About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most