Professor Robert F. Williams Keynote and Introduction: The Perpetual Guardians of the Penitentiary Houses

The following is a transcript of the keynote and introduction to the symposium, “State Constitutions and the Limits of Criminal Punishments,” which took place at Rutgers Law School in Camden, New Jersey, on October 24, 2024. The transcript is edited for clarity.

Speakers:

• David Shapiro, Executive Director, Chicago Lawyers’ Committee for Civil Rights
• Robert F. Williams, Distinguished Professor of Law Emeritus, Rutgers Law School

Moderator:

• Adam Sopko, Staff Attorney at State Democracy Research Initiative, University of Wisconsin

Adam Sopko: Good morning, everyone. My name is Adam Sopko. I’m a staff attorney at the State Democracy Research Initiative at the University of Wisconsin, where I research and write about state courts and state constitutions. 

We’re going to discuss a really important, crucially important topic, criminal punishments at a really important time. The primary institution that we’ve relied on to limit and regulate punishments, the federal courts, is increasingly hostile to those claims, necessitating a turn to state courts and constitutions. And as we’ll see, many of the questions central to operationalizing that turn to the states are unanswered, largely from a fixation on federal institutions. 

Two exceptions to that rule, Bob Williams and the Bob Williams Lecture have been a really important source of ideas, theories, and insights on state institutions and state constitutions. This lecture has been a real source of inspiration for those who think about state institutions for several years, and this year is no different. 

Our keynote speaker this morning is David Shapiro, and he’ll have some really interesting ideas to share with us. David is the executive director of the Chicago Lawyers Committee for Civil Rights, where he oversees a team of lawyers and activists seeking to provide racial equity and economic opportunity for all. Before the Lawyers Committee, David was, crucially, my professor at Northwestern. But perhaps more importantly, he founded and oversaw the Supreme Court and Appellate Program at the MacArthur Justice Center, where he litigated wrongful convictions, prison conditions, cases, police brutality, and more.

Notably, David represented Brett Jones at the U.S. Supreme Court, where he sought to extend Eighth Amendment protections for juvenile life without parole sentences. He’s also argued several important cases in state courts. For those of you who have a moment, please grab David and ask him about the Beaman case in Illinois, as well as several others that have helped demonstrate the potential and possibilities of state constitutions, and I’ll have more to say about that in a moment. His talk is titled, “The Perpetual Guardians of the Penitentiary Houses.“

David Shapiro: Thank you, Adam, and good morning everyone. It is an incredible honor to get to deliver a lecture that is named for Robert F. Williams. Bob has been a trailblazer in the area of state constitutional law, way before it was cool and recognized, well before I think almost anyone else, who recognized that this is an area of study and focus that requires really sustained commitment over time. Not just to talk off-handedly about the importance of state constitutions, or to do so episodically, but really to commit to the work of determining their meaning and understanding their power. I’ll admit, it is a new experience for me to give a lecture named after someone who’s in the room watching me give the lecture. And if it weren’t for the fact that Bob is just such an incredible, incredibly generous, kind and supportive person, in addition to being a brilliant trailblazer, this would be a terrifying experience. So let’s all give Bob the round of applause. 

I’d like to tell you about an extraordinary historical site just across the river from where we are now, the old Walnut Street Jail. Pennsylvania developed the first institution, the first location, for having a system of punishing crime with incarceration in the United States. The jail stood literally right next to Independence Hall. You can see that it is a two minute walk from Independence Hall with nothing but trees and park in between. And as the founders hammered out the Constitution in Independence Hall, literally less than a block away, prison reformers were designing the first American institution for punishing incarceration. In fact, Benjamin Franklin was carried in a sedan chair to the Constitutional Convention by people who were incarcerated at the Walnut Street Jail. 

Many of you are probably familiar with some of the highlights of the Walnut Street Jail’s history, as it has at least a cameo in any account of the history of punishment in the United States. But today, I’d like to talk about it in a new way, as a guide, an example, perhaps even an inspiration for students, advocates, scholars and judges thinking about the role of state courts in ensuring humane conditions of confinement under their state constitutions. 

I have four main objectives in this lecture. First, I’d like to briefly talk about how the U.S. Supreme Court has continued its shift away from any meaningful oversight of prison conditions. In fact, it 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. So there’s already a huge void to be filled by state courts in this area, and it’s not going to get any smaller. It is only going to get bigger. 

