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state antipunishment clauses

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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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...

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Cruel State Punishments

North Carolina Law Review (2020)

The Supreme Court has almost systematically expanded the Eighth Amendment over the past decade and a half, proscribing categorical limitations to the death penalty and juvenile life without parole. With Justice Kennedy’s recent retirement, this expansion seems like it might be ending. As this door is closing, however, another door may be...

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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...

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Cruel & Unusual Non-Capital Punishments

American Criminal Law Review (2021)

The Supreme Court has rendered the Eighth Amendment a dead letter with respect to non-capital, non-juvenile life-without-parole sentences. Its cases have erected a gross disproportionality standard that seems insurmountable in most cases, even for draconian and excessive sentences. State courts have adopted a similar approach in interpreting state constitutional Eighth Amendment analogues,...

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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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