Excerpted From: Robert J. Smith, Zoe Robinson, Emily Hughes, State Constitutionalism and the Crisis of Excessive Punishment, 108 Iowa Law Review 537 (January, 2023) (344 Footnotes) (Full Document)


SmithRobinsonHughesThis Article relies on two burgeoning movements in U.S. legal and political culture--the effort to end mass incarceration and the reemerging significance of state constitutionalism argue that state constitutionalism is critical for curbing the excessive punishments that drive mass incarceration.

The incarceration crisis in the United States “is one of the most pressing civil rights issues of our time.” More than half of all adults--113 million Americans--have had a family member locked away in jail or prison. And while the prism of national politics largely shapes the discourse of mass incarceration, the problem with viewing mass incarceration through a national lens is that it obscures the reality that mass incarceration is largely state-created and state-enforced. Ninety percent of the people in U.S. prisons are confined under laws, procedures, and norms created and carried out at the local and state level.

This Article argues that mass incarceration in the United States is not only a national issue, but also an acute local one. While the United States has the highest incarceration rate in the world, thirty-four individual U.S. states have a higher incarceration rate than any other country in the world--with the exception of the United States itself. Critically, though the political intractability of criminal justice policy has historically been a significant driver of the incarceration crisis, this Article argues that missing from the academic and policy debates about mass incarceration is the role of key institutions in the criminal justice system: state constitutions and state courts.

The absence of state courts from discussions of mass incarceration is surprising. An explosion of recent bipartisan recognition and activity from scholars, activists, journalists, philanthropists, and public officials has developed, criticizing the severity and scope of punishment in states across the country and recognizing the role of excessive punishments in driving mass As this dialogue matures and sharpens, there is a growing consensus for structuring the fight against mass incarceration from the bottom up, starting at the local and state level. This bottom-up approach unlocked a wave of electoral wins for prosecutors, judges, and sheriffs committed to shrinking the criminal legal system, reform-oriented laws passed by state legislatures and through ballot initiatives, and--in the wake of the murder of George Floyd by a Minneapolis police officer--a critical social movement. As a result of these efforts, the nation's incarceration rate hit quarter-century lows in 2021, after quadrupling between 1970 and 2008. Yet, in the face of this progress, America remains the world's most incarcerated country.

This news would not have surprised the framers of America's federal and state constitutions, many of whom expressly anticipated structural vulnerabilities inherent in democracy that could operate to undermine the rights of minority factions. Indeed, since people subjected to punishment for serious crimes tend not to be particularly wealthy or powerful, their ability to influence laws that will disproportionately benefit justice-involved populations is very low. Moreover, changes to incarceration policy must contend with the collective emotional response that a single salient crime can produce--for example, a rape or a murder by a person released from prison can incite fear and anger that forces policy rollbacks and can cost elected officials their jobs.

Although our country's constitutional architects positioned the judiciary to serve as a bulwark of liberty to guard against this type of majoritarian overreach, the U.S. Supreme Court has failed to deploy the Eighth Amendment prohibition on “cruel and unusual punishments” to reverse or even slow the worst excesses of America's incarceration crisis. What's more, nearly all of the country's fifty state constitutions provide the right to freedom from excessive punishment in some form, a right that state courts have the ultimate power and responsibility to vindicate. At the same time, state supreme courts--like their federal counterpart--have mostly abdicated their responsibility to intervene, even though it is the states that are primarily responsible for defining and administering criminal punishment. And despite the recognition that “the true frontier of criminal” legal system reform “is [at] the state level [,]” scholars, advocates, and lawyers have not paid adequate attention to the power and responsibility of state courts to enforce their own constitutions to curb excessive punishment.

Over the same time period that the incarceration crisis moved from a fringe social issue to the forefront of the mainstream political imagination, noted scholars and judges from across the political spectrum began to reinvigorate the push for state constitutionalism more generally. Judge Jeffrey Sutton, for example, has recently argued that state constitutionalism is a structural feature of American democracy that is critical to securing the rights and liberties of individuals. Justice Goodwin Liu has echoed Judge Sutton in emphasizing the importance of state constitutionalism to the American constitutional project, stating that “state and federal courts are jointly engaged in interpreting shared texts or shared principles within a common historical tradition or common framework of constitutional reasoning.” Both Judge Sutton and Justice Liu urge the recalibration of the existing federal-state balance by emphasizing the structure and process of constitutionalism and “the process by which individual rights take shape in our diverse democracy.”

In recent years, state supreme courts have used their own state constitutions to create important rulings in the context of takings, democracy cases, self-incrimination, and search and seizure, amongst others. In crafting such rulings, state court judges have confidently reasserted their power to interpret their own state constitutions, whether or not their readings align with the judgment of the U.S. Supreme Court. Yet, despite state courts' willingness to interpret their own state constitutions in these various contexts, when it comes to guarding against excessive punishment and reigning in the mass incarceration crisis, scholars, judges, and advocates largely continue to ignore the role and responsibility of state courts in addressing the incarceration crisis.

