Proportionality and parole

University of Pennsylvania Law Review

Volumn 160, Issue 6, 2012, Pages 1745-1788

  Bierschbach, Richard A ^a  

^a YESHIVA UNIVERSITY   (United States)

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EID: 84863457118     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Review

References (281)

1. See, e.g., John "Evan" Gibbs, Jurisprudential Juxtaposition: Application of Graham v. Florida to Adult Sentences, 38 FLA. ST. U. L. REV. 957, 957 (2011) (characterizing Graham as a "landmark decision" that "breathed new life" into proportionality analysis);
2. Scott R. Hechinger, Juvenile Life Without Parole: An Antidote to Congress's One-Way Criminal Law Ratchet?, 35 N.Y.U. REV. L. & SOC. CHANGE 408, 409-10 (2011) ("The decision is unquestionably landmark. .");
3. Michael M. O'Hear, The Beginning of the End for Life Without Parole?, 23 FED. SENT'G REP. 1, 1-2 (2010) (noting the large volume of expert commentary on Graham within five months of the decision and that "Graham adopted a new methodology for reviewing Eighth Amendment challenges to noncapital sentences").
4. see also John D. Castiglione, Qualitative and Quantitative Proportionality: A Specific Critique of Retributivism, 71 OHIO ST. L.J. 71, 80 (2010) ("It is time. to pronounce the body of Eighth Amendment quantitative proportionality dead. .").
5. See, e.g., Neelum Arya, Using Graham v. Florida to Challenge Juvenile Transfer Laws, 71 LA. L. REV. 99 (2010);
6. Rachel E. Barkow, Categorizing Graham, 23 FED. SENT'G REP. 49 (2010);
7. Mary Berkheiser, Death Is Not So Different After All: Graham v. Florida and the Court's "Kids Are Different" Eighth Amendment Jurisprudence, 36 VT. L. REV. 1 (2011);
8. William W. Berry III, More Different Than Life, Less Different Than Death: The Argument for According Life Without Parole Its Own Category of Heightened Review Under the Eighth Amendment After Graham v. Florida, 71 OHIO ST. L.J. 1109 (2010);
9. Tamar R. Birckhead, Graham v. Florida: Justice Kennedy's Vision of Childhood and the Role of Judges, 6 DUKE J. CONST. L. & PUB. POL'Y 66 (2010);
10. Cara H. Drinan, Graham on the Ground, 87 WASH. L. REV. 51 (2012);
11. Richard S. Frase, Graham's Good News-And Not, 23 FED. SENT'G REP. 54 (2010);
12. Youngjae Lee, The Purposes of Punishment Test, 23 FED. SENT'G REP. 58 (2010);
13. Dan Markel, May Minors Be Retributively Punished After Panetti (and Graham)?, 23 FED. SENT'G REP. 62 (2010);
14. Terry A. Maroney, Adolescent Brain Science After Graham v. Florida, 86 NOTRE DAME L. REV. 765 (2011);
15. Eva S. Nilsen, From Harmelin to Graham-Justice Kennedy Stakes Out a Path to Proportional Punishment, 23 FED. SENT'G REP. 67 (2010);
16. Richard M. Ré, Can Congress Overturn Graham v. Florida?, 34 HARV. J.L. & PUB. POL'Y 367 (2010);
17. Alice Ristroph, Hope, Imprisonment, and the Constitution, 23 FED. SENT'G REP. 75 (2010);
18. Alison Siegler & Barry Sullivan, "'Death is Different' No Longer": Graham v. Florida and the Future of Eighth Amendment Challenges, 2010 SUP. CT. REV. 327;
19. Carol S. Steiker & Jordan M. Steiker, Graham Lets the Sun Shine In: The Supreme Court Opens a Window Between Two Formerly Walled-Off Approaches to Eighth Amendment Proportionality Challenges, 23 FED. SENT'G REP. 79 (2010);
20. The Supreme Court, 2009 Term-Leading Cases, 124 HARV. L. REV. 179, 209, 215-19 (2010);
21. Leslie Patrice Wallace, "And I Don't Know Why It Is That You Threw Your Life Away": Abolishing Life Without Parole, The Supreme Court in Graham v. Florida Now Requires States to Give Juveniles Hope for a Second Chance, 20 B.U. PUB. INT. L.J. 35 (2010);
22. Robert Smith & G. Ben Cohen, Redemption Song: Graham v. Florida and the Evolving Eighth Amendment Jurisprudence, 108 MICH. L. REV. FIRST IMPRESSIONS 86 (2010), http://www.michiganlawreview.org/assets/fi/108/smithcohen.pdf.
23. See Laura I. Appleman, Retributive Justice and Hidden Sentencing, 68 OHIO ST. L.J. 1307, 1307 (2007) ("Largely concealed from the public eye, components of hidden sentencing such as probation, parole, and post-release supervision have been ignored by both scholars and policy-makers.");
24. Jeremy Travis & Kirsten Christiansen, Failed Reentry: The Challenges of Back-End Sentencing, 13 GEO. J. ON POVERTY L. & POL'Y 249, 249-50 (2006) (noting that back-end sentencing "has largely escaped the attention of scholars, advocates, legislators and analysts"). Recent and insightful exceptions can be found in the work of David Ball, Steven Chanenson, and Michael O'Hear.
25. See W. David Ball, Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentences, and the Meaning of Punishment, 109 COLUM. L. REV. 893 (2009)
26. [hereinafter Ball, Heinous, Atrocious, and Cruel];
27. W. David Ball, Normative Elements of Parole Risk, 22 STAN. L. & POL'Y REV. 395 (2011)
28. [hereinafter Ball, Normative Elements];
29. Steven L. Chanenson, Guidance from Above and Beyond, 58 STAN. L. REV. 175, 186-89 (2005)
30. [hereinafter Chanenson, Guidance from Above];
31. Steven L. Chanenson, The Next Era of Sentencing Reform, 54 EMORY L.J. 377, 432-40 (2005)
32. [hereinafter Chanenson, The Next Era];
33. Michael M. O'Hear, Beyond Rehabilitation: A New Theory of Indeterminate Sentencing, 48 AM. CRIM. L. REV. 1247 (2011).
34. See, e.g., Douglas A. Berman & Stephanos Bibas, Making Sentencing Sensible, 4 OHIO ST. J. CRIM. L. 37, 40 (2006) (noting that "structural and procedural principles for sentencing have rarely received sustained attention").
35. A noteworthy exception to this is the explosion of recent scholarship on the implications of Apprendi v. New Jersey, 530 U.S. 466 (2000), for the institutional design of sentencing.
36. Stephanos Bibas, How Apprendi Affects Institutional Allocations of Power, 87 IOWA L. REV. 465 (2002);
37. Jonathan F. Mitchell, Apprendi's Domain, 2006 SUP. CT. REV. 297;
38. Douglas A. Berman, Should Juries Be the Guide for Adventures Through Apprendi-Land?, 109 COLUM. L. REV. SIDEBAR 65 (2009), http://www. columbialawreview.org/Sidebar/volume/109/65-Berman.pdf.
