Substantive Rights That Limit Prison Terms

The following is a transcript of a panel at “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:

• 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

Kyle C. Barry: This is the panel on state constitutional rights and limits of sentences to imprisonment. I want to reiterate a theme I hope that we’ll revisit throughout the day, which is that the idea of a sentence to a term of years of incarceration and the conditions that one must endure while serving that term of years is a very artificial distinction that exists in the law. 

And I think rethinking that distinction and what that means for state constitutional rights is really important, but our panel’s focus is going to be more on the length of years of imprisonment, because as another recurring theme is that this is a wide open slate. There’s a series of 5–4 decisions from the U.S. Supreme Court that more or less hold that, at least for adults, there really is no Eighth Amendment protection against any sort of term of imprisonment whatsoever. And this is an area in which state courts, relying on the anti punishment clauses of their own constitutions, have been stepping up and doing a lot more over the last, really five to 10 years, which has been really exciting. So with that, I’m going to quickly introduce the panel. I’m really excited to hear from them. 

We have Professor William Berry. He’s the Associate Dean for Research and Montague Professor of Law at the University of Mississippi School of Law. He has written over 45 law review articles, mostly in the areas of capital punishment and sentencing and substantive criminal law, and he has a number of incredibly important papers on state constitutional rights against excessive punishment that I rely on constantly. 

To his left is Emily Hughes. She’s the Senior Associate Dean for Academic Affairs and the Edward F. Howie Professor of Law at the University of Iowa College of Law. Before entering academia, she was a public defender in the Office of the Iowa State Public Defender, and of most importance today, she’s the author of “State Constitutionalism and the Crisis of Excessive Punishment,” which I think is a really groundbreaking paper that hopefully you all have had a chance to at least glance at. She’s also, for this symposium, publishing a paper on rights against excessive punishment in Montana in particular, which she will touch on. 

Next, we have Maya Menlo. She’s an assistant defender with the Michigan State Appellate Defender Office. David mentioned Michigan. I think Michigan is going to come up a lot today. It’s, in many ways, the epicenter of litigation around state cruel and or unusual punishment clauses and the possibilities that these rights have. Maya has been very much a part of that for years now. She’s successfully litigated challenges to excessive punishment under the state’s cruel or unusual clause, and this year, the Michigan Appellate Defender Commission awarded her the Norris Thomas Award for Excellence in Appellate Advocacy.

To her left, we have Salil Dudani. He’s a senior attorney at Civil Rights Corps. He litigates money bail cases and other abuses in the criminal punishment system, including challenging the pretrial detention system in California, which is where he is based and works. He was also previously a trial attorney at Federal Defenders of San Diego, and I am really excited to talk to him about a previous paper that he published that’s called “Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences,” which we’ll be getting into here. So having done that, I think I’m going to turn things over to Emily initially, and she’ll get us started with some background and framing of this conversation.

Emily Hughes: It is really wonderful to be here, and I am so excited that there are students here as well, that there are students in the room, that there are students online. I would like to start us off by thinking about excessive punishment in the U.S., and the hope of state constitutionalism, so really jumping off right from our keynote and where we were, and thinking about, the crisis that we’re in, but the hope that is before us. And that is why I am so excited that there are also students here, because you also are part of the hope before us in terms of carrying things forward. 

So I want to frame it and I’m going to draw largely from the article that was just referenced, that I co-wrote with Rob and Zoe, “State Constitutionalism and the Crisis of Excessive Punishment."

The beginning frame that we use, that I’d like to bring forward into the room today, is really seeing this national crisis as a local issue. This local issue, because of the crisis of extreme sentencing, the crisis of extreme punishment, is largely being handed out day after day after day in state courts across the country, and folks are housed by state courts. So, state prison, state courts. 

And so I want to think about bringing the frame of solving this national, huge issue, piece by piece, locality by locality, state by state, and to think about the crisis. I wanted to bring forward some cases you’re all familiar with, but just to get them in the room with us for a minute to remember some of the big moments, not at all of them, but, thinking about: “How is it that our prisons got so filled? How is it that punishments got so — running away?” And we think back to a first conviction for selling 672 grams of cocaine. We think back to a 25-to-life sentence for stealing about $1,200 worth of golf clubs. We think back to a 25-to-life sentence for stealing about $150 worth of video tapes. And you all know these cases, and you all know the succession when they came. I just want to pull forward those as part of our conversation, when Dean Chemerinsky said, the U.S. Supreme Court, following these cases, has made clear there will be no relief from inhumane sentences in the courts. 

We are taking note here today by thinking about solving this problem from a state, locality perspective, and so as a result of the U.S. Supreme Court making clear that there will be no systemic relief from inhumane sentences through the United States Supreme Court as a result of these extreme sentences for cases. Let’s think about the impact of it. When you multiply that out across the country, and when you multiply out all of those sentences across the country, you get more than half of all adults that have had a family member in jail or prison. You get that 90% of all people in U.S. prisons are held in some form by a state governmental actor. 

So that’s why solving this state by state, locality by locality, I think it’s a critical, pivotal move. You get — this one always boggles my mind every time I see it — but 37 individual U.S. states have a higher incarceration rate than any other country in the world, except for the U.S. Because, of course, we have the highest rate of incarceration — but that’s just mind boggling. And so if that is the case, all of these individual states having a higher rate of incarceration than any other country in the world, than the U.S, we truly can attack this through state constitutionalism, we truly can attack it through the state courts. 

So seeing this as a local issue is the frame that I’d like to begin our panel with. Seeing the states not just because 90 percent of people are imprisoned in some way because of their touch with the state government, but also seeing other ways that states are well positioned for change. So one — and we talk about this in our article — is there are three principles driving this move to state constitutionalism. And the first is this critical role of state courts in dialog with the states, and in dialog with states and the federal courts, really paving a way trying things, being brave and branching out, trying things in a state court system that work. And when they work, then the United States Supreme Court — and we have seen this — has turned to, “Well, we’re seeing this happening.” And sometimes they pick it up, and sometimes they cite it, and sometimes it finds its way into United States constitutional jurisprudence. 

