Eighth Amendment Differentness

By Berry, William W.,, III | Missouri Law Review, Fall 2013 | Go to article overview

Eighth Amendment Differentness


Berry, William W.,, III, Missouri Law Review


I. INTRODUCTION

Be an opener of doors.

--Ralph Waldo Emerson (1)

In March 2013, I had the privilege of participating in a symposium at the University of Missouri School of Law that addressed the question of whether the United States Supreme Court's recent decision in Miller v. Alabama was a "bombshell" or a "baby step." (2) As discussed below, Miller held that the Eighth Amendment barred the use of mandatory juvenile life-without-parole (LWOP) sentences. (3)

As the fifth case in a decade to expand the scope of the Eighth Amendment (4) and the second to broaden its application to juvenile LWOP, (5) Miller certainly may be no more than another incremental step within a broader line of cases. (6) On the other hand, Miller suggests a number of possible avenues for broadening the Eighth Amendment. And the need to expand the Eighth Amendment has not diminished with the Court's work over the past decade. (7) 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. (8)

Contrary to Professor Frank Bowman's claim, the Court's recent Eighth Amendment cases are not a judicial revolution seeking to curb the power of legislatures. (9) Rather, the Supreme Court's expansion of the Eighth Amendment, as Judge Nancy Gertner suggests, simply restores an absent Court to its proper role of policing legislative overreaching. (10) Prior to its 2002 decision in Atkins v. Virginia, the Supreme Court largely abdicated its role of protecting the rights of individuals against the majoritarian legislative enactments that have resulted in the United States' position as an outlier in the world in its use of severe punishments. (11) The failure to abolish capital punishment, (12) the proliferation of mandatory minimum sentences, (13) the expansive use of LWOP sentences, (14) and the mass incarceration of criminal offenders (15) render the United States unique among Western nations in its harsh approach to criminal sentencing. (16)

Given this reality, this Article does not seek to offer a prediction as to what Miller will mean, as others in the symposium have done quite well. (17) Instead, the Article explores what Miller can mean. In doing so, the Article highlights different avenues for extending Miller such that it can become a bombshell over time, albeit by offering potential baby steps to theorists and litigators alike. (18)

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 road map 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." (19) Specifically, this Article argues that there are two distinct meanings of this conceptualization: (1) that juveniles are unique as offenders, and (2) that juvenile LWOP 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 II of the Article provides the context for the Miller case, outlining the theoretical underpinnings of the Court's Eighth Amendment jurisprudence. Part III describes the Court's "different" jurisprudence, linking the concept of "juveniles are different" to the Court's longstanding view that "death is different." (20) In Part IV, 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 case of juvenile LWOP, as a punishment-based form of differentness--create distinct theoretical bases for broadening the scope of the Eighth Amendment. …

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