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

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. POL‘Y & 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, 516–19 (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, 32–33

(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.