It’s this critical role of the states and the dialogue of showing that new things, that greater individual rights protection can work, and how it can work, and really having that become a factor in shaping United States Supreme Court decisions potentially. But even if it doesn’t, it is shaping what is happening in the state, and state by state, locality by locality, it can make a difference. So that’s the first principle driving state constitutionalism. 

The second is, the good old value of democracy. The good old value of the United States Constitution, to set the floor. State constitutions can reach above it. As we just discussed in the opening lectures, even when it is exactly the same language, state courts can look into it and find more individual rights protection. So it’s the value of democracy in state courts being the 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 doing. 

And the third principle driving move is this reinvigorated state court commitment to liberty, to state constitutional liberty. We’re seeing states interpreting their state constitutions and reinvigorating them, breathing new life into what they mean by liberty in their states. 

So seeing state courts as a critical change agent, I want to pull one case forward from where I come from, from Iowa. It’s an example, because if the Iowa Supreme Court is paving some ground, I believe that a lot of courts can be paving some ground. It goes back to 2010 — a high school student, 17 years old, pays another high school student $5 to buy a bag of marijuana. He’s going to buy it the next day. Shows up to school the next day, and the other kid has the marijuana, but doesn’t seem like he’s going to give it to him. A punch, a fight, and assault ensues. Lyle gets the bag and takes off. And that’s about all that the case is — five bucks for marijuana, punches them to get it, and the charge was robbery in the second degree. Which, in Iowa, if you were an adult — and Lyle was waived into adult court, even though he was 17 — in Iowa, that carries a 10-year sentence. Seventy percent of it is mandatory, so 17-year-old Lyle, convicted. Finds himself serving a 10-year sentence where he’s got to serve at least seven years before he gets out. The sentence itself was mandatory. In Iowa, you don’t get a sentencing hearing with a mandatory sentence, so Lyle has no sentencing hearing. Seventeen year old Lyle is sitting in prison. 

And what happens next, is looking at Lyle’s case in the context of Miller v. Alabama. But what happens, even more importantly, is the Iowa Supreme Court really breathing life into the Iowa Constitution, to say, “We are doing this under the Iowa Constitution. We can reach farther than the United States Supreme Court.” So these are the words of the Iowa Supreme Court in looking at Lyle’s sentence, and thinking about it in the context of cruel and unusual punishment within the context of the Iowa constitution. The court said time and experience have taught us much about the efficacy and justice of certain punishments. Our local state, us being in this state and looking, has taught us much about what is just about certain punishments. And we, the Iowa Supreme Court, understand that our concept of cruel and unusual punishment is not static. 

They cite the United States Supreme Court. They are recognizing it for themselves, though — our interpretation of our constitution. We consider constitutional challenges under the currently prevailing standards of whether something is excessive or cruel under our constitution. And in doing so, this approach of us breathing life into our own constitution, is followed, because the concept underlying this prohibition against cruel and unusual punishment is nothing less than the dignity of humankind. And that concept of the dignity of humankind, you’re going to hear me say a little bit more about that toward the end of the panel, but I really think that liberty and dignity concepts breathing life into state constitutions as part of the path forward. 

Through this decision, Iowa was one of the very first states to decide that there would be no mandatory sentencing for kids unless they got a sentencing hearing. So all juvenile offenders when the Lyle decision came down, who were in prison under a mandatory sentence. This isn’t for [unintelligible] right? This is for a 10-year sentence. This is for something less than a long term, but it is still excessive punishment, I would submit — 10 years for a 17-year-old kid who had an assault in a high school parking lot. It’s only one example of this potential of state constitutionalism if state courts can break from the constraints of federal law. As the Iowa court said, and as many courts, many, many, many more courts, we’re hoping we’ll say our state constitution is a separate source of liberty and we must apply it. 

As I turn it over to my colleagues, I just wanted to give a shout out to New Jersey in a case that was not as well known, perhaps, as other cases other people might talk about today, but New Jersey as well, has given effect to the greater constitutional guarantees of individual liberty in the New Jersey constitution. So remembering back to all of the people in U.S. prisons held by state governments, to the 37 states who have a higher incarceration rate, addressing this crisis of extreme punishment as a local issue, a whole country of local issues is what we’re going to continue talking about. So I will give it to you next.

Kyle C. Barry: Thank you so much, Emily. I will say that I am very excited to hear from Will. Because state courts have for so long just relied on what the U.S. Supreme Court and federal courts have said about the Eighth Amendment, there’s the question of, not just breaking from the outcomes of Eighth Amendment case law. But also, once courts decide to do that and to take their own state constitutional rights seriously, they have a blank slate in terms of, “What standards are we going to

apply now? What does cruel mean to us? What does unusual mean to us?” And we’ve seen some state courts who say we’re going to do our own thing, but they end up kind of taking a test that’s been articulated by the U.S. Supreme Court. But they are not limited to that, and so filling that void of this highly under theorized area, I think, is critically important, and Will is leading the way to do that with this conversation. 

William W. Berry III: Thank you Kyle, and thank you, Bob, for organizing this fantastic conference. I think it’s a wonderful conversation that we’re having with so many people coming from different places to add their piece to the puzzle. And certainly, state courts have been remiss in interpreting their own constitutions. One could say they’ve been lockstepping. You see the Supreme Court interpreting the Eighth Amendment as the big duck, and every other state court assuming that their state constitution means the same thing as the Eighth Amendment, and therefore we don’t have to do any separate interpretation. 

I think that’s fundamentally wrong. It’s fundamentally untrue. And so the purpose of my paper is to have a typology, a list of possible ways in which you can apply this language. Certainly some of y’all are familiar with the Supreme Court’s two major doctrines, evolving standards of decency and the gross disproportionality. All those cases that Emily was talking about are the gross disproportionality standard — and if we’re applying that standard automatically, we uphold the case, because it’s not a quote, unquote, different case. It’s a non-capital case, and it’s a non jail-op case. 

