In an unusual filing with the Supreme Court this week, Acting Solicitor General Neal Katyal said some of the information that the Court used in its recent Graham v. Florida decision, supplied to the Court by a federal official without the SG's knowledge, was inaccurate. The letter casts a new light on the federal government's non-involvement in the case, which has been the subject of some controversy.
In the landmark decision May 17, the high court ruled that the Eighth Amendment bars the sentencing of juveniles to life in prison without the possibility of 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.
Apart from the unusual nature of the Court's own data-gathering project, the letter is also noteworthy as it may relate to Solicitor General Elena Kagan's nomination to the Supreme Court. Ordinarily in state cases like Graham v. Florida, the federal government weighs in, if the outcome could affect federal law or policy. The government stayed out of the Florida case, however, in spite of the fact that federal law does permit sentencing of juveniles as young as 13 to life without parole, as the Court noted. If six actual federal inmates were affected by the Florida case, it might have made the SG's decision to stay out of the case more notable.
In fact, Kent Scheidegger of the conservative Criminal Justice Legal Foundation took Kagan to task for staying on the sidelines in the case. "This is a curious incident," Scheidegger wrote on the day the decision came out, citing the six federal inmates affected by the case. "The senators need to ask why she was AWOL on LWOP." LWOP is an acronym for life without parole.
Asked about the Katyal letter this afternoon, Scheidegger said some of the federal inmates might still be able to benefit from the Graham decision, and the federal law still is on the books. "So, even with this letter, there does appear to be some impact on federal sentences and on the constitutionality of an act of Congress as applied in those cases," Scheidegger said. "That would normally be enough for the SG to come in. Maybe she had a good reason, but an explanation is in order."
UPDATE: Scheidegger has posted the text of the Katyal letter (pdf) at his Crime and Consequences blog site here.