As Mark Joseph Stern explains in Slate, the holding in Granillo v. State of Hawaii is important in its own right. Invoking the Hawaii state constitution’s due process rights, the court overturned a conviction based on discredited forensic evidence and provided a path for junk science victims to seek relief. But in rejecting the federal due process standard, Justice Eddins demolished the Roberts Court as “hubristic originalists” who serve the wealthy and powerful while degrading civil rights—especially the rights of Black Americans and other nonwhite people.

“The Court overrides what Congress passed. It overrides what the people chose. All to serve its own ends. What this Court has done to constitutional rights, democratic institutions, and the rule of law explains why Hawaiʻi’s Constitution takes no instruction from it,” Eddins wrote. A Supreme Court “that systematically dismantles democratic safeguards, steamrolls constitutional liberties, and tramples human dignity,” he said, “does not chart the course for the Hawaiʻi Constitution.”

Eddins’s analysis of the Supreme Court’s voting rights cases—which have effectively gutted the Voting Rights Act of 1965 while upholding partisan and racial gerrymanders—is an illustrative example:

The Roberts Court sees only white. It refuses to acknowledge who the Equal Protection Clause was written to protect. The freed people, their descendants, and all others denied equal citizenship. U.S. Const. amend. XIV, § 1. It turns its back on what is in plain sight. The Fourteenth Amendment is not colorblind. It never was. The Court calls the Constitution colorblind while engineering the dilution of Black votes, the unraveling of hardfought civil rights remedies, and the erasure of Black history. That is not blindness. That is white sight, by design.

A Constitution interpreted this way is not colorblind. It is whatever the Court needs it to be. A way to advance its partisan project.

But Eddins hardly stops there, and the full opinion is a must read.

As Stern summarizes in Slate, Eddins’s opinion, while perhaps not surprising given his history,

remains immensely valuable for two related reasons. First, Eddins weaves together various threads from this term (and those preceding it) to show the entire web of ultrapartisan judicial policymaking in which the nation is now ensnared. This larger project can disappear from view when the court inundates us with so many radical rulings at once that they do not register as parts of a single scheme. Second, Eddins speaks with unusual authority as a sitting judge with skin in the game. He has stuck his neck out not only to draw attention to the crisis but to remind Americans that they are not helpless. State judiciaries harbor considerable authority to expand individual liberties and democratic guarantees beyond what SCOTUS requires. Far too many shrink from the task. Hawaiʻi’s will not.

[Supreme Court of Hawaii | Slate]

Not so in Pennsylvania.

In a groundbreaking opinion that signals a paradigm shift in how courts treat excessive punishment claims, the Pennsylvania Supreme Court today held that mandatory life without parole sentences for “felony murder” violate the state constitution.

Over 1,000 people in Pennsylvania are serving life terms with no chance of release for homicide convictions based solely on their role in some other crime — without any finding that they ever killed or intended to kill anyone. Convicted under the arcane “felony murder” rule, they may have been getaway drivers or lookouts for some other crime that went bad and led to death, and then punished like killers. Under Commonwealth v. Lee, they can now demand a new sentence based on their individual culpability and seek a meaningful chance for release.

The ruling also charts new territory in the trend of state courts expanding rights against the harshest criminal punishments. Unlike other recent rulings, Lee does not depend on the age of those who are sentenced. Instead it turns on the nature of the offense, and specifically the reduced culpability inherent to felony murder. In this way, the ruling does not merely expand the category of people entitled to existing rights—extending youth protections from age 17 to 20, for example—it carves out a new category altogether, and leaves a legal road map for other courts to follow.

***

First, some brief background on constitutional rights and the limits of criminal punishments.

The federal 8th Amendment and every state constitution prohibit excessive punishments. Yet in the annals of American constitutional law, judicial rulings that bar adult prison terms are few and far between (the U.S. Supreme Court has issued exactly one, and thereafter retrenched so deeply that it approved 50-years in prison for stealing video tapes from K-Mart). With some exceptions,1 constitutional limits on criminal punishments have been reserved for youth and capital cases,2 with the judicial axioms “death is different” and “youth is different” used to both expand and constrict rights—expanding rights through heightened judicial scrutiny of death sentences and life prison terms for children; constricting rights by withholding such scrutiny from everyone else.

It’s an artificial divide that never made sense. Telling courts to employ meaningful, evidence-based judicial review in some cases and a deferential rubber stamp in others puts the proverbial cart before the horse, conflating judicial outcomes with the legal rules used to reach them. If certain punishments are upheld as constitutional, it should be because they pass constitutional muster, not because constitutional concerns are ignored under a special deferential standard that all but tells courts to look the other way. As law professor Rachel Barkow has argued, “[t]here is nothing in the Constitution’s text or history that supports employing two different tests for excessiveness or applying the Eighth Amendment with ‘special force’ in some cases and not others. … The Court’s two-track approach to sentencing is legally and normatively untenable.”

Rather than correct course through their power to independently interpret their own state constitutions, most state supreme courts have reflexively followed this approach. The result has been the proliferation of cruel and needless life—or, more accurately, “death by incarceration”— prison terms unchecked by constitutional constraints.

Lee, though, is a dramatic exception.

**

Section 13 of Pennsylvania’s state constitution prohibits “cruel punishments.” To apply this in Lee, the state supreme court first found that Section 13 is both independent from and broader than the federal 8th Amendment:

In addition to the key textual distinction — a ban on all “cruel” punishments instead of those that are both “cruel and unusual” — the court relied heavily on historical analysis, observing that the Commonwealth’s founders embraced a “distinctly Pennsylvanian” view of punishment based on Enlightenment ideals of punishing only to promote deterrence and reformation:

Having established that Section 13 goes further than federal protections, the court turned to the question of whether mandatory LWOP for felony murder is “cruel.” And here’s where it provides a roadmap for state court practitioners and judges around the country. Gone is the “two track” approach that has cabined 8th Amendment protections to capital cases and age-based claims. Rather, the court applied heightened review to the category of people with felony murder convictions, scrutinizing whether mandatory LWOP for this group comports with individual culpability and serves any legitimate penological purpose of punishment — just as the U.S. Supreme Court did to protect children from life prison terms.

The court explained that its analysis would mirror the “framework” in “Eighth Amendment jurisprudence regarding juveniles” because “the principles announced therein are equally applicable to an analysis under Section 13.”

Applying that framework here, the court reasoned that “one who did not kill another or intend to kill another during the commission of a felony is less morally responsible and less deserving of one of the most severe punishments — mandatory life imprisonment without the possibility of parole — than the actual murderer.” Yet a mandatory punishment scheme “fails to assess culpability regarding the intent to kill” and therefore, in combination with the extreme severity of LWOP, “poses a great risk of disproportionate punishment.”

Next, the court explained that criminal punishments must be proportionate not just to individual culpability, but also to some legitimate state purpose. This is a crucial inquiry that provides teeth to judicial review of criminal punishments; it allows courts to ensure that legislatures do not impose arbitrary punishments and requires prosecutors, in defending a challenged sentence, to establish a sufficient nexus between the punishment and the appropriate purpose it was ostensibly imposed to serve. The court summarized the question this way:

Here, the court found that sentencing people to die in prison without any assessment of their individual culpability, and without any finding that they killed or intended to kill anyone — that is, to treat unwitting partners the same as someone who pulled a trigger — wholly fails to serve the general purposes of rehabilitation, deterrence, retribution, or incapacitating people who pose a danger to the public. If anything, the court explained, the Commonwealth’s punishment scheme undermines these goals, and is therefore cruel.

With this finding the court concluded:

In Pennsylvania, this ruling could be a major step toward decarceration. Around the country, it could finally spark more rigorous judicial review of the excessive and draconian punishment practices that have fueled mass incarceration for decades.

• The Lazy “Shortcut” Erasing Civil Rights in Colorado: Two Justices Finally Question Colorado’s Illogical & Blatantly Unconstitutional Approach To Excessive Sentence Review

• Michigan Supreme Court Upholds Sex Offender Registration Law For Now, But Holds It Is “Punishment”

• Vacancies & Appointments: Kansas Chief Justice Announces Retirement

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The Lazy “Shortcut” Erasing Civil Rights in Colorado

It can be astonishing, and more than a little depressing, to see the lengths some courts go to avoid upholding basic constitutional rights. In June, I wrote about how the North Carolina Supreme Court’s Republican majority dilutes civil rights by requiring claimants to prove that challenged state actions, including discriminatory laws, are “unconstitutional beyond a reasonable doubt.” The problem, as liberal Justice Anita Earls pointed out, is that “either the statute is consistent with the constitution or not,” and the “notion that you have to somehow establish that beyond a reasonable doubt makes no sense”—except, of course, as an excuse to erode civil rights.

Today, I bring your attention to the Colorado Supreme Court, which last week reaffirmed an inexplicable quirk of its excessive sentencing jurisprudence that preemptively extinguishes constitutional rights for entire categories of people. The Court declares certain crimes to be “per se grave or serious,” which in practice means that no one convicted of such crimes can ever challenge their sentence, no matter its severity. The longstanding rule is both wholly illogical and blatantly unconstitutional (in the sense that it erases constitutional rights), but there is some good news: It appears that two justices are finally ready to, in their words, “deep six this concept.”

Colorado’s state constitution prohibits “cruel and unusual” punishment, including excessive or “disproportionate” prison terms. To assess excessive punishment claims, Colorado courts begin by comparing “the gravity or seriousness of the offense to the harshness of the penalty.” Normally, Colorado case law takes a relatively capacious view of how a crime’s “gravity” should be measured. It accounts not just for the offense and its elements but also for potentially mitigating factors such as whether the person “was an accessory, complicitor, or principal,” along with the person’s “culpability and motive.” In theory, this definition captures how personal characteristics (such as youth, disability, or addiction) and other circumstances (such as the role of group dynamics, poverty, or coercive relationships) might reduce someone’s culpability and factor into the constitutional analysis.

But for some offenses, the Colorado Supreme Court—and only the Colorado Supreme Court—has devised what it calls “the ‘per se’ shortcut.” Under this rule, the Court “designate[s] certain crimes ‘per se grave or serious,’” which, the Court says, renders a sentence all but “impervious to attack on proportionality grounds.” In other words, the Court’s justices have decided they will not do their jobs for people who have certain convictions. Rather than actually assess excessive punishment claims in light of all the factors the law requires, they will just assume that these claims fail, giving prosecutors and legislators free rein to pursue the sort of punitive excess that has fueled mass incarceration for decades.

And it’s not like this rule has been reserved for what might intuitively be the most violent, high-culpability crimes. Robbery, for example, remains “per se grave or dangerous” even though the circumstances under which robberies take place vary wildly, as do the characteristics of the people who commit them (more on that below). Even worse, for nearly 30 years Colorado courts put all drug offenses, including mere possession, on this list until a “clarify[ing]” decision in 2019 finally changed that (it took decades for the Colorado Supreme Court to realize that it “makes little sense to automatically treat the sale of a large quantity of cocaine by the leader of a drug cartel as equally grave or serious as the mere possession of a very small quantity of cocaine by a drug addict who is not involved in sale or distribution.”).

The Court concedes that this “shortcut” is “unique to Colorado law” and that it “eliminates a longstanding layer of due process for criminal defendants.” Nonetheless, it remains on the books because it supposedly “saves time” and promotes “consistency.” I would submit that “saving time” is never a good reason to dispense with constitutional rights, but the Court’s claims to efficiency are dubious in any case. Now, instead of properly analyzing its cruel and unusual clause, the Court spends its time hopelessly trying to figure out wtf “per se grave or serious” actually means and what offenses it applies to. With this rule in place, and with prosecutors thirsty to invoke it, the first part of every excessive punishment analysis turns into Tom Cruise cross-examining Jack Nicholson in A Few Good Men: “Q: Grave Danger?” A: [raises eyebrow] “Is there another kind?”

But there is a glimmer of hope. In People v. Kennedy, decided last week, Justices Carlos Samour and Richard Gabriel “specially concurred” to advocate nixing the per se grave or serious shortcut.

In Kennedy, the Court stood by its shortcut and upheld the 24-year prison term at issue. But it also held that vehicular homicide-DUI is not “per se grave or serious” because it is a strict liability crime with no specific intent element. “When a crime requires no proof of mens rea,” the Court said, “it is impossible to evaluate the culpability of defendants convicted of the offense under every factual scenario.”

It is good that the Court declined to expand the shortcut to cover a new offense, but the analytical problem here is that the same reasoning applies to crimes that do require proof of intent. To use an example mentioned above, the Court thinks that people who commit robbery have sufficiently high culpability “under every factual scenario”—a conclusion that can only be understood as the willful ignorance of reality. Just a few other facts one might want to know: How old is the person? Are they a youth or emerging adult under age 25, and therefore more susceptible to peer pressure and impulsive decision-making? Was the person coerced by an abusive partner or authority figure? Did the person use a weapon and if so what kind? Was it a gun that turned out to be fake? Did the person act out of desperation? Was anyone physically harmed? The list goes on. To say that virtually no punishment could be unconstitutionally severe for all robbery convictions across all factual scenarios is absurd.

Justices Samour and Gabriel, at least, have started to push back. They argued that “easier and faster isn’t always better,” and that such “superficial proportionality review” is inappropriate when constitutional rights are at stake. Ultimately, they found “the drawbacks of per se designations far outweigh any purported benefits.”

Of course Samour and Gabriel are right, but I’d add another critique: This constitutional “shortcut” makes absolutely no sense. Recall what it is ostensibly a shortcut to: comparing the gravity and/or seriousness of a criminal offense (including, per Colorado case law, characteristics of the offender) with the severity of the punishment imposed for it. In this context, neither “grave” nor “serious” is a bright-line, binary category. They exist along a spectrum. There is no being “not serious” up to a point before falling over a line into “seriousness.” This isn’t bankruptcy. This is a test about whether certain prison terms are too severe; one would think or at least hope that the Colorado Supreme Court is not perfectly fine with incarceration for wholly unserious crimes. To say that an offense is automatically “serious” or “grave,” therefore, means absolutely nothing, and it certainly doesn’t help understand if the resulting criminal punishment is fair.

What the Court must mean, then, is that some crimes are sufficiently serious, but that only makes sense relative to the punishment imposed—a fact irrelevant to the Court’s per se designation.

Perhaps I am thinking too hard about this. Such an arbitrary, court-created rule—born out of some combination of cowardly deference to extreme punishments and sheer laziness, and that even prosecutors agree is “a weird concept anyway”—doesn’t deserve that much credit. The point is: The Colorado Supreme Court’s rule, it turns out, is less a shortcut and more a barrier to protecting fundamental constitutional rights that should be torn down. [People v. Kennedy]

Michigan Supreme Court Upholds Sex Offender Registration Law, But Holds It Is “Punishment”

In some cases, whether state-imposed sanctions constitute cruel and/or unusual punishment depends on whether courts find that they are “punishment” in the first place. Prosecutors and state legislators have successfully shielded even some of the most onerous and life-altering consequences of criminal convictions from excessive punishment review by claiming that, rather than “punitive,” they are merely “civil” or “regulatory” in nature. These include myriad collateral consequences that exclude people from employment, housing, and voting, along with public criminal registration and even indefinite incarceration.

State courts can do more to prevent this, as the Michigan Supreme Court showed on Friday. In People v. Kardasz, the Court held that Michigan’s Sex Offender Registration Act (SORA)—which in some cases requires lifetime public registration—constitutes punishment and is therefore subject to the state constitution’s relatively expansive limits on “cruel or unusual” punishment. This followed a 2024 decision, People v. Lymon, holding that SORA is unconstitutional cruel or unusual punishment as applied to people without any sex-related convictions (a disturbingly common thing).

While the Court upheld SORA in this case (i.e., declined to find that it is cruel or unusual), Kardasz further erodes the legal fiction that some punishments are in fact not punishments at all, no matter how harsh or cruel. It is also another important example of the Michigan Supreme Court using social science and other empirical evidence to test sanctions against their stated purpose. Here, the Court found that SORA is not reasonably related to its purported “civil” purpose of “preventing and protecting against the commission of future criminal sexual acts.” In other cases, the Court has relied on scientific evidence to, for example, prohibit mandatory LWOP for people under 21. That is a promising trend, and other courts should take note. [Read the Full Opinion in People v. Kardasz | Coverage In State Affairs]

Vacancies & Appointments

• Kansas Chief Justice To Retire: Kansas Supreme Court Chief Justice Marla Luckert, who was appointed to the Court by Republican Governor Bill Graves in 2003, will retire early next year. The vacancy gives Democratic Governor Laura Kelly an appointment and will push the Court to a 6-1 Dem-appointed majority. In August, though, Kansas voters will decide whether to maintain the current appointment process or switch to partisan elections.

