Random If Not 'Rare'? The Eighth Amendment Weakness of Post-Miller Legislation

Abstract

First, this Article surveys the U.S. Supreme Court’s decision to analogize life without parole for juveniles to the death penalty for adults, and discusses the Eighth Amendment law regarding the parameters around death penalty statutory schemes. Second, this Article examines the state legislative response to Miller v. Alabama, and scrutinizes it with the Court’s Eighth Amendment death penalty law — and the states’ responses to this case law — in mind. This Article highlights the failure of juvenile homicide sentencing provisions to: 1) narrow offenses that are eligible for life without parole sentences; 2) further limit, once a guilty finding is made, the categories of offenders to the most likely to have demonstrated “irreparable corruption,”; and 3) provide for meaningful appellate review, among other deficiencies.

Keywords: The Eighth Amendment, Death Penalty Legislation

JEL Classification: K00, K14, K40