Behind the Movement Toward Humane Punishment

The Pennsylvania Supreme Court issued a groundbreaking decision last week: It became the first state high court to hold that mandatory life without parole was an unconstitutional sentence for people convicted of “felony murder” — a doctrine under which a person may be prosecuted for murder for any death that occurs during the commission of a separate felony.

The ruling, Commonwealth v. Lee, is a long-awaited “next step” toward state courts providing a “meaningful check on extreme criminal punishments” and sentencing policy that “is proportionate to personal culpability and justified by a legitimate purpose,” Kyle C. Barry, director of the State Law Research Initiative, has previously written.

A few weeks after the 2024 oral arguments in Lee, State Law Research Initiative, the Brennan Center, and the Rutgers Law Review gathered almost two dozen scholars, practitioners, and state supreme court justices to discuss the growing legal movement to use state constitutions to challenge excessive criminal punishments, inhumane prison conditions, and other injustices in the criminal legal system. That day-long discussion highlights the promise of state constitutions to better protect people in the criminal justice system — a promise that has become closer to realization with the decision in Lee.

Below are six takeaways from the event. Videos and transcripts are available here. The Rutgers Law Review also recently published its symposium issue featuring scholarship by the events’ speakers.

State constitutions often provide greater sentencing protections than the federal Constitution.

Lee is only the latest decision to interpret state constitutional protections against excessive sentencing as more robust than what the federal Constitution offers. Last year, for example, the Michigan Supreme Court held that mandatory life-without-parole sentences for people under the age of 21 violated the state constitution’s ban on cruel or unusual punishment. In 2024, the Massachusetts high court went further, declaring all life-without-parole sentences — mandatory or not — unconstitutional for that age group. The list of state cases departing from Eighth Amendment jurisprudence goes on; the State Law Research Institute’s state anti-punishment case tracker lists dozens of cases across 21 states.

Although the provision at issue in Lee barred punishments that were only cruel, without the Eighth Amendment’s additional requirement of unusualness, “Even when it is exactly the same language, state courts can look into it and find more individual rights protection,” said Emily Hughes, a law professor at University of Iowa College of Law. State courts are “best situated in their localities to evaluate community standards and see those evolving community standards and why they might demand the state courts to reach beyond, to reach higher, than the United States Supreme Court is,” Hughes continued.

And advocates need not limit state litigation around excessive sentencing to Eighth Amendment cognates. For example, state courts could consider prison sentences in the context of state constitutional clauses guaranteeing bodily liberty, argued Salil Dudani, a senior attorney for Civil Rights Corp.

The distinction between sentences and prison conditions was less stark in early America.

Today, the U.S. Supreme Court “acts as though prison sentences are a term of years and nothing more,” Barry has written. But “when someone is sent to prison, their punishment, in any normal sense of the word, involves far more than ‘serving time.’” Barry argues that courts should also consider “poor healthcare, lethal heat, dehumanizing abuse, rampant disease, filthy drinking water, and extended solitary confinement that amounts to torture” when assessing the constitutionality of a punishment.

In the early years of the country, judges exercised authority not just over how many years a prisoner would serve but also how that prisoner would serve it, David Shapiro, executive director of the MacArthur Justice Center, explained in his keynote address. Indeed, in the late 1790s in Pennsylvania, long-term solitary confinement could only be imposed by judges as part of a sentence.

“Modern attempts to bifurcate an incarceration sentence from the conditions accompanying the sentence are — at least in some states — ahistorical,” Shapiro said.

World War II impacted the way we treated incarcerated people.

The atrocities of World War II — especially the horrors experienced by victims of concentration and detention camps — ushered in new conceptions of human rights, explained Yale Law professor Judith Resnik.

Greater respect for human rights extended to incarcerated people. “The world has really changed,” Resnik said of the post-war era. “They’re all sitting there reverberating after World War II’s pictures and starting to understand the enormous harms of detention.”

This newfound concern for rights impacted U.S. constitutional law. For example, Supreme Court Justice Earl Warren presented a new perspective on the Eighth Amendment in 1957’s Trop v. Dulles, which held that stripping an American of their citizenship as punishment for wartime desertion was unconstitutional. Warren wrote that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society” — solidifying the idea that the amendment’s “scope is not static.” That such an articulation came in the post-war years was “not by happenstance,” Resnik said.

States have an important role in establishing humane prison conditions.

The inadequacy of the Eighth Amendment in the conditions context is an underdiscussed topic in academic literature, noted Professor Meredith Esser of the University of Nevada William S. Boyd School of Law. Esser laid out multiple barriers to relief for incarcerated people who challenge abuse or inhumane conditions under the federal Constitution, including the Prison Litigation Reform Act, a federal statute creating hurdles incarcerated people must clear to get their claims into federal court; qualified immunity, a defense that shields correctional officials from liability unless they violated clearly establish rights; and the doctrine of “subjective deliberate indifference,” a difficult standard that requires a plaintiff to prove that prison officials knew he or she faced a substantial risk of harm.

