NEWSLETTER & BLOG

The Fifth Circuit Court of Appeals last week struck down Mississippi’s lifetime voting ban for people with felony convictions, finding that it is “cruel and unusual” punishment under the 8th Amendment. It's a remarkable decision not just for the outcome but how it got there: The Fifth Circuit