Issue 19: What is punishment? Two new papers expose another flaw in 8th Amendment case law—and show how state constitutions can do better

November 3, 2023 By Kyle C. Barry

Vacancies & Elections Roundup

  • Republican Governor Mike Parson appointed state appeals court Judge Ginger Gooch to the Missouri Supreme Court, creating a four-woman majority. Before first taking the bench, Judge Gooch was a corporate lawyer for 15 years. 
  • In Pennsylvania, voters are choosing between Democrat Daniel McCaffery & Republican Carolyn Carluccio for an open seat on the state supreme court. In Bolts, Alex Burness writes that each candidate “would take election law in divergent directions, as disputes loom over mail voting, gerrymandering, and ballot counting.” The ACLU of Pennsylvania also explains that the court has recently deadlocked 3-3 in several cases, and that  “abortion access, voting rights, and so much more [are] on the ballot in the state Supreme Court race.” 

Scholarship Spotlight: What Is Punishment? (Or, Another Way That State Constitutions Can Fix What the Supreme Court Has Broken)

When someone is sent to prison, their punishment, in any normal sense of the word, involves far more than “serving time.” Often one must also endure poor healthcarelethal heatdehumanizing abuserampant diseasefilthy drinking water, and extended solitary confinement that amounts to torture. And convictions follow people long after their release. The so-called “collateral consequences” of criminal convictions can last a lifetime, excluding people from employment, housing, and voting, and in some cases include the added shame and exclusion of public criminal registration. 

This reality of our criminal system—how prison conditions and other sanctions are inexorably intertwined with prison sentences—provides another basis for state supreme courts to depart from federal case law. As two forthcoming law review articles explain, the U.S. Supreme Court has—in ways ahistorical, illogical, and inconsistent—largely ignored this reality when answering two closely-related questions: What is “punishment”? And what is a criminal “sentence”?

The answers have life-changing implications. Whether and to what extent certain rights apply depends on whether state action is “punishment.” The rights to counsel, to be free from ex post facto laws, and to avoid double jeopardy are all at stake. So is the 8th Amendment’s ban on “cruel and unusual punishments”—and here there is a further distinction. Even when state action must comply with the 8th Amendment, the Supreme Court has set different rules for claims that challenge a “sentence,” and claims that, under the Court’s rubric, challenge the administration of that sentence. 

Read together, these articles show how federal constitutional law arbitrarily limits the concept of criminal sentencing, essentially reducing it to a term of years and nothing more. As Prof. Meredith Esser writes, “the Eighth Amendment’s treatment of sentencing concerns has traditionally been completely walled off from its treatment of the conditions a person is confined in.” And Prof. Brian Murray explains that even extreme collateral consequences are viewed as merely “civil” in nature, beyond the 8th Amendment’s reach entirely. That blinkered view of punishment contributes to longer prison terms, the inhumane conditions inside America’s jails and prisons, and the myriad other sanctions that consign people to “civil death.”

It is also a view of punishment that state supreme courts, applying their own constitutions, need not adopt. 

Let’s start with conditions of confinement. In her article, Extraordinary Punishment: Conditions of Confinement & Compassionate Release, Prof. Esser explains the 8th Amendment’s two distinct meanings:  

Sentences must be proportional to the offense (and, in some cases, to individual culpability). And while that standard tolerates extremely long prison terms, it would not allow sentencing courts to order prison beatings or viral infections or heat stroke or psychological torture. But with “sentencing” walled off from “conditions,” people who challenge such conditions must meet an entirely different 8th Amendment standard. They must show that prison officials were either “deliberately indifferent” to a risk of serious harm, or that they acted “maliciously or sadistically”—a standard, Prof. Esser points out, that “is akin to a criminal recklessness.” 

Notice how this shifts the question from whether conditions are adequate and fair to whether corrections officers and prison administrators are wrongdoers. Instead of asking, “are incarcerated people afforded humane living conditions?” or “are these brutal conditions excessive punishment?,” courts ask, “are prison guards sadistic?” Those are very different things, and asking only the latter gives extraordinary deference to prison officials. 

This approach also limits remedies for successful claims. While an unconstitutionally excessive sentence yields a new sentence and perhaps release from custody, a successful conditions lawsuit is generally limited to injunctive relief and money damages (which are often stymied by qualified immunity anyway). 

Prof. Esser’s piece discusses how the First Step Act has filled this gap for federal convictions, allowing incarcerated people to seek “compassionate release” based in part on prison conditions. For example, the statute allows judges to consider that prison is generally worse for people who are elderly or sick or have intellectual disabilities, and that such conditions are relevant to whether someone should be released. Compassionate release was also critical to reducing prison populations during the pandemic, with some courts have accounting for the toll of solitary confinement; one judge ordered someone’s release in part because “two-week confinement in solitary quarantine in a higher security facility is the equivalent of two months in the Camp to which he was originally assigned.” 

In sum, the law allows judges to ask: has the person before me, considering their personal characteristics, conditions of confinement, and other factors, served enough? Is this prison sentence serving a legitimate purpose? Or is it now excessive? 

At the state level, the 8th Amendment analogs in state constitutions could work much the same way. State supreme courts are free to take a more holistic—and realistic—approach to excessive sentencing. As Prof. Esser argues, applying “compassionate release” broadly to address the lived experiences of incarcerated people “makes doctrinal sense”—far more sense than the oddly bifurcated 8th Amendment standards—and provides a better model for state courts to follow. 

