Issue 26: SLRI Featured In New Yorker Story On State Constitutionalism

June 6, 2024 By Kyle C. Barry

What You’ll Read:

  • Vacancies & Elections: the South Carolina Supreme Court turns all-white
  • The New Yorker Covers SLRI & The Movement To Expand Rights Through State Constitutions
  • Wisconsin Supreme Court: “Judges, Lawyers, & Citizens” Must Develop State Constitutional Rights
  • Washington Supreme Court Rejects Prosecutors’ Attempt To Gut Fair Sentencing Rights
  • Cases To Watch: A felony murder challenge in Michigan moves forward; police officers ask New Hampshire Supreme Court to remove them from public misconduct list

Vacancies & Elections

The New Yorker Covers SLRI & The Movement To Expand Rights Through State Constitutions

In this week’s New Yorkerstaff writer Eyal Press details the growing legal movement to expand rights through state constitutions while bypassing the reactionary and increasingly corrupt Supreme Court. State courts cannot weaken federal rights, but they can use state constitutions to amplify them, an idea that Justice William Brennan promoted when, in the 1970s, four Nixon appointees turned the Supreme Court into the staunchly rightwing institution it remains today. 

Importantly, the piece covers the cross-ideological appeal of modern state constitutionalism—involving, as it does, asserting independence from federal rulings—and the role that state courts play as innovative leaders and catalysts for change, building consensus that ultimately shapes federal constitutional law. These possibilities extend across myriad issues, Press explains, including voting rights, environmental protections, abortion, and due process in criminal prosecutions. It’s also true of rights against excessive criminal punishments, and the piece highlights the State Law Research Initiative’s advocacy along with a new Wyoming state challenge to death-in-prison sentences for emerging adults:

[Read The Full Article | Listen to Eyal Press on WNYC]

Wisconsin Supreme Court Justices: “Judges, Lawyers, & Citizens” Must Develop State Constitutional Rights

The Wisconsin Supreme Court last month upheld a statute that bars adoption by a parent’s non-marital partner, holding that it violates neither the federal Equal Protection Clause nor the state constitutional provision, Article 1, Section 1, that “all people are born equally free and independent” with “certain inherent rights.” But three justices—Rebecca Frank Dallet, Ann Walsh Bradley, and Janet Protasiewicz—argued that the state constitution should be read more broadly, and called on both litigants and judges to “break the … cycle” of leaving state constitutional law undeveloped:

“Notwithstanding the many reasons to interpret our state constitution differently than the federal Constitution, litigants often overlook state constitutional claims, or fail to develop them fully,” Dallet wrote in a concurrence. They acknowledged that state case law is relatively “sparse,” but argued that lawyers should view this blank slate as an “encouraging” opportunity: 

[Read the Full Opinion]

Washington Supreme Court Rejects Prosecutors’ Attempt To Gut Fair Sentencing Rights

In 2021, in a case called In re Monschkethe Washington Supreme Court ruled that its state constitution’s ban on “cruel” punishments prohibits mandatory life without parole sentences for anyone under age 21. Instead, emerging adults ages 18 to 20 are entitled to individualized sentencing determinations that consider “the mitigating qualities of youth”—qualities, the court found, that exist no less in emerging adults than they do in teenagers. 

But state prosecutors have worked to nullify the ruling, arguing that while young people with an unconstitutional mandatory LWOP sentence are entitled to resentencing, the only possible alternative is an indeterminate life sentence, a term that differs from LWOP only in that release on parole becomes a theoretical, albeit remote, possibility. 

Last month the Washington Supreme Court rejected this argument, recognizing that it would shatter In re Monschke’s guarantee of individualized sentencing that fully accounts for the role that youth played in someone’s offense and any evidence of rehabilitation since then. Instead, the court held, there is no minimum sentence that resentencing courts must impose. The consolidated cases, State v. Carter and State v. Reite, involved two people effectively resentenced to time-served for crimes committed decades ago and released from prison:

While both committed devastating crimes in their very young adult years, neither Carter nor Reite come before us as young people today, having both served decades in prison. Today, as adults in their 40s and 50s, both ask this court to affirm their determinate sentences, after the superior courts recognized at resentencing that they demonstrated an ability to transform through deep reflection, accountability, and a commitment to change during their decades in prison.

Prosecutors wanted both Carter and Reite returned to prison on life terms. In allowing them to remain free, the court explained that “the promise of individualized discretion cannot be illusory.”

“Carter and Reite have demonstrated a profound commitment to taking accountability for the harm they caused, actively growing as individuals, and empowering others with the tools to do the same,” Justice Raquel Montoya-Lewis wrote. “There was no error here.”

[Read The Full Opinion | More Coverage In The Seattle Times]

Cases To Watch:

  • As we’ve covered, both the Pennsylvania and Colorado state supreme courts will soon decide if life without parole sentences for “felony murder” convictions—which apply to people who neither killed nor intended to kill anyone—violate their respective state constitutions. Now the Michigan Supreme Court will likely do so as well, as it recently asked for briefing on the question of  “whether, in the absence of evidence that the defendant acted with malice, mandatory life without parole for felony murder constitutes cruel and/or unusual punishment under” the state’s ban on cruel or unusual punishment. The case is State v. Langston
  • In New Hampshire, the state supreme court recently heard arguments in several cases about the extent to which records of police misconduct are available to defense lawyers and the general public. In order to comply with constitutional obligations to disclose exculpatory evidence, state prosecutors maintain a list of police officers who have records of dishonesty and other misconduct—a list that now includes 266 officers. The court has already ruled that the list, known as the “Exculpatory Evidence Schedule,” is public record, and these new cases involve officers’ appeals to remove their names. The cases will clarify, among other questions, “whether off-the-job misconduct or relatively minor incidents justify putting an officer’s name on the list.”  [Boston Globe

See also Behind The BenchMassachusetts Supreme Judicial Court rules that “internal affairs” records are off limits to prosecutors and defense lawyers