Archive: | State Law Research Initiative

To The States: Reflections On Jones v. Mississippi

The Harvard Law Review Online (2021)

After banning mandatory LWOP sentences for youth and holding (in two separate cases) that such sentences may be imposed after individualized sentencing review only on the “rare” incorrigible offender, the U.S. Supreme Court took a step backward in Jones v. Mississippi. In Jones, the Court held that the only constitutional requirement before...

Limiting Excessive Prison Sentences Under Federal & State Constitutions

Penn Journal of Constitutional Law (2008)

The Supreme Court’s disappointing holdings in the California Three Strikes cases have probably led many observers to conclude that there are no effective constitutional limits on excessively long prison sentences. This Article argues the contrary, and makes three main points. First, any judgment of excessiveness (or disproportionality) requires a normative framework—“excessive” relative...

Solitary Confinement in the Young Republic

Harvard Law Review (2019)

America’s first system for punishing criminals with solitary confinement began at the Walnut Street Jail, an institution that stood right behind Independence Hall in Philadelphia. Historical and archival evidence from that facility demonstrates that the unchecked use of solitary confinement in today’s correctional facilities contravenes norms that prevailed in the Constitution’s founding...

Into the Breach: The Case for Robust Noncapital Proportionality Review Under State Constitutions

Harvard Civil Rights-Civil Liberties Law Review (2014)

States have authority to regulate excessive punishment under their state constitutions, but most have chosen to interpret their state proportionality clauses in lockstep with the Eighth Amendment. Even the states that have found greater protection in their constitutions have done so cautiously, striking down only the rare sentence so absurd that the...

Challenging Solitary Confinement Through State Constitutions

University of Cincinnati Law Review (2021)

Eighth Amendment jurisprudence has resulted in limited scrutiny of solitary confinement despite the known harms associated with the practice. The two-part test established by the federal courts to evaluate Eighth Amendment claims and limitations on challenging prison conditions under the Prison Litigation Reform Act can make it difficult to establish that solitary...

Intellectual Disability, Categorical Mitigation, & Punishment

Boston College Law Review (2023)

Individuals with intellectual disability in the criminal legal system experience objectively worse outcomes than others—more wrongful convictions, more pretrial detention, worse plea deals, and longer sentences. None of which is justified under the theories of punishment. These disparate outcomes stem from initial failures to identify that a person has intellectual disability and...

The Problem of Habitual Offender Laws in States with Felony Disenfranchisement

Journal of Criminal Law & Criminology (2023)

Habitual offender laws operate to increase the sentence of an individual if that person already has a felony conviction. Many people with felony convictions cannot vote or run for office, due to felony disenfranchisement laws. Thus, habitual offender laws target a formally disenfranchised group—people with felony convictions. That creates an archetypal political...

(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin”

The Yale Law Journal Forum (2020)

In 2019, all Justices on the U.S. Supreme Court agreed in Timbs v. Indiana that the Constitution’s prohibition on excessive fines applied to the states. The Court’s opinion discussed the Excessive Fines Clause’s “venerable lineage” and termed its protections “fundamental.” Justice Thomas, concurring, wrote that the English prohibition against excessive fines aimed...

Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences

The Yale Law Journal (2020)

The deprivation of a fundamental right triggers strict scrutiny, and freedom from physical restraint is a fundamental right. Indeed, the right to be free from physical restraint lies at the very core of the liberty protected by the Due Process Clause. In the contexts of pretrial detention and civil commitment, courts hold...

Reverse Incorporation of State Constitutional Law

Southern California Law Review (2011)

State supreme courts and the United States Supreme Court are the independent and final arbiters of their respective constitutions, and may therefore take different approaches to analogous state and federal constitutional issues. Such issues arise often, because the documents were modeled on each other and share many of the same guarantees. In...

General

To The States: Reflections On Jones v. Mississippi

Limiting Excessive Prison Sentences Under Federal & State Constitutions

Solitary Confinement in the Young Republic

Into the Breach: The Case for Robust Noncapital Proportionality Review Under State Constitutions

Challenging Solitary Confinement Through State Constitutions

Intellectual Disability, Categorical Mitigation, & Punishment

The Problem of Habitual Offender Laws in States with Felony Disenfranchisement

(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin”

Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences

Reverse Incorporation of State Constitutional Law