• Right-wing Justices Behaving Badly: Wisconsin and North Carolina Justices make news for all the wrong reasons

• Michigan Court of Appeals: 40-year prison sentence for youth is “effectively a life sentence” that violates state constitution

• The Growing Urgency of State Constitutional Antipunishment Rights

• Cases To Watch: One of criminal law’s most shocking injustices goes back before the Michigan Supreme Court

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Right-wing Justices Behaving Badly

North Carolina and Wisconsin have the most bitterly divided state supreme courts in the country, with Republicans recently re-taking the majority in North Carolina (while trying and failing to steal an additional seat) and liberals holding a new 4-3 majority in Wisconsin. And recently far-right justices on each court have received a spate of bad press, making headlines for their hyper-partisanship, trolling Twitter posts, and even fictitious case citations.

In Wisconsin, the court last month appointed a pair of three-judge panels to decide if the state’s extreme Republican gerrymander violates the state constitution—the first step toward striking the maps down. The court’s conservatives, of course, dissented, an almost foregone conclusion that would hardly be noteworthy except for one glaring error: Justice Annette Ziegler used a fake U.S. Supreme Court quote to support her dissent—and then effectively doubled down when called out, removing the quotation marks but leaving a false legal proposition that is the polar opposite of what the Court actually said.

Mark Joseph Stern explains in Slate:

Justice [] Ziegler … suggested that the imposition of a more balanced map would violate the U.S. Constitution. To make that point, Ziegler quoted a recent Supreme Court decision, Moore v. Harper, for the proposition that state courts’ role in congressional redistricting is “exceedingly limited.” There is just one problem: Moore said no such thing. That quotation appears nowhere in the ruling. To the contrary, Moore held the opposite, concluding that state courts can play a legitimate, meaningful role in congressional redistricting.

[...]

In the absence of a public explanation for this slip-up, we are left to speculate how, exactly, a state Supreme Court justice wound up misquoting SCOTUS in a major opinion. Was it a clerk’s error? An A.I. hallucination? Whatever the cause, it is not some trifling oversight; this blunder undermined Ziegler’s most important legal rejoinder to the majority. And her would-be correction preserves the original misrepresentation of what SCOTUS actually ruled.

Meanwhile, in North Carolina, ProPublica published a deep-dive feature that shows how Chief Justice Paul Newby and his conservative allies have shattered judicial norms to green light partisan gerrymandering and effectively give Republicans control of Congress:

As chief justice, he and courts under him have consistently backed initiatives by Republican lawmakers to strip power away from North Carolina’s governor, thwarting the will of voters who have chosen Democrats to lead the state since 2016. He’s also used his extensive executive authority to transform the court system according to his political views, such as by doing away with diversity initiatives. Under his leadership, some liberal and LGBTQ+ employees have been replaced with conservatives. A devout Christian and church leader, he speaks openly about how his faith has shaped his jurisprudence and administration of the courts.

According to former justices, judges and Republicans seeking to be judicial candidates, Newby acts more like a political operator than an independent jurist. He’s packed higher and lower courts with former clerks and mentees whom he’s cultivated at his Bible study, prayer breakfasts and similar events. His political muscle is backed by his family’s: His wife is a major GOP donor, and one of his daughters, who is head of finance for the state Republican Party, has managed judicial campaigns.

[...]

Gene Nichol, a professor of constitutional law at the University of North Carolina at Chapel Hill, said Newby had essentially turned the court into an arm of the Republican Party. “Newby,” he said, “has become the chief justice who destroyed the North Carolina Supreme Court as an impartial institution.”

Yet fellow-Republican Phil Berger Jr. took to X/Twitter to publicly condemn not Newby, but liberal Justice Anita Earls. Her offense? Speaking plainly about unlawful and inhumane immigration enforcement tactics in North Carolina. “I cannot be silent while the constitutional rights of our neighbors are being violated,” Earls wrote. This was too much for Berger, who said, without irony, that Earls’s statement risks “undermining public confidence” in the courts and that the “rule of law depends on judges who apply the law as written, not as they wish it to be.”

Michigan Court of Appeals: 40-year prison sentence for youth is “effectively … a life sentence” that violates state constitution

In 2022, the Michigan Supreme Court issued a series of rulings that protect young people from extreme prison terms. Among them was People v. Stovall, which held that even life with the possibility of parole violates Michigan’s “cruel or unusual” punishment clause when given to youth convicted of second degree murder. Last week, the Michigan Court of Appeals—the state’s intermediate appellate court—extended that protection to 40-year prison terms, reasoning that sentences of such length are “effectively … a life sentence,” and therefore violate the state constitution for people under age 18 in second-degree murder cases.

[Full Opinion in People v. Hubbert | Law360]

The Growing Urgency of State Constitutional Antipunishment Rights

The need for state constitutional rulings like Hubbert is even greater as the U.S. Supreme Court turns increasingly hostile to civil rights. As it stands, SCOTUS is already the “Court of Mass Incarceration” for its refusal to limit the most extreme and disproportionate criminal punishments. As I’ve argued many times, the Court’s abject failure to enforce constitutional rights against “cruel and unusual” punishments is reason alone for state supreme courts, relying on state constitutions, to forge their own jurisprudential path.

But things could soon get even worse. In Hamm v. Smith, which will be argued on Wednesday, the Court could revisit its seminal 2002 ruling Atkins v. Virginia that banned executing people with intellectual disability. Given its current composition, the Court is likely to at least narrow Atkins and give states more leeway to kill those whom Atkins once protected. But as Ian Millhiser points out in Vox, a broader, even more radical holding could entirely wipe out what little federal protections people have from the most severe criminal sanctions.

In recent opinions, Justice Neil Gorsuch and the Court’s other Republican members have seemed to embrace a disturbing theory once championed by the late-Justice Antonin Scalia: That the 8th Amendment prohibits only certain types of punishment—specifically, medieval torture methods such as “disemboweling” or “burning alive” that were disfavored at the Founding—and does not prohibit excessive or disproportionate sentences at all.

“If the Court embraces this approach,” Millhiser writes, “it would likely mean the end of most modern-day restrictions on cruel or excessive punishments.” For example, “Scalia argued that the Eighth Amendment only forbids always-and-everywhere ‘cruel’ punishments … and does not prevent the government from imposing excessive punishments for minor crimes. If the Constitution permits the state to execute murderers, then it may also impose the death penalty for lesser offenses such as shoplifting or driving over the speed limit.”

And if that radical view takes hold in federal law, state constitutional rights would be necessary not just to expand rights, but to preserve the limited status quo of rights protections we have today.

Cases To Watch: One of criminal law’s most shocking injustices goes back before the Michigan Supreme Court

The Michigan Supreme Court on Wednesday will (again) hear argument in People v. Langston, which asks whether life without parole sentences for people convicted of “felony murder” are unconstitutional “cruel or unusual” punishment. At issue are people convicted of murder without a jury finding that they either killed or intended to kill anyone, and who were convicted before the Michigan Supreme Court in 1980 added a “malice” requirement to the state’s felony murder law.

In one sense, the stakes in Langston are relatively small: a favorable ruling would apply only to people convicted over 45 years ago. But even setting aside what it would mean for those people to have a chance at freedom, how the court rules could influence how other state courts treat excessive punishment claims in felony murder cases and in other challenges that do not turn on the age of the offender—including, for example, challenges to three-strikes “habitual” or “repeat offender” sentence enhancements. It is a case, in other words, that could open the door to a wider variety of constitutional claims against the most draconian sentencing practices.

Ahead of argument, SLRI and the MacArthur Justice Center filed a supplemental amicus brief reiterating our position that all mandatory LWOP sentences violate Michigan’s constitution. [Read the SLRI Amicus Brief]

• Vacancies & Appointments: Washington Governor names Justice Mary Yu’s replacement on state supreme court; Utah Gov. Spencer Cox appoints an anti-abortion justice and considers expanding the court.

• New Jersey High Court Is Nation’s First To Ban Dubious “Shaken Baby Syndrome” Evidence—Will Other Junk Science Follow?

• Cases To Watch: Is Colorado’s Lifetime Sex Offense Registration “Punishment”?

• Cases To Watch: The MA Supreme Judicial Court Can Expand State Constitutional Rights To Ban Racial Profiling

• Dispatch From Oregon: Is this a dagger which I see before me, The handle towards my hand? No, it’s a steak knife.

• This month in “juicy, backstabbing drama between warring ideological factions” on state supreme courts

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Vacancies & Appointments

• Washington Governor Bob Ferguson appointed career civil rights lawyer Colleen Melody to replace Justice Mary Yu on the state supreme court. Yu, who will retire on Dec. 31, has been a leading voice on strengthening state constitutional rights against extreme criminal punishments—authoring or joining opinions that, among other things, struck down the state’s death penalty and banned life without parole for children—while also pushing the court to question lifelong prison sentences for anyone. While Melody is a civil rights lawyer, she has worked exclusively for the government—both for the U.S. Department of Justice and the Washington Attorney General—leaving her views on governmental power in criminal contexts unclear.

• In Utah, Governor Spencer Cox appointed anti-abortion culture war zealot John Nielsen to the state supreme court—and says he may support a proposal to expand the court in order to create a majority more favorable to legislative Republicans. While the Utah Supreme Court is entirely GOP-appointed, it has been an independent check on certain issues, including by protecting abortion rights. Nielsen, meanwhile, once made the “originalist” argument that abortion is traditionally “something meriting the utmost condemnation available in our law and society: criminal charge and punishment.”

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New Jersey High Court Is Nation’s First To Ban Dubious “Shaken Baby Syndrome” Evidence—Will Other Junk Science Follow?

One month after the Texas Court of Criminal Appeals invoked a “junk science” law to stop an execution in a case of alleged “shaken baby syndrome,” or “SBS,” the New Jersey Supreme Court became the nation’s first to ban evidence of the controversial diagnosis entirely. Biomechanical experts have long-criticized SBS as pseudoscience that wrongfully sends hundreds of parents and caregivers to prison every year for crimes that never happened. It is a diagnosis based not on medical examination or tests, but applied when doctors run out of other explanations. In State v. Nieves, which affirmed both trial and lower appellate court rulings, New Jersey’s high court held that evidence of SBS—typically an expert witness testifying that child abuse is the only possible explanation for a baby’s death—is too unreliable for criminal courtrooms. “The State has not met its burden,” the court explained, “because the research, studies, and testimony [it] presented … reflect a lack of general acceptance in the biomechanical community[.]”

But SBS is hardly the only questionable science that routinely sends people to prison. Bite-mark matches, blood-splatter analysis, handwriting comparisons, tire tread compressions, and other forms of commonly-dramatized evidence have little to no empirical support, according to the National Academy of Sciences’ National Research Council. Yet trial judges usher this evidence into courtrooms simply because other judges before them did the same thing—a phenomenon that Radley Balko calls “a jurisprudential version of the childhood game of Telephone.”

For MSNOW, law professor John Pfaff explains that Nieves is good news amid the growing “challenge that empirical evidence poses for a legal system that has very few practitioners—lawyers or judges alike—with scientific or statistical training[.]” Even when judges look to empirical evidence, in other words, they are often ill-equipped to understand it.

Still, state supreme courts are a promising path to reform. The Hawaii Supreme Court, for example, has relied on “extensive scientific literature” to limit police deceptions during, and require video recordings of, custodial interrogations. Likewise, the Connecticut Supreme Court restricted eyewitness identification testimony based on “near perfect scientific consensus,” and now retroactively applies new rules of criminal procedure that are based on scientific advances. Such responsiveness to scientific progress has implications beyond the admissibility of evidence. Excessive sentencing analysis has also turned on scientific consensus, with state high courts in Massachusetts, Michigan, Washington, and elsewhere citing psychology and neuroscience to restrict life prison terms that, such evidence shows, fail to serve any legitimate purpose. [State v. Nieves | MSNOW]

RELATED: It’s not just data and science. The Washington Supreme Court said that constitutional law must also account for “two [other] things the law has not always adequately understood: young people and social media.” In State v. Luna, decided on October 30, the court overturned a 16-year-old girl’s murder conviction because (citing her age) she did not sufficiently understand her rights to counsel and remain silent before speaking with police, and because the trial court wrongly admitted inflammatory TikTok videos while excluding other social media that could have helped the defense. [State v. Luna]

Cases To Watch: Is Colorado’s Lifetime Sex Offender Registration “Punishment”?

In 2021, in a case called People in Interest of T.B., the Colorado Supreme Court held that mandating lifetime sex offender registration for youth under 18 is “cruel and unusual” punishment that violates the federal 8th Amendment. To get there, the court first had to find that registration counts as “punishment” at all, instead of merely a “civil” or “regulatory” sanction to which constitutional limits on punishment do not apply. State prosecutors often invoke that distinction to shield draconian sanctions placed on people with sex offense convictions—including lifetime registration and indefinite incarceration—from constitutional review, especially as evidence mounts that such extreme measures, born of moral panic around sex crimes, do nothing to protect public safety or reduce crime.

Predictably, the issue is back before the Colorado Supreme Court, this time in a broader challenge that would apply to adults. The court heard oral argument in October in the case of a man who pleaded guilty to attempted sexual assault and distributing drugs to a minor. Despite no prior sex crimes on his record, the man is now a registered “Sexually Violent Predator” for life, with no mechanism to challenge the label. He argues that this designation, and all that comes with it, is unconstitutionally cruel and unusual.

At the very least, the same reasoning from People in Interest of T.B. should dictate that unchallengeable lifetime registration is punishment. Whether applied to children or adults, sex offense registries bear the hallmarks of criminal punishment: They are imposed after criminal convictions, publicly shame those who are on them, and, among other onerous restrictions and requirements, effectively limit where people can live and work.

At oral argument, at least some justices seemed to agree.

“No opportunity to get off the registry. Got to show up in person (four) times a year. There are fairly significant consequences here, and I question whether that matches to the non-punitive purpose,” said Justice Richard L. Gabriel, according to Colorado Politics. Still, as is so often the case, concerns over “too much justice” loomed large. After all, if registration is “punishment” in this context, what other constitutional rights might they violate? “I confess,” Justice Monica M. Márquez said, “being a little concerned about opening the floodgates.”

The case is People v. Beagle. More: Colorado Politics | ACLU Amicus brief

RELATED: Michigan Supreme Court holds in People v. Lymon (2024) that requiring someone without any sex-related convictions to register as a sex offender violates the state constitution’s ban on “cruel or unusual” punishment.

Cases To Watch: The Massachusetts Supreme Judicial Court Could Expand State Constitutional Rights To Ban Racial Profiling

In 1996, the U.S. Supreme Court held that the Fourth Amendment provides no protection against racial profiling in traffic stops. In Whren v. United States the Court said that, as far as the Fourth Amendment is concerned, police can stop and investigate anyone they choose, for whatever reason, so long as there is some traffic violation to justify the stop. That the violation is mere pretext is beside the point. The rule gave license to predatory policing and, unsurprisingly, exacerbated racial disparities in traffic enforcement.

On Wednesday, the Massachusetts Supreme Judicial Court will hear argument to reject this rule, and to hold that the state constitution’s search and seizure clause prohibits pretextual traffic stops—whether they are in reality motivated by race, unpopular political viewpoint, or any other discriminatory reason. “Police can find an ostensible traffic-related reason to stop any car on the road,” a brief from the New England Innocence Project and the Massachusetts Association of Criminal Defense Lawyers, among others, points out. “That reality has made pretext stops the modern-day general warrant,” and have granted police “arbitrary government power” that “overwhelming evidence demonstrates … is exercised in a racially discriminatory way[.]”

The Massachusetts high court would not be the first to use its own state constitution to protect people from arbitrary and discriminatory policing: The state supreme courts in Arkansas, New Mexico, and Washington have each held that—using language from the Arkansas opinion—“pretextual arrests … are unreasonable police conduct warranting application of the exclusionary rule.”

The case is Commonwealth v. Arias.