Second, I’ll suggest that in many states, state court judges historically had an extensive and robust role in the regulation of prison conditions. Modern attempts to bifurcate an incarceration sentence from the conditions accompanying the sentence — are at least in some states — ahistorical. And I’ll illustrate that history by focusing on the role of judges in overseeing conditions at the Walnut Street Jail. In this system, state court judges played a huge role in designing prison regulations and improving prison conditions. They inspected prisons hands on and in person. They had a major stake in determining the conditions experienced by the people they sentenced or whose sentences they reviewed on appeal. In addition, certain incarceration conditions, or at least what are thought of as incarceration conditions — as opposed to sentences today — had to be authorized by sentencing statutes and imposed by a sentence in court. 

Third, I’ll show that this history really undermines many of the reasons that the U.S. Supreme Court has used to justify its retreat from prison oversight. In fact, that’s why I started this research many years ago, when I was younger and dumber and more optimistic about how the Supreme Court of the United States might use the history of the role of judges in regulating prisons. But I’m really not here to beat a dead federal horse. Instead, I want to talk about how this history can be a guide to state courts when it comes to constitutional protections against inhumane prison conditions. State courts are facing a lawless void created by the U.S. Supreme Court, and they should reassume their historic role in shielding incarcerated people against abuse. 

So first, the bad news that probably is not particularly surprising to most folks in this room: the U.S. Supreme Court may be ready to exit the field of prison oversight entirely under the federal constitution. This could be accomplished by what the court has already been doing over decades — a consistent weakening of the level of scrutiny provided by the deliberate indifference standard and other standards relating to prison conditions, and a corresponding increase in the level of deference given to prison officials to have a completely free hand in determining conditions. Or, if the court doesn’t weaken it to the point of irrelevance in that way, perhaps an even more alarming possibility is that the court might adopt a position that Justice Thomas staked out soon after ascending to the Supreme Court, which is that the Eighth Amendment doesn’t apply to prison conditions at all, because prison conditions, unlike sentences imposed by courts, aren’t punishments under the Eighth Amendment.

So the future of federal court oversight of prisons is pretty bleak. And I want to touch on some of the rationales that the court has used to move out of this space and to move toward greater and greater deference, because I think that some of the history at Walnut Street undermines these rationales entirely, if not as to federal judges, then certainly as to the role of state court judges. 

First, it is a consistent theme in the federal decisions that judges lack the competence to superintend prison conditions, which are a policy matter best left to legislators and correctional officials. Sometimes I call this the dishwasher argument, because it’s an argument that my wife and I used to have over the dishwasher where I would say I am incompetent to learn how to load this thing properly, so I should really defer to your superior expertise. And she would say, “No, you just have to learn how to do it. You can’t not do it and thereby become incompetent in it, and then claim competence as a reason not to do it going forward.” I think she had the better of that argument. The second rationale is that federalism prohibits excessive meddling by federal courts in prison conditions. The third, that punishment requires the intent to punish, so a condition has to intentionally inflict harm if it is to be considered punishment under the Eighth Amendment. 

These are rationales for deference. The views espoused by Justice Thomas and joined by Justice Scalia in the 90s stake out an even more extreme position that are tantamount, not so much to deference, but to formal and explicit abdication of the role of federal judges in regulating prison conditions. A major part of this argument is that there is a strict dichotomy between sentences meted out by courts and the conditions imposed by prison officials, and only sentences imposed by courts are punishments under the Eighth Amendment. In other words, it doesn’t even matter if you can prove that there is an intent to inflict harm on the part of a prison official. A prison official is not a court, and therefore what they do is not punishment. 

The second component of the full-on abdication approach is that courts historically had no role whatsoever in regulating prison. And the past two terms leave little doubt that the Supreme Court is open to wiping out entire areas of law, administrative law, reproductive freedom, etc. Positions that once seemed fringe are now majority opinions, and it seems totally possible that the votes might be there to adopt the full on abdication position. 

I think both the specter of increasing deference — to the point of irrelevance — and the specter of abdication are raised all the more clearly by the recent decision last term in the Grants Pass case. This was a case involving a Colorado municipal law that essentially criminalized sleeping outside and was enforced against homeless or unhoused people who had no alternative but to do so. And there are whole paragraphs in that opinion where you could just lift the word homelessness and replace it with incarceration, and it would still kind of make sense. Incarceration is a major social issue that has conflicting views and different opinions about how to solve it. Judges aren’t qualified to figure out what is right in the area of incarceration, so it has to be left entirely to state and municipal officials and the legislative process. Grants Pass, in the throwing out of whole areas of law, comes dangerously close to saying that the Eighth Amendment doesn’t have a significant role in regulating what can be punished. It only regulates the nature of sentences and prohibits sentences that were considered unacceptable at the time of the founding. 

