William W. Berry III (University of Mississippi School of Law) has posted Rescuing State Punishment Clauses from the Deferential Doctrine on SSRN. Here is the abstract:
A number of state appellate courts read any sentencing decisions by lower courts that are “within the statutory sentencing limits” as constitutional or presumptively constitutional under both the Eighth Amendment and the punishment clause in their state constitutions. This “deferential doctrine” ignores both the individual rights of criminal defendants and the role of state courts in placing some constitutional limit on the sentencing schemes adopted by state legislatures.
In an age of mass incarceration and excessive spending on punishment, this blind deference state courts show state legislatures should end. This article demonstrates how and why state courts should use the punishment clauses in their state constitutions as tools to limit draconian and unconstitutional punishment by recognizing the individual rights of criminal defendants.
Part I briefly recounts the doctrinal phenomenon of state courts reading their state constitutions as presumptively or completely deferring to state legislative sentencing schemes rather than engaging with and placing state constitutional limits on state punishment practices. Part II explains the fundamental flaws with this common approach and the consequences of it. In Part III, the Article argues for an alternative doctrinal approach, one which uses state punishment clauses as a tool to police excessive and draconian sentencing practices adopted by state legislatures. Finally, the Article concludes by highlighting some of the positive effects of abandoning this unconstitutional deference to state sentencing statutes.
