Abstract

http://ssrn.com/abstract=1993347
 


 



Death Is Not So Different After All: Graham v. Florida and the Court’s 'Kids Are Different' Eighth Amendment Jurisprudence


Mary Berkheiser


University of Nevada, Las Vegas, William S. Boyd School of Law

2011

Vermont Law Review, Vol. 36, p. 1, 2011
UNLV William S. Boyd School of Law Legal Studies Research Paper

Abstract:     
In Graham v. Florida, the United States Supreme Court declared that life sentences without the possibility of parole for non-homicides are off limits for all juveniles. Following its lead in Roper v. Simmons, the landmark decision in which the Court abolished the juvenile death penalty, the Court expanded on its Eighth Amendment juvenile jurisprudence by ruling that locking up juveniles for life based on crimes other than homicides is cruel and unusual and, therefore, prohibited by the Eighth Amendment. With that ruling, the Court erected a categorical bar to incarcerating forever those not yet adults at the time of their crimes. That categorical exclusion is itself a momentous development, and it will impact directly the lives of the 129 juvenile offenders whose sentences for non-homicides have relegated them to prison with no prospect of ever being freed. Of even greater import for the thousands of juvenile offenders whose sentences Graham does not impact directly, however, is the legal reasoning the Court used in striking down juvenile life without parole for non-homicides. The Court employed an analytical approach previously reserved exclusively for death penalty cases, and it did so without fanfare or elaboration. With Graham, the Court unceremoniously dismantled the wall that has separated its “death is different” jurisprudence from non-capital sentencing review since 1972. In its place, the Court fortified an expansive “kids are different” jurisprudence that traces its roots to Thompson v. Oklahoma and is now firmly planted with the Court’s rulings in Roper and Graham. Just as Graham crossed the rigid divide between the Court’s death and non-death cases, it places the Court’s categorical approach to sentencing, formerly the exclusive province of the death penalty, within reach of all juveniles serving adult sentences.

Number of Pages in PDF File: 63

Keywords: juveniles, crime, sentencing, life sentences, Graham v. Florida, Eighth Amendment, cruel and unusual punishment

Accepted Paper Series





Download This Paper

Date posted: January 30, 2012  

Suggested Citation

Berkheiser, Mary, Death Is Not So Different After All: Graham v. Florida and the Court’s 'Kids Are Different' Eighth Amendment Jurisprudence (2011). Vermont Law Review, Vol. 36, p. 1, 2011; UNLV William S. Boyd School of Law Legal Studies Research Paper. Available at SSRN: http://ssrn.com/abstract=1993347

Contact Information

Mary Berkheiser (Contact Author)
University of Nevada, Las Vegas, William S. Boyd School of Law ( email )
4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States
Feedback to SSRN


Paper statistics
Abstract Views: 564
Downloads: 92
Download Rank: 172,363

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.313 seconds