Archive: | State Law Research Initiative

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...

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...

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...

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...

State Constitutionalism & the Crisis of Excessive Punishment

Iowa Law Review (2023)

Fully addressing the mass incarceration crisis in the United States requires correctly identifying and accounting for the institutions that are responsible for it and that are positioned to effect change. While more than 113 million people in the United States are impacted by the criminal justice system, this Article argues that mass...

The Forgotten Jurisprudence of Parole & State Constitutional Doctrine of Vagueness

Cardozo Law Review (2023)

The majority of carceral sentences in the United States include the possibility of discretionary release on parole. Most such sentences, however, are unconstitutionally vague. Their unconstitutionality has gone unnoticed because contemporary scholarship and litigation about vague laws have focused on the U.S. Constitution in lieu of state constitutions. This Article unearths historic...

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...

The Evolving Standards, As Applied

Florida Law Review (2022)

In Jones v. Mississippi, the Supreme Court adopted a narrow reading of its Eighth Amendment categorical bar on mandatory juvenile life-without-parole (JLWOP) sentences. Specifically, the Court rejected the Jones’ claim that the Eighth Amendment categorical limit required a sentencing jury or judge make a finding of permanent incorrigibility—that the defendant is beyond...