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Research & Scholarship

Scholarship on state antipunishment clauses, the 8th Amendment, and how to strengthen constitutional rights against excessive criminal punishments. Filter for state-specific articles and sort by subject matter tags.

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Banishing The Ghost of Red Hannah: Proportionality, Originalism, & The Living Constitution In Delaware

Widener Law Review (2021)

Article I of Delaware’s constitution provides a powerful safeguard against excessive or disproportionate sentences that, so far, has gone unenforced. Many of the rights protected by Article I are similar to those protected by the federal constitution. Article I, § 11 of the Delaware Constitution, provides that “[e]xcessive bail shall not be...

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Challenging Solitary Confinement Through State Constitutions

University of Cincinnati Law Review (2021)

Eighth Amendment jurisprudence has resulted in limited scrutiny of solitary confinement despite the known harms associated with the practice. The two-part test established by the federal courts to evaluate Eighth Amendment claims and limitations on challenging prison conditions under the Prison Litigation Reform Act can make it difficult to establish that solitary...

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Criminal Law & State Constitutions: The Emergence of State Constitutional Law

Texas Law Review (1984-85)

Today, state supreme courts are .. functioning as laboratories in the administration of criminal justice. These courts are becoming significant constitutional law courts as judges interpret their state constitutions, as well as the federal constitution, to determine the rights of defendants in the state criminal justice system. Federal court of appeals Judge...

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Cruel State Punishments

North Carolina Law Review (2020)

The Supreme Court has almost systematically expanded the Eighth Amendment over the past decade and a half, proscribing categorical limitations to the death penalty and juvenile life without parole. With Justice Kennedy’s recent retirement, this expansion seems like it might be ending. As this door is closing, however, another door may be...

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Cruel & Unusual Non-Capital Punishments

American Criminal Law Review (2021)

The Supreme Court has rendered the Eighth Amendment a dead letter with respect to non-capital, non-juvenile life-without-parole sentences. Its cases have erected a gross disproportionality standard that seems insurmountable in most cases, even for draconian and excessive sentences. State courts have adopted a similar approach in interpreting state constitutional Eighth Amendment analogues,...

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Does Atkins Make A Difference In Non-Capital Cases?

William & Mary Bill of Rights Journal (2014)

The holding in Atkins v. Virginia is clear. The execution of [intellectually disabled people] … is unconstitutional. One other feature of the Atkins decision is also certain; the reason the 8th Amendment is violated by the use of the death penalty with such convicted defendants. That is because defendants with intellectual disabilities...

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Extraordinary Punishment: Conditions of Confinement & Compassionate Release

Fordham Law Review (2024)

People experience severe forms of harm while incarcerated including medical neglect, prolonged solitary confinement, sexual and physical violence, and a host of other ills. But civil rights litigation under the Eighth Amendment—the most common vehicle through which people seek to redress these harms—presents significant practical and doctrinal barriers to incarcerated plaintiffs. Most...

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Intellectual Disability, Categorical Mitigation, & Punishment

Boston College Law Review (2023)

Individuals with intellectual disability in the criminal legal system experience objectively worse outcomes than others—more wrongful convictions, more pretrial detention, worse plea deals, and longer sentences. None of which is justified under the theories of punishment. These disparate outcomes stem from initial failures to identify that a person has intellectual disability and...

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Into the Breach: The Case for Robust Noncapital Proportionality Review Under State Constitutions

Harvard Civil Rights-Civil Liberties Law Review (2014)

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New Originalism: Arizona’s Founding Progressives On Extreme Punishment

Arizona Law Review (2022)

Originalism, together with textualism, has been of growing interest to legal scholars and jurists alike. Discerning and putting forth the views of “the founders” has become part and parcel of effective advocacy, particularly regarding constitutional questions. Arizona is no exception, with its courts explicitly giving originalism primacy over all other interpretive doctrines...

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Original Understanding, Punishment, & Collateral Consequences

Penn Journal of Constitutional Law (2024)

Can Founding-era understandings of punishment limit the reach of punitive state activity, specifically with respect to automatic collateral consequences? This Article begins to tackle that question. For over a century, the Supreme Court has struggled to define the boundaries of crime and punishment. Under current doctrine, a deprivation constitutes punishment when it...

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Reverse Incorporation of State Constitutional Law

Southern California Law Review (2011)

State supreme courts and the United States Supreme Court are the independent and final arbiters of their respective constitutions, and may therefore take different approaches to analogous state and federal constitutional issues. Such issues arise often, because the documents were modeled on each other and share many of the same guarantees. In...