Then we have the evolving standards of decency, which is also arguably a broken doctrine, because we’re defining the scope of a minority right by what the majority practice is. And that’s also broken in some ways. Interestingly, all the states that even interpret their own state constitution separately take pieces of these two tests to come up with their test. And I’m going to argue that we’re starting from scratch. So just to give us time to get to all my stuff, all these states have different punishment clauses, and there’s a whole different approach. Most of them have some aspect of cruel and unusual, cruel or unusual punishments, all sorts of different versions of this and different other provisions as well. I’m not going to spend a lot of time on that, because I want to jump into the core piece of this, which is to say, why should states not lockstep, and what might that look like? 

So one other side note that drives me crazy. When states do decide to apply the volume standards of decency on a state level, they should look at it as an intrastate, not an interstate. So is Mississippi, in its state, using the death penalty in a fair way? Let’s count the 94 counties. How many counties are sentencing people to death? That’s how we figure out what the evolving standard of decency is for our state, if you’re going to interpret your state constitution that way. But the courts don’t do that. 

So, why is lockstepping bad? I would direct you to Bob’s wonderful book on state constitutional law, but there are a whole lot of reasons. Some are democratic state: voters voted or state commissions came up with these state constitutions. These are their own separate things. These have nothing to do with the federal constitution. Sometimes they pre-date, sometimes they post-date. They all have their own histories, as well, as David was pointing out earlier. You have different states’ context, you have different histories…I’m kind of speeding through this because I want to get to my ideas here in terms of the test. But before I do that, the critical, flawed assumption that we have to disabuse state judges and justices of is, first of all, that state constitutions have a different meaning than the federal constitution. Period. End of story, different language, different constitution. 

And then the second piece of this is kind of what Bob was talking about with the glare or the shadow idea, which is to say that it’s interpreted entirely differently. We don’t just look to the Supreme Court test of the federal constitution and pull from it. We start from scratch, and we look at our own context, we look at our own text, we look at our own history, we look at all these things to figure out what this looks like.

 So what is a cruel and unusual, cruel or unusual punishment look like? Well, first we have to talk about the word, “and.” [The] Supreme Court doesn’t ever look at the word “and,” but the word and means, I think, five different things that I came up with. It can prohibit punishments that — you have to show the punishment is both cruel and unusual. But it also can prohibit punishments that are cruel punishments, and also prohibit punishments that are unusual punishments. Or, it can also mean that cruel, unusual is this unitary idea that these punishments are cruel and unusual together. It’s one inseparable concept. 

Then you have Samuel Bray's reading, which is, this is a [unintelligible], which is to say “cruel unusual means unusually” cruel. He also says “necessary and proper,” same sort of idea. And then you have John Bessler's reading, which is, “cruel” and “unusual” are synonyms. All punishments that are cruel are unusual. All unusual punishments are cruel. So you have lots of different ways to even look at the conjunction first. And then half the states either have, or only prohibit, “cruel.” They don’t have the word “unusual,” even in their state constitution. Twenty-two out of 50 states use the word “and.” So what about “cruel?” I came up with seven different meanings of cruel. 

I want to lay out this taxonomy. If you can think of others, please let me know. First of all, the obvious one is torture. I think punishments that cause extensive pain and suffering are by their very nature, cruel. Punishments also can be cruel in the sense that they’re just excessive. I’m going to give you solitary confinement for 50 years. That’s excessive, period. End of story. There’s a whole idea of dignity, which I recommend Emily’s paper on this. But the whole idea of dignity — the Supreme Court, over and over and over again, says, for the Eighth Amendment, what does the Eighth Amendment come from? It’s the dignity of man. This idea of cruel punishments under state constitutions, this is a punishment that infringes upon the defendant’s dignity. 

Then there’s a whole idea of retribution. There are different concepts of retribution. Retribution can be about giving someone what they justly deserve, but can also be about revenge, and this is what Thurgood Marshall talks about in his concurrence in Furman. And so punishment can be cruel in the sense that the state’s doing it for vindictive purposes. Are we taking revenge against the person as opposed to punishing them for what they did? 

Then you have the purposes of punishment which — this comes into the evolving standards of decency test that the Supreme Court uses — but this idea of absolute disproportionality. I think what people miss is all the different purposes of punishment apply here. Is this punishment cruel because it’s more than what the defendant justly deserves? Is it cruel because it’s more than what we need to deter? Is it cruel because it’s more than what we need to incapacitate? Same thing with rehabilitate. I think this is a whole different way of thinking of cruel. 

Then you have the Furman piece of all this, that punishments are disproportionate when you look at other people who are getting the same, or getting different, punishments, for doing the same thing. So there’s this idea of comparative or relative disproportionality. Is this punishment arbitrary? Is it random? Is it unfair? Because this person is getting ten years for assault, and everybody else gets probation? There’s a comparative piece to this as well that can lead to cruelty. 

And then last, but not least, there is this idea of inhumane or barbaric. And certainly this is bringing back punishments from the past, but also coming up with new innovations. Nitrogen hypoxia would be one that would fall in this category. Then from that, I came up with actual tests you would use if you’re the judge in the court looking at, “Is this cruel or not?” 

These are the questions you would ask. You would say whether the sentence imposes pain and suffering in such a way to constitute a form of torture in light of the individualized circumstances of the defendant, rights of somebody who’s in their 50s or late, early 60s, getting a long sentence. You might consider these kinds of things. Whether the sentence imposed is gratuitous or unnecessary would be the second one. These are tracking along with my different definitions of cruel, whether the sentence imposed infringes upon the dignity of the defendant. This could also refer to shaming punishments — humiliation and other types of punishments. These might, should be unconstitutional — whether the sentence imposed constitutes a form of revenge; whether the sentence is imposed is greater than necessary to achieve each of those purposes the punishment I just talked about; whether the sentence imposed is excessive, random or arbitrary in light of the sentences imposed against similarly situated defendants; whether it’s imposed, inhumane, or barbaric and violates the societal standards of decency. 

