Excavating Mississippi’s Punishment Clause

The Mississippi courts have long interpreted the Mississippi Constitution’s punishment clause, which bars “cruel or unusual punishment,” in the same way as the U.S. Supreme Court interprets the Eighth Amendment, which bars “cruel and unusual punishments.” This assumption of the Mississippi courts-that the two clauses mean the same thing-is contrary to both the relevant history and basic principles of state constitutional law.

This Article excavates the origins of the punishment clause in the Mississippi Constitution. It shows, at the very least, that the two constitutional provisions have different meanings which stem not only from their textual differences but also from the contemporaneous understandings of the clauses themselves. And this reading suggests, at the very least, that there are two distinct questions, separate from the Supreme Court’s interpretation of the Eighth Amendment, that the Mississippi courts must consider under the state constitution’s punishment clause-(1) whether the sentence imposed is cruel and (2) whether the sentence imposed is unusual.

Part I provides a brief primer on state constitutional law and the important differences between state and federal constitutions. In Part II, the article briefly describes the application of federal and state punishment clauses by the Mississippi courts. Part III then excavates the Mississippi Constitution’s punishment clause, examining the relevant text and history. In Part IV, the article conceptualizes the Mississippi punishment clause in light of its text and history. Finally, in Part V, the article explores some possible applications of this new understanding of the Mississippi Constitution’s punishment clause.