Symposium: State Constitutions and the Limits of Criminal Punishments

The symposium “State Constitutions and the Limits of Criminal Punishments,” took place at Rutgers Law School in Camden, New Jersey, on October 24, 2024.

This symposium engaged with the growing legal and intellectual movement to challenge excessive criminal punishments — broadly understood to include both prison terms and conditions of confinement — via the anti-punishment and related clauses in state constitutions. Speakers explored the interplay between state and federal law and reflected on how state courts can emerge from federal law’s shadow through the text, history, traditions, and unique policy goals of their own constitutions to impose meaningful restraints on extreme sentencing, create a more humane legal system, and reduce mass incarceration.

Videos and links to transcripts are below.

Professor Robert F. Williams Keynote & Introduction

In his address, David Shapiro argued that early American history demonstrated that state judges viewed oversight of prison conditions as part of their role. Indeed, sentences often included specification of terms of imprisonment, such as solitary confinement. As the U.S. Supreme Court steps away from considering carceral conditions, he urged state courts to draw on this tradition to protect incarcerated people from inhumane treatment.

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

Link to transcript of the conversation.

Substantive Rights That Limit Prison Terms.

Panelists discussed state-level legal strategies for limiting excessive punishment. They discussed state constitutional language interpretation of terms such as “cruel,” “unusual,” “punishment(s)”, drawing on examples from Iowa, Michigan, and Mississippi. They also explored potential paths for litigation, including appeals to the principle of “bodily liberty” and the use of empirical evidence to strengthen claims.

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

Link to transcript of the conversation.

“A View From the Bench”: Excessive Sentencing.

The panelists — all state supreme court justices — discussed the vital role of state constitutional law in addressing excessive sentencing, especially as federal precedent narrows. They urged attorneys to raise state constitutional claims early and build strong factual records, including scientific and historical evidence. The justices also highlighted the value of comparative analysis, drawing from other states and even other countries. Their core message: State courts have the authority — and duty — to interpret their own constitutions independently, but they rely on advocates to make the case.

Speakers:

Hon. Goodwin Liu, Associate Justice, Supreme Court of California
Hon. Scott L. Kafker, Associate Justice, Massachusetts Supreme Judicial Court
Hon. Rowan D. Wilson, Chief Judge, New York Court of Appeals

Moderator:

Alicia Bannon, Director, Judiciary Program and Editor in Chief, State Court Report, Brennan Center for Justice

Link to transcript of the conversation.

The Problem Punishment Poses for Democratic Orders: Ruination and Rights

Yale Law School professor Judith Resnik explained that conceptions of punishment — how and why it is imposed, and what the conditions should be — are rooted in a transatlantic narrative. She said that it was not until after World War II, and partially because of pressure from social movements including the Attica prisoner revolt, that U.S. courts began to grapple with the concept of prisoners as having legal rights. This evolving framework, and the ability of state supreme courts to interpret their constitutions in ways that differ from federal understanding, provides opportunities for today’s legal advocates.

Speaker:

Judith Resnik, Arthur Liman Professor of Law, Yale Law School

Link to transcript of the conversation.

Substantive Rights & Prison Conditions.

Incarcerated people often face harsh conditions — such as inadequate medical care, abuse, prolonged solitary confinement, and overcrowding. Federal Eighth Amendment claims are limited by procedural and doctrinal barriers. However, some advocates are securing relief, including release, by invoking state constitutional analogues, which state courts can interpret independently.

Speakers:

Kristen Bell, Assistant Professor of Law, University of Oregon School of Law
Meredith Esser, Assistant Professor of Law, Director of Defender Aid Clinic, Wyoming College of Law
Kathrina (Kasia) Szymborski Wolfkot, Senior Counsel, Managing Editor of State Court Report, Brennan Center for Justice
Tara Herivel, Attorney at Law, Portland, Oregon

Moderator:

Megha Ram, Supreme Court and Appellate Counsel, MacArthur Justice Center

Link to transcript of the conversation.

Barriers to Rights Protections.

Panelists explored barriers to vindicating and developing substantive rights, along with ways to overcome them, including the role of courts, legislatures, and the executive. Among other topics, they discussed access to counsel, procedural bars to collateral review, prosecutor-led conviction integrity review units, the Prison Litigation Reform Act and state cognates, and Section 1983 and state equivalents that create private rights of action.

Speakers:

Eli Savit, Prosecuting Attorney, Washtenaw County, Michigan
Rebecca Uwakwe, Senior Staff Attorney, ACLU of New Jersey
Marcus Gadson, Assistant Professor of Law, Campbell University

Moderator:

Hernandez D. Stroud, Senior Counsel, Justice Program, Brennan Center

Link to transcript of the conversation.

Closing Remarks

Professor Robert F. Williams closed the symposium by thanking participants, funders, and organizers, noting that state constitutionalism is not new but rather part of a revival dating back to his earliest years teaching in the 1980s. He acknowledged that state-level wins don’t have the same impact federal ones do, that they are still important venues for protecting rights. He encouraged continued exploration, writing, and advocacy.

Speaker:

Robert F. Williams, Distinguished Professor of Law Emeritus, Rutgers Law School

Link to transcript of the conversation.