These are all different tests. I’m not thinking that each court is going to grab onto all of these, but I think given the history of the state and the framing, I think any of these are possible tests that state court judges could use to define what “cruel” means under their state constitution. I’m trying to give a menu or buffet to let people then choose. They’re representing the will of the people. They’re properly elected — in their state sensibility, which test is correct? 

And of course, it’s not just “cruel.” We also have “unusual.” And we have five different meanings of “unusual.” The first is rare, or uncommon, not regularly used. That’s Justice White’s view from Furman, “If you don’t use it, you’re going to lose it.” Then you have from John Stinneford’s originalism work on the Eighth Amendment. The original meaning of the “unusual” word, “unusual” in the Eighth Amendment is, it prohibits cruel innovation. There’s a one way ratchet that we’re always moving from harsher to more humane. And so any sort of new version or sentence that cuts in the other direction — Florida deciding we’re now going to execute child rapists — that would violate this idea would be, by definition, “unusual” under the original meaning of the Eighth Amendment. I’m not sure that the Supreme Court will go for that, but under state constitutions, you could find that very point.

I think arbitrary sentences can also be “unusual.” And then I also think there are broader interpretations of the word unusual, tied more to the way in which we use this word on a regular basis. Habitually, this is how we sentence people. And so this is outside of the norm, or outside the habit of the court in this particular case. And you think of this in an “as applied” context, not just as these categorical exceptions. And I think that’s another point. Going back to Kavanaugh’s opinion in Jones. These challenges, if you’re making them, you don’t have to convince the state court to make a categorical exception. They may be uncomfortable with that, but you can convince them that in this case, this punishment is cruel, this punishment is unusual. 

Then the last idea is remarkable. This idea of unusualness is being “remarkable,” something that is just unheard of or outside of some broader norm. Again, I came up with some tests on whether the sentence imposed is rare, is rare for the crime and the characteristic defendant in question. 

In this reasoning, I think there is this idea that you’re tying the punishment to the conduct of the person and the character of the person that you’re sentencing, whether the sentence imposed constitutes an unprecedented or cruel innovation; whether the sentence imposed is arbitrary or purposeless; whether the sentence imposed is not normal, regular for the crime, or the characteristic defendant in question; and then where the sentence imposed is remarkable. And I thought about this in terms of punishment, and this is really a place where you can smuggle in all of the ideas of “cruel,” because cruel punishment would be unusual in that sense, in the sense that it’s “remarkable.”

There’s one more word we haven’t talked about. I’ll end with that and then pass the baton, but it’s “punishment.” Some states prohibit “punishment,” and other states prohibit “punishments.” I’ve been doing some work on the original meaning of the Mississippi constitution, which originally prohibited “cruel punishments.” And then, in the early 19th century, the Mississippi decided to change their state constitution to match the slave codes. It prohibited cruel or unusual “punishment,” and that was also adopted by the reconstruction Congress. Andrew Johnson vetoed the bill. What do you mean “unusual?” If we just do it over and over again, it makes it usual, and you have to protect these Confederates from the Union soldiers punishing them too much. So to David’s point earlier, there are all sorts of interesting things you can find when you dig into all this. 

But can you make use of the distinction between “punishment” and “punishments” to then also have some relevance under state constitutions? I have some ideas. I think this is maybe less robust than the “cruel and unusual” ideas. But the first idea is, if you’re probably prohibiting “punishment,” maybe that has a systemic piece to it, that your punishment is not just this “punishment,” but punishment across a system. That could be an answer to McCleskey, because the case with the Supreme Court said it didn’t matter that Georgia’s death penalty is racially discriminatory. 

You could say, “Wait, this punishment in our state is a ‘cruel unusual’ punishment because it has a systemic side to it.” That’s one way of thinking about this. Another thought is, and this goes back somewhat to what David was talking about as well, which is that “punishments” could be a cumulative thing. If you’re prohibiting “cruel and unusual punishments,” it could not just pertain to the sentence, but it could also pertain to the conditions of confinement. And what “punishments” are you having to endure from the day you’re sentenced until the day you’re released, and even arguably after — all these people who have felony convictions and all the extenuating consequences on the back end too. 

Last but not least, I thought you could also think about this in terms of categorical and as applied. So I know that was a lot and very quick. I do have a paper that you’ll be able to read, but I would love thoughts, at the end of the panel, or after, in the breaks that we have, just about other ideas of cruel or some of these that you think that’s not a good one, or you think that really is a good one. Thank you for your time, and I’ll pass the baton.

Kyle C. Barry: Thank you so much, Will, and I do want to highlight the returning to a theme that many of the, at least several, of the tests for “cruel and or unusual” that we’ll mention require a consideration of how a particular person would experience incarceration, which is largely absent from Eighth Amendment law and the very minimal limitations it imposes on on prison terms. So thank you for that, Will. And then I’m going to turn it over to Salil, who’s going to dive into a particular argument about prison terms. This is one of my favorite topics. I’ll let you get into it, because I’m really excited to hear from you. 

Salil Dudani: Thanks, Kyle, and I think Emily and Will really compellingly talked about the doctrinal void, the vacuum, the need for new legal principles limiting prison sentences. I’m going to talk about a different source of authority. Rather than the Eighth Amendment or its state analogs, I’m going to talk about fundamental rights law — the existing principles under substantive due process and equivalently equal protection, protecting bodily liberty, and requiring strict scrutiny of infringements of bodily liberty. 

This is the familiar test. If the government infringes on a fundamental right, a court will invalidate that, unless the government proves that infringement to be necessary or narrowly tailored to a compelling government interest. The U.S. Supreme Court and every state court system has repeatedly recognized and enforced this right in pretty much all forms of confinement, except prison sentences. The main examples here are pretrial detention and civil commitment. If the government confines you and calls it pretrial detention or civil commitment, courts will be very protective and will substantively scrutinize that confinement and invalidate it unless the government passes strict scrutiny. 

I have a very simple point today: prison sentences also infringe on bodily liberty, and so this same principle should apply in the context of sentencing. That sounds so simple, but it’s one of the remarkable things about American sentencing law that courts have not confronted. We have not made courts confront this argument, and we haven’t pressed the case for strict scrutiny of prison sentences. And so my simple point today is to encourage the practitioners, academics, students who will be practitioners or academics, to pay attention to this doctrine in their respective states and to press this point. What would the consequences be of strict scrutiny of prison sentences? 

