State Constitutionalism and the Crisis of Excessive Punishment

Fully addressing the mass incarceration crisis in the United States requires correctly identifying and accounting for the institutions that are responsible for it and that are positioned to effect change. While more than 113 million people in the United States are impacted by the criminal justice system, this Article argues that mass incarceration is more than a national crisis; it is also an acute local issue. Ninety percent of people confined in U.S. prisons are confined under state laws, procedures, and norms created by state legislative and executive branches, and thirty-four individual U.S. states have an incarceration rate higher than any country other than the U.S. itself. While a growing popular and scholarly movement is examining the political intractability of mass incarceration, this Article argues that the role of state courts and state constitutions is missing from the debate.Drawing on two burgeoning movements-the movement to end mass incarceration and the reemerging significance of state constitutionalism- this Article argues that state constitutionalism is critical for curbing the excessive punishment regimes that drive mass incarceration. The Article evaluates state courts' quiet divestment of independent state constitutional interpretation in the years following incorporation, outlining the unique issues posed by constitutional unitarism for limiting excessive punishment. Motivated by recent developments in state courts, the Article highlights the growing support for, and the potential of, independent state constitutionalism for preventing excessive punishments and addressing the mass incarceration crisis. In doing so, the Article offers a path forward, sketching a doctrinal trajectory for state courts to use when interpreting their state constitutional provisions limiting excessive punishments-a path that respects federal developments while also capturing the localism of criminal law and emphasizing the potential of state courts as transformative institutions in reducing mass incarceration.