What Is ‘Punishment’? How State Courts Can Fix a Destructive Flaw In Eighth Amendment Case Law

A version of this article first appeared in the Behind The Bench Newsletter, publication by the State Law Research Initiative about state supreme courts, constitutions, and how they shape criminal legal systems. 

When someone is sent to prison, their punishment, in any normal sense of the word, involves far more than “serving time.” There’s often also poor healthcare, lethal heat, dehumanizing abuse, rampant disease, filthy drinking water, and extended solitary confinement that amounts to torture. And convictions follow people long after their release. The “collateral consequences” of criminal convictions can last a lifetime, excluding people from employment, housing, and voting, in some cases with the added shame of public criminal registration.

And yet the U.S. Supreme Court, tasked with enforcing constitutional rights against excessive punishment, often acts as though prison sentences are a term of years and nothing more. It excludes the horrors that people face inside prison from one’s “sentence,” thus forcing claimants to meet a needlessly difficult standard. And it has held that if state legislatures say so, even the most onerous and life-altering collateral consequences are merely “civil” or “regulatory” and thus beyond the reach of certain constitutional protections.

This narrow view of “punishment” and “sentences” constrains judicial review of our exceptionally punitive criminal system, enabling longer prison terms, inhumane prisons, and myriad other sanctions. But the U.S. Supreme Court’s failures also present an opportunity, and perhaps obligation, for state supreme courts to reverse these trends.

This is a pressing issue. In Michigan, for example, the state supreme court will soon decide if it violates the state constitution’s ban on “cruel or unusual” punishments to force people who have not committed a sex offense to nonetheless register as sex offenders. And a key question is whether that counts as punishment at all. (The lower state court of appeals said that it does.) The state’s anti-punishment clause “is concerned with excessively harsh sanctions,” the ACLU of Michigan wrote in an amicus brief, and “what matters is whether a punishment is cruel or unusual, not whether the legislature has labeled it as criminal or civil.”

As in Michigan, nearly every state constitution has its own version of the Eighth Amendment’s ban on “cruel and unusual punishments,” some of which are even older than the federal clause and broader by their own terms — 16 states ban cruel or unusual punishments, for example. And if state supreme courts apply them in a more sensible way — if they take a more realistic view not only of what is “cruel” and “unusual” but what counts as “punishment” in the first place — these state rights would fill a crucial gap in constitutional law. 

As state courts grapple with these questions, two forthcoming law review articles illuminate both the harm of federal case law and better paths that state supreme courts could follow.

Let’s start with conditions of confinement. “The Eighth Amendment’s treatment of sentencing concerns has traditionally been completely walled off from its treatment of the conditions a person is confined in,” law professor Meredith Esser writes in her forthcoming article in the Fordham Law Review, “Extraordinary Punishment: Conditions of Confinement & Compassionate Release.” Federal case law recognizes that sentences must be proportional to the offense and to the person who committed it, including their level of culpability and personal characteristics. And while that standard tolerates extremely long prison terms, it would not allow sentencing courts to order prison beatings or viral infections or psychological torture. But with “sentencing” walled off from “conditions,” people desperate for relief from abuse inside prison face an entirely different standard. They must show that prison officials were either “deliberately indifferent” to a risk of serious harm, or that they acted “maliciously or sadistically” — a standard, Esser points out, that “is akin to a criminal recklessness.”

This framework shifts the question from whether conditions are adequate to whether corrections officers and prison administrators are wrongdoers. Instead of asking, “are incarcerated people afforded humane living conditions?” or “are these brutal conditions excessive punishment?,” courts ask, “are prison guards sadistic?” Those are very different things, and asking only the latter gives extraordinary deference to prison officials.

This approach also limits remedies that courts can provide. While people may go home if their sentence is unconstitutionally excessive, a successful conditions lawsuit is generally limited to injunctive relief and money damages (which are often stymied by qualified immunity in any case).

Esser’s article highlights a concrete example of how the law can and should work differently — one that state courts can follow when implementing state constitutional rights. For federal convictions, the First Step Act now allows incarcerated people to seek “compassionate release” based on the harsh reality of prison life. For example, the 2018 statute allows judges to consider how prison is worse for people who are elderly or sick or have intellectual disabilities, and that such conditions are relevant to whether someone should be released. Compassionate release was also critical to reducing prison populations during the pandemic, with some courts accounting for the toll of solitary confinement, and reducing terms accordingly. In other words, the law allows judges to ask: Has the person before me, considering their personal characteristics, conditions of confinement, and other factors, served enough? Is this prison sentence serving a legitimate purpose? Or is it now excessive?

At the state level, state supreme courts could fashion state constitutional doctrine that functions in much the same way. As Esser argues, applying “compassionate release” broadly to address the lived experiences of incarcerated people “makes doctrinal sense” — far more sense than the oddly bifurcated Eighth Amendment standards.

Similarly, collateral consequences have proliferated in part because federal courts allow legislatures to designate even severe penalties as something other than punishment. They need only cite a purpose beyond pure retribution — “prevention,” for example, or “deterrence.” As law professor Brian Murray explains in “Original Understanding, Punishment, & Collateral Consequences,” forthcoming in the University of Pennsylvania Journal of Constitutional Law, “modern [U.S.] Supreme Court precedent has been exceptionally deferential to legislative labeling, and generally has found only retributive purposes to be sufficient to label a measure punishment.” This approach “categorically excludes lots of state-imposed suffering after a conviction from being labeled punishment,” Murray writes.

There are many reasons to question this approach, but Murray’s focus is original meaning. As it turns out, the notion that only retributive measures count as punishment has no basis in history. Instead, he writes, “the historical reality [is] that several prominent members of the Founding generation, . . . considered nonretributive purposes underlying state action to be . . . indicative of punishment,” including “the intent to deter, reform, shame, or incapacitate.” Moreover, “the original public meaning of punishment precludes legislative control over which consequences are definitively punishment or not[.]”

Taking this history seriously (as the current U.S. Supreme Court majority is supposedly interested in doing) would at least place greater constitutional safeguards between people and penalties like lifetime occupational debarment, sex offender registration, and indefinite “civil” confinement, which have long-evaded close constitutional scrutiny. 

Federal case law’s historical flaws should make it less persuasive for state supreme courts to follow. Untethered from federal precedent, state courts can instead canvas their own history. In one example, lawyer Kevin Bendesky unearthed the history of Pennsylvania’s Eighth Amendment analog — which prohibits “cruel punishments” — and found that, in its original meaning, retributive punishment was actually prohibited. Instead, the clause “permitted only deterrence and rehabilitative justifications” for criminal sanctions, and “proscribed as cruel anything unnecessary for those aims.”

At a minimum, state supreme courts should show less deference to legislative labeling and recognize punishment for what it is. Some have started to do so. The Alaska Supreme Court took that approach in 2008 when it found under its state constitution that the state’s sex offender registry law amounted to unlawful punishment not long after the U.S. Supreme Court upheld it under federal law. Similarly, the Colorado Supreme Court in 2021 struck down mandatory lifetime sex offender registration for youth convictions as cruel and unusual punishment.

The U.S. Supreme Court has allowed legislatures and prison officials to effectively side-step constitutional rights against excessive punishment by narrowly defining the concepts of “punishment” and “sentences,” pushing wide swaths of “state imposed suffering” beyond Eighth Amendment limits. This wasn’t inevitable. It was a choice that judges made. And state supreme courts that better protect rights under their own constitutions can prove powerful levers in dismantling the carceral state.

Kyle C. Barry is the director of the State Law Research Initiative.