Issue 22: Michigan & Massachusetts High Courts Expand State Constitutional Limits On Life Sentences

March 29, 2024 By Kyle C. Barry

What You’ll Read

  • Vacancies & Elections: A new justice in Wyoming as abortion rights hang in the balance; Tennessee has three finalists for a state supreme court vacancy; two Minnesota justices announce retirement.
  • Massachusetts High Court Further Limits Life Without Parole Sentences & Orders New Trial Over Sleeping Defense Lawyer
  • Michigan Ruling Restricting LWOP Is Retroactive … with further limits looming
  • New York Chief Judge: The “Default Response” of Incarceration Threatens Public Safety
  • Utah Supreme Court: You Can Refuse To Give Cops Your Cell Phone Passcode
  • ICYMI: Will State Supreme Courts Ban Life Sentences For Felony Murder? 
  • And finally . . . an update on Montana’s landmark litigation using the state constitution to fight climate change

Vacancies & Elections

  • On the Wyoming Supreme Court, Gov. Mark Gordon appointed corporate litigator Robert Jarosh to replace Justice Keith Kautz, who will retire in March. The five-member court, all Republican-appointees, will likely soon decide whether and to what extent the state constitution protects abortion rights. 
  • In Tennesseethree state court judges are finalists to replace state supreme court Justice Roger Page, who will retire in August. They include two judges on the Tennessee Court of Criminal Appeals who are both former prosecutors, and a 39-year-old circuit judge, Mary Wagner, whose application notes her membership in the Federalist Society. 
  • Two Minnesota Supreme Court justices announced retirement: Justice Barry Anderson will retire in May, while Justice Margaret Chutich, the first openly-gay member of the court, will step down in July. Anderson is the court’s only Republican appointee, and filling these two vacancies will give Democratic Gov. Tim Walz four total appointees on the court. 

Massachusetts High Court Further Limits Life Without Parole Sentences & Orders New Trial Over Sleeping Defense Lawyer

In 2013, the Massachusetts Supreme Judicial Court became the nation’s first high court to ban all life without parole (or “death in prison”) sentences for youth under age 18, citing the state constitution’s ban on “cruel or unusual” punishments. The court made history again this month in a case called Commonwealth v. Mattis, when it extended that ruling to anyone under age 21. While the state supreme courts in Washington and Michigan have banned mandatory death-in-prison terms for people under 21 and age 18, respectively, Massachusetts is the first to also ban discretionary death-in-prison sentences for emerging adults. 

The Brennan Center’s State Court Report has full coverage, with related essays on how state constitutions can expand rights for children within the criminal legal system; the influence of international law in the court’s ruling; and what the court’s emphasis on “contemporary standards of decency” could mean for other state constitutional challenges to extreme prison terms. [State Court Report | Full Opinion]

In another decision involving Mattis’s 2013 trial, the court held that his co-defendant’s state constitutional rights were violated when his trial counsel slept during trial — including during the testimony of a key prosecution witness. In Commonwealth v. Watt, the court surveyed various cases deciding when sleeping during trial amounts to unconstitutional sleeping during trial, and settled on the relatively expansive holding that “a deprivation of counsel occurs when counsel sleeps for a significant portion of trial or sleeps through an important aspect of trial.” The order vacated Watt’s conviction and ordered a new trial. [Reuters | Full Opinion]

Michigan Ruling Restricting LWOP Is Retroactive. The Michigan Supreme Court’s 2022 state constitutional ruling that banned mandatory life without parole terms for 18 year olds applies retroactively, the state’s Court of Appeals held this week. The ruling requires resentencing for hundreds of people who are entitled to judicial consideration of how “the attributes of youth” demand greater leniency in their cases. [Full Opinion]

  • RELATED Case to watch: The Michigan Supreme Court could also soon decide if the state constitution bans all youth life without parole sentences — a result that would follow the same reached in MassachusettsIowaWashington, and New Jersey. The NAACP Legal Defense & Educational Fund, joined by Safe & Just Michigan, filed an amicus brief in the case, People v. Paredes, that focuses on “adultification bias” against children of color and argues that the state’s ban on “cruel or unusual” punishments prohibits such discriminatory sentencing. [Docket | Full LDF Brief]

New York Chief Judge: The “Default Response” of Incarceration Threatens Public Safety

The stark difference between New York’s former Chief Judge Janet DiFiore — a longtime prosecutor who led a pro-police, pro-prosecution voting bloc — and current Chief Judge Rowan Wilson — a progressive whose appointment reflects a hard-won advocacy win — continues to widen. 

