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October 2, 2022

"State Constitutionalism and the Crisis of Excessive Punishment"

The title of this post is the title of this new article available via SSRN authored by Robert J. Smith, Zoe Robinson and Emily Hughes. Here is its abstract:

The institutional site of responsibility for America’s mass incarceration crisis represents one of the most important and undertheorized barriers to reducing excessive punishment in the United States.  While mass incarceration is frequently presented as an American crisis, with more that 113 million Americans impacted by the criminal justice system, this Article argues that mass incarceration is not a national issue, but instead a local issue.  Ninety percent of the people in America’s prisons are confined under state laws, procedures, and norms created by state legislative and executive branches, and thirty-seven individual U.S. states have an incarceration rate higher than any country other than the U.S. itself.  While there exists a growing popular and scholarly movement attempting to address the political intractability of mass incarceration, this Article argues that missing from the debate is the role of state courts and state constitutions.

Drawing on two burgeoning movements — the movement to end mass incarceration and the re-emerging significance of state constitutionalism — this Article argues that state constitutionalism is critical for curbing the excessive punishment regimes that drive mass incarceration.  The Article evaluates state courts’ quiet divestment of independent state constitutional interpretation in the years following incorporation, outlining the unique issues posed by constitutional unitarism for limiting excessive punishment.  Motivated by recent developments in state courts, the Article highlights the growing support for, and potential of, independent state constitutionalism for preventing excessive punishments and addressing the mass incarceration crisis.  In doing so, the Article offers a path forward, sketching a doctrinal trajectory for state courts to use when interpreting their state constitutional provisions limiting excessive punishments that respects federal developments while also capturing the localism of criminal law and ultimately emphasizing the potential of state courts as transformative institutions in reducing mass incarceration.

October 2, 2022 at 08:00 PM | Permalink


Translation: Since the federal Constitution will now be interpreted by a SCOTUS majority that more consistently adheres to the text, best to shift to state venues where there's a better chance of pro-criminal free lancing.

Posted by: Bill Otis | Oct 3, 2022 12:20:37 PM

Best place to start would be to prohibit by law in each state the imposition of sentences by wild and crazy judges of sentences beyond 90 yeas. Talking about 400, 500, 45, etc., etc.

Some counties of some states are riddled with hang 'em high crazed judges who do these things regularly. It's so obviously cruel and unusual punishment.

Need more evidence? Look at the sentencings in other countries for similar crimes. Second, look at the sentencings in the same county, state, country (ours) from 40 years ago.

It's easy to see that it's gone completely out of control and these judges (and DAs) don't worry a bit about the over-incarceration crisis they are creating.

Time to stop that. Prohbit. Forbid. It's blatantly a violation of the 8th Amendment. Always has been.

Posted by: restless94110 | Oct 4, 2022 1:46:21 PM

restless --

I would have no objection to a statute capping all prison sentences at 90 years. Anything beyond that has no practical utility and is showboating.

Posted by: Bill Otis | Oct 4, 2022 2:11:37 PM

Bill -
I would go further and cap prison sentences at 30-40 years with the exception of a very small sliver of criminals (serial killers, terrorists) who would qualify for death sentences.

Posted by: Brett Miler | Oct 4, 2022 2:31:16 PM

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