Another sound suggestion to look to state constitutional law to limit excessive punishments

July 24, 2023

Long-time readers know I have long advocated robust proportionality litigation centered not just around the Eighth Amendment but also focused on analogue provisions in state constitutions. Indeed, over a decade ago, I worked with folks at National Association of Criminal Defense Lawyers (NACDL) to develop this (now dated) 51 state resource in the form of a “collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences.”

I flag this history to help highlight why I am pleased to see this new Brennan Center piece authored by Ben Finholt and Kevin Bendesky titled “The Neglected State Constitutional Protections Against Extreme Punishments.” Here is an excerpt (with links from the original), and I recommend the piece in full:

State constitutions play an essential but often forgotten role as powerful sources of rights, including against extreme punishments. At the time of the founding, states were the primary protectors of individual rights, and for the nation’s first 150 years, “most of the constitutional-rights litigation . . . took place in the States.” In our federalist system, state courts’ independent duty to enforce state-based rights remains.

These rights include state analogues to the Eighth Amendment, many of which are broader by their plain text and have their own unique histories and original understandings. State constitutional convention debates, the writings of constitution framers, contemporaneous media accounts, and early court decisions can all point to far more robust protections of individual liberty and far greater constraints on criminal punishments.

Scholars have previously marshaled this evidence in states such as Arizona and Delaware — observing, for example, that Arizona’s “founding generation . . . held and acted on progressive views of punishment.” We made similar findings after delving into the Eighth Amendment analogues in Pennsylvania and North Carolina, respectively. In both states, the plain text is broader than the Eighth Amendment. Pennsylvania prohibits all “cruel” punishments, dispensing with the “unusual” prong, while North Carolina bars “cruel or unusual” punishment (emphasis added), replacing the Eighth Amendment’s conjunction with a more flexible disjunctive standard.

Each state can trace its antipunishment clause to colonial Declarations of Rights, which were heavily influenced by the penological philosophies of widely read Enlightenment thinkers. As one of the state’s founders put it, Enlightenment theories “found a soil that was prepared to receive them” in Pennsylvania. In this context, “cruelty” covered more than methods of punishment. A punishment was “cruel” if it was unnecessarily severe. And the founding generation measured necessity by the most valued purposes of criminal punishment: reforming those who commit serious crimes and deterring crime in the first place. Any severity beyond that was cruel — no matter how it was inflicted.

Taking these ideas seriously would mark a substantial break from federal Eighth Amendment precedent, which permits retributive punishments and is typically uninterested in scrutinizing how prison sentences serve legitimate state interests…. The historical record should support, not suppress, a distinctly Pennsylvanian definition of cruelty.

In pamphlets, debates, and speeches, the framers of Pennsylvania’s 1790 constitution and first penal laws endorsed Enlightenment values and explained that only deterrence and reformation justified inflicting punishment. Many of those authors were familiar revolutionaries: James Wilson, Benjamin Rush, and George Clymer, all signers of the Declaration of Independence, along with Common Sense author Thomas Paine. Others, like eventual state attorney general and state supreme court justice William Bradford, were more distinctly Pennsylvanian.

Bradford, for instance, echoed Enlightenment philosophers when he said that the constitutional mandate “that cruel punishments ought not to be inflicted implicitly prohibit[ed] every penalty which is not evidently necessary” for the prevention of crime. And Wilson wrote that when the state establishes “excesses of . . . rigorous penalties,” then “one degree of severity opens and smooths the way for another, till, at length, under the specious appearance of necessary justice, a system of cruelty is established by law.”

Rush and others also wrote powerfully about limiting punishments to evolving standards of morality and assessing the utility of criminal punishments against the best science of the day. In 1788, Rush wrote, “To you, . . . the unborn generations, you will enjoy in point of knowledge, the meridian of a day, of which we only perceive the twilight. You will often review with equal contempt and horror, the indolence, ignorance and cruelty of your ancestors . . . you will see many modern opinions in religion and government turned upside downwards, and many new connexions [sic] established between cause and effect.”

In addition to making the case for the development of robust state constitutional jurisprudence to limit extreme punishment, this commentary also serves as a useful reminder that an originalist turn in constitutional jurisprudence could (though likely won’t) lead to giving lots of modern punishment practices a lot more judicial scrutiny.

Just some of many prior related posts: