Toward Mercy: Excessive Sentencing & The Untapped Power of North Carolina’s Constitution

Emory Law Journal (2024)

Full Citation

Toward Mercy: Excessive Sentencing & The Untapped Power of North Carolina’s Constitution (2024)


Ben Finholt


Emory Law Journal


For decades, the North Carolina Supreme Court·like many other state supreme courts·largely ignored its own state constitutionÊs ban on harsh criminal punishments and deferred entirely to federal case law on the constitutional limits of excessive sentences. The result has been near total deference to the state legislature and a discriminatory mass incarceration crisis that has ballooned without meaningful constitutional checks.

This approach has been a serious mistake of constitutional law. As Justice Harry Martin once noted, “The Constitution of North Carolina . . . is the people’s timeless shield against encroachment on their civil rights,” and it provides uniquely broad protections of civil rights and personal liberty. Yet sentencing law has been the exception, despite a specific provision that bans “cruel or unusual punishments,” and whose text and original meaning are distinct from the federal Eighth Amendment. The North Carolina Supreme Court finally revived this clause, Article I, Section 27, in two recent cases involving children sentenced to serve decades, recognizing that it should not be interpreted in lockstep with its federal counterpart. This Article argues that these cases provide doctrinal clarity and opportunity to articulate the independent meaning of Section 27 and unleash its power as an essential tool in the urgent project of dismantling mass incarceration. While previous scholarship has noted that state analogs to the Eighth Amendment can and should bear their own independent meaning, this Article provides a full analysis of Section 27. Specifically, this Article looks to Section 27’s text and history, related constitutional provisions, and other factors to show that it provides broader protections against excessive punishments than does current Eighth Amendment case law. This Article also sketches a doctrinal framework that state courts can apply in all challenges to excessive punishment, not just those involving children.

Finally, the Article places this constitutional analysis in the specific context of North Carolina’s criminal legal system, explaining how other mechanisms of reducing needless incarceration have proven wholly inadequate.