Eighth Amendment Presumptive Penumbras

54 Pages Posted: 21 Apr 2020

See all articles by William W. Berry

William W. Berry

University of Mississippi School of Law

Date Written: March 27, 2020


Bright line constitutional rules tend to create unfair outcomes in close proximity to the bright line. In the context of the death penalty, such distinctions possess an entirely different level of seriousness that requires deeper reflection. This Article develops the concept of presumptive penumbras around capital constitutional bright lines, and argues for its application to juvenile offenders under the Eighth Amendment. Specifically, the Article advocates, within the current constitutional rules, for a presumption against the imposition of the death penalty or JLWOP in cases where the age of the offender is in proximity to—within the penumbra of— the bright line of age eighteen.

Part I of the Article explains the inherent problems that stem from bright line rules, and how both the Constitution and the death penalty exacerbate such problems. In Part II, the Article advances a typology of “presumptive penumbras”—a tool for minimizing the problems identified in Part I. Then, in Part III, the Article applies the concept of presumptive penumbras to bright line rules related to juvenile offenders under the Eighth Amendment. Finally, in Part IV, the Article concludes by sketching out some additional potential applications of presumptive penumbras to other criminal law bright lines under the Eighth Amendment.

Keywords: penumbra, Eighth Amendment, juvenile, LWOP, death penalty, parole, presumption, bright line rule, JLWOP

Suggested Citation

Berry, William W., Eighth Amendment Presumptive Penumbras (March 27, 2020). Iowa Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3562382

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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