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The United States Supreme Court’s often stated view that “death is different” has led to a line of decisions in which the Court carved out categorical Eighth Amendment exceptions for certain groups. These cases hold that courts should not give the death penalty to individuals within those groups. In Atkins v. Virginia, for example, the leading case within the “death is different” line, the Court held that the death penalty was not an appropriate punishment for mentally retarded offenders because it constituted cruel and unusual punishment in violation of the Eighth Amendment. The Court continued to carve out exceptions for certain groups including juveniles.Then the Court’s view regarding the Eighth Amendment’s prohibition against cruel and unusual punishment evolved. No longer was “death” the only “different;” now, juveniles could be considered “different.” Following Roper, in which the Court held that sentencing juveniles — those under the age of eighteen — to death constituted cruel and unusual punishment in violation of the Eighth Amendment, a line of cases emerged in which the Court continued to carve out more exceptions for juveniles.In each of these landmark decisions, the Court has found that to be considered a juvenile, the individual must be under the age of majority. As found in Roper, and consistently followed in the other decisions within this line of cases, the age of majority is eighteen. Although the Court acknowledged that there are some juveniles under the age of majority who have attained a level of maturity “some adults will never reach” and “the qualities that distinguish juveniles from adults do not disappear when an individual turns 18,” the Court drew a line. Thus, the age of majority is a bright-line rule.Heeding the Court’s own words, it should recognize that juveniles who are aged seventeen and those aged eighteen arguably are no different. Research also suggests this to be true. This article argues, therefore, that because of the uncertainty surrounding “juvenile” brain development and because the bright-line rule of majority prevents courts from determining if an individual under the age of eighteen, the age of majority, has the requisite culpability deserving of the categorically excluded punishments, the Court should eliminate the bright-line rule of majority. Further, although the majority of juveniles should not receive certain categorically excluded harsh punishments, a few should still receive those punishments, and it should be an option for all. Part I of this article serves as background on the bright-line rule of majority and its application in “juveniles are different” cases. Part II of this article argues that the Court should eliminate the bright-line rule of majority. Part III of this article proposes a solution to the bright-line rule problem; that is, a case-by-case analysis should decide cases involving juveniles with age being another sentencing factor considered. Age will thus act as an aggravating or mitigating factor in the sentencing phase of the criminal proceeding. Finally, Part IV of this article explains why a case-by-case analysis considering age as a sentencing factor is better than a bright-line rule of majority and addresses the potential counter-arguments to this proposal.

In a line of landmark cases beginning with Coker v. Georgia and ending, presently, with Miller v. Alabama, the United States Supreme Court has carved out categorical Eighth Amendment exceptions following its evolving standards of decency analysis. Though the analysis, as touted by the Court, is two-fold, it has, essentially, evolved itself into a one-prong standard. The Court, that is, uses the subjective judgments of the five Justice majority to compromise the objective evidence of support for a particular sanction.This article argues that the Court has ignored its original intent and what the words "evolving standards of decency" should mean. Nowhere does the Court state in Trop v. Dulles, the case that announced the standard, that the standard should be comprised of the Supreme Court Justices' opinion of what are the evolving standards of decency.Part I of this article tracks the evolution of the evolving standards of decency analysis used by the Court to carve out categorical Eighth Amendment exceptions. Part II of this article argues that there are problems with the evolving standards of decency analysis used to carve out categorical Eighth Amendment exceptions, in that, it serves as a vehicle for the five Justice majority to compromise the objective indicia. Part III of this article proposes a solution to the problem, in which, there will be a wholly objective standard. Finally, Part IV of this article argues that the proposed standard is more advantageous than the current evolving standards of decency analysis and truer to the intent of the standard.