Solicitor General Revises Data on Federal Juvenile Sentences

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.

Comments

[ohwilleke]

Directly gathering information for policy purposes, as opposed to the facts of the case before a court, is not itself improper or unusual. Indeed, it is relatively common place in U.S. Supreme Court opinions and the concurrence by the Chief Justice in the case does the same thing (citing newspaper articles).

But, the federal rules regarding judicial notice, which include notice to the parties of the matters to be noticed, should have been followed, and comity would certainly call for a request to the solicitor-general who is the designated liason with the executive branch, rather than a direct inquiry. Notice to interested and involved parties often prevents inaccuracies in court rulings.

[Shiela]

I agree with the comments of all who believe the Supreme Court was out of line.
If the SG was asleep at the switch here, it wasn't the first time.

I recall a brief that was filed opposing a cert petition last year, that included a highly questionable (translation: incorrect) legal argument. The argument cannot be squared with the plain language of the relevant statute or the separation of powers doctrine. It had been drafted and submitted to the OSG by an interested federal agency. Clearly, no one bothered to check into its legal sufficiency before parroting it in the brief filed with the Court.

[Josh Blackman]

Do you think there is anything odd about the Court, ex parte, doing research without asking any of the parties to brief it?
Certainly if the Court wanted BOP statistics, they could have asked the SG to brief it. Rather, they obtained data that no one else had access to–and in this case, it seems that data was flawed.
And, I wonder what other mistakes SCOTUS makes, that are never noticed.
http://joshblackman.com/blog/?p=4563

[Bill Thompson]

This incident fully illustrates why courts should never do independent factual determinations. As a matter of due process, the parties always should have the opportunity to explain to a court what facts are pertinent to the inquiry and to question the accuracy or context of any requested facts. Moreover, the parties will be in a better position to know to whom the request should be directed.

The request from the court appears to authorize a response that violates the canons of ethics promulgated by the American Bar Association and adopted in many states. It is an ex parte or other communication made to the court outside the presence of the parties concerning a pending or impending proceeding.

If the court wanted additional information, it should have directed the parties to provide it - not do an independent search. Just because you can do something does not mean you should.

[Jim3k]

Has the Court improperly engaged in an ex parte communication with an interested party? I realize that Florida is the main party, but the USBoP is closely enough connected to this constitutional issue where it may have been ethically inappropriate for the Court to communicate with it without the parties' knowledge. Certainly a Court request such as this should be part of the public record of the case.

And why did the Court leave the Solicitor General out of it? Even if the SG has not filed in the matter, wouldn't it have behooved the Court to have asked the SG to acquire the information since that office has access to all executive agencies? At the very least, the Court could have assured itself of SG oversight for accuracy.

Now the Court and the SG have been diminished to some extent.

Somehow it just seems wrong for the Court to seek extra-record evidence on its own. This is not Brandeis stuff where the Court could look up stuff; besides those references were in some party's brief and known to all the other parties. (IMO, observing that this is all tangential to the Florida case does not address the problem.)