JUSTICE SOTOMAYOR: But you haven't answered
Justice Alito's point, which is: What's the difference
between a month before he's 18 and a month after? What
makes us more capable at the 18th birthday to -- to
affirm a judgment that someone can't be -- can't be rehabilitated?
The Petitioner's answer seems to us weak- that you have to draw the line somewhere and society has drawn it at age 18. And that was just what Justice Scalia was waiting for:
JUSTICE SCALIA: A line has to be drawn
somewhere only if we accept your approach that there has
to be a categorical exemption. A line does not have to
be drawn somewhere if you adopt the approach of case by
case decide whether this is proportional, given how old
the individual was, given the nature of the crimes and
all of the other factors. You don't have to draw a line
then, and that's the attraction of that approach.
But bless her ACLU soul, Justice Ginsberg was waiting with an answer:
JUSTICE GINSBURG: You see, how do you answer the argument that unlike an adult, because of the immaturity, you can't really judge a person -- judge a teenager at the point of sentencing? That it's only after a period of time has gone by, and you see: Has this person overcome those youthful disabilities? That's why a proportionality review on the spot doesn't accommodate the -- what is the driving force of the -your -- the Petitioner's argument is you can't make a
judgment until years later to see how that person has --
And that's the problem here- on the one side the argument against drawing the line at 18 years of age is that you should just legislate that age is a factor that must be taken into consideration and then you don't have to worry on what side of the 18th birthday the defendant committed the crime on. But that approach still allows for the imprisonment of life without parole for juveniles. So on the other side you ask the court to draw a bright line at age 18.
It seems to us both approaches work well together- you draw a bright line and still require sentencing judges to take age into consideration. That approach plus adding mandatory parole for all juveniles sentenced to more than ten years in prison solves all the issues at hand.
What say you?