SG Corrects Factual Record in Graham

The Blog of the Legal Times has a very interesting report about a post-decision filing by the Solicitor General’s office in Graham v. Florida, the case in which the Supreme Court declared unconstitutional giving juveniles life sentences without parole for non-homicide crimes.

The May 24 letter to Court Clerk William Suter, obtained by the Blog of Legal Times, clarifies the information that led Justice Anthony Kennedy to write in his majority opinion that “there are six convicts in the federal prison system serving life without parole sentences for [juvenile] non-homicide crimes.” In the ruling, Kennedy had indicated that because Florida did not provide data about the number of juveniles sentenced to life without parole in the state and federal systems, the Court set out on its own to find out accurate information. Kennedy cited letters sent by officials in Nevada, Utah, Virginia, and the federal Bureau of Prisons to the Court library filling the information gap.

Katyal’s letter focused on the information submitted by Bureau of Prisons in its letter, “of which this office became aware only upon the release of the Court’s decision,” and which was “submitted in response to a confidential request from Court personnel.”

Katyal said that because of “time constraints,” the number of six federal prisoners was arrived at by consulting “automated inmate records,” rather than presentence reports and other documents. Since the decision came down, Katyal said a “careful review” of presentence reports was conducted, leading to the conclusion that “it appears that none of the six inmates listed … is serving a life sentence  based solely on a nonhomicide crime completed before the age of 18.” Katyal explained that all of the inmates cited by the Bureau of Prisons were convicted for criminal conduct that continued after they reached 18, or involved killing someone.

If, as the SG’s filing suggests, there are no federal prisoners currently serving life sentences without parole for non-homicide crimes committed as juveniles, this might explain why the SG failed to file a brief in the case.

UPDATE: Crime and Consequences has the SG’s letterKent Scheidegger’s notes that it is unclear whether Graham threatens any of the six sentences.  He further comments:

Nobody comes out looking good in this. The Court should know better than to engage in ex parte fact gathering and using the results as a basis for making constitutional law. The SG should have known that at least some federal judgments were in jeopardy from an adverse ruling and defended the federal law accordingly.

After getting federal law wrong in Kennedy v. Louisiana, it is surprising to me that Justice Kennedy would freelance the acquisition of facts for his Graham opinion.  If the number of federal prisoners sentenced to life without parole for nonhomicide crimes committed before the age of 18 was important, the Court could — and should — have asked for briefing from the SG.  (Indeed, the SG didn’t even know about that Court’s freelance request for info from the Bureau of Prisons until the opinion was released.)  The Court didn’t, and the result is another Eighth Amendment opinion by Justice Kennedy with embarrassing mistakes.

More from Josh Blackman here.