39. See sources cited supra note 4. Indeed, not one sustained examination of the role of parole in Graham exists in an entire Federal Sentencing Reporter issue devoted to the Graham decision. See generally Life Without Parole, 23 FED. SENT'G REP. 1 (2010).
40. See 530 U.S. 466, 490 (2000) (holding that the Sixth Amendment requires any fact other than the fact of a prior conviction that increases a sentence beyond the prescribed statutory maximum to be presented to a jury and proved beyond a reasonable doubt).
41. See Daniel Weiss, California's Inequitable Parole System: A Proposal to Reestablish Fairness, 78 S. CAL. L. REV. 1573, 1584 (2005) ("Historically, the rehabilitation and reintegration of the parolee into society were the goals of the parole system.").
42. Michael Tonry, Obsolescence and Immanence in Penal Theory and Policy,105 COLUM. L. REV. 1233, 1234 (2005) (noting parole boards' historic "broad or plenary authority to release prisoners, subject, usually, only to the maximum prison term set by the judge or the legislature").
43. Victoria J. Palacios, Go and Sin No More: Rationality and Release Decisions by Parole Boards, 45 S.C. L. REV. 567, 578-79 (1994) (comparing a parole board's discretion to that of a judge in sentencing).
44. See, e.g., DON M. GOTTFREDSON ET AL., GUIDELINES FOR PAROLE AND SENTENCING: A POLICY CONTROL METHOD 8, 23 (1978);
45. Julian V. Roberts, Listening to the Crime Victim: Evaluating Victim Input at Sentencing and Parole, in 38 CRIME AND JUSTICE: A REVIEW OF RESEARCH 347, 399 (Michael Tonry ed., 2009);
46. Bryan H. Ward, A Plea Best Not Taken: Why Criminal Defendants Should Avoid the Alford Plea, 68 MO. L. REV. 913, 933 (2003);
47. see also MODEL PENAL CODE § 305.9 (Proposed Official Draft 1962) (listing several post-conviction factors to be considered in parole release determinations, such as "any apparent development in [the prisoner's] personality which may promote or hinder his conformity to law" and "the prisoner's conduct in the institution").
48. See TRAVIS & LAWRENCE, supra note 14, at 2 ("As indeterminate sentencing came under scrutiny in the 1970s, so did parole.. As the goal of rehabilitation lost support and the goals of 'just deserts' and retribution found new adherents, parole's mission to support prisoner reintegration was called into question." (footnote omitted)). The attack on sentencing discretion began in earnest with Judge Marvin Frankel's famous critique of unbridled discretion as a source of massive and unjust sentencing disparities. MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER (1973).
49. See Joshua Stengel, Parole's Function, Purpose, and Role in the Criminal Justice System, NAT'L INST. CORRECTIONS (Aug. 30, 2010, 4:38 PM), http://community.nicic.gov/blogs/parole/archive/2010/08/30/parole-s-function- purpose-and-role-in-the-criminaljustice-system.aspx (describing how risk assessment and public safety concerns have begun to dominate release decisions);
50. Stewart v. Pa. Bd. of Prob. & Parole, 714 A.2d 502, 508 (Pa. Commw. Ct. 1998) ("[T]he legislature has sent a message to the Parole Board that public safety is now the paramount issue in parole decision-making.");
51. In re Thomas, 147 Wash. App. 1048, 1049 (2008) ("[The statute] directs the ISRB to give public safety considerations the highest priority when making parole decisions. .").
52. See, e.g., PAULA M. DITTON & DORIS JAMES WILSON, BUREAU OF JUSTICE STATISTICS, NCJ 17003, TRUTH IN SENTENCING IN STATE PRISONS 4-14 (1999), available at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=820 (describing how state boards approach parole decisions and listing factors that shape those decisions);
53. Ball, Normative Elements, supra note 6, at 397-98 (noting that, in California, the information used in parole risk assessments includes things like "the offender's social history, criminal his
54. Bd. of Pardons v. Allen, 482 U.S. 369, 375 (1987)
55. (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 8 (1979)).
56. Greenholtz, 442 U.S. at 10
57. (quoting Sanford H. Kadish, The Advocate and the Expert-Counsel in the Peno-Correctional Process, 45 MINN. L. REV. 803, 813 (1961)).
58. See, e.g., Hewitt v. Helms, 459 U.S. 460, 467-68 (1983) ("[T]here is no constitutional or inherent right to parole and the Constitution itself does not guarantee goodtime credit for satisfactory behavior while in prison despite the undoubted impact of such credits on the freedom of inmates." (citations omitted) (internal quotation marks omitted));
59. Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981) (observing that there is no constitutional entitlement to parole).
60. See Allen, 482 U.S. at 377 n.8, 378 ("[A] State has no duty to establish a parole system or to provide for parole for all categories of convicted persons, and. may place conditions on parole release." (citation omitted));
61. Greenholtz, 442 U.S. at 10 (noting that for discretionary parole release, "there is no set of facts which, if shown, mandate a decision favorable to the individual"). The Court reaffirmed this principle in a recent post-Graham decision.
62. See Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011) (per curiam) ("There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners." (citation omitted)). States may, however, create a state law entitlement to parole through state statute or regulation.
63. Greenholtz, 442 U.S. at 7-8. Where a state does so, procedural due process protections apply. Id. at 7.
64. Graham v. Florida, 130 S. Ct. 2011, 2018 (2010). A Florida trial judge sentenced him to life without parole for the original crimes, and an intermediate state appellate court affirmed, finding that Graham had "rejected his second chance" and that he was incapable of rehabilitation.
65. Graham v. State, 982 So. 2d 43, 53 (Fla. Dist. Ct. App. 2008). The Supreme Court reversed, categorically barring sentences of life without parole as disproportionate for all juvenile nonhomicide offenders.
66. Graham, 130 S. Ct. at 2034.
67. Graham, 130 S. Ct. at 2028.
68. See Graham, 130 S. Ct. at 2022;
69. see also Roper v. Simmons, 543 U.S. 551, 564-68 (2005). It tells us nothing independent about the relationship of parole to substantive proportionality principles.
70. See Roper, 543 U.S. at 568, 571; Barkow, supra note 4, at 50 (discussing the centrality of Roper to Graham's reasoning).
71. Harmelin v. Michigan, 501 U.S. 957, 999 (1991) (Kennedy, J., concurring in part and concurring in the judgment).
72. As Justice O'Connor observed in Ewing v. California, decisions about penological purposes are generally seen as legislative choices to which reviewing courts owe deference, particularly under principles of federalism.
73. See 538 U.S. 11, 25 (2003) (plurality opinion);
74. see also id. ("Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution 'does not mandate adoption of any one penological theory.'" (quoting Harmelin, 501 U.S. at 999 (Kennedy, J., concurring in part and concurring in the judgment))).
75. Graham, 130 S. Ct. at 2028
76. (citing Ewing, 538 U.S. at 25).