There are many consequences that are really interesting and important — such as second looks at long sentences. But the one I want to focus on is maybe the most dramatic, which is mandatory minimum sentences — for everyone, adults, juveniles, everyone as we know them — would end. In the context of pretrial detention or civil commitment, because the fundamental right to bodily liberty or freedom from confinement, mandatory detention, is highly, highly disfavored. Some courts will say there must be an individualized finding of necessity. There must be a judge saying that this is the least restrictive means to further the government’s interests before you can be confined. 

Other courts will have a little bit of a more conservative view. They’ll say individualization is highly favored, but if you can draw a very, very narrowly tailored mandatory confinement policy, it might be okay, but nothing like 10 years for robbery would pass under either standard. So mandatory minimum sentencing would largely end. This may sound implausible. This may sound too good to be true. But think about the current state of the doctrine and whether it can really be justified. The government cannot, right now, pass a law saying that if you give drugs to someone, that is reason enough to detain you pretrial. They can’t do that because bodily liberty is important. They would have to prove that that broad confinement policy satisfies strict scrutiny. They almost certainly would not be able to. They can’t say you’re civilly committed automatically for giving someone drugs — because of the importance of bodily liberty. So why would they be able to send you to prison for 10 years with no scrutiny, no inquiry into whether it’s actually necessary? It’s even odder, the current state of the doctrine, when you consider what courts are and have been saying for a long time about pretrial procedural protections, because of the importance of bodily liberty. So for example, “proof beyond a reasonable doubt,” that’s constitutionally required under due process, because your bodily liberty is so fundamentally important, and so, before you suffer a conviction that makes you eligible for confinement, we will have all these procedural protections, because of bodily liberty. But then at the actual moment of confinement, due process is completely silent about the value of bodily liberty. That doesn’t, that doesn’t make sense, and it’s even stranger when you consider that prison sentences infringe on other fundamental rights whose infringement themselves trigger strict scrutiny. 

I’ll just give you one example. There’s a right to family integrity. So again, if the government passed a law saying that if you are caught giving someone drugs, then your parental rights are limited. You can only see your kids twice a week or whatever. That would immediately be subjected to strict scrutiny and invalidated because it’s not the least restrictive means to further any government interest. A prison sentence does the same thing, and so there’s no convincing reason that courts should be hands off. 

My point is we need to make this argument in state courts, because it is an open question. Courts haven’t been made to confront this very powerful argument. I work like Kyle said. I work on pretrial detention issues in my current job, so I want to illustrate the power of this principle in current practice. I’m sure most people here know that the majority of people in American jails are there just because they can’t pay a money bill amount. And it is not an exaggeration to say that, literally, the majority of people held on unaffordable money bail right now are held in violation of very clear, well established constitutional principles, including the one we’re talking about today. So my job is to litigate those issues. 

There are a number of examples. I’m just going to pick one case I happen to be working on in state court in California. So this case, or Orkney v. Los Angeles, is a challenge to L.A.'s bail schedule policy. It’s a typical policy in California. It says that after arrest, for two to five days before you get your arraignment, you will be jailed based on a bail schedule that links the arrest charges to a monetary amount if you can’t pay that amount. They’ve been doing this for decades. It’s absolutely standard practice. 

We filed a lawsuit, and we said, this is a deprivation of bodily liberty. Can you prove this policy furthers any compelling government interest? And of course, the answer is no. I say of course, because for decades, there’s been research on whether money bail actually decreases failures to appear, actually decreases crime. The answers are no and no. In fact, it increases crime, because it so destabilizes a person’s life to be jailed. 

You can see this quote from this very thoughtful, rigorous state court trial judge who actually looked at the evidence, because that’s what the strict scrutiny standard gets you. I think this empirical rigor would be very welcome in the world of sentencing. I was a federal public defender before my current job, and it always really struck me the lack of empirical rigor in our criminal courts. So I gave the example of money bail. You will hear judges across the country impose money bail to prevent flight, when we know that it doesn’t. That’s what the social science says. 

In the sentencing context, you will hear judges impose long prison terms, supposedly justified by the need for general deterrence, to send a message to others and prevent them from committing crimes. It’s the same story. There’s been decades of social science research that do not support the notion that there’s actually a general deterrent effect from prison sentences at the margin. You’d be surprised if you went to a doctor, they gave you medicine, and you said, “Okay, will this work?” And the doctor said, “Well, there’s decades of research saying it won’t work, but that’s my hunch.” 

We don’t tolerate that in other parts of our society. I think it’s very strange that we do when it comes to incarceration, particularly because, for example, a year of incarceration on average shortens a person’s life expectancy by two years. So the stakes are very high, and I think the empirical rigor that strict scrutiny imposes is very welcome and overdue. 

Why am I talking about this at a conference on state courts? The U.S. Supreme Court has answered this argument once, kind of incidentally, in three sentences. Mr. Chapman was subject to a five-year mandatory minimum for a drug offense, and that mandatory minimum was triggered not by the conduct, not by the weight of the drug itself, but by the weight of the container of the drugs. And I’m laughing because it’s absurd, but of course, it’s not funny. And so that case really focused on whether there was even a minimal rational basis for that sentence. But along the way, the Supreme Court said these three sentences, I want you to read them and see if it’s a persuasive answer to the application of the right to bodily liberty.

To me, this is not a reason. This is just a statement that we don’t do this. We do our criminal system a different way, and that’s what we’ll keep doing. Now, let me highlight two aspects, though. So you might think, well, is that a reason that we give people procedural protections before trial? We give people guilt beyond a reasonable doubt, etc. Is that a reason why maybe criminal sentences are special, and you don’t need the scrutiny? But if you think about it, trial is different from sentencing, and more fundamentally, procedure is different from substance. What the procedural rights get you is a determination with precision that you gave the drugs to someone. That is a completely separate question from, “Okay, given that now, is there any evidence supporting confinement?” So it’s really neither here nor there, the pretrial protections you get, and by the way, in civil commitment procedures, you typically do get those criminal like procedures, proof beyond a reasonable doubt, jury trial and all that. Nobody thinks in that context, strict scrutiny doesn’t apply. 

