"Juvenile Life Without Parole (JLWOP): An Antidote to Congress’s One-Way Criminal Law Ratchet?"

The title of this post is the title of this forthcoming article by Scott Hechinger, which appears to be among the first major pieces of scholarship seeking to take stock of the LWOP landscape in the wake of the Supreme Court's Graham decision. As the abstract reveals, the piece also has some interesting things to say about how Congress deals with sentencing issues:

Despite Justice Kennedy’s implicit approval of life-without-parole sentences for crimes committed before the age of 18 (“JLWOP”) in Roper v. Simmons, the issue of JLWOP has since generated a wave of attention and advocacy from scholars, bloggers, and journalists, human rights organizations, state legislatures, and international bodies, victims and children’s rights groups, and federal and state courts.  Symbolic of, and perhaps in reaction to, the increased momentum of the JLWOP debate post-Roper, the Supreme Court granted review of the constitutionally of JLWOP for non-homicides in Sullivan v. Florida and Graham v. Floridawith the court ultimately barring JLWOP for non-homicide crimes in Graham. However, nearly 93% (over 2300) of the JWLOPers are incarcerated for homicide and their sentences remain unaffected.

In the post GrahamJLWOP legal landscape, the critical question now is: what next? This article will seek to provide an answer.

Given Congress’s virtually non-existent history of “leniency legislation,” it is not at all surprising that scant advocacy and scholarly attention has focused on the potential for Congressional action on the issue of JLWOP.  Those familiar with federal criminal legislation have serious cause to doubt federal intervention in this field. This article, however, will argue there are significant reasons to believe JLWOP can and very well might be the issue to buck the timeless “one-way ratchet” of federal criminal law legislation.

Congress has already moved on the issue of JLWOP.  The Juvenile Justice Accountability and Improvement Act (“JJAIA”) — introduced in the House of Representatives in 2007 and again in 2009 — proposes to use Congress's spending power to condition federal funds allocated for crime control on states allowing for meaningful parole or supervised release opportunities for individuals convicted of crimes committed before the age of eighteen.  While the legislation has yielded two substantively rich hearings, and some advocacy attention, neither bill has made it out of committee, though the sponsors plan to reintroduce it and continue to do so until it is passed.

The quicksand in which the JJAIA is currently mired is rooted in the same, considerable obstacles facing any Congressional attempt at leniency legislation.  First, there is an entrenched political process bias against leniency legislation in Congress grounded in the fear of appearing “soft on crime,” the perception — both real and perceived — that public opinion opposes leniency, and the existence of vast inequalities in interest group power. Second, whether for political cover or out of legitimate Constitutional concern, federalism costs associated with federal intrusion into the state’s traditional control over crime and punishment disincentivize Congressional action.

This article will use the JJAIA and the issue of JLWOP to evaluate and respond to these classic obstacles to federal leniency legislation.  I will argue first, that the political process bias that has doomed leniency legislation in the past is actually far weaker in the context of JLWOP.  Second, I will ultimately conclude that the passage of the JJAIA is both necessary and proper and Congress’s federalism concerns are overstated in the context of JLWOP.

Whether or not Congress will actually act to pass the JJAIA is not a question I can possibly answer nor one on which I will focus.  Assuming the status quo of Congressional reluctance and advocate skepticism, Congress will probably not pass this legislation, at least not in the near future. This paper will also not advocate for the abolition of JLWOP.  The goal of this paper is far more modest.  The aim is to highlight for criminal justice reformists the potential for Congress to pass smart criminal law legislation and to illustrate to Congressmen and women that ending JLWOP will neither be political suicide nor sound the death knell of federalism, as we know it.