Eighth Amendment Differentness

Part II of the Article provides the context for the Miller case, outlining the theoretical underpinnings of the Court’s Eighth Amendment jurisprudence. Part III describes the Court’s “different” jurisprudence, linking the concept of “juveniles are different” to the Court’s longstanding view that “death is different.” In Part IV, the Article demonstrates how the two possible interpretations of the Court’s statement in Miller that “juveniles are different” – as a character-based form of differentness and, in the case of juvenile LWOP, as a punishment-based form of differentness – create distinct theoretical bases for broadening the scope of the Eighth Amendment. Finally, Parts V and VI explore the potential theoretical and doctrinal consequences of each of those understandings