Issue 27: The Two California Justices Fighting Excessive Punishment

July 11, 2024 By Kyle C. Barry

What You’ll Read:

  • Vacancies & Appointments: Republican nominee will “maintain the [the New Jersey Supreme Court’s] current partisan balance”; last day to apply for an Alaska Supreme Court vacancy
  • California Supreme Court: two justices urge court to limit extreme punishments for young people; relief from racist gang enhancements won’t be retroactive
  • Illinois Constitution: Slate Essay On The Remarkable History of Illinois’s Antipunishment Clause
  • Iowa Supreme Court “Jealously Guards” Power To Interpret State Constitution
  • New Jersey Supreme Court (Again) Shields Youth From Sex Offense Registration
  • Three Colorado Supreme Court Justices Advocate Abolishing Peremptory Strikes
  • Scholarship Spotlight: Symposium On The New Mexico Civil Rights Act

Vacancies & Appointments:

  • The Alaska Judicial Council is accepting applications to replace Justice Peter Massen on the state supreme court. The Council will name finalists before Gov. Mike Dunleavy, a Republican, makes his fourth appointment to the court. Applications are due Tomorrow, July 12.

When Will The California Supreme Court Protect Young People From Extreme Punishments? Two Justices Urge Action

A divided California Supreme Court recently upheld life without parole sentences for young adults, despite evidence that such punishments “perpetuate[] extreme racial disparities in [the state’s] criminal and juvenile justice systems.” But that was an equal protection case, and Justice Kelli Evans, clearly frustrated by that result, used a recent dissent to suggest a different approach: using the state constitution’s separate ban on “cruel or unusual” punishment.

Around the country, a growing number of state supreme courts have invoked similar antipunishment rights to expand protections for young people. The high courts in Michigan and Washington, for example, have banned mandatory life without parole for people who are age 18 or under 21, respectively, while this year the Massachusetts Supreme Judicial Court banned all LWOP—mandatory or not—for anyone under age 21. 

The California Supreme Court could have followed suit in the case of Diantay Powell—a now 30-year-old man who challenged a mandatory LWOP sentence imposed when he was 18—but it denied review. Dissenting from this denial, Justice Evans (joined by Justice Goodwin Liu) argued that California should join the state constitutional trend against excessive sentencing—citing both the mitigating attributes of youth and the racial disparities showing that life without parole in California is, at best, arbitrarily imposed. 

“Our state constitution’s prohibition against cruel or unusual punishment is distinct from the federal constitution’s prohibition against cruel and unusual,” Evans wrote, and that “distinction is purposeful and substantive.” This allows the court to not only go further than 8th Amendment case law but to flatly reject it. That’s especially important for claims based on racial disparities, which the U.S. Supreme Court made nearly impossible to bring in the infamous 1987 case McCleskey v. KempWhile McCleskey demands evidence of purposeful discrimination behind a particular sentence, in California, “statistical evidence showing the imposition of mandatory LWOP sentences on emerging adults disparately impacts youth of color may demonstrate the sentence is arbitrary and capricious and thus ‘cruel or unusual,’” Evans wrote. And such evidence is plentiful: an astounding 86% of the 18 to 25 year olds serving life without parole in California are people of color.

Among other things, Evans’s dissent is a vital reminder that “cruelty” does not turn only on severity—it can also result from punishments that are arbitrary and discriminatory—and that punishment without a valid purpose is unconstitutional. 

More From The California Supreme Court: In a split decision, the court last month held that a new law designed to limit the prejudice of “gang enhancement” evidence does not apply retroactively. California’s 2021 STEP Forward Act requires courts to try gang-participation offenses separately from other counts; it also allows defense counsel to demand that any gang-enhancement charge be tried only after conviction on the underlying offense. According to legislative findings, bifurcating trials this way would mitigate the disproportionate impact of gang enhancements on people of color (nearly 90% of people in the state’s gang database are Black or Latino) and avoid unreliable and inflammatory evidence of gang-affiliation infecting unrelated charges. 

