فصل چهاردهم

Chapter Fourteen

Cruel and Unusual

On the morning of May 4, 1989, Michael Gulley, fifteen, and Nathan McCants, seventeen, convinced thirteen-year-old Joe Sullivan to accompany them when they broke into an empty house in Pensacola, Florida. The three boys entered the home of Lena Bruner in the morning, while no one was there. McCants took some money and jewelry. The three boys then left. That afternoon, Ms. Bruner, an older white woman in her early seventies, was sexually assaulted in her home. Someone knocked on her door, and as she went to open it, another person who had entered through the back of her home grabbed her from behind. It was a violent and shocking rape; Ms. Bruner never even saw her attacker clearly. She could describe him only as “quite a dark colored boy” with “curly type hair.” Gulley, McCants, and Sullivan are all African American.

Within minutes of the assault, Gulley and McCants were apprehended together. McCants had Ms. Bruner’s jewelry on him. Facing serious felony charges, Gulley—who had an extensive criminal history involving at least one sexual offense—accused Joe of the sexual battery. Joe was not apprehended that day, but he voluntarily turned himself in the next day after learning that Gulley and McCants had implicated him. Joe admitted helping the older boys with the burglary earlier in the day but adamantly denied any knowledge of or involvement in the sexual assault.

The prosecutor chose to indict thirteen-year-old Joe Sullivan in adult court for sexual battery and other charges. There was no review of whether Joe should be tried in juvenile or adult court. Florida is one of a few states that allows the prosecutor to decide to charge a child in adult court for certain crimes and has no minimum age for trying a child as an adult.

At trial, Joe testified that he had participated in the earlier burglary but had not committed sexual battery. The prosecution relied primarily on the self-serving stories of McCants and Gulley, including Gulley’s claim that Joe had confessed the rape to him in a detention facility before trial. After implicating Joe, McCants was sentenced as an adult to four-and-one-half years and served just six months. Gulley, despite admitting his involvement in some twenty prior burglaries and a prior sex crime, was adjudicated and sentenced as a juvenile and spent only a short period of time in a juvenile detention facility.

The only physical evidence to implicate Joe was a latent partial palm-print that the state’s examiner testified matched him. This was consistent with Joe’s admitted presence in the bedroom prior to the rape. The police had collected seminal fluid and blood, but the state chose not to present it in court and then destroyed it before it could be tested by the defense. The prosecution also presented testimony from a police officer who got a “glimpse” of an African American youth running from the victim’s house after he observed Joe Sullivan at the police station being interrogated as the suspect in the sexual assault. He identified Joe as the fleeing youth.

Finally, the prosecution presented testimony from the victim, who, despite being coached through a rehearsal of her testimony outside the presence of the jury, could not affirmatively identify Joe Sullivan as the perpetrator. Joe was made to say in court what the victim remembered her assailant saying to her, but she testified that Joe’s voice “could very easily be” that of the perpetrator.

Joe was convicted by a six-person jury after a trial that lasted only one day. Opening statements began sometime after 9 A.M., and the jury returned its verdict at 4:55 P.M. Joe’s appointed counsel was later suspended from practice in Florida and never reinstated. The defense lawyer had filed no written pleadings and uttered no more than twelve transcript lines at sentencing. There was a great deal to say that was never said.

At the time of his arrest in 1989, Joe Sullivan was a thirteen-year-old boy with mental disabilities who read at a first-grade level, had experienced repeated physical abuse by his father, and had suffered severe neglect. His family had disintegrated into what state officials described as “abuse and chaos.” From age ten until his arrest, Joe had no stable home; he had no fewer than ten different addresses within this three-year period. He spent most of his time on the streets, where police stopped him for violations including trespassing, stealing a bike, and property crimes committed with his older brother and other older teens.

Joe had been brought to court and adjudicated on a single occasion, when he was twelve years old. The juvenile probation officer assigned to Joe’s case attributed his behavior to the fact that “he is easily influenced and associates with the wrong crowd.” She observed that “[i]t is apparent that Joe is a very immature naive person who is a follower rather than a leader” and that he has the potential to “be a positive and productive individual.” Joe’s record of mostly misdemeanor-level juvenile incidents—nearly all of which were nonviolent and which did not merit more than a single court adjudication in a two-year period—was viewed differently by the sentencing judge, who concluded that “the juvenile system has been utterly incapable of doing anything with Mr. Sullivan.” The court concluded that Joe had been “given opportunity after opportunity to upright himself and take advantage of the second and third chances he’s been given.” In truth, Joe was never given a second, much less a third, chance to “upright himself,” but he was nonetheless characterized at age thirteen as a “serial” or “violent recidivist” by prosecutors. The judge sentenced him to life imprisonment without the possibility of parole.

