State Constitutions and the Limits of Criminal Punishments

Rutgers Law School
217 N 5 Street
Camden, NJ 08102

Decades of harsh sentencing practices have made the United States the world’s number one incarcerator. This symposium will engage with the growing legal and intellectual movement to challenge excessive criminal punishments — broadly understood to include both prison terms and conditions of confinement — via state constitutional prohibitions on cruel and unusual punishments and related clauses. The symposium will explore the interplay between state and federal law and the power of state courts to use the text, history, traditions, and unique policy goals of their own constitutions to emerge from federal law’s shadow and impose meaningful restraints on extreme sentencing, create a more humane legal system, and reduce mass incarceration.

In-person and virtual registration options are available.

Produced in partnership with the Brennan Center for Justice and the State Law Research Initiative

Agenda

Breakfast 
8:30 – 9:30 a.m. 

Keynote and Introduction 
9:00 – 9:45 a.m.

David Shapiro, Executive Director, Chicago Lawyers’ Committee for Civil Rights

Robert F. Williams, Distinguished Professor of Law Emeritus, Rutgers Law School

Substantive Rights and Prison Terms
9:45 – 11:00 a.m.

Panelists will discuss legal strategies for limiting excessive criminal sentences; explore unique state constitutional clauses such as rights to “dignity” and against “unnecessary rigor”; theorize on what “cruel” and “unusual” mean in the state constitutional context and how such concepts might be applied; question the limits of “death is different” constitutional protections and doctrinal silos that separate harsh conditions and collateral consequences from “sentences”; and explore the relationship between state constitutional rights and empirical evidence about the purposes and efficacy of criminal punishment.

William W. Berry III, Associate Dean for Research, Montague Professor of Law, University of Mississippi School of Law

Salil Dudani, Senior Attorney, Civil Rights Corp

Emily Hughes, Edward F. Howrey Professor of Law, University of Iowa College of Law

Maya Menlo, Assistant Defender, Michigan State Appellate Defender Office

Moderator: Kyle C. Barry, Director, State Law Research Initiative

“A View From the Bench:” Excessive Sentencing
11:15 a.m. – 12:30 p.m.

Hon. Goodwin Liu, Associate Justice, Supreme Court of California

Hon. Scott L. Kafker, Associate Justice, Massachusetts Supreme Judicial Court

Hon. Rowan D. Wilson, Chief Judge, New York Court of Appeals

Moderator: Alicia Bannon, Director of Judiciary Program, Brennan Center

Lunch
12:30 – 1:30 p.m.

The Problem Punishment Poses for Democratic Orders: Ruination and Rights
1:45 – 2:15 p.m. 

Judith Resnik, Arthur Liman Professor of Law, Yale Law School

Substantive Rights and Prison Conditions
2:30 – 3:45 p.m.

Panelists will explore how state constitutions can improve conditions of incarceration. They will address questions including: Can state constitutions ban or severely limit solitary confinement? Is release from confinement a remedy for intolerable conditions? What flaws or limitations in federal doctrine can state constitutional jurisprudence correct?

Kristen Bell, Assistant Professor of Law, University of Oregon School of Law

Meredith Esser, Assistant Professor of Law, Director of Defender Aid Clinic, Wyoming College of Law

Kasia Szymborski Wolfkot, Senior Counsel, Managing Editor of State Court Report, Brennan Center

Tara Herivel, Attorney at Law, Portland, Oregon

Moderator: Megha Ram, Supreme Court and Appellate Counsel, MacArthur Justice Center

Barriers to Rights Protections
4:00 – 5:15 p.m.

Panelists will explore barriers to vindicating and developing substantive rights, along with ways to overcome them, including the role of courts, legislatures, and the executive. Topics will include access to counsel, procedural bars to collateral review, prosecutor-led conviction integrity review units, the Prison Litigation Reform Act and state cognates, and Section 1983 and state equivalents that create private rights of action.

Eli Savit, Prosecuting Attorney, Washtenaw County, Michigan

Rebecca Uwakwe, Senior Staff Attorney, ACLU of New Jersey

Marcus Gadson, Assistant Professor of Law, Campbell University

Moderator: Hernandez D. Stroud, Senior Counsel, Justice Program, Brennan Center

Closing Remarks
5:15 – 5:30 p.m.

Robert F. Williams, Distinguished Professor of Law Emeritus, Rutgers Law School