In Jones v. Mississippi, the Supreme Court of the United States adopted a narrow reading of its Eighth Amendment categorical bar on mandatory juvenile life-without-parole (JLWOP) sentences. Specifically, the Court rejected Jones’s 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 unclear 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. Part One of this Article describes the Court’s evolving standards of decency doctrine and Eighth Amendment’s categorical limitations on capital and JLWOP sentences. In Part Two, this Article explains the other side of the application of the Eighth Amendment—the narrow disproportionality test that the Court uses to evaluate as-applied challenges in individual non- capital, non-JLWOP cases. Part Three then argues for the adoption of heightened as-applied standards of review in individual capital and JLWOP cases as an application of the evolving standards of decency doctrine.