Despite numerous potentially meritorious grounds for appeal, Joe’s appointed appellate counsel filed an Anders brief—indicating his belief that there were no legitimate grounds for appeal and no credible basis to complain about the conviction or sentence—and was permitted to withdraw from representing Joe. Joe, just one year into his own adolescence, was sent to adult prison, where an eighteen-year nightmare began. In prison, he was repeatedly raped and sexually assaulted. He attempted suicide on multiple occasions. He developed multiple sclerosis, which eventually forced him into a wheelchair. Doctors later concluded that his neurological disorder might have been triggered by trauma in prison.

Another inmate housed with Joe wrote to us and described him as disabled, horribly mistreated, and wrongfully condemned to die in prison for a non-homicide crime at thirteen. In 2007, we wrote to Joe and discovered that he had no legal assistance and had spent the previous eighteen years in prison with no one to help him challenge his conviction or sentence. When I received Joe’s response to my letter, a scribbled note in the handwriting of a child, he could still only read at a third-grade level, despite the fact that he was thirty-one. He told me in his letter that he was “okay.” Then he wrote, “If I didn’t do anything, shouldn’t I be able to go home now? Mr. Bryan, if this is true, can you please write me back and come get me?” I wrote to Joe that we would look deeper into his case and that we were convinced that he had a credible claim of innocence. We attempted to prove his innocence through a motion for DNA testing, but because the state had destroyed the relevant biological evidence, the motion was denied. Disheartened, we decided to challenge Joe’s death-in-prison sentence as unconstitutionally cruel and unusual punishment.

I drove from Montgomery through South Alabama to Florida and then along a tangle of wooded back roads to get to the Santa Rosa Correctional Facility in the town of Milton to meet Joe for the first time. Santa Rosa County borders the Gulf of Mexico at the western end of the Florida Panhandle and had long been known for agriculture. Between 1980 and 2000, the county’s population doubled in size as the coastal areas attracted beach homes and resort properties. Many affluent families left Pensacola for Santa Rosa County, and military families from nearby Eglin Air Force Base settled there. But there was another industry in town—incarceration.

The Florida Department of Corrections built the prison to house 1,600 people in the 1990s, when America was opening prisons at a pace never before seen in human history. Between 1990 and 2005, a new prison opened in the United States every ten days. Prison growth and the resulting “prison-industrial complex”—the business interests that capitalize on prison construction—made imprisonment so profitable that millions of dollars were spent lobbying state legislators to keep expanding the use of incarceration to respond to just about any problem. Incarceration became the answer to everything—health care problems like drug addiction, poverty that had led someone to write a bad check, child behavioral disorders, managing the mentally disabled poor, even immigration issues generated responses from legislators that involved sending people to prison. Never before had so much lobbying money been spent to expand America’s prison population, block sentencing reforms, create new crime categories, and sustain the fear and anger that fuel mass incarceration than during the last twenty-five years in the United States.

When I arrived at Santa Rosa, I didn’t encounter any staff who were people of color, although 70 percent of the men incarcerated there were black or brown. This was a bit unusual; I frequently saw black and brown correctional officers at other prisons. I was subjected to an elaborate admission process and given a beeper to activate if I was ever threatened or distressed while inside the prison. I was escorted to a forty-by-forty-foot room where more than two dozen incarcerated men sat sadly while uniformed correctional staff buzzed in and out.

There were three six-foot-tall metal cages in the corner that couldn’t have been more than four feet by four feet. In all my years of visiting prisons, I had never seen such small cages used to hold a prisoner inside a secure prison. I wondered what danger the caged men presented that they couldn’t sit with the other incarcerated men on the benches. Two young men stood in each of the first two cages. In the third cage, which was wedged into the corner, sat a small man in a wheelchair. His wheelchair faced the back of the cage, so he could not look out into the room. I couldn’t see his face, but I was certain it was Joe. A correctional officer was constantly walking into the room and calling out a name, prompting one of the men to get up from his bench and follow the officer down a hallway where he would meet with an assistant warden or whomever they were scheduled to see. Finally, the officer called out, “Joe Sullivan, legal visit.” I walked over to the man and said that I was the attorney for the legal visit. He summoned two officers, who went to Joe’s cage to unlock it. The cage was so small that when they tried to remove Joe’s wheelchair, the spokes on the chair got caught on the cage, and they couldn’t budge it.

