Robert J. Smith and G. Ben Cohen (The Charles Hamilton Houston Institute for Race and Justice and The Justice Center's Capital Appeals Project) have posted Redemption Song: Graham v. Florida and the Evolving Eighth Amendment Jurisprudence (Michigan Law Review First Impressions, Vol. 108, p. 86, 2010) on SSRN. Here is the abstract:
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In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits a sentence of life without parole ("LWOP") for a juvenile under eighteen who commits a non-homicide offense. For Terrance Graham, who committed home-invasion robbery at seventeen, the decision does not mean necessarily that he someday will leave the brick walls of Florida's Taylor Annex Correctional Institution. Unlike previous Eighth Amendment decisions, such as Roper v. Simmons, where the Court barred the death penalty for juveniles, this new categorical rule does not translate into automatic relief for members of the exempted class: "A State need not guarantee the offender eventual release," Justice Kennedy wrote for the majority, "but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term." Graham offers the possibility of redemption but not its guarantee.
Pragmatists are understandably skeptical.Yet beyond the narrow application of this rule to the small class of child-offenders, Graham contains the ingredients to be of transformative significance to the Supreme Court's Eighth Amendment jurisprudence. First, the opinion - employing a method of comparative analysis typically reserved for its capital cases - cements a proportionality requirement in the Court's non-capital Eighth Amendment jurisprudence. Second, the Court uses for the first time a method of constitutional elucidation that draws two separate and seemingly parallel lines of jurisprudence together to articulate an independent constitutional principle. Third, the Court articulates the "possibility of redemption" as an essential consideration arising from evolving standards of decency. These three components - proportionality, constitutional triangulation, and the notion that people and their propensities are not static - suggest that Graham could have far greater significance in the life of the law than in the life of child defendants toiling, for instance, in the fields of the Florida Penitentiary.