Dispatch From Oregon: Is this a dagger which I see before me, The handle towards my hand? No, it’s a steak knife. The Oregon Supreme Court held last week that a law prohibiting people on probation from possessing “weapons” does not encompass ordinary steak knives. Prosecutors argued that “weapons” means anything that could cause injury. But “[i]t is unlikely that the legislature intended for ‘weapons’ to mean literally anything capable of being used to inflict injury,” the court wrote. “The state’s interpretation would require us to hold that a probationer would be prohibited from keeping any number of objects in their home, including … baseball bats, kitchen knives of all varieties, and many kinds of cutlery, even plastic picnic cutlery.” [State v. Cortes | Courthouse News Service]

This month in “juicy, backstabbing drama between warring ideological factions” on state supreme courts. The Wisconsin Supreme Court has been the perennial favorite in this category, and it did not disappoint in November. Slate’s Mark Joseph Stern covers the latest deeply personal internecine battle—which stems from a relatively innocuous change in internal procedures—on BlueSky:

• SPECIAL GUEST ESSAY: Law professor Kristen Bell on The Little-Known State Constitutional Prohibition Against ‘Unnecessary’ Criminal Punishments; PLUS: Prof. Will Berry rescues state punishment clauses from ‘deferential doctrine’

• News: The growing trend of state constitution LWOP bans reaches New Hampshire

• SLRI Amicus Practice: SLRI argues that LWOP for anyone with intellectual disability is “cruel or unusual” in Michigan, and that youth LWOP violates Pennsylvania’s constitution

• Vacancies & Appointments: New justices in Kansas and Wisconsin; two vacancies open in Vermont

Scholarship Spotlight: The Little-Known State Constitutional Prohibition Against 'Unnecessary' Criminal Punishments

A groundbreaking law review article shows why 'unnecessary rigor' clauses, unique to state constitutions, should limit excessive sentences

By Kristen Bell*

This past April, in Kelly v. Indiana, the Indiana Supreme Court affirmed a 110-year prison sentence imposed on a 16-year-old boy. In addition to arguing that the sentence is “cruel and unusual” punishment, McKinley Kelly and his lawyers invoked an oft-overlooked clause of Indiana’s constitution by which “no person arrested, or confined in jail, shall be treated with unnecessary rigor.” They argued that even for a serious offense, sentencing a child to die in prison is unnecessarily harsh and therefore violates the state constitution. The court quickly dispensed with this argument, holding that the unnecessary rigor clause does not apply to the severity of criminal sentences.

The court came to its conclusion without any relevant history or scholarship about the clause, which also appears in four other state constitutions. Research about the clauses is sparse, perhaps because they have no analog in the U.S. Constitution. My new article, State Constitutional Prohibitions Against Unnecessary Rigor in Arrest and Confinement, helps fill that gap in research. Using electronic text search and digital databases, I scoured tens of thousands of historic newspapers, treatises, periodicals, and caselaw to understand the meaning of the phrase “unnecessary rigor.” I document how courts have used (or not used) the unnecessary rigor clauses and argue that courts should apply the clauses more broadly today. One of my conclusions is that refusing to apply the clauses to the sentencing context, as the Indiana Supreme Court did in Kelly, runs counter to historical evidence.

Tennessee first adopted an unnecessary rigor clause in its 1796 state constitution, followed by Indiana in 1816, Oregon in 1859, Wyoming in 1889, and Utah in 1896. The clauses lay largely dormant for decades until Hans Linde—Oregon Supreme Court Justice and intellectual godfather of state constitutional law—interpreted Oregon’s clause as a check on state power to safeguard human dignity. Courts in Oregon and Utah have since breathed life into their respective clauses, finding violations of the clauses in regard to cross-gender frisks by prison staff, injury caused by failure to fasten seatbelts in transfer of prisoners, and failure to provide necessary medical treatment in prison, including gender-affirming care. But like Indiana, Oregon and Utah courts have stopped short of applying their respective unnecessary rigor clauses to sentencing.

This narrowing of the unnecessary rigor clauses is unsupported by the historical record that I uncover in my article. The trove of sources demonstrate that the phrase “unnecessary rigor” was part of common vernacular when state constitutions were adopted in the eighteenth and nineteenth centuries. People used the phrase to criticize strict enforcement of formal rules when the circumstances called for a more flexible approach. They also used the phrase to decry unduly harsh treatment by people who wield immense power over vulnerable individuals.

Both meanings apply just as well to the severity of criminal sentences as they do to conditions of confinement. The historical record shows that those who drafted and ratified state constitutions likely understood this. For example, an 1831 newspaper editorial in Indiana argued that clemency was needed to “soften and restrain the unnecessary rigor of the law” in the case of someone sentenced to three months imprisonment for libel. Sentences of death were described as “unnecessary rigor” in several nineteenth century newspaper articles. Foundational common law scholars frequently used “rigor” in describing the severity of sentences; for example, William Blackstone wrote in the eighteenth century that minors were punishable “with many mitigations, and not with the utmost rigor of the law.”

The principle underlying unnecessary rigor clauses also supports applying them to bar excessive sentences. I argue that the animating principle of the unnecessary rigor clauses is to protect human dignity against the overzealous and dehumanizing use of power against those in state custody. Courts should apply this principle to protect human dignity whenever a person is held in custody—including not only post-conviction conditions of confinement, but also arrest, pre-trial detention, civil commitment, and sentencing.

When applying the clauses in the sentencing context, courts should be especially wary of mandatory sentences. Laws that mandate harsh sentences without regard to individual circumstances threaten to do exactly what the animating principle of unnecessary rigor clauses seeks to avoid: they prioritize rigid adherence to formal rules over respect for human dignity.

In the words of the U.S. Supreme Court, mandatory sentencing “treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass.” Because mandatory sentences are an affront to human dignity in this way, the U.S. Supreme Court has held that mandatory death sentences and mandatory juvenile life without parole sentences violate the Eighth Amendment. But the modern Court has applied this reasoning only to the most extreme forms of punishment. For all other sentences, the Court has deferred to sentencing laws, holding that only “grossly disproportionate” sentences are unconstitutional and making that standard nearly impossible to meet. The Court has not struck a sentence less than life without parole since 1910, and has, for example, upheld a life sentence for theft of three golf clubs.

Importantly, the animating principle of the unnecessary rigor clauses shares the Eighth Amendment’s core concern with dignity but not its focus on extremes. Unnecessary clauses do not prohibit “cruel” or “unusual” rigor, but simply “unnecessary” rigor. As described in more detail in my article, I argue that courts should apply something akin to “strict scrutiny” in reviewing sentences under the unnecessary rigor clauses. That means if a less restrictive alternative would effectively meet the government’s purposes in imposing the sentence, then the sentence should be struck as unnecessarily rigorous. Scrutinizing whether a sentence is necessary is a markedly more searching inquiry than asking whether a sentence is grossly disproportionate.

Applying the unnecessary rigor clauses to sentencing would likely have the most impact on mandatory sentences, such as those imposed under Oregon’s draconian Measure 11 or Tennessee’s Truth in Sentencing Law. The Indiana Supreme Court’s ruling in Kelly v. Indiana may also have been different if the court had applied Indiana’s unnecessary rigor clause. Would something less than a 110-year sentence effectively meet the government’s purposes in punishing a sixteen-year-old? I wouldn’t hesitate to answer yes, but we won’t get a court’s answer until they start asking the question.

*Kristen Bell is an Assistant Professor at the University of Oregon School of Law

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SEE ALSO: In a new article, law professor Will Berry critiques the tendency of state courts to undermine state antipunishment rights by deferring to legislative sentencing schemes. Part of 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.” [Read the article: Rescuing State Punishment Clauses from the Deferential Doctrine]

New Hampshire Trial Court Judge: Youth LWOP Is “Cruel or Unusual”

Twenty-eight states and D.C. have banned life without parole (LWOP) sentences for youth under age 18, with three—Iowa, Massachusetts, and Washington—doing so through state constitutional rulings (the Massachusetts high court banned all LWOP for anyone under age 21). In New Hampshire, a superior court judge recently asked the state supreme court to decide whether the state’s bar on “cruel or unusual” punishment requires the same rule. The trial-level judge was tasked with resentencing someone serving mandatory LWOP for a crime committed at age 17, and who argued that LWOP must be completely off the table. After the state supreme court declined to weigh in, the superior court judge decided the question himself—and held that sending youth to die in prison is both “cruel” and “unusual,” and therefore violates New Hampshire’s state constitution.

While not the final word on New Hampshire law, the opinion is an instructive example of state constitutional analysis—one that relies on federalism, text, history, and empirical science to shed the constraints of 8th Amendment case law and give real meaning to “cruel or unusual” protections. I covered the details in a Bluesky thread:

[Read the Full Opinion | More coverage: In Depth NH]

SLRI Files Amicus Briefs in Michigan & Pennsylvania

• Over 20 years ago, in Atkins v. Virginia, the U.S. Supreme Court held that it is unconstitutional to execute people with intellectual disability. The Court gave two main reasons: people with intellectual disability (1) have inherently reduced culpability that is incompatible with the most severe criminal punishment; and (2) face systemic bias and disadvantages in criminal proceedings that create profound risks of unjust punishment, even when courts consider their individual circumstances. In a brief filed in the Michigan Supreme Court, the State Law Research Initiative (SLRI) and the MacArthur Justice Center argue that the same reasoning applies to LWOP—especially under the heightened protections afforded by Michigan’s “cruel or unusual” clause. [Read the Brief | More: Katie Kronick, Intellectual Disability, Categorical Mitigation, & Punishment]

• In the Pennsylvania Supreme Court, SLRI & The Abolitionist Law Center invoked the state’s rich state constitutional history of demanding that all criminal punishments promote rehabilitation or deterrence to argue that youth LWOP—including terms of years so long they amount to LWOP—violates the state constitution. [Read the Brief]

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Vacancies & Appointments

• Susan Crawford, the liberal candidate who handily beat her Musk- and Trump-backed opponent in April, was officially sworn in to the Wisconsin Supreme Court and began her 10-year term on August 1. Her win cements a liberal majority that will last at least through 2028.

• In Kansas, Gov. Laura Kelly appointed civil rights and employee-side labor lawyer Larkin Walsh to the state supreme court, continuing a 5-2 Dem-appointed majority. The immediate next question is whether Kansas voters will pass a ballot initiative next year to amend the state constitution and switch to popular elections for the state supreme court.

• Republican Vermont Governor Phil Scott is currently considering candidates for two vacancies on the state’s five-member supreme court; candidates were first vetted and submitted to Scott by the state’s Judicial Nominating Board.

• The Colorado Supreme Court Is Full Of Prosecutors And It Shows

• Washington Supreme Court reduces public defender caseloads

• Ensuring ‘Felony Murder’ Reform Has Bite, California Supreme Court Orders Resentencing For Accomplice

• ICYMI: The Wyoming Supreme Court suggests “strict scrutiny” should apply to excessive sentencing claims | The nonsense legal standard eroding civil rights in North Carolina

The Colorado Supreme Court Is Full Of Prosecutors And It Shows

The Colorado Supreme Court of late has been a menace to personal liberty and equality, granting more power to police and prosecutors while upholding needlessly cruel criminal punishment. That may be surprising. This isn’t deep red Alabama or Oklahoma. Colorado is a blue state with a seven-member supreme court all appointed by Democratic governors. But mass incarceration has never broken neatly along party lines, and often the better tell is what judges did before they took the bench—the professional experiences and perspectives they acquired as lawyers that they now bring to the cases before them as judges. And in Colorado, five justices are former prosecutors, while all seven are either former prosecutors, corporate lawyers, or both. None is a former public defender.

How this experience translates to judicial outcomes is of course imprecise—though there is empirical evidence that it matters—but consider this string of recent Colorado decisions:

Death-in-prison for “felony murder”: Start with the opinion in October upholding life without parole sentences—Colorado’s most severe criminal penalty—for “felony murder.” That case involved Wayne Sellers, a man convicted of murder because his accomplice during a robbery shot and killed someone; under the state’s then-felony murder doctrine, Sellers was punished as though he pulled the trigger. The legislature has since reduced felony murder’s possible prison terms going forward, but the Colorado Supreme Court allowed previously imposed life terms to stand—failing to enforce the state constitutional ban on “cruel and unusual” punishment. I previously explained how this “embarrassing” and “lazy” decision “sent a disturbing message that [the court] is indifferent to the rights of people consigned to death behind bars.” [People v. Sellers]

Racial discrimination in jury selection: While in theory it is unconstitutional to exclude potential jurors based on race, the U.S. Supreme Court case implementing that rule—Batson v. Kentucky—is largely toothless and does nothing to prevent racial stereotypes and implicit racial bias from infecting jury selection. As a result, some state courts have imposed stricter standards, either through case law or their rulemaking powers. Under a Washington Supreme Court rule, for example, certain reasons for excluding jurors that echo common stereotypes are presumed to be unlawful discrimination, such as that the prospective juror had prior contact with or expressed distrust of law enforcement.

Not so in Colorado. The state supreme court held a public hearing on a similar rule in February 2023, but then did nothing for over two years. On May 29, Justice Carlos Samour finally sent a letter to the court’s Advisory Committee on Rules of Criminal Procedure that largely rejected the rule and instead proclaimed adherence to Batson. “I’m delighted to inform you that we were able to reach consensus,” he wrote, before adding that “we feel duty bound to remain faithful to Batson.” That conclusion is baffling. It is a basic tenet of federalism that state courts are free to impose stronger constitutional rights (or rules of procedure) than what applies nationwide in federal law, yet Justice Samour’s letter reads like the court is wholly unfamiliar with that concept. “We are deeply disappointed by the court’s letter,” said Emma Mclean-Riggs, senior staff attorney with the ACLU of Colorado. “The court can, in fact, approve proposed rules that are more protective of nondiscriminatory jury selection than the federal standard—and it should have done so.” As Colorado Politics noted, the court foreshadowed its conclusion in recent rulings. Last year, the court specifically held that prosecutors could cite jurors’ distrust of police as a “race neutral” to strike them from service. [People v. Johnson | Justice Samour’s Letter]

Search & Seizure: Imagine walking from your parked car to a motel room maybe 60 feet away. With no reason for concern you’re not paying attention to your surroundings, but nearing the door you look up to find a phalanx of police officers in tactical vests. Imagine further that one of these officers asks where you are going, and another asks to pat you down for weapons. Would you feel free to disregard the officers and continue on your way? To say, “nah I’m good,” and turn around to leave? According to the Colorado Supreme Court, any reasonable person would. When Denver police caught Oscar Ganaway in this situation, they found methamphetamine in his pocket. Ganaway later moved to suppress the drugs as the product of an illegal search and seizure, but the state supreme court held that the entire encounter was consensual and therefore no “seizure” occurred. Two justices dissented: “In my view, this was a single encounter in which Ganaway was stopped and searched by the police without reasonable suspicion because he was in the wrong place at the wrong time,” Justice Maria Berkenkotter wrote, joined by Justice Richard Gabriel. “This was a seizure.” [People v. Ganaway]

Parental Rights & Punitive Drug Policy: Drug testing at childbirth comes with myriad pitfalls, from false positives triggered by common foods and medications to stigmatizing parents who struggle with addiction and dissuading them from seeking help. Accordingly, Colorado in 2020 changed its state law so that a “child test[ing] positive” for controlled substances at birth does not automatically trigger a neglect finding—a conclusion that could lead to family separation. Instead, the child must be “affected by alcohol or substance exposure.” The reason for this amendment was clear: “The change in the children’s code is intended to decrease fear and stigma that parents would have in sharing they used substances during their pregnancy, to make it that much easier to get engaged and get involved in the services they’ll need long-term,” Jade Woodard of Illuminate Colorado testified during a legislative hearing. But the Colorado Supreme Court last month turned this new law on its head, finding that “the change in language … reflects a broadening” of the neglect statute (emphasis in the opinion), and holding that a positive drug test is sufficient to find that a child is “born affected by” a controlled substance. Justice Monica Marquez, joined by Justice Samour, dissented. “By deeming exposure alone sufficient to satisfy the affected-by-exposure requirement,” she wrote, “the majority invites the state to intervene in the parent-child relationship—even absent evidence that such exposure has adversely affected the child.” [People in Int. of BCB v. AB & JS]

Wait There’s More: Within the last few weeks, the Colorado Supreme Court also narrowed protections from restitution orders that violate the process and deadlines set forth in state law, and held that people are not entitled to credit for time-served in non-residential community corrections. [Colorado Politics]

Washington Supreme Court reduces public defender caseloads: Speaking of rules from the Washington Supreme Court, the court yesterday issued an interim rule to address the state’s crisis in public defense and substantially lower the caseloads of public defenders. Over 10 years, the rule will lower by two-thirds the number of felony cases that public defenders can carry per year. “The crisis in the provision of indigent criminal defense services throughout our state requires action now to address the crisis and to support quality defense representation at every level,” the court wrote. [Cascade PBS | The full court order]

Ensuring Felony Murder Reform Has Bite, California Supreme Court Orders Resentencing For Accomplice

In 2018, landmark reform legislation substantially narrowed California’s unjust “felony murder” rule. Before then, anyone who committed “an inherently dangerous felony” that resulted in someone’s death could be convicted of first degree murder, even if the person neither killed nor intended to kill anyone. But now if someone is not the actual killer (or an aider and abettor acting with the intent to kill), they must act with “reckless indifference to human life” in order to face first degree murder. This change, the legislature said, serves the “bedrock principle … that a person should be punished for his or her actions according to his or her own level of individual culpability.” The law also applies retroactively, allowing people convicted under the old rule to seek resentencing.