Then there’s this reference to cruel and unusual punishment. So you might think, “Well, should due process, substantive due process, apply when the cruel and unusual punishments clause applies?” There’s no doctrinal basis to think that the government can only violate one clause with any given state action. The U.S. Supreme Court has explained this many times. The courts have explained this many times. That’s the whole premise of my work. There is an excessive bail clause, but everyone understands there’s a separate liberty principle. And these are just two separate clauses that don’t move together. Cruel and unusual punishments, that clause has to do with dignity and other values. We are talking about liberty and unnecessary confinement. There’s no doctrinal basis to think that the Eighth Amendment is somehow exclusive. I don’t think this is persuasive, and I don’t think state courts have any reason to defer to it. I agree with Justice Thomas that it doesn’t make sense to separate civil and criminal confinement in this way. 

In one of these mental health civil commitment cases, Thomas, in his dissent, joined by Scalia and Rehnquist, pointed out that this is very strange. Why would the label the state happens to give the confinement, criminal or civil, determine whether strict scrutiny applies? If it’s bodily liberty, it’s bodily liberty. You might have a different worry or question. So pretrial detention, civil commitment, those are essentially about containing dangerousness and other risks. When we’re talking about punishment, we’re also talking about moral retribution. Is it possible to do this kind of scrutiny? 

The first point I want to make is that no court has ever been made to answer the question: “Is retribution a compelling government interest, such as would support confinement of a human being under strict scrutiny?” Courts are not being asked to apply strict scrutiny to criminal punishments. So that question: “Under the high bar of strict scrutiny, does retribution pass muster?” That is an open question. That’s what a state court system would have to answer first. But let’s say it is. Courts routinely are making those necessity determinations, for example, in federal court, by statute, when there’s not a mandatory minimum. That’s exactly what sentencing judges are calculating, how much retribution is the least amount necessary. 

The other panelists will speak to this. There are, of course, a variety of tests that can be developed. I want to highlight one thing that I find amazing, that I think isn’t talked about enough, which is one area where there is this scrutiny of retribution, is in the federal courts, is of large punitive damages awards awarded against large corporations. So in that context, the federal courts have said, “Oh yes, it’s very important there is a substantive due process right against excessive punishment.” And this is a great quote from Justice O’Connor about how our inability to discern a mathematical formula does not liberate us all together from our duty to provide guidance to courts on how much is too much? I think that’s exactly right. 

If you’ll indulge me, I want to give a couple quotes from the federal courts about punitive damages. And these are from cases against Philip Morris, State Farm, large corporations. “The frequency and size of punitive damages awards have been skyrocketing.” I think that’s also true of prison sentences. “Punitive damages are a powerful weapon imposed indiscriminately. They have a devastating potential for harm.” I think that’s true of prison sentences. “The sanction imposed in this case cannot be justified on the ground that it was necessary to deter future misconduct without considering whether less drastic remedies could be expected to achieve that goal.”

My point here is that if a court wants to do this kind of inquiry, it can, and courts do it in other contexts. I think all of us should pay more attention to fundamental rights slides. It’s really not looked at enough when we’re talking about limiting prison sentences. This is an open question essentially in most state courts, and like I said, in the pretrial detention context, we’ve had a lot of success with this, this simple but very powerful constitutional principle of necessity and bodily liberty, and so we need to start doing that in the sentencing context.

Kyle C. Barry: We will now hear from my men low, who has been very much on the front lines of litigation in this area, and has tremendous insights into how litigation over these rights has played out in Michigan in particular. Maya.

Maya Menlo: Hi everyone. Good morning. I’m very excited to talk for a few minutes with you about how these really important doctrinal concepts we’ve heard so much about this morning can play out in practice. And I’m thrilled to be bringing Michigan to you as a case study. In place of slides, I have prepared a black and white handout in Word, which is simply too exciting to project here. So that is forthcoming. It’ll have the case names that I’m going to reference, because a lot of them happen to be sort of unusual names with difficult spellings. 

I want to start by talking about what the Michigan Constitution says. It prohibits cruel or unusual punishment. We’ve talked a lot about conjunctions already, and I’ve written about that, but fortunately, our Supreme Court has acknowledged through decades of case law that our constitution does provide broader protection than the federal Eighth Amendment. 

One case, and probably the seminal case, on this is Bullock, which is going to be in my materials, but there’s a four-part test for determining whether a punishment is cruel or unusual under our state constitution, and that’s been applied, especially recently, in a number of cases. Our case law also has a very specific focus on rehabilitation, and says that that goal of punishment is specifically rooted in Michigan’s history and tradition. So that’s a nice nugget we like to use. 

We also have a history of and a preference for individualized sentencing in Michigan. So all of those things are very helpful when we go to litigate these cruel or unusual claims. I’ll talk today about two areas with a little bit of overlap actually — youth and long sentences for youth, and then SORA, or the Sex Offender Registration Act in Michigan, SORNA, same kind of thing.

As David mentioned at the top of the day, we did win Miller extension for 18-year-olds in Michigan on specifically and only state constitutional grounds —[it] said no mandatory life without the possibility of parole for 18-year-olds. And the Michigan Supreme Court ordered a remedy which was already in place for the 17-and-unders, the true Millers. And that is a statutory proceeding whereby the prosecutor has to file if they want to seek life without parole, discretionary life without parole, then they have to file a motion to do so. Then there are a bunch of protections in place if the prosecutor does not file such a motion, or if the judge denies the motion. Then there is a set sentence available, the minimum being 25 years, the maximum minimum being 40 years.

In Michigan, we have indeterminate sentencing, where you’re going to serve every day of your minimum, and that for a juvenile would be between 25 and 40. Then also for 18-year-olds, [it’s] between 25 and 40 on the minimum, and then the maximum is 60. So that’s per statute, and that same remedy was grafted on for 18-year-olds in the Parks and Poole cases. 

