December 30, 2011
Update on amicus draft (and draft text of the summary of argument)
I am making slow and steady progress on our collective amicus efforts (more slow than steady, but still progress is being made). I hope that no later than Tuesday to be able to post a full working draft of the document I am putting together. For now, I can start with this (too?) brief passage that is now serving as the "summary of argument" section:
Interpreting the Eighth Amendment’s prohibition on cruel and unusual punishments, this Court has repeatedly stressed that juveniles, especially young juveniles, are a special and unique class of criminal offenders with a distinct level of maturity, mental capacity, and vulnerability to negative influences. In addition, this Court’s Eighth Amendment jurisprudence has repeatedly recognized that not all homicide offenses are constitutionally equivalent; because murders can and will differ in their severity, a constitutional scheme of punishment must sometimes differentiate between and among murder offenses of differing severity. And, last but not least, this Court’s Eighth Amendment jurisprudence has identified constitutional problems with certain aspects of certain mandatory sentencing schemes. Collectively, these established principles of this Court’s Eighth Amendment jurisprudence connote that any and all statutory schemes which mandate that a juvenile offender convicted of a certain class of homicide must be sentenced to life without the possibility of parole, without any consideration of the offender’s age or any other potential mitigating offense circumstances, violate the Eighth Amendment’s prohibition on cruel and unusual punishments.
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I really like it. My question is regarding the "especially young juveniles" mention in the first sentence. Will the brief make an "in the alternative" argument that if the court does not wish to rule that ALL juveniles should not be subject to mandatory LWOP sentencing schemes, then at least juveniles 14 and under should not be subject to them? That is a valuable argument, but I didn't know if the brief's main goal was to argue against the mandatory sentences for all juveniles, or just those who are 14 and under. I like the idea of focusing on all juveniles (which is what the rest of the paragraph indicates will happen) and not making an age distinction.
Posted by: Maureen F | Dec 30, 2011 6:22:19 PM
I agree with Maureen. I think it's better to avoid drawing an additional arbitrary distinctions with age. Although any distinction will be arbitrary - but it would be better to not draw them beyond what society has already done. Plus, it allows for a more liberal sentencing policy (which is ultimately what I want). I really like this. I can't wait to read the completed document.
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