Issue 11: Kansas Rulings Suggest Prison Terms & Felony Disenfranchisement Must Pass Strict Scrutinty

March 31, 2023 By Kyle C. Barry

State Supreme Court Vacancies Roundup

Kansas Rulings Suggest Prison Terms & Felony Disenfranchisement Must Pass Strict Scrutiny

The Kansas Court of Appeals ruled this month that because voting is a “fundamental” state constitutional right, any restrictions on voting must pass strict scrutiny—the most exacting form of constitutional review. As reported in the Kansas City Star, the opinion draws heavily from the state supreme court’s 2019 landmark decision upholding abortion rights under the state constitution.

“There is no question that the right to vote is a fundamental right protected by the Kansas Constitution,” the appeals court said, and “our Supreme Court has instructed that strict scrutiny applies when a fundamental right is implicated.” Noting the primacy and independence of state constitutions, the court specifically rejected the more relaxed federal standard for reviewing state election laws: “Federal courts must deal with the concept of comity— respecting the integrity of two court systems. State courts do not have to deal with that issue. The Kansas constitutional provisions are unique. The right to vote is a fundamental right. Strict scrutiny applies here.”

Under strict scrutiny, rights restrictions are upheld only if “narrowly tailored” to serve a “compelling” government interest. This particular case involves a series of new laws regulating how votes may be collected and counted (the court remanded so the trial court can review under the heightened standard). But the court’s analysis could be far-reaching. For one, the 2019 abortion ruling noted that “liberty” is also a fundamental right that is “obviously impair[ed]” by imprisonment. If that’s true (and it does indeed seem obvious) then prison terms should also be subject to strict scrutiny, requiring courts to ensure that criminal punishments serve “compelling” state interests and are no more severe than necessary. 

It also casts doubt on felony disenfranchisement. Kansas prohibits people with felony convictions from voting until they have completed their sentence, including probation or parole, and paying all their fines and restitution (if that last part sounds like a poll tax, it’s because it is). As a result, over 21,000 Kansans are barred from voting (more than a quarter of whom are Black), and many more are de facto disenfranchised because they are either unaware that their rights have been restored, or are unsure and fear the severe consequences of registering incorrectly. 

Legal challenges to felony disenfranchisement have often found rough sledding, but it’s hard to see how the practice could survive strict scrutiny. These restrictions are relics of Jim Crow and the backlash to Reconstruction, and still work primarily to disenfranchise Black voters (nationally, Black adults are disenfranchised at three times the rate of the general population; in seven states Black disenfranchisement rates exceed 15%). They also weaken democracy and undermine the goals of reducing crime and recidivism, by stripping people of their dignity and further alienating them from society

Last year, a North Carolina court found that strict scrutiny should apply to the state’s felony disenfranchisement laws, but also held that denying the franchise to people on probation or supervised release failed “strict or any scrutiny” (emphasis mine) because that serves no legitimate purpose at all. (The newly-Republican North Carolina Supreme Court may overturn this decision.)

Ultimately, felony disenfranchisement serves no real purpose other than to transfer political power from certain groups to others, and it does so in flagrantly discriminatory fashion. It’s a bleak truth that even the most ardent Heritage Foundation Legal Fellows would have trouble repackaging to survive strict scrutiny. 

The State Supreme Courts That Have Already Banned Acquitted-Conduct Sentencing 

It is shockingly common for American courts to impose longer prison terms based on alleged conduct that a jury says, via acquittal, was not proved. Someone may be convicted of, say, selling drugs but acquitted of conspiracy to sell drugs. But then the sentencing judge—unconstrained by the rules of evidence and other due process protections—will find that the conspiracy existed, the person was part of it, and use that as an aggravating factor to increase the sentence.

Such “acquitted-conduct sentencing” has has been called “Kafka-esque,” “repugnant,” “uniquely malevolent,” and “pernicious,” and condemned by judges and lawyers across the ideological spectrum. Among its conservative critics have been Clarence ThomasBrett Kavanaugh, and the late Antonin Scalia, who wrote that it violates the Sixth Amendment

Yet President Biden’s Department of Justice, led by Attorney General Merrick Garland, is urging the Court to deny a pending cert petition that challenges acquitted-conduct sentencing, and effectively allow it to continue. 

The government in McClinton v. United States has also been two-faced, according to a recent filing. While DOJ told the Court that new Sentencing Commission rules may obviate the need for judicial intervention, it turned around and told the Sentencing Commission that not only does DOJ oppose even partial reform, it disputes the Commission’s authority to enact it. Thus “even as the government urges th[e] Court that other mechanisms exist to” curtail acquitted-conduct sentencing, it is actively working to undermine those very mechanisms.

Both the petition (which has received considerable media coverage) and the latest filing are worth reading, though the latter makes one claim that’s not entirely correct: “[A]bsent this Court’s review,” the brief states, “there is no prospect of [acquitted-conduct sentencing] ending at the state level, which comprises the vast majority of criminal cases in the U.S.” The point, I take it, is that only the U.S. Supreme Court can issue a nationwide rule. But there’s still another proven path to state-level reform: State supreme courts. 

Two years ago, in a case called State v. Melvin, the New Jersey Supreme Court held that acquitted-conduct sentencing violates the state constitution’s rights to due process and a jury trial: “Fundamental fairness simply cannot let stand the perverse result of allowing in through the back door at sentencing conduct that the jury rejected at trial,” the court said. 

And with Melvin, the New Jersey high court became at least the fourth state supreme court to ban the practice through state constitutional law, following New Hampshire in State v. Cote (the presumption of innocence is “not to be forgotten after the acquitting jury has left, and sentencing has begun”); Hawaii in State v. Koch (holding that the circuit court had erred by assuming, in sentencing the defendant, that he “had engaged in unlawful conduct of which he had been expressly acquitted”); and Michigan in People v. Beck (“[o]nce acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime.”). 

Maryland Appellate Judge: Use State Constitution To Ban Racial Profiling In Traffic Stops

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. 

Last month, the Appellate Court of Maryland upheld a traffic stop based on Whren, but Judge Dan Friedman wrote separately to call for a different rule—one that explicitly rejects Whren and its reasoning—under Maryland’s state constitution. “Whren was wrong when it was decided in 1996,” Friedman wrote, “and remains both wrong and dangerous today.” 

Among other things, Friedman said that “Whren leads, almost inexorably, to discriminatory policing” and it “may create more and more adversarial interactions between law enforcement and the citizenry, which may in turn add to increased dangers to both groups.” Ultimately, Friedman said, the Supreme Court of Maryland should “adopt an independent interpretation of Article 26 of the Maryland Declaration of Rights, free from the malign influence of the Whren doctrine.”

Maryland’s Supreme Court would not be the first to do so. At least two state supreme courts have rejected Whren, using their own state constitutions to protect people from arbitrary and discriminatory policing: In State v. Ladson, decided in 1999, the Washington Supreme Court ruled that Washington citizens have “a constitutionally protected interest against warrantless traffic stops or seizures on a mere pretext to dispense with the warrant when the true reason for the seizure is not exempt from the warrant requirement.” Similarly, in State v. Ochoa, the New Mexico Court of Appeals held that “pretextual traffic stops are not constitutionally reasonable” —a holding later endorsed by the state supreme court.  

READ MORE: Tia L. Holmes, an appellate defender, covered Judge Friedman’s concurrence and Whren’s impact in Maryland for the Maryland Appellate Blog. Also, Judge Dan Friedman has authored significant scholarship on state constitutionalism and the Maryland Declaration of Rights