Vacancies & Elections Roundup
- In Hawaii, three former public defenders are among the finalists to fill two vacancies on the state supreme court. Justices Paula Nakayama and Michael D. Wilson both retired in the spring, and now Governor Josh Green will name replacements by October 27. The finalists include Summer M. M. Kupau-Odo, a state district court judge who previously worked at Earthjustice and the state public defender’s office; Karen T. Nakasone, a state appellate court judge who worked for the State Office of the Public Defender; and Catherine H. Remigio, a state circuit court judge who was previously an O`ahu Deputy Public Defender. The governor’s office welcomes public comments on the finalists.
- ICYMI: Former prosecutors have taken seats on the state supreme courts in Connecticut and Missouri, while former civil rights lawyer and state appellate court Judge Allison Riggs is now on the North Carolina Supreme Court. Riggs replaced Democrat Michael Morgan who stepped down this year to run for governor. Riggs’s appointment does not change the court’s political balance (though she may prove to be more progressive than Morgan), and she must already stand for election next year.
Illinois Man Denied Parole More Than 30 Times Gets Relief Through State Constitution’s Anti-Punishment Clause
An Illinois appellate court in August used the state’s unique anti-punishment clause to rule that a man who was convicted and imprisoned decades ago must receive a new sentence. While just an intermediate appellate court decision, the analysis shows how state constitutions can check outdated sentencing practices and end-run intractable parole boards that ignore evidence of profound change and rehabilitation.
Injustice Watch has this summary:
A man imprisoned since 1976 in the shooting death of a Chicago police officer could be freed this year after an appellate court panel set aside his 200-year sentence as excessive and found his chances for parole were unfairly denied.
This decision comes after decades of failed appeals filed by attorneys of 65-year-old Ronnie Carrasquillo, who was 18 in 1976 when he fired into a gang-related melee and killed Chicago officer Terrence Loftus, who was in plain clothes and trying to break up the fight.
In its 27-page opinion [ ], the appellate court panel ruled Carrasquillo should be resentenced based on changing legal precedents regarding how youthful offenders are treated and how mitigating factors, such as prison rehabilitation, are considered in sentencing.
As a matter of state constitutional law, the opinion is noteworthy for at least three reasons:
First, it’s a reminder to mine the unique language of state constitutions. The court emphasized that the anti-punishment (or “proportionate penalties”) clause in Illinois’s state constitution sweeps far more broadly than the federal 8th Amendment’s ban on “cruel and unusual punishment,” in part due to its plain text: Section 11 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.”
To make this point, the court also invoked a 2021 dissent from Illinois Supreme Court Justice P. Scott Neville observing that “the proportionate penalties clause demands consideration of the defendant’s character” and that courts must “sentenc[e] a defendant with the objective of restoring the defendant to useful citizenship[.]” In other words, the singular focus on rehabilitation—largely absent from 8th Amendment jurisprudence—is not a hollow phrase, but a binding constitutional mandate. And Neville’s dissent was necessary not because the full court disagreed with the analysis, but because the court failed to analyze the state constitution at all—a not uncommon occurrence in the age of state courts seemingly forgetting that they are not bound by federal case law.
Second, the court recognized that mere parole eligibility is not the same as a meaningful opportunity for release. One issue was whether Mr. Carrasquillo has been effectively serving life without the possibility of parole. On that point, he alleged that he would never receive parole, no matter the extent of his rehabilitation, because he had killed a police officer. Indeed, the Parole Board’s chief legal counsel acknowledged that “a number of Chicago police officers attend Mr. Carrasquillo’s hearings before the Board” and that “attendees are permitted to stand and introduce themselves at hearings.”
In addition to the potential for police intimidation, the court found that the extreme 600-year sentence, though technically “parole eligible,” undercut any real chance for release. The court said that while Mr. Carasquillo was eligible for parole after
This willingness to scrutinize parole board decisions is essential to safeguarding constitutional rights against excessive sentences. In another example, the New Jersey Supreme Court held last year that a person repeatedly denied parole despite “remain[ing] infraction-free during the forty years he has been incarcerated, complet[ing] programs to address his behavior and substance abuse, attain[ing] a GED and vocational skills, and be[ing] found to be at low risk of recidivism by numerous evaluating psychologists” was entitled to a judicial hearing to show that he should be re-sentenced.
Third, and finally, it shows how building a factual record can be crucial to challenging excessive sentences. As a legal matter, the court asked whether Mr. Carrasquillo, who was 18 at the time of his offense, should receive the same protections against life without parole that are afforded to youths 17 and younger. And to answer that question, the court ordered a fact-finding hearing that allowed Mr. Carrasquillo to present evidence of his reduced culpability at the time of the shooting and his impressive rehabilitation since then. As a result, the court considered his extensive childhood trauma alongside his extraordinary contributions to his community and family (even from prison), and the prevailing science showing that, with regard to brain development, 18-year-olds have far more in common with younger teenagers than they do with full grown adults—all of which went completely “unrebutted by the state.”
