The Neglected State Constitutional Protections Against Extreme Punishments

Not unlike their approach to abortion and gun rights, the Supreme Court’s conservatives have for decades pushed a narrow “originalist” view of the Eighth Amendment, arguing that a criminal punishment is only “cruel and unusual” if the founding generation understood it to be so. Far less attention has been given to the distinctive texts and histories of state analogues to the Eighth Amendment and how they may support more expansive protections.

Under the account embraced by conservatives such as Justice Clarence Thomas and the late Antonin Scalia, the Eighth Amendment was originally concerned only with methods of punishment. To them, the proscription against cruel and unusual punishments barred only gruesome sanctions such as nose slitting and dismemberment but remained agnostic on the severity of punishment, including whether sentences were wildly disproportionate to the offense and the offender’s culpability. Indeed, the Court has upheld extreme prison sentences such as 50 years for stealing videotapes and a life term for swiping golf clubs. These rulings effectively took the federal judiciary “out of the business of checking the state when it . . . impose[s] outrageously long punishments,” New York University law professor Rachel Barkow observed, and contributed to a prison population with over 200,000 people serving life terms.

This narrow view of the Eighth Amendment is disputed, and it is not the last word. State constitutions play an essential but often forgotten role as powerful sources of rights, including against extreme punishments. At the time of the founding, states were the primary protectors of individual rights, and for the nation’s first 150 years, “most of the constitutional-rights litigation . . . took place in the States.” In our federalist system, state courts’ independent duty to enforce state-based rights remains.

These rights include state analogues to the Eighth Amendment, many of which are broader by their plain text and have their own unique histories and original understandings. State constitutional convention debates, the writings of constitution framers, contemporaneous media accounts, and early court decisions can all point to far more robust protections of individual liberty and far greater constraints on criminal punishments.

Scholars have previously marshaled this evidence in states such as Arizona and Delaware — observing, for example, that Arizona’s “founding generation . . . held and acted on progressive views of punishment.” We made similar findings after delving into the Eighth Amendment analogues in Pennsylvania and North Carolina, respectively. In both states, the plain text is broader than the Eighth Amendment. Pennsylvania prohibits all “cruel” punishments, dispensing with the “unusual” prong, while North Carolina bars “cruel or unusual” punishment (emphasis added), replacing the Eighth Amendment’s conjunction with a more flexible disjunctive standard.

Each state can trace its antipunishment clause to colonial Declarations of Rights, which were heavily influenced by the penological philosophies of widely read Enlightenment thinkers. As one of the state’s founders put it, Enlightenment theories “found a soil that was prepared to receive them” in Pennsylvania. In this context, “cruelty” covered more than methods of punishment. A punishment was “cruel” if it was unnecessarily severe. And the founding generation measured necessity by the most valued purposes of criminal punishment: reforming those who commit serious crimes and deterring crime in the first place. Any severity beyond that was cruel — no matter how it was inflicted.

Taking these ideas seriously 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. And yet for most of the modern era, state courts in both Pennsylvania and North Carolina have ignored these distinctions to hold that their own antipunishment clauses are “coextensive” with, and do nothing more than, federal precedent.

The Pennsylvania Supreme Court reached that holding over 40 years ago, and it remains the law today. Ironically, the Court adheres to the Eighth Amendment because litigants so far have failed to “suggest[] that Pennsylvania’s history favors a broader proportionality rule than what is required by the United States Supreme Court.” But the opposite is true. The historical record should support, not suppress, a distinctly Pennsylvanian definition of cruelty.

In pamphlets, debates, and speeches, the framers of Pennsylvania’s 1790 constitution and first penal laws endorsed Enlightenment values and explained that only deterrence and reformation justified inflicting punishment. Many of those authors were familiar revolutionaries: James Wilson, Benjamin Rush, and George Clymer, all signers of the Declaration of Independence, along with Common Sense author Thomas Paine. Others, like eventual state attorney general and state supreme court justice William Bradford, were more distinctly Pennsylvanian.

Bradford, for instance, echoed Enlightenment philosophers when he said that the constitutional mandate “that cruel punishments ought not to be inflicted implicitly prohibit[ed] every penalty which is not evidently necessary” for the prevention of crime. And Wilson wrote that when the state establishes “excesses of . . . rigorous penalties,” then “one degree of severity opens and smooths the way for another, till, at length, under the specious appearance of necessary justice, a system of cruelty is established by law.”

Rush and others also wrote powerfully about limiting punishments to evolving standards of morality and assessing the utility of criminal punishments against the best science of the day. In 1788, Rush wrote, “To you, . . . the unborn generations, you will enjoy in point of knowledge, the meridian of a day, of which we only perceive the twilight. You will often review with equal contempt and horror, the indolence, ignorance and cruelty of your ancestors . . . you will see many modern opinions in religion and government turned upside downwards, and many new connexions [sic] established between cause and effect.”

It’s a perspective that would consider what modern social science tells us about the effectiveness of locking people away for the rest of their lives and what cognitive science tells us about personal culpability and the role of youth and extreme trauma. It would act on such evidence when deciding what is “cruel” and therefore unconstitutional.

North Carolina’s constitutional history reflects similar considerations. The authors of its 1776 constitution were intentional about including the “or” in “cruel or unusual.” They consulted the recently drafted constitutions of Virginia, Pennsylvania, Delaware, and New Jersey. Among them, only Delaware used the phrase “cruel or unusual.” Recent scholarship in turn shows that “Delaware’s framers understood and endorsed the proportionality principle in criminal punishment that had been developed by Enlightenment thinkers.” North Carolina’s early choice to protect against “cruel or unusual” punishment survived re-ratifications in 1868 and 1971.

Yet not only have North Carolina courts largely ignored the unique features of its antipunishment clause, they have sometimes misquoted it, underscoring the disregard with which both judges and practitioners have treated this fundamental constitutional guarantee. The earliest example came in 1890 when the North Carolina Supreme Court incorrectly stated that the constitution forbade “excessive bail, and the imposition of excessive fines, or cruel and unusual punishments.” The North Carolina Court of Appeals repeated this error just last year while treating the Eighth Amendment and the state constitution as interchangeable.

Last year, the law finally began to shift in North Carolina when the state supreme court ruled that the state constitution limits death-in-prison sentences for children. Now even youth who commit the most serious crimes must have the chance at release from prison after serving no more than 40 years. Central to the ruling was acknowledging that the state constitution provides extra layers of protection against harsh punishments and that the goal of rehabilitation — especially for children — is a core constitutional value.

That was a 4–3 ruling with a four-member majority that no longer exists after conservatives took control of the court in January. But reviving the promise of state Eighth Amendment analogues should not be a partisan project. Judicial conservatives who preach the primacy of text and history should welcome the reexamination of key constitutional provisions, especially when it means empowering state rights and protecting personal liberty. If they do, they’ll unearth deeply rooted constraints on excessive punishments that have lain dormant for decades.

Ben Finholt is the director of the Just Sentencing Project at the Wilson Center for Science and Justice at Duke Law.

Kevin Bendesky graduated from Harvard Law School in 2023 and will clerk on the DC Court of Appeals in the fall.