NEWSLETTER & BLOG

A new ruling from the Michigan Supreme Court will free about 300 people from the sex offender registry. Beyond that, it further cements the Michigan Supreme Court as a national leader in building state antipunishment jurisprudence and expanding rights against extreme and needless punishments. And that trend should continue: There are at least seven cases pending on the court’s docket that raise claims under the “cruel or unusual” clause, all touching on a common theme: will the court further limit lifetime punishments that, contrary to the state’s long constitutional history, “forswear[] altogether the rehabilitative ideal”?

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.

In this week’s New Yorker, staff 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. 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.

Faced with two challenges to extreme criminal punishments based on overwhelming racial disparities, California’s attorney general responded in two very different ways. The difference? “Death is a different kind of punishment from any other, both in terms of severity and finality,” Bonta wrote. That is true in some sense, of course. But it does not diminish the finality or the severity of life without the possibility of parole, and it cannot justify curtailing the constitutional rights—including the right to equal protection—of people who, instead of execution, are sentenced to death by incarceration. Replacing the death penalty with death in prison is not true progress.

In Colorado, the state supreme court will soon decide to what extent recent reforms to the state’s so-called “habitual offender” sentencing law undermine the constitutionality of sentences previously imposed under that law. The court has already held that legislative changes toward leniency indicate critical “evolving standards of decency” under the state constitution, and it will now consider if that holding applies retroactively, to people whose cases are otherwise final.  But an amicus brief in that case shows that even more is at stake: Whether Colorado will continue to enforce prison sentences grounded in abhorrent eugenics theory, thereby endorsing methods of social control that are synonymous with Nazi Germany.

In the last month, the state supreme courts in Pennsylvania and Hawaii rightfully made big, attention-grabbing shows of not just rejecting but openly mocking two widely despised U.S. Supreme Court decisions on guns on abortion — they issued bold, clear-eyed opinions that drip with disdain for how the current Court prioritizes culture war posturing over serious constitutional analysis. But state courts shouldn’t stop with these issues, or with the most recent cases. The Court’s worst 8th Amendment cases should get similar treatment. 

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. 

This week’s New Yorker has a big story on the maddening injustice of “felony murder,” one of American criminal law’s cruelest features. Shattering norms of criminal liability, the felony murder rule punishes people for deaths that they neither caused nor intended to cause, but that in some way flowed from their actions, with the connection often tenuous to the point of nonexistent. But the article doesn’t mention the promise of state constitutions and state supreme courts, which have increasingly used their independent power to expand rights against excessive punishments. Currently at least two pending cases before state supreme courts — one in Pennsylvania and one in Colorado — challenge felony murder, and argue that life without parole sentences for felony murder violate state constitutional rights.

When New York Gov. Kathy Hochul elevated Court of Appeals Judge Rowan Wilson to be the court’s Chief Judge, it remained unclear if a new progressive majority would emerge — particularly on criminal justice issues. Wilson brought a solid record protecting individual rights as an Associate Judge, but the judge who took his seat — former state solicitor general Caitlin Halligan — was harder to predict. And as Bolts Magazine explained, “when it comes to the raw math on upcoming rulings, it’s Halligan who matters. Hers will be the new vote with the power to flip outcomes[.]” Seven months later, Halligan’s rulings show a significant break from the court’s recent history of favoring police and prosecutors.

When someone is sent to prison, their punishment, in any normal sense of the word, involves far more than “serving time.” Often one must also endure poor healthcare, lethal heat, dehumanizing abuse, rampant disease, filthy drinking water, and extended solitary confinement that amounts to torture. And convictions follow people long after their release. The so-called “collateral consequences” of criminal convictions can last a lifetime, excluding people from employment, housing, and voting, and in some cases include the added shame and exclusion of public criminal registration.  This reality of our criminal system—how prison conditions and other sanctions are inexorably intertwined with prison sentences—provides another basis for state supreme courts to depart from federal case law. As two forthcoming law review articles explain, the U.S. Supreme Court has—in ways ahistorical, illogical, and inconsistent—largely ignored this reality when answering two closely-related questions: What is “punishment”? And what is a criminal “sentence”?