That’s what brought Louis Sanchez Emanuel before the California Supreme Court. In 2012, he and an accomplice set out to rob a marijuana dealer, but during a struggle his accomplice shot and killed their intended victim. Emanuel was unarmed and there was no evidence that he knew his accomplice had a gun. But at the time, Emanuel’s intent to commit robbery was sufficient for a first-degree murder conviction. Challenging his conviction and sentence under California’s felony murder reform, Emanuel argued that the evidence could not support finding that he acted with “reckless indifference to human life.”

Considering “the totality of the circumstances,” the California Supreme Court agreed. Among the relevant factors: Emanuel did not fire or possess a gun; the meetup and robbery occurred in broad daylight on a residential street where witnesses would be present; and Emanuel “attempted to act as a restraining influence,” saying “let’s go” and walking away when the victim initially refused to hand over the marijuana:

The court vacated Emanuel’s murder conviction and remanded for resentencing. And by enforcing the heightened “reckless indifference” standard, the court ensured that the reform law worked as intended and provided a retaining wall against further erosion wrought by prosecutors and lower court judges. [Full Opinion | Cal Matters]

ICYMI

• Wyoming: For the Brennan Center’s State Court Report, I covered oral arguments before the Wyoming Supreme Court in State v. Hicks, a state constitutional challenge to mandatory life without parole sentences for people under age 21. At argument, several justices suggested that rights against excessive prison terms might be “fundamental” and therefore “strict scrutiny”—the most exacting form of judicial review—should apply. [State Court Report | SLRI’s amicus brief in State v. Hicks]

• North Carolina: In Slate and State Court Report, I wrote about the North Carolina Supreme Court’s bizarre use of a strict legal standard to withhold civil rights: requiring claimants to prove that statutes are “unconstitutional beyond a reasonable doubt.” [Slate]

Michigan is now the third state to recognize broader state constitutional rights against excessive and unnecessary prison terms for emerging adults (or “late adolescents”) over age 18. In 2021, the Washington Supreme Court likewise held that mandatory LWOP for anyone under 21 is “cruel” punishment, while last year the Massachusetts Supreme Judicial Court went further and banned all LWOP sentences (even those imposed at the discretion of a trial judge) for this age group. And while the Michigan Supreme Court left open the possibility of imposing life without parole after an individualized sentencing hearing, it has also recognized a presumption against such sentences with the burden placed on prosecutors to rebut it.

A few initial notes on today’s opinion, which comes in the cases People v. Taylor and People v. Czarnecki:

First, the court relied heavily on the undisputed (and growing) body of neurological research showing that brain development typically continues until about age 25, and found that, “as a class, 19- and 20-year-old late adolescents are more similar to juveniles in neurological terms than they are to older adults.” This means that they share the reduced capability and greater capacity to grow and change that state and federal courts have long-recognized in youth. It also means that courts should go further. Indeed, Justice Richard Bernstein concurred to say that, instead of drawing a bright-line rule at age 21, he “would … follow the consensus of the relevant scientific studies and draw such a line at age 25.”

Second, the court invoked historical practice in Michigan to explain that life imprisonment is a relatively recent innovation that conflicts with the state’s long constitutional tradition of promoting rehabilitation. Echoing an argument raised in a amicus brief from SLRI and the MacArthur Justice Center, the court observed that, throughout much of the 20th century, even people with a formal “life without parole” sentence retained a meaningful chance to demonstrate reform and secure release, either through parole, commutation, or those mechanisms working in tandem:

This argument is not limited to Michigan. As Prof. Chris Seeds documents in his book Death By Prison, the routine use of true life without parole sentences in the United States is a modern phenomenon. As other state courts define “cruelty” and “unusualness” within their own state constitutions, they should consider how the recent proliferation of extreme prison sentences comports with historical practice and constitutional understanding in their own states.

Finally, while the court did not explicitly consider racial discrimination, this decision has enormous implications for racial justice. Michigan’s mandatory life without parole sentencing scheme produces massive racial disparities: Black people comprise just 14% of Michigan’s overall population, but 68% of those serving LWOP. The disparities are even worse for young adults. Among those serving LWOP for offenses committed at age 19 or 20, 76% are Black. As amici Fair & Just Prosecution argued, this “data suggests deep systemic racism and a sentencing scheme that is fundamentally based on discrimination, not culpability.”

For more on the Michigan Supreme Court’s “cruel or unusual” jurisprudence, see previous newsletter coverage here, and read SLRI’s amicus brief in Taylor and Czarnecki here.

• Vacancies & Elections: Control of Wisconsin Supreme Court goes to the voters; Republican North Carolina judges hear Republican candidate’s bid to overturn election; the Michigan Supreme Court heads to a 6-1 Dem majority; the first Black and Latina justice in Arizona; the Georgia justice who John Lewis said opposed “everything I have stood for during my career” steps down

• Michigan Court of Appeals: ‘De Facto’ Life Sentences Violate State Constitution

• SLRI Files Amicus Briefs Challenging Excessive Punishments in California, Michigan, and Wyoming

• New York Chief Judge Rowan Wilson Advocates Second Chances

• State Supreme Courts Re-Commit To Diversity & Equity

• Case Notes: State courts are revealing police misconduct

• Reports & Scholarship: Kristen Bell on little-used but potentially powerful “unnecessary rigor” clauses; Daniel Loehr on the eugenics origins of “habitual offender” sentencing; Will Berry “unlock[s]” state anti-punishment clauses

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Vacancies & Elections:

• Whether the Wisconsin Supreme Court retains its liberal majority or reverts back to conservative control will be decided on April 1. Groups funded by Elon Musk have spent more than $10 million to support Republican-backed Brad Schimel against liberal Susan Crawford. [Bolts | Debate Coverage | AP]

• After Republican Jefferson Griffin lost the North Carolina Supreme Court election to current Justice Allison Riggs by about 750 votes, he sued to throw out more than 65,000 ballots. A three-judge panel (two Republicans and one Democrat) on the state’s intermediate Court of Appeals will hear argument in the case on Friday, with big implications for how the case will reach the state supreme court: With Riggs recused, a 3-3 split on the state high court would affirm whatever the court of appeals decides. [The Carolina Journal]

• Michigan Supreme Court Chief Justice Elizabeth Clement will step down in April, giving Gov. Gretchen Whitmer an appointment to make the court 6-1 Democratic. Justice Megan Cavanagh will be the new chief justice. [AP | Detroit Free Press]

• Arizona Gov. Katie Hobbs appointed Maria Elena Cruz to the state supreme court. Justice Cruz, a former prosecutor who also briefly served as a public defender, is the court’s first Latina and Black member. [AP]

• Georgia Chief Justice Michael Boggs will step down next month. Boggs, a conservative Democrat, is known nationally as President Obama’s nominee to the U.S. District Court who civil rights leaders (including the late Georgia Congressman John Lewis) opposed and defeated. Republican Gov. Brian Kemp will appoint a new justice to complete Boggs’s term; applications are due April 7. [The Blackshear Times | Time Magazine]

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Michigan Court of Appeals: ‘De Facto’ Life Sentences Violate State Constitution

Michigan state courts remain the epicenter of developing state antipunishment jurisprudence and continue to produce good news for civil rights. In 2022, the Michigan Supreme Court issued a series of rulings that protect youth and young adults from “cruel or unusual” prison terms, including one, People v. Stovall, holding that life in prison (even with the possibility of parole) is unconstitutional when imposed on youth for second degree murder. In that opinion, the court acknowledged that judges intent on sending kids to die in prison may still have a work-around, because they “could impose a long term-of-years sentence that would theoretically deprive a defendant of any chance of being paroled during their lifetime.” On January 15, the lower state Court of Appeals closed that loophole, deciding 2-1 in People v. Eads that a 50-year minimum sentence without hope of release until age 65 is, as a constitutional matter, no different from the formal life sentences struck down in Stovall.

The ruling could also have implications beyond the facts of this case. While the court struck down the 50-year minimum at issue here as a de facto life term, it left open whether the same reasoning might apply to shorter terms. Also, while this case and Stovall both involved second-degree murder, there are people in Michigan serving 50 years for non-homicide offenses committed before age 18; presumably this holding applies to those cases as well. Prosecutors are seeking review in the state supreme court. [Full opinion in People v. Eads | Dissent | Bloomberg Law]

In another 2022 case, the Michigan Supreme Court barred mandatory life without parole sentences for 18-year-olds. In January, the court heard oral argument on whether that rule should apply retroactively and extend to people up to age 21. Video of those arguments, along with a case challenging life without parole under the “felony murder” doctrine—which allows murder convictions for people who neither killed nor intended to kill—is here: People v. Czarnecki & People v. Taylor (extending protections to people ages 19 & 20); People v. Poole (retroactivity); People v. Langston (felony murder).

SLRI Files Amicus Briefs Challenging Excessive Punishments in California, Michigan, and Wyoming. The State Law Research Initiative (SLRI) started 2025 (and ended 2024) by filing amicus briefs in support of challenges to excessive criminal punishments in three state supreme courts, joining state and national partners to argue for more expansive state constitutional rights in California, Michigan, and Wyoming. [Read More: SLRI Newsletter & Blog]

New York Chief Judge Rowan Wilson On Second Chances

In his State of the Judiciary address, Chief Judge Rowan Wilson last month urged the state legislature to pass the Second Look Act, a bill that would allow courts to reassess the prison terms of people serving 10 years or longer, with the broader goal of reducing “the harms caused by New York’s history of imposing overly harsh sentences, including those required by mandatory minimums.” Judge Wilson—who has led a judicial “sea change” toward more expansive individual rights—addressed the failures of excessive prison terms and the vital role that state courts must play in reversing them. “If you stick with the traditional model, then a judge is making a determination about how long to incarcerate someone shortly after the person has committed a crime,” he said. “And it’s sort of blind to the possibility that people change.” More: Watch Chief Judge Wilson, California Supreme Court Justice Goodwin Liu, & Massachusetts Supreme Judicial Court Justice Scott Kafker discuss state constitutional rights against excessive punishment at SLRI’s 2024 symposium.

State Supreme Courts Re-Commit To Diversity & Equity. As the Trump administration resegregates America while erasing people of color from American history, at least two state supreme courts have reaffirmed their commitment to diverse, inclusive, and equitable justice systems. In an open letter, the New Mexico State Supreme Court said that as “we face challenges and pushback at the federal level against inclusivity efforts, the Supreme Court of New Mexico affirms our commitment to these values. As stewards of justice, we recognize that a just legal system must reflect and respect the diverse communities that it serves.” Likewise, members of the Washington Supreme Court—a diverse body that includes five justices of color, six women, and LGTBQ+ and disability representation—told students during a Q&A that reflecting the broad community they serve improves decisionmaking. Justice Raquel Montoya-Lewis called on the community to continue equity work “without having the support of the federal government,” while Justice Mary Yu said she would speak out as a person of color in a position of power. “Regardless of what anybody says … nobody’s going to erase me and my story and the fact that racism exists,” she said. [Los Alamos Daily Post | Cascadia Daily News | New Mexico Letter]

Case Notes

• New York Court of Appeals held that a 2020 law making “law enforcement disciplinary records” subject to Freedom of Information Law requests applies retroactively. Numerous states expanded public access to police discipline records in response to nationwide protests demanding policing reform, and this ruling is the latest example of state courts giving such laws full effect. [Full Opinion | Bloomberg Law]

• RELATED: After Seattle police officers who attended Trump’s “Stop the Steal” rally on January 6 sued to block disclosure of their identities, the Washington Supreme Court held last month that the officers are unlikely to succeed and, crucially, cannot sue anonymously—effectively ordering disclosure. The opinion also added an accurate account of January 6 for posterity.

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Reports & Scholarship

• Last March, I covered an amicus brief filed in the Colorado Supreme Court explaining that “habitual offender” sentencing laws, which currently exist in 49 states, are the product of abhorrent eugenics theory dating back to the early 1900s. This month the brief’s author, law professor Daniel Loehr, expands on this history in both a new law review article and a report published by The Sentencing Project.

• As part of SLRI’s symposium with the Rutgers Law Review, State Constitutions & The Limits of Criminal Punishments, law professor William Berry has this new article on Unlocking State Punishment Clauses. Prof. Berry notes that even when state courts decline to “lockstep” with federal 8th Amendment holdings under their own state antipunishment rights, they still rely on 8th Amendment doctrine. Berry questions this “analytical lock-stepping” and begins theorizing a more sensible and independent way to apply state constitutional rights. [SSRN]

• Five state constitutions have provisions that prohibit treating people who are arrested or in state custody with “unnecessary rigor,” an explicit constitutional protection with no federal analog. In a new article, State Constitutional Prohibitions against Unnecessary Rigor in Arrest and Confinement, law professor Kristen Bell argues that “the animating principle of the unnecessary rigor clause is to protect human dignity against overzealous use of power in state custody,” and that “excessive mandatory sentences, prolonged solitary confinement, failure to provide needed medical treatment, and unduly restrictive visitation policies are just a few examples of practices that can violate this animating principle.” [SSRN] [Related: Watch Prof. Bell discuss her research at SLRI’s symposium]

• Event: Symposium On “State Constitutions & The Limits of Criminal Punishment”

• Spotlight: Colorado Supreme Court Makes Complete Mess Of Excessive Sentencing Case

• Roundup: Pending state constitutional challenges to LWOP for youth & emerging adults in NH, WY, & MI

• Illinois Supreme Court: The odor of burnt cannabis is not probable cause to search a vehicle—and neither is driving on Interstate 80

• Arizona Court of Appeals: Drivers with THC in their blood must actually be impaired to punish them

• Vacancies & Elections: calls for professional diversity in Connecticut; Arizona’s Democratic governor could get three state supreme court appointments; a career prosecutor is confirmed in New Jersey

Colorado Supreme Court Makes Complete Mess Of Excessive Sentencing Case

There are wrongly decided cases, and then there are wrongly decided cases that are so poorly reasoned they’re embarrassing. The Colorado Supreme Court’s ruling last week in a major sentencing case is the latter. With paper-thin analysis that is at turns lazy, incoherent, and circular, the court rejected a claim that life without parole sentences for felony murder—a crime that punishes people for murders they didn’t commit—violates the state constitution ban on “cruel and unusual punishments.” Rather than join the national trend of expanding state constitutional rights against excessive punishment (or at least acknowledging that such rights exist independent of what the U.S. Supreme Court says about federal law), the court rubber-stamped a draconian sentence and sent a disturbing message that it is indifferent to the rights of people consigned to death behind bars.

Life in prison without the possibility of parole (LWOP) is Colorado’s most severe criminal punishment. But the most severe sentence is not reserved for the most serious offenses. Wayne Sellers is serving LWOP for “felony murder” because he committed a robbery during which an accomplice shot and killed someone. That Sellers did not kill anyone did not matter; under the felony murder rule, he was punished as though he had. 

In 2021, the Colorado legislature recognized this injustice and reduced sentences for felony murder to a range of 16 to 48 years.  “The person who did the murder should do the most time,” Gov. Jared Polis said when he signed the law. But that change was prospective only, and it left people like Sellers, who was convicted in 2018, still permanently imprisoned. Given the inherent cruelty of his sentence and the legislature’s subsequent recognition of that cruelty, Sellers challenged his LWOP sentence as a violation of both the 8th Amendment and Colorado’s own ban on “cruel and unusual punishments” found in article II, Section 20 of the state constitution. But rather than seriously engage with Sellers’s claims, the Colorado Supreme Court washed its hands of them, providing only cursory 8th Amendment review and declining to conduct any independent analysis under the state constitution.

