Issue 19: What is punishment? Two new papers expose another flaw in 8th Amendment case law—and show how state constitutions can do better
When someone is sent to prison, their punishment, in any normal sense of the word, involves far more than “serving time.” Often one must also endure poor healthcare, lethal heat, dehumanizing abuse, rampant disease, filthy drinking water, and extended solitary confinement that amounts to torture. And convictions follow people long after their release. The so-called “collateral consequences” of criminal convictions can last a lifetime, excluding people from employment, housing, and voting, and in some cases include the added shame and exclusion of public criminal registration.
This reality of our criminal system—how prison conditions and other sanctions are inexorably intertwined with prison sentences—provides another basis for state supreme courts to depart from federal case law. As two forthcoming law review articles explain, the U.S. Supreme Court has—in ways ahistorical, illogical, and inconsistent—largely ignored this reality when answering two closely-related questions: What is “punishment”? And what is a criminal “sentence”?