Unlocking State Punishment Clauses

Abstract

The United States Supreme Court has applied the Eighth Amendment in two ways with respect to criminal sentencing. It uses the “evolving standards of decency” doctrine for capital and juvenile life without parole cases. And it uses the “gross disproportionality” test for all non-capital cases. Almost every state has its own punishment clause, an analogue to the Eighth Amendment. The language in most of these punishment clauses is similar to the Eighth Amendment. The result is that many states have “lock-stepped” their interpretation of the state constitution with the Supreme Court’s interpretation of the Eighth Amendment.

As scholars and jurists have long noted, lock-stepping state constitutional provisions with federal constitutional provisions constitutes a flawed and problematic interpretive approach. Lock-stepping substitutes the Supreme Court’s interpretation of the federal constitution for the state court’s reading of its own constitution. It disregards the will of state citizens in passing their own constitution, contravenes states’ rights, and ignores important differences in text, context, and history of state constitutional provisions.

Some states have taken note and elected to interpret their state constitutions independently of the federal constitution. Even so, where state supreme courts say that their punishment have separate meanings from the Eighth Amendment, their analysis largely mirrors aspects of one or both of the Court’s two doctrines. So even states that explicitly do not lock-step with the Eighth Amendment nonetheless engage in a sort of analytical lock-stepping by relying largely on Eighth Amendment doctrines. The courts engage in such approaches despite a long and well-developed literature criticizing Eighth Amendment doctrines from many different directions.

The goal of this symposium article is to unlock these punishment clauses from Eighth Amendment doctrine. State punishment clauses have distinct meanings, meanings which may depart far from Eighth Amendment doctrine. And even if a state court chooses to stay within the confines of the principles of the Eighth Amendment doctrine, the application of these principles can arguably be quite different in the context of a state as opposed to an entire nation.

As such, this Article creates a taxonomy of possible interpretations of state punishment clauses. Specifically, it explores what the language of “cruel,” “and,” “unusual,” and “punishment” might mean. This analysis gives rise to a number of doctrinal interpretations state courts might choose to adopt, particularly in light of the textual, contextual, and historical anomalies of their particular state.

Part I of the Article briefly describes the Court’s application of the Eighth Amendment. Part II provides a brief survey of state punishment clauses. In Part III, the Article explains why lock-stepping is problematic. And in Part IV, the article “unlocks” state punishment clauses by providing a taxonomy of possible approaches state courts can adopt in reading and applying their state constitutions.