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More Different Than Life, Less Different Than Death, William W. Berry Iii

William W Berry III

The Supreme Court has traditionally divided its application of the Eighth Amendment into two categories, capital and non-capital cases, based on the longstanding notion that “death- is-different.” In the recent case of Graham v. Florida, however, the Supreme Court applied its “evolving standards of decency” standard, heretofore reserved for capital cases, to a non-capital case in holding that the Eighth Amendment prohibited states from sentencing juvenile offenders to life without parole for non-homicide crimes. The dissenting justices argued that this decision marked the end of the Court’s “death-is-different” jurisprudence. This article argues, however, that the decision instead creates the opportunity …