In Graham v. Florida, the Supreme Court barred the imposition of life without parole sentences on individuals convicted of nonhomicide offenses committed before the age of eighteen.’ The decision is unquestionably landmark, representing the first time the Court ever applied its more searching “categorical” Eighth Amendment analysis-heretofore reserved solely for capital sentences-to a term-of-years sentence. In striking down life without parole for an entire class of offenders, the Court ruptured the longstanding jurisprudential barrier between capital and non-capital sentences, prompting even the normally reserved Justice Clarence Thomas to declare dramatically in dissent that “‘death is different’ no longer.”

Graham is most notable, however, for what it does not do.

Despite language theoretically broad enough to encompass all juveniles sentenced to life without parole, Graham’s holding is explicitly limited only to individuals convicted of nonhomicide crimes. By limiting its holding in this way, the Court declined to address the fates of the vast majority of individuals-ninety-three percent, or more than 2,300persons-who are serving life-without-without parole sentences for homicide crimes committed as juveniles, including attempted and accomplice murder.

Far from ending the debate about the propriety and constitutionality of juvenile life without parole (“JLWOP”), Graham only intensified it. ForJLWOP abolitionists, therefore, the critical question in the post-Graham legal landscape is how to extend Graham beyond the relatively limited context of nonhomicide crimes. In other words, what happens next? ThisArticle will seek to provide an answer.

Advocates for juvenile justice have worked for years to enact legislative change at the state level and there are promising signals that some states are reassessing juvenile justice.’ Texas passed a law in 2009 eliminating JLWOP;’ Michigan,’ California,’ and Iowa9 are now considering similar legislation; and other states are also reassessing laws allowing for the transfer of juveniles to adult courts.0 However, state legislatures generally remain supportive of JLWOP: forty-four states and the federal government” still allow JLWOP for homicide. This is striking given that there are no youth prisoners outside of the United States serving the sentence.” Even the most promising legislation, such as that in Texas, still only mandates parole review after forty years4 and does not even take retroactive effect.” This kind of limited legislation may be the best that advocates can hope for from the states.

Litigation strategies to extend Graham to JLWOP for homicide are similarly unlikely to gain significant traction in lower federal or state courts due to the explicitly limited, and already unprecedented, nature ofGraham.” And it is even more unlikely that the Supreme Court will readdress the issue any time soon given Graham’s recency and the historically constrained Eighth Amendment review of sentences outside ofthe death penalty.” Put simply, Graham is as far as the Court will likely goin the foreseeable future. What is more, JLWOP litigation efforts are in some ways in tension with state legislative advocacy strategies. If courts see that legislatures are considering reforms-whether or not those reforms are sufficient or likely to pass-the courts may defer constitutional decisions to the political process, which will take far longer to have an impact than a judicial opinion.

Thus neither the states nor the courts seem likely to, or capable of, extending Graham beyond its limited scope. This leaves Congress. Scant advocacy and scholarly attention has focused on the potential forCongressional action on the issue of JLWOP. Given Congress’s virtually non-existent history of “leniency legislation,”” this is not at all surprising.Those familiar with the process and politics of federal criminal lawmaking have serious and legitimate cause to doubt the likelihood that federal legislation will be able to address the JLWOP problem. This Article, however, will argue there are significant reasons to believe that the issue ofJLWOP could buck the timeless “one-way ratchet”” that has traditionally characterized federal criminal lawmaking.

Congress has already entered the JLWOP fray. The Juvenile JusticeAccountability and Improvement Act (“JJAIA”)-introduced in theHouse of Representatives in 2007 and again in 2009-proposes to useCongress’s Spending Power to condition federal funds allocated for crime control on states’ creation of meaningful parole or supervised release opportunities for individuals convicted of crimes they committed before the age of eighteen. While the legislation has yielded two substantively rich hearings, and some advocacy attention, neither bill has made it out of committee, though the sponsors plan to reintroduce until it passes.

The quicksand in which the JJAIA is currently mired consists of the same, considerable obstacles facing any Congressional attempt at leniency legislation. First, there is an entrenched political process bias against leniency legislation in Congress. This bias is grounded in the fear of appearing “soft on crime,” the notion, both real and perceived, that public opinion opposes leniency, and the vast inequalities in interest group power. Second, whether for political cover or out of legitimate constitutional concern, federalism costs associated with federal intrusion into the states’ traditional control over crime and punishment disincentivize Congressional action.

This Article will use the JJAIA and the issue of JLWOP generally to evaluate and respond to these classic obstacles to federal leniency legislation. While the passage of the JJAIA through Congress’s SpendingPower is but one of the ways that Congress could potentially act to abolishJLWOP, the fact that the legislation has already been introduced makes it a useful and appropriate case study.

Whether or not Congress will actually act to pass the JJAIA – or whether the sponsors will continue to introduce it in its current form, or at all, especially in light of the shift in political power after the 2010 midterm elections – is not a question I can possibly answer, nor one on which I will focus in this Article. Assuming the status quo of Congressional reluctance paired with the skepticism of sentencing advocates it seems likely thatCongress will not pass this legislation. This Article will also not advocate for the abolition of JLWOP. Its goal is far more modest. The aim is to highlight for criminal justice reformists the potential for Congress to pass leniency legislation and to illustrate to members of Congress that endingJLWOP will neither be political suicide nor sound the death knell of federalism as we know it. Such legislation, I argue, is what could come next, after Graham.The Article proceeds in three parts. Part II summarizes the history and current state of JLWOP advocacy, describes the JJAIA, and discussesGraham and the legal landscape post-Graham. Part III explains the roots of the political process bias of criminal law in Congress and develops a framework for assessing whether JLWOP could buck the traditional trend toward harsher sentencing laws. I argue that the political process bias that has doomed leniency legislation in the past is actually far weaker in the context of JLWOP. This is because of current political tides in favor of criminal justice reform, the uniquely sympathetic nature of juveniles, the strong interest groups aligned in favor of juveniles, the media’s attention to the powerful emotional image of juveniles sentenced to life in prison without hope of release, and public opinion that tends to support rehabilitation and differential penal treatment for juveniles.

Part IV describes the role and import of federalism in this debate and develops a framework for assessing whether the JJAIA properly respects federalism values. I ultimately conclude that the passage of the JJAIA is both necessary and proper and that Congress’s federalism concerns are overstated. Federalism costs are diminished in the context of JLWOP because the slight incursions into state sentencing prerogatives are vastly outweighed by Congress’s necessary role in protecting our nation’s position and reputation in foreign affairs and human rights, as well asCongress’s historical concern with reducing racial discrimination of U.S.citizens.