the sources, and the findings were all secret and incapable of being challenged by either of the parties – there is no protection at all against either party being blindsided by a ruling based on evidence they could never see or rebut. When the Supreme Court engages in that kind of conduct, they assume the role of an unimpeachable expert witness, whose opinions and conclusions can never be challenged or even reviewed by the participants in the case. That is fundamentally contrary to the Justices’ role as judges and their duty to reach a fair and impartial decision based upon the evidence presented by the parties. If Justice Kennedy, or any other Supreme Court Justice, engages in that kind of activity, he is sadly unfamiliar with the proper role of the Judiciary and unfit for the Bench.
May 28, 2010, 12:21 pmUrso says:
As I understand it – perhaps a VCer from across the pond can enlighten me – this is largely the norm in European countries. Another example of Kennedy’s insidious plot to adopt “foreign law?” (tongue in cheek here)
May 28, 2010, 12:38 pmChrisTS says:
Soo, I’m going to stick out my ignorant neck in hopes of enlightenment.
The case before the court did involve a LWOP sentence for someone whose non-homocidal crime was committed/completed before he was 18.
Kennedy did some bad fact-checking and concluded that, if there were only 6 such cases, there was a consensus against LWOP in these cases.
In fact, there was no one in prison under LWOP in similar circumstances.
He Ct decided that LWOP in such cases would be unconstituionallly unusual (maybe cruel).
If I have got all that correct, I am unsure as to the real legal problems raised by the fact that the 6 LWOP prisoners did committ homicides when they were younger than 18.
I realize their cases might need to be looked at again, but is this some major disaster? Would we want to say that the Ct was wrong because no one other than Graham would be in prison under these circumstances if the case were decided differently?
I feel very confused.
May 28, 2010, 1:15 pmDjDiverDan says:
I’m unfamiliar with many European Countries, but I believe it is the norm in France (that glorious French Judicial System that brought us the Dreyfuss Affair, among others) and in Spain (hence a Spanish Judge issuing indictments of South American (Chile, I believe) political figures for acts which occurred completely outside of Spain. Truly a practice we ought to emulate (NOT!!).
May 28, 2010, 1:31 pmOrenWithAnE says:
The complaints have nothing to do with the Court’s decision and everything to do with Kagan’s duty to defend the law.
In fact, despite the fact that I support her nomination, I wrote in a previous thread that I believe she would have had a duty to defend the law provided that someone pointed to a single case in which such a penalty was (or is likely to be) sought. That’s the SG’s job.
Given that the penalty was never imposed and likely never even sought (factual cites to the contrary welcome), however, Kagan’s refusal to brief becomes perfectly acceptable as there was absolutely no cognizable federal interest at stake.
May 28, 2010, 1:43 pmKent Scheidegger says:
That is not given. See my original comment and my post at C&C.
May 28, 2010, 1:50 pmOrenWithAnE says:
Fair enough Kent, then I change ‘Given …’ to ‘If it turns out …”.
A good point.
May 28, 2010, 2:10 pmChrisTS says:
Oren:
Ah. Thanks. Sometimes my thinking is too linear for these threads.
May 28, 2010, 2:13 pmAnonsters says:
lolwut?
Do you describe the American system as “that glorious American Judicial System that brought us Dred Scott, among others?”
May 28, 2010, 4:12 pmMahan Atma says:
At 18, you magically become wise enough to vote, and at 21, you magically become mature enough to drink.
You can play that game ad nauseum, because the law is run through with such line-drawing problems. That doesn’t mean we should never draw lines.
May 28, 2010, 4:54 pmSteve says:
You can play that game ad nauseum, because the law is run through with such line-drawing problems.
You actually can’t, but you may be able to play it ad nauseam.
May 28, 2010, 5:00 pmKent Scheidegger says:
We use bright-line age rules for such matters as voting and drinking as a practical accommodation, not because we think that such cutoffs are actually correct. Society cannot afford an individualized assessment for every person in the population.
For the much smaller number of people who commit murder, rape, or armed robbery before 18, and for the much more consequential decision of how long to put them away, we can and should assess each case individually.
May 28, 2010, 5:07 pmGlen says:
To the best of my knowledge, no European court (or an judiciary operating in a inquisitorial, nonadversarial or civil law system) has the power to both find its own facts and make rulings with the force of law on a permanent, global basis.
Maybe someone more familiar with European (or French?) courts could elaborate?
May 28, 2010, 5:56 pmLarryA says:
Why would Kennedy expect the state of Florida to provide stats on federal prisoners?
May 28, 2010, 6:59 pmGuy says:
You seem to be confusing an inquisitorial judicial system with the question of extraterritorial application of laws, which is a strange confusion. Of course, the U.S. would never claim extraterritorial jurisdiction (huh? what DEA?).
May 29, 2010, 2:41 amJustice Kennedy strikes again « Internet Scofflaw says:
[...] Kennedy strikes again A major factual error in the Supreme Court’s Graham v. Florida decision underlines the fact that the court should [...]
May 31, 2010, 12:01 pm