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What the Court Didn’t Do—A Commentary by Tracey Meares

The following commentary was posted on newyorktimes.com on May 17, 2010.

What the Court Didn’t Do
By Tracey L. Meares  

Tracey L. Meares is deputy dean and Walton Hale Hamilton Professor of Law at Yale Law School. Her research centers on criminal procedure and criminal law policy.

Those who believe that criminal justice systems across the country too often sentence offenders too harshly—I count myself among them—stand in ovation today. The Supreme Court’s decision forbidding states from sentencing juveniles convicted of non-homicide offenses to life without parole is seen by some as a welcome step toward less harsh penalties. While it is welcome, I am less confident than others may be about the signal it sends.

First, it is important to note what court did not do today. The Graham decision did not impose a limitation on the number of years that a juvenile might serve for a non-homicide offense. Rather, the court only requires a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance.”

This is procedure, not substance, and I am guessing we will have to wait some time to see how this decision will actually play out as states develop guidelines regarding maturity and treatability. There is every reason to believe that this process will not be pretty.

Second, it is always important to keep in mind the institutional interplay between courts and legislatures. When courts place limitations on political bodies—especially in the criminal law arena—it is reasonable to expect those bodies to respond. Chief Justice Roberts, who agreed with the majority on the particular case of Terrance Graham, goes on to list a parade of horribles that ought to be treated differently from the Graham case. These are the cases to which the legislatures are likely to respond with heavy terms of years. There is no reason to think that the court’s decision will be a meaningful limit on them.

The concerns of critics of the decision, who assail it as an unwarranted intrusion on state sovereignty, are overblown. So, too, is the optimism of their opponents. The best hope for reform of overly harsh punishment is still through lobbying of state legislatures.