Issue 10: Putting Extreme Sentences On Trial

February 11, 2023 By Kyle C. Barry

The ACLU Puts Capital Punishment On Trial—Are Other Extreme Sentences Next?

If the death penalty is racist, arbitrary, and does nothing to protect public safety, is it unconstitutional? That was the question before a Kansas trial court this week, in what the ACLU called an “unprecedented” fact-finding hearing about how capital punishment actually works in practice. 

The case involves Kyle Young, a Black man who faces the death penalty in Sedgwick County—a place that, according to expert testimony, reflects state and national disparities showing how the entire machinery of death—from charging decisions and jury selection through convictions and sentencing—discriminates against Black people (and not just those accused of murder, but victims and potential jurors as well). Before the trial court, Young’s lawyers offered evidence to support a number of state constitutional claims, including the “inviolate” right to an impartial jury, the right to jury service, and the state right to life and liberty. 

But here I want to focus on one claim in particular: That capital punishment as-applied in Kansas violates the state’s ban on “cruel or unusual punishment” (emphasis on the disjunctive) because it serves no legitimate state purpose, a penological failure not just in theory but in fact, one that can be proven with evidence.

Among other things, the “evolving standards of decency” test—still embraced by the U.S. Supreme Court in capital cases—asks courts to scrutinize the fit between a particular sentence and the purpose it is ostensibly designed to serve, whether that be deterrence or rehabilitation or separating a dangerous person from society. Some scholars have argued for heightened review, saying courts should apply “strict scrutiny” and uphold only punishments that are necessary to serve a “compelling,” not merely “legitimate,” state interest. But what’s clear already is that a punishment with no valid purpose is unconstitutionally cruel. 

And more than that, scrutinizing the fit between purpose and punishment, even in a cursory, “rational basis” sort of way, requires considering a host of fact-specific factors, some of which Kyle Young presented to a trial court. Such factors include culpability, both as to a particular person and the characteristics shared by groups of people. When the Supreme Court struck down mandatory juvenile life without parole, for example, it explained that the reduced culpability of youth, established by cognitive and behavioral research, “diminish[es] the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” 

They also include whether a punishment is applied arbitrarily or with pernicious bias. As a new paper on state constitutionalism and excessive punishment explains, “if a punishment is imposed very rarely relative to its availability as a potential punishment, or if there are marked racial or geographic disparities in how the punishment is imposed, it raises the inference that the punishment is not meaningfully serving a purpose of punishment that a less harsh sanction could not adequately fulfill.” Which is exactly the point raised in Sedgwick County—if capital punishment is rarely used and rigged against Black people, it looks a lot more like a last-gasp vestige of slavery than a vital tool of public safety. That discrimination, combined with capital punishment’s exorbitant cost and failure to deter crime, makes the punishment both cruel and unusual, Young argues. 

Given the fact-dependent analysis and the availability of empirical evidence to inform it, it’s odd that evidentiary hearings to challenge sentencing practices are not more common. Indeed, the same sort of evidence challenging capital punishment in Kansas could be marshaled against other draconian sentences that are discriminatory, fail to deter, waste public resources, and are disproportionately foisted upon people with intellectual disabilities and mental illness. Death may be different in some respects, but not in its failure to efficiently and fairly promote public safety, and not in its ability to inflict needless suffering.

Just considering racial discrimination alone, a variety of harsh sentencing practices drive massive disparities in our prison population, including mandatory minimums, “habitual offender” enhancements, and laws that allow prosecutors to charge kids as adults. Over half of people serving life without parole sentences are Black, and a shocking 80% of youth serving life sentences are people of color, according to 2017 data. In Massachusetts (to foreshadow the next newsletter item), Black youth ages 18 to 21 get life without parole sentences at sixteen times the rate of their white peers. These data suggest a punishment regime built to perpetuate systemic racism, not to achieve a legitimate—let alone necessary or compelling—policy goal. 

Yes, it is true that under prevailing 8th Amendment law non-capital (and non-juvenile LWOP) sentences generally get a judicial rubber stamp, as the U.S. Supreme Court “has utterly failed to police sentence length.” And even in capital cases there remains McCleskey v. Kemp, the morally bankrupt 1987 decision that shrugged off clear statistical evidence of racial bias. But that is the promise of state constitutionalism and state analogs to the 8th Amendment, many of which, including Kansas’s “cruel or unusual” clause, have their own distinct text and history and provide much stronger protections against excessive punishments. Across a growing number of states, including Arizona, Illinois, Delaware, North Carolina, and elsewhere, a new body of scholarship argues that particular state constitutions prioritize rehabilitation above all other penological goals and demand sentences tailored to that end whenever possible. 

And if that’s true, then the sort of evidentiary hearing held this week in Sedgwick County, Kansas should be the norm, not the rare exception, so that courts can meaningfully test the theories of punishment against the proven reality. 

