Washington Law Review


Graham on the Ground

March 01, 2012 | 87 Wash. L. Rev. 51

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.

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