Using Graham v. Florida to Challenge Juvenile Transfer Laws

Author:Neelum Arya
Position::J.D., UCLA School of Law; M.P.A., Harvard University; Research & Policy Director for the Campaign for Youth Justice (CFYJ)
Pages:99-155
SUMMARY

Introduction - I. Graham and eighth amendment jurisprudence - A. How Terrance Graham Received a Life without Parole Sentence - B. The Changing Nature of Eighth Amendment Jurisprudence - II. The collateral holdings of Graham - A. Stare Decisis and Holdings - B. The Court’s Perspective on Rehabilitation - C. The Court’s Perspective on Adult Decisionmakers in the Justice System - III. Using Graham... (see full summary)

 
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Using Graham v. Florida to Challenge Juvenile
Transfer Laws
Neelum Arya*
INTRODUCTION
Five years after the Supreme Court abolished the juvenile death
penalty in Roper v. Simmons,
1
the Court handed down its decision
in Graham v. Flor ida
2
abolishing juvenile life without parole
sentences (JLWOP) in nonhomicide cases. Until this ruling, ―death
is different‖ ruled the day.
3
Now, Graham has solidified the rule
the Court first established in Thompson v. Oklahoma and reiterated
in Roper––juveniles are different too.
4
Copyright 2010, by NEELUM ARYA.
* J.D., UCLA School of Law; M.P.A., Harvard University; Research &
Policy Director for the Campaign for Youth Justice (CFYJ ), an organization
dedicated to ending the practice o f prosecuting, sentencing, and incarcerating
youth in the adult cri minal j ustice system. The ideas presented here should not
be viewed as a positio n of CFYJ. The author wishes to thank t he Louisiana Law
Review, the John D. and Catherine T. MacArthur Foundation, and the George
W. and Jean H. Pugh Institute for Justice for spo nsoring the symposium on
juvenile justice. The author also thanks Sarah Baker, Katayoon Majd, Christine
Rapillo, Addie Rolnick, Liz Ryan, and Christopher Slobogin for their comments
and Brittany Brown, Kelly Latta, and Megan McQuiddy for their research
assistance.
1
. 543 U.S. 551 (2005).
2
. 130 S. Ct. 2011 (2010).
3
. Id. at 2046 (Thomas, J., disse nting) (―For the first t ime in its histor y, the
Court declares an entire class of offenders immune from a non-capital sentence
using the categorical approach it previously reserved for death penalty cases
alone.‖); see a lso Rachel E. B arkow, The Cour t of Life a nd Dea th: The Two
Tracks of Constitutional Sentencing Law and the Case for Un iformity, 107
MICH. L. REV. 1145 (2009) (explaining the differe nces between capital and non-
capital sentencing r eview); Erwin Chemerinsky, The Con stitution and
Punishment, 56 STAN. L. REV. 1049 (2004) (critiquing the Court‘s death penalty
and prison sentence cases).
4
. In Thompson v. Okla homa, 487 U.S. 815 (1988), a plurality of judges
found that all 15-year-old offenders lacked the culpability neces sary for the
death penalty because:
Inexperience, less education, and less intelligence make the teenager
less able to evaluate the consequences of his or her conduct while at the
same time he or she is much more apt to be motivated by mere emotion
or peer pressure than is an adult. The reasons why juveniles are not
trusted with the privileges and responsibilities of an adult also explain
why their irresponsible conduct is not as morally rep rehensible as that
of an adult.
100 LOUISIANA LAW REVIEW [Vol. 71
The new categorical rule established by Gra ham has the
potential to profoundly impact the field of juvenile justice and
youth policies as a whole.
5
While Graham explicitly provides only
a ―meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation‖
6
for all persons currently serving
JLWOP sentences for nonhomicide crimes,
7
it remains to be seen
what ripple effects this case will generate across the criminal
justice system.
8
Dedicated lawyers across the country are working
on behalf of Terrance Graham and Joe Sullivan,
9
and the other
individuals serving JLWOP sentences for nonhomicide crimes, to
ensure that this recent victory is not illusory. Many lawyers are
contemplating how to broaden the reach of Graham to abolish life
without parole sentences for adults. Scholars are examining the
impact of this latest decision on Eighth Amendment jurisprudence
overall. This Article takes a different approach and examines
Graham from an ex ante perspective focusing on how it may be
used to reform the juvenile and criminal justice systems by
eliminating the ability to prosecute youth as adults in the first
place.
10
Just as Roper paved the way for Graham, hopefully Graham
foreshadows significant changes in the legal landscape related to
youth prosecuted as adults.
11
The result of litigation-based
Id. at 835. The following year, in Stanford v. Kentucky, 492 U.S. 361 (1989), a
majority upheld the death penalty for 16 and 17 year olds in a decision that was
