Cruel State Punishments

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 opening for restricting excessive punishments — state constitutional analogues to the Eighth Amendment. A close examination of such provisions reveals that some of the provisions use “or” instead of “and,” a linguistic difference that suggests many state constitutions might be broader than the Eighth Amendment.

This article explores the consequences of linguistic differences between the Eighth Amendment and its state constitutional analogues, focusing in particular on the effect of disjunctive state constitutional provisions. Specifically, the article argues that these linguistic differences open the door to broader application of state Eighth Amendment analogues to rein in excessive punishment practices of state governments.

In Part I, the Article begins by providing an overview of Eighth Amendment doctrine and the importance of the conjunction in its application to criminal sentences. Part II surveys the state constitutions and examines the language of the provision analogous to the Eighth Amendment, grouping these provisions into three broad categories. In Part III, the Article advances its core claim — state constitutional prohibitions against “cruel” punishments should limit the ability of states to impose disproportionate punishments. Part IV concludes the Article by exploring the many practical consequences of limiting the imposition of cruel punishments.