By restricting gang enhancements, the rule is, in practical effect, both a sentencing reform and an “ameliorative statute that by design and function is aimed at preventing” wrongful convictions—which means it is the sort of rule that courts generally apply retroactively. But here the majority said that the change is more to trial procedures than substantive sentencing factors.

Justice Evans, again joined by Justice Liu, dissented: “a statute which … provides a clear benefit to defendants on the question of guilt or innocence should apply in every case to which it constitutionally could apply,” she wrote. “It seems rather unlikely the Legislature would have been more concerned about the elusive line between statutes that are procedural and those that are substantive than whether the previous statutory regime may have led to the conviction of innocent people[.]” [Full Opinion | Courthouse News]

Slate Essay On The Remarkable History Of Illinois’s Antipunishment Clause

In a new essay for Slate, law professor Maria Hawilo and I explain how the unique and in some cases recent history of state antipunishment rights can be a “wellspring of progressive values.” We focus in particular on Illinois, which in 1970 adopted a clear mandate to imprison for the purpose of rehabilitating people and helping them return to society—not simply vengeance. Rather than banning “cruel and unusual” punishment, the Illinois constitution 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.”

As illuminating as the text, this provision was born of a racial justice movement against racist policing and incarceration—including deplorable prison conditions—with its epicenter in Chicago. It was in this context that civil rights activist Leonard Foster stood on the convention floor and offered a “new and distinctly modern provision to limit extremes in the state’s criminal legal system” that remains today. “In addition to looking to the act that the person committed,” Foster said, “we also should look at the person who committed the act and determine to what extent he can be restored to useful citizenship.” [Slate]

MORE: Read the full history of Illinois’s antipunishment clause, and what it means for contemporary sentencing practices, in a new law review article by Hawilo and Laura Nirider, Past, Prologue, & Constitutional Limits on Criminal Penalties, published in the Northwestern Journal of Criminal Law & Criminology. 

Iowa Supreme Court Affirms Broad Confrontation Rights As It “Jealously Guards” Power To Interpret State Constitution 

In State v. White, decided on June 28, the Iowa Supreme Court reaffirmed the state constitutional right to confront witnesses in criminal trials, holding that a one-way closed-circuit television system—one that allowed the accused to see witnesses testifying outside the courtroom but not the other way around—was insufficient to provide “face-to-face confrontation.” 

The holding departs from a 1990 U.S. Supreme Court decision that allowed a similar procedure under the federal Sixth Amendment’s right to confrontation. In departing, the court “emphasized that federal court opinions about the Federal Constitution do not dictate our interpretation of the Iowa Constitution,” and that it “jealously guard[s] our right to construe a provision of our state constitution differently than its federal counterpart.”

Applied to the confrontation right, the court said that while federal law grants only a preference for face-to-face confrontation—one that may be outweighed by statutory law or public policy concerns—the Iowa Constitution, as originally understood in 1857, guarantees face-to-face testimony.

New Jersey Supreme Court (Again) Shields Youth From Sex Offense Registration

With over 600,000 people in the U.S. listed on sex offender registries, registration laws are increasingly viewed as wildly overbroad and ineffective, more threatening than promoting public safety. That’s especially true when they are applied to children. Dozens of studies have shown that registering kids does nothing to reduce sexual violence, but instead needlessly subjects children to shame and ostracizing while blocking access to employment, education, and safe housing.

