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Individualized Sentencing William W Washington and Lee Law Review Volume 76 | Issue 1 Article 4 5-24-2019 Individualized Sentencing William W. Berry University of Mississippi School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Constitutional Law Commons, Courts Commons, Criminal Law Commons, and the Criminal Procedure Commons Recommended Citation William W. Berry, Individualized Sentencing, 76 Wash. & Lee L. Rev. 13 (2019), https://scholarlycommons.law.wlu.edu/wlulr/vol76/iss1/4 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Individualized Sentencing William W. Berry III* Abstract In Woodson v. North Carolina, the Supreme Court proscribed the use of mandatory death sentences. One year later, in Lockett v. Ohio, the Court expanded this principle to hold that defendants in capital cases were entitled to “individualized sentencing determinations.” The Court’s reasoning in both cases centered on the seriousness of the death penalty. Because the death penalty is “different” in its seriousness and irrevocability, the Court required the sentencing court, whether judge or jury, to assess the individualized characteristics of the offender and the offense before imposing a sentence. In 2012, the Court expanded this Eighth Amendment concept to juvenile life-without-parole sentences in Miller v. Alabama. Specifically, the Court held that juvenile offenders also were unique—in their capacity for rehabilitation and their diminished culpability—such that they too deserved individualized sentencing determinations. The seriousness of the sentence in question, life without parole, also factored into the Court’s decision to extend the individualized sentencing requirement to juvenile life without parole cases. Felony convictions, however, are serious too. The current consequences for a felony conviction in most states result in dehumanizing effects that extend far beyond release including loss of right to vote, state surveillance, and loss of the right to own a firearm, not to mention social stigma. As such, this Article argues for an extension of the Court’s Eighth Amendment individualized sentencing principle to all felony cases. Doing so would require the Court to overrule its prior decisions, including Harmelin v. * Associate Professor, University of Mississippi School of Law. I would like to thank the editors of the Washington and Lee Law Review for their outstanding work in editing and bluebooking this Article. It was a pleasure to work with them. 13 14 76 WASH. & LEE L. REV. 13 (2019) Michigan, but the Court’s opinion in Miller hints at a willingness to do just that. While initially valuable in ensuring that capital cases received heightened scrutiny, the unintentional consequence of the Court’s differentness principle is that non-capital cases have received almost no constitutional scrutiny. The individualized sentencing determination requirement provides one simple way to begin to remedy this shortcoming. Adopting this doctrinal extension would have three major consequences: (1) it would provide each defendant his day in court in the face of serious, lifelong deprivations; (2) it would eliminate draconian mandatory sentencing practices; and (3) it would shift the sentencing determination away from prosecutors back to judges. Part I of the Article describes the evolution of the individualized sentencing doctrine. Part II exposes the unintended consequences of the differentness concept, and unearths the theoretical principles behind individualized sentencing. In Part III, the Article argues for the expansion of the current doctrine and explains why the current roadblocks are not insurmountable. Part IV then explores the consequences of broadening the application of the individualized sentencing doctrine for defendants, legislators, and judges alike. Table of Contents I. Introduction ........................................................................ 15 II. The Genesis and Evolution of Individualized Sentencing .......................................................................... 24 A. Capital Individualized Sentencing ............................. 28 B. Juvenile Individualized Sentencing ............................ 43 III. Theoretical Underpinnings of Individualized Sentencing .......................................................................... 49 A. Offender Uniqueness ................................................... 50 B. Punishment Differentness........................................... 58 IV. Expanding Individualized Sentencing to All Felonies ..... 65 A. The Case for Individualized Sentencing in All Felony Cases .......................................................... 66 INDIVIDUALIZED SENTENCING 15 1. The Seriousness of the Deprivation ...................... 67 2. The Dignity of Offenders ....................................... 73 3. The Meaning of Individualized Sentencing Consideration ...................................... 74 B. Roadblocks to Expansion ............................................. 76 1. Non-capital Bright-line (Differentness) ................ 77 2. Deference to States ................................................ 79 3. Sentencing Disparities ........................................... 83 4. Costs ....................................................................... 85 5. Stare Decisis ........................................................... 86 V. Consequences of Broadening Individualized Sentencing .......................................................................... 87 A. Giving Defendants a Day in Court ............................. 87 B. Eliminating Draconian Mandatory Sentencing Practices .................................................... 89 C. Shifting Back to Judicial Sentencing from Prosecutorial Sentencing ............................................. 91 VI. Conclusion .......................................................................... 92 I. Introduction Discipline “makes’”individuals; it is the specific technique of a power that regards individuals both as objects and as instruments of its exercise. It is not a triumphant power . it is a modest, suspicious power, which functions as a calculated, but permanent economy.1 The Eighth Amendment proscribes “cruel and unusual” punishments.2 For all practical purposes, the Supreme Court’s application of this provision has simply meant that the Eighth Amendment bars only cruel and unusual capital punishments,3 1. MICHAEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 170 (Alan Sheridan trans., Vintage Books 2d ed. 1995). 2. See U.S. CONST. amend. VIII (“Excessive bail shall not be required, . nor cruel and unusual punishments inflicted.”). 3. See Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (finding a state statute that required the death penalty for persons convicted of first-degree murder violated the Eighth amendment); Roberts v. Louisiana, 428 U.S. 325, 335 (1976) (finding that a mandatory death penalty statute violated the Eighth 16 76 WASH. & LEE L. REV. 13 (2019) broadened recently to include cruel and unusual punishments against juvenile offenders.4 Under the Eighth Amendment, state and federal governments may not execute intellectually disabled offenders5 or juvenile offenders,6 nor execute offenders for the crimes of rape7 or child rape.8 Similarly, state and federal governments may not impose juvenile life-without-parole sentences for non-homicide crimes.9 In addition to these categorical limitations, the Supreme Court has placed an Eighth Amendment prohibition on the implementation of mandatory death sentences10 and mandatory juvenile life-without-parole sentences.11 Unlike limits based on the kind of offender (juvenile, intellectually disabled)12 or the kind of the crime (rape, child rape),13 this limit focuses on the kind of sentence—a mandatory one.14 Amendment). 4. See Graham v. Florida, 560 U.S. 48, 82 (2010) (banning life without parole sentences for juvenile offenders in non-homicide crimes); Miller v. Alabama, 567 U.S. 460, 489 (2012) (banning mandatory juvenile life-without-parole sentences). 5. See Atkins v. Virginia, 536 U.S. 304, 321 (2002) (explaining that executing mentally disabled persons would not advance the deterrent or retributive purposes of punishment). 6. See 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.”). 7. See Coker v. Georgia, 433 U.S. 584, 597 (1977) (“[D]eath is indeed a disproportionate penalty for the crime of raping an adult woman.”). 8. See Kennedy v. Louisiana, 554 U.S. 407, 446 (2008) (“[T]he death penalty is not a proportional punishment for the rape of a child.”). 9. See Graham, 560 U.S. at 82 (“A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.”). 10. See Woodson, 428 U.S. at 305 (finding a state statute that required the death penalty for persons convicted of first-degree murder violated the Eighth Amendment); Roberts, 428 U.S. at 335 (1976) (finding that a mandatory death penalty statute
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