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State-Specific Articles

Past, Prologue, and Constitutional Limits on Criminal Penalties

The Northwestern Journal of Criminal Law & Criminology (2024)

Most criminal prosecutions occur at a level that is both neglected by many legal scholars and central to the lives of most people entangled in the criminal legal system: the level of the state. State v. Citizen prosecutions, which encompass most crimes ranging from robbery to homicide, are governed both by the...

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

Emory Law Journal (2024)

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...

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“The Key-Stone to the Arch”: Unlocking Section 13’s Original Meaning

Penn Journal of Constitutional Law (2023)

The Supreme Court of Pennsylvania holds that Section 13 of the State’s constitution, which prohibits all “cruel punishments,” is coextensive with the Eighth Amendment, which prohibits only punishments that are both “cruel and unusual.” Rather than analyze the state provision independently, the court defers to the U.S. Supreme Court’s interpretation of the...

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New Originalism: Arizona’s Founding Progressives On Extreme Punishment

Arizona Law Review (2022)

Originalism, together with textualism, has been of growing interest to legal scholars and jurists alike. Discerning and putting forth the views of “the founders” has become part and parcel of effective advocacy, particularly regarding constitutional questions. Arizona is no exception, with its courts explicitly giving originalism primacy over all other interpretive doctrines...

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Banishing The Ghost of Red Hannah: Proportionality, Originalism, & The Living Constitution In Delaware

Widener Law Review (2021)

Article I of Delaware’s constitution provides a powerful safeguard against excessive or disproportionate sentences that, so far, has gone unenforced. Many of the rights protected by Article I are similar to those protected by the federal constitution. Article I, § 11 of the Delaware Constitution, provides that “[e]xcessive bail shall not be...

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Some Thoughts On Proportionality

Oregon Law Review (2008)

This Article reviews the ancient concept of proportionality in punishment and turns to the more systematic application of this concept in the mid-18th century by Cesare Beccaria and William Blackstone and to current discussions of “just deserts” as a theory of criminal punishment. The Article then returns to the historical development of...

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