Nov. 9 (Bloomberg) -- U.S. Supreme Court justices signaled they are divided over the constitutionality of life sentences without parole for youths convicted of crimes other than murder.

Hearing arguments today in two Florida cases, the justices clashed over the wisdom of extending a 2005 decision that outlawed the execution of murderers who were under 18 at the time of the crime. Chief Justice John Roberts and Justice Samuel Alito tried to limit that reasoning to the capital punishment context, saying several times that “death is different.”

Other justices suggested that Florida may be violating a constitutional ban on cruel and unusual punishment and is treating young offenders more harshly than other jurisdictions. Of the 111 juveniles who have been sentenced to life without parole for a crime other than murder, 77 are in Florida, according to a study cited by lawyers challenging the practice.

“What is the state’s interest in keeping the defendant in custody for the rest of his life if he has been rehabilitated and is no longer a real danger?” said Justice Anthony Kennedy, a frequent swing vote on the court and the author of the 2005 ruling. “It seems to me the deterrence interest is quite minimal if you assume rehabilitation.”

The court is considering appeals by Joe Harris Sullivan, who was convicted of raping an elderly woman when he was 13, and Terrance Jamar Graham, who was found to have violated his probation by taking part in an armed robbery at the age of 17.

Arbitrary Line?

Roberts and Alito said they are concerned about imposing an arbitrary line limiting the sentences that can be imposed on juveniles. Alito asked Graham’s lawyer about two Florida cases, including one in which the 12-year-old son of a rape victim was forced to perform sex acts on her.

“The worst case you can possibly imagine, that person must at some point be made eligible for parole, that’s your argument?” Alito asked the lawyer, Bryan Gowdy.

Alito and Roberts said any challenges to the reasonableness of a sentence should be considered on a case-by-case basis.

Sonia Sotomayor, the newest justice, voiced concerns about the position offered by Florida Solicitor General Scott Makar. His stance meant that under Florida law “a 5-year-old could be put away for life,” she said.

Surprised Everyone

Justice Ruth Bader Ginsburg said that the judge in the Graham case “surprised everyone in the courtroom with the sentence,” which went beyond the 30 years recommended by the prosecution.

Sullivan, convicted of raping and robbing a 72-year-old woman in 1989, is one of only two inmates -- both in Florida -- sentenced to life without parole for a non-homicide crime they committed at age 13. He was convicted in 1989, and one issue in his case is whether he waited too long to press his constitutional argument.

The Supreme Court has said the central question under the Constitution’s cruel and unusual punishments clause is whether a “national consensus” exists against a sentence in particular circumstances.

In the 2005 case, a 5-4 decision, Kennedy wrote that those under 18 are generally less mature and more susceptible to peer pressure than adults. “Juvenile offenders cannot with reliability be classified among the worst offenders,” he wrote.

The cases are Sullivan v. Florida, 08-7621, and Graham v. Florida, 08-7412.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

Last Updated: November 9, 2009 13:06 EST