I stood there watching for several minutes while more officers got involved in an increasingly elaborate effort to dislodge Joe’s wheelchair from the tight cage. They pulled up on the wheelchair. Then they pushed down on the chair, raising the front off the ground, but this didn’t work, either. They tugged at the chair with loud grunts and tried to force it free, but it was completely stuck.

Two inmate trustees who had been mopping the floor stopped to watch the officers struggle with the wheelchair and the cage. They finally offered to help out, even though no one had asked for their input. The officers silently accepted the assistance of the inmates, but none of them could come up with a solution. As the staff became more frustrated by their inability to get Joe out of the cage, there was talk of using pliers and hacksaws, of putting the cage on its side with Joe in it. Someone suggested trying to lift Joe from his wheelchair to remove him without the chair, but both Joe and the chair were packed so tightly into the cage that no one could get in to move him.

I asked the guards why he was in the cage in the first place, which prompted a brusque response: “Lifer. All lifers have to be moved with higher security protocols.”

I couldn’t see Joe’s face while all of this was going on, but I could hear him crying. He occasionally made a whining sound, and his shoulders jerked up and down. When the staff proposed turning the cage on its side, he moaned audibly. Finally, the prisoner trustees suggested lifting the cage and tilting it slightly, which everyone agreed to try. The two trustees lifted and tilted the heavy cage, while three officers yanked Joe’s chair with a violent pull that finally dislodged it. The guards gave each other high fives, the inmate trustees walked away silently, and Joe sat motionlessly in his chair in the middle of the room, looking down at his feet.

I walked over to him and introduced myself. His face was tear-stained, and his eyes were red, but he looked up at me and began clapping his hands giddily. “Yeah! Yeah! Mr. Bryan.” He smiled and offered me both of his hands, which I took.

I wheeled Joe to a cramped office for our legal visit. He continued cheering quietly and kept clapping his hands in excitement. I had to argue with the attending prison guard for permission to close the door and talk confidentially with Joe. The officer eventually relented. Joe seemed to relax when I closed the door. Despite the terrifying start to the visit, he was extremely cheerful. I couldn’t shake the feeling that I was talking to a young child.

I explained to Joe how disappointed we were that the State had destroyed the biological evidence that might have allowed us to prove he was innocent through DNA testing. We had discovered that both the victim and one of his co-defendants had died. The other co-defendant would not say anything about what had really happened, making it extremely difficult for us to challenge Joe’s conviction. I then offered our new idea about challenging his sentence as unconstitutional, which might create another way for him to possibly go home. He smiled throughout my explanation, although it was clear he didn’t understand all of it. He had a legal pad on his lap, and when I finished he told me that he had prepared some questions for our visit.

During the entire visit I kept thinking about how he was much more enthusiastic and excited than I had expected him to be, given his history. When he told me about the questions he had prepared for me, he was practically bubbling. He explained that if he ever got out of prison he might want to be a reporter so “I can tell people what’s really going on.” He spoke with great pride when he announced that he was ready to ask his questions.

“Joe, I’ll be happy to answer your questions. Fire away.”

He read with some difficulty.

“Do you have children?” He looked up at me expectantly.

“No, I don’t have children. I have nieces and nephews, though.”

“What is your favorite color?” He once again smiled eagerly.

I chuckled, since I don’t have a favorite color. But I wanted to respond to him.

“Brown.”

“Okay, my last question is the most important.” He looked up at me briefly with big eyes and smiled. He then became serious and read his question.

“Who is your favorite cartoon character?” He was beaming when he looked at me.

“Please, tell the truth. I really want to know.”

I couldn’t think of anything and had to force myself to keep smiling. “Wow, Joe, I honestly don’t know. Can I think about that and get back to you? I’ll write you with my answer.” He nodded enthusiastically.

