a changing Court, any further expansion of Eighth Amendment protections will
likely be difﬁcult for years to come. With the recent conﬁrmation of Amy Coney
Barrett as the newest Supreme Court Justice, the Court has become even more con-
Politics certainly inﬂuences law, even at the Supreme Court level,
future changes in politics even outside the Court could affect Eighth Amendment
interpretations. When making Eighth Amendment arguments to the Court, then,
framing is important.
This Article suggests that, in this political landscape, there may be some hope
for expanding the constitutional requirement of individualized sentencing under
the Eighth Amendment. Part I explains that, while the Court has historically re-
served this requirement for capital cases, its more recent precedents 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 degree.
Part II notes that, while recent cases suggest that the Court is positioned to further
expand the Eighth Amendment requirement of individualized sentencing, politics
will likely play a role. Thus, how one frames the individualized sentencing argu-
ment will be important. Part III explains why persons across the political spectrum
may ﬁnd enhancing individualized sentencing under the Eighth Amendment
appealing. First, expanding this requirement could result in more progressive sen-
tencing practices, including the prohibition of mandatory sentences and mandatory
minimum sentences. It could also work to effect more humane prison conditions.
These results would likely appeal to individuals with more progressive views of
criminal justice. The Article notes, however, that further emphasizing individual-
ized sentencing comes with the risk of weakening uniformity and equality in sen-
tencing. The Article next points out that expanding the individualized sentencing
requirement may 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
of a life without parole sentence on a juvenile offender who did not commit homicide.”); Introduction, supra note
1, at 2. Beyond the prohibition on cruel and unusual punishments, the Court has also ﬁnally explicitly
incorporated the Excessive Fines Clause of the Eighth Amendment such that it now applies to the states. Timbs
v. Indiana, 139 S. Ct. 682, 687 (2019) (“The Excessive Fines Clause is therefore incorporated by the Due Process
Clause of the Fourteenth Amendment.”).
5. See Veronica Rocha, Amy Coney Barrett’s Senate Conﬁrmation Vote, CNN: POL. (Oct. 27, 2020), https://
6. See MORRIS P. FIORINA & PAUL E. PETERSON, THE NEW AMERICAN DEMOCRACY 503 (2d ed. 2002)
(explaining that “Supreme Court decisions have ﬂuctuated with changes in public opinion”); Christopher J.
Casillas, Peter K. Enns & Patrick C. Wohlfarth, How Public Opinion Constrains the U.S. Supreme Court, 55 AM.
J. POL. SCI. 74, 86 (2010) (“[T]he public mood directly constrains the justices’ behavior and the Court’s policy
outcomes, even after controlling for social forces that inﬂuence the public and the Supreme Court.”); Isaac Unah,
Kristen Rosano & K. Dawn Milam, U.S. Supreme Court Justices and Public Mood, 30 J.L. & POL. 293, 295
(2015) (“We argue that in American democracy, public mood (an aggregation of individual policy sentiments)
has a statistically signiﬁcant effect on the voting behavior of individual Justices even though Supreme Court
Justices are unelected and therefore unaccountable to the people.”).
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