77. See, e.g., Ewing, 538 U.S. at 25-26;
78. Harmelin, 501 U.S. at 999 (Kennedy, J., concurring in part and concurring in the judgment);
79. Rummel v. Estelle, 445 U.S. 263, 284-85 (1980);
80. see also Carol S. Steiker, Panetti v. Quarterman: Is There a "Rational Understanding" of the Supreme Court's Eighth Amendment Jurisprudence?, 5 OHIO ST. J. CRIM. L. 285, 290 (2007) ("In the [Eighth Amendment] morass. one theme has remained consistent: the Court insists that the Constitution is agnostic when it comes to penological purposes. That is, states are free to choose their penal goals and to structure their punitive practices to achieve those goals.").
81. See Graham, 130 S. Ct. at 2053 (Thomas, J., dissenting);
82. Candace Zierdt, The Little Engine That Arrived at the Wrong Station: How to Get Juvenile Justice Back on the Right Track, 33 U.S.F. L. REV. 401, 422 (1999).
83. See Graham, 130 S. Ct. at 2053-54 (Thomas, J., dissenting);
84. cf. Roper v. Simmons, 543 U.S. 551, 621 (2005) (Scalia, J., dissenting) ("The Court's contention that the goals of retribution and deterrence are not served by executing murderers under 18 is. transparently false."). Eliminating parole might also advance retributive goals, at least under some conceptions of retributivism. Cf. id. (similiar);
85. Alice Ristroph, Proportionality as a Principle of Limited Government, 55 DUKE L.J. 263, 315-16 (2005) (discussing difficulties with disproving the claim that neither prison nor the death penalty serves any retributive purpose for juveniles).
86. Graham, 130 S. Ct. at 2029;
87. Graham, 130 S. Ct. at 2029.
88. See, e.g., Ronald J. Tabak, How Empirical Studies Can Affect Positively the Politics of the Death Penalty, 83 CORNELL L. REV. 1431, 1436 n.32 (1998) ("After a few years, lifers become your better prisoners.. They tend to be a calming influence on the younger kids, and we have more problems with people serving short terms." (citation omitted)). (Pubitemid 128443744)
89. Graham, 130 S. Ct. at 2029.
90. See 554 U.S. 407, 413 (2008) (prohibiting imposition of the death penalty for the rape of a child).
91. See 551 U.S. 930, 932 (2007) (reaffirming that the Eighth Amendment prohibits the execution of a mentally incompetent offender and establishing standards and procedures for determining competency).
92. For helpful discussions in recent Eighth Amendment scholarship of evidence of this trend, see Lee, supra note 4, at 58-60, Dan Markel, Executing Retributivism: Panetti and the Future of the Eighth Amendment, 103 NW. U. L. REV. 1163, 1212-15, 1213 n.189 (2009)
93. See generally Youngjae Lee, The Constitutional Right Against Excessive Punishment, 91 VA. L. REV. 677, 737 (2005) (discussing the basic conflict between the purposes of punishment test and retributive limitations on punishment and arguing that "the Eighth Amendment places a limitation on how we may pursue the purposes of punishment"). Importantly, saying that retributivism trumps penal agnosticism does not render the latter a dead letter. Within retributive constraints, penal agnosticism still rules, and states remain free to design punitive institutions and structure sentencing goals as they see fit.
94. See Kyron Huigens, On Aristotelian Criminal Law: A Reply to Duff, 18 NOTRE DAME J.L. ETHICS & PUB. POL'Y 465, 477-78 (2004) (distinguishing between theories and ends of punishment). It may well be that the Court is simultaneously agnostic about the offendends of punishment a state may pursue, but not agnostic about what is a constitutionally permissible theory of and justification for punishment. Cf. id. The Court, however, has yet to draw that distinction or to explain if that is indeed the case.
95. See id. at 714-20 (reviewing comparative negative retributivism in Eighth Amendment cases and highlighting its importance in judicial enforcement of retributivism). For comparisons of negative and positive retributivism, see R.A. DUFF, PUNISHMENT, COMMUNICATION, AND COMMUNITY 11-12 (2001)
96. J.L. Mackie, Retributivism: A Test Case for Ethical Objectivity, in PHILOSOPHY OF LAW 677, 678 ( J oel Feinberg & Hyman Gross eds., 4th ed. 1991)
97. See Roper v. Simmons, 543 U.S. 551, 568-72 (2005);
98. Atkins v. Virginia, 536 U.S. 304, 317-21 (2002).
99. See Graham v. Florida, 130 S. Ct. 2011, 2026 (2010) (considering "the culpability of the offenders at issue. along with the severity of the punishment in question").
100. Stephanos Bibas & Richard A. Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114 YALE L.J. 85, 107 (2004).
101. See, e.g., Darryl K. Brown, Third-Party Interests in Criminal Law, 80 TEX. L. REV. 1383, 1408 (2002);
102. Dan Markel, Against Mercy, 88 MINN. L. REV. 1421, 1445 (2004).
103. Graham, 130 S. Ct. at 2026-27. Each of these is at least arguably relevant to culpability at the time of the offense.
104. Id. (quoting Roper, 543 U.S. at 570).
105. Stephen P. Garvey, "As the Gentle Rain from Heaven": Mercy in Capital Sentencing, 81 CORNELL L. REV. 989, 1012 (1996); (Pubitemid 126408829)
106. see also Jeffrie G. Murphy, Repentance, Punishment, and Mercy (comparing grievance retributivism and character retributivism and explaining that a wrongdoer's repentance should have no effect on the former), in REPENTANCE: A COMPARATIVE PERSPECTIVE 143, 149 (Amitai Etzioni & David E. Carney eds., 1997).
107. Carol S. Steiker, Murphy on Mercy: A Prudential Reconsideration, CRIM. JUST. ETHICS, Summer/Fall 2008, at 45, 47 (similiar);
108. B. Douglas Robbins, Comment, Resurrection from a Death Sentence: Why Capital Sentences Should Be Commuted upon the Occasion of an Authentic Ethical Transformation, 149 U. PA. L. REV. 1115, 1123-30 (2001) (discussing features of character retributivism, including the idea that wrongdoers should be punished in proportion to their own inner wickedness).
109. Graham, 130 S. Ct. at 2016 (emphasizing "Roper's holding that because juveniles have lessened culpability they are less deserving of the most serious forms of punishment"
110. (citing Roper, 543 U.S. at 551));
111. Kyron Huigens, Rethinking the Penalty Phase, 32 ARIZ. ST. L.J. 1196, 1219, 1228-30 (2000). The culpability of classic retributivism is culpability in wrongdoing; it concerns mens rea, the fault elements of offenses, and the wrong committed. Id. at 1230-31.
112. Id. at 281; see also Solem, 463 U.S. at 297 (stating that a sentence of life without the possibility of parole is "far more severe" than a sentence of life with the possibility of parole);
113. cf. Rummel, 445 U.S. at 280-81 (stating that a "proper assessment" of a paroleeligible life sentence "could hardly ignore the possibility that [the offender] will not actually be imprisoned for the rest of his life"). 0
114. Harmelin v. Michigan, 501 U.S. 957, 996 (1991). The Court, however, rejected a proportionality challenge to the life without parole sentence at issue on the ground that categorical proportionality review did not apply outside the capital context. Id. at 994.
