Framing Individualized Sentencing for Politics and the Constitution

FRAMING INDIVIDUALIZED SENTENCING FOR POLITICS AND

THE CONSTITUTION

Meghan J. Ryan*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1747

I. THE COURT’S FOCUS ON INDIVIDUALIZATION IN SENTENCING . . . . . . . . . 1749

II. THE POLITICS OF PUNISHMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1753

III. THE POTENTIALLY BROAD APPEAL OF INDIVIDUALIZED SENTENCING. . . . . 1755

A. Sentencing Under Strengthened Individualization . . . . . . . . . . 1755

B. The Equality Concern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1759

C. An Aspect of Dignity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1764

D. Religion, Reform, and Rehabilitation . . . . . . . . . . . . . . . . . . . 1768

E. A Society of Heightened Individualization . . . . . . . . . . . . . . . 1770

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1773

INTRODUCTION

For decades, there was not much growth in the U.S. Supreme Court’s interpreta-

tion and application of the Eighth Amendment’s prohibition on cruel and unusual

punishments.

1

In recent years, though, the Court has expanded the Amendment’s

scope to prohibit executing intellectually disabled and juvenile offenders,

2

to ban

capital punishment for all non-homicide offenses against individuals,

3

and to for-

bid life-without-parole sentences for juveniles when that punishment was manda-

torily imposed or imposed on non-homicide offenders.

4

With changing politics and

* Associate Dean for Research, Robert G. Storey Distinguished Faculty Fellow, Gerald J. Ford Research

Fellow, Altshuler Distinguished Teaching Professor, and Professor of Law, Southern Methodist University

Dedman School of Law. I thank Doug Berman, Shon Hopwood, and Norm Reimer for inviting me to be part of

this wonderful Symposium. I also thank Corinna Barrett Lain, John Stinneford, Mike Mannheimer, Will Berry,

and Jelani Jefferson Exum for a wonderful Symposium discussion about sentencing arguments under the

Constitution, which helped me refine my thoughts for this piece. Finally, I am indebted to Jenia Turner and Eric

Ruben for their helpful comments. © 2021, Meghan J. Ryan.

1. See Introduction to THE EIGHTH AMENDMENT AND ITS FUTURE IN A NEW AGE OF PUNISHMENT 1 (Meghan

J. Ryan & William W. Berry III eds., 2020) (noting that “the Eighth Amendment has, for decades, remained

largely a dead letter”).

2. Roper v. Simmons, 543 U.S. 551, 578 (2005) (“The Eighth and Fourteenth Amendments forbid imposition

of the death penalty on offenders who were under the age of 18 when their crimes were committed.”); Atkins v.

Virginia, 536 U.S. 304, 321 (2002) (“Construing and applying the Eighth Amendment in the light of our

‘evolving standards of decency,’ we therefore conclude that [executing intellectually disabled offenders] is

excessive and that the Constitution ‘places a substantive restriction on the State’s power to take the life’ of a

mentally retarded offender.” (citations omitted)).

3. Kennedy v. Louisiana, 554 U.S. 407, 437 (2008) (“As it relates to crimes against individuals, though, the

death penalty should not be expanded to instances where the victim’s life was not taken.”).

4. Miller v. Alabama, 567 U.S. 460, 465 (2012) (“We therefore hold that mandatory life without parole for

those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and

unusual punishments.’”); Graham v. Florida, 560 U.S. 48, 82 (2010) (“The Constitution prohibits the imposition

1747

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-

servative.

5

Politics certainly influences law, even at the Supreme Court level,

6

so

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://

www.cnn.com/politics/live-news/amy-coney-barrett-senate-confirmation-vote/index.html.

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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