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October 26, 2009

"The Case Against Juvenile Life Without Parole: Good Policy and Good Law"

The title of this post is the title of this new Findlaw commentary by Kristin Henning, who is Co-Director of Juvenile Justice Clinic and Professor of Law at Georgetown University Law Center.   As the piece's title suggests, the author has a clear view of how the Graham and Sullivan juve LWOP cases ought to be resolved by the Supreme Court.  Here are snippets from the commentary:

In Sullivan and Graham, the Court is not considering whether juvenile offenders should be punished — or punished severely — for their crimes.  The Court is considering the narrow question of whether juvenile offenders should be afforded meaningful opportunities for parole.

Youth offenders, like all offenders, should be held accountable for their crimes — even by life imprisonment. Regardless of the Court's decisions in Sullivan and Graham, the very worst juvenile offenders still may spend the rest of their lives in prison. An opportunity for parole is just that: a chance for a prisoner to show strong evidence of rehabilitation.  If a juvenile offender does not demonstrate change and is deemed a threat to public safety, the parole board will not grant parole.  Victims' rights have long been protected through the parole hearing process, with victims retaining a right to participate and be heard before any decision on parole is granted....

When a child is robbed of the chance to reform, our country is robbed as well.  The overwhelming majority of juvenile offenders can and do become thriving, productive citizens.  This is not an unattainable ideal — it is an irrefutable truth, supported by the research of acclaimed scientists and the stories of inspiring youths like Kareem Watts.

This fall, the Supreme Court has the chance to follow the law — and ensure that Joe Sullivan's and Terrance Graham's path becomes the road not taken for other juvenile offenders.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

October 26, 2009 at 07:20 PM | Permalink


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Is a blog by a lawyer, journalism or lawyering? If lawyering is the scope of practice covered by a lawyer license, a blog is journalism. As discussed elsewhere, journalism has an ethic that differs from that of lawyering. Here are its provisions.


The lawyer is openly an advocate. He can be because the other side has its own advocate to promote its interests.

The selection of facts and opinions that support only one side represents biased journalism and substandard practice. That idea applies to lawyers writing law review articles as well as to law bloggers representing themselves as mere presenters of newsworthy items rather than of personal opinion. The latter, once disclaimed, may be as biased as one pleases.

Does the article summarized here represent adequate journalism practice? It presents the conclusions of follow up studies of kids who wrote graffiti or shoplifted or used to get into a lot of fights as applicable to the kids who get LWOP for rape, murder, and pillaging.

All such new parolees should live in halfway houses on the streets of the authors of such proposals, including those of the Justices of the Supreme Court.

Posted by: Supremacy Claus | Oct 27, 2009 5:09:06 AM

Because blacks carry a six fold heavier burden of murder victimization, ending LWOP will send the message of further devaluation of the black murder victim by the Supreme Court. Any such decision will have a disparate impact on black murder victims. I bet no lawyer makes this discrimination argument. The lawyer hierarchy remains as racist today as the lawyers who founded and led the KKK, and who personally profited from their hatred of black folks. The lawyer will not reveal that most lynchings were of wealthy blacks and Jews, whose assets were then transferred to whites because the local prosecutors and judges immunized this practice.

I can't believe the author of the article is a black female. I can't believe she failed to spot this issue. I believe she is biased herself, probably a feminist, a hate philosophy. Most murder victims of these juveniles are young black males. They may rot in her world. She is such a sap and a running dog of white racist, lawyer hierarchy rent seeking. She has the moral standing of a black waitress at a catered KKK meeting.

Blacks do not have an excess amount of criminality. They even have a slightly lower rate of drug abuse than whites from their relative lack of disposable wealth. The black murder rate must be explained by the refusal of the police to protect their neighborhoods, being deterred by the vile, criminal lover lawyer. Then the courts definitely devalue the black victim in meting out punishment. The racism of the lawyer hierarchy explains much of the race disparity in crime victimization.

The other factor is their high rate of bastardy. This is government policy, to destroy the family, a competitor to government for authority. Blacks being more government dependent, have a high rate of bastardy, markedly raising the risk of crime victimization and perpetration.

A nice British review citing many American studies.


Posted by: Supremacy Claus | Oct 27, 2009 5:19:05 AM

I find the argument that most juvenile offenders reform, so we need to give every juvenile another chance to be a bit silly. Isn't the same true for most adult offenders? We don't seem to have much trouble regarding such sentences for adults.

And as Federalist has expressed before I find the idea of ordering a state to implement (rather than keep) a right to parole to be extrmmely troublesome. And what if instead of LWOP a state were to switch to 75 year sentences? That issue is why I think if the offenders win either of these cases the remedy will be LWP, courts have been extremely reluctant to step in and say that a sentence within a statutory range is invalid.

Posted by: Soronel Haetir | Oct 27, 2009 11:53:26 AM

The last straw in Graham's case was a home invasion robbery committed 34 days before his 18th birthday. Is a sentence a violation of the nation's fundamental law when it would have been perfectly legit for a crime committed 34 days later?

If the legislature wants to draw a line at the 18th birthday on the "you have to draw the line somewhere" theory, fine. For a court to read such an arbitrary limit into the words "cruel and unusual punishment" is quite a stretch.

Posted by: Kent Scheidegger | Oct 27, 2009 12:32:53 PM

The theory behind the juvenile justice system which is the fundamental basis for its existence is that juveniles can be rehabilitated. This is not the same for adults. Psychological and scientific research studies have proven that the vast majority of juveniles can be rehabilitated. However, there's always going to be a sociopath or two who were just born deviant and truly are incapable of rehabilitation.

Posted by: Natalie | Oct 27, 2009 1:40:11 PM

"However, there's always going to be a sociopath or two who were just born deviant and truly are incapable of rehabilitation."

Or six, or 100 or 1000.

Posted by: federalist | Oct 27, 2009 2:20:46 PM

Professor Hennings writes an excellent op-ed but a poor brief -- at least if the Eighth Amendment is to be understood by reference to its text and its meaning for the last 200 years or so.

Posted by: Bill Otis | Oct 27, 2009 11:14:29 PM


I am not aware of any constitutional rule that requires that a juvenile system even exist. And even if such does exist it may very well help us if we distinguish between shoplifters, vandals of various types and other fairly minor criminality and those disposed to committing major acts of violence.

If SCOTUS strikes down LWOP sentences for juveniles (even if limited to non-homicide cases) they will enter an arena that makes Aprendi/Booker/Ritter/Gall and so on look easy by comparison.

Posted by: Soronel Haetir | Oct 28, 2009 12:37:49 AM

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