How Courts and Litigators Can Help Redefine “Cruel” and “Unusual” Punishments 

Judges, scholars, and practitioners increasingly recognize the value of independent interpretation of state constitutions. But most states still do not accord any independent meaning to their punishment clauses. There are many reasons for states to broaden the scope of these provisions — the democratic nature of the adoption of the state constitutional language, differences in the text between the federal and state constitutions, as well as different histories and original meanings of each. 

These state constitutional provisions have a democratic dimension in most states both because of the nature of their adoption and the relative ease of amendment. First, many state constitutions have resulted from a popular vote in favor of their passage, and even where they have not, elected representatives have ratified the state constitution. Second, and more importantly, citizens regularly participate in the process of amending state constitutions through voter referenda. As a result, courts that ignore state constitutional provisions (or lockstep them with federal constitutional provisions) essentially ignore the will of the people. This is particularly true with state punishment clauses.

While the language of some state constitutional punishment clauses mirrors the Eighth Amendment by barring “cruel and unusual” punishments, others bar “cruel or unusual” punishments. Still others simply prohibit “cruel” punishments, and a few states have their own unique variations. The Illinois Constitution, for example, provides that “all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”

And recent research about Arizona, Illinois, Michigan, Mississippi, North Carolina, and Pennsylvania demonstrates that each state’s punishment clause deserves its own unique interpretation in light of differences in language and the histories surrounding the different punishment clauses. In Michigan, for instance, significant evidence confirms that, originally understood, it was cruel for the state to impose any punishment beyond that necessary to rehabilitate offenders — especially punishments that foreclosed the chance of rehabilitation entirely.  

Over the last decade a number of courts have announced their punishment clauses are more protective than the Eighth Amendment. For instance, Delaware, New York, and Washington all found that the death penalty violated their state constitutions. Iowa and New Jersey found that mandatory minimum sentences imposed on juveniles violated theirs. Iowa and Washington have declared juvenile life-without-parole sentences unconstitutional, and Alaska and North Carolina bar them with a finding of incorrigibility. Washington and Michigan have barred mandatory life-without-parole sentences for emerging adults (19– and 20-year-olds) under their state constitution punishment clauses, while Massachusetts has gone further, holding that life-without-parole is unconstitutional for everyone under 21 — mandatory or not. 

But far too many state courts have thus far declined to extend the protections of their punishment clauses beyond the federal floor. To that end, my recent article, Unlocking State Punishment Clauses, establishes a taxonomy of sorts to offer guidance for state appellate judges writing on a blank slate. In particular, the article provides a menu of possible meanings of “cruel,” “unusual,” as well as the applicable conjunction. To be sure, lawyers should try to incorporate some of these ideas when trying to convince courts to abandon federal lock-stepping approaches.

Multiple Ways to Read “and”

Even courts in states with provisions identical to the Eighth Amendment need not import federal interpretations. Constitutional provisions that bar cruel “and” unusual punishments have several possible meanings. The conjunctive reading bars only punishments that are both cruel and unusual. The disjunctive reading bars cruel punishments and unusual punishments, meaning that the “and” is read as an “or.” A third reading is of “cruel and unusual” as a unitary concept meaning that the ideas of cruel and unusual are not separate categories but one larger category of impermissible punishment. A fourth reading is as a hendiadys, with unusual modifying cruel such that the provision bars unusually cruel punishments. 

In most cases, state courts should read the conjunction as disjunctive, given the different aims of “cruel” and “unusual.” For states where the constitution’s language is “or” this seems clear, but even where “and” is present, the history and common understanding in most jurisdictions is that “cruel” and “unusual” constitute different ideas and protect defendants against different kinds of state abuses.

Unlocking “Cruel”

As explained in the article, there are at least eight possible meanings of “cruel” in the texts of state constitution punishment clauses: (1) torture, (2) excessive punishment, (3) impugning dignity, (4) vindictive retribution, (5) absolutely disproportionate, (6) relatively disproportionate, (7) non-individuating, or (8) inhumane and barbaric. 

Punishments that involve torture are cruel. This idea of torture can relate not just to physical torture, but also psychological torture, which scholars have documented well with respect to death row and incarceration more generally. Death sentences that occur decades after the imposition of the criminal sentence have been called cruel, as have execution methods like nitrogen hypoxia and even lethal injection — the most common method states use to kill those they condemn to death. 

A punishment could also be cruel because it is gratuitous or unnecessary. Life-without-parole sentences arguably meet this definition of “cruel.” 

A third construction of “cruel” is the impugning of the dignity of the defendant. The Court has emphasized the connection of dignity to cruel and unusual punishments under the Eighth Amendment (“the basic concept underlying the Eighth Amendment is nothing less than the dignity of man”), which suggests that undignified punishment might be cruel for purposes of state constitutions.

