Eighth Amendment Differentness

35 Pages Posted: 2 May 2013 Last revised: 24 Mar 2015

See all articles by William W. Berry

William W. Berry

University of Mississippi School of Law

Date Written: May 1, 2013


This symposium article is part of a broader discussion framed by the question of whether the United States Supreme Court’s recent decision in Miller v. Alabama was a “bombshell” or a “baby step.” Miller held that the Eighth Amendment barred the use of mandatory juvenile life-without-parole (JLWOP) sentences.

As the fifth case in a decade to expand the scope of the Eighth Amendment and the second to broaden its application to juvenile life-without-parole, Miller may be no more than another incremental step within a broader line of cases. On the other hand, Miller suggests a number of possible avenues for considering how to broaden the Eighth Amendment.

And the need to expand the Eighth Amendment has not diminished with the Court’s work over the past decade. In an age of penal populism, the United States remains an outlier, arguably in the history of the world, in its use of mass incarceration of criminal offenders.

Given this reality, this article does not seek to make a normative prediction as to what Miller will mean, as others in the symposium have done quite well. Instead, the article explores what Miller can mean. In doing so, the article aims to highlight different avenues of extending Miller such that it can become a bombshell over time, albeit by offering potential baby steps to theorists and litigators alike.

This contribution, then, illuminates the potential doctrinal and theoretical consequences of the Miller decision within the broader context of the Supreme Court’s Eighth Amendment jurisprudence. Without arguing for one normative outcome over the other and recognizing that the Court’s work in this area has been largely incremental, this article offers an intellectual compass that develops many of the arguments for broadening the Eighth Amendment made more plausible after the Miller decision.

At the heart of this exploration is the concept that “juveniles are different.” Specifically, this article argues that there are two distinct meanings of this conceptualization: (1) that juveniles are unique as offenders and (2) that juvenile life-without-parole is a unique punishment. While certainly not mutually exclusive, each interpretation offers its own set of consequences and paths to pursue in challenging criminal sentences under the Eighth Amendment.

Part I of the article provides the context for the Miller case, outlining the theoretical underpinnings of the Court’s Eighth Amendment jurisprudence. Part II describes the Court’s “different” jurisprudence, linking the concept of “juveniles are different” to the Court’s longstanding view that “death is different.” In Part III, the article demonstrates how the two possible interpretations of the Court’s statement in Miller that “juveniles are different” — as a character-based form of differentness and, in the form of JLWOP, as a punishment-based form of differentness — create distinct theoretical bases for broadening the scope of the Eighth Amendment. Finally, Parts IV and V explore the potential theoretical and doctrinal consequences of each of those understandings.

Keywords: Miller, Graham, Eighth Amendment, Different, Juvenile, JLWOP, LWOP, parole, sentencing

Suggested Citation

Berry, William W., Eighth Amendment Differentness (May 1, 2013). 78 Missouri Law Review 1053 (2013) (Symposium), Available at SSRN: https://ssrn.com/abstract=2259303 or http://dx.doi.org/10.2139/ssrn.2259303

William W. Berry (Contact Author)

University of Mississippi School of Law ( email )

481 Chucky Mullins Drive
P.O. Box 1848
University, MS 38677
United States
6629156859 (Phone)

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