I have previously made the case for why state supreme courts should ban LWOP for felony murder, and therefore why Sellers should have won his appeal. Here, though, I highlight just the court’s most egregious errors—the glaring analytical flaws that suggest Sellers never had a real chance to begin with.

Before diving in, I will give the court credit for one thing: It rightly recognized that Sellers sought a categorical rule that felony murder LWOP is unconstitutional, just like, say, executing children is categorically banned. That’s important, because a long line of both state and federal cases have said that courts should review categorical claims under a more exacting legal standard that draws from “evolving standards of decency” and any emerging social consensus toward leniency. Correctly identifying the nature of Sellers’s claim and matching it to the right legal standard is no major accomplishment—especially when that standard is wholly defanged in its application—but it’s something courts routinely screw up. So credit where it’s due.

But that’s about all the court got right, and things go south when it decides how the relevant “standards of decency” apply to Sellers’s claim.

First, the court “found [no] national consensus that a mandatory sentence of LWOP for felony murder for an adult offender is categorically impermissible.” But this exclusive focus on national consensus is odd when a state constitutional claim is at issue. Indeed, in 2019 the Colorado Supreme Court held that the “most valid indicia of Colorado’s evolving standards of decency” are its state legislative sentencing reforms, and that courts must consider such reforms in their excessive punishment analysis. That is of critical importance here given the 2021 felony murder reform, yet the court left that out of its “consensus” review entirely. The court also ignored empirical evidence showing that Coloradoans overwhelmingly oppose LWOP for felony murder, with public opinion research showing a mean preference for only 6 years in prison.  It might be different if the court took this national-only approach with just the 8th Amendment before moving on to an independent state constitutional analysis, but (as explained more below) that didn’t happen. 

Worse, the court’s national consensus analysis is itself flawed. Here’s the court dismissing Sellers’s evidence that felony murder in other states results in less severe punishment:

The implication is that only court decisions specifically banning LWOP for felony murder are relevant. But that’s not how consensus works. While such decisions would help, the court should have also weighed “the applicable statutes” that do “not allow for the imposition of an LWOP sentence for felony murder.” As it turns out, in 2018 Colorado was one of just 10 states with mandatory LWOP for all felony murder convictions, and after its own reform three years ago we’re down to nine. Yet Colorado’s outlier status at the time of Sellers’s conviction goes unmentioned.

Next, the court had to consider whether, in its own judgment, mandating death in prison for felony murder serves any legitimate penological purpose, such as deterring crime, rehabilitating people, or punishing those who are blameworthy. Here, the court apparently agreed or at least assumed that LWOP is a poor fit with these goals, but then compounded its own errors by invoking its (deeply flawed) consensus analysis to say that it doesn’t matter:

Finally, the court suggests that to conclude otherwise—and specifically to impose a categorical ban on LWOP for felony murder—would be unprecedented because Sellers is an adult who isn’t sentenced to death:

This is a remarkable statement for several reasons. First, it seems to conflate applying the “categorical approach” to review excessive punishment claims with actually concluding that a challenged punishment is categorically unconstitutional. After all, this very opinion (to its credit!) ostensibly takes a categorical approach to Sellers’s claim, it just does so poorly. But more to the point, the statement is flat wrong. Last year, a panel of the federal Fifth Circuit Court of Appeals held that Mississippi’s lifetime voting ban for people with felony convictions categorically violates the 8th Amendment, and this year the Massachusetts Supreme Judicial Court used the categorical approach to hold that all LWOP sentences for people under age 21 (not just “juvenile offenders”) violate its state constitution. Again, it’s not just that the court gets this case wrong, it’s that the opinion is littered with evidence that it barely tried. 

All the court’s analysis is dedicated to the federal 8th Amendment. The state constitution gets only three terse reasons why it doesn’t change anything:

Let’s take each in turn. First, the court said that, “[t]o date … we have not interpreted article II, section 20 of our constitution to provide greater protection than the Eighth Amendment.” That is more of an excuse than an actual reason to not even grapple with Sellers’s claim. It’s also not entirely true. As noted above, the court in 2019 held that sentencing reforms must be considered as evidence of Colorado’s “evolving standards of decency,” creating a state-specific rule that strengthens excessive punishment claims and that does not exist in federal 8th Amendment case law. 

Next the court notes that “we [have not] interpreted article II, section 20 to conclude that an adult’s LWOP sentence for felony murder is categorically unconstitutional”—which, of course they haven’t because that was the very issue in this case. If the court had previously made that ruling then Wayne Sellers would already have a new sentence. It’s completely circular logic with no real analysis. 

Finally, the court leans on “the unambiguous statutory language mandating an LWOP sentence” before the 2021 reform, and elsewhere emphasizes the “clear legislative declaration applying the reclassification of LWOP only” prospectively, to offenses committed after its enactment. Again, this merely begs the question to be answered, as the pre-2021 statute is why this constitutional challenge exists. But much worse, the court was well aware that the reform’s lead sponsor, State Rep. Pete Lee, offered a limited prospective law only because of legal advice warning that a broader bill might intrude on the governor’s clemency power and violate separation of powers.

“Yes, of course I believe the Supreme Court should correct the manifest injustice of the disproportionate sentencing in these cases," Lee told Colorado Politics. “It was my initial goal to do so. But because of my understanding of the separation of powers doctrine, non-partisan staff wrote the bill to apply the bill prospectively.”

The good news, I suppose, is that the opinion in Sellers is so unpersuasive that other courts are unlikely to follow it. And that’s important, because this very issue is also before the Pennsylvania Supreme Court, which hears argument today, October 8, on whether LWOP for felony murder violates its state constitution’s ban on “cruel” punishment. When that court reads Sellers, as it inevitably will, it should immediately file to: “how not to write a judicial opinion.”

Roundup: Pending State Constitutional Challenges To LWOP For Youth & Emerging Adults

In 2001, two teenagers murdered a pair of married Dartmouth professors with the absurd plan to steal their ATM cards, withdraw cash, and start a new life in Australia. They stole $340 and were arrested in Indiana. One of them, age 16, received a 25-year minimum sentence for second degree murder and has since been released on parole. The other, Robert Tulloch, was 17, and he received a mandatory LWOP sentence. At a hearing last month, Tulloch’s lawyers argued that the New Hampshire state constitution’s “cruel or unusual” clause bars all LWOP sentences for youth who are under 18, a categorical prohibition that state courts have applied in Washington, Iowa, and Massachusetts. And at a minimum, they argued, any youth LWOP sentence should require explicit judicial findings that the child is one of the exceedingly rare “incorrigible” people for whom life in prison is necessary—an evidentiary and procedural protection that the Alaska Court of Appeals recently embraced, but that the U.S. Supreme Court rejected under the 8th Amendment. [Concord Monitor | VT Digger]

In Wyoming, the Cowboy State Daily has a feature on Chris Hicks, the now-38-year-old man using the Wyoming state constitution to challenge the life without parole sentence he received at age 19, and his lawyer, University of Wyoming Law Professor Lauren McClane. “McClane’s motion argues that the protections afforded under [to youth] should be extended to people ages 21 and younger given that neuroscience not previously available now shows the age of adult to be much older than originally suggested,” it reports. 

McClane further notes that Wyoming’s Constitution dictates that the penal code be framed around humane principles of reformation and prevention.

“Part of what we're arguing is that none of these justifications are served by sentencing a 19-year-old to life without the possibility of parole, much like they're not served by sentencing a 17-year-old to life without the possibility of parole,” McLane said.

[Read more about this case in The New Yorker]

The Michigan Supreme Court last month denied review in a case arguing that all youth LWOP violates the state constitution, but other pending cases ask the court to ban LWOP for felony murder convictions, and to extend the state constitutional ban on mandatory LWOP for 18 year olds to people who are age 19 and 20. 

Illinois Supreme Court: The Odor Of Burnt Cannabis Is Not Probable Cause To Search A Vehicle

In light of new laws that decriminalized marijuana possession, the Illinois Supreme Court held under both the state constitution and the federal Fourth Amendment that the smell of burnt cannabis, without more, does not give police officers probable cause to search a car. The court also noted that state supreme courts in other states that have reformed marijuana laws—including Minnesota, Pennsylvania, and Massachusetts—have reached similar holdings:

Also, if you’re not yet convinced that police officers will try to turn anything into evidence of a crime, behold the officer’s attempt to justify his search in this case:

[Full opinion | Chicago Tribune]

Related: The Arizona Court of Appeals ruled last week that drivers must be actually impaired, and not just have THC in their bloodstream, to be punished for DUI. “This reinforces our understanding of the voters’ intent, expressed through their enactment of Proposition 207, that unimpaired driving after consuming marijuana cannot be penalized,” the unanimous three-judge panel wrote. [Full Opinion | AZ Mirror] 

Vacancies & Elections 

• Connecticut: Raheem Mullins is Connecticut’s new chief justice after the legislature’s Judiciary Committee approved his appointment last week. The elevation of Chief Justice Mullins, who has been on the state supreme court since 2017, creates a vacancy for Gov. Ned Lamont to fill. In August, a coalition of state and national organizations called on Lamont to name someone who adds professional diversity to a state bench dominated by corporate lawyers and prosecutors. “When courts do not reflect the diversity of the people they serve and our nation at large, the credibility in our justice system suffers,” they wrote.

• New Jersey: The state senate last week unanimously confirmed former state Attorney General and career prosecutor John Jay Hoffman to the state supreme court. Hoffman, a Republican, maintains the court’s tradition of partisan balance, with a one-seat majority for the sitting governor’s party. The court is now 4-3 Democratic. 

• Arizona: Democratic Gov. Katie Hobbs could soon have three appointments to Arizona’s conservative, seven-member state supreme court. Justice Robert Brutinel is retiring, and Justices Clint Bolick and Kathryn King face organized opposition to their November retention (“yes or no”) elections for new terms. Both Bolick and King were in the 4-2 majority that upheld Arizona’s 1864 criminal abortion ban. [Eastern Arizona Courier]

In another win for state constitutional rights, the Michigan Supreme Court last week held that requiring someone without any sex-related convictions to register as a sex offender—something that, remarkably, most states do to some extent—violates the state’s ban on “cruel or unusual” punishment. Central to the ruling were both the text of Michigan’s antipunishment clause—which, with its disjunctive formulation, is broader than the federal 8th Amendment’s “cruel and unusual” prohibition—and the state’s tradition of prioritizing rehabilitation as the primary goal of criminal sentencing. 

Subjecting people “who did not commit a sexual offense” to the “social stigma and law-enforcement supervision” that comes with sex offender registration “does not address the underlying causes of [their] conduct or support [their] reintegration as a noncriminal member of society,” the court said. In fact it does the opposite, by “preventing [people] from securing employment and otherwise moving forward with … life plans.”

The ruling in People v. Lymon will free about 300 people from the sex offender registry. Beyond that, it further cements the Michigan Supreme Court as a national leader in building state antipunishment jurisprudence and expanding rights against extreme and needless punishments. And that trend should continue: There are at least seven cases pending on the court’s docket that raise claims under the “cruel or unusual” clause, all touching on a common theme: will the court further limit lifetime punishments that, contrary to the state’s long constitutional history, “forswear[] altogether the rehabilitative ideal”?

Since 1962, when the U.S Supreme Court held that the 8th Amendment applies to the states, most state supreme courts have largely neglected their own antipunishment clauses, opting to apply only federal law instead. Rather than develop their own case law based on the independent meaning of their own constitutions, they have treated U.S. Supreme Court precedent as the final word, “lockstepping” with every 8th Amendment decision. 

But the Michigan Supreme Court has long been an exception. In 1972, the court explained that the state’s “cruel or unusual” clause demands independent analysis, one that at least considers “the goal of rehabilitation.” Twenty years later, in a case called People v. Bullock, the court used that approach to ban mandatory life without parole (or, “death by incarceration”) sentences for drug possession—a holding directly at odds with what the U.S. Supreme Court said just one year before. In Bullock, the court explained that different constitutional text, unique state history, and “longstanding … precedent,” provided “very compelling reason[s] not to reflexively follow the latest turn in” federal 8th Amendment case law, and to instead apply “the Michigan Constitution more expansively.” In particular, the court emphasized “the goal of rehabilitation” as a constitutional mandate “rooted in Michigan’s legal traditions.”

At the same time, though, a tension emerged between Michigan’s constitutional law and its sentencing practices. While Michigan’s constitution provided greater rights against excessive punishment and embodied, in its anti-cruelty prohibition, a constitutional mandate to rehabilitate, the state also became a world leader in sending people to die in prison. By 2020, Michigan imprisoned 5,600 people on some form of life term, including nearly four thousand without the possibility of parole—the fifth most of any state in the country. 

But in 2022, the Michigan Supreme Court revived its “cruel or unusual” jurisprudence with a series of rulings that protected youth and young adults from lifelong prison terms. In People v. Parks, the court banned mandatory life without parole sentences for people 18 and younger (raising the age under federal law by one year); in other cases it banned all life sentences for youth convicted of second degree murder and specified that there is always a presumption against life without parole sentences for youth—one that prosecutors must overcome with specific evidence. In each case, Michigan’s constitutional commitment to rehabilitation was central. “Rehabilitation is a specific goal of our criminal-punishment system,” the court said in Parks. “Indeed, it is the only penological goal enshrined in our proportionality test as a criterion rooted in Michigan’s legal traditions.”  

With last week’s decision in Lymon, the court reaffirmed and built on these cases, and it’s poised to do more in the next year. The court’s docket includes more challenges to Michigan’s draconian sex offender registration law, including claims that lifetime sex offender registration and lifetime electronic monitoring constitute “cruel or unusual” punishment. It will also consider further limits on death-by-incarceration sentencing—a practice that is by definition incompatible with rehabilitation. It could apply Parks retroactively, to people with final convictions, and to all people under age 21; ban all life without parole—mandatory or discretionary—for youth under 18; and ban mandatory life without parole for people convicted under the so-called “felony murder rule”—an archaic legal doctrine that allows murder convictions and the most severe punishments even when there is no intent to kill. 

Collectively, these cases could restore hope to thousands—more than 1,000 people are serving life without parole for felony murder alone. But they also raise a question: Will the court ultimately do with one clear holding what it has started to do piecemeal? Will it recognize that, whatever their crime or age, sending people to die in prison without even the hope of release is cruel and conflicts with fundamental state constitutional rights? This year the Massachusetts Supreme Judicial Court made history by banning all life without parole sentences for anyone under age 21. The Michigan Supreme Court could be the first to ban them entirely.

South Carolina Supreme Court Upholds Death By Firing Squad & Electrocution

In a surreal and chilling opinion, the South Carolina Supreme Court last week upheld both the firing squad and electric chair as valid execution methods. 

South Carolina’s constitution bans punishments that are any or all of “cruel,” “unusual,” or “corporal,” and in 2022 a trial court ruled that the state’s death penalty statute is all three. Based on scientific and medical evidence, the trial court detailed the gruesome and often torturous reality of killing people by these methods (particularly in South Carolina, where the state quickly cobbled together a firing squad protocol from “the internet”). “In 2021, South Carolina turned back the clock and became the only state in the country in which a person may be forced into the electric chair if he refuses to elect how he will die,” the court wrote. “In doing so, the General Assembly ignored advances in scientific research and evolving standards of humanity and decency.”

The trial court’s order was hardly radical. In 2008, the Nebraska Supreme Court held that the electric chair violates its state constitution because “electrocution inflicts intense pain and agonizing suffering,” and, “examined under modern scientific knowledge, … has proven itself to be a dinosaur more befitting the laboratory of Baron Frankenstein than the death chamber of state prisons.” This followed a similar Georgia Supreme Court ruling in 2001, which noted that the electric chair “unnecessarily mutilate[s] or disfigure[s] the condemned inmate’s body.” 

