What states should do to provide a meaningful opportunity for review and release: recognize human worth and potential.

AuthorGlynn, Gerard

Introduction The Court Considers Meaningful Opportunity The Court's Discussion in Graham The Court Continues to Recognize the Science of Adolescent Development Reward Sensitivity--Evaluating Risks Emotional Regulation and Peer Pressure Impulse Control The AACAP's Policies on Juvenile Life Without Parole States' Response Since the Graham Decision Implementation of Graham's Mandate by State and Appellate Courts Legislative Responses to Graham Parole--Children Should be Evaluated Differently Children are Different--Prisons are the Same The State's Role in Preventing Development Guidance Should be Given to Decision Makers at Reviews The Offense The Child Offender The Juvenile Offender as an Adult A Model Statute Conclusion INTRODUCTION

The United States Supreme Court in Graham v. Florida (3) recognized that children are different and should be treated differently at the sentencing phase of the criminal justice system. In Graham, the Court relied on a categorical analysis that, up until Graham was decided, had only been applied in the context of the death penalty. (4) In deciding which analysis to use, Justice Kennedy reviewed the Court's long standing precedents in Eighth Amendment jurisprudence, stating that the Court must consider whether or not the punishment is disproportionate to the crime, not whether or not the punishment is barbaric. (5) Justice Kennedy rejected the proportionality test related to the length of the term of the sentence, (6) favoring instead the categorical approach to restrictions on the death penalty. (7) Having chosen this analysis is critical because it provides the Court with the opportunity to focus on the characteristics of the juvenile defendant. By considering the characteristics of children under the age of eighteen in the context of a determinate sentence for non-homicide crimes, the Court extends the proposition that children are different.

The concept that children and adults differ was first expressed by the Court in Roper v. Simmons, (8) but only applied in the context of death penalty cases. In Roper, the Court discusses the broad differences between children and adults, namely, that children are malleable and less culpable because they have not yet finished the brain development process. (9) Thus, in Graham, the Court reiterates the following:

Roper [sic] established that because juveniles have lessened culpability they are less deserving of the most severe punishments. (10) As compared to adults, juveniles have a 'lack of maturity and an underdeveloped sense of responsibility'; they 'are more vulnerable or susceptible to negative influences and outside pressures including peer pressure]'; and their characteristics are 'not as well formed.' (11) Graham mandates that states provide defendants an opportunity for release if they are serving life in prison for a non-homicide offense committed as a child. (12) The Court says the non-homicide juvenile offender should be allowed to demonstrate maturity and rehabilitation. (13) However, the Court provides little guidance on what courts or states should consider in making that determination or what mechanism for which to provide it.

The absence of specific criteria or guidelines for lower courts, parole systems, or states to consider makes it a difficult task. The Court emphasizes that experts cannot determine whether or not a child's actions are characteristics that "reflec[t] unfortunate yet transient immaturity or rare irreparable corruption." (14) Additionally, the Court notes that representing children generally is a challenge because children do not trust adults and do not understand the court process, further allowing children to make poor decisions during the criminal justice process. (15) However, the fact that the Court chose to focus on the characteristics of children perhaps is in itself an extensive framework to take into consideration while sentencing or reviewing sentences. Decision makers should consider a wide range of issues concerning all developmental and individual aspects of the child. This would expand the nature of court reviews or parole hearings.

Graham creates many questions about what meaningful opportunity for release should encompass in its implementation. (16) However, Justice Kennedy notes that the child has no hope of restoration through clemency, which is rare. (17) Thus, there is a clear suggestion that an opportunity for release will be through parole or resentencing.

After the Graham decision, states with statutory parole systems addressed Graham by converting the life without parole sentence into life with the possibility of parole. (18) The possibility of release through a parole system arguably provides a "meaningful opportunity to obtain release." (19) However, there are some states, such as Florida, where parole has been eliminated. (20) In those states, there is no logical way to review life or long sentences through either a parole system (21) or procedural post-conviction process within the court system itself. Accordingly, the states have to develop a new system.

This article begins with a detailed analysis of the Court's mandate in Graham, (22) followed by a review of the science that influenced the Court's decision (23) and an analysis of what states have done so far to comply with the mandate. (24) Then, the article explores existing parole rules, (25) followed by a discussion on the challenges minors face in proving their ability to rehabilitate despite the prison system's complicity in preventing such development. (26) Based on the foregoing discussion and analysis, the authors propose a model statute that states should consider adopting for purposes of implementing the mandates in the Graham opinion. (27)



The Court makes it clear in its mandate: "A State is not required to guarantee eventual freedom to a juvenile offender convicted of a non-homicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." (28) It is also made clear that this cannot be an illusory opportunity; there must be "some realistic opportunity to obtain release before the end of that term." (29) It is explicitly left up to the states to decide how to provide defendants seeking release with a meaningful opportunity to demonstrate their maturity and rehabilitation. (30)

The Court acknowledges that "[flew, perhaps no, judicial responsibilities are more difficult than sentencing. The task is usually undertaken by trial judges who seek with diligence and professionalism to take account of the human existence of the offender and the just demands of a wronged society." (31) Recognizing the demands of trial judges, the Court gives some guidance in its opinion about what should be considered.

It is the Court's opinion that solely focusing on the depravity of the crime is insufficient to deny release. (32) States must provide more criteria for review than the severity of the offense when considering early release of inmates convicted when they were children. (33) In Roper v. Simmons, the Court rejected the notion that a jury instruction allowing the child's age to be considered as a mitigating factor was enough to comply with the Eighth Amendment. (34) The Court found "that an unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even when the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death." (35)

The Court suggests some characteristics that demonstrate maturity based on the transition from adolescence to adulthood, which include "remorse, renewal, and rehabilitation." (36) The Court also found the notion that one should be able to exhibit the effect of atonement and the lessons learned from mistakes by virtue of transition into adulthood compelling. (37)

Unfortunately, each review mechanism--be it a court or parole system--embodies subjectivity (38) and potential disproportionate measurements of the relevant characteristics of the individual, especially in light of its own acknowledgement that experts do not have all the answers. (39) Moreover, there is significant debate about the meaning of rehabilitation and the potential lack of complicity on the part of the criminal justice system to prevent maturity. The reality that counsel representing a child in the adult system may not be able to effectively represent the client before a court, while simultaneously protecting the child client's rights and providing mitigating information to the court at the sentencing phase of the proceedings, is another issue receiving much contention. (40)


The scientific research relied upon by the Court in both Roper and Graham concludes that, for a variety of interrelated reasons, adolescents as a group cannot be expected to behave or make decisions in the same way as adults. "Roper established that because juveniles have lessened culpability they are less deserving of the most severe punishments. As compared to adults, juveniles have a 'lack of maturity and an underdeveloped sense of responsibility....'" (41)

To illustrate its point, the American Academy of Child and Adolescent Psychiatry (AACAP) (42) begins each amicus brief with the same introduction to its Summary of Argument:

The adolescent's mind works differently from ours. Parents know it. This Court has said it. Legislatures all over the world have presumed it for decades or more. And scientific evidence now sheds light on how and why adolescent behavior differs from adult behavior. (43) As the AACAP points out, the Supreme Court has written several decisions prior to Roper and Graham that discuss the...

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