This Article agitates for the latent capacity of state constitutionalism to help redress mass incarceration specifically. The predominant value of U.S. constitutionalism is the liberty of citizens. In the context of criminal justice, these liberty interests have been protected primarily by the U.S. Constitution's Eighth Amendment prohibition against cruel and unusual punishment. Especially since the U.S. Supreme Court incorporated the Eighth Amendment against the states in 1962, both state and federal courts have predominantly looked to Eighth Amendment doctrine to define constitutional limits of criminal punishment. Yet, valuing individual liberty has its foundation in state constitutionalism. Nearly every state has an Eighth Amendment analogue, many with unique constitutional language and original meaning that go even further than the federal charter. As a result, state courts have the power to cause wide-sweeping criminal law reform. Unconstrained by federalism concerns, they are able to focus exclusively on their own state's interests. Movements to re-situate criminal justice reform to the local level, then, should include state courts as a critical change agent, supporting state courts as independent arbiters of state constitutions in support of broader criminal justice reform.

This Article proceeds in four Parts. Part I situates the mass incarceration crisis as a bottom-up question and describes the political drivers of the mass incarceration crisis. Part II charts the quiet capitulation of state courts to federal interpretation of constitutional rights, before turning to examine the unique problems posed by unitary constitutionalism in the context of the Eighth Amendment and its state constitutional analogues. Part III examines the rise of the new state constitutionalism movement, outlining the growing support for, and potential of, independent state constitutionalism for more robust protections against excessive punishment. Finally, in Part IV, we chart a path forward, sketching a doctrinal trajectory for state courts to use when interpreting their state constitutional provisions. That trajectory respects federal developments while necessarily capturing the localism of criminal law, highlighting the promise of state courts as a bulwark against mass incarceration.

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This Article has argued that mass incarceration in the United States is more than a national issue; it is a critical local issue calling for robust local intervention. Given that states are responsible for the vast majority of criminal justice policy and its implementation, the Article asserted that local solutions are imperative to address the excessive punishment crisis. Recent developments have begun to unlock the potential for addressing mass incarceration from the bottom up with, for example, more elected public officials committed to shrinking the criminal legal system, and state legislatures and state ballot initiatives passing reform-oriented laws. While necessary, these efforts are not sufficient in themselves. Long-term fundamental reform cannot rely on affecting change through majoritarian institutions that largely generated the mass incarceration crisis in the first place.

Drawing on the growing new state constitutionalism movement, where noted scholars and judges from across the political spectrum have begun to reinvigorate the push for robust state constitutionalism, the Article explored how state courts and state constitutionalism offer promising possibilities for counter-majoritarian balancing of majoritarian excess in the context of mass incarceration. State courts have been long absent in the mass incarceration crisis, having tied the interpretation of their state constitutional prohibitions against excessive punishment to the U.S. Supreme Court's interpretation of the Eighth Amendment. Fortunately, though state courts have long hesitated to remove the question of excess punishment from the rough-and-tumble of majoritarian politics, state judges have begun to exert their independence in interpreting state constitutional rights generally, and prohibitions against excessive punishment specifically, in ways that could foretell a more robust jurisprudence.

Specifically, a growing number of state courts have begun to use the U.S. Supreme Court's categorical framework to assess whether a punishment is excessive under their state constitution's Eighth Amendment analogue. As this Article outlined, even in those states willing to exert interpretive independence, courts appear reluctant to adapt this analytical framework to local conditions, thereby undermining its potency and power to examine whether a punishment is excessive under a state constitution. This Article sketched a framework for state courts to apply the categorical exemption framework in a way that is sensitive to local conditions. Severed from the federalism concerns animating the U.S. Supreme Court while it develops and applies Eighth Amendment doctrine, state courts have the potential to craft a truly local jurisprudence that reflects societal consensus within each unique jurisdiction. The Article also highlighted states with constitutional provisions that promise heightened protections against excessive punishment. Ultimately the Article showed the promise of state constitutionalism as a strong and potentially enduring limitation on mass incarceration within the United States.

Robert J. Smith, Harvard Law School. J.D., Harvard Law School; B.A., University of California, Berkeley.

Zoe Robinson, Professor of Political Science, Australian National University. J.D., PhD, University of Chicago Law School; LL.B. (Hons.), The Australian National University College of Law; B.A., The Australian National University; B. Mus., Queensland Conservatorium, Griffith University.

Emily Hughes, Edward F. Howrey Professor and Senior Associate Dean for Academic Affairs, University of Iowa College of Law. J.D., University of Michigan Law School, M.A., Yale University, A.B., University of Michigan.