Issue 5: State Courts As “Critical Change Agents”: Two New Papers On The Power of State Constitutions To Dismantle Mass Incarceration 

October 10, 2022 By Kyle C. Barry

The movement to end mass incarceration has pulled various levers of power, from backing reform candidates in local races for prosecutorsheriff, and mayor, to pushing for statewide legislative change. This focus on the state and local makes sense — 90% of America’s prison population is confined under state and local laws or practices — but it also reveals a glaring absence from this list: state supreme courts and the powerful state constitutions over which they have final say. 

That’s the argument in State Constitutionalism & The Crisis of Excessive Punishment, forthcoming in the Iowa Law Review, that both posits state courts as largely overlooked “critical change agents” and provides a doctrinal roadmap for how lawyers and judges can deploy state constitutions to curb the excessive punishments that drive mass incarceration. 

It’s an argument that sits at the juncture of two broadly bipartisan and cross-ideological movements: Those to revive “state constitutionalism” — the idea that state constitutional rights are both independent from and (if anything) provide greater protections than similar rights in the federal constitution — that is embraced by conservatives such as Judge Jeffrey Sutton and progressives such as Justice Goodwin Liu; and to reduce our costly, counterproductive, and inhumane practice of warehousing people on interminable prison sentences. 

As the paper by Robert J. Smith, Zoe Robinson, and Emily Hughes points out, majoritarian political movements have inherent limits, and criminal justice policy in particular can prove intractable—shaped by the emotional whims of fear-based “tough-on-crime” campaigns, and then ossifying even as social norms evolve. When it comes to harsh sentences, there are people languishing under draconian prison terms that would never be imposed today, whether because sentencing laws, practices, or both have long-since changed. The judiciary is designed to address this very “structural vulnerability,” and yet both federal and state courts have been largely sidelined or complicit in our crisis of over-incarceration:

“[O]ur country’s constitutional architects positioned the judiciary to serve as a ‘bulwark of liberty,’ to guard against majoritarian overreach,” Smith et al, write. “But, with few exceptions, mostly in the context of the death penalty, the U.S. Supreme Court has failed to deploy the Eighth Amendment prohibition on ‘cruel and unusual punishments’ to reverse or even slow the worst excesses of America’s incarceration crisis.” 

In another recent essayThe Court of Mass Incarceration, law professor Rachel Barkow puts it even more bluntly: “The Court has utterly failed to police sentence length, again in complete derogation of its duty under the Constitution, which has an entire amendment devoted to cruel and unusual punishments,” Barkow writes. In upholding extreme sentences, like 50 years-to-life for stealing a few videotapes from K-Mart, “the Court has effectively taken the judiciary out of the business of checking the state when it seeks to impose outrageously long punishments.”

State supreme courts have done little better, even though, as Smith et al. document, nearly all of “the country’s 50 state constitutions provide the right to freedom from excessive punishment in some form, a right that state courts have the ultimate power and responsibility to vindicate. Yet . . . state supreme courts—like their federal counterpart—have mostly abdicated their responsibility to intervene, even though it is the states that are primarily responsible for defining and administering criminal punishment.”

Instead, state supreme courts often follow 8th Amendment case law as though their own state constitutional prohibitions do not exist. Among other problems, that approach creates a fundamental disconnect: Criminal law is primarily a state and local issue, and yet state courts defer to federal precedent applying federal law that is derived from federal interests to set the constitutional limits of extreme punishments. Lost in the analysis, then, are the many local factors that should directly inform what it means for sentencing practices to be “cruel” or “unusual” or out of step with “evolving standards of decency.” Factors such as how particular punishments are used (are they rare? arbitrary? racially discriminatory?), local legislative movements, public opinion research, expert findings, among others.

When 8th Amendment precedent is the last word, critical distinctions between state and federal and between individual states are blurred. As the article asks, “why should the Alaska Supreme Court treat its state experience with life without parole sentences as if it were the same as the experience in California, when in Alaska zero people are serving either life with or life without parole sentences, and in California, almost 34,000 people—about 1/3 of the prison population—are serving a life sentence[?]”