Over the next three months I received a flood of scrawled letters from Joe, one almost every day. The letters were usually short statements about what he’d eaten that day or what show he’d seen on television. Sometimes they were just two or three Bible verses he had copied. He would always ask me to write him back and let him know if his handwriting was improving. Sometimes the letters contained only a few words or a single question like, “Do you have friends?” We filed a petition to challenge Joe’s sentence as unconstitutionally cruel and unusual punishment. We knew that there would be procedural objections to filing it nearly twenty years after his sentencing, but we thought the Supreme Court’s recent decision banning the death penalty for juveniles could provide a basis for relief. In 2005, the Court recognized that differences between children and adults required that kids be shielded from the death penalty under the Eighth Amendment. My staff and I discussed how we might use the constitutional reasoning that banned the execution of children as a legal basis for challenging juvenile life-without-parole sentences.

We filed similar challenges to life-without-parole sentences in several other cases involving children, including Ian Manuel’s case. Ian was still being held in solitary confinement in Florida. We filed cases in Missouri, Michigan, Iowa, Mississippi, North Carolina, Arkansas, Delaware, Wisconsin, Nebraska, and South Dakota. We filed a case in Pennsylvania to help Trina Garnett, the girl who had been convicted for arson. She was still struggling at the women’s prison but was excited about the possibility of our doing something to change her sentence. We filed a case in California for Antonio Nuñez.

We filed two cases in Alabama. Ashley Jones was a fourteen-year-old girl who had been convicted of killing two family members when her older boyfriend tried to help her escape her family. Ashley suffered from a horrific history of abuse and neglect. When she was still a teenager serving her sentence at the Tutwiler Prison for Women, she started writing to me to ask about various legal decisions she’d read about in the newspaper. She never asked for legal assistance; she simply asked about what she’d read and expressed interest in the law and our work. She started sending notes congratulating me and EJI whenever we won a death penalty appeal. When we decided to challenge death-in-prison sentences imposed on children, I told her we might be able to finally challenge her sentence. She was thrilled.

Evan Miller was another fourteen-year-old condemned to die in prison in Alabama. Evan is from a poor white family in North Alabama. His difficult life was punctuated by suicide attempts that started at age seven when he was in elementary school. His parents were abusive and had drug addiction problems, so he was in and out of foster care, but he was living with his mother at the time of the crime. A middle-aged neighbor, Cole Cannon, had come over one night seeking to buy drugs from Evan’s mother. The fourteen-year-old Evan and his sixteen-year-old friend went to the man’s house with him to play cards. Cannon gave the teens drugs and played drinking games with them. At one point, he sent the boys out to buy more drugs. The boys returned and stayed over as it got later and later. Eventually the boys thought Cannon had passed out and tried to steal his wallet. Cannon was startled awake and jumped on Evan. The older boy responded by hitting the man in the head with a bat. Both boys started beating him and then set his trailer on fire. Cole Cannon died, and Evan and his friend were charged with capital murder. The older boy made a deal with prosecutors and got a parole-eligible life sentence, while Evan was convicted and sentenced to life imprisonment without parole.

I got involved in Evan’s case right after his trial and filed a motion to reduce his sentence, even though it was the mandatory punishment for someone convicted of capital murder who was too young to be executed. At a hearing, I asked the judge to reconsider Evan’s sentence in light of his age. The prosecutor argued, “I think he should be executed. He deserves the death penalty.” He then lamented that the law no longer authorized the execution of children because he just couldn’t wait to put this fourteen-year-old boy in the electric chair and kill him. The judge denied our motion.

When I visited Evan at the jail, we would have long talks. He loved to talk about anything he could think of when we were together to extend our visits. We talked about sports and exercise, we talked about books, we talked about his family, we talked about music, we talked about all the things he wanted to do when he grew up. He was usually animated and excited about something, although when he didn’t hear from his family for a while or had to deal with some bad incident at the prison, he would become extremely depressed. He couldn’t understand some of the hostile and violent behavior he saw from prisoners and the other people around him. He once told me that a guard had punched him in the chest just because he had asked a question about meal times. He started crying as he told me this because he just couldn’t understand why the officer had done that.

Evan was sent to the St. Clair Correctional Facility, a maximum-security adult prison. Not long after he first arrived, he was attacked by another prisoner, who stabbed him nine times. He recovered without serious physical problems but was traumatized by the experience and disoriented by the violence. When he talked about his own act of violence, he seemed deeply confused about how it was possible he could have done something so destructive.

