Ken Klukowski
On Nov. 9, the U.S. Supreme Court heard arguments in two cases on whether it violates the Eighth Amendment for a minor (under age 18) to be sentenced to life in prison without parole where there’s no homicide involved. The answer to that question should be “no,” but it’s not clear which way the Court will go.

The High Court considered two cases from Florida with this issue. The first, Graham v. Florida, involved a 16 year-old convict who then robbed someone at gunpoint in her home in 2003. After being caught, he admitted to additional violent felonies as well, all within a few weeks of completing his sentence for previous felonies of armed burglary and assault.

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The second was Sullivan v. Florida. In 1989 the defendant Joe Sullivan (then age 13) robbed a 72 year-old woman with a couple older accomplices. Later that day, Sullivan returned to beat and rape this elderly woman.

Both were sentenced to life in prison without the possibility of parole. They claim that their punishment is unconstitutional.

They make their claim under the Eighth Amendment of the Constitution. This provision of the Bill of Rights forbids “cruel and unusual punishment.” Historically, the Eighth Amendment outlawed punishments that were barbaric, such as torture or maiming, but during its more liberal years in the 1960s and 70s the Court held that punishments must also be “proportional” to the crime.

The two current cases are the predictable result of the 2005 decision Roper v. Simmons. In Roper, a 5–4 divided Court held that applying the death penalty is unconstitutional if the perpetrator was under 18 when he committed the crime. That case involved a home robbery where the woman victim saw the 17 year-old robber’s face. Realizing he had been seen, he kidnapped the woman, bound her with duct tape, and threw her off a bridge to drown in a river. A Missouri court sentenced the murderer to death, but the Supreme Court struck down that penalty.

The most troubling aspect of Roper, however, was its reliance on foreign law to interpret the meaning of the U.S. Constitution. It cited the U.N. Convention on the Rights of the Child, a treaty that the United States has never ratified. Citing that treaty and the laws in other nations, the Court (in an opinion by Justice Anthony Kennedy) reasoned that these foreign sources helped define what is “cruel and unusual” means in our Constitution.

Some are pushing for the Court to consider foreign law again in deciding the current cases.

Ken Klukowski

Ken Klukowski is a bestselling author and Townhall’s legal contributor covering the U.S. Supreme Court, and a fellow with the Family Research Council, American Civil Rights Union, and Liberty University School of Law.