In 2018, the New Jersey Supreme Court struck down the state’s lifetime registration requirement as applied to children, holding that it violates the state constitution. Another section of the state’s registration statute—New Jersey’s version of “Megan’s Law”—requires even those people eligible for removal to wait at least 15 years. Last week the court held that, as a matter of statutory interpretation, that provision does not apply to children who were “adjudicated delinquent” in  family court rather than convicted in adult criminal court. In theory, the ruling allows children with sex offense adjudications to seek immediate removal from the registry, though the court cautioned that developing “a persuasive record of rehabilitation takes time,” and so “an application filed immediately after a person’s reporting obligation begins is unlikely to succeed.” [Full Opinion | The New Jersey Monitor]

Related: Under New York law, the “lowest risk” people with sex offense convictions must register for a term of 20 years. In a pair of June decisions, the New York Court of Appeals reached the bizarre holding that people in this category who relocate to New York cannot get credit for time registered as sex offenders in other states. The result is that people will have their registration time extended well beyond what even an already overly-draconian law deems necessary. Judges Jenny Rivera, Caitlin Halligan, and Chief Judge Rowan Wilson dissented. “The majority adopts a strained reading” of the statute that “leads to absurd and unjust results,” Rivera wrote. [Full Opinion]

Colorado Supreme Court Justices Advocate Abolishing Peremptory Strikes 

The Colorado supreme court last month reviewed two peremptory strikes—strikes that allow lawyers to exclude potential jurors for any or no reason at all—that prosecutors used against two nonwhite jurors. In one instance, the juror said that law enforcement had been disrespectful to her or those close to her based on race. In the other, the juror said that she had been the victim of racial profiling and worked on a policing reform campaign. In both cases, prosecutors said that they struck the jurors because they expressed distrust of, and thus were potentially biased against, police officers. 

On appeal, the main issue was whether the prosecutors’ explanation was “race neutral.” The court unanimously answered yes: “Although a juror’s bias may derive from her experiences as a person of color—that is, a juror’s experiences and biases may be closely linked to (or because of) her race or gender—that doesn’t convert the striking party’s reason for excusing her into a race- or gender-based reason.” As I have written before, while “being Black isn’t a valid reason to dispense with a juror,” living “the reality of being Black in America, or trying to do something about it, is, in many cases, fair game.” And so it is in Colorado.

But three justices concurred to lament the “inherent flaws” in the constitutional standard, set forth in Batson v. Kentucky, that allow this sort of backdoor discrimination. They noted reforms in other states such as California and Washington that render certain reasons for striking jurors, including “distrust of law enforcement,” presumptively invalid. But ultimately they suggested that banning peremptory strikes may be more effective than reforming them:

Given the inherent flaws with the Batson framework and the continued use of peremptory strikes to disproportionately remove people of color from juries, it may be time to consider new solutions. Perhaps, as Justice [Thurgood] Marshall opined in his concurrence in Batson, the only way to end racial discrimination in the jury-selection process is “by eliminating peremptory challenges entirely.”

[People v. Austin | People v. Johnson]

Scholarship Spotlight: Symposium On The New Mexico Civil Rights Act

The New Mexico Civil Rights Act (NMCRA), adopted in 2021, allows private civil suits for money damages when police officers, corrections officers, or other government officials violate state constitutional rights. Critically, the law eliminates “qualified immunity,” a judicially-created defense that defeats federal civil rights suits in all but the most egregious of cases. 

As part of a symposium, the New Mexico Law Review recently published a special issue on the NMCRA’s “meaning and application.” The full issue is worth reading, but I’d flag two articles that explain how the NMCRA should promote a robust and independent body of state constitutional law. Until now, New Mexico courts have typically deferred to federal precedent, even when deciding state constitutional claims. But a major theme of the symposium is that lawsuits vindicating state constitutional rights should force courts to rethink that approach, and recognize the independent legal authority of New Mexico’s Bill of Rights.

As the ACLU’s Matthew Segal explains, an avenue for civil damages means that state constitutional claims will be litigated, and “unlike in a qualified immunity system, wins and losses will hinge on the actual contours of the New Mexico Constitution[.]” That “should be good for the development of state constitutional law in New Mexico,” he argues, “and for the people who depend on it.” Meanwhile, civil rights lawyer Arne R. Leonard begins theorizing “a more inclusive and independent method of interpreting our state constitution”—one that is true to its “text, as well as the history, culture, values, and life experiences of the people who created it.” [Read The Issue]