overturned by the Roper decision. See supra note 1 and accompanying text.
5
. See, e.g., Elisa Poncz, Rethinking Child Advocacy After Roper v.
Simmons: “Kids Are Just Different” and “Kids Are Like Adults” Advocacy
Strategies, 6 CARDOZO PUB. L. POLY & ETHICS J. 273 (2008) (explaining and
applying the tensions between special rules for youth in the criminal justice
context to areas such as medical decisionmaking, emancipation, marriage,
parenting, education, and the Internet).
6
. Graha m, 130 S. Ct. at 2030.
7
. The Court identified a total of 129 individuals in 12 jurisdictions:
Florida, California, Delaware, Iowa, Louisiana, Mississippi, Nebraska, Ne vada,
Oklahoma, South Carolina, Virginia, and in the federal system. Id. at 2024.
8
. See Barkow, supra note 3, at 1145 (―If, as a matter of constitutional law,
death were no longer different, our criminal justice syste m would be almost
certainly for the better.‖).
9
. The companion case, Sullivan v. Florida, was ―dismissed as
improvidently granted.‖ 130 S. Ct. 2059, 2059 (2010). Ho wever, Joe Sullivan
will benefit from the Gr aham ruling declaring a categorical ban on JLWOP
sentences for nonhomicide crimes.
10
. For a description of juvenile transfer laws, see infra notes 53 60 and
accompanying text.
11
. Graha m is not likely to produce widespread reforms by itse lf. See, e.g.,
Michael McCann & Helena Silverstein, Rethinking La w’s “Allurements”: A
2010] CHALLENGING JUVENILE TRANSFER LAWS 101
advocacy on behalf of children has been sobering.
12
Some scholars
have suggested that the Supreme Court victories that established
new constitutional protections in the civil rights and criminal
justice contexts actually helped create the political environment
responsible for the punitive criminal justice policies of the 1970s
and beyond.
13
Despite this pessimistic history, this Article explains
why lawyers working on behalf of children have reasons to be
optimistic about the potential for Gra ham to generate significant
reforms on behalf of all children accused of committing crimes.
14
Seventeen-year-old Terrance Graham asked the Court to
declare that his JLWOP sentence, imposed by a Florida trial court
judge after he had violated the terms of his probation stemming
from an earlier armed burglary charge, was unconstitutional under
the Eighth Amendment. The Court had three potential ways to
resolve his case. First, the Court could have found that the JLWOP
sentence as applied to Graham did not violate the Eighth
Relational Analysis of Social Movement Lawyers in the United States, in CAUSE
LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES
261 (Austin Sarat & St uart Scheingold eds., 1998) (―Many scholars in recent
years have examined the relationship between law and the politics of social
reform advocacy i n the United States. The bulk of this scholarship has been
highly circumspect regarding the progressive potential of legal tactics, legal
institutions, and cause lawyers for social reform movements.‖).
12
. Compare ROBERT H. MNOOKIN, IN THE INTEREST OF CHILDREN:
ADVOCACY, LAW REFORM, AND PUBLIC POLICY 43 (1985), and GERALD R.
ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE?
(1991), and STAURT A. SCHEINGOLD, THE POLITICS OF RIGHTS: LAWYERS,
PUBLIC POLICY, AND POLITICAL CHANGE (1974), with SHERYL DICKER,
STEPPING STONES: SUCCESSFUL ADVOCACY FOR CHILDREN (1990), and BLDG.
BLOCKS FOR YOUTH INITIATIVE, NO TURNING BACK: PROMISING APPROACHES
TO REDUCING RACIAL AND ETHNIC DISPARITIES AFFECTING YOUTH OF COLOR IN
THE JUSTICE SYSTEM (20 05), availab le at http://www.buildingblocksforyouth.
org/noturningback/ntb_fullreport.pdf.
13
. See, e.g., Sara Sun B eale, You’ve Come a Long Way, Baby: Two Waves
of Juvenile J ustice Reforms As Seen from J ena, Louisiana, 44 HARV. C.R.-C.L.
L. REV. 511, 51619 (2009); Barry C. Feld, A Century of Juvenile Justice: A
Work in Pr ogress or a Revolution That Fa iled?, 34 N. KY. L. REV. 189 (2007 );
William J. Stuntz, The Political Constitution of Criminal J ustice, 119 HARV. L.
REV. 780, 827 (2006); David Tanenhaus, The Evolution of Tran sfer Out of the
Juvenile Court, in THE CHANGING BORDERS OF JUVENILE JUSTICE 13, 3233
(Jeffrey Fagan & Franklin E. Zimring eds., 2000) (discussing how the Kent and
In re Gault decisions pro viding juveniles the same procedural rights had the
unintended effect of eroding the rehabilitative idea of juvenile justice).
14
. The author encourages further discussio n over the potential unintended
consequences of using some of the arguments presented in this ar ticle (e.g.,
returning youth who have committed the most serious crimes to the juvenile
system may har m children charged with le ss serious crimes), although no
attempt is made to raise them here.

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