By Tamar Birckhead, June 28 2012
As Professor Dan Filler (Drexel) points out so well in a recent post on Miller v. Alabama on the Faculty Lounge, the decision’s direct effect on those currently serving juvenile life-without-parole (JLWOP) may be less dramatic than first imagined. Sentencing rehearings during which mitigating evidence is considered could lead merely to a reimposition of LWOP or a lengthy term of years sentence (40, 50, 60 years) that is the practical equivalent of LWOP. This is not to diminish the value of giving these 2100 prisoners an opportunity for review, reduction of their sentences, and the possibility of eventual release., although as Professor Filler also observed, much will depend there on the quality of defense counsel.
Instead, as I wrote two years ago in regard to Graham v. Florida, which struck down the practice of JLWOP for non-homicides, the ultimate impact of Miller will be seen in its precedential effect:
What is the opinion’s significance for Eighth Amendment jurisprudence? Although the United States Supreme Court has never before applied a categorical rule to the noncapital punishment context, Graham could provide the basis for challenging JLWOP sentences for homicides as well as for homicide-related offenses such as felony–murder. Justice Kennedy’s view that an offender’s youth is mitigating and not aggravating could be extended to argue that if the youth did not kill or have the intent to kill, or is otherwise not death-eligible, no penological interest is served in allowing for JLWOP. Likewise, Graham could ultimately support barring term-of-year sentences that are the practical equivalent of JLWOP, such as ones that only provide for parole review after thirty- or forty-years’ imprisonment. If JLWOP is in essence a sentence mandating that young offenders die in prison, it may be indistinguishable from decades-long incarcerative sentences that do not allow for even the possibility of release until the offender is well into middle-age. Moreover, now that juveniles have been categorically exempted from JLWOP for nonhomicides, courts may be confronted with challenges to life without parole sentences from adult defendants who are psychologically incapacitated, mentally retarded, or even acutely drug addicted. If their transgressions are found to be less morally reprehensible than those who are not similarly impaired, the argument that they too are unfit objects of the state’s sentencing laws may require additional categorical exemptions from certain types of punishment. Given that an estimated 2,500 juveniles are serving JLWOP in the United States, of whom only 129 have been sentenced for nonhomicide crimes, the long-term significance of Graham may be found in its precedential effect rather than its direct impact.
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Citation: Tamar R. Birckhead, Graham v. Florida: Justice Kennedy’s Vision of Childhood and the Role of Judges, 6 DUKE J. CONST. L. & PUB. POL’Y 66–80 (2010).
The post above is reprinted with permission from the Juvenile Justice Blog.
Tamar Birckhead is an associate professor of law at the University of North Carolina at Chapel Hill where she teaches the Juvenile Justice Clinic, the Criminal Lawyering Process, and Juvenile Courts and Delinquency. Her research interests focus on issues related to juvenile justice policy and reform, criminal law and procedure, indigent criminal defense, and the criminalization of poverty. Prior to joining the UNC School fo Law faculty in 2004, Birckhead practiced for ten years as a public defender in Boston, Massachusetts. She received her B.A. in English Literature from Yale University and a J.D. with honors from Harvard Law School.
*Photo at top by Flickr user steakpinball.
Updated: February 08 2018