“With Friends Like These . . .”: New Critiques of Graham and Miller

The U.S. Supreme Court’s decisions in Graham v. Florida (2010) and Miller v. Alabama (2012) undoubtedly constitute the most important developments in Eighth Amendment law over the past decade. Graham banned life-without -parole (LWOP) sentences for juveniles convicted of nonhomicide offenses, while Miller prohibited mandatory LWOP for all juvenile offenders, even those convicted of murder. I have a lengthy analysis of the two decisions in this recently published article.

A special issue of the New Criminal Law Review now offers a pair of interesting critiques of Graham and Miller. Interestingly, both authors seem sympathetic to the bottom-line holdings of the two decisions, but they nonetheless disagree with central aspects of the Court’s reasoning (and, to some extent, also with one another). Both focus their criticisms on the Court’s use of scientific evidence regarding the differences between adolescent and adult brain functioning.

The more radical perspective comes from Mark Fondacaro, a psychologist who has emerged as a leading critic of retributive responses to crime and advocate for scientifically informed risk-management strategies.  

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Two-Thirds of Wisconsinites Support More Flexibility for Prisoner Releases

In 1998, Wisconsin adopted what may have been the nation’s most rigid truth-in-sentencing law, eliminating parole across the board and declining to put into place any alternative system of back-end release flexibility, such as credits for good behavior in prison.  Subsequent reforms to this system have been either short-lived or very modest in scope.  However, new results from the Marquette Law School Poll confirm and strengthen findings from other recent surveys that Wisconsin residents would actually welcome a more flexible system.

As I noted in an earlier post, the Law School Poll has asked Wisconsinites their views about criminal-justice policies in each of the past three summers.  Although the Poll has revealed significant support for truth in sentencing, it has also revealed comparable or even greater support for enhanced flexibility.

In 2012, Poll results included the following:  

  • 85% of respondents agreed that “criminals who have genuinely turned their lives around deserve a second chance.”
  • 67% agreed that “Wisconsin should recognize prisoners’ rehabilitative accomplishments by awarding credits toward early release.”
  • 55% agreed that “once a prisoner has served at least half of his term, he should be released from prison and given a less costly form of punishment if he can demonstrate that he is no longer a threat to society.”
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Wisconsinites Give Criminal-Justice System Low Marks, Especially for Offender Rehabilitation

We expect a lot from our criminal-justice system, and we don’t seem very impressed with the results we are getting.  These are two of the notable lessons that emerge from the most recent Marquette Law School Poll of Wisconsin residents, the results of which were released earlier today.

In one part of the survey, respondents were asked to assess the importance of five competing priorities for the criminal-justice system.  As to each of the five, a majority indicated that the priority was either “very important” or “absolutely essential.”  The five priorities were:

  • Making Wisconsin a safer place to live (91.6% said either very important or absolutely essential)
  • Ensuring that people who commit crimes receive the punishment they deserve (88.1%)
  • Keeping crime victims informed about their cases and helping them to understand how the system works (81.0%)
  • Rehabilitating offenders and helping them to become contributing members of society (74.1%)
  • Reducing the amount of money we spend on imprisoning criminals (51.2%)
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