The Pennsylvania Supreme Court issued a landmark decision last week. The court became the first state high court to rule that life sentences without parole for people convicted of “felony murder” are unconstitutional. This is the principle that a person can be charged with murder if a death occurs during the commission of another felony.
The judgment is Commonwealth v. Leeis a long-awaited “next step” for state courts to provide “meaningful checks on extreme criminal penalties” and sentencing policies that are “commensurate with individual responsibility and justified by a legitimate purpose,” Kyle C. Barry, director of the State Law Research Initiative, previously wrote.
Weeks after oral argument in 2024 LeeState Law Research Initiative, Brennan Center, and Rutgers Law Review Nearly two dozen scholars, practitioners, and state Supreme Court justices gathered to discuss a growing legal movement that seeks to use state constitutions to challenge excessive criminal penalties, inhumane prison conditions, and other injustices in the criminal legal system. The day-long discussion highlighted the state constitution’s promise to better protect people in the criminal justice system. This promise is now closer to becoming a reality with the House of Commons’ action. Lee.
Here are six takeaways from the event. Video and transcript available here. of Rutgers Law Review We also recently published a symposium issue featuring scholarships from speakers at the event.
State constitutions often provide more stringent sentencing protections than the federal constitution.
Lee This is just the latest decision to interpret the state constitution’s protections against excessive sentencing as stronger than those provided by the federal constitution. For example, the Michigan Supreme Court ruled last year that mandating life sentences without parole for people under 21 violates the state constitution, which prohibits cruel or unusual punishment. In 2024, the Massachusetts Superior Court went further and declared all life sentences without parole unconstitutional for that age group, whether mandatory or not. The list of state lawsuits that depart from Eighth Amendment jurisprudence goes on. The State Law Institute’s State Anti-Punishment Case Tracker lists dozens of cases across 21 states.
The clause in question is Lee Emily Hughes, a law professor at the University of Iowa School of Law, said that without the additional requirement of abnormality in the Eighth Amendment to the U.S. Constitution, harsh punishments are prohibited. “Even if it’s exactly the same language, state courts can look into it and find more protections for individual rights.” State courts are “best placed in their communities to assess community standards and learn about evolving community standards and why state courts are required to reach a higher level than the U.S. Supreme Court,” Hughes continued.
Nor should advocates limit state lawsuits over excessive sentencing to Eighth Amendment cognates. For example, state courts may consider prison sentences in the context of state constitutional provisions guaranteeing personal liberty, argued Salil Doudani, a senior attorney with the Civil Rights Corporation.
In early America, the distinction between sentencing and prison conditions was less clear.
Today, Barry writes, the U.S. Supreme Court “acts as if a prison sentence is only a few years and nothing more.” But “when a person is sent to prison, the punishment involves more than ‘servicing time’ in the ordinary sense.” Barry argues that courts should also consider “poor medical care, deadly fever, dehumanizing abuse, rampant disease, filthy drinking water, and prolonged solitary confinement that amounts to torture” when evaluating the constitutionality of a punishment.
In his keynote address, David Shapiro, executive director of the MacArthur Justice Center, explained that in the country’s early years, judges exercised power over not only how many years a prisoner would serve, but also how that prisoner would serve his or her sentence. In fact, in Pennsylvania in the late 1790s, long-term solitary confinement could only be imposed by judges as part of a sentence.
“Modern attempts to distinguish between sentences of incarceration and accompanying circumstances are ahistorical, at least in some states,” Shapiro said.
World War II influenced the way incarcerated people were treated.
The atrocities of World War II, particularly the horrors experienced by concentration camps and concentration camp victims, led to new concepts of human rights, explained Judith Reznik, a professor at Yale Law School.
Increased respect for human rights extended to imprisoned people. “The world really changed,” Reznik said of the postwar period. “They’re all sitting there reverberating with post-World War II photographs and are beginning to understand the tremendous harm of detention.”
This new interest in rights influenced the U.S. Constitution. For example, Supreme Court Justice Earl Warren offered a new perspective on the 1957 Eighth Amendment. Too many against Dullesargued that stripping Americans of their citizenship as punishment for wartime desertion was unconstitutional. Warren writes that the Eighth Amendment “must derive its meaning from the evolving standards of decency that mark the progress of a mature society,” solidifying the idea that the amendment’s “scope is not static.” Reznik said it was “no coincidence” that such a clear statement was made after the war.
States play an important role in establishing humane prison conditions.
Meredith Esser, a professor at the University of Nevada’s William S. Boyd School of Law, noted that the inadequacy of the Eighth Amendment in the context of the terms has not been much discussed in the academic literature. Mr. Esser laid out multiple barriers to relief for incarcerated people who are challenging abuse and inhumane conditions under the federal constitution. That includes the Prison Litigation Reform Act. The Prison Litigation Reform Act is a federal law that creates hurdles that incarcerated people must clear in order to sue in federal court. Qualified immunity, a defense that protects correctional officers from liability unless they violate clearly established rights. And the doctrine of “subjective intentional indifference” is a difficult standard that requires plaintiffs to prove that prison officials knew they faced a serious risk of harm.