And federal courts pulling out of prison conditions entirely — it’s not like it’s good now, but it would be disastrous if that happened. In many states, courts haven’t really built up the expertise and the muscle memory to really go about regulating and enforcing prison conditions. It’s kind of like me and the dishwasher. Sometimes if I don’t have a lot of practice, then I’m not going to feel like I’m capable of doing it. And contrast that to sentencing, where it’s state court, trial and appellate, work, day-in and day-out. Even if there were a situation where the Supreme Court stepped out of sentencing under the Eighth Amendment, I think state courts hopefully would be ready to pick up much of the work based on the day-to-day work that is already done. But in prison conditions, it really could be a legal vacuum. 

Okay, now the happy part: there is some very heartening news to be found in the history of state court judging in the founding era of the United States. Just behind Independence Hall and just across the river from this room right now, state court judges were taking a very active role in the regulation of the Walnut Street Jail in the 1790s. For this part of my lecture, I’m going to draw on an article I published in the Harvard Law Review in 2019 called “Solitary Confinement in the Young Republic.” 

When the Revolutionary War ended in 1783, a group of civic leaders in Philadelphia spearheaded reforms to scale back capital punishment, and in the years that followed, a series of laws enacted by the Pennsylvania legislature dramatically reduced the number of offenses punished by death, largely replacing capital punishment with imprisonment. And as incarceration became the cornerstone of criminal punishment, the prison system demanded new attention. 

This ushered in a rich period of discourse and experimentation in prison reform, or more precisely, prison formation, as there wasn’t really an existing prison system to reform. This system came to be operated at the Walnut Street Jail. In other words, the jail evolved to also function as a prison, as opposed to only a jail or a pre-trial detention facility. The leaders of this movement in the late 1700s were serious intellectuals, and among them serious legal thinkers. Benjamin Rush really spearheaded it. William White, who is the bishop of the Philadelphia Episcopal Church, was the president of the Pennsylvania prison society for about 50 years. Pennsylvania Supreme Court Justice Bradford was heavily involved in the discourse. He later went on to be attorney general of the United States. And this group viewed themselves as the intellectual heirs of John Howard, an English sheriff whose work profoundly affected the implementation of solitary confinement in Philadelphia. 

Actually, my title goes back to what John Howard wrote in 1791, which was that judges should be constituted perpetual guardians of the penitentiary houses. He considered external oversight absolutely vital to a just system of incarceration. He wasn’t content to leave prison conditions in the hands of wardens alone. He wrote, “I think a proper inspection so absolutely necessary to the good government of the penitentiary houses that neither expense nor few other conveniences ought to be set in competition with so important a circumstance.” He wrote that magistrates should visit at proper periods without previous notice, just show up to see and examine all prisoners separately. In addition, prison inspectors were to appear at unexpected times to view the whole prison and to hear prisoners’ complaints. 

In short, prison inspection was an indispensable component of Howard’s vision, and Pennsylvania really followed that model in the system of oversight that it established for the jail, giving judges at various levels of the state judiciary power over jail administration. During the colonial period, and immediately after the revolution, oversight of the Walnut Street Jail was given to the sheriff of Philadelphia, who operated the jail, and that’s the system you know across the country now, right? Sheriffs tend to be the ones who operate jails while state corrections officials operate state prisons. 

But a 1789 Pennsylvania statute transferred control of the Walnut Street Jail to a group of government appointed prison inspectors. Then a 1790 act superseded those provisions and stated that the mayor and aldermen of Philadelphia and two justices of the peace for the county of Philadelphia would select the prison inspectors. Prisoners at the jail were subject to the visitation and superintendents of the inspectors, two of whom had to go in at least once a week, and they were to look into the management of the jail and the conduct of the keeper and his deputies.

In addition to the inspectors, the governor, state supreme court justices, mayor of Philadelphia, and all city and county judges visited the prison four times a year. And in 1791, prison inspectors were also given the power to make rules and regulations for the jail, so long as the rules met with approval from the mayor to aldermen and two judges of the Supreme Court or the Court of Common Pleas, so judges were all over jail administration. 

There was also a second way in which judges controlled prison conditions, and that was through sentencing. Certain aspects of incarceration, which today we think of as conditions, used to be considered sentences in Pennsylvania in the late 1790s. For example, long term solitary confinement was considered a sentence only judges could impose. They could only do so when the legislature enacted a statute authorizing solitary confinement for particular offenses. 