Another cruel punishment is revenge-based retribution, or “an eye for an eye,” in which the goal is to get even or inflict the same damage on the person who committed the crime. Importantly, the purpose of retribution can take several forms. Another is just deserts retribution, punishing based on the culpability of the offender and the harm caused in an amount no more and no less than what one deserves. The former is cruel, the latter is not. As Justice Thurgood Marshall explained in his Furman v. Georgia concurrence, “the Eighth Amendment itself was adopted to prevent punishment from becoming synonymous with vengeance.” Some felony-murder convictions are examples of this kind of cruel vindictive retribution. 

State courts could alternatively define “cruel” in their state punishment clauses in relation to the purposes of punishment. A punishment that exceeds any of the purposes of punishment would be, by definition, cruel. That is because the punishment is disproportionate — more punishment than is necessary to satisfy the intended purpose. 

Perhaps the context in which states are most guilty of imposing disproportionately cruel punishments is where the punishments overestimate the dangerousness of the offender. The purpose of incapacitation becomes cruel when the punishment exceeds the time in which the offender is actually dangerous, a seemingly common sentencing practice.It is worth noting that a finding of cruelty can be in an individual case and does not necessarily have to give rise to a categorical rule.

While absolute disproportionality assesses the relationship between the sentence and the purposes of punishment, relative proportionality — a sixth way state courts could interpret “cruel” — assesses the relationship between the punishments among similarly situated defendants. Sentences are relatively disproportionate when they punish individuals differently who engaged in similar criminal conduct. Some disparity in criminal sentencing is likely, but significant disparity can rise to the level of unconstitutional cruelty under state constitutions if a particular criminal sentence is an outlier or if a systemic application of punishments leads to distinctions based on improper factors. This can occur, for instance, when punishment disparities reflect racial discrimination or result from different geography.

Another sense in which a sentence can be cruel is where it is mandatory and does not consider the individual characteristics of the defendant and the individual criminal conduct at issue. The reason mandatory sentences might be cruel under state constitutions is that they prevent the court from considering the details of the crime it is sentencing and the character of the defendant. 

A final potential interpretation of “cruel” for state courts relates to punishments that are inhumane or barbaric. In a more modern era of punishment, it might refer to punishments previously abandoned and now invigorated. Electrocution is an obvious example, as are juvenile life-without-parole sentences in jurisdictions that have previously barred such sentences. 

Unlocking “Unusual”

As with “cruel,” there are a number of ways that state courts can interpret the word “unusual” in their state punishment clauses. “Unusual” can mean (1) rare or uncommon, (2) cruelly innovative, (3) arbitrary, (4) not habitual, or (5) remarkable.

The first reading treats “unusual” punishments as rare ones. Under this interpretation, a punishment would be unusual if the state does not regularly use it.This is Justice Byron White’s idea from Furman. In a world of evolving standards of decency — a doctrine directing courts to assess the constitutionality of a punishment according to modern moral standards — punishments that were formerly constitutional may become unconstitutional. If the state does not use it, it loses it. 

A corollary idea to the limit on rare punishments contemplates that unusual punishments are unprecedented in that they constitute cruel innovations. An unusual punishment, then, would be something new a state implements that is more cruel or draconian than the previous punishments it has used. This understanding of unusual — as a bar to cruel innovation — is consistent with the original meaning of the Eighth Amendment. 

A third way a criminal sentence can be unusual relates to its arbitrary nature and lack of purpose. Where a state does not tether a criminal sentence to some legitimate purpose or justification, making it random or arbitrary, the sentence is unusual. 

Another way a criminal sentence can be unusual is where it is not habitual — outside the range of sentencing outcomes for particular conduct, such that it imposes a more severe punishment that others typically receive for that conduct. It is important to note that sentences can be non-habitual based on the characteristics of the defendant as well. The most obvious characteristic would be juvenile defendants, but other characteristics may be relevant to the question of whether to mitigate sentences. 

A final reading of “unusual” under state constitutions would be to find that unusual means “remarkable.” This would mean barring sentences that are noteworthy, significant, or otherwise beyond what is necessary given the circumstances. Remarkable sentences might occur where the sentence imposed constitutes some form of cruel punishment, incorporating one or more of the definitions of cruel. Such punishments might occur where the public nature of a case leads to a draconian punishment.

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State appellate judges and justices are beginning to engage with the language of their state punishment clauses. Looking beyond the Supreme Court’s interpretation and developing the meaning of state constitutions can help states mitigate excessive sentences and operate a more efficient and just criminal justice system. As this taxonomy shows, courts have a number of different approaches they can use when assessing whether a particular punishment violates the state constitution’s punishment clause.

William W. Berry III is Associate Dean for Research and Montague Professor of Law at the University of Mississippi.

Suggested Citation: William W. Berry III, How Courts and Litigators Can Help Redefine “Cruel” and “Unusual” Punishments, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jul. 10, 2025), https://statecourtreport.org/our-work/analysis-opinion/how-courts-and-litigators-can-help-redefine-cruel-and-unusual-punishments