Protecting Against Extreme Punishments

State constitutions often mirror familiar provisions from the U.S. Constitution, but with small textual differences. These little variations — sometimes only a couple of letters — can have big implications. For example, rather than barring “cruel and unusual punishments” (the language used in the Eighth Amendment), many state constitutions bar “cruel or unusual” punishments or simply “cruel” punishments — phrasing that seemingly indicates a broader protection. Some states, like Michigan and Washington, have drawn on these textual differences to depart from the U.S. Supreme Court’s Eighth Amendment jurisprudence — but most have not.

In a new piece for State Court Report, Ben Finholt and Kevin Bendesky go deep into the history of two such provisions, in Pennsylvania and North Carolina, to argue that these states’ Eighth Amendment analogues ought to serve as a powerful bulwark against extreme punishments.

Drawing on their respective research for forthcoming law review articles, the authors trace the provisions governing punishment in each state not to the federal Constitution but to colonial declarations of rights. These declarations were heavily influenced by Enlightenment thinkers who viewed as “cruel” any punishment beyond what was needed to deter crime and reform lawbreakers.

For example, William Bradford — a Pennsylvania constitutional framer who later became a state supreme court justice — argued that Pennsylvania’s prohibition against cruel punishments “implicitly prohibit[ed] every penalty which is not evidently necessary” for the prevention of crime. North Carolina’s framers were influenced by Delaware’s constitution, whose framers had embraced “proportionality” in criminal punishment.

In our era of mass incarceration — and with current Eighth Amendment jurisprudence essentially taking courts out of the business of policing excessive sentences — this history makes the case for a paradigm shift. “Taking these ideas seriously,” Finholt and Bendesky argue, “would mark a substantial break from federal Eighth Amendment precedent, which permits retributive punishments and is typically uninterested in scrutinizing how prison sentences serve legitimate state interests.”

The Pennsylvania Supreme Court has yet to catch up. Forty years ago, it ruled that Pennsylvania’s prohibition against cruel punishments was coextensive with the Eighth Amendment. North Carolina’s high court began to find daylight between its prohibition against cruel or unusual punishments and the Eighth Amendment last year. With a new conservative majority now ascendant on the court, a key question will be whether it builds on or rolls back this ruling.

One more point about history. Judges — and State Court Report readers — who are skeptical of the U.S. Supreme Court’s recent embrace of originalism in areas like abortion and gun rights might raise the question of why we should care about this history in the first place. My own view is that history should matter to non-originalists too. I thought Harvard professor Nikolas Bowie put it well in a recent essay: history can help “denaturalize” the present by “demonstrating how even the most unchallenged assumptions of our time are the product of chance, choices, and contingent circumstances.” The context that Finholt and Bendesky provide does exactly that, making a powerful case that the gravitational pull of the Supreme Court’s Eighth Amendment jurisprudence has come to obscure what began as robust, freestanding state constitutional protections.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.