So, understand this system. We’ve got to differentiate between solitary confinement as a prison disciplinary measure, and solitary confinement as criminal punishment. Jail officials did have the power to impose solitary confinement, to discipline prison, to discipline prisoners, but only for days or weeks. They could not subject rule violators to more than two days of solitary confinement without the consent of high-level government officials, and even with that approval, they still couldn’t do it for more than 15 days. By contrast, long periods of solitude could be imposed only as a criminal punishment by a court, and it had to be statutorily authorized to do so. Statutes bounded the authority of courts by reserving solitary confinement for the most serious crimes and establishing a range for any solitary confinement portion of a sentence. 

A 1794 act said that for people convicted of crimes that required incarceration, there was a mathematical sentencing range that bound the court for the solitary portion of the sentence. The length of solitary confinement could not be less than 112th, nor more than one half, of the overall prison sentence.

My research focused on Pennsylvania specifically, but a forthcoming student note in the Yale Law Review by Ryan Pollock, entitled “The Eyes on Doctrine,” extends this analysis across all of the original 13 states. Pollock writes in his working paper, that in the 30 odd years following American independence, in state after state, and in all the original 13, finally, the judicial power came to comprehend actionable supervisory authority over prisons and jails. Judges could second guess the warden. Sometimes they had to. Judges were called upon to appoint prison inspectors, to act on those inspectors’ punishments, to frame rules of internal prison government and to review a sheriff’s selection of his jailer. 

In some jurisdictions, judges on their own motion, could remove prison keepers for misbehavior. Today, there is such a bifurcation between judging and prison administration, and judicial reporters — particularly federal ones — are so full of opinions in which judges go on and on about how incapable they are when it comes to understanding prison conditions, that it’s easy to think of the contemporary arrangement as the way it’s always been. 

It’s not the way it’s always been, and it’s the contemporary arrangement, I would submit, that is the counterintuitive one, because judges are part and parcel of the criminal punishment system. It’s all the more true for state courts and state judges, because they are part of the same punishment system that comprises prisons themselves. So going back for a moment to the rationales for Supreme Court deference and abdication, I think these are wrong as to federal courts — but they’re really doubly wrong as to state courts. It is just so important that this not be treated as something that should be persuasive to state courts. 

We’ve seen that judges certainly had the confidence to superintend prison conditions. They were doing it all the time. They were used to it. It was the day-to-day work of state court judging, or part of it. Federalism prohibits successive meddling by federal courts in prison conditions. I mean, this one doesn’t even apply right off the bat to state court judges. I think that history is wrong for federal purposes too, that this was consistent enough across state court judging that you could infer that federal judges might have the same power and expectation. 

But who cares? You know, for purposes of state courts, punishment only requires intent. Punishment requires the intent to punish. Judges weren’t going around trying to determine whether the jailer was acting with good or bad intent, or delivering punishment differently, or what — they were just trying to play a role in making conditions better and safer. The idea of a straight dichotomy between sentences meted out by courts, and conditions imposed by prison officials, we’ve seen that to be wrong in two ways. This is because state court judges were going into the very prisons to which they had sentenced people, inspecting them and having authority over how people were treated. And in many cases, conditions — in particular, solitary confinement for the long term — was a sentence and not a prison condition. 

Secondarily, the idea that courts had no role in regulating prison conditions is just wrong. Thus, historically, the lower courts routinely rejected prisoner grievances by explaining that the courts had no role in regulating prison life. This is followed by a string cite of two cases from the 1940s, 1950s, and 1960s, which does not make a lot of sense if you’re trying to determine what the reality was around the founding of the nation.

I think another implication of some of this research is to consider whether under state constitutions, Apprendi style rules should apply to certain conditions of confinement, like long term solitary confinement. In Pennsylvania in the 1790s, you could not be sentenced to long term solitary confinement unless what are now called the Apprendi requirements were met. It had to be specified in the statute. The jury had to find that you committed the crime beyond a reasonable doubt, and the sentence had to be imposed by the court based on that finding. And this, I know for a fact, this isn’t just true in Pennsylvania. 

