Proportionality and Parole

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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.

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