What’s more, Shapiro said, the U.S. Supreme Court “may be poised to order federal courts to exit the prison oversight business entirely, based on a mistaken view that the Eighth Amendment doesn’t regulate conditions of confinement or envision a role for judges in enforcing humane prison conditions.”

This underscores a need for increased state constitutional protections against inhumane conditions of confinement and brutality behind bars. Panelists pointed to several “doctrinal opportunities” in that space, like “eroding the line between a sentence and the conditions that somebody is held in” or requiring incarcerated plaintiffs to prove that their conditions present an objectively unreasonable risk of harm rather than meeting a subjective standard.

And Eighth Amendment cognates are not the only provisions that can protect or improve the lives of incarcerated people. For example, some state constitutions have provisions protecting bodily integrity or barring slavery and involuntary servitude. The constitutions of five states — Indiana, Oregon, Tennessee, Utah, and Wyoming — contain clauses providing that “no person arrested or confined in jail shall be treated with unnecessary rigor,” added Professor Kristen Bell of the University of Oregon School of Law.

Oregon courts, in particular, have developed jurisprudence around unnecessary rigor. They have interpreted the clause as forbidding “cognizable indignit[ies],” said attorney Tara Herivel, an analysis that “puts the prisoner at the center of the analysis.”

Herivel described a series of cases she brought in Oregon on behalf on transgender people challenging prisons’ refusal to provide gender-affirming care. “Every single transgender [rights] case that involves claims like this has been successful,” she said. “It’s an incredibly dynamic area of law.”

Judges need lawyers to fully flesh out state constitutional claims.

State judges who are open to giving independent meaning to state constitutional provisions cannot do so unless advocates bring state constitutional challenges.

“One of the challenges that we face, and that I’m assuming many state courts face, is we often see briefs that say, ‘we’re bringing a claim under the federal and state constitutions,’ and if we’re lucky, they will string cite a couple of state court cases along with the federal, but then there’s never any attempt to make a differential analysis of the two,” said Judge Rowan D. Wilson of the New York Court of Appeals, the state’s highest court. “It’s an uphill battle for us to then say, ‘Well, even though the parties haven’t parsed a difference here, we’re going to do that ourselves.’”

Justice Goodwin Liu of the California Supreme Court pointed to an abundance of caution on the part of both judges and advocates. “Unfortunately, too many lawyers take their cues from judges who are just as happy to lockstep because it’s the cautious thing to do,” he said.

The criminal legal system contains a multitude of barriers to justice.

Most of the conference focused on expanding rights of people in the criminal legal system through state constitutional law. But the system presents a multitude of challenges to those it ensnares, many of which cannot clearly be addressed using state anti-punishment clauses.

Around 97 percent of cases are resolved through plea agreements, noted Rebecca Uwakwe of the ACLU of New Jersey. People feel pressure to accept pleas because of the “trial penalty,” she explained, which means that “once someone decides to exercise their Sixth Amendment right to trial,” they almost always face harsher sentencing than provided in a plea. “It is coercive in nature,” Uwakwe said.

In the conditions context, state-level versions of the Prison Litigation Reform Act can prevent even meritorious claims by incarcerated people from reaching a court. Incarcerated people may also be stymied by an inability to obtain an attorney or to pay even minimal fees associated with litigation, such as for records production.

“For many of us, $80 or $100 wouldn’t seem like it’s that big of a barrier,” said University of North Carolina professor Marcus Gadson. “But you have to remember that prisoners, many times, actually are not being paid the same as people on the outside.” As a result, he explained, “they are bounced from court because they didn’t pay the fees.”

Barriers to justice continue after a person nears the end of their prison term. “For people facing life sentences, there is a 92 percent denial rate” of parole in New Jersey, Uwakwe said. Although the parole board is expected to take into account an applicant’s institutional record and rehabilitation, “the reality is that [the parole board is] kind of just basing their decisions on gut reactions, on politics,” she said.

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“In an era like we’re in now, where the likelihood of success on the kinds of questions you’ve been discussing today is pretty, pretty low in the United States Supreme Court,” Rutgers Law School Professor Emeritus Robert F. Williams said in his concluding remarks, state constitutions are “what we have as lawyers.”

Winning in a state supreme court isn’t “the grand victory that we know as a SCOTUS decision is,” he went on. But “anybody who’s ever won a case in the state supreme court knows it’s not chopped liver. It’s one heck of a lot of fun, and it’s spectacular for your client.”

Kathrina Szymborski Wolfkot is the managing editor of State Court Report and a senior counsel and manager in the Judiciary Program at the Brennan Center for Justice.

Nancy Watzman is a consultant working with State Court Report.