State Constitutional Prohibitions against Unnecessary Rigor in Arrest and Confinement

Clauses in five state constitutions prohibit treating people who are arrested or confined with “unnecessary rigor.” Decades ago, scholars concluded that history could teach us very little about these clauses. Now with the power of digitized records and text-recognition technology, this Article reveals that “unnecessary rigor” was a recognized phrase with deep historical roots. Courts, meanwhile, have been silent about the unnecessary rigor clauses in two states, and have offered divergent interpretations about the clauses in other states. Jurisprudence has been limited by the missing historical record and the fact that “unnecessary rigor” does not appear in our modern vernacular, making a plain textual reading challenging. The trove of historic sources presented in the Article suggest that state courts have interpreted the unnecessary rigor clauses too narrowly.

The Article argues that the animating principle of the unnecessary rigor clause is to protect human dignity against overzealous use of power in state custody, the context in which state power over the individual is at its apex. To check overzealous state power in this special context, the clause requires all rigor—all rigidity and harshness—to be justified by necessity. Excessive mandatory sentences, prolonged solitary confinement, failure to provide needed medical treatment, and unduly restrictive visitation policies are just a few examples of practices that can violate this animating principle.