« Highlighting still more notable new Inquest essays | Main | Looking forward to seeing work of new Plea Bargaining Institute »

December 17, 2022

"Unconstitutional Punishment Categories"

The title of this post is the title of this article authored by William W. Berry III now available via SSRN. Here is its abstract:

Two terms ago, the Supreme Court decided Jones v. Mississippi, in which it upheld but arguably narrowed its Eighth Amendment categorical bar on the imposition of mandatory juvenile life-without-parole (JLWOP) sentences. Specifically, the Court held that the Eighth Amendment did not require a fact-finding prerequisite to the imposition of JLWOP sentences.  The opinion, however, did not speak to the question of whether other categories of JLWOP sentences might violate the Eighth Amendment.

Indeed, the Court has identified six categories of capital punishment that the Eighth Amendment proscribes: (1) mandatory death sentences; (2) executions of juveniles; (3) executions of intellectually disabled defendants; (4) executions for certain felony murder crimes; (5) executions for the crime of adult rape; and (6) executions for the crime of child rape.  The Court has extended some of the categorical punishment bars to JLWOP, covering three of the unconstitutional capital punishment categories — mandatory JLWOP sentences, JLWOP sentences for adult rape, and JLWOP sentences for child rape.

The open question is whether the other three unconstitutional death penalty categories under the Eighth Amendment also apply to JLWOP sentences.  This Article explores that doctrinal gap. While the Court’s decision in Jones v. Mississippi suggests that it is not eager to expand the scope of Eighth Amendment generally and the scope of JLWOP in particular, the Court has never explicitly concluded that JLWOP is fundamentally different from the death penalty for purposes of the Eighth Amendment.  And if the death penalty and JLWOP are the same for Eighth Amendment purposes, applying the remaining unconstitutional death penalty categories to JLWOP would not be expanding the doctrine, but simply completing it.  This Article argues that the Court should take that step if presented with the opportunity.

December 17, 2022 at 09:29 PM | Permalink


Juveniles should not be sentenced to life at all. I oppose trying children as adults because they are not adults.

Posted by: anon | Dec 18, 2022 5:51:30 PM

Yet another "be nice to criminals" post.

Posted by: federalist | Dec 19, 2022 1:29:52 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB