Eighth Amendment: Racial Justice Amicus and Appellate Strategies

Sentencing Challenges

Disparate Impact Arguments

Providing data on racial disparities in the juvenile and criminal legal system can demonstrate to the court the discriminatory impact of a statutory scheme. While impact alone does not constitute a violation of Equal Protection, it can provide evidence of improper sentencing or punishment under the Eighth Amendment.


Our brief argued that the law requires the harshest punishments, such as life without the possibility of parole, to be reserved for the rare irreparably corrupt child; instead they are levied disproportionately against youth of color, in violation of the Eighth Amendment.

Pennsylvania’s death row reflects racial and economic bias – although our brief does not explore the full implications of this research, the framing provides context for why the Eighth Amendment protections against the death penalty should apply to youth even over age 18.

Our brief argued that a three strikes law was constitutionally suspect under the Eighth Amendment given evidence of racial disparities in youth transfer to the adult system.

Our brief argued that the United States disproportionate imposition of life imprisonment against youth belonging to racial, ethnic, and national minorities violates international law and further affirms the Eighth Amendment analysis.

Our brief argued that the experiences of Black youth with racial stress and trauma are relevant developmental differences between youth and adults and that the Eighth Amendment requires the consideration of such individualized factors when sentencing a child to life without the possibility of parole.

Black youth are disproportionately arrested, prosecuted, and harshly sentenced. Our brief argued that the life without parole sentence of a Black 19-year-old thus required a more expansive proportionality review under the Eighth Amendment, given the special risk of arbitrariness.

Parole boards are highly susceptible to political pressure; evidence suggested the Ohio Parole Board engaged in biased decision-making harming people of color. Our brief argued that discretionary parole was therefore not an adequate substitute for individualized sentencing required by the Eighth Amendment for a young person charged to a life sentence.

The brief argued that a natural life sentence with no possibility of parole imposed on a 16-year-old in a state where parole has been abolished is akin to an unconstitutional mandatory juvenile life without parole sentence, in violation of the Eighth Amendment. Our brief highlighted that juvenile life without parole sentences were particularly suspect under the Eighth Amendment since they fall disproportionately on Black and Brown Arizonians. 

Historical Racism Arguments

The history of our justice system, including the transition from slavery to Black Codes and convict leasing, and the racist myth of the Super-Predator and “tough on crime” rhetoric of the 1980’s and 1990’s, can form the basis of legal arguments regarding the need for constitutional protections.

More specifically, the disproportionality resulting from this racist history can rise to the level of, or support an argument for, an Eighth Amendment violation.


We highlighted that the criminal and juvenile legal systems were created to deepen the racial divide, that Black codes and Jim Crow laws punished Black youth and forced them into labor while white youth were given opportunities for reform, and that these disparities have been repeatedly entrenched, including during the superpredator era. We argued that this background, and the related biases, stereotypes, and structural racism, has led to current over-policing and disproportionate imprisonment of Black youth, as well as the disproportionate imposition of life without parole sentences in violation of the Eighth Amendment.

We set forth that in the 1980s and 1990s, the public’s views were shaped by racist media characterizations of youth, resulting in punitive laws. We argued that cases proceeding as a result of these narratives and law, which precluded individualized consideration of a young person’s age and culpability now warrant re-sentencing hearings under the Eighth Amendment to remedy this wrong.

Excessive Fines Challenges

Disparate Impact and Historical Racism Arguments

Excessive fines violate the Constitution. Racial bias in the justice system as well as structural racism impacting access to wealth should inform the relevant proportionality analysis.


Our brief argued that a one-size-fits-all test to determine proportionality of a fine will disproportionately harm Black, Brown, and Indigenous youth and families. Historically, states used unaffordable fines to maintain racial oppression. Black, Brown and Indigenous youth are still punished more often and more harshly than their white peers, and because of structural racism, their families tend to have dramatically less wealth, leaving young people with fines they cannot pay.

We set forth an argument that fines aggravate the racial and economic disparities in the juvenile justice system because youth of color are disproportionately pulled into the justice system and because structural racism creates greater economic barriers to payment for youth of color, which, in turn, makes it difficult for them to pay or to pay timely. Our brief argued that ensuring that the Eighth Amendment applies to state actions would therefore better protect youth from unconstitutional harms.