Most of the juvenile lifer cases we handled involved clients who shared Evan’s confusion about their adolescent behavior. Many had matured into adults who were much more thoughtful and reflective; they were now capable of making responsible and appropriate decisions. Almost all of the cases involved condemned people marked by the tragic irony that they were now nothing like the confused children who had committed a violent crime; they had all changed in some significant way. This made them distinct from most of my clients who committed crimes as adults. That I was involved in the cases of teens who’d committed violent crimes was itself ironic.

I was sixteen years old, living in southern Delaware. I was headed outside one day when our phone rang. I watched my mother answer it as I strolled past her. A minute later I heard her scream inside the house. I ran back inside and saw her lying on the floor, sobbing, “Daddy, Daddy” while the phone’s receiver dangled from its base. I picked it up; my aunt was on the line. She told me that my grandfather had been murdered.

My grandparents had been separated for many years, and my grandfather had for some time lived alone in the South Philadelphia housing projects. It was there that he was attacked and stabbed to death by several teens who had broken into his apartment to steal his black-and-white television set. He was eighty-six years old.

Our large family was devastated by his senseless murder. My grandmother, who had separated from my grandfather many years earlier, was especially unnerved by the crime and his death. I had older cousins who worked in law enforcement and sought information about the boys who committed the crime—I remember them being more astonished than vengeful about the immaturity and lack of judgment the juveniles had demonstrated. We all kept saying and thinking the same thing: They didn’t have to kill him. There was no way an eighty-six-year-old man could have stopped them from getting away with their paltry loot. My mother could never make sense of it. And neither could I. I knew kids at school who seemed out of control and violent, but still I wondered how someone could be so pointlessly destructive. My grandfather’s murder left us with so many questions.

Now, decades later, I was starting to understand. In preparing litigation on behalf of the children we were representing, it was clear that these shocking and senseless crimes couldn’t be evaluated honestly without understanding the lives these children had been forced to endure. And, in banning the death penalty for juveniles, the Supreme Court had paid great attention to the emerging body of medical research about adolescent development and brain science and its relevance to juvenile crime and culpability.

Contemporary neurological, psychological, and sociological evidence has established that children are impaired by immature judgment, an underdeveloped capacity for self-regulation and responsibility, vulnerability to negative influences and outside pressures, and a lack of control over their own impulses and their environment. Generally considered to encompass ages twelve to eighteen, adolescence is defined by radical transformation, including the obvious and often distressing physical changes associated with puberty (increases in height and weight and sex-related changes) as well as progressive gains in the capacity for reasoned and mature judgment, impulse control, and autonomy. As we later explained to the Court, experts had come to the following conclusion: “A rapid and dramatic increase in dopaminergic activity within the socioemotional system around the time of puberty” drives the young adolescent toward increased sensation-seeking and risk-taking; “this increase in reward seeking precedes the structural maturation of the cognitive control system and its connections to areas of the socioemotional system. A maturational process that is gradual, unfolds over the course of adolescence, and permits more advanced self-regulation and impulse control … The temporal gap between the arousal of the socioemotional system, which is an early adolescent development, and the full maturation of the cognitive control system, which occurs later, creates a period of heightened vulnerability to risk taking during middle adolescence.” These biological and psychosocial developments explain what is obvious to parents, teachers, and any adult who reflects on his or her own teenage years: Young teens lack the maturity, independence, and future orientation that adults have acquired. It seemed odd to have to explain in a court of law something so fundamental about childhood, but the commitment to harsh punishments for children was so intense and reactionary that we had to articulate these basic facts.

We argued in court that, relative to that of adults, young teenage judgment is handicapped in nearly every conceivable way: Young adolescents lack life experience and background knowledge to inform their choices; they struggle to generate options and to imagine consequences; and, perhaps for good reason, they lack the necessary self-confidence to make reasoned judgments and stick by them. We argued that neuroscience and new information about brain chemistry help explain the impaired judgment that teens often display. When these basic deficits that burden all children are combined with the environments that some poor children experience—environments marked by abuse, violence, dysfunction, neglect, and the absence of loving caretakers—adolescence can leave kids vulnerable to the sort of extremely poor decision making that results in tragic violence.