115. Graham v. Florida, 130 S. Ct. 2011, 2030 (2010); see also id. ("A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime.").
116. In its most basic form, the expected value of a sentence is the sentence imposed multiplied by the probability that it will be served. See generally Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (1968) (developing the basic economic model of deterrence). The expected value of a life sentence without parole would be Life x 1.00; the expected value of a life sentence with a one percent chance of receiving parole would be Life x 0.99. All else being equal, the latter is less than the former.
117. E.g., LAWRENCE A. GREENFELD, BUREAU OF JUSTICE STATISTICS, NCJ-153858, PRISON SENTENCES AND TIME SERVED FOR VIOLENCE 1-2 (1995), available at http://bjsdata.ojp.usdoj.gov/content/pub/pdf/PSATSFV.PDF.
118. See, e.g., James S. Liebman et al., Capital Attrition: Error Rates in Capital Cases, 1973-1995, 78 TEX. L. REV. 1839, 1846-60 (2000) (documenting high attrition rates of capital sentences); Ristroph, supra note 4, at 77 n.14 (noting that after Daryl Atkins's successful Eighth Amendment proportionality challenge, he was again sentenced to death, but that his death sentence was later commuted).
119. See Graham v. Florida, 130 S. Ct. 2011, 2027 (2010) ("[T]he remote possibility of [executive clemency] does not mitigate the harshness of the sentence." (citation omitted));
120. Solem v. Helm, 463 U.S. 277, 302-03 (1983) (rejecting the argument that the possibility of executive clemency altered the severity of a sentence of life without parole);
121. see also Harmelin v. Michigan, 501 U.S. 957, 996 (1991) (characterizing life without parole as the "second most severe [sentence] known to the law" while acknowledging that it preserved "the possibilities of retroactive legislative reduction and executive clemency" as "flexible techniques for later reducing [a] sentence" (citation omitted) (internal quotation marks omitted)).
122. Graham, 130 S. Ct. at 2027;
123. Solem, 463 U.S. at 300-01.
124. For example, in California, [j]ust six parole-eligible murderers out of several thousand eligible were granted parole release during the tenure of Governor Gray Davis;. each year the parole board finds only three percent of parole-eligible prisoners serving life sentences suitable for release, and only one percent are actually released after review by the full parole board and the governor. Ball, Normative Elements, supra note 6, at 396 (footnotes omitted).
125. Cf. Rachel E. Barkow, The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity, 107 MICH. L. REV. 1145, 1167-73 (2009) (describing ways in which death and terms-of-years sentences are similar in severity and concluding that the differences that do exist do not justify widely disparate treatments under the Eighth Amendment).
126. See Jonathan J. Cooper, Ore. Governor Bans Death Penalty for Rest of Term, WASH. TIMES, Nov. 23, 2011, http://www.washingtontimes.com/news/2011/nov/ 23/oregovernor-bans-death-penalty-rest-term (reporting on Oregon Governor John Kitzhaber's decision to issue a reprieve to any prisoner facing execution).
127. See Joseph L. Hoffmann & Nancy J. King, Improving Criminal Justice: How Can We Make the American Criminal Justice System More Just?, 95 JUDICATURE 59, 59 (2011) ("In Illinois,. shocking revelations about innocent men on death row led first to a moratorium on executions, and eventually to the abolition of capital punishment altogether."). capital sentences); Ristroph, supra note 4, at 77 n.14 (noting that after Daryl Atkins's successful Eighth Amendment proportionality challenge, he was again sentenced to death, but that his death sentence was later commuted).
128. See Graham v. Florida, 130 S. Ct. 2011, 2027 (2010) ("[T]he remote possibility of [executive clemency] does not mitigate the harshness of the sentence." (citation omitted));
129. Solem v. Helm, 463 U.S. 277, 302-03 (1983) (rejecting the argument that the possibility of executive clemency altered the severity of a sentence of life without parole);
130. see also Harmelin v. Michigan, 501 U.S. 957, 996 (1991) (characterizing life without parole as the "second most severe [sentence] known to the law" while acknowledging that it preserved "the possibilities of retroactive legislative reduction and executive clemency" as "flexible techniques for later reducing [a] sentence" (citation omitted) (internal quotation marks omitted)).
131. Graham, 130 S. Ct. at 2027;
132. Solem, 463 U.S. at 300-01.
133. Cf. Rachel E. Barkow, The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity, 107 MICH. L. REV. 1145, 1167-73 (2009) (describing ways in which death and terms-of-years sentences are similar in severity and concluding that the differences that do exist do not justify widely disparate treatments under the Eighth Amendment).
134. See Jonathan J. Cooper, Ore. Governor Bans Death Penalty for Rest of Term, WASH. TIMES, Nov. 23, 2011, http://www.washingtontimes.com/news/2011/nov/ 23/oregovernor-bans-death-penalty-rest-term (reporting on Oregon Governor John Kitzhaber's decision to issue a reprieve to any prisoner facing execution).
135. See Joseph L. Hoffmann & Nancy J. King, Improving Criminal Justice: How Can We Make the American Criminal Justice System More Just?, 95 JUDICATURE 59, 59 (2011) ("In Illinois,. shocking revelations about innocent men on death row led first to a moratorium on executions, and eventually to the abolition of capital punishment altogether.").
136. See Robert J. Smith, The Geography of the Death Penalty and Its Ramifications, 92 B.U. L. REV. 227, 238 n.49 (2012) (reporting that, from 2004 to 2009, Texas performed 134 executions, Ohio performed 25, and Oklahoma performed 22).
137. Graham v. Florida, 130 S. Ct. 2011, 2027 (2010).
138. See Barkow, supra note 80, at 1174; Ristroph, supra note 4, at 75. Of course, the State could apologize and compensate or make other reparative efforts, but the time served is lost forever. Cf. Dan Markel, State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of the Death Penalty, 40 HARV. C.R.-C.L. L. REV. 407, 468 & n.258 (2005).
139. Offenders serving life without parole have the same rights and abilities as any other offender to raise post-conviction challenges. See generally BRIAN R. MEANS, POSTCONVICTION REMEDIES §§ 1:1, 12:1, 12:9 (2011 ed.) (reviewing postconviction remedies applicable to all offenders);
140. WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE §§ 28.1-28.7, at 1333-78 (5th ed. 2009) (same).
141. Graham, 130 S. Ct. at 2027;
142. see also id. (noting that life without parole "'means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days'" (alteration in original) (quoting Naovarath v. Nevada, 779 P.2d 944, 944 (Nev. 1989)));
143. This may well be a questionable assumption. See William Ruddick, Hope and Deception, 13 BIOETHICS 343, 346-47 (1999) ("We cannot assume that 'it is better to have hoped and lost than never to have hoped at all.'").