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Some Thoughts On Proportionality

Oregon Law Review (2008)

This Article reviews the ancient concept of proportionality in punishment and turns to the more systematic application of this concept in the mid-18th century by Cesare Beccaria and William Blackstone and to current discussions of “just deserts” as a theory of criminal punishment. The Article then returns to the historical development of...

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State Constitutionalism & the Crisis of Excessive Punishment

Iowa Law Review (2023)

Fully addressing the mass incarceration crisis in the United States requires correctly identifying and accounting for the institutions that are responsible for it and that are positioned to effect change. While more than 113 million people in the United States are impacted by the criminal justice system, this Article argues that mass...

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State Courts & Constitutional Structure

The Yale Law Journal (2019)

In a famous 1977 article, Justice William Brennan called on state courts to interpret the individual-rights provisions of their state constitutions more expansively than analogous federal guarantees. Over the years, state constitutions have served as the foundation for important individual-rights decisions, yet their provisions remain unfamiliar to and often ignored by lawyers,...

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Strict Scrutiny Under The Eighth Amendment

Florida State University Law Review (2013)

The basic principle of the Supreme Court’s interpretation of the Eighth Amendment is that the phrase “cruel and unusual” must draw its meaning from “the evolving standards of decency that mark the progress of a maturing society.” To implement this principle, the Court has considered whether “objective indicia” of prevailing com-munity norms...

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The Court of Life & Death: The Two Tracks of Constitutional Sentencing Law & the Case for Uniformity

Michigan Law Review (2009)

The Supreme Court takes two very different approaches to substantive sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court’s reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an...

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The Evolving Standards, As Applied

Florida Law Review (2022)

In Jones v. Mississippi, the Supreme Court adopted a narrow reading of its Eighth Amendment categorical bar on mandatory juvenile life-without-parole (JLWOP) sentences. Specifically, the Court rejected the Jones’ claim that the Eighth Amendment categorical limit required a sentencing jury or judge make a finding of permanent incorrigibility—that the defendant is beyond...

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The Forgotten Jurisprudence of Parole & State Constitutional Doctrine of Vagueness

Cardozo Law Review (2023)

The majority of carceral sentences in the United States include the possibility of discretionary release on parole. Most such sentences, however, are unconstitutionally vague. Their unconstitutionality has gone unnoticed because contemporary scholarship and litigation about vague laws have focused on the U.S. Constitution in lieu of state constitutions. This Article unearths historic...

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“The Key-Stone to the Arch”: Unlocking Section 13’s Original Meaning

Penn Journal of Constitutional Law (2023)

The Supreme Court of Pennsylvania holds that Section 13 of the State’s constitution, which prohibits all “cruel punishments,” is coextensive with the Eighth Amendment, which prohibits only punishments that are both “cruel and unusual.” Rather than analyze the state provision independently, the court defers to the U.S. Supreme Court’s interpretation of the...

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The Problem of Habitual Offender Laws in States with Felony Disenfranchisement

Journal of Criminal Law & Criminology (2023)

Habitual offender laws operate to increase the sentence of an individual if that person already has a felony conviction. Many people with felony convictions cannot vote or run for office, due to felony disenfranchisement laws. Thus, habitual offender laws target a formally disenfranchised group—people with felony convictions. That creates an archetypal political...

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Toward Mercy: Excessive Sentencing & The Untapped Power of North Carolina’s Constitution

Emory Law Journal (2024)

For decades, the North Carolina Supreme Court·like many other state supreme courts·largely ignored its own state constitutionÊs ban on harsh criminal punishments and deferred entirely to federal case law on the constitutional limits of excessive sentences. The result has been near total deference to the state legislature and a discriminatory mass incarceration...

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Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences

The Yale Law Journal (2020)

The deprivation of a fundamental right triggers strict scrutiny, and freedom from physical restraint is a fundamental right. Indeed, the right to be free from physical restraint lies at the very core of the liberty protected by the Due Process Clause. In the contexts of pretrial detention and civil commitment, courts hold...

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(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin”

The Yale Law Journal Forum (2020)

In 2019, all Justices on the U.S. Supreme Court agreed in Timbs v. Indiana that the Constitution’s prohibition on excessive fines applied to the states. The Court’s opinion discussed the Excessive Fines Clause’s “venerable lineage” and termed its protections “fundamental.” Justice Thomas, concurring, wrote that the English prohibition against excessive fines aimed...

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When a Prison Sentence Becomes Unconstitutional

Georgetown Law Journal (2022)

Mass incarceration has many evils. One of them is the length and apparent fixedness of many criminal sentences—a relatively new development in the history of American criminal adjudication. Sympathetic system actors, concerned about this problem, often complain that they lack the ability to revisit sentences that have outlived commonsense value. This complaint...

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