2010] CHALLENGING JUVENILE TRANSFER LAWS 101
advocacy on behalf of children has been sobering.
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
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.
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.‖).
. 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.
. 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).
. 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.