The South Carolina Supreme Court’s opinion reversing the trial court, and declining to follow the state supreme courts in Nebraska and Georgia, stands out for a few reasons. Most notable is the majority’s indifference toward and almost clinical description of the human suffering that will result. The near-inevitability of “botched” executions, for example, is of “no constitutional significance” to the court:

And here is the court ignoring—despite an explicit constitutional ban on “corporal” punishments—bodily mutilation while observing that “excruciating pain” will last “only” 15 seconds: 

In a partial dissent, Chief Justice Don Beatty also noted that the majority appears to nonsensically reduce state constitutional rights even below what the 8th Amendment provides. In particular, he criticized the court for refusing to consider the “evolving standards of decency,” long-recognized as relevant to death penalty litigation, under the state constitution. This makes no sense, he argues, given the basic textual differences. An antipunishment clause that prohibits “cruel,” or “unusual,” or “corporal” punishments cannot be narrower than one that prohibits only “cruel and unusual” punishments. But more than that, federal rights provide a “floor” of civil rights protections that state courts can only enhance, not reduce:

In my view, holding this Court will not apply evolving standards of decency for state claims is illogical.  Inmates should not be required to allege an Eighth Amendment violation to obtain the fullest measure of protection afforded under state law.  More importantly, however, rejecting consideration of the evolving standards of decency when determining the limits of acceptable punishment results in our state constitution affording notably less protection to its citizens, not an additional layer or greater level of protection.  This arbitrarily places South Carolina's level of protection beneath the minimal "floor" required by the United State Constitution—lowering it to the basement.

[Full State Supreme Court Opinion | Full Trial Court Opinion]

• Connecticut & Michigan Supreme Courts: Criminal legal systems cannot neglect scientific advancement

• The Michigan Supreme Court protects Fourth Amendment rights—and one Justice says the state constitution should go further

• ICYMI: The Rhode Island Supreme Court upholds “youth offender parole”

• Strict Scrutiny podcast covers state rights against excessive punishment

• Vacancies & Elections: The public defenders running for judge in Los Angeles

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Connecticut Supreme Court Holds Science-Based Rights Apply Retroactively: “In criminal matters judicial economy must give way to the demand for the truth”

If criminal legal systems are to have any claim to accuracy and fairness, then state courts must ensure they align with modern science—whether by keeping junk forensic science out of courtrooms, prohibiting prosecutors from invoking scientifically-dubious theories of guilt, or banning extreme sentences at odds with the neuroscience on individual culpability and the capacity to change. 

In Connecticut, the state supreme court has embraced this role to limit the scourge of mistaken eyewitness identification testimony, which is “by far the leading cause of wrongful convictions.” To this end, the court has both expanded state constitutional due process rights and, just this month, broken from federal precedent to apply those rights retroactively, ensuring that people are not denied justice “just because [they were convicted] ahead of scientific advancements.”

The court previously recognized the “near perfect scientific consensus” that shows “the fallibility of eyewitness identification testimony and pinpoints an array of variables that are most likely to lead to a mistaken identification”—including cross-racial identifications. This is especially true in suggestive settings, such as a courtroom where one Black person stands accused. In 2016, the court held that “any [first-time] in-court identification by a witness who would have been unable to reliably identify [the defendant] in a nonsuggestive out-of-court procedure constitutes a procedural due process violation.” With this holding, the court later explained, “the due process provision of … our state constitution affords greater protection than the federal constitution with respect to the admissibility of eyewitness identification testimony.”

But what of people convicted before 2016? Edgar Tatum was convicted of murder in 1990 based on the testimony of two white witnesses, one of whom admitted to “freebasing cocaine” on the night in question. Both had initially identified someone else as the shooter, but more than a year later they recanted and identified Tatum—the only Black man seated at defense counsel’s table—at his probable cause hearing. 

Tatum’s habeas petition asked Connecticut’s high court to apply its science-based constitutional rules to older convictions. The court first looked at the federal test for retroactivity, set forth in a case called Teague v. Lane, which rests on the muddled distinction between “substantive” and “procedural” rules: a new substantive rule of constitutional law will apply retroactively to final convictions, but a new procedural rule will not. The problem is not just that it’s often hard to tell one from the other, but that even clearly procedural rules can decide the accuracy of criminal proceedings. As California Justice Kelli Evans explained in a recent dissent, it makes little sense to be “more concerned about the elusive line between [rules] that are procedural and those that are substantive than whether the previous [rule] may have led to the conviction of innocent people[.]”

In Tatum, the Connecticut Supreme Court agreed. It recognized that Teague, whatever its worth, relied on federalism concerns that do not apply to state courts reviewing state court convictions. It’s a rule more concerned with protecting “finality” than promoting justice. Instead, under the Connecticut Constitution, “a new constitutional rule of criminal procedure must be applied retroactively … if the rule was a result of developments in science that persuaded us to reevaluate fundamental principles underlying judicial procedures, the rule significantly improves the accuracy of a conviction, and the petitioner [previously] advocated for the rule[.]” 

“In criminal matters,” the court said, “judicial economy must give way to the demand for the truth,” and had Tatum “made the same claim today that he raised in his direct appeal more than thirty years ago, he would prevail.”

One could argue that this standard is still too strict. Withholding relief unless the petitioner previously asked for the rule is puzzling; it effectively requires defense lawyers and people charged with crimes to predict scientific advancements before they happen. Still, the central point—that no one should be burdened with a conviction or sentence discredited by scientific consensus—is vital. [Full Opinion]

Michigan Supreme Court Overturns “Shaken Baby Syndrome” Conviction

In another win for scientific advancement, the Michigan Supreme Court last week ordered a new trial for a parent convicted of first degree murder on the dubious theory of “shaken baby syndrome,” or “SBS.” 

For decades, doctors have blamed unexplained baby injuries on SBS, leading to hundreds of criminal prosecutions against parents and caregivers every year. But last year, a New Jersey appellate court affirmed a ruling that labeled SBS “junk science,” and barred prosecutors from raising the theory in court. “The State has not demonstrated general acceptance of the SBS[] hypothesis to justify its admission in a criminal trial,” the court said.  “On the contrary, the evidence amply demonstrates that … biomechanical testing has never proven the premise of SBS, despite the hypothesis being grounded in biomechanical principles.” 

In the Michigan case, the original medical examiner recanted his SBS diagnosis and agreed that choking, not shaking, could explain the baby’s death. With that and other new expert testimony, the court ruled that a new trial would likely produce a different outcome:

[A]t retrial, defendant could call Dr. Cassin to testify about his changed opinion regarding Nakita’s cause of death as well as several expert witnesses who would testify that SBS is a questionable diagnosis, that Nakita’s injuries were not consistent with abusive shaking, and who would provide the jury with a potential alternate cause of death. …  Taken together, we conclude that defendant has presented enough evidence to demonstrate that a different result on retrial is “probable.”

[Full Opinion | AP]

Michigan Supreme Court Protects Fourth Amendment Rights—Should Its State Constitution Also Dump The ‘Reasonable Person’?

The Michigan Supreme Court this month also decided a pair of Fourth Amendment cases that protect individual rights from police overreach. 

In one, People v. Duff, police officers pulled behind a parked car, obstructing its path to leave, before shining a spotlight at the car and approaching it with a flashlight pointed inside. The majority reached the commonsense conclusion that, under these circumstances, a reasonable person inside the parked car would not feel free to leave, and the occupant was therefore “seized” for Fourth Amendment purposes. The court remanded the case to decide if officers could justify this seizure. 

More interesting, though, is the concurrence from Justice Elizabeth Welch, which argues that the court should use the state constitutional right against unreasonable searches and seizures—Article 1, Section 11—to craft a more realistic test for deciding when police have “seized” someone. Federal law asks whether a “reasonable person” would feel free to leave or terminate a law enforcement encounter. But as Welch explains, the “idealistic judicial model” of a “reasonable person” does not actually exist in the real world: “empirical studies indicate that most reasonable people would not feel free to leave or disengage in many situations involving law enforcement, despite the United States Supreme Court finding that they would.”

Even if this flawed test persists, Michigan need not follow it. Welch suggests the state constitution as an alternative: 

I also find it noteworthy that the [federal] test was adopted years after Michigan’s current Constitution was adopted [in 1963], and thus could not have been considered by the framers or the electorate. An important question remains: would a different test for determining whether a person has been seized be more consistent with Const 1963, art 1, § 11 than the current understanding of the [federal] framework?  

[Full Opinion]

It’s Not A Crime To Be In A “High Crime Area”

Using someone’s presence in a “high crime area” to justify detaining and searching them is a hollow police cliche, invoked when there is no better reason, like claiming someone “reached for their waistband” to justify shooting them. 

In 2019, police in Kalamazoo, Michigan used an especially suspect version of that when they detained Douglas Prude outside an apartment complex, later saying that he was parked—legally—in a particular area of a parking lot “where criminal activity was common.” Prude declined to identify himself but said that he was visiting his girlfriend who was a resident. When the officers told Prude to wait while they checked for previous trespass warnings, Prude started his car and drove away. The officers eventually arrested Prude and “charged him with second-degree fleeing and eluding and resisting or obstructing a police officer.”

On appeal, the issue was whether police had a particularized suspicion that Prude was committing a crime; if not, then the officers violated his Fourth Amendment rights, the detention was unlawful, and Prude was free to drive away. 

In a 5-2 ruling, the Michigan Supreme Court found a Fourth Amendment violation and vacated Prude’s convictions: “As commonsense would indicate, it is generally not trespassing for a nonresident to visit a resident of an apartment complex and to be present in the apartment’s common areas while doing so,” the court said. “That defendant was in an area where other nonresidents had frequently committed crimes did not provide reasonable suspicion that he was engaged in criminal activity[.]” To give the “high crime area” any more weight, the court said, would create “an exception to the Fourth Amendment for all people living in or passing through certain neighborhoods.” [Full Opinion]

ICYMI: Rhode Island Supreme Court Upholds Youth Offender Parole. Under Rhode Island’s 2021 “Mario’s Law,” anyone sentenced for a crime committed before the age of 22 is eligible for parole after serving 20 years. The reform recognized that youth and young adults have both reduced culpability and a greater capacity to change, and therefore consigning them to die in prison, even for terrible crimes, does not serve state interests. But prosecutors and the DOC argued that the reform does not apply to people—including the law’s namesake, Mario Monteiro—serving multiple sentences. Last month the Rhode Island Supreme Court rejected that argument in a 4-1 decision, and ordered the parole board to consider Monteiro’s release. [The Rhode Island ACLU | Full Opinion]

Come For “The Hubris & Hackery of Aileen Cannon,” Stay For Antipunishment Rights. Finally, the popular legal podcast Strict Scrutiny, hosted by the “badass constitutional law professors” Leah Litman, Kate Shaw, and Melissa Murray, recently covered the power and possibilities of state constitutional rights against excessive punishment—and why the ongoing mass incarceration crisis and the U.S. Supreme Court’s failure to do anything about it make this so urgent. I joined Prof. Litman, the Brennan Center’s Kasia Szymborski Wolfkot, and lawyer and journalist Josie Duffy Rice for the discussion. [Strict Scrutiny] 

Vacancies & Elections

• The movement to put more public defenders on the bench—a major success story of the Biden administration—has gone local. After wins in Louisiana, Montana, and elsewhere, Bolts Mag reports on advocates and a slate of public defender candidates bringing a new approach to Los Angeles courts that’s “more attentive to the pitfalls of incarceration”: “These candidates are running in separate countywide elections. But they’ve delivered similar messages. … Now on the campaign trail, they insist that the job of a judge should be more about finding creative solutions to foster rehabilitation than doling out punishment.” [Bolts Mag]

• Vacancies & Appointments: Republican nominee will “maintain the [the New Jersey Supreme Court’s] current partisan balance”; last day to apply for an Alaska Supreme Court vacancy

• California Supreme Court: two justices urge court to limit extreme punishments for young people; relief from racist gang enhancements won’t be retroactive

• Illinois Constitution: Slate Essay On The Remarkable History of Illinois’s Antipunishment Clause

• Iowa Supreme Court “Jealously Guards” Power To Interpret State Constitution

• New Jersey Supreme Court (Again) Shields Youth From Sex Offense Registration

• Three Colorado Supreme Court Justices Advocate Abolishing Peremptory Strikes

• Scholarship Spotlight: Symposium On The New Mexico Civil Rights Act

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Vacancies & Appointments:

• Democratic New Jersey Governor Phil Murphy nominated Rutgers University general counsel and former prosecutor John Jay Hoffman to replace Justice Lee A. Solomon on the state supreme court. The nomination is intended to “maintain the current partisan balance on [the] court,” a longstanding tradition by which the governor’s party maintains a one-seat majority. Before Rutgers, Hoffman was Gov. Chris Christie’s longest-serving Attorney General and previously worked as a federal prosecutor. 

• The Alaska Judicial Council is accepting applications to replace Justice Peter Massen on the state supreme court. The Council will name finalists before Gov. Mike Dunleavy, a Republican, makes his fourth appointment to the court. Applications are due Tomorrow, July 12.

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When Will The California Supreme Court Protect Young People From Extreme Punishments? Two Justices Urge Action

A divided California Supreme Court recently upheld life without parole sentences for young adults, despite evidence that such punishments “perpetuate[] extreme racial disparities in [the state’s] criminal and juvenile justice systems.” But that was an equal protection case, and Justice Kelli Evans, clearly frustrated by that result, used a recent dissent to suggest a different approach: using the state constitution’s separate ban on “cruel or unusual” punishment.

Around the country, a growing number of state supreme courts have invoked similar antipunishment rights to expand protections for young people. The high courts in Michigan and Washington, for example, have banned mandatory life without parole for people who are age 18 or under 21, respectively, while this year the Massachusetts Supreme Judicial Court banned all LWOP—mandatory or not—for anyone under age 21. 

The California Supreme Court could have followed suit in the case of Diantay Powell—a now 30-year-old man who challenged a mandatory LWOP sentence imposed when he was 18—but it denied review. Dissenting from this denial, Justice Evans (joined by Justice Goodwin Liu) argued that California should join the state constitutional trend against excessive sentencing—citing both the mitigating attributes of youth and the racial disparities showing that life without parole in California is, at best, arbitrarily imposed. 

“Our state constitution’s prohibition against cruel or unusual punishment is distinct from the federal constitution’s prohibition against cruel and unusual,” Evans wrote, and that “distinction is purposeful and substantive.” This allows the court to not only go further than 8th Amendment case law but to flatly reject it. That’s especially important for claims based on racial disparities, which the U.S. Supreme Court made nearly impossible to bring in the infamous 1987 case McCleskey v. Kemp. While McCleskey demands evidence of purposeful discrimination behind a particular sentence, in California, “statistical evidence showing the imposition of mandatory LWOP sentences on emerging adults disparately impacts youth of color may demonstrate the sentence is arbitrary and capricious and thus ‘cruel or unusual,’” Evans wrote. And such evidence is plentiful: an astounding 86% of the 18 to 25 year olds serving life without parole in California are people of color.

Among other things, Evans’s dissent is a vital reminder that “cruelty” does not turn only on severity—it can also result from punishments that are arbitrary and discriminatory—and that punishment without a valid purpose is unconstitutional. 

More From The California Supreme Court: In a split decision, the court last month held that a new law designed to limit the prejudice of “gang enhancement” evidence does not apply retroactively. California’s 2021 STEP Forward Act requires courts to try gang-participation offenses separately from other counts; it also allows defense counsel to demand that any gang-enhancement charge be tried only after conviction on the underlying offense. According to legislative findings, bifurcating trials this way would mitigate the disproportionate impact of gang enhancements on people of color (nearly 90% of people in the state’s gang database are Black or Latino) and avoid unreliable and inflammatory evidence of gang-affiliation infecting unrelated charges. 

By restricting gang enhancements, the rule is, in practical effect, both a sentencing reform and an “ameliorative statute that by design and function is aimed at preventing” wrongful convictions—which means it is the sort of rule that courts generally apply retroactively. But here the majority said that the change is more to trial procedures than substantive sentencing factors.

Justice Evans, again joined by Justice Liu, dissented: “a statute which … provides a clear benefit to defendants on the question of guilt or innocence should apply in every case to which it constitutionally could apply,” she wrote. “It seems rather unlikely the Legislature would have been more concerned about the elusive line between statutes that are procedural and those that are substantive than whether the previous statutory regime may have led to the conviction of innocent people[.]” [Full Opinion | Courthouse News]

Slate Essay On The Remarkable History Of Illinois’s Antipunishment Clause

In a new essay for Slate, law professor Maria Hawilo and I explain how the unique and in some cases recent history of state antipunishment rights can be a “wellspring of progressive values.” We focus in particular on Illinois, which in 1970 adopted a clear mandate to imprison for the purpose of rehabilitating people and helping them return to society—not simply vengeance. Rather than banning “cruel and unusual” punishment, the Illinois constitution 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.”

