Graham on the Ground

Article excerpt

Abstract: In Graham v. Florida, the U.S. Supreme Court held that it is unconstitutional to sentence a non-homicide juvenile offender to life in prison without parole. While states need not guarantee release to these juvenile offenders, they cannot foreclose such an outcome at the sentencing phase. Scholars have identified several long-term ramifications of Graham, including its likely influence on juvenile sentencing practices and on retributive justice theory. As yet unexamined, though, are the important and thorny legal questions that Graham raises for state judges and lawmakers in the very short term. To whom does the Graham decision apply? What is the appropriate remedy for those inmates? What affirmative obligations does the Graham decision impose upon the states? This Article endeavors to answer these and other pressing questions that confront judges and legislators today. Part I briefly describes the Graham opinion and surveys what scholars to date have identified as salient aspects of the decision. Part II seeks to provide a blueprint for lower courts and legislatures implementing the Graham decision. Specifically, it argues that: (1) Graham is retroactively applicable to all inmates who received a life-without-parole sentence for a juvenile non-homicide crime; (2) those inmates entitled to relief under Graham require effective representation at their resentencing hearings; (3) judges presiding over resentencing hearings should err in favor of rehabilitation over retribution to comport with the spirit of Graham; and (4) long-term legislative and executive action are necessary in order to make Graham's promise a reality. Finally, Part III situates Graham in the context of our nation's ongoing criminal justice failings. While the sentence challenged in Graham ought to be viewed as a symptom of such failings, the Graham decision may offer a window of hope for reform on that same front.

INTRODUCTION .................................................................................. 52

I. THE GRAHAM DECISION ............................................................ 55

A. The Graham Opinion ............................................................. 55

B. Early Graham Scholarship ..................................................... 61

II. IMPLEMENTING GRAHAM ON THE GROUND ....................... 64

A. Graham Applies Retroactively ............................................... 64

B. Graham Requires the States to Provide Effective Representation at Resentencing Hearings .............................. 69

C. Judges Sentencing Juveniles After Graham Should Err in Favor of Rehabilitation over Retribution ............................... 72

D. Legislative and Executive Action Are Needed to Make Graham's Promise a Reality .................................................. 75

1. Parole Policy ............................................................... 75

2. States Should Facilitate Graham's Promise Through Conditions of Confinement .......................... 78

III. GRAHAM GOING FORWARD ...................................................... 82

A. Graham Reflects Broader Criminal Justice Failings .............. 82

B. Graham and Plata: The U.S. Supreme Court May Be Willing to Intervene in State Criminal Justice Matters that Are Egregious and Long-Standing .................................. 85

CONCLUSION ...................................................................................... 90

INTRODUCTION

In Graham v. Florida,1 the U.S. Supreme Court held that it is unconstitutional to sentence a non-homicide juvenile offender to life in prison without parole.2 The Court was careful to note that "[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime," but it must provide the offender with "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. …

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