144. Alexander A. Reinert, Eighth Amendment Gaps: Can Conditions of Confinement Litigation Benefit From Proportionality Theory?, 36 FORDHAM URB. L.J. 53, 76-79 (2009) (arguing that proportionality principles should apply to conditions of confinement);
145. Ristroph, supra note 39, at 276 n.45 (flagging the "weakness in any proportionality analysis that looks only at the length of a prison term"). It seems intuitively correct that severity cannot be measured solely in terms of years spent in prison. The ultimate severity of capital punishment-which brutally shortens the actual length of incarceration-makes that clear. John Stuart Mill put the point this way: What comparison can there really be, in point of severity, between consigning a man to the short pang of a rapid death, and immuring him in a living tomb, there to linger out what may be a long life in the hardest and most monotonous toil, without any of its alleviation or rewards-debarred from all pleasant sights and sounds, and cut off from all earthly hope, except a slight mitigation of bodily restraint, or a small improvement of diet? 21 Apr. 1868, PARL. DEB., H.C. (3d ser.) (1868) 1047 (U.K.)., reprinted in PHILOSOPHICAL PERSPECTIVES ON PUNISHMENT 271, 272-73 (Gertrude Ezorsky ed. 1972).
146. See Graham v. Florida, 130 S. Ct. 2011, 2032 (2010) (observing that life without parole denies any "chance for reconciliation with society");
147. see also Trop v. Dulles, 356 U.S. 86, 101 (1958) (holding unconstitutional a sentence of denationalization for military desertion as "cruel and unusual");
148. Weems v. United States, 217 U.S. 349, 366 (1910) (holding unconstitutionally "cruel and unusual" a sentence of fifteen years plus cadena temporal because, among other considerations, it took from the offender the hope of seeking "to retrieve his fall from rectitude");
149. For instance, does a negative retributivist vision of the Eighth Amendment require a strictly retributive metric for assessing punishment severity? If so, what is such a metric? Although theorists have touched on these questions in the past, sustained examination of them has been lacking, especially as they relate to the Court's proportionality jurisprudence. The one notable exception in contemporary punishment theory is the recent debate involving John Bronsteen, Christopher Buccafusco, Chad Flanders, Adam Kolber, Dan Markel, and Jonathan Masur over the extent to which we should take into account offenders' subjective experiences when assessing punishment, including whether such experiences are relevant to retributive punishment at all. See John Bronsteen, Christopher Buccafusco & Jonathan Masur, Happiness and Punishment, 76 U. CHI. L. REV. 1037 (2009);
150. John Bronsteen, Christopher Buccafusco, & Jonathan Masur, Retribution and the Experience of Punishment, 98 CALIF. L. REV. 1463 (2010);
151. Adam J. Kolber, The Comparative Nature of Punishment, 89 B.U. L. REV. 1565 (2009);
152. Adam J. Kolber, Essay, The Subjective Experience of Punishment, 109 COLUM. L. REV. 182 (2009);
153. Dan Markel & Chad Flanders, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice, 98 CALIF. L. REV. 907 (2010).
154. For earlier scholarly forays into the issue, see, for example, DUFF, supra note 52, at 136-37, ANDREW VON HIRSCH, CENSURE AND SANCTIONS 34-35 (1993)
155. NIGEL WALKER, WHY PUNISH? 106-10 (1991)
156. Andrew Ashworth & Elaine Player, Sentencing, Equal Treatment, and the Impact of Sanctions, in FUNDAMENTALS OF SENTENCING THEORY 251, 254-61 (Andrew Ashworth & Martin Wasik eds., 1998)
157. and Michael Tonry, Proportionality, Parsimony, and Interchangeability of Punishments, in PENAL THEORY AND PRACTICE: TRADITION AND INNOVATION IN CRIMINAL JUSTICE 59, 73 (Anthony Duff et al. eds., 1994).
158. See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 421 (2008) (holding that the Eighth Amendment prohibits the death penalty for the rape of a child);
159. Enmund v. Florida, 458 U.S. 782, 801 (1982) (holding that the Eighth Amendment prohibits the death penalty for a nonhomicide crime committed against an adult);
160. Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality opinion) (holding that the Eighth Amendment prohibits the death penalty for the rape of an adult).
161. The same holds true for the executions at issue in Kennedy, 554 U.S. at 421
162. Atkins, 536 U.S. 304, 321 (2002)
163. Enmund, 458 U.S. at 801
164. and Coker, 433 U.S. at 592.
165. Graham v. Florida, 130 S. Ct. 2011, 2030 (2010).
166. See id. at 286 ("A murder which shall be perpetrated by. any. willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any. felony, shall be deemed to be murder in the first degree and shall be punished with death." (quoting N.C. GEN. STAT. § 14-17 (Cum. Supp. 1975))).
167. see also Skipper v. South Carolina, 476 U.S. 1, 4 (1986)
168. (citing OHIO REV. CODE ANN. § 2929.04(B) (West 1975)).
169. Hitchcock v. Dugger, 481 U.S. 393, 397 (1987).
170. Eddings, 455 U.S. at 115-16.
171. Hitchcock, 481 U.S. at 397.
172. Penry v. Lynaugh, 492 U.S. 302, 340 (1989).
173. McKoy v. North Carolina, 494 U.S. 433, 436-37 (1990).
174. Mills v. Maryland, 486 U.S. 367, 370 (1988).
175. Skipper v. South Carolina, 476 U.S. 1, 14 (1986).
176. Hitchcock, 481 U.S. at 397.
177. See generally Scott W. Howe, The Failed Case for Eighth Amendment Regulation of the Capital-Sentencing Trial, 146 U. PA. L. REV. 795, 804-07 (1998) (discussing cases applying the Woodson/Lockett individualization rule). (Pubitemid 128443673)
178. See, e.g., Sumner v. Shuman, 483 U.S. 66, 82 (1987) (requiring consideration of evidence of offender's ability to control violent behavior);
179. Skipper, 476 U.S. at 6-7 (requiring consideration of evidence of offender's ability to adapt to prison life).
180. See, e.g., Chaney v. Brown, 730 F.2d 1334, 1357-58 (10th Cir. 1984) (requiring consideration of evidence of offender's limited participation in the crime).
181. See, e.g., Coleman v. Risley, 839 F.2d 434, 453 n.7, 455 n.8 (9th Cir. 1988) (requiring consideration of evidence of offender's service to the community and the military);
182. Miller v. Wainwright, 798 F.2d 426, 430-31 (11th Cir. 1986) (requiring consideration of evidence of offender's prospects for rehabilitation), vacated sub nom.
183. Dugger v. Miller, 480 U.S. 901 (1987).
184. See, e.g., Coleman, 839 F.2d at 453 n.7, 455 n.8 (requiring consideration of evidence of offender's general good character);
185. Armstrong v. Dugger, 833 F.2d 1430, 1433 (11th Cir. 1987) (requiring consideration of evidence of offender's hardworking nature).
