By Rachel Wainer Apter
Does the Constitution allow a teenager to be sentenced to die in prison for a pair of armed robberies committed on a single day, in which no one was seriously injured?
The U.S. Supreme Court has ruled it’s unconstitutional to sentence a juvenile who did not commit homicide to life in prison without parole, but the Missouri courts say this rule doesn’t apply if the juvenile is sentenced for multiple crimes. The ACLU is taking this issue to the Supreme Court on behalf of Bobby Bostic, who was sentenced to 241 years in prison for non-homicide crimes he committed when he was 16.
On Dec. 12, 1995, Bobby and an 18-year-old friend committed a pair of armed robberies. Two people were shot at, but no one was seriously injured. Prosecutors charged Bobby with 18 separate counts, and a jury found him guilty on all of them.
The trial judge was absolutely clear during Bobby’s sentencing: Bobby would never be free again.
“You made your choice. You’re gonna have to live with your choice, and you’re gonna die with your choice because, Bobby Bostic, you will die in the Department of Corrections,” Circuit Judge Evelyn Baker told the teenager. “Do you understand that? Your mandatory date to go in front of the parole board will be the year 2201. Nobody in this room is going to be alive in the year 2201.”
The state probation and parole board eventually issued Bobby a parole eligibility date of 2091, when he will be 112 years old. Today, Bobby remains in prison with no hope of release.
In 2010, in Graham v. Florida, the Supreme Court held that the Constitution’s Eighth Amendment “prohibits the imposition of a life without parole sentence on a juvenile offender who did
not commit homicide.” While the decision does not guarantee that a child who does not commit homicide will eventually be released, it requires that the state provide a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”
The Missouri Supreme Court and three other state high courts believe Graham only applies when a state uses the magic words “life without parole.” They ruled that there is no constitutional problem with sentencing a child who has not committed homicide to die in prison as long as the child was convicted of more than one crime and sentenced to consecutive term-of-year sentences.
But the constitutional flaw in the sentence imposed on Terrance Graham, according to the U.S. Supreme Court, was not that it was formally called “life in prison without parole.” It was that it denied a child who did not commit homicide “any chance to later demonstrate that he is fit to rejoin society.”
That’s exactly the flaw in Bobby Bostic’s sentence.
State prosecutors have substantial leeway in how they charge crimes. Here, the events of a single day led to 18 separate counts for robbery, armed criminal action, and other offenses. States should not be allowed to evade the principle set forth in Graham by sentencing a child to “100 years without parole” instead of “life without parole.” Similarly, they should not be able to slice one incident into many sub-offenses and sentence a child to consecutive term-of-year sentences that guarantee he will die in prison. In fact, the Supreme Court has already recognized that such a sentence is practically equivalent to “life without parole.” That proposition should make a decision in the Bostic case easy.
As Graham held, leaving a child who did not commit homicide to “die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes,” is cruel and unusual punishment.
Bobby Bostic should get a chance to show that crimes he committed as a kid do not define him. The Eighth Amendment demands nothing less.
Rachel Wainer Apter is a Senior Staff Attorney with the ACLU