Individualized Sentencing

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.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

Beyond NIL

The name, image, and likeness (NIL) changes and shifting landscape obscure more existential threats to the student-athlete model on the horizon. The television money that Power Five conference teams receive still comprises much of the budget of athletic departments. The football and basketball players—-the revenue sport athletes-—may have a claim to a greater share of this revenue. Some athletes argue that they are employees of their universities, which would entitle them not only to additional benefits but also to other tools, such as collective bargaining. All of these advantages could make universities responsible for increasing the amount of remuneration available to revenue sport athletes. Other athletes are advancing antitrust lawsuits in an attempt to remove the barriers to a free market in order to eviscerate the grant-in-aid limit on remuneration a university can pay to its athletes. The consequence often ignored in conversations surrounding a future where either or both efforts are successful relates to non-revenue sports—sports that do not generate enough money to cover their expenses. While Title IX protects women’s sports to a degree, the overall consequence of increased compensation for revenue sport athletes will be the diminishment and even loss of many non-revenue sports. This is because revenue sports such as football and basketball largely cover all the costs of non-revenue sports. This Article maps the current landscape without adopting a normative view. Certainly, a college sports future decided by university administrators and athletic directors remains preferable to one mandated by courts. To that end, this Article offers several different paths to a new status quo in light of the imminent threats of litigation grounded in employment and antitrust law. Part II of this Article describes the effect of NIL on the pay-for-play conversation. Part III assesses the current litigation in employment and antitrust law. Lastly, Part IV maps some possible responses of universities to this changing landscape