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Berry on the 8th Amendment & "Death is Different"

By Lawrence Solum

William W. Berry III (University of Mississippi School of Law) has posted More Different than Life, Less Different than Death on SSRN. Here is the abstract:

The Supreme Court has traditionally divided its application of the Eighth Amendment into two categories, capital and non-capital cases, based on the longstanding notion that ?death- is-different.? In the recent case of Graham v. Florida, however, the Supreme Court applied its ?evolving standards of decency? standard, heretofore reserved for capital cases, to a non-capital case in holding that the Eighth Amendment prohibited states from sentencing juvenile offenders to life without parole for non-homicide crimes. The dissenting justices argued that this decision marked the end of the Court?s ?death-is-different? jurisprudence.

This article argues, however, that the decision instead creates the opportunity to establish a new category of Eighth Amendment review for life without parole sentences. While life without parole may not be as ?different? from other sentences as death, it is still ?different? enough to warrant its own set of heightened standards of Eighth Amendment review.

Part One of the article describes the dichotomy between capital and non-capital cases in the Supreme Court?s Eighth Amendment jurisprudence and the application of these two lines of cases in Graham v. Florida. Part Two of the article explains why life without parole, a sentence to die in prison, is ?different? in its own way. Part Three then argues for the application of a new category of standards under the Eighth Amendment in life without parole cases, and suggests other possible implications of Graham.

Full post as published by Legal Theory Blog on May 25, 2010 (boomark / email).