This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
Amid the torrent of far-right rulings this term, the U.S. Supreme Court maintained its practice of diluting if not outright ignoring Eighth Amendment rights against excessive criminal punishments.
Last month, the court sidestepped the Eighth Amendment’s ban on “cruel and unusual punishments” to criminalize homelessness, subjecting the most vulnerable Americans to fines they cannot pay and jail time that will only push them further from stable housing. It also left in place dozens of mandatory life-without-parole sentences imposed on youth in Arizona, despite a clear constitutional ban on precisely such extreme punishment for children.
This isn’t new. Over decades, the Supreme Court has gutted the Eighth Amendment’s protections against excessive punishment to the point that a life sentence for stealing a few hundred dollars gets rubber-stamped. With this hands-off approach, SCOTUS has helped turn the United States into the world leader in incarceration—more than 2 million people are held in our jails and prisons every day, including 200,000 confined for life—and earned the moniker, coined by law professor Rachel Barkow, “the court of mass incarceration.”
Like Justice Sonia Sotomayor, we remain “hopeful that someday in the near future, [the] Court will play its role in safeguarding constitutional liberties for the most vulnerable among us.” But the court is not the only arbiter of constitutional rights. These same issues are also litigated in state supreme courts across the country, often under state constitutional provisions that are unique or far more expansive than their federal analogs. In these courts, even the role of history and “original meaning” can be a wellspring of progressive values.
It’s often just a matter of looking.
Consider Illinois. Its most recent Constitutional Convention, held just under 55 years ago in 1970, produced the nation’s strongest constitutional provision protecting people from extreme and vengeful punishments. Rather than ban “cruel and unusual” punishments, the Illinois Constitution explicitly names rehabilitation as the primary purpose of any criminal sanction. It provides that “all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”
The text alone suggests a profound break from the Eighth Amendment. But just as important is the extraordinary history behind it, recently unearthed in a new law review article published in the Northwestern Journal of Criminal Law & Criminology.
Championed by Chicago civil rights leaders, the proportionate penalties clause, as it is better known, was forged amid a racial justice movement aimed directly at police violence and unjust incarceration. In the late 1960s, racist police violence across the country sparked massive uprisings. In Chicago, unrest after Martin Luther King Jr.’s 1968 assassination left at least nine people dead, 200 more injured, and over 2,000 arrested. Just months later, thousands of National Guard troops descended on the city during the Democratic National Convention as police and protesters clashed over the Vietnam War.
In short, Chicago became the epicenter of the clash between citizens—often poor residents of color—and armed authorities, a conflict that continued with police raids and killings of Black Panthers on the city’s West Side. Later, President Lyndon Johnson’s Kerner Commission squarely blamed racism as the root cause of this turmoil and emphasized the necessity of criminal legal reform to racial equality.
In Illinois, this work went to the 1970 Constitutional Convention delegates. On the convention floor, Chicago civil rights activist Leonard Foster offered a new and distinctly modern provision to limit extremes in the state’s criminal legal system. “In addition to looking to the act that the person committed,” Foster said, “we also should look at the person who committed the act and determine to what extent he can be restored to useful citizenship.”
This call for reformation over vengeance was endorsed by renowned civil rights lawyer Elmer Gertz (famed for freeing Nathan Leopold from prison): “I think if we’re going to lower the crime rate and make this a more livable world, we have to think in such terms as those set forth by Mr. Foster.”
Others pressed Foster for clarification: Would this constitutional mandate apply not just to the Legislature but also to sentencing courts? Yes, Foster said. What if a prison sentence is within a legislatively prescribed range? Could it still be unconstitutional if not sufficiently tailored to rehabilitation? Yes again. With this understanding, both the delegates and Illinois voters ratified Foster’s amendment.
But this history of rights expansion is not limited to Illinois. Arizona’s constitutional framers, for example, “insisted that punishment must serve the goals of reform and rehabilitation, believing that public safety was better served by helping people return to society. Any punishment that forgoes these ideals—including death, needlessly long prison sentences, and brutal conditions of confinement—is unconstitutional.”
Going back even further, a voluminous and detailed historical record shows that Pennsylvania’s ban on “cruel” punishments, adopted in 1790, was firmly rooted in Enlightenment principles—which approved only criminal punishments that further deterrence or rehabilitation and recognized that the efficacy of state-imposed sanctions should always be tested against contemporary science and wisdom.
But for this to matter, state courts must take their own state constitutions seriously. For decades, that has been oddly rare. Many state courts have unquestioningly abdicated their power as the final arbiters of state constitutions and instead applied federal precedent as their own—an approach that has been largely true even in Arizona, Illinois, and Pennsylvania. But that’s why anyone who is despondent over the U.S. Supreme Court’s hard-right shift—especially legal practitioners, civil rights lawyers, and policy advocates—must turn their attention to the possibilities of state courts and state constitutions. State supreme courts are far more likely to shape strong independent rights if lawyers persuasively make the case for them.
Indeed, a renewed push to litigate state constitutional claims has shown strong results. In Illinois, a court of appeals last year emphasized the state’s unique antipunishment clause, and in particular its “focus […] on the objective of rehabilitation,” to order a new sentence for a 65-year-old man imprisoned since the age of 18. The man, who had shown “extensive rehabilitative efforts,” has since been released. Meanwhile, the Pennsylvania Supreme Court will soon decide if its state constitution bans life without parole for “felony murder”—the archaic legal theory that holds people responsible for killings they neither committed nor intended to commit but that resulted (however tenuously) from some other crime in which they took part. And the state’s founding-era adoption of Enlightenment punishment theories is at the heart of briefing in the case.
There has also been a growing trend of protecting youth and emerging adults from extreme prison terms. The Iowa and Washington state supreme courts, for example, have banned all sentences of life without parole for youth under 18. And a few months ago, the Massachusetts Supreme Judicial Court went further, extending the same ban to anyone under age 21.
The lesson is clear. If the Supreme Court’s latest narrowing of Eighth Amendment and other fundamental rights feels enraging, or perhaps even hopeless, remember the power of state constitutions and the courts that interpret them.