Graham's Gatekeeper and Beyond: Juvenile Sentencing and Release Reform in the Wake of Graham and Miller

54 Pages Posted: 18 Jan 2015 Last revised: 21 Jan 2015

See all articles by Megan Annitto

Megan Annitto

University of Idaho School of Law

Date Written: January 14, 2015


In Graham v. Florida and Miller v. Alabama, the Supreme Court imposed limits on the use of life sentences for juveniles. The decisions require states and the federal government to craft new procedures when and if courts levy life and lengthy sentences upon juveniles. But the Court’s decisions are not self-actualizing and there is little within them that creates a bright line about the substance or procedures states should follow. This article focuses on three of the questions that states face in the implementation of the Court’s decisions. First, who is the best gatekeeper for the release of these offenders on the back end of sentencing — the judiciary, parole boards, or something new? Second, what procedural and substantive guidance should states provide for these chosen gatekeepers? And, finally, what role will modern risk assessment tools play in this decision making?

The answers to these questions must fairly balance public safety with the possibility of redemption the Court recognized is inherent in childhood. They will also affect the public’s perception of legitimacy in the release process. State and the federal government answers to those questions are even more pressing given the applicability of Graham’s rationale to a larger category of offenders — the American Bar Association and American Law Institute both recommend the creation of some form of sentencing review for all juveniles sentenced under an adult regime.

Despite the importance of these questions, in the early aftermath of the Court’s opinions, legislative and judicial attention has primarily focused on issues related to the length of sentences that should be alternatives to life terms, the time at which review should occur when life sentences are imposed, and retroactivity. But some pioneering states have passed legislation tinkering with broader reform and legislatures are rapidly taking up the issues presented. Some courts have broadened the reach of Graham and Miller, striking down juvenile life without parole altogether. But many legislatures are embattled over decisions about whether to enact only the perceived minimal requirements of Graham and Miller or whether to extend the Court’s reasoning to broader release policies affording back end sentencing review at reasonable time periods. Choices that provide for expanded but careful opportunities for relief can counterweigh some of the harsh results of juvenile transfer laws that have brought, and continue to bring, increasing numbers of juveniles under the rubric of adult sentencing schemes in ways that were not necessarily intentional or desirable. The Article discusses the implications of the chosen gatekeeper for release and discusses the accompanying procedural and substantive considerations that states and the federal government should consider upon implementation.

Keywords: Graham v. Florida, Miller v. Alabama, juvenile justice, sentencing, parole, second look sentencing, sentence modification, criminal law, punishment, juvenile justice policy, sentencing reform, Model Penal Code

JEL Classification: K14, K42

Suggested Citation

Annitto, Megan, Graham's Gatekeeper and Beyond: Juvenile Sentencing and Release Reform in the Wake of Graham and Miller (January 14, 2015). Brooklyn Law Review , Vol. 80, No. 1, 2014. Available at SSRN:

Megan Annitto (Contact Author)

University of Idaho School of Law ( email )

P.O. Box 442321
Moscow, ID 83844-2321
United States

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