Similarly, collateral consequences have proliferated in part because federal courts have considered even the most severe examples (e.g., indefinite confinement in prison-like hospitals) to be “civil” or “regulatory” measures rather than punishment—and therefore beyond the constitutional protections for people in the criminal system. 

Despite the constitutional stakes, courts have allowed legislatures to declare that certain sanctions are not punishment, so long as they cite some other purpose beyond sheer retribution. As Prof. Brian Murray explains in Original Understanding, Punishment, & Collateral Consequences, “modern Supreme Court precedent has been exceptionally deferential to legislative labeling, and generally has found only retributive purposes to be sufficient to label a measure punishment. This categorically excludes lots of state-imposed suffering after a conviction from being labeled punishment.”

There are many reasons to question this approach, but Prof. Murray’s focus is original meaning. As it turns out, the notion that only retributive measures count as state punishment has no basis in history. Instead, he writes, “the historical reality [is] that several prominent members of the Founding generation, … when discussing what constitutes punishment, considered nonretributive purposes underlying state action to be punitive and therefore indicative of punishment.” These purposes include “the intent to deter, reform, shame, or incapacitate.” Moreover, “the original public meaning of punishment precludes legislative control over which consequences are definitively punishment or not[.]” 

Taking this history seriously (as the current Supreme Court majority is supposedly interested in doing) would at least place greater constitutional safeguards between people and sanctions like lifetime occupational debarment, sex offender registration, and indefinite “civil” confinement, among others. 

Federal case law’s historical flaws should also make it less persuasive for state supreme courts to follow, and inspire them to canvas their own history instead. In one example, lawyer Kevin Bendesky dives into the history of Pennsylvania’s 8th Amendment analog—which prohibits “cruel punishments”—and finds that, in its original meaning, retributive punishment was actually prohibited. Instead, the clause “permitted only deterrence and rehabilitative justifications” for criminal sanctions, and “proscribed as cruel anything unnecessary for those aims.”

The point is that the 8th Amendment and other federal law has needlessly curtailed constitutional rights—effectively ceding control of them to legislatures and prison administrators—by narrowly defining the concepts of “punishment” and “sentences.” This wasn’t inevitable. It was a choice that judges made. And one that state supreme courts need not follow. 

Ohio Supreme Court overturns massive prison sentence for theft—then reinstates it

There’s an emerging pattern among state supreme courts: When a court’s majority flips from Democrat to Republican, or becomes more solidly conservative, the court starts redeciding cases decided only months before. Not redeciding issues. But actual cases, rescinding prior orders and issuing new ones. The North Carolina Supreme Court’s new Republican majority acted quickly to reinstate a discriminatory voter ID law that the court previously struck down, and just last week agreed to rehear a case (at the request of Republican legislators) about public school funding. 

Now the Ohio Supreme Supreme Court has followed suit in a high-profile sentencing case. Last December, the court ruled 4-3 that trial courts must consider overall prison time before imposing consecutive sentences. The case involved a 65-year prison term given to a woman who was convicted in a string of nursing home thefts that did not involve any physical violence. The functional life sentence resulted from combining smaller sentences ranging from six months to three years, and the court held that the sentencing judge had not adequately considered whether piling these shorter sentences together led to a disproportionate sentence.

But then the court’s makeup changed. Chief Justice Maureen O’Connor, part of the 4-justice majority, stepped down, and Republican Governor Mike DeWine replaced her with conservative prosecutor Joe Deters. With Deters solidifying a new conservative bloc, the court last month “reconsidered” its December ruling, vacating the order and upholding the 65-year prison term. And while the opinion says the outcome changed “upon further reflection,” that is simply a euphemism for, “we have a new majority.” 

In dissent, Justice Jennifer Brunner emphasized the court’s failure to ensure proportional sentencing: “what [the woman] did pales in comparison to the nature of the crimes that generally result in a 65-year prison term; her aggregate sentence is vastly longer than those that are typically imposed for multiple nonviolent theft and even burglary offenses. This type of analysis is necessary for justice.  This is what a proportionality analysis looks like.  And it simply cannot be coherently accomplished without considering the actual, aggregate prison term to be imposed.”

So Much For “Finality”: Tennessee appeals court reinstates “clearly excessive” 163-year sentence for theft & forgery

In a testament to the enduring popularity of more progressive prosecutors, Steve Mulroy last year defeated incumbent Amy Weirich in the Shelby County, Tennessee District Attorney election. Among other changes, his reform platform promised a “Justice Review Unit” to reexamine prior convictions and sentences. In December, Mulroy and a county judge agreed to resentence and release Courtney Anderson, a man who in 2000 received a draconian 163-year sentence for multiple theft and forgery convictions.

But last week the Tennessee Court of Criminal Appeals reversed that decision, ordering Anderson back to prison, presumably to die there. The ruling is another example of how courts’ obsession with “finality” in criminal cases magically fades when the status quo is letting someone free. Mulroy said the sentence was “clearly excessive” and urged the governor to grant clemency.

Indiana Supreme Court: State constitution protects right to jury trial in civil forfeiture cases

This term the U.S. Supreme Court will decide whether to impose some basic due process limitations on police power to seize property via “civil asset forfeiture”—a law enforcement tool that, as Jay Willis writes in Slate, exploits the most vulnerable and “amounts to legalized extortion or even outright theft, and empowers armed state agents to line their pockets at the expense of legally innocent people who have no meaningful recourse.” This week, though, the Indiana Supreme Court placed its own check on the practice, unanimously holding that the state constitutional right to a jury trial applies to civil forfeiture cases. [US News | Full Opinion]