The Evolving Standards, As Applied

56 Pages Posted: 19 Jul 2021

See all articles by William W. Berry

William W. Berry

University of Mississippi School of Law

Date Written: July 15, 2021

Abstract

In Jones v. Mississippi, the Supreme Court adopted a narrow reading of its Eighth Amendment categorical bar on mandatory juvenile life-without-parole (JLWOP) sentences. Specifically, the Court rejected the Jones’ claim that the Eighth Amendment categorical limit required a sentencing jury or judge make a finding of permanent incorrigibility—that the defendant is beyond hope of rehabilitation—as a prerequisite to imposing a JLWOP sentence.

In dicta, the Court suggested that Jones could have made an individual as-applied challenge to his sentence under the Eighth Amendment by claiming that his JLWOP sentence was disproportionate to the crime he committed. While the Court has used a narrow disproportionality standard in non-capital, non-JLWOP cases, it is not clear what standard would apply to individual as-applied Eighth Amendment challenges in capital and JLWOP cases. The Court customarily reviews such cases categorically under a heightened evolving standards of decency standard, which suggests that an individual as-applied challenge would also merit some heightened level of review.

Accordingly, this Article argues for the adoption of heightened standards of Eighth Amendment review for individual as-applied proportionality challenges in capital and JLWOP cases. Specifically, the Article advocates for the adoption of an intermediate level of review for JLWOP cases and a strict scrutiny level of review for capital cases. Further, the Article argues for a broadening of the kinds of sentences that receive heightened scrutiny under the Eighth Amendment, both for categorical challenges and for individual as-applied proportionality challenges.

Part One of the Article describes the Court’s evolving standards of decency doctrine and Eighth Amendment’s categorical limitations on capital and JLWOP sentences. In Part Two, the Article explains the other side of the application of the Eighth Amendment, the narrow disproportionality test the Court uses to evaluate as-applied challenges in individual non-capital, non-JLWOP cases. Part Three then argues for the adoption of heightened as-applied standards of review in individual capital and JLWOP cases as an application of the evolving standards of decency doctrine. Finally, Part IV sketches some possible extensions of the Eighth Amendment’s evolving standards to other punishments and other classes of defendants.

Keywords: Eighth Amendment, As-Applied, Evolving Standards of Decency, JLWOP, LWOP, death penalty, Jones v. Mississippi, Miller v. Alabama, Irreparably Corrupt, punishment, sentencing

Suggested Citation

Berry, William W., The Evolving Standards, As Applied (July 15, 2021). Available at SSRN: https://ssrn.com/abstract=3887823 or http://dx.doi.org/10.2139/ssrn.3887823

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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