GRAHAM ON THE GROUND
Cara H. Drinan(fn*)
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,(fn1) the U.S. Supreme Court held that it is unconstitutional to sentence a non-homicide juvenile offender to life in prison without parole.(fn2) 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."(fn3) Dissenting in Graham, Justice Thomas objected to the Court's newly crafted categorical Eighth Amendment rule on several grounds, including the concern that the decision was destined to raise a host of vexing collateral legal issues: The Court holds that "[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime," but must provide the offender with "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." But what, exactly, does such a "meaningful" opportunity entail? When must it occur? And what Eighth Amendment principles will govern review by the parole boards the Court now demands that States empanel? The Court provides no answers to these questions, which will no doubt embroil the courts for years.(fn4)
As Justice Thomas predicted, lower courts and legislatures have struggled with how to implement the decision since Graham was decided in 2010. To begin, there is the question of who benefits from the Graham decision.(fn5) Courts are split on the question whether Graham is retroactively applicable,(fn6) while recent changes in state law have enlarged the pool of inmates to whom Graham applies.(fn7)
At the same time, judges must determine what sentences are constitutional after Graham for non-homicide juvenile offenders. The Graham Court held that a judge may not impose a life-without-parole sentence on a non-homicide juvenile offender, but what about a parole-eligible life sentence? Or a sentence of seventy-five years? Since the Court announced the Graham decision, close to twenty juvenile inmates in Florida have been resentenced, and there has been a wide range of sentences imposed: while one inmate received a resentence of 30 years, another received a resentence of 170 years.(fn8) Despite Justice Alito's contention that "[n]othing in the Court's opinion affects the imposition of a sentence to a term of years without the possibility of parole,"(fn9) the logic of the majority's opinion suggests that there must, in fact, be an upper limit on what sentences will comport with Graham.(fn10) State court judges are faced with discerning what that upper limit is, and, as one Florida judge presiding over a juvenile sentencing said, "It's a huge dilemma."(fn11)
State lawmakers are also grappling with an appropriate response to Graham. For example, in Florida, where most of the inmates affected by the Graham decision are incarcerated, the state legislature had previously eliminated parole for most felony convicts.(fn12) At the very least, Graham suggests that parole needs to be available for juvenile offenders under state law, and states housing Graham inmates(fn13) need to craft an appropriate parole protocol specific to juvenile offenders. Florida Representative Michael Weinstein proposed legislation that would give juvenile defendants affected by the Graham decision the opportunity for parole after twenty-five years, assuming the inmates met certain criteria, such as good behavior in prison and obtaining a GED.(fn14) The Florida Prosecuting Attorneys Association similarly suggested giving juvenile convicts the possibility of parole after twenty years, but then-Governor Charlie Crist rejected both proposals as too lenient.(fn15) A "Graham Law" is pending before Florida's legislature, but lawmakers have not been able to agree on the meaning of terms such as "maturity, rehabilitation and parole," all of which are crucial to pending legislation.(fn16)
Even if legislators can agree on a law to guide judges in their sentencing decisions, the Graham Court's aspiration demands additional measures. In particular, the Graham decision placed great emphasis on the theme of rehabilitation and the promise of possible, if not eventual, release.(fn17) Justice Kennedy wrote that "[t]he juvenile should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential."(fn18) Without even the possibility of future release, he further explained, juvenile offenders have no incentive to "become . . . responsible individual[s]" or to engage in the "considered reflection which is the foundation for remorse, renewal, and rehabilitation."(fn19) In light of this language, the Court's decision imposes certain affirmative obligations on the states. Not only must the states leave open the possibility of eventual release, but they must also create the opportunity for reflection and maturity through appropriate conditions of confinement for juvenile offenders.(fn20) This is a daunting task, as most states are barely able to ensure the physical safety of their juvenile inmates,(fn21) let alone facilitate their healthy maturation.
In these ways, Justice Thomas was correct: the Graham decision has raised a host of collateral legal issues that state judges, legislatures, and policymakers need to address. These issues-the tasks of implementing Graham on the ground-are the focus of this Article.
This Article proceeds in three parts. 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...