Molly Bernstein and I have a working paper up now that really focuses on life sentencing in Michigan. Similarly, when the death penalty was abolished by statute in 1847, it was replaced by a sentence called “life solitary,” but you had to be convicted of the particular crime in order to be eligible and sentenced to that permanent solitary confinement. As Adam mentioned, I argued Jones v. Mississippi. That was a disappointing experience, to say the least, but I want to conclude by saying that there is so much reason for optimism and hope when it comes to state courts taking up the role of regulating punishment in an assertive way. 

Shortly after arguing Jones, I got to argue as an amicus in the supreme court of Michigan in cases that recognized a right against juvenile life without parole. That is, for mandatory juvenile life without parole for not just juveniles, but very young adults. Part of the reason the experience was different is that Maya Menlo and her colleagues did all of the heavy lifting for the parties. But it really felt overall, just different in terms of feeling like the intellectual arguments advanced to the court actually mattered, that the history that I was privileged to present might actually matter in terms of where the result came out. 

There’s so much reason for hope across the country, very much looking forward to Justice Kafker’s paper about what Massachusetts has done to respond to Jones. Emily Hughes and John Mills are really just leading the way in Montana with the dignity clause, and Tara in Oregon is really translating this work from the sentencing space into the incarceration space. And so I really want to stress two things, first, that there is so much that is hopeful and inspiring going on in the sentencing space. That needs to be continued to be built, but also that there really needs to be more and more of a return to the historic role of state courts in regulating and overseeing prison conditions, because of how critical that’s going to be, both now and in the years ahead. Thank you so much. 

Robert (Bob) Williams: David, I just want to say a couple of words and we’ll move on. But for those in the audience who are not really familiar with where state constitutional law fits within our American constitutional system, David’s talk represents a perfect model of the way things happen in our constitutional system. 

Almost always, lawyers and advocates strive for the grand prize of a SCOTUS national 50-state decision on people’s rights. More and more, as he said, the United States Supreme Court is moving away from this sort of thing, sometimes overnight, like the Dobbs case on reproductive rights, like the gerrymandering case, we’re out of the business, sometimes a little bit more slowly, as the kinds of work David was doing. But it comes to an end, and sadly, the Jones case and the homeless case looks like the end. So what happens is, most people in the country think, well, that’s the end. You don’t have a right to sleep outside. You don’t have a right to reproductive freedom. There’s no guarantee against partisan gerrymandering. 

Wrong. These kinds of decisions by the United States Supreme Court are not the end of a process. They’re a middle, they’re the middle of an American constitutional process. So these questions are then left to all 50 states. The problem is people who are not as sophisticated as this group think it’s already been decided. “What are you talking about?” Early on in the 1980s and 1990s I saw state judges say, “What do you mean we can disagree with the United States Supreme Court?” And of course, it’s black letter law, that’s true, a U.S. Supreme Court interpretation of the federal constitution is not binding on the states in any way. State courts are not required to follow it when they’re interpreting their state constitution. Of course, they have to follow it as a matter of federal constitutional law. 

But what happens is these U.S. Supreme Court decisions exert what one person called the gravitational pull. I called that originally a “shadow over the state” litigation. Fifteen years later, I called it a “glare." I don’t know which it really is. But there’s a powerful effect on state judges when they’re asked to literally disagree with the United States Supreme Court.

But as David pointed out his description of rationales of deference, when I heard him speak out in Utah, first thing I said, I got to get this guy to Rutgers. The second thing I said, I’m going to go tonight and read the Jones case. And the next day I read it, and it was filled with rationales of deference. Justice Kavanaugh said, “Look, you states, you can do it.” It’s in the opinion paragraphs. You heard me say it in Utah because I had never read the case before. But he says, “Look, states can do what they want. They can do this. They can do that.” He keeps on and on. It’s like that. 

So these are the reasons that need to be presented to state judges that you’re not bound in any way by the U.S. Supreme Court decision, the negative U.S. Supreme Court decision, and it’s not even a good precedent for you to look at. Then you can sort of take a look at the state constitutions, which we’re going to hear a lot more about today, unbelievable provisions. And of course, even if they just say cruel and unusual punishment like the Eighth Amendment, the federal decision is not binding, and shouldn’t even be persuasive when it’s filled with all of these expressions of what one professor called “under enforcement of the federal constitution,” out of deference to the states.

Oh, one last thing for most of us, the idea of original intent is really a bad concept. But look at the other side of the coin on originalism or original public meaning. Look at the history in Pennsylvania. The Pennsylvania punishment clauses were drafted in 1776, 11 years before the drafting of the U.S. Constitution, drafted in the same building, by the way, in the Pennsylvania State Constitution convention of 1776. With that let’s move to the next panel.