Supreme Court Justice Kennedy is seen as the potential swing vote in two cases questioning whether life without parole for 14-year- old killers is cruel and unusual punishment.
Justice Anthony Kennedy took center stage Tuesday as the US Supreme Court began examining two cases testing whether life in prison without parole is cruel and unusual punishment for someone who committed murder at age 14.
Much of the two hours of argument in the cases from Arkansas and Alabama were directed at Justice Kennedy, who is widely seen as wielding the potential swing vote that could win the case for either side.
Based on his questions, Kennedy appears to be searching for a means to rule for the two juveniles and somehow invalidate the mandatory imposition of life without parole for some category of young offenders.
Such a ruling would extend the same reasoning embraced by the high court in two landmark cases involving juveniles, and it would add another precedent to an emerging jurisprudence of juvenile punishment.
In 2005, the high court invalidated the death penalty for those age 18 and younger. Five years later, the court again cited the same reasoning and ruled that sentencing a juvenile to life without parole for a non-homicide crime also violated the Eighth Amendment's ban on cruel and unusual punishment.
Both cases were decided by 5-to-4 votes, and both were written by Justice Kennedy.
Now the justices are being asked to extend that same reasoning yet again, this time to bar the imposition of life-without-parole sentences to convicted murderers who were 14 years old at the time of their crime.
"We are not suggesting that states should not be able to impose very harsh punishments and very severe sentences on even children who commit these kinds of violent crimes," Bryan Stevenson, a Montgomery, Ala., attorney, told the justices.
"What we are arguing is that they cannot do so [while offering them] no hope of release," he said.
Stevenson told the court that young offenders are less culpable than adults for the crimes they commit. Studies have shown that biologically and psychologically, teens are more susceptible to peer pressure and more prone to impulsive and reckless behavior. Studies show that their judgment and character are not yet fully formed.
These factors must be considered in meting out appropriate punishment for crimes, Stevenson said. His argument wasn't simply for leniency. He said life in prison with the possibility of parole could be an appropriate sentence in certain cases.
But he said that sending a 14-year-old to prison with no hope of release is cruel and unusual under the Constitution's Eighth Amendment.
"It would be cruel to declare these children fit only to die in prison given what we now know about their status, about their development, and about their potential," he said.
Urging the high court to uphold Alabama's sentencing scheme, the state's solicitor general, John Neiman, said it should be up to state lawmakers to decide whether to punish the state's worst criminals with a mandatory sentence of life without parole - even when they are as young as 14.
"The government's primary goal here is expressing the retributive judgment about the wrongfulness of murder," he said. "I think governments are quite legitimate and quite reasonable when they also say that they don't want to roll the dice on convicted murderers."
Arkansas Assistant Attorney General Kent Holt offered a slightly different argument. …