The Long-Term Effects of Graham v.

Florida: An Interview with

Stephen K. Harper

By Jacob Kartchner

STEPHEN K. HARPER is an Assistant Public Defender in Miami, Florida, and a long-

time juveniles’ rights advocate. He has contributed to juvenile justice, for example,
by taking a leave of absence to work on the juvenile death penalty which
culminated in Roper v. Simmons. He also served as the Juvenile Division Chief in
Miami, Florida and is now co-coordinator of the capital litigation unit. He received
the ABA’s Livingston Hall Juvenile Justice Award in 1998.

What will the state of Florida do to comply with Graham?

Harper: That’s a good question. Florida eliminated all parole. So

there is a vestige of a parole board which is only for those who were
sentenced before parole was eliminated, which is a pretty small
number. Florida will either need to expand that parole board or create
a completely new one to deal with this new issue. It’s not yet clear
what Florida will do; the legislature is not in session. However, a lot of
people are already filing for rehearings and many of them will come
up soon. In fact, my office will (if the Courts so permit) be filing a
number of motions for post-conviction relief, and we have no real
indicators as to how that will all go. What judges are going to think
they can do is unclear, especially without guidance from the
legislature. Obviously, the legislature will make a new law, but we
have no clue as to how they will interpret and implement the Graham
case. The Florida Attorney General argued against the ultimate
decision in Graham, so it’s uncertain exactly what his efforts will be on
the direction and content of the legislation. The bottom line is that
everything is up in the air.

How else can the States comply?

Harper: That’s tough to say. The court’s holding is that juveniles need
to be provided some “meaningful opportunity to obtain release based
on demonstrated maturity and rehabilitation”. How that actually
translates into legislation is very hard to determine. Ultimately, if
legislatures comply with the Supreme Court’s apparent intent, then
some kids will get relief. But in the end, we may need to go back to
the Supreme Court to find out what is compliant and what is not.
To me, one of the most important things addressed by Graham
was that kids are clearly different and those differences go beyond
death penalty cases. In Roper, children and adolescents were found
to be so different from adults that, as a class, they should not be
eligible for death. Graham found that these differences now apply in
non-homicide cases where juveniles were sentenced to life without
any possibility of parole. How that will flesh out in terms of Life
Without Parole in terms of homicide and other children’s law is going
to be interesting. The more immediate issue is that a lot of States are
going to have to think about just how they should treat children
differently. Should we have periodic review? One time review? There
are too many questions for us to be able to answer, and it’s something
that will just have to play itself out. But, I am hoping the Florida
legislature will say, “We now know kids are different. Let’s make
legislation that provides periodic review and an opportunity for a child
to demonstrate that he has changed his life.”

What should they do to comply with Graham?

Harper: I think the best thing would be to involve as many

professional resources as possible to draft sample legislation to
implement the Graham requirements. It would be great if the
American Psychological Association, American Psychiatric Association,
and the American Academy of Childhood and Adolescence, for
example, could get involved and produce some ideal legislation, based
on the research of how children grow, when they grow, and when and
how you can tell that they have significantly changed. Then if that
were merged with an ABA version of what is good or appropriate Due
Process, we would have a very good model for the kind of legislation
that would put Graham to its full effect. A few people are working on
that right now.

How much will it cost?

Harper: I have no idea. In relative terms, though, it won’t cost that

much. In Florida, there are seventy-five kids and there are some more
now in the pipeline. But here it wouldn’t be prohibitively expensive to
have a group of people to work these cases out. Ultimately, if some
are released, it may save a lot of money in the long run anyway, and it
may just pay for itself.

Do you know of any other states that are preparing to do

anything in response to Graham?

Harper: Marcia Levick of the Juvenile Law Center is making an effort

to try to coordinate all the other states on how they will approach this.
But the other “hot” state is Louisiana, Florida being the first. They are
going to have a lot of these cases, too.

When do you think we will see the first juvenile convicted with
life without parole get a parole hearing?
Harper: Within the next couple months there should be cases coming
through. You’ll see some motions being filed for post-conviction
release for a lot of the kids in these cases. Ultimately, each and every
case is going to get litigated though. We will find out what the Florida
legislature and the Florida judges will do. My guess is that the new
sentences will be all over the place.

What is the next issue regarding Life Without Parole that

needs to go to the Supreme Court?

Harper: Obviously, there is an issue of how kids who did commit

homicides should be treated. There are also a lot of people that are
saying we should now challenge the standing felony-murder statutes
on the basis of Graham. They feel it naturally applies already. But
who knows? The key to me is whether States will decide, as has the
Supreme Court, that kids are different. Some states may say, “How
dare the Court tell us what to do? We will comply, but by making
parole a one-time opportunity only seventy-five years after
conviction.” In the end, I hope that the legislation enacted in the
states that are affected by Graham will incorporate the notion the
Supreme Court has provided and do this in a meaningful way.

Conclusion
The Graham v. Florida decision requires that juveniles sentenced to
life without parole for non-homicide cases must be given “some
meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” 1 A juvenile must first demonstrate that
he is “fit to reenter society,” 2 with Justice Kennedy rather flatly
adding, “a state need not guarantee the offender’s eventual release.”3
The method the States use to implement this ruling, and to ultimately
conform to the Supreme Court’s apparent intentions, is unfortunately
yet unknown: States could comply by providing a token, one-time
review for parole, insufficient to motivate rehabilitation but perhaps
technically compliant with Graham, or States could implement
Graham in a robust way.
To write appropriate and compliant legislation may be difficult,
for it seems that the courts are leaving it to the legislatures to define
what a meaningful opportunity for release may be. However, I am
hopeful that there will soon be a “model parole process” that states
can adopt. Such a model would ensure conformity to the Supreme
Court’s intentions. This kind of law, however, will surely meet
opposition in some states and quarters. It seems that we are early in

1 Graham v. Florida, slip op. 08-7412 at 58 (2009).

2 Id. at 54.
3 Id. at 58.
the game and must wait to see the results of juvenile sentencing
reform in the States to find out the true implications of Graham.