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August 16, 2010

"More Different than Life, Less Different than Death"

The title of this post is the title of this terrific-looking new piece by William Berry which discusses the Supreme Court's recent work in the juve LWOP case of Graham v. Florida and makes an argument for LWOP sentences to receive a unique form of Eighth Amendment scrutiny.  Here is the piece's 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.

August 16, 2010 at 01:40 PM | Permalink


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The U.S. Supreme Court in Graham v. Florida didn't order a specific remedy. Has the trial court come up with one? What changes in the law are being considered by the legislature in Florida?

Posted by: ohwilleke | Aug 16, 2010 6:26:25 PM

Yes, let's create another abomination like the mess that is death penalty jurisprudence. Wading into that swamp has worked out /so/ well for the justices over the last several decades.

It must be nice to be able to order your fantasy life into operation with no personal consequences other than being called nasty names.

Posted by: Soronel Haetir | Aug 16, 2010 7:38:47 PM

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