Interesting discussion of “unnecessary rigor” clause in some state constitutions

A new essay here from the Behind The Bench Newsletter has LawProf Kristen Bell discussing her interesting historical work regarding an interesting limit on state powers in some state constitutions. The essay is worth a full read, and here are it first few paragraphs (with links from the original):

This past April, in Kelly v. Indiana, the Indiana Supreme Court affirmed a 110-year prison sentence imposed on a 16-year-old boy. In addition to arguing that the sentence is “cruel and unusual” punishment, McKinley Kelly and his lawyers invoked an oft-overlooked clause of Indiana’s constitution by which “no person arrested, or confined in jail, shall be treated with unnecessary rigor.” They argued that even for a serious offense, sentencing a child to die in prison is unnecessarily harsh and therefore violates the state constitution. The court quickly dispensed with this argument, holding that the unnecessary rigor clause does not apply to the severity of criminal sentences.

The court came to its conclusion without any relevant history or scholarship about the clause, which also appears in four other state constitutions. Research about the clauses is sparse, perhaps because they have no analog in the U.S. Constitution. My new article, State Constitutional Prohibitions Against Unnecessary Rigor in Arrest and Confinement, helps fill that gap in research. Using electronic text search and digital databases, I scoured tens of thousands of historic newspapers, treatises, periodicals, and caselaw to understand the meaning of the phrase “unnecessary rigor.” I document how courts have used (or not used) the unnecessary rigor clauses and argue that courts should apply the clauses more broadly today. One of my conclusions is that refusing to apply the clauses to the sentencing context, as the Indiana Supreme Court did in Kelly, runs counter to historical evidence.

Tennessee first adopted an unnecessary rigor clause in its 1796 state constitution, followed by Indiana in 1816, Oregon in 1859, Wyoming in 1889, and Utah in 1896. The clauses lay largely dormant for decades until Hans Linde—Oregon Supreme Court Justice and intellectual godfather of state constitutional law—interpreted Oregon’s clause as a check on state power to safeguard human dignity. Courts in Oregon and Utah have since breathed life into their respective clauses, finding violations of the clauses in regard to cross-gender frisks by prison staff, injury caused by failure to fasten seatbelts in transfer of prisoners, and failure to provide necessary medical treatment in prison, including gender-affirming care. But like Indiana, Oregon and Utah courts have stopped short of applying their respective unnecessary rigor clauses to sentencing.

This narrowing of the unnecessary rigor clauses is unsupported by the historical record that I uncover in my article. The trove of sources demonstrate that the phrase “unnecessary rigor” was part of common vernacular when state constitutions were adopted in the eighteenth and nineteenth centuries. People used the phrase to criticize strict enforcement of formal rules when the circumstances called for a more flexible approach. They also used the phrase to decry unduly harsh treatment by people who wield immense power over vulnerable individuals.