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Kagan, Graham, and ex parte research

We previously noted here that the Supreme Court in Graham v. Florida had engaged in the unusual practice of digging out the facts itself regarding how many juvenile nonkillers had LWOP sentences around the country. We noted here that six of the sentences found by the Court in this manner were federal, raising the question of why SG Elena Kagan had not spoken up to defend them, and that this curious incident required further inquiry.

Today, we got a copy of a letter from Acting SG Katyal to the Court regarding the six cases. Did the Court get it wrong? Well, it's complicated.

Relatively few killers in federal prison are actually there on convictions of murder. Murder, as such, is not a federal offense except in certain enclaves (D.C., military bases, ships at sea ...) and other special situations. The death of the victim usually comes into the case in another way.

For two of the six, the appendix to the letter says the defendant was "[c]harged with and convicted of murder as a RICO predicate act." That is probably sufficient to take these two cases out of the scope of the rule announced in Graham.  For two, it says, "[a]long with co-conspirators, participated in the killing of others." It does not say convicted of such a killing, though.  Was this fact determined in sentencing proceedings? By whom? To what standard of proof? These are questions still not fully worked out for categorical exclusions in capital cases, where such exclusions have been in place for years. So it is not entirely clear that these two sentences are exempt from the Graham rule.

For the latter two and the other two (who apparently didn't kill anyone), the course of criminal conduct spanned the perpetrators' 18th birthdays. Of the two nonkillers, Ralph Edwin Brazel "turned 18 during the course of the conspiracy, approximately two weeks before his arrest," and Ronald Jourdan Evans "turned 18 during the course of the conspiracy, approximately nine months before he was indicted." At the very least, these judgments are in jeopardy from Graham, whether they actually get overturned or not. Does mere continuation of the conspiracy after the perp blows out his 18 candles remove the protection of the Graham rule if most of the criminal conduct occurred before? That question is not resolved.

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.

Update: Tony Mauro has this post at BLT.

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