As illuminating as the text, this provision was born of a racial justice movement against racist policing and incarceration—including deplorable prison conditions—with its epicenter in Chicago. It was in this context that civil rights activist Leonard Foster stood on the convention floor and offered a “new and distinctly modern provision to limit extremes in the state’s criminal legal system” that remains today. “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.” [Slate]

MORE: Read the full history of Illinois’s antipunishment clause, and what it means for contemporary sentencing practices, in a new law review article by Hawilo and Laura Nirider, Past, Prologue, & Constitutional Limits on Criminal Penalties, published in the Northwestern Journal of Criminal Law & Criminology. 

Iowa Supreme Court Affirms Broad Confrontation Rights As It “Jealously Guards” Power To Interpret State Constitution 

In State v. White, decided on June 28, the Iowa Supreme Court reaffirmed the state constitutional right to confront witnesses in criminal trials, holding that a one-way closed-circuit television system—one that allowed the accused to see witnesses testifying outside the courtroom but not the other way around—was insufficient to provide “face-to-face confrontation.” 

The holding departs from a 1990 U.S. Supreme Court decision that allowed a similar procedure under the federal Sixth Amendment’s right to confrontation. In departing, the court “emphasized that federal court opinions about the Federal Constitution do not dictate our interpretation of the Iowa Constitution,” and that it “jealously guard[s] our right to construe a provision of our state constitution differently than its federal counterpart.”

Applied to the confrontation right, the court said that while federal law grants only a preference for face-to-face confrontation—one that may be outweighed by statutory law or public policy concerns—the Iowa Constitution, as originally understood in 1857, guarantees face-to-face testimony.

New Jersey Supreme Court (Again) Shields Youth From Sex Offense Registration

With over 600,000 people in the U.S. listed on sex offender registries, registration laws are increasingly viewed as wildly overbroad and ineffective, more threatening than promoting public safety. That’s especially true when they are applied to children. Dozens of studies have shown that registering kids does nothing to reduce sexual violence, but instead needlessly subjects children to shame and ostracizing while blocking access to employment, education, and safe housing.

In 2018, the New Jersey Supreme Court struck down the state’s lifetime registration requirement as applied to children, holding that it violates the state constitution. Another section of the state’s registration statute—New Jersey’s version of “Megan’s Law”—requires even those people eligible for removal to wait at least 15 years. Last week the court held that, as a matter of statutory interpretation, that provision does not apply to children who were “adjudicated delinquent” in  family court rather than convicted in adult criminal court. In theory, the ruling allows children with sex offense adjudications to seek immediate removal from the registry, though the court cautioned that developing “a persuasive record of rehabilitation takes time,” and so “an application filed immediately after a person’s reporting obligation begins is unlikely to succeed.” [Full Opinion | The New Jersey Monitor]

Related: Under New York law, the “lowest risk” people with sex offense convictions must register for a term of 20 years. In a pair of June decisions, the New York Court of Appeals reached the bizarre holding that people in this category who relocate to New York cannot get credit for time registered as sex offenders in other states. The result is that people will have their registration time extended well beyond what even an already overly-draconian law deems necessary. Judges Jenny Rivera, Caitlin Halligan, and Chief Judge Rowan Wilson dissented. “The majority adopts a strained reading” of the statute that “leads to absurd and unjust results,” Rivera wrote. [Full Opinion]

Colorado Supreme Court Justices Advocate Abolishing Peremptory Strikes 

The Colorado supreme court last month reviewed two peremptory strikes—strikes that allow lawyers to exclude potential jurors for any or no reason at all—that prosecutors used against two nonwhite jurors. In one instance, the juror said that law enforcement had been disrespectful to her or those close to her based on race. In the other, the juror said that she had been the victim of racial profiling and worked on a policing reform campaign. In both cases, prosecutors said that they struck the jurors because they expressed distrust of, and thus were potentially biased against, police officers. 

On appeal, the main issue was whether the prosecutors’ explanation was “race neutral.” The court unanimously answered yes: “Although a juror’s bias may derive from her experiences as a person of color—that is, a juror’s experiences and biases may be closely linked to (or because of) her race or gender—that doesn’t convert the striking party’s reason for excusing her into a race- or gender-based reason.” As I have written before, while “being Black isn’t a valid reason to dispense with a juror,” living “the reality of being Black in America, or trying to do something about it, is, in many cases, fair game.” And so it is in Colorado.

But three justices concurred to lament the “inherent flaws” in the constitutional standard, set forth in Batson v. Kentucky, that allow this sort of backdoor discrimination. They noted reforms in other states such as California and Washington that render certain reasons for striking jurors, including “distrust of law enforcement,” presumptively invalid. But ultimately they suggested that banning peremptory strikes may be more effective than reforming them:

Given the inherent flaws with the Batson framework and the continued use of peremptory strikes to disproportionately remove people of color from juries, it may be time to consider new solutions. Perhaps, as Justice [Thurgood] Marshall opined in his concurrence in Batson, the only way to end racial discrimination in the jury-selection process is “by eliminating peremptory challenges entirely.”

[People v. Austin | People v. Johnson]

Scholarship Spotlight: Symposium On The New Mexico Civil Rights Act

The New Mexico Civil Rights Act (NMCRA), adopted in 2021, allows private civil suits for money damages when police officers, corrections officers, or other government officials violate state constitutional rights. Critically, the law eliminates “qualified immunity,” a judicially-created defense that defeats federal civil rights suits in all but the most egregious of cases. 

As part of a symposium, the New Mexico Law Review recently published a special issue on the NMCRA’s “meaning and application.” The full issue is worth reading, but I’d flag two articles that explain how the NMCRA should promote a robust and independent body of state constitutional law. Until now, New Mexico courts have typically deferred to federal precedent, even when deciding state constitutional claims. But a major theme of the symposium is that lawsuits vindicating state constitutional rights should force courts to rethink that approach, and recognize the independent legal authority of New Mexico’s Bill of Rights.

As the ACLU’s Matthew Segal explains, an avenue for civil damages means that state constitutional claims will be litigated, and “unlike in a qualified immunity system, wins and losses will hinge on the actual contours of the New Mexico Constitution[.]” That “should be good for the development of state constitutional law in New Mexico,” he argues, “and for the people who depend on it.” Meanwhile, civil rights lawyer Arne R. Leonard begins theorizing “a more inclusive and independent method of interpreting our state constitution”—one that is true to its “text, as well as the history, culture, values, and life experiences of the people who created it.” [Read The Issue]

• Vacancies & Elections: the South Carolina Supreme Court turns all-white

• The New Yorker Covers SLRI & The Movement To Expand Rights Through State Constitutions

• Wisconsin Supreme Court: “Judges, Lawyers, & Citizens” Must Develop State Constitutional Rights

• Washington Supreme Court Rejects Prosecutors’ Attempt To Gut Fair Sentencing Rights

• Cases To Watch: A felony murder challenge in Michigan moves forward; police officers ask New Hampshire Supreme Court to remove them from public misconduct list

Vacancies & Elections

• The South Carolina Supreme Court will no longer be the nation’s only all-male high court, but it will be all-white for the first time in 20 years after Chief Justice Don Beatty retires in August. Beatty has reached mandatory retirement age, which will make Justice John Kittredge the new Chief. To replace Kittredge, the state legislature yesterday elected former prosecutor and State Court of Appeals Judge Letitia Verdin.  

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The New Yorker Covers SLRI & The Movement To Expand Rights Through State Constitutions

In this week’s New Yorker, staff writer Eyal Press details the growing legal movement to expand rights through state constitutions while bypassing the reactionary and increasingly corrupt Supreme Court. State courts cannot weaken federal rights, but they can use state constitutions to amplify them, an idea that Justice William Brennan promoted when, in the 1970s, four Nixon appointees turned the Supreme Court into the staunchly rightwing institution it remains today. 

Importantly, the piece covers the cross-ideological appeal of modern state constitutionalism—involving, as it does, asserting independence from federal rulings—and the role that state courts play as innovative leaders and catalysts for change, building consensus that ultimately shapes federal constitutional law. These possibilities extend across myriad issues, Press explains, including voting rights, environmental protections, abortion, and due process in criminal prosecutions. It’s also true of rights against excessive criminal punishments, and the piece highlights the State Law Research Initiative’s advocacy along with a new Wyoming state challenge to death-in-prison sentences for emerging adults:

[Read The Full Article | Listen to Eyal Press on WNYC]

Wisconsin Supreme Court Justices: “Judges, Lawyers, & Citizens” Must Develop State Constitutional Rights

The Wisconsin Supreme Court last month upheld a statute that bars adoption by a parent’s non-marital partner, holding that it violates neither the federal Equal Protection Clause nor the state constitutional provision, Article 1, Section 1, that “all people are born equally free and independent” with “certain inherent rights.” But three justices—Rebecca Frank Dallet, Ann Walsh Bradley, and Janet Protasiewicz—argued that the state constitution should be read more broadly, and called on both litigants and judges to “break the … cycle” of leaving state constitutional law undeveloped:

“Notwithstanding the many reasons to interpret our state constitution differently than the federal Constitution, litigants often overlook state constitutional claims, or fail to develop them fully,” Dallet wrote in a concurrence. They acknowledged that state case law is relatively “sparse,” but argued that lawyers should view this blank slate as an “encouraging” opportunity: 

[Read the Full Opinion]

Washington Supreme Court Rejects Prosecutors’ Attempt To Gut Fair Sentencing Rights

In 2021, in a case called In re Monschke, the Washington Supreme Court ruled that its state constitution’s ban on “cruel” punishments prohibits mandatory life without parole sentences for anyone under age 21. Instead, emerging adults ages 18 to 20 are entitled to individualized sentencing determinations that consider “the mitigating qualities of youth”—qualities, the court found, that exist no less in emerging adults than they do in teenagers. 

But state prosecutors have worked to nullify the ruling, arguing that while young people with an unconstitutional mandatory LWOP sentence are entitled to resentencing, the only possible alternative is an indeterminate life sentence, a term that differs from LWOP only in that release on parole becomes a theoretical, albeit remote, possibility. 

Last month the Washington Supreme Court rejected this argument, recognizing that it would shatter In re Monschke’s guarantee of individualized sentencing that fully accounts for the role that youth played in someone’s offense and any evidence of rehabilitation since then. Instead, the court held, there is no minimum sentence that resentencing courts must impose. The consolidated cases, State v. Carter and State v. Reite, involved two people effectively resentenced to time-served for crimes committed decades ago and released from prison:

While both committed devastating crimes in their very young adult years, neither Carter nor Reite come before us as young people today, having both served decades in prison. Today, as adults in their 40s and 50s, both ask this court to affirm their determinate sentences, after the superior courts recognized at resentencing that they demonstrated an ability to transform through deep reflection, accountability, and a commitment to change during their decades in prison.

Prosecutors wanted both Carter and Reite returned to prison on life terms. In allowing them to remain free, the court explained that “the promise of individualized discretion cannot be illusory.”

“Carter and Reite have demonstrated a profound commitment to taking accountability for the harm they caused, actively growing as individuals, and empowering others with the tools to do the same,” Justice Raquel Montoya-Lewis wrote. “There was no error here.”

[Read The Full Opinion | More Coverage In The Seattle Times]

Cases To Watch:

• As we’ve covered, both the Pennsylvania and Colorado state supreme courts will soon decide if life without parole sentences for “felony murder” convictions—which apply to people who neither killed nor intended to kill anyone—violate their respective state constitutions. Now the Michigan Supreme Court will likely do so as well, as it recently asked for briefing on the question of  “whether, in the absence of evidence that the defendant acted with malice, mandatory life without parole for felony murder constitutes cruel and/or unusual punishment under” the state’s ban on cruel or unusual punishment. The case is State v. Langston. 

• In New Hampshire, the state supreme court recently heard arguments in several cases about the extent to which records of police misconduct are available to defense lawyers and the general public. In order to comply with constitutional obligations to disclose exculpatory evidence, state prosecutors maintain a list of police officers who have records of dishonesty and other misconduct—a list that now includes 266 officers. The court has already ruled that the list, known as the “Exculpatory Evidence Schedule,” is public record, and these new cases involve officers’ appeals to remove their names. The cases will clarify, among other questions, “whether off-the-job misconduct or relatively minor incidents justify putting an officer’s name on the list.”  [Boston Globe] 

See also Behind The Bench: Massachusetts Supreme Judicial Court rules that “internal affairs” records are off limits to prosecutors and defense lawyers

• SLRI launches new website & online resources

• Vacancies & Elections: Minnesota Supreme Court gets two public defenders

• Why Is “death different”? A Tale Of Two Briefs From California’s Attorney General

• Texas High Court Overturns Conviction Based On Rap Lyrics

• Statewide Prosecutor Association Can Work In Secret, New Jersey Supreme Court Rules

• Scholarship Spotlight: Can State Constitutions End Wealth-Based Pretrial Detention?

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New SLRI Website: The State Law Research Initiative (SLRI) is dedicated to reviving and strengthening state constitutional rights that prevent extremes in our criminal systems, with a focus on excessive prison terms and inhumane conditions of confinement. It also has a new website. At www.state-law-research.org you can now find:

• Key state constitutional cases and legal scholarship on state antipunishment clauses and how they limit (or should limit) excessive criminal punishments, all sortable by state and subtopic. Each case page includes a full summary. Coming Soon: legal briefs and templates, and a breakdown of the antipunishment clauses in each state constitution.

• SLRI’s Behind The Bench report on the professional background of every state supreme court justice in the country. This now includes not just the aggregate findings, but the entire database of justices that is sortable by professional background (you can isolate all former prosecutors or former public defenders, for example), and an interactive map with more details on each state (here’s California, for example).

• Finally, contact SLRI here with ideas, questions, or tips. Need assistance with state constitutional antipunishment claims? Have ideas for research projects? Do you have new opportunities to pursue state constitutional claims? Please reach out.

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Vacancies & Elections: 

• Minnesota Governor Tim Walz named two former public defenders to the state supreme court: “Court of Appeals Judge Theodora Gaïtas and Stearns County Chief Judge Sarah Hennesy will fill the seats held by retiring Justices Margaret Chutich and G. Barry Anderson, respectively. Hennesy will take her seat May 13, the Monday after Anderson steps down. Gaïtas will go on the bench Aug. 1, a day after Chutich departs.” [StarTribune] The appointments push back on a longstanding national trend: Among the nation’s nearly 350 state supreme court justices, prosecutors outnumber public defenders 4 to 1. [Behind The Bench] 

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Why Is “death different”? A Tale Of Two Briefs From California’s Attorney General

The U.S. Supreme Court insists that “death is different,” a distinction used to raise constitutional scrutiny in capital cases, and to ban, for example, mandatory death sentences and executing people with intellectual disabilities. But the principle has also been a backstop, an assurance to the “tough on crime” crowd that the Court will not go further, will not impose too much justice and start enforcing rights against massive prison terms and other forms of state-imposed misery, including torture. “In noncapital cases,” Prof. Rachel Barkow wrote, “the Court has done virtually nothing to ensure that the sentence is appropriate.” 

How entrenched is this concept? Consider Attorney General Rob Bonta’s filings in two recent cases before the California Supreme Court. 

Last month, the NAACP Legal Defense Fund and others challenged California’s death penalty based on the “persistent and pervasive racial disparities [that] infect [the state’s] death penalty system.” Bonta has previously acknowledged such disparities, and his initial response to the suit—which was filed directly in the state supreme court—agreed both that “racial discrimination in the administration of our criminal justice system is intolerable” and that the lawsuit’s allegations, based on empirical studies, “are profoundly disturbing.” Rather than oppose the suit, Bonta has rightly bolstered its credibility and urgency. 

But that wasn’t his approach when young adults serving life without the possibility of parole—a wildly disproportionate number of whom are Black—challenged their exclusion from “youth offender parole hearings.” 

In 2017, California changed its parole eligibility rules to include anyone under age 26 as a “youthful offender,” entitling emerging adults ages 18 to 25 to parole hearings that would consider both their youth and rehabilitation in prison. But there was an exception: people sentenced to life without the possibility of parole were ineligible; despite their youth, they remained consigned to die in prison. 