And that’s before you even get to the significant differences between the 8th Amendment and analogous state provisions, including differences in text, history, and related constitutional provisions. After all, only 11 states mirror the 8th Amendment verbatim

“Consequently, state courts are well positioned to effect substantive change,” Smith et al. conclude. “Unconstrained by federalism concerns, they are able to focus exclusively on their own state’s interests. Movements to re-situate criminal justice reform to the local level, then, should include state courts as a critical change-agent, supporting state courts as independent arbiters of state constitutions in support of broader criminal justice reform.”


The piece is well-timed. A string of recent decisions from a growing number of states provide concrete examples of how these ideas can work in practice. 

To note just a few examples, the Michigan Supreme Court held this year that its state constitution bars mandatory life without parole sentences for 18 year olds, while last year the Washington Supreme Court reached the same conclusion for anyone under 21 and banned youth life without parole entirely, joining the Iowa Supreme Court on the latter. In addition, the state supreme courts in New JerseyNorth Carolina, and Washington have all issued decisions protecting youth from de facto life without parole sentences. 

Another new article in the Arizona Law ReviewNew Originalism: Arizona’s Founding Progressives On Extreme Punishment, invokes originalism to argue that Arizona should join this list.  

According to authors John Mills and Aliya Sternstein, when applying Arizona’s Cruel and Unusual punishment clause, “state courts have not grappled with Arizona originalism: specifically, the words, actions, and understanding of those who adopted its Constitution in 1912, the punishment practices during the formative Progressive Era, and how protections against excessive punishment fit into the state’s larger progressive project.” This failure is significant, they argue, “both because Arizona’s Constitution is a prime example of early twentieth century progressivism and because of the importance of state constitutionalism for the development and understanding of individual rights”

If state courts are serious about originalism—and that original understanding and practice should guide judges today—they would find “that early state practices and legal doctrines limiting the use of extreme sanction, as well as views of the state’s residents at the founding, demonstrate a progressive approach to punishment that animated the constitutional prohibition and should inform its meaning[.]” More specifically, Mills and Sternstein walk through “limitations on the use of the death penalty, pre-trial detention, and harsh conditions of confinement, all grounded in the progressive ideal that punishment must be directed towards rehabilitation and re-entry into society.”

They conclude:

When viewed through an originalist lens, this clause should have a markedly different meaning than its federal counterpart, one that provides substantially broader protections against excessive punishments for the people of Arizona. In particular, Arizona’s constitutional framers insisted that punishment must serve the goals of reform and rehabilitation, believing that public safety was better served by helping people return to society. Any punishment that forgoes these ideals— including death, needlessly long prison sentences, and brutal conditions of confinement—is unconstitutional.

Vacancies & Elections

Five of Florida’s seven state supreme court justices face retention elections next month, and reproductive rights advocates have organized a campaign to reject all but one of them. 

“Vote yes on Justice Jorge Labarga and vote no on all four remaining justices,” lawyer and organizer Laura Lawson told WMNF. “I believe confidently after having researched this that they have committed to overturn choice in this state, to disrespect the privacy right in our constitution and to continue to move, because they have already been moving this court, in a direction that is inconsistent with the Florida Constitution and is inconsistent with the voters of the state.” 

Any justice who is rejected in the up-or-down vote will be replaced by the winner of Florida’s governor election. In a Twitter thread, researcher and state supreme court expert Billy Corriher called this “the first time progressives in any state have engaged in an organized anti-retention campaign.” 

The Pennsylvania Supreme Court announced on October 1 that Chief Justice Max Baer died at the age of 74. As the longest-serving justice, Debra Todd has assumed the role of chief justice, and Baer’s replacement on the court must be nominated by the governor and confirmed by two-thirds of the state senate.  “Whether that appointment will be made by the term-limited Tom Wolf, a Democrat, or his successor is not yet known,” The Philadelphia Inquirer reports


Law professor and criminal defense attorney Lara Bazelon wrote a thread illustrating the high stakes of professional diversity among state appellate court judges. The thread looks at the conviction of Justin Cato, which a court overturned last week. The appellate decision initially upholding his conviction despite prosecutorial misconduct is here, and get the latest on state supreme courts and professional diversity with SLRI’s Behind The Bench report.