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
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
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
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
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
"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. …