I want to flag those, because the Parks opinion has really great language that talks about brain science, talks about late adolescence, not limiting the brain science to juveniles. Because, of course, we know the brain does not become automatically and completely developed at age 18. Parks does a really nice job of talking about that. So maybe it’s language that you all might find useful in your jurisdictions to use. Of course, the brain science doesn’t stop at the borders of states either, so hopefully it’s applicable to you. The court did not reach further than 18 years old in that case, because even though we pushed really hard for 25, the two individuals, Mr. Parks and Mr. Poole, were 18 at the time of their offenses. 

But we do have two cases coming up for argument this term in Michigan, Czarnecki and Bouie, two of those difficult to spell names. They’re in the handouts, but those are cases to watch. They’ll be argued this term, and so we can expect opinions in July. Mr. Czarnecki was 19 at the time of his alleged offense, and Mr. Bouie was 20. The questions in those cases are whether to extend Parks, to extend Miller, to 19– and 20-year-olds.

Sort of hopping back to Parks and Poole for a minute, there’s an interesting distinction between the two, which is Mr. Parks’ case was on direct review, whereas Mr. Poole’s case is on collateral review. And so while Mr. Parks’ case was remanded for resentencing under that statute that I talked about a moment ago, Mr. Poole’s case is back in front of the Michigan Supreme Court again this term. So we will be up there arguing for Mr. Poole again, and expect, again, an opinion in July, but that is squarely limited to the issue of retroactivity. Mr. Poole was one of the 18-year-olds, but because his case is on collateral review, we have to go and fight about whether the new rule announced in Parks is retroactive. It should seem really easy. It should be really easy because we can draw from Montgomery, but nothing is easy. And so we will be back arguing about that. 

I will say, though, that it is a pretty cool opportunity with, I hope, a friendly court to push for a rule that any time a punishment is deemed to be cruel or unusual, that new rule stating that the punishment is cruel or unusual applies retroactively. I hope that’s obvious and it should be self-evident, but we don’t have anything in Michigan that says that. If you have ideas for how I can support that argument, please email me. Please contact me, because I do think we have an opportunity to get our court to declare that specifically, and to end this question for future new rules declaring punishments cruel or unusual. Hopefully we can get something out of the court that doesn’t create this sort of revolving door of —“Is it retroactive?” “Is it retroactive?” — with each new rule. 

Also worth mentioning, an interesting case that also was issued in 2022, a great opinion, People v. Stovall, finding that life with the possibility of parole, or parolable life, is “cruel or unusual” for juveniles who are convicted of second degree murder. And that’s a really interesting blend of — it’s not quite conditions of confinement, but actions of the executive, in determining whether someone is eligible for parole, and the doctrines of cruel or unusual punishment. So it’s a great case, probably worth reading if you’ve got a client, or you’re helping to represent somebody who is sentenced to parolable life. 

One other case of interest in this area would be People v. James Gregory Eads. That is on remand to the court of appeals from the Michigan Supreme Court, and involves a challenge to long term-of-year sentences. Mr. Eads was 16 at the time of his offense, and he’s serving a minimum sentence of 50 years, which, of course, is a de facto life sentence. And that’s the challenge in that case, as I mentioned, we have our truth-in-sentencing state with no good time or productivity credit. 

Mr. Eads, if that he doesn’t get relief, will serve all 50 years. 

Moving on to SORA, because I know we want to get into some questions, if there’s time, I want to first mention a 2009 case out of our Michigan Court of Appeals. It’s pretty interesting, and was a standout. So no pattern, unfortunately, emerged from this in the 2010s, but this case evaluated whether a 10-year registration period was cruel or unusual as applied to someone who had engaged in an otherwise consensual relationship with a younger teenager. Mr. DiPiazza was 18 years old at the time and was in an otherwise consensual relationship with a 14-year-old. The two of them later got married, and the Court of Appeals in that case said that the application of SORA to him was cruel or unusual because of the factors involved in his case, an as-applied challenge, as we heard earlier. Then in 2021 the court, the high court, evaluated whether SORA is punishment, and that version of the statute they were analyzing was the 2011 version in Michigan, and found that it was. That was an ex post facto challenge. 

But then, in response to that, of course, the legislature amended SORA ever so slightly, just to get rid of the geographic exclusion zones, or student safety zones, as they were called. And so now we have to litigate again, whether 2021 SORA is punishment, and then whether it’s any number of violations, cruel or unusual, ex post facto, etc. 

So those cases are pending. We do have one good case from the Michigan Supreme Court recently that said, SORA 2021 is punishment, and is cruel or unusual punishment for people who are convicted of non-sex offenses. For example, false imprisonment is often one that’s on the list, and unless it has a sexual component, Michigan Supreme Court says you can’t be sentenced to SORA. But we are still working up cases dealing with actual sex offenses and whether SORA is unconstitutional as applied to them, or frankly, across the board.

We have a couple of cases coming up through the pipeline. One right now in front of the Michigan Supreme Court is going to be, I think, very, very interesting, because it evaluates a variety of constitutional arguments. It’s People v. Kardasz, and in that case, the Michigan Supreme Court wants to hear about whether mandatory lifetime SORA is cruel or unusual punishment for an adult convicted of a sex offense. Then presumably anyone convicted of a lesser offense, or someone who was a youth would, of course, get relief if we were to prevail on that argument. 

Then they’ll also consider whether mandatory Lifetime Electronic Monitoring (LEM), which we have in Michigan for a number of offenses, is cruel or unusual punishment. They’ll also consider whether LEM is in a reasonable search, which is an exciting argument that’s been kind of popping up in the states. I think of South Carolina as an example. 

