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Graham v. Fl,orida,1 the Supreme Court's 2010 decision finding a life without parole sentence for a non-homicide crime committed by a juvenile "cruel and unusual' ' has rightly been recognized as a "watershed."2 A major focus of the extensive commentary on the case has been on its application of the "evolving standards of decency'' test to a punishment outside of the death penalty, and to whether Graham might apply also to adults.3 Equally important in Graham, but subject to comparatively less critical attention,4 is the central role that the rehabilitative theory of punishment plays in its holding both as a matter of rhetoric and as a matter of substance. A sentence to imprisonment without the possibility of parole for Graham, the Court explained, would foreswear "altogether the rehabilitative ideal," which was unacceptable.6 "Life in prison without the possibility of parole," Justice Kennedy wrote for the Court, "gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope."6 "This," he concluded, "the Eighth Amendment does not permit" at least when dealing with those under the age of eighteen.7 The state must "give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. "8

What is rehabilitation, and what does it mean to have it as an ideal? Francis Allen in his major work on the subject, The Decline of the Rehabilitatiue Ideal (from which Justice Kennedy consciously or unconsciously borrowed the phrase9), noted that rehabilitation was an inherently complex term, filled with ambiguities.10 Moreover, as the title to Allen's book reveals, rehabilitation was, as early as the 1970s, being abandoned as a primary justification for punishment and viewed with skepticism as any part of the justification for punishment.11 Kennedy's use of rehabilitation was not merely BUl'prising in the context of a Supreme Court opinion, where more attention is usually paid to retributive and deterrent theories;12 it was surprising in the context of punishment theory and practice more generally.13 The punishment literature and the literature on Graham has not yet come to grips with the full implication of the Graham decision because it has incompletely understood the meanings of "rehabilitation." 14

This Article gives an overview of the Supreme Court's engagement with the "rehabilitative ideal" in Graham as well as two other recent cases....