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

88 Pages Posted: 27 Jun 2010 Last revised: 13 Sep 2011

See all articles by Scott Hechinger

Scott Hechinger

New York University School of Law

Date Written: September 8, 2011


In Graham v. Florida, the Supreme Court barred the imposition of life-without-parole sentences on individuals convicted of nonhomicide offenses committed before the age of eighteen. Graham is most notable, however, for what it does not do. Despite language theoretically broad enough to encompass all juveniles sentenced to life-without-parole, Graham’s holding is explicitly limited only to individuals convicted of nonhomicide crimes. By limiting its holding in this way, the Court declined to address the fates of the vast majority of juveniles - 93%, or more than 2,300 persons - who are serving life-without-without parole sentences for homicide.

Far from ending the debate about the propriety and constitutionality of juvenile life-without-parole (“JLWOP”), Graham only intensified it. For JLWOP abolitionists, therefore, the critical question in the post-Graham legal landscape is how to extend Graham beyond the relatively limited context of nonhomicide crimes. In other words, what happens next? This article will seek to provide an answer.

Neither the courts nor the states seem likely to, or capable of, extending Graham beyond its limited scope. This leaves Congress. Scant advocacy and scholarly attention has focused on the potential for Congressional action on the issue of JLWOP. Given Congress’s virtually non-existent history of “leniency legislation,” this is not at all surprising. Those familiar with the process and politics of federal criminal lawmaking have serious and legitimate cause to doubt federal legislation on JLWOP. This article, however, will argue there are significant reasons to believe JLWOP could buck the timeless “one-way ratchet” of federal criminal law legislation.

Congress has already entered the JLWOP fray, but legislation that would condition federal funds on states’ abolition of JLWOP is stalled because of the same, considerable obstacles facing any Congressional attempt at leniency legislation. First, there is an entrenched political process bias against leniency legislation in Congress. This bias is grounded in the fear of appearing “soft on crime,” the notion - both real and perceived - that public opinion opposes leniency, and the 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 states’ traditional control over crime and punishment disincentivize Congressional action.

This article will use the issue of JLWOP to evaluate and respond to these classic obstacles to federal leniency legislation. The goal of the article is to highlight for criminal justice reformists the potential for Congress to pass leniency legislation and to illustrate to Congressmen that ending JLWOP will neither be political suicide nor sound the death knell of federalism as we know it. Such legislation, I argue, is what could come next, after Graham.

Keywords: Graham v. Florida, Juvenile, Justice, Criminal, Life-Without-Parole, Life without parole, Graham, JLWOP, LWOP, Criminal Justice, sentencing law, political process, election, international law, human rights

Suggested Citation

Hechinger, Scott, Juvenile Life Without Parole: An Antidote to Congress’s One-Way Criminal Law Ratchet? (September 8, 2011). New York University Review of Law & Social Change, Vol. 35, No. 2, p. 407, 2011, Available at SSRN: https://ssrn.com/abstract=1631030

Scott Hechinger (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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