The Evolving Standards, As Applied

Florida Law Review (2022)

Full Citation

The Evolving Standards, As Applied, 74 Fla. L. Rev. 775 (2022)

Author(s)

William W. Berry III

Publication

Florida Law Review

Abstract

In Jones v. Mississippi, the Supreme Court adopted a narrow reading of its Eighth Amendment categorical bar on mandatory juvenile life-without-parole (JLWOP) sentences. Specifically, the Court rejected the Jones’ claim that the Eighth Amendment categorical limit required a sentencing jury or judge make a finding of permanent incorrigibility—that the defendant is beyond hope of rehabilitation—as a prerequisite to imposing a JLWOP sentence.

In dicta, the Court suggested that Jones could have made an individual as-applied challenge to his sentence under the Eighth Amendment by claiming that his JLWOP sentence was disproportionate to the crime he committed. While the Court has used a narrow disproportionality standard in non-capital, non-JLWOP cases, it is not clear what standard would apply to individual as-applied Eighth Amendment challenges in capital and JLWOP cases. The Court customarily reviews such cases categorically under a heightened evolving standards of decency standard, which suggests that an individual as-applied challenge would also merit some heightened level of review.

Accordingly, this Article argues for the adoption of heightened standards of Eighth Amendment review for individual as-applied proportionality challenges in capital and JLWOP cases. Specifically, the Article advocates for the adoption of an intermediate level of review for JLWOP cases and a strict scrutiny level of review for capital cases. Further, the Article argues for a broadening of the kinds of sentences that receive heightened scrutiny under the Eighth Amendment, both for categorical challenges and for individual as-applied proportionality challenges.