As it turns out, our most vengeful criminal penalties don’t hold up under the light of evidence and serious constitutional scrutiny.
Lawsuit: Solitary Confinement & Other “Inhumane Consequences” Over Faulty Drug Tests Violate Washington State Constitution
The Washington State Department of Corrections (DOC) routinely relies on cheap, unreliable drug tests to impose severe sanctions inside prison walls, including extended solitary confinement, a new class action lawsuit alleges.
According to the state court complaint filed on September 22, the DOC swabs the incoming mail and other personal items of incarcerated people to test for illicit drugs, and that mere “presumptive positive” results lead to severe punishment. The inaccuracy of these initial results are noted by the tests’ manufacturer, which stresses the need for laboratory confirmation, and are so well-known to DOC staff that they openly joke about it and “sometimes test common items in their possession to see if they will test positive to amuse themselves.” In 2021, a Massachusetts court banned the use of similar tests after finding that the presumptive positive results were “only marginally better than a coin flip[.]”
Yet punishments over these dubious test results have included months in solitary confinement, delayed release dates, loss of access to programming and recreation, loss of mail and property, and loss of visitation with family and friends. One named plaintiff was placed in solitary for months while “awaiting a hearing on a ‘presumptive positive’ drug infraction for crossword, word search, and sudoku puzzle books sent to him by his elderly father and stepmother. While the allegedly drug-laced materials were later returned to him, his discipline was not overturned.”
The lawsuit alleges violations of Washington state’s anti-punishment clause, which prohibits “cruel punishment,” due process protections, and other causes of action.
[More Coverage from The Facts]
Divided Washington Supreme Court Holds That “Juvenile Strikes” Can Justify Mandatory Life Sentences
In recent years, the Washington Supreme Court has banned mandatory life without parole sentences for anyone under age 21, and all life without parole sentences (mandatory or otherwise) for anyone under age 18. Such draconian prison terms, the court said, are unconstitutionally “cruel.” And these decisions remain good law.
So it’s especially hard to make sense of the court’s 6-3 ruling in State v. Reynolds, which held that offenses committed before age 18 count toward the “three strikes” that trigger mandatory life sentences under the state’s “repeat offender law,” known as the Persistent Offenders Accountability Act (POAA). The only caveat is that such convictions must have come in adult court, but as Justice Helen Whitener (joined by Justices Mary Yu and Raquel Montoya-Lewis) pointed out in dissent, that hardly meets the well-established constitutional requirement to treat kids differently:
A juvenile charged and sentenced in adult court does not magically become an adult because of the venue in which the case is resolved. . . . A juvenile’s ‘lack of maturity and responsibility, their vulnerability to negative influences, and their transitory and developing character’ are traits that are inherently tied to a juvenile’s age and do not simply vanish if a juvenile’s case is transferred to adult court.
“Our court’s juvenile jurisprudence has already established that crimes committed by juveniles must be analyzed with respect to their age and must be analyzed differently from the same crimes committed by adults,” Whitener wrote, and so that same jurisprudence “requires us to hold that it is unconstitutional under article I, section 14 for sentencing courts to automatically weigh juvenile strikes the same as adult strikes for the purpose of imposing a mandatory LWOP sentence under the POAA.”
Also in Washington: the state supreme court upheld the governor’s pandemic eviction moratorium, citing emergency powers. The ruling comes alongside mounting data showing that reducing evictions and ensuring access to stable housing also promotes safer communities, with one recent Cornell study explaining that, “by destabilizing social ties and breaking down civic infrastructure, evictions can lead to rising crime and declining public safety.”
More from NPR affiliate KUOW:
In March 2020, during the early days of the Covid-19 pandemic, Washington Gov. Jay Inslee instituted a temporary moratorium to help prevent residential evictions. It was scheduled to last 30 days. Supporters of the move argued it was necessary to prevent a large-scale housing disruption during a health crisis. The measure was extended in various forms until October 2021. . . . In his majority opinion, Chief Justice Steven González wrote that without the moratorium, ‘up to 790,000 people in Washington would have been evicted from their homes during the pandemic.’
And Finally . . .
ProPublica has a report explaining how a recent Louisiana Supreme Court decision left the door open for prosecutors and defense attorneys to revisit and reduce excessive prison terms. While the split ruling struck down a law that allowed prosecutors to petition courts for resentencing without pointing to a specific legal defect (saying that it too closely resembled the governor’s unique pardon power), it also reiterated the wide avenues for relief that remain available:
In its ruling, the court spelled out the eight grounds on which district attorneys could reduce someone’s sentence through post-conviction plea agreements. Some of those are fairly narrow, including whether the sentence amounted to double jeopardy or the requirement that DNA testing provides “clear and convincing evidence” of innocence. Others are more general and create a wider lane through which an attorney could argue for someone’s freedom, such as proof that “the conviction was obtained in violation of the constitution of the United States or the state of Louisiana.”
Importantly, the justices added, when defense attorneys assert one of those grounds in seeking a sentence reduction, prosecutors have no obligation to demand evidence.