We were able to make persuasive arguments about the differences between children and adults, but that wasn’t the only obstacle to relief. The Supreme Court’s Eighth Amendment precedent requires not only that a particular sentence offend “evolving standards of decency” but also that it be “unusual.” In the cases where the Supreme Court had previously granted relief under the Eighth Amendment, the number of sentences challenged usually totaled fewer than a hundred or so nationwide. In 2002, there were about a hundred people with mental retardation facing execution when the Court banned the death penalty for people with intellectual disability. In 2005, there were fewer than seventy-five juvenile offenders on death row when the Court banned the death penalty for kids. Even smaller numbers accompanied the Court’s decisions banning the death penalty for non-homicide offenses.

Our litigation strategy was complicated by the fact that more than 2,500 children in the United States had been sentenced to life imprisonment without parole. We decided to focus on two subsets of kids to help the Court grant relief if it wasn’t ready to ban all life sentences without parole for juveniles. We focused on the youngest kids, who were thirteen and fourteen. There were fewer than a hundred children under the age of fifteen who had been sentenced to life imprisonment without parole. We also focused on the children who, like Joe Sullivan, Ian Manuel, and Antonio Nuñez, had been convicted of non-homicide offenses. Most juveniles sentenced to life imprisonment without parole had been convicted of homicide crimes. We estimated there were fewer than two hundred juvenile offenders serving life without parole for non-homicide offenses.

We argued that the ban on the death penalty had implications because a death-in-prison sentence is also a terminal, unchangeable, once-and-for-all judgment on the whole life of a human being that declares him or her forever unfit to be part of civil society. We asked courts to recognize that such a judgment cannot rationally be passed on children below a certain age because they are unfinished products, human works in progress. They stand at a peculiarly vulnerable moment in their lives. Their potential for growth and change is enormous. Almost all of them will outgrow criminal behavior, and it is practically impossible to detect the few who will not. They are “the products of an environment over which they have no real control—passengers through narrow pathways in a world they never made,” as we wrote in our brief.

We emphasized the incongruity of not allowing children to smoke, drink, vote, drive without restrictions, give blood, buy guns, and a range of other behaviors because of their well-recognized lack of maturity and judgment while simultaneously treating some of the most at-risk, neglected, and impaired children exactly the same as full-grown adults in the criminal justice system.

Initially, we had little success with these arguments. Joe Sullivan’s judge ruled that our claims were “meritless.” In other states, we were met with similar skepticism and resistance. Eventually we exhausted options provided by the state of Florida in Joe Sullivan’s case and filed an appeal in the U.S. Supreme Court. In May 2009, the Supreme Court agreed to review the case. It felt like a miracle. Review in the Supreme Court is rare enough, but the possibility that the Court might create constitutional relief for children sentenced to die in prison made this opportunity even more thrilling. It was a chance to change the rules across the country.

The Court granted review in Joe’s case and in another Florida case that involved a sixteen-year-old teen convicted of a non-homicide and sentenced to life with no parole. Terrance Graham was from Jacksonville, Florida, and had been on probation when he was accused of trying to rob a store. As a result of his new arrest, the judge revoked Terrance’s probation and sentenced him to die in prison. Because both Joe’s case and the Graham case involved non-homicides, it was likely that if we won a favorable ruling from the Court, it would only apply to life-without-parole sentences imposed on juveniles convicted of non-homicides, but that was an exciting possibility.

The cases generated a lot of national media attention. When we filed our brief in the U.S. Supreme Court, national organizations joined us and filed amicus briefs urging the Court to rule in our favor. We received support from the American Psychological Association, the American Psychiatric Association, the American Bar Association, the American Medical Association, former judges, former prosecutors, social workers, civil rights groups, human rights groups, even some victims’ rights groups. Former juvenile offenders who had later become well-known public figures filed supporting documents, including very conservative politicians like former U.S. senator Alan Simpson from Wyoming. Simpson had spent eighteen years in the Senate, including ten as the Republican whip, the second-ranking senator in his party. He had also been a former juvenile felon. He had been adjudicated as a juvenile delinquent when he was seventeen, for multiple convictions for arson, theft, aggravated assault, gun violence, and, finally, assaulting a police officer. He later confessed: “I was a monster.” His life didn’t begin to change until he found himself imprisoned in “a sea of puke and urine” following another arrest. Senator Simpson knew firsthand that you cannot judge a person’s full potential by his juvenile misconduct. Another brief was filed on behalf of former child soldiers whose terrifying behavior after being forced into violent African militias made the crimes of our clients seem much less aggravated by comparison. Yet these former child soldiers, rescued from their armies, had mostly recovered and been widely embraced at American colleges and universities, where many of them had thrived.