Take Wilson’s recent concurrence in a case involving “two New Yorkers [who] got into a protracted argument about whether a jaywalker or a wrong-way cyclist was in the wrong.”  One of the people — the wrong-way cyclist — briefly stole the other’s phone, and then spent 13 months in pretrial detention and received a four-to-eight-year prison term.

Among other things, Wilson lamented how the criminal legal system threatens public safety with its “default response” of jails and prisons. “Treating incarceration as the default response to individuals convicted of low-level offenses has outsized deleterious consequences that, ultimately, make our communities less safe,” Wilson wrote. “[T]he cycle of incarceration further destabilizes these individuals; mental health treatment in prison is costlier than community-based treatment; individuals with mental illness are at greater risk of detention in prison and extended incarceration; prison mental health resources are often inadequate; and individuals living with mental illness face greater risk of harm and abuse while behind bars.”

Wilson closed by advocating restorative justice, and noting that “we need to build a system that better protects our society from antisocial behaviors by offering options superior to incarceration, both in effect and cost.” [Full Opinion]

Utah Supreme Court: You Can Refuse To Give Cops Your Cell Phone Passcode

The right to remain silent extends to your cell phone passcode, the Utah Supreme Court held last month. According to the ruling, the Fifth Amendment right against self-incrimination applies when police demand the code to unlock your phone, as “verbally providing a cell phone passcode is a testimonial communication.” As a result, prosecutors cannot cite the refusal to supply a code as evidence of guilt, just as they cannot invoke the accused’s decision to not testify at trial. Notably, the Illinois Supreme Court recently reached the opposite conclusion. [ABA Journal | Above The Law | EFF|  Full Opinion]

  • RELATED Case To Watch: On the topic of technology and privacy rights, the ACLU filed a brief in the Pennsylvania Supreme Court arguing that online search histories must be protected under both the Fourth Amendment and the Pennsylvania Constitution. The brief targets “reverse search” warrants, which allow police to search records relating to everyone who entered certain terms into a search engine during a given time period. Allowing such searches “would provide the police with unfettered access to the thoughts, feelings, concerns, and secrets of countless people, simply because they use the search engines that have become indispensable features of modern life to investigate those private matters,” the ACLU says. [Commonwealth v. Kurtz | Full Brief | Docket]

ICYMI: Will State Supreme Courts Ban Life Sentences For Felony Murder? 

The New Yorker recently told the story of a man serving life in prison for two killings that, no one disputes, he didn’t commit. Sadik Baxter was miles away and already in handcuffs when his accomplice in a string of car burglaries accidentally hit two cyclists as he fled from police, killing both. But under the so-called “felony murder” rule, Baxter’s lack of personal involvement didn’t matter. 

Baxter and his lawyers believe that his sentence is unconstitutionally excessive, and have challenged it in federal court as a violation of the 8th Amendment’s ban on “cruel and unusual punishment.” But in Colorado and Pennsylvania, two men who are similarly serving life in prison for killings they did not commit are pursuing excessive punishment claims in the state supreme court, and invoking their state constitutional rights. 

In a Special Edition newsletter, I wrote about why that distinction is so important — including how the U.S. Supreme Court has weakened 8th Amendment rights, and how state supreme courts should continue expanding state constitutional rights against excessive punishment and ban life without parole in felony murder cases. [Behind The Bench]

And finally . . . A non-criminal law note on one of the biggest state constitutional law stories of last year: A Montana court’s August ruling that enforced the state constitutional right to a “clean and healthful environment” and requires the state to consider climate change when approving fossil fuel projects. The case was reportedly the “first constitutional climate suit in U.S. history to make it to trial.” Last week, the state supreme court rejected state officials’ efforts to block — or “stay” — that ruling pending appeal. “The state high court ruling means Montana officials must ‘immediately comply’ with [the] order,” according to Mark Bellinger, an attorney who represented the 16 young plaintiffs who brought the case. [The Edwardsville Intelligencer | Full Opinion]