186. Carol S. Steiker & Jordan M. Steiker, Let God Sort Them Out? Refining the Individualization Requirement in Capital Sentencing, 102 YALE L.J. 835, 853 (1992)
187. (reviewing BEVERLY LOWRY, CROSSED OVER: A MURDER, A MEMOIR (1992));
188. see also Walton v. Arizona, 497 U.S. 639, 663 (1990) (Scalia, J., concurring in part and concurring in the judgment) (stating that the Eighth Amendment contains no "objective criterion of what is mitigating");
189. Louis D. Bilionis, Moral Appropriateness, Capital Punishment, and the Lockett Doctrine, 82 J. CRIM. L. & CRIMINOLOGY 283, 301-02 (1991) (observing that Lockett's individualization requirement "contains no reference to any particular moral theory or theories" and instead embraces a principle of "moral neutrality");
190. Woodson v. North Carolina, 428 U.S. 280, 304-05 (1976) (plurality opinion).
191. Lockett v. Ohio, 438 U.S. 586, 604-05 (1978) (plurality opinion);
192. see also Monge v. California, 524 U.S. 721, 732 (1998) ("Because the death penalty is unique 'in both its severity and its finality,' we have recognized an acute need for reliability in capital sentencing proceedings."
193. (quoting Gardner v. Florida, 430 U.S. 349, 357 (1977)));
194. Butler v. South Carolina, 459 U.S. 932, 933 (1982) (Marshall, J., dissenting from denial of certiorari) ("Recognizing the extraordinary consequences of the capital sentencing process, this Court has stressed 'the need for reliability in the determination that death is the appropriate punishment in a specific case.' Accordingly, 'we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination.'"
195. quoting Woodson, 428 U.S. at 305
196. (and Beck v. Alabama, 447 U.S. 625, 638 (1980)));
197. Woodson, 428 U.S. at 291.
198. Woodson, 428 U.S. at 304;
199. see also Roberts v. Louisiana, 428 U.S. 325, 333 (1976) ("The futility of attempting to solve the problems of mandatory death penalty statutes by narrowing. the capital offense stems from [the] rejection of the belief that 'every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.'"
200. (quoting Williams v. New York, 337 U.S. 241, 247 (1949)));
201. Robert Weisberg, Deregulating Death, 1983 SUP. CT. REV. 305, 308 ("[A] judge or jury's decision to kill is an intensely moral, subjective matter that seems to defy the designers of general formulas for legal decision."). As the second Justice Harlan famously expressed the point in McGautha v. California: Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by. history. . To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability. 402 U.S. 183, 204 (1971).
202. See Lewis v. Jeffers, 497 U.S. 764, 774 (1990) ("[Gregg] requires a State to 'channel the sentencer's discretion by clear and objective standards that provide specific and detailed guidance and that make rationally reviewable the process for imposing a sentence of death.'"
203. (quoting Godfrey v. Georgia, 446 U.S. 420, 428 (1980)));
204. Gregg v. Georgia, 428 U.S. 153, 195 (1976) ("[T]he concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance.").
205. See generally Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REV. 355, 361-64, 375-78 (1995) (tracing the evolution of Eighth Amendment capital sentencing requirements aimed at promoting consistency).
206. Woodson, 428 U.S. at 304;
207. see also Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982) (holding that courts cannot prevent capital sentencers from considering "any relevant mitigating evidence"). Numerous commentators and several Justices have noted the tension between Furman's mandate of consistency and nonarbitrariness and Woodson's mandate of individualization.
208. Steiker & Steiker, supra note 127 (reviewing develop offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.'" (quoting Williams v. New York, 337 U.S. 241, 247 (1949)));
209. Robert Weisberg, Deregulating Death, 1983 SUP. CT. REV. 305, 308 ("[A] judge or jury's decision to kill is an intensely moral, subjective matter that seems to defy the designers of general formulas for legal decision."). As the second Justice Harlan famously expressed the point in McGautha v. California: Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by. history. . To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability. 402 U.S. 183, 204 (1971).
210. See Lewis v. Jeffers, 497 U.S. 764, 774 (1990) ("[Gregg] requires a State to 'channel the sentencer's discretion by clear and objective standards that provide specific and detailed guidance and that make rationally reviewable the process for imposing a sentence of death.'"
211. (quoting Godfrey v. Georgia, 446 U.S. 420, 428 (1980)));
212. Gregg v. Georgia, 428 U.S. 153, 195 (1976) ("[T]he concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance.").
213. See generally Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REV. 355, 361-64, 375-78 (1995) (tracing the evolution of Eighth Amendment capital sentencing requirements aimed at promoting consistency).
214. Woodson, 428 U.S. at 304;
215. see also Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982) (holding that courts cannot prevent capital sentencers from considering "any relevant mitigating evidence"). Numerous commentators and several Justices have noted the tension between Furman's mandate of consistency and nonarbitrariness and Woodson's mandate of individualization.
216. See, e.g., GA. CODE ANN. § 17-10-16(a) (2008) ("Notwithstanding any other provision of law, a person who is convicted of an offense committed after May 1, 1993. may be sentenced to. imprisonment for life without parole. .");
217. WYO. STAT. ANN. § 6-10-301(b) (2009) ("A person sentenced to life imprisonment without parole shall not be eligible for parole and shall remain imprisoned under the jurisdiction of the department of corrections during the remainder of his life. .");
218. Barry C. Feld, A Slower Form of Death: Implications of Roper v. Simmons for Juveniles Sentenced to Life Without Parole, 22 NOTRE DAME J.L. ETHICS & PUB. POL'Y 9, 16 (2008) ("Once states convict juveniles in criminal court, judges sentence them as if they were adults and send them to the same prisons as adults.").
219. See, e.g., Hector Linares & Derwyn Bunton, An Open Door to the Criminal Courts: Analyzing the Evolution of Louisiana's System for Juvenile Waiver, 71 LA. L. REV. 191, 196 (2010) (discussing the individualized waiver standard);
220. Melissa A. Scott, The "Critically Important" Decision of Waiving Juvenile Court Jurisdiction: Who Should Decide?, 50 LOY. L. REV. 711, 729 (2004) (explaining that before a judge may transfer a juvenile to a criminal court, the judge must "examine the juvenile's amenability to treatment and rehabilitation, and the danger the juvenile poses to the public"
221. (citing LA. CHILD CODE ANN. art. 862 (2004))).
222. See Barry C. Feld, The Transformation of the Juvenile Court-Part II: Race and the "Crack Down" on Youth Crime, 84 MINN. L. REV. 327, 357 (1999) (attributing the sixtyeight percent increase in judicial waivers between 1988 and 1992 mainly to tough-oncrime measures);
223. Ellie D. Shefi, Waiving Goodbye: Incarcerating Waived Juveniles in Adult Correctional Facilities Will Not Reduce Crime, 36 U. MICH. J.L. REFORM 653, 661 (2003) (explaining that the "get tough" policies of the 1990s resulted in "easier means of transferring juveniles to adult court" and "expanded sentencing options").
224. See, e.g., ARK. CODE ANN. § 9-27-318(a) (2008) (restricting the State's use of juvenile delinquency proceedings to cases involving juveniles under age fifteen or juveniles under age eighteen whose conduct would have constituted a misdemeanor if committed by an adult);
225. GA. CODE ANN. § 15-11-28(b)(2)(A)(i)-(vii) (providing exclusive jurisdiction in criminal court over children ages thirteen to seventeen who are alleged to have committed certain serious felonies).
