Absolutely No Excuse
On November 9 the Supreme Court heard arguments in Graham v. Florida and Sullivan v. Florida, a pair of cases asking whether the Eighth Amendment’s proscription against cruel and unusual punishment is violated by sentencing juveniles to life imprisonment with no possibility of parole. No other nation has sentenced juveniles to life. But in the United States there are approximately 2,500 lifers charged while under 18. Of those, 109 are children who committed offenses that did not involve murder and seventy-three were 14 or younger when they committed their crimes. And seventy-seven of those 109 were sentenced in Florida. And 84 percent of those are black.
One of the named plaintiffs is Joe Sullivan, who was 13 when he was convicted of sexual battery. Terrance Graham, the other named plaintiff, was convicted of robbery when he was 16. He was released on parole, and then given life for a parole violation when he was 17. Sullivan and Graham are imprisoned in Florida, where according to Bill McCollum, the state’s attorney general, there has been a push to crack down hard on youth crime because, after a string of attacks on foreign tourists in the 1990s, the “problem was…threatening the state’s bedrock tourism industry.”
While the definition of “cruel and unusual” is the thrust of what the Court must decide, the racial and geographic makeup of this particular population of juvenile lifers is quite remarkable. Toss in the State of Florida’s conflation of crime and commercial interest, and it adds up to a very large, very cruel and most unusual elephant in the room. But the legal debate has not and will not openly acknowledge race as a factor. Rather, the Court is deeply divided along ideologically colorblind lines, which nonetheless have philosophical underpinnings that allow such inequities to remain uninterrogated.
At the heart of any criminal case is the determination of a defendant’s intentionality, which depends on some consideration of state of mind, or mens rea. There are two ways of expressing the query. On the one hand, we could ask if the act was intentional in a narrow sense: was the crime physically performed by the named defendant without radical chemical imbalances or physical coercion? This way of thinking places great emphasis on the act itself. On the other hand, we could frame the question in such a way that foregrounds the actor and his motives, an approach that requires more examination of the defendant and his thinking about consequences–that is, about meaning, relation, capacity.