Misconstruing Graham & Miller.

AuthorDrinan, Cara H.

INTRODUCTION

In the last three years, the Supreme Court has decreed a sea change in its juvenile Eighth Amendment jurisprudence. In particular, in Graham v. Florida and Miller v. Alabama, the Court struck down a majority of the states' juvenile sentencing laws by outlawing life without parole ("LWOP") for juveniles who commit non-homicide offenses and by mandating individualized sentencing for juveniles who commit even the most serious murders. (1) An examination of state laws and sentencing practices since these rulings, however, suggests that the Graham and Miller rulings have fallen on deaf ears.

After briefly describing what these two decisions required of the states, in this Essay, I outline the many ways in which state actors have failed to comply with the Court's mandate. Finally, I map out a path for future compliance that relies heavily upon the strength and agility of the executive branch.

GRAHAM & MILLER: A MANDATE FOR CHANGE

In its 2010 Graham decision, the Supreme Court held that the Eighth Amendment forbids the sentence of LWOP for juveniles who commit non-homicide offenses. In Graham, the Court struck down laws in thirty-nine jurisdictions that permitted juveniles to receive LWOP for some non-homicide offenses. (2) In addition, the Graham Court signaled that, whatever sentence is imposed on a juvenile offender, the juvenile must be afforded a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." (3)

Two years later, the Court further developed its "kids are different" (4) rationale in the Miller case by holding that even juveniles convicted of homicide offenses must receive an individualized sentencing hearing at which their youth and any other relevant mitigating factors must be taken into account. In Miller, the Court struck down the laws in at least twenty-nine states that permitted juveniles to be tried as adults and automatically sentenced to LWOP if convicted. (5)

These decisions required proactive responses from each branch of state governments. State courts were required to determine which previously-sentenced inmates benefited from these decisions, what shape resentencing hearings would take, and what alternative sentences were appropriate for inmates currently serving LWOP. (6) State legislatures were required to fill gaps where judges were stymied by outdated legislation. For example, in Florida, lawmakers had effectively abolished parole in the 1980s, leaving no mechanism in place for reviewing an inmate's sentence once LWOP had been imposed. (7) Moreover, in all states, lawmakers were required to reexamine juvenile incarceration practices in order to meet the Graham declaration that inmates be afforded the "chance to demonstrate maturity and reform." (8) The Court sent executive actors a message, too: children are categorically different in the eyes of the law at sentencing, and prosecutorial practices should reflect that interpretation of the Constitution. (9)

STATES ACTORS ARE MISCONSTRUING GRAHAM & MILLER

Legislative Responses

While Graham and Miller necessarily required a great deal from state actors, a survey of reform at the state level suggests resistance to the Court's decisions or at least unwillingness to attend to the legal issues these cases raised. To begin, as of August 2013, only eleven state legislatures had enacted laws to comport with Miller, (10) and for the most part, such reform has not occurred in the states most directly impacted by the Graham and Miller rulings. While there are more than 2,500 inmates nationwide serving LWOP for crimes they committed as a child, the bulk of these inmates are in five states: Pennsylvania, Louisiana, Michigan, California, and Florida. (11) Among those states, California, Louisiana and Pennsylvania have enacted post-Miller legislation. It is particularly disappointing that Florida has not enacted comprehensive legislation in the wake of the Graham decision. As the focal point of the Graham decision, (12) Florida has been uniquely on notice of the need to reform its juvenile sentencing practices, and yet its legislators have been unable to do so. One could say the same of Michigan. Because Michigan houses the second largest population of juvenile LWOP inmates nationwide, (13) it too has been on notice for several years that its sentencing practices were out of step with the country and with the Supreme Court. Yet, as discussed below in greater detail, both state legislatures have failed to comprehensively address juvenile sentencing reform. As a result of this inertia, Florida and Michigan have all but courted judicial activism on the part of state and federal judges.

Among the states that have altered their statutory sentencing schemes after the Supreme Court's decisions, only California's new law reflects the vision of the Graham and Miller Courts. California's Fair Sentencing for Youth Act went into effect in January 2013. (14) The new law allows inmates sentenced to LWOP for crimes they committed before the age of eighteen to seek a resentencing hearing. (15) In March 2013, a California state senator introduced an additional juvenile reform bill that would enable convicted juveniles to receive a parole hearing based on different criteria than those used in standard parole hearings. (16) California is on the right path toward enforcing the Graham and Miller decisions because its approach does not merely modify grudgingly its sentencing scheme to formally comply with the Supreme Court's recent Eighth Amendment decisions. Instead, its recent legislation tries to give meaningful effect to the substantive principles that animate the Graham and Miller decisions.

In contrast, legislation recently enacted in Pennsylvania, the state that houses the most juvenile LWOP inmates in the nation, reflects an anemic reading of Graham and Miller. Pennsylvania's new legislation permits an LWOP sentence and simply adds less punitive alternatives for juveniles convicted of first and second-degree murder. (17) For example, under the new law, a Pennsylvania juvenile convicted of first-degree murder may be sentenced either to LWOP or a minimum of thirty-five years to life if the defendant is between fifteen and seventeen. (18) Similarly, Louisiana's revised law requires juveniles convicted of murder to serve a mandatory minimum of thirty-five years before parole eligibility. (19) Both laws fail to give meaningful impact to the Miller Court's admonition that...

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