Publication Date
5-2012
Journal
University of Pennsylvania Law Review
Abstract
Commentators analyzing the Supreme Court's watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping-off point. Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of punishment to the institutional structure of sentencing. By requiring the State to revisit its first-order sentencing judgments at a later point in time, Graham mandates a procedural space for granular, individualized, and ultimately more reliable sentencing determinations. I expose this procedural and institutional side of parole's constitutional significance, situate it within the constitutional landscape of sentencing, and sketch some of its implications for the future of sentencing regulation.
Volume
160
Issue
6
First Page
1745
Last Page
1788
Publisher
Penn Carey Law
Keywords
Parole, Penology, Eighth Amendment, Constitutional Law, Juvenile Offenders, Juveniles, Law Enforcement
Disciplines
Constitutional Law | Law | Law Enforcement and Corrections
Recommended Citation
Richard A. Bierschbach,
Proportionality and Parole,
160
U. Pa. L. Rev.
1745
(2012).
https://larc.cardozo.yu.edu/faculty-articles/1013
Comments
Sentencing: Rhetoric and Reality