Additionally, Shapiro said the U.S. Supreme Court “may be poised to order federal courts to withdraw from prison oversight altogether, based on the mistaken view that the Eighth Amendment does not regulate conditions of confinement and does not envision a role for judges in enforcing humane prison conditions.”
This highlights the need to strengthen state constitutional protections against inhumane conditions such as confinement and prison brutality. Panelists noted several “doctrinal opportunities” in this area. Examples include “eroding the line between a sentence and the circumstances in which someone is being held” and requiring incarcerated plaintiffs to prove that the circumstances objectively present an unreasonable risk of harm, rather than meeting a subjective standard.
And the Eighth Amendment and its cousins are not the only provisions that can protect or improve the lives of incarcerated people. For example, some state constitutions have provisions protecting bodily integrity or prohibiting slavery or involuntary servitude. The constitutions of five states – Indiana, Oregon, Tennessee, Utah and Wyoming – include provisions stating that “no person arrested or confined in prison shall be treated with unnecessary harshness,” added Kristen Bell, a law professor at the University of Oregon.
Oregon courts in particular have developed a jurisprudence centered around unnecessary rigor. Attorney Tara Herribel said they interpreted the provision to prohibit “obvious contempt” and that their analysis “puts the prisoner at the center of the analysis.”
Herribel described a series of lawsuits he has filed in Oregon on behalf of transgender people challenging prisons’ refusal to provide gender-affirming care. “All transgender (rights) lawsuits with claims like this have been successful,” she said. “This is an incredibly dynamic area of law.”
Judges need lawyers to fully flesh out the state’s constitutional claims.
State judges are willing to give unique meaning to provisions in the state constitution, but they cannot do so unless advocates challenge the state constitution.
“One of the challenges we face, and I think many state courts face, is that we often see briefs that say, “We have a claim based on the federal constitution and the state constitution,” and if we’re lucky, we’ll cite case after case from several state courts along with the federal court, without any attempt to separate and analyze the two,” said Judge Rowan D. Wilson of the New York Court of Appeals. State Supreme Court. “Then it’s an uphill battle to say, ‘Even if the parties aren’t parsing the differences here, we’re going to parse the differences ourselves.'”
California Supreme Court Justice Goodwin Liu noted that both judges and advocates are exercising an abundance of caution. “Unfortunately, too many lawyers are at the mercy of judges, and judges are happy to engage in lockstep because it’s the prudent thing to do,” he said.
The criminal legal system is full of barriers to justice.
Most of the conference focused on expanding people’s rights in the criminal legal system through state constitutions. However, this system poses a number of challenges for those caught, many of which cannot be specifically addressed using state anti-punitive provisions.
Rebecca Uwakwe of the ACLU of New Jersey noted that about 97 percent of cases are resolved through plea bargains. He explained that people feel pressured to accept pleas because of the “penalty of the trial.” This means that “once someone decides to exercise their Sixth Amendment right to a trial,” they will almost always face a harsher sentence than indicated in their plea. “It is coercive in nature,” Uwakwe said.
In the context of the conditions, state-level versions of the Prison Litigation Reform Act could prevent even honorable claims by inmates from coming to court. Incarcerated people may also be hampered by their inability to hire a lawyer or pay even the minimal costs associated with litigation, such as producing records.
“For many of us, $80 or $100 doesn’t seem like a huge barrier,” says Marcus Gadson, a professor at the University of North Carolina. “But we have to remember that in many cases prisoners are not actually being paid the same as people on the outside.” As a result, “they ended up being turned away from court for not paying their fees,” he explained.
Barriers to justice continue even after a prison sentence is nearing its end. Uwakwe said that in New Jersey, “the parole denial rate for people facing life sentences is 92 percent.” Parole boards are expected to consider applicants’ institutional history and rehabilitation, but “the reality is that they (parole boards) are just making decisions based on intuition and politics,” she said.
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Robert F. Williams, professor emeritus at Rutgers University School of Law, said in his concluding remarks that state constitutions are “what we have as lawyers,” in times like these, when the chances of the issues you’ve been discussing today winning in the U.S. Supreme Court are very, very low.
The state Supreme Court victory, he continued, is not “the big victory we know as the SCOTUS decision.” But “anyone who’s ever won a case in a state supreme court knows it’s not chopping the liver. It’s a lot of fun, and it’s great for the client.”
Kathrina Szymborski Wolfkot state court report Senior Attorney and Manager of the Justice Program at the Brennan Center for Justice.
Nancy Watzman is State Court Report.
Recommended citation: Kathrina Szymborski Wolfkot and Nancy Watzman, Behind the movement for humane punishmentSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (April 1, 2026), https://statecourtreport.org/our-work/analysis-opinion/behind-movement-toward-humane-punishment
