Constitutionally Tailoring Punishment

57 Pages Posted: 9 Jul 2013 Last revised: 9 Jul 2014

See all articles by Richard A. Bierschbach

Richard A. Bierschbach

Wayne State University Law School

Stephanos Bibas

University of Pennsylvania Law School

Date Written: June 2014


Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on retail, individualized input and reflect the views and perspectives of multiple institutional actors. This new understanding illuminates how both doctrines relate to the Court’s earlier regulation of capital sentencing and how checks and balances can promote just punishment in a pluralistic system. It also underscores the need for other actors to complete the Court’s work outside the confines of rights-based judicial doctrines, by experimenting with a broader range of reforms that are not constitutionally required but rather are constitutionally inspired.

Keywords: Sixth Amendment, Eighth Amendment, sentencing, plea bargaining, punishment, individualization, parole, juries, prosecutorial discretion, proportionality, separation of powers, checks and balances, Graham, Miller, Apprendi, Woodson, Lockett, capital punishment

Suggested Citation

Bierschbach, Richard A. and Bibas, Stephanos, Constitutionally Tailoring Punishment (June 2014). Michigan Law Review, Vol. 112, No. 3, 2013, U of Penn Law School, Public Law Research Paper No. 13-17, Cardozo Legal Studies Research Paper No. 402, Available at SSRN:

Richard A. Bierschbach (Contact Author)

Wayne State University Law School ( email )

471 Palmer
Detroit, MI 48202
United States

Stephanos Bibas

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2297 (Phone)


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