226. See generally Martha June Rossiter, Comment, Transferring Children to Adult Criminal Court: How to Best Protect Our Children and Society, 27 J. JUV. L. 123, 126, 128-31 (2006) (reviewing and critiquing mandatory waiver laws).
227. See Lisa S. Beresford, Comment, Is Lowering the Age at Which Juveniles Can Be Transferred to Adult Criminal Court the Answer to Juvenile Crime? A State-by-State Assessment, 37 SAN DIEGO L. REV. 783, 806 (2000) (observing that "the state can use the potential for transfer and the ability to appeal transfer decisions as a bargaining chip");
228. Lisa A. Cintron, Comment, Rehabilitating the Juvenile Court System: Limiting Juvenile Transfers to Adult Criminal Court, 90 NW. U. L. REV. 1254, 1267 (1996) (discussing the incentives of even innocent juveniles to take pleas that will keep them in juvenile court);
229. see also Hughes v. State, 653 A.2d 241, 249 (Del. 1994) (stating that prosecutorial waiver "strip[s] the judiciary of its independent jurisdictional role in the adjudication of children");
230. cf. Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 COLUM. L. REV. 1655, 1660 (2010) ("[D]eference to perceived prosecutorial supremacy is defensible only if, all else equal, the prosecutor is most competent institutionally to exercise equitable discretion. At least when it comes to certain charging decisions, this is far from clear.").
231. Graham v. Florida, 130 S. Ct. 2011, 2026 (2010);
232. see also Thompson v. Oklahoma, 487 U.S. 815, 826 n.24 (1988) (observing that state legislatures' authorization of waiver for a particular crime "tells us nothing about the judgment these States have made regarding the appropriate punishment for. youthful offenders" (emphasis omitted));
233. Katherine Hunt Federle, Emancipation and Execution: Transferring Children to Criminal Court in Capital Cases, 1996 WIS. L. REV. 447, 484 (noting that waiver is often based upon "bureaucratic rather than individuated concerns which preclude an assessment of the minor's blameworthiness").
234. see also NELLIS & KING, supra note 131, at 32 ("A review of juvenile life without parole cases contradicts the general assumption that these sentences are reserved only for the most chronically violent youth, 'the worst
235. Graham, 130 S. Ct. at 2029.
236. As Graham implied, this is even more true where the sentencing occurs relatively close in time to the commission of an especially heinous crime, before emotions have had a chance to cool. See id. at 2032 (noting the "unacceptable likelihood" that a heinous crime could overpower the mitigating aspects of youth (citing Roper v. Simmons, 543 U.S. 551, 573 (2005))).
237. See Steiker & Steiker, supra note 4, at 82 (stating that courts have been "remarkably deferential" to states' decisions about the extent to which sentencers must consider "youth as a mitigating factor in the sentencing of juveniles"). Chief Justice Roberts argued for a similar approach in his concurrence in the judgment. But, instead of creating a new rule in the Woodson/Lockett vein, the Chief Justice would have folded the mitigation inquiry into Harmelin's gross disproportionality test for noncapital cases, leaving to reviewing courts' discretion exactly how to consider a juvenile's particular mitigating circumstances in each case. Graham, 130 S. Ct. at 2040-42 (Roberts, C.J., concurring in the judgment);
238. See, e.g., Douglas Berman, Afternoon Keynote Address, Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 TEMP. POL. & CIV. RTS. L. REV. 429, 437-38 (2010) (discussing second-look sentencing).
239. See Furman v. Georgia, 408 U.S. 238, 242, 249-52 (1972) (Douglas, J., concurring);
240. see also Kennedy v. Louisiana, 554 U.S. 407, 420 (2008) ("[C]apital punishment must 'be limited to those offenders who commit a narrow category of the most serious crimes' and whose extreme culpability makes them the most deserving of execution." (quoting Roper v. Simmons, 543 U.S. 551, 568 (2005)));
241. Kansas v. Marsh, 548 U.S. 163, 206 (2006) (Souter, J., dissenting) ("[T]he death penalty must be reserved for the 'worst of the worst.'"
242. (citing Roper, 543 U.S. at 568)).
243. Joanna M. Huang, Note, Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency, 60 DUKE L.J. 131, 152-57 (2010) (arguing for an increased role for judges in correcting unduly harsh sentences through executive clemency).
244. See, e.g., Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99 CALIF. L. REV. 1117, 1129 (2011) (observing that Apprendi's vision of juries as a check on judges and prosecutors was one of "strict, static separation of powers");
245. Benjamin J. Priester, Structuring Sentencing: Apprendi, the Offense of Conviction, and the Limited Role of Constitutional Law, 79 IND. L.J. 863, 896-902 (2004) (explaining Apprendi by reference to the institutional balance of power established in constitutional criminal procedure).
246. Witherspoon v. Illinois, 391 U.S. 510, 519 & n.15 (1968).
247. Kyron Huigens, The Dead End of Deterrence, and Beyond, 41 WM. & MARY L. REV. 943, 1033-34 (2000) (noting the role of the jury in ensuring fine-grained moral judgments);
248. Kyron Huigens, On Commonplace Punishment Theory, 2005 U. CHI. LEGAL F. 437, 454 (2005) (same);
249. Jenia Iontcheva, Jury Sentencing as Democratic Practice, 89 VA. L. REV. 311, 382 (2003) (arguing that "[b]ecause of its ability to render individualized judgments and to reconcile conflicting views through deliberation rather than aggregation," the jury is best suited to making democratically and morally legitimate sentencing judgments).
250. Spaziano v. Florida, 468 U.S. 447, 483 (1984) (Stevens, J., concurring in part and dissenting in part). As this account suggests, Apprendi's view of the purpose of the Sixth Amendment thus shares a deep commonality with Woodson/Lockett's view of the Eighth Amendment in that both ultimately seek to ensure morally appropriate sentencing determinations. Justice Stevens and, more recently, Justice Breyer have implicitly recognized the connection, arguing that the Eighth Amendment requires jury sentencing in capital cases precisely because of the jury's ability to help safeguard against the imposition of morally inappropriate sentences-the same feature that, according to Apprendi, animates the Sixth Amendment jury right.
251. See Ring v. Arizona, 536 U.S. 584, 613-19 (2002) (Breyer, J., concurring in the judgment);
252. Harris v. Alabama, 513 U.S. 504, 515-26 (1995) (Stevens, J., dissenting);
253. Spaziano, 468 U.S. at 467-90 (Stevens, J., concurring in part and dissenting in part).
254. Stengel, supra note 20 (reviewing factors involved in making parole release decisions); Jeremy Travis, Back-End Sentencing: A Practice in Search of a Rationale, 74 SOC. RES. 631, 640 (2007) (suggesting that, in the modern era, parole decisions are primarily concerned with risk management).
255. Alexandra Marks, For Prisoners, It's a Nearly No-Parole World, CHRISTIAN SCI. MONITOR, July 10, 2001, at 1, available at 2001 WLNR 1261020 (surveying parole policies across time and states and describing the difficulty of countering political pressures against release).
