The title of this post is the title of this timely new paper now available via SSRN authored by Meghan Ryan. Here is its abstract:
For decades, there was not much growth in the U.S. Supreme Court’s interpretation and application of the Eighth Amendment. In recent years, though, the Court has expanded the Amendment to prohibit executing intellectually disabled and juvenile offenders, to ban capital punishment for all non-homicide offenses against individuals, and to prohibit life-without-parole 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 nomination of Amy Coney Barrett as the newest Supreme Court Justice, the Court is becoming more conservative. Politics certainly influence 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, framing is important.
This Article suggests that, in this political landscape, there may be some hope for the expansion of the constitutional requirement of individualized sentencing. While the Court has historically reserved this requirement for capital cases, its more recent cases 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 extent. While recent cases suggest that the Court is positioned to further expand the Eighth Amendment requirement of individualized sentencing, politics will likely have a role to play. If one carefully frames the argument, there is the potential that persons across the political spectrum may find enhancing individualized sentencing under the Eighth Amendment appealing.
First, expanding this requirement could result in more progressive sentencing practices, including the prohibition of mandatory sentences and mandatory minimum sentences. It could also work to effect more humane prison conditions. Further emphasizing individualized sentencing, however, does come with the risk of weakening uniformity and equality in sentencing. On the other hand, individualized sentencing may also 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 increasing practice of individualization throughout our lives — from individualized medicine to individualized advertising — is conditioning Americans to expect enhanced individualization across disciplines. A heightened constitutional focus on individualized sentencing would be consistent with such expectations. Further, improved science and technology are regularly arming us with additional tools to better achieve individualized determinations related to sentencing considerations like culpability, deterrence, and rehabilitation. This provides a foundation for the Court to build on its precedents to increase the Eighth Amendment requirement of individualized sentencing.
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