[Read more on the Kansas litigation]

Too Young For A Rental Car, But Not A Life Sentence. Speaking of harsh sentences without a legitimate purpose, the Massachusetts Supreme Judicial Court this week heard arguments challenging life without parole sentences for emerging adults ages 18 to 21. Invoking the state constitution’s ban on “cruel or unusual” punishments, the court in 2013 previously banned all life without parole sentences (mandatory or otherwise) for youth under 18, and lawyers in the two cases argued this week asked the court to extend that ruling to emerging adults, noting that there is no “neurological bright line” between, say, a 17 year old and someone who turned 18 last month. Alternatively, the court could limit relief to a ban on mandatory LWOP, delegating to sentencing courts the impossible task of deciding how likely it is that a young person standing before them today will rehabilitate a decade or more in the future. 

A ruling that further limits LWOP would add to a national trend: Last year, the Michigan Supreme Court ruled that mandatory LWOP for 18 year olds is unconstitutional, and in 2021 the Washington Supreme Court banned mandatory LWOP for people 21 and younger. 

In urging the court to take action, the Boston Globe editorial board noted the failures of legislative reform as further reason for state courts to step in and curb the excesses of mass incarceration, while ensuring that criminal sentencing is grounded in empirical evidence: “the Supreme Judicial Court has become the last, best option for fixing a criminal justice system that cries out to have the law at long last follow the science when it comes to justly dealing with young offenders.”

[Read the MacArthur Justice amicus brief ]

North Carolina’s Republican Supreme Court Comes Out Swinging Against Voting Rights. This deserves more column inches than I have remaining, but the North Carolina Supreme Court’s new Republican majority, in power for only a month, has taken a predictably aggressive stance against equal voting rights and racial justice. Forget overruling precedent or using new cases to incrementally rollback rights, the court said this week that it would re-decide voting rights cases finalized just last year, including one that struck down the state’s voter ID law, for no apparent reason other than Republicans asked them to. In dissent, Justice Anita Earls called the maneuver a “power grab” that is “an affront to the jurisprudence of this State and to the citizens [that the court] has sworn an oath to serve impartially.” 

In addition, the court heard the appeal of a lower court order that restored voting rights to 56,000 people on probation or parole, allowing some of them to vote in the 2022 midterm election. As I wrote in a previous issue, the lower “court’s opinion both traced the racist origins of felony disenfranchisement (‘The goal of the felony disenfranchisement regime established in 1876 and 1877 . . . was to discriminate against and disenfranchise African American people’) and explained that later amendments did not erase the law’s racist designs (‘Even in the 1970s, people in North Carolina understood that maintaining felony disenfranchisement is one way of … keeping African-American people from voting.’)” As a result, the court found that denying voting rights to people under state supervision violates the state constitution. 

But during argument before the state supreme court, Bolts and NC Policy Watch reported that “the partisan shift loomed large,” with “the two new Republican associate justices, Trey Allen and Richard Dietz, each signal[ing] their skepticism toward the lower court ruling that expanded rights restoration,” and “their GOP colleagues hint[ing] that they largely shared this attitude.”

[More From North Carolina via NC Policy Watch: Racist jury strikes go on trial at the NC Supreme Court]

Vacancies & Elections

South Carolina Now Has The Nation’s Only All-Male Supreme Court. Just weeks after the South Carolina Supreme Court struck down a six-week abortion ban under the state constitution, the Republican-controlled legislature has replaced the court’s only woman with Republican Court of Appeals Judge Gary Hill. In South Carolina, state supreme court justices are first nominated by the state’s Judicial Merit Selection Commission and then elected by the state legislature. But this time, the two women in the race to replace retiring Chief Justice Kaye Hearn both dropped out before the election on February 9, leaving Hill as the lone candidate. 

Unsurprisingly, some lawmakers said the process was unfairly rigged. The Post & Courier reported

A Republican state senator from Charleston added drama to the S.C. Supreme Court election with allegations repeated this week that House Republicans effectively decided the race behind closed doors before it had even begun. . . . Sen. Sandy Senn said in a Jan. 25 floor speech and also in an email sent to constituents Jan. 30 that House Republicans held “alleged secretive” informal polls of the race before legislators were legally allowed to pledge their support to candidates. . . . She further charged the House members pressed to have both of the women in the race back out when it became clear in unofficial surveys they would not succeed against the lone male candidate, S.C. Court of Appeals Judge Gary Hill.

The Latest In New York’s Chief Judge Debacle. How wildly off the rails have things gone for Governor Kathy Hochul’s chief judge nominee Hector LaSalle? After a big loss in the Senate Judiciary Committee, a senate Republican is now suing for the right to vote on him.