State Constitutionalism and the Crisis of Excessive Punishment

Abstract

The institutional site of responsibility for America’s mass incarceration crisis represents one of the most important and undertheorized barriers to reducing excessive punishment in the United States. While mass incarceration is frequently presented as an American crisis, with more that 113 million Americans impacted by the criminal justice system, this Article argues that mass incarceration is not a national issue, but instead a local issue. Ninety percent of the people in America’s prisons are confined under state laws, procedures, and norms created by state legislative and executive branches, and thirty-seven individual U.S. states have an incarceration rate higher than any country other than the U.S. itself. While there exists a growing popular and scholarly movement attempting to address the political intractability of mass incarceration, this Article argues that missing from the debate is the role of state courts and state constitutions.

Drawing on two burgeoning movements—the movement to end mass incarceration and the re-emerging significance of state constitutionalism—this Article argues that state constitutionalism is critical for curbing the excessive punishment regimes that drive mass incarceration. The Article evaluates state courts’ quiet divestment of independent state constitutional interpretation in the years following incorporation, outlining the unique issues posed by constitutional unitarism for limiting excessive punishment. Motivated by recent developments in state courts, the Article highlights the growing support for, and potential of, independent state constitutionalism for preventing excessive punishments and addressing the mass incarceration crisis. In doing so, the Article offers a path forward, sketching a doctrinal trajectory for state courts to use when interpreting their state constitutional provisions limiting excessive punishments that respects federal developments while also capturing the localism of criminal law and ultimately emphasizing the potential of state courts as transformative institutions in reducing mass incarceration.

Keywords: state constitutionalism, excessive punishment, Eighth Amendment, constitutional law, criminal procedure, punishment, liberty