Protecting Against Extreme Punishments

The Supreme Court’s Eight Amendment jurisprudence has come to obscure what started as robust state constitutional protections.

Welcome to the State Court Report newsletter.

State constitutions often mirror familiar provisions from the U.S. Constitution, but with small textual differences. These little variations — sometimes only a couple of letters — can have big implications. For example, rather than barring “cruel and unusual punishments” (the language used in the Eighth Amendment), many state constitutions bar “cruel or unusual” punishments or simply “cruel” punishments — phrasing that seemingly indicates a broader protection. Some states, like Michigan and Washington, have drawn on these textual differences to depart from the U.S. Supreme Court’s Eighth Amendment jurisprudence — but most have not.

In a new piece for State Court Report, Ben Finholt and Kevin Bendesky go deep into the history of two such provisions, in Pennsylvania and North Carolina, to argue that these states’ Eighth Amendment analogues ought to serve as a powerful bulwark against extreme punishments.

Drawing on their respective research for forthcoming law review articles, the authors trace the provisions governing punishment in each state not to the federal Constitution but to colonial declarations of rights. These declarations were heavily influenced by Enlightenment thinkers who viewed as “cruel” any punishment beyond what was needed to deter crime and reform lawbreakers.

For example, William Bradford — a Pennsylvania constitutional framer who later became a state supreme court justice — argued that Pennsylvania’s prohibition against cruel punishments “implicitly prohibit[ed] every penalty which is not evidently necessary” for the prevention of crime. North Carolina’s framers were influenced by Delaware’s constitution, whose framers had embraced “proportionality” in criminal punishment.

In our era of mass incarceration — and with current Eighth Amendment jurisprudence essentially taking courts out of the business of policing excessive sentences — this history makes the case for a paradigm shift. “Taking these ideas seriously,” Finholt and Bendesky argue, “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 Pennsylvania Supreme Court has yet to catch up. Forty years ago, it ruled that Pennsylvania’s prohibition against cruel punishments was coextensive with the Eighth Amendment. North Carolina’s high court began to find daylight between its prohibition against cruel or unusual punishments and the Eighth Amendment last year. With a new conservative majority now ascendant on the court, a key question will be whether it builds on or rolls back this ruling.

One more point about history. Judges — and State Court Report readers — who are skeptical of the U.S. Supreme Court’s recent embrace of originalism in areas like abortion and gun rights might raise the question of why we should care about this history in the first place. My own view is that history should matter to non-originalists too. I thought Harvard professor Nikolas Bowie put it well in a recent essay: history can help “denaturalize” the present by “demonstrating how even the most unchallenged assumptions of our time are the product of chance, choices, and contingent circumstances.” The context that Finholt and Bendesky provide does exactly that, making a powerful case that the gravitational pull of the Supreme Court’s Eighth Amendment jurisprudence has come to obscure what began as robust, freestanding state constitutional protections.

Constitutional Amendment Processes in the 50 States

In a new explainer, John Dinan, professor of politics and international affairs at Wake Forest University, examines the diverse landscape of constitutional amendment processes in all 50 states. While the U.S. Constitution has only been amended 27 times, the current constitutions across the 50 states have been amended around 7,000 times, Dinan notes. READ MORE

Pennsylvania’s High Court to Hear Prosecutor’s Impeachment Challenge

The Brennan Center’s Rosemary Nidiry and Ames Grawert preview a case brought by Philadelphia District Attorney Larry Krasner that will be heard by the Pennsylvania Supreme Court this fall. Krasner is challenging an effort by state lawmakers to impeach him for “misbehavior in office” based on his pursuit of various criminal justice reforms. The high court’s ruling “could have important implications for the independence and discretion of local prosecutors,” Nidiry and Grawert write. READ MORE

Partisan Gerrymandering Litigation Ahead of 2024

Partisan gerrymandering cases have been filed in 17 states since the start of the 2021 redistricting cycle. The Brennan Center’s Yurij Rudensky recaps where things stand across the country. Since 2019, when the Supreme Court ruled that partisan gerrymandering claims under the U.S. Constitution are nonjusticiable, “voters challenging gerrymandered maps have increasingly turned to state constitutions and state courts,” Rudensky writes. READ MORE

ICYMI: Ohio Voters Consider Whether to Make It Harder to Change the Constitution

On August 8, Ohioans will vote on Issue 1, a proposed constitutional amendment that would make it harder to change the Ohio Constitution. If passed, the measure, which was referred to voters by the state legislature, would go into effect just in time to raise the threshold required to pass a proposed abortion rights amendment this November. A recent State Court Report newsletter analyzed Issue 1 and the Ohio Supreme Court ruling that gave the go-ahead for the measure to appear on the ballot in an August special election. READ MORE

What Else We’re Reading

• The Quill Project has collected a large body of historical materials related to the Wyoming (1889), Utah (1895), and Arizona (1910) state constitutional conventions.

Notable Cases

Rowe v. Raoul, Supreme Court of Illinois
Ruled that a law ending the use of cash bail was consistent with the Illinois Constitution’s Bail Clause, Crime Victims’ Rights Clause, and Separation of Powers Clause, and ordered that the law be implemented beginning in September. Read a case preview and update in State Court Report. // New York Times

State of Missouri ex rel. Fitz-James v. Bailey, Supreme Court of Missouri
Held that the state attorney general exceeded his authority in refusing to approve the state auditor’s cost estimate for a ballot measure aimed at restoring abortion rights. // Associated Press

State v. Hacker, Ohio Supreme Court
Upheld law that provides for an indefinite prison term up to a maximum sentence, in which offenders are expected to be released after a minimum sentence is served but prison officials can extend an individual’s incarceration for committing crimes or breaking rules. Ruled that the law did not violate separation of powers under the state constitution, the right to a jury trial, or due process. // Associated Press

Noe v. Parson, Circuit Court of Cole County, Missouri
Lawsuit filed challenging a state law preventing adolescents from accessing gender-affirming medical care as violating the state constitution’s Equal Protection Clause, Due Process Clause, Right to the Enjoyment of Their Own Industry Clause, and Special Law Limitation Clause. // KY3

Priorities USA v. Wisconsin Elections Commission, Dane County Circuit Court, Wisconsin
Lawsuit filed challenging three absentee voting rules, claiming that they violate the right to vote under the Wisconsin Constitution. // Wisconsin State Journal

IMAGE: Matt Rourke/AP