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(131) With the death penalty unavailable, it was natural that increased scrutiny concerning JLWOP became part of the democratic consciousness.
(137) The "twice diminished moral culpability" combining the offender (juvenile) and the offense (non-homicide) made JLWOP, a kind of death sentence, a disproportionate punishment.
(141) The Court held in Miller that the evolving standards of decency and the Eighth Amendment prohibited the imposition of mandatory JLWOP sentences, (142) mirroring its prior decision in Woodson v.
It is quite possible, considering the trend of pushback against harsh criminal sentences for juveniles reflected in these cases, that the Court would adopt a categorical rule against all JLWOP sentences if squarely presented with this issue.
(19) Perhaps the justices could also reach a consensus that JLWOP is subjectively cruel, drawing on language from Graham, Miller, and Montgomery, to satisfy the second prong of the test.
Nonetheless, until a proper JLWOP case reaches the Supreme Court, some juvenile homicide defendants will continue to face life imprisonment for their crimes without the possibility of parole.
Florida, proscribing JLWOP for noncapital crimes--otherwise a structural photocopy of Roper--depended more on international law because there was no national consensus.
Graham first pointed to a national consensus both that the diminished culpability of juveniles barred JLWOP for noncapital crimes and that the sentence was not justified under traditional penological theories.
(81) Unlike the Roper Court--which could at least plausibly argue that a national consensus had formed in opposition to the death penalty for juvenile offenders--the Graham Court strained to show that the approval of the sentence by thirty-seven states did not constitute a consensus in favor of JLWOP for noncapital offenders because many of those states rarely issued the sentence.
(58) The Court favorably assessed the "objective" evidence against JLWOP for nonhomicides, (59) noted that the availability of that sentence may be an unintended consequence of unrelated legal changes, (60) and remarked on the international consensus against the practice.
(63) Adolescents' reduced culpability, lesser propensity to be deterred, and greater capacity for change, it held, pulled as strongly against JLWOP as they had against the death penalty.
Just as Roper's reasoning was (before Graham) widely interpreted by the courts to apply only to capital sentencing, Graham's could be understood to apply only to the precise frame within which it was articulated: nonhomicide JLWOP. Indeed, some courts already have taken just that stance.
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