In November 2009, after the briefs were filed in Joe’s case and the Graham case, I went to Washington for my third U.S. Supreme Court oral argument. There was a lot more media attention and national news coverage than in any of my earlier cases. The Court was packed. There were hundreds of people outside the Court as well. A wide assortment of children’s rights advocates, lawyers, and mental health experts were watching closely when we asked the Court to declare life-without-parole sentences imposed on children unconstitutional.

During the argument, the Court was feisty, and it was impossible to predict what the justices were going to do. I told the Court that the United States is the only country in the world that imposes life imprisonment without parole sentences on children. I explained that condemning children violates international law, which bans these sentences for children. We showed the Court that these sentences are disproportionately imposed on children of color. We argued that the phenomenon of life sentences imposed on children is largely a result of harsh punishments that were created for career adult criminals and were never intended for children—which made the imposition of such a sentence on juveniles like Terrance Graham and Joe Sullivan unusual. I also told the Court that to say to any child of thirteen that he is fit only to die in prison is cruel. I had no way of knowing if the Court had been persuaded.

I had promised Joe, whose name and case were constantly being discussed on television, that I would visit him after the argument in the Supreme Court. At first Joe was very excited by all the attention his case was generating, but then the guards and other prisoners started making fun of him and treating him more harshly than usual. They seemed to resent the attention he was getting. I told him that now that the argument was over, things would calm down.

For weeks he’d been working on memorizing a poem he said he’d written. When I asked if he had really written it, he acknowledged that another inmate had helped him, but his excitement about the poem was undiminished. He had repeatedly promised that he would recite it for me when I visited him after the argument. When I arrived at the prison, Joe was wheeled into the visitation area without any difficulty. I talked to him about the argument in Washington, but he was much more interested in preparing me to hear his poem. I could tell he was nervous about whether he’d be able to do it. I cut short my report about his case so I could hear his poem. He closed his eyes to concentrate and then began to recite the lines: Roses are red, violets are blue.

Soon I’ll come home to live with you.

My life will be better, happy I’ll be,

You’ll be like my Dad and my family.

We’ll have fun with our friends and others will see,

I’m a good person … uh … I’m a good person … I’m … a … good … person … uh …

He couldn’t remember the last line. He looked up at the ceiling, then at the floor straining to remember. He squeezed his eyes, trying to force the last words to mind, but they wouldn’t come. I was tempted to supply him a line just to help him get through it—“so be happy for me” or “now people will see.” But I realized that creating a line for him wasn’t the right thing to do, so I just sat there.

Finally, he seemed to accept that he wouldn’t remember the line. I thought he’d be upset, but when it was clear that he wouldn’t remember the last line, he just started laughing. I smiled at him, relieved. For some reason it became funnier and funnier to him that he couldn’t think of the last line—until he abruptly stopped laughing and looked at me.

“Oh, wait. I think the last line … actually, uh, I think the last line is just what I said. The last line is just ‘I’m a good person.’ ”

He paused, and I looked at him skeptically for several seconds. I said it before I thought about it. “Really?”

I should have stopped, but I continued, “We’ll have fun with our friends and others will see, I’m a good person?”

He looked at me for an instant with a serious expression, and then we both broke out simultaneously in wild laughter. I wasn’t sure I should be laughing, but Joe was laughing, which made me think it was okay. Honestly, I couldn’t help it. In a few seconds we were both in hysterics. He was rocking in his wheelchair from side to side with laughter, clapping his hands. I couldn’t stop laughing, either; I was trying hard to stop but failing. We looked at each other as we laughed. I watched Joe, who laughed like a little boy, but I saw the lines in his face and even the emergence of a few prematurely gray hairs on his head. I realized even while I laughed that his unhappy childhood had been followed by unhappy, imprisoned teenage years followed by unhappy incarceration through young adulthood. All of a sudden it occurred to me what a miracle it was that he could still laugh. I thought about how wrong the world is about Joe Sullivan and how much I wanted to win his case.

We both finally calmed down. I tried to speak as sincerely as I could manage. “Joe, it’s a very, very nice poem.” I paused. “I think it’s beautiful.”

He beamed at me and clapped his hands.