Issue 1: Michigan’s Big Day Protecting Kids From Extreme Punishment

August 12, 2022 By Kyle C. Barry

The Michigan Supreme Court closed its term last month with a string of major decisions that shield kids from long prison sentences while showing the power of state courts and state constitutions to curb extreme punishments:

Perhaps the most significant is People v. Parks, which held that Michigan’s state constitutional ban on “cruel or unusual punishments” bars mandatory life without parole sentences for 18-year-olds. The U.S. Supreme Court had already ruled that mandatory LWOP cannot be used against juveniles — that is, for people convicted of crimes committed before they turn 18 — and Michigan’s high court used the state constitution to go further. 

The ruling adds to a growing trend of state supreme courts departing from federal case law and invoking their own state constitutions to put a check on harsh punishments against children, with other recent examples in North CarolinaNew JerseyWashington, and Iowa

With Parks, the court reaffirmed that Michigan’s constitution provides more protections than the federal 8th Amendment  — a proposition that prosecutors and the court’s conservative justices have been working to discredit. Among the reasons Michigan goes further: the obvious “textual differences between the state and federal Constitutions; a bar on punishments that are either cruel or unusual is necessarily broader than a bar on punishments that are both cruel and unusual.” (15 other states, it’s worth noting, share this disjunctive formulation.)

Chief Justice Bridget McCormack, a former public defender and co-founder of the Michigan Innocence Project, expanded on this in People v. Stovall, decided the same day. Responding directly to Republican Justice Brian Zahra, McCormack (again) defended the court’s rulings on cruel or unusual punishments while refuting, and even mocking, the claim that “originalism” is a neutral mode of judicial reasoning. Zahra said that he would “accept the prosecution’s invitation” to ditch decades of precedent and rule that Michigan’s constitution provides less protection than the 8th Amendment, all in the name of supposed “original meaning.” But his “premise that clear, unanimous original intent can be discerned and applied by judges with superhuman neutrality to resolve legal questions in cases like this is flawed,” McCormack wrote. She continued:

First, it assumes implausibly that there is such a thing as an original meaning and that it is identifiable. Second, the approach assumes, perhaps more heroically, that judicial efforts to discern “the” original meaning will not be impacted at all by judges’ own experiences, perspectives, and values. Finally, Justice Zahra’s approach eviscerates stare decisis, leaving judges even more room to channel their druthers.


Justice Zahra would apparently . . . overturn our longstanding doctrine applying [the state’s punishment clause] if four members of this Court, lacking historical training, divine that the ratifiers in 1963 had a unanimous and specific understanding of a prohibition against “cruel or unusual punishment” that was not to be applied over time and that did not include a prohibition against parolable life sentences for young people. Such new forms of judicial immodesty are likely to erode confidence in judicial neutrality.

Vacancies & Elections

Professional diversity in the Golden State. The California Supreme Court will get its first public defender justice in 36 years, as Governor Gavin Newsom on Wednesday nominated Kelli Evans to fill the vacancy created by Chief Justice Tani Cantil-Sakauye’s upcoming retirement. Newsom also named current Justice Patricia Guerrero to lead the court as its new chief, tabbing Evans to fill Guerroro’s seat. 

Evans, who has been a Superior Court Judge in Alameda County for the last year, will add professional diversity to a court heavy with former prosecutors. Evans served as a public defender in Sacramento County from 1995 to 1998, and was a lawyer at the ACLU of Northern California where she served as Associate Director from 2010 to 2013. She also spent three years in the Civil Rights Division of the U.S. Department of Justice. 

Evans will be the third Black justice and lone former public defender on the 7-member court, which, counting Cantil-Sakauye, has 4 former prosecutors. Both Guerrero and Evans must now be confirmed by the state’s Commission on Judicial Appointments. 

A pivotal vacancy in New York. New York Chief Judge Janet DiFiore is retiring at month’s end, giving Governor Kathy Hochul a pivotal vacancy to fill on a divided court (applications are due August 29, if you want in). Counting DiFiore, a former elected D.A. in Westchester County, the 7-member Court of Appeals has 4 prosecutors and 0 public defenders. In fact, the court has had only 2 public defenders in the last 50 years. 

As chief judge, DiFiore has ruled with a decidedly pro-prosecution and pro-police bent, while also working to shrink the court’s criminal caseload — even discouraging lower appellate judges from granting leave to appeal.

Over the last year, DiFiore led a conservative 4-judge bloc that formed when former Governor Cuomo appointed Nassau County D.A. Madeline Singas — a bloc that Gov. Hochul can now dismantle with a more progressive jurist. As Sam Mellins reported in July:
The Court of Appeals ruled on 98 cases in its most recent term, which ended last month. DiFiore, Cannataro, Garcia and Singas voted in tandem in 96 of those cases. On the seven-member court, a bloc of four that sticks together can dictate the outcome of every case.

In the past year, these four judges have used their power to prevent criminal defendants from presenting expert testimony supporting their innocence, bar workers from suing employers for workplace injuries, and make it harder for victims of police misconduct to sue for damages, among other rulings. All of them were nominated by former Gov. Andrew Cuomo and confirmed by the state Senate. 

Echoing recent rulings from the U.S. Supreme Court’s new conservative supermajority, Chief Judge DiFiore and her new bloc of associates are making New York law more friendly to law enforcement and powerful economic actors.

More in Vacancies & Elections

  • Governor Ron DeSantis last week named Federalist Society-member Renatha Francis to the Florida Supreme Court. She will replace Justice Alan Lawson on September 1. This is the second time that DeSantis has tried to elevate Francis, a lower court judge in Florida’s 15th Judicial Circuit, to the state’s highest court. In 2020, the state supreme court rejected Francis’s appointment because she had not yet been a member of the Florida Bar for 10 years, a state constitutional requirement. Francis will be the second Black woman to ever serve on the court. Prior to taking the bench in 2017, Francis was a career law clerk and briefly litigated in private practice.

State Constitutions In The News

In South Carolina, Kathryn Casteel reports in the Greenville News on a trial about whether the state’s new death penalty protocols, which set the electric chair as the default method of execution and provide the option of firing squad, violate the state constitution’s bar on “cruel,” “unusual,” or “corporal” punishments. “Even before the trial began, [the South Carolina Department of Corrections” was reluctant to share information about how the firing squad would work, and “when it comes to the electric chair, there also isn’t much clarity on the protocols,” Casteel wrote. The trial concluded after four days of testimony and a decision is expected in the next 30 days.