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106 Iowa L. Rev. 1 (2020-2021)

handle is hein.journals/ilr106 and id is 1 raw text is: Eighth Amendment Presumptive Penumbras (and Juvenile Offenders) William W. Berry II* ABSTRACT: Bright line constitutional rules tend to create unfair outcomes in close proximity to the bright line. In the context of the death penalty, such distinctions possess an entirely different level of seriousness that requires deeper reflection. This Article develops the concept of presumptive penumbras around capital constitutional bright lines and argues for its application to juvenile offenders under the Eighth Amendment. Specifically, the Article advocates, within the current constitutional rules, for a presumption against the imposition of the death penalty or juvenile life without parole in cases where the age of the offender is in proximity to-within the penumbra of-the bright line of age 18. Part II of the Article explains the inherent problems that stem from bright line rules and how both the Constitution and the death penalty exacerbate such problems. In Part III, the Article advances a typology of 'presumptive penumbras -a tool for minimizing the problems identified in Part I. Then, in Part IV, the Article applies the concept of presumptive penumbras to bright line rules related to juvenile offenders under the Eighth Amendment. Finally, in Part V, the Article concludes by sketching out some additional potential applications of presumptive penumbras to other criminal law bright lines under the Eighth Amendment. I. INTRODUCTION................................................................................. 2 II. THE PROBLEM OF BRIGHT LINE RULES............................................. 7 A. THE LIMITS OF BRIGHT LINES ................................................... 7 B. CONSTITUTIONAL COMPLICATIONS ........................................ 10 * Montague Professor of Law, University of Mississippi. The author would like to thank the following students from his capital punishment seminar in the Fall of 2o19 that generated the lively discussion on this topic that inspired this Article: Derek Anderson, D.K. Boydstun, Bailey Brown, Jon-Paul Bushnell, Lakyn Collier, Natasha Dorcent, Akeena Edwards, Conisha Hackett, Kiara Hester, Terrence Hunter, Madeline Iles, Kaitlyn Jamison, Alan Langley, Allison Minicky, Peyton Moore, Ashley Richardson, Seqouia Smith, Erika Thomas, and Will Williams. The author would also like to thank the editors of the Iowa Law Review for their excellent work in preparing this Article for publication. 1

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