256. Ball, Normative Elements, supra note 6, at 398; see also Joan Petersilia, When Prisoners Return to Communities: Political, Economic, and Social Consequences, FED. PROBATION, June 2001, at 3, 7 ("In most states, the chair and all members of the parole board are appointed by the governor; in two-thirds of the states, there are no professional qualifications for parole board membership.").
257. Douglas A. Berman, A Truly (and Peculiarly) American "Revolution in Punishment Theory," 42 ARIZ. ST. L.J. 1113, 1120 (2010-2011) (discussing how parole juries could bring laypersons' sense of justice to parole release decisions); Petersilia, supra note 175, at 7 (discussing the "need to rethink who should be responsible for making parole release decisions").
258. see also Michael M. O'Hear, Mandatory Minimums: Don't Give Up on the Court, 2011 CARDOZO L. REV. DE NOVO 67, 71, http://www.cardozolawreview.com/ Joomla1.5/content/denovo/OHEAR-2011-67.pdf ("Graham may also give grounds for juveniles (and perhaps others with deeply diminished culpability, such as the mentally retarded) to challenge lesser mandatory minimums."). The Court is currently considering two follow-on cases to Graham that present the question whether sentencing juveniles convicted of homicide offenses to life without parole violates the Eighth Amendment.
259. See Jackson v. Hobbs, No. 10-9647 (U.S. argued Mar. 20, 2012);
260. Miller v. Alabama, No. 10-9646 (U.S. argued Mar. 20, 2012).
261. See John A. Beck, Compassionate Release from New York State Prisons: Why Are So Few Getting Out?, 27 J.L. MED. & ETHICS 216, 227 (1999) (explaining the difference between compassionate and earned release and noting that, unlike earned release, "compassionate release is not a mechanism to reduce the sentence of inmates who have somehow paid their debt to society" and therefore "is justifiably viewed as a dispensation, rather than a right"). Some courts already have begun grappling with these issues, asking, for instance, whether compassionate release programs satisfy Graham.
262. See Bell v. Haws, No. 09-3346, 2010 WL 3447218, at *9-11 (C.D. Cal. July 14, 2010) (holding that a sentence of fifty-four years to life that would have made a juvenile prisoner first eligible for parole at age sixty-nine complied with Graham), vacated on other grounds sub. nom.
263. Bell v. Lewis, No. 10-56405, 2011 WL 6364713 (9th Cir. Dec. 20, 2011);
264. Angel v. Commonwealth, 704 S.E.2d 386, 401-02 (Va. 2011) (holding that Virginia's compassionate release statute, which allows for conditional release after a prisoner reaches the age of sixty-five, satisfies Graham by providing a "meaningful opportunity to obtain release");
265. cf. People v. Mendez, 114 Cal. Rptr. 3d 870, 881 (Ct. App. 2010) (holding that a sentence of eighty-four years to life imposed upon a juvenile violates Graham "because it amounts to a de facto sentence of life without parole").
266. Graham v. Florida, 130 S. Ct. 2011, 2030 (2010).
267. The Court has taken a similar approach before. Atkins v. Virginia prohibited execution of the mentally retarded while "leav[ing] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences." 536 U.S. 304, 317 (2002) (second and third alteration in original) (quoting Ford v. Wainwright, 477 U.S. 399, 416-17 (1986)).
268. Panetti v. Quarterman refined the prohibition on execution of the insane announced in Ford v. Wainwright and rejected as inadequate the lower court's procedures for determining insanity. 551 U.S. 930, 952 (2007). But Panetti reserved judgment on "whether other procedures, such as the opportunity for discovery or for cross-examination of witnesses, would in some cases be required under the Due Process Clause." Id. As Carol and Jordan Steiker observe, this gradualist approach to implementing the Eighth Amendment might lessen opposition to the Court's interventions while still allowing it to refine and announce both substantive and procedural principles and to police outlier states for compliance. Carol S. Steiker & Jordan M. Steiker, Atkins v. Virginia: Lessons from Substance and Procedure in the Constitutional Regulation of Punishment, 57 DEPAUL L. REV. 721, 737-39 (2008);
269. Graham, 130 S. Ct. at 2032.
270. Graham, 130 S. Ct. at 2030.
271. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (holding that a court reviewing agency action under the arbitrary and capricious standard should ensure that the agency has considered relevant data, statutory factors, and important aspects of the problem, but should not "substitute its judgment for that of the agency");
272. RICHARD J. PIERCE, JR. ET AL., ADMINISTRATIVE LAW AND PROCESS § 7.5, at 407-13 (5th ed. 2009) (discussing review of agency reasoning).
273. Michael M. O'Hear, Appellate Review of Sentencing Explanations: Learning from the Wisconsin and Federal Experiences, 93 MARQ. L. REV. 751, 752 (2009) (discussing appellate review of trial court sentencing determinations). As both O'Hear and scholars of administrative law recognize, "at the margins, explanation review can shade into substantive review, for an explanation cannot truly count as an explanation if some minimal standards of substantive rationality are not met." Id. at 752;
274. Michael M. O'Hear, Explaining Sentences, 36 FLA. ST. U. L. REV. 459, 469 (2009) ("Rita effectively transformed a requirement for explicit explanation into a requirement for implicit explanation.").
275. Richard A. Bierschbach & Stephanos Bibas, Notice-and-Comment Sentencing, 97 MINN. L. REV. (forthcoming 2012) (manuscript at 47-49) (on file with author) (arguing for application of similar requirements to sentencing and the charging and plea-bargaining decisions that influence it).
276. See In re Lawrence, 190 P.3d 535, 539 (Cal. 2008) (holding that where "evidence of the inmate's rehabilitation and suitability for parole. is overwhelming," the "immutable circumstance" of the original offense of conviction does not "inevitably support[] the ultimate decision that the inmate remains a threat to public safety" (emphasis omitted));
277. see also Hayward v. Marshall, 512 F.3d 536, 546-47 (9th Cir. 2008) (holding that the state governor's reliance on a "stale and static" factor in reversing the parole board's grant of parole violated due process), vacated en banc, 603 F.3d 546 (9th Cir. 2010);
278. Biggs v. Terhune, 334 F.3d 910, 916-17 (9th Cir. 2003) (rejecting a habeas claim resulting from denial of parole, but stating that "continued reliance in the future on an unchanging factor" could ultimately "result in a due process violation"), overruled by Hayward, 603 F.3d 546;
279. Robles v. Dennison, 745 F. Supp. 2d 244, 287 (W.D.N.Y. 2010) (finding parole board's repeated denial of parole based solely on the severity of the original crime without assessment of inmate's current parole risk to be arbitrary and capricious);
280. Gordon v. Alexander, 592 F. Supp. 2d 644, 653 n.60 (S.D.N.Y. 2009) (granting plaintiffs leave to replead procedural due process claim if they could allege as a factual matter that parole appeals were "governed by an unofficial policy or practice that effectively eliminates the possibility of parole for prisoners serving indeterminate sentences based on 'stale and static factor[s]'" (alteration in original)
281. (quoting Hayward, 512 F.3d at 546-47)).