This exclusion bears no relation to culpability or public safety—young people sentenced to life with the chance of parole, and who benefit from the reform, include some convicted of first degree murder. Instead, as California ACLU affiliates argued, the exclusion so clearly embodies decades of racist policies that it reveals “an intent to trade on fear and animus of young men of color in exchange for political advantage.” About 86% of the 18 to 25 year olds serving life without parole in California are people of color—a disparity driven in part by prosecutors’ discretion to charge “special circumstances” in order to secure the most severe sentence. For example, “despite making up just 5% of the population, Black people comprise 43% of those sentenced under the felony-murder special circumstance,” according to the California Prosecutors Alliance. 

How did Bonta and his office respond to these claims? Despite the data showing wide racial disparities, and despite agreeing that the studies cited here “implicate the same considerations” as those in the death penalty challenge, he denied that the exclusion is race-based and said that the legislature deserved traditional deference in “defining crimes and specifying punishment.” In March, his argument prevailed in a divided state supreme court opinion issued over dissents from Justices Goodwin Liu and Kelli Evans, with Evans lamenting that the LWOP “exclusion bears the taint of racial prejudice and perpetuates extreme racial disparities plaguing our juvenile and criminal justice systems.” 

Faced with two challenges to extreme criminal punishments based on overwhelming racial disparities, California’s attorney general responded in two very different ways. The difference? “Death is a different kind of punishment from any other, both in terms of severity and finality,” Bonta wrote. That is true in some sense, of course. But it does not diminish the finality or the severity of life without the possibility of parole, and it cannot justify curtailing the constitutional rights—including the right to equal protection—of people who, instead of execution, are sentenced to death by incarceration. Replacing the death penalty with death in prison is not true progress.

Texas High Court Overturns Conviction Because Prosecutors Used Rap Lyrics As Evidence

The Texas Court of Criminal Appeals—a court loaded with former prosecutors that recently upheld a death sentence based on admittedly false evidence—ruled this week that admitting rap lyrics or videos that depict guns and drugs in criminal trials is highly prejudicial, in part because “by no means is rap the exclusive genre for glorification of criminal activity.” The court said that, “there is no question here that the introduction of Appellant’s rap videos encouraged the jury to convict him on the improper basis that he is a criminal generally or associates with criminals generally. This is because any song that glorifies criminality, regardless of genre, is inherently prejudicial.”

Statewide Prosecutor Association Can Work In Secret, New Jersey Supreme Court Rules

Prosecutors do not just enforce the law, they make it. Powerful associations of state and local prosecutors lobby lawmakers, engage in public advocacy campaigns, develop policy proposals, and file legal briefs, typically wielding their influence to advance a bigger and harsher criminal legal system. Nationwide, from 2015 through 2018, “state and local prosecutors were involved in more than 25% of all criminal-justice-related bills introduced in the 50 state legislatures,” according to a 2021 report by The Prosecutors and Politics Project at the UNC School of Law. “Prosecutors were nearly twice as likely to lobby in favor of a law that created a new crime or otherwise increased the scope of criminal law,” and when “prosecutors lobbied in favor of a bill, it was more than twice as likely to pass than an average bill.” 

In New Jersey, the ACLU argued that the County Prosecutors Association of New Jersey (CPANJ), which consists solely of the state’s 21 county prosecutors and receives only public funds, is a public agency that must comply with public records requests. The ACLU “asked for the records because of the powerful role the association plays in state criminal justice matters,” the New Jersey Monitor reported. CPANJ “meets monthly with the state Attorney General’s office to mull matters around the enforcement of the state’s crime laws,” and  it “has filed briefs weighing in [on] court cases with widespread impact, including the pandemic release of people in prisons and jails and the constitutionality of criminal statutes and searches and seizures.” 

Yet a divided New Jersey Supreme Court rejected the argument, allowing local prosecutors to continue their work in secret. Justices Rachel Wainer Apter and Michael Noriega dissented: “Public officials should not be permitted to hide behind organizational forms to utilize government resources to carry out government business in secrecy,” Wainer Apter wrote. And “county prosecutors’ offices should not be permitted to escape [public records laws] by labeling certain of their activities as occurring on behalf of CPANJ, rather than themselves.”

Scholarship Spotlight: Can State Constitutions End Wealth-Based Pretrial Detention?

A new paper from Jerry Edwards, a staff attorney at the ACLU of Florida, argues that an original understanding of state constitutions should prohibit prosecutors and judges from jailing people by setting unaffordable bail amounts. The article discusses Florida’s explicit right to pretrial release, adopted in 1982, and also presents a more general due process argument that he argues should be made in nearly every state. Here’s the abstract:

Debates are currently raging across the nation over the wisdom of bail reform and decarceration. Wealth-based detention, in particular, has proven a controversial issue. Attempts to end the practice through federal litigation have run into major roadblocks before conservative appellate courts. This essay seeks to move the conversation in a new direction—looking to state constitutions for inspiration. Using Florida as a case study, this essay lays out an originalist case for why wealth-based detention violates Florida’s right to pretrial release and Floridians’ due process rights. The due process analysis is particularly relevant to advocates in other states, as the rationale underlying it is widely applicable. State constitutions can be a potent weapon in the fight against wealth-based detention. It is time to put them to use.

• Vacancies & Elections: Progressive opposition to MA high court nominee; the MI Court of Appeals gets a public defender

• There Are Morally-Depraved 8th Amendment Cases To Ridicule, Too. State supreme court contempt for SCOTUS should include awful rulings on criminal punishments

• Cases To Watch: PA Supreme Court grants review in case challenging death-in-prison sentences; South Carolina Supreme Court hears arguments in firing squad case; former prosecutor Joe Deters, now on the Ohio Supreme Court, will decide his old case

• ICYMI: MA high court orders prosecutors to investigate and disclose police misconduct — but “internal affairs” records remain off limits

• And finally … New Mexico Supreme Court invokes the state Double Jeopardy Clause to bar retrial after prosecutor misconduct

Vacancies & Elections

• In Massachusetts, Gov. Maura Healy decided that her ex-girlfriend, a former Big Law partner who defended pharmaceutical companies, is the single “most qualified” person to serve on the state’s highest court. On February 7, she nominated Court of Appeals Judge Gabrielle Wolohojian to the remaining vacancy on the Supreme Judicial Court, prompting the Boston Globe to lament the “awful” optics and blatant conflict of interest: “it beggars belief to imagine that the judge has no ‘personal bias,’ positively or negatively, toward her ex—who is arguably a party in all manner of lawsuits involving state government.” 

• In Balls & Strikes, Molly Coleman points out that Healy tabbed yet another corporate lawyer for a court without a single former public defender or civil rights lawyer who spent their career advocating for working people. The pick sends “a clear message that the judicial nominations process isn’t actually about elevating the person most likely to advance justice, but about advancing those who serve corporate power and know the right people,” Coleman wrote. Whether Wolohojian takes the bench, though, depends on the The Governor’s Council, which must confirm high court nominees and is scheduled to consider the nomination on Wednesday. 

• Contrast Healy’s approach to that of Michigan Gov. Gretchen Whitmer, who last month appointed appellate public defender Adrienne Young to the state Court of Appeals (the state’s intermediate appellate court). As an appellate advocate who appeared before the Michigan Supreme Court, Young was integral to historic rulings that expanded state constitutional rights against excessive criminal punishments, including protecting young people from death-in-prison sentences. 

  See All State Supreme Court Vacancies

There Are Morally-Depraved 8th Amendment Cases To Ridicule, Too

In the last month, the state supreme courts in Pennsylvania and Hawaii rightfully made big, attention-grabbing shows of not just rejecting but openly mocking two widely despised U.S. Supreme Court decisions — they issued bold, clear-eyed opinions that drip with disdain for how the current Court prioritizes culture war posturing over serious constitutional analysis. 

On February 7, the Hawaii Supreme Court ridiculed the “history and tradition” behind the U.S. Supreme Court’s 2022 decision that effectively created a super-right to carry guns. “History by historians quickly debunked [the Supreme Court’s] history,” the court said. And more over, “it makes no sense for contemporary society to pledge allegiance to the founding era’s culture, realities, laws, and understanding of the Constitution.” The court added a quote from The Wire for good measure: “The thing about the old days, they the old days.” Though the Hawaii Constitution mirrors the Second Amendment, the court rejected a state constitutional right to carry firearms in public. Instead, it said, the “spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.”

Similarly, the Pennsylvania Supreme Court last month issued what Dahlia Lithwick and Mark Joseph Stern at Slate called a “devastating rebuke” of the U.S. Supreme Court’s Dobbs decision that erased the right to abortion:

The majority vehemently rejected Dobbs’ history-only analysis, noting that, until recently, “those interpreting the law” saw women “as not only having fewer legal rights than men but also as lesser human beings by design.” Justice David Wecht went even further: In an extraordinary concurrence, the justice recounted the historical use of abortion bans to repress women, condemned Alito’s error-ridden analysis, and repudiated the “antiquated and misogynistic notion that a woman has no say over what happens to her own body.”

At issue was Pennsylvania’s ban on Medicaid coverage for abortion, which the court found to be sex discrimination that “presumptively” violates the state constitution. 

In these cases, state constitutions provided legal grounding for state supreme courts to both express and act on outrage over the U.S. Supreme Court’s most morally-depraved and legally-flawed decisions. But state courts shouldn’t stop with guns and abortion, or with the most recent cases. The Court’s worst 8th Amendment cases should get similar treatment. 

Despite the “cruel and unusual” clause that should limit criminal punishments, the Court has rubber stamped even the most extreme and cruel-by-any-measure prison terms. Twenty-five years to life for stealing pizza? Decades in prison for stealing video tapes, golf clubs, or a few hundred dollars? Life without parole for drug possession? All upheld by the Supreme Court. This hands-off approach is, law professor Rachel Barkow wrote, “one of the worst judicial abrogations of constitutional rights in the country’s history,” and as a result there are now over 200,000 people who are effectively warehoused on life terms.

And while the Court has imposed some limits on capital punishment, it has also allowed states to torture people to death — condoning “the chemical equivalent of being burned at the stake,” and, most recently, death by “agonizing and painful” nitrogen gas asphyxiation. In fact, under current law, a method of execution can only be challenged if the person sentenced to die presents the state with an alternative method by which to be killed. 

These are repugnant rulings, and instead of citing them as reason to allow, say, 12 years in prison for bringing a cell phone into the county jail, state supreme courts should forcefully condemn and deride them, and invoke their state’s own anti-punishment clauses to reach different results. 

Cases To Watch

Big news from the Pennsylvania Supreme Court, which agreed to decide whether life without parole sentences in “felony murder” cases — that is, where someone neither killed nor intended to kill anyone — violate the state constitutional ban on “cruel” punishments. [JURIST | The Nation feature story | Docket]

I previously wrote of the pending petition:

In Pennsylvania, 70% of the more than 1,100 people serving life without parole for felony murder are Black. One of them, a man named Derek Lee, has petitioned the Pennsylvania Supreme Court to rule that his mandatory life (or “death-in-prison”) sentence for felony murder violates the state constitution’s ban on “cruel” punishments. Lee’s petition argues that Pennsylvania’s constitution must be construed both independently from and more broadly than the 8th Amendment, and that … under any standard, … the complete disconnect between felony murder and any legitimate penological purpose renders his life sentence unconstitutional. 

A similar case is pending before the Colorado Supreme Court, and dual rulings that bar death-in-prison sentences could not only save more than 1,000 lives, they would signal a new and growing willingness of courts to limit excessive prison terms. 

Related Scholarship: In the latest issue of the Penn Journal of Constitutional Law, lawyer Kevin Bendesky dives deep into the history of Pennsylvania’s anti-punishment clause, finding that it was born of Enlightenment Philosophy that prioritized — and even mandated — rehabilitation as the goal of criminal punishments. Moreover, Bendesky explains that Founding Pennsylvanians intentionally adopted an evolving standard, one subject to changing norms and scientific advancements on the efficacy of criminal punishments: “Evidence abounds that Pennsylvanians originally understood Section 13 to mean ‘cruel . . . for the age in question,’” he writes. “Revolutionary Pennsylvanians believed that ‘cruel’ punishments were those not necessary for rehabilitating offenders and deterring others according to contemporaneous morality and science.” [Read The Full Article]

While the U.S. Supreme Court has allowed execution by torture, the South Carolina Supreme Court will decide if executing people by firing squad or the electric chair violates the state constitution. In 2022, a state trial court struck down both methods as violating the state’s ban on “cruel,” “unusual,” or “corporal” punishments. “In 2021, South Carolina turned back the clock and became the only state in the country in which a person may be forced into the electric chair if he refuses to elect how he will die,” the court wrote. “In doing so, the General Assembly ignored advances in scientific research and evolving standards of humanity and decency.”

The state supreme court heard arguments in the state’s appeal on February 6. So far, state supreme courts in Georgia and Nebraska have held that electrocuting people to death violates their respective state constitutions. [Courthouse News (recap) | State Court Report (preview)]

The Ohio Supreme Court will again rule on the use of consecutive prison terms — addressing both trial courts’ discretion to impose them and appellate courts’ power to overturn them when excessive. In December 2022, before Chief Justice Maureen O’Connor retired, the court ordered trial courts to assess the need for consecutive sentences in the aggregate, and to ensure that the total sentence imposed is proportional to someone’s crimes and to sentences imposed for other offenses in the state. But last year a new conservative majority led by former prosecutor Joe Deters reversed that ruling, and upheld a de facto life term for a string of wholly nonviolent, small-time nursing home thefts. 

Last year’s ruling sparked controversy in part because the court redecided a case based only on a change in personnel, not the law. It was raw politics dressed up in legalese and judicial letterhead. But this time the optics are even worse. Deters did not recuse from the latest case, State v. Glover, even though he was the head prosecutor during Glover’s prosecution and was listed as counsel for the state when it opposed Glover’s appeal in a lower court — the very appeal now before him, and in which he may cast the deciding vote. 

In a statement, Deters said that he did not recuse because he “did not participate personally or substantially in [Glover’s prosecution] and did not express an opinion about it” while county prosecutor. [Docket | Courthouse News Ohio | Yahoo! News]

ICYMI: Massachusetts High Court Orders Prosecutors To Investigate & Disclose Police Misconduct

In 2020, the U.S. Department of Justice investigated the Springfield, Massachusetts police department and found that officers routinely falsified police reports and engaged in a “pattern or practice” of covering up excessive force. Such rampant dishonesty raised serious doubts about the evidence that the Hampden County District Attorney’s Office used to obtain convictions, and whether prosecutors had adequately disclosed information about discredited officers to defense lawyers and their clients. 

A lawsuit brought by the Committee for Public Counsel Services and the Hampden County Lawyers for Justice alleged that the damning pattern or practice report imposed affirmative duties on local prosecutors that they routinely failed to meet. On January 23, the Massachusetts Supreme Judicial Court agreed, citing both state rules of practice and the obligation to disclose exculpatory evidence under Brady v. Maryland to “reemphasiz[e] the importance of a prosecutor’s dual duties — to disclose and to investigate — in upholding the integrity of our criminal justice system.” And the court found that Hampden County prosecutors failed these duties in at least three ways: by disclosing findings of dishonesty only on a discretionary basis; withholding evidence of police misconduct when they did not know (and did not bother to investigate) which particular officer committed the misconduct; and failing to obtain all of the documents that had been reviewed by DOJ. 

The ruling may be the first to impose clear duties on prosecutors after a federal investigation into local police, and is a major win for due process that properly places the burden of identifying dishonest officers on the prosecutors who would rely on their testimony to send people to prison. 

Still, the court also affirmed precedent that conceals internal affairs records from prosecutors’ investigations into officer misconduct. In a 2015 law review article, Jonathan Abel identified such material as “Brady’s Blind Spot.” He argues that “critical impeachment evidence is routinely and systematically suppressed as a result of state laws and local policies that limit access to … personnel files,” and that such “privacy protections for police misconduct are incompatible with core aspects of the Brady doctrine.” In Massachusetts, it is now clear that  prosecutors have an affirmative duty to investigate and disclose police misconduct, including misconduct subject to a DOJ pattern or practice investigation. But the promise of Brady remains unfulfilled if some police misconduct remains buried in confidential personnel files. 

And finally . . . After prosecutor misconduct caused a mistrial, the New Mexico Supreme Court held that the state constitution’s Double Jeopardy Clause barred a second trial and ordered the trial court to “to vacate Defendant’s convictions and discharge Defendant from any further prosecution in this matter.” [State v. Amador]