“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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Welcome to the Summer Youth Institute

Welcome to the students participating in the Summer Youth Institute at Marquette Law School. The Summer Youth Institute is a free program for Milwaukee students entering eighth through tenth grade, and the program is in its second year. Students learn about the American legal system, participate in a moot court, and meet judges, attorneys, and law students, as well as other people involved in the legal system. This year the students are touring the federal and state courthouses, Rockwell Automation, and Gonzalez Saggio & Harlan. Students also are paired with a mentor from the Eastern District of Wisconsin Bar Association and are eligible to participate next summer in a law-related internship. The Summer Youth Institute is hosted by Marquette Law School and the Eastern District of Wisconsin Bar Association, in collaboration with Just the Beginning Foundation, Kids, Courts, & Citizenship, and the Association of Corporate Counsel Wisconsin Chapter.

This morning after a warm welcome from Dean Joseph Kearney and Judge Nancy Joseph at breakfast, the students learned how to introduce themselves and shake hands. Students learn important concepts about the law at the SYI, but they also gain confidence in presenting an oral argument. They form bonds with their mentors, who teach them about legal work, but also take them to baseball games and teach them intangible skills they will need to succeed in their work and life. And, finally, they get to know their peers, who, like themselves, are the future of the legal profession and our society.

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Technology at the Court: Riley and Aereo

Like the legal profession generally, the United States Supreme Court has a reputation as slow to embrace new technologies. For example, Justice Kagan shared in an interview last year that the Justices rarely use email. Yet at the end of the recent term, the Court decided cases affecting two evolving technologies: cell phones and streaming video services. Unanimous in the judgment in Riley v. California, the Court held that the search incident to arrest doctrine does not allow police officers to search through the contents of an arrestee’s cell phone without obtaining a warrant. In American Broadcasting Companies v. Aereo, the Court concluded that a provider of video streaming services engages in a public performance and infringes copyrights by using dedicated antennae to capture broadcast signals and then transmit them to subscribers over the internet. However, in the opinions in these cases, the Justices seem careful to avoid allowing any personal unfamiliarity with cell phones or with Aereo’s streaming service to affect the quality of their decisions. Instead, the Justices confront the technologies in a pragmatic manner, focusing on the functions easily accessible to average users and avoiding analysis of underlying technological details.

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