One other thing I’d like to mention, there is some crossover, of course, between youth and mandatory lifetime public sex offender registration, unfortunately. In Michigan, we do have a number of youth who, because of their convictions, are subject to mandatory lifetime public registration. But there are good cases in other jurisdictions about this. So I would just encourage you to turn to Pennsylvania. Their Supreme Court issued a good decision regarding youth and the sex offender registry. Colorado has a good one out there. Ohio also has a good case, and so we are litigating the same issues in Michigan, hoping to prevail again under our different state constitutional language, raising an irrebuttable presumption due process argument inspired by the Pennsylvania case, an equal protection claim, proportionality claims, which are similar to, but they’re separate from, the cruel or unusual analysis. If you have ideas on how we can do this, please come to me, because I have a brief due tomorrow raising all of these claims, and I’m very excited to be here to, sort of by osmosis, get some great ideas from you all. 

One other thing that I want to just touch on very briefly, because I think it goes to this idea of youth and prosecutors’ burdens is, although it’s not, was not decided on constitutional grounds, we did have a really cool opinion in 2022 come out of the Michigan Supreme Court called People v. Taylor, and in that situation, the court was evaluating the proceedings at a so-called Miller hearing, one governed by the statute that I mentioned earlier, when the prosecutor seeks life without parole. And the thing that I think is awesome about that case is that the Michigan Supreme Court held that it is the prosecutors’ burden when they file a motion for life to demonstrate by clear and convincing evidence that [life without parole] is the appropriate sentence. I think that’s something that could be applied to a lot of different things, and so I just put it out there as a cool case that has helpful language and something that you might consider citing or drawing inspiration from in your jurisdictions. 

And in another case, with very similar sort of facts, the court said that even when imposing a term of years under that statute —so we’re not in a scenario where the judge has granted the prosecutors motion for life — we’re instead at a contested term of years resentencing hearing or sentencing hearing. In the first instance, the judge has to still consider the Miller factors. Those are not just for when weighing a lot, but they’re also for when weighing a term of your sentence. So cool things that might be applicable in your jurisdictions, at least I hope so. Thanks for your time, and please come find me if you have ideas. I’m very excited to hear them.

Kyle C. Barry: Thanks, Maya so much, and I think we only have about maybe three or four minutes left, so I’m going to use my prerogative to ask a question. I want to connect an idea raised by Will, which is that state courts could be asking: “Is the punishment imposed excessive to the purpose of rehabilitating someone?” And that could be part of a cruel or an unusual test that a state court could adopt. And so Will’s point about empirical rigor, when courts ask these questions, what sort of evidence are they actually considering? 

Michigan is a place I think it’s the only one that I know of where rehabilitation is actually an explicit factor in the test of what is cruel or unusual punishment. And every constitutional challenge in Michigan, the court has to at least give lip service to the idea of the question, “Does this go beyond the need to rehabilitate, and if so, what is that? What does that mean?” 

I guess my question for you, Maya, is, can you speak to where that comes from, and is there a way practitioners can push other state courts to adopt that factor. And maybe more relevant to the work you have going on right now, how do you kind of brief and argue that factor of the test? How much do you rely on it? Do you expect the court to take that seriously? Are you trying to get the court to take that more seriously? Because it seems like a potentially really powerful piece of doctrine that doesn’t exist in many, if any, other places.

Maya Menlo: The earliest that I recall seeing that rehabilitation language is in a case from the 70s, just simply stating that this is something that Michigan prioritizes, but tracing it back to discussions that the framers had, and finding that originalist meaning. We do see the court, especially now, taking the rehabilitative ideal seriously, and I think we can continue to push them to do that. The Parks case does a really nice job of looking at rehabilitation. Stovall does too. So certainly in the recent cases, we’re seeing the court take that seriously. 

In the SORA context, we had a case out of the Court of Appeals recently that definitively declared SORA is not rehabilitative, and then nevertheless upheld it on cruel or unusual punishment grounds. But that’s our court of appeals, and hopefully our Michigan Supreme Court will do something different. But I do think they feel constrained by that framework to address rehabilitation, even if they’re just going to say that the other factors in the test outweigh the non-rehabilitative quality of this punishment. I would love to see other courts do the same thing. It certainly goes to whether the punishment is justified and whether it achieves the legislature’s means. There are a lot of clauses in, for example, sex offender registration acts, that point to deterrence and rehabilitation for the reasons as reasons for adopting the act. And so I think you could raise a really effective challenge to the efficacy of those statutes, since we all know, especially as applied to youth, but include and adults, that registries are not deterrent and they don’t rehabilitate. 

Kyle C. Barry: So returning to David’s talk, original meaning could also yield a constitutional commitment to rehabilitation in some places that’s worth investigating. Two minutes left — I have time for one question if anyone has one from the audience.

Unknown: I was thinking about an argument about localities and doing things on a more local basis. And I then, of course, started thinking about how everyone up here is from a different state. New Jersey — our judges are not elected. They’re appointed, including supreme court, appellate division, etc. And I was thinking about how elections, I don’t know if, in your states, if you can speak to that, if judges are elected, but how the elected judges, appellate, supreme court plays it.

William W. Berry III: My sense is that judicial elections are not heavily contested in many places. My friend Carissa Hessick at UNC has done a bunch of work on local prosecutor elections. And so I think, in a lot of these situations, it’s a rubber stamp, people will just vote for the same person. People don’t challenge incumbents in lots of situations, unless there’s some case that draws the public ire. In that case, you might have that but, my sense is, in a lot of situations, these things are below the radar. 

That being said, I do think state judges will be thinking about these decisions, the extent — “Am I blazing a new trail, and to what extent does that make me vulnerable?” And so I think that’s part of, at least some of my project, is to give them something that they can hang their hat on that makes sense. It’s like always, what is the law? Is that what they’re asking and you’re saying, “Okay, here’s what the law is. Let me explain to you why.” And I think that goes over much better than just sort of trying to get them to do something they see as blazing a new trail. But I certainly think, I mean, Penny White got kicked off the Tennessee Supreme Court for concurring in the capital case 25 years ago. So I do think there is that pressure in this context to be cognizant of for state courts in many jurisdictions, maybe not so much in New Jersey.

Kyle C. Barry: With that, we’ll take about a nine-minute break. Thanks everyone, and thanks to the panelists.