Faculty Journal Articles and Book Chapters


For decades, there was not much growth in the U.S. Supreme Court’s interpretation and application of the Eighth Amendment’s prohibition on cruel and unusual punishments. In recent years, though, the Court has expanded the Amendment’s scope to prohibit executing intellectually disabled and juvenile offenders, to ban capital punishment for all non-homicide offenses against individuals, and to for-bid life-without-parole sentences for juveniles when that punishment was mandatorily imposed or imposed on non-homicide offenders. With changing politics and a changing Court, any further expansion of Eighth Amendment protections will likely be difficult for years to come. With the recent confirmation of Amy Coney Barrett as the newest Supreme Court Justice, the Court has become even more conservative. Politics certainly influences law, even at the Supreme Court level, so future changes in politics even outside the Court could affect Eighth Amendment interpretations. When making Eighth Amendment arguments to the Court, then, framing is important.

This Article suggests that, in this political landscape, there may be some hope for expanding the constitutional requirement of individualized sentencing under the Eighth Amendment. Part I explains that, while the Court has historically re-served this requirement for capital cases, its more recent precedents have whittled away at the distinction between capital and non-capital cases under the Eighth Amendment. Further, the Court has already extended its constitutional requirement of individualized sentencing beyond the capital context, at least to some degree. Part II notes that, while recent cases suggest that the Court is positioned to further expand the Eighth Amendment requirement of individualized sentencing, politics will likely play a role. Thus, how one frames the individualized sentencing argu-ment will be important. Part III explains why persons across the political spectrum may find enhancing individualized sentencing under the Eighth Amendment appealing. First, expanding this requirement could result in more progressive sen-tencing practices, including the prohibition of mandatory sentences and mandatory minimum sentences. It could also work to effect more humane prison conditions. These results would likely appeal to individuals with more progressive views of criminal justice. The Article notes, however, that further emphasizing individual-ized sentencing comes with the risk of weakening uniformity and equality in sen-tencing. The Article next points out that expanding the individualized sentencing requirement may have appeal across the political aisle with religious conservatives —at least theoretically. Individualized sentencing is rooted in the notion of human dignity, which is central to Christian beliefs. Further, individualized sentencing allows greater room for reform and rehabilitation, which are often achieved through religious means. Finally, the Article explains that the increasing practice of individu-alization throughout our lives—from individualized medicine to individualized advertising—is conditioning Americans to expect enhanced individualization in many areas. A heightened constitutional focus on individualized sentencing would be consistent with such expectations. Further, improved science and technology are reg-ularly arming us with additional tools to better achieve individualized determinations related to issues such as culpability, deterrence, and rehabilitation. All this provides a foundation for the Court to build on its precedents to further expand the Eighth Amendment requirement of individualized sentencing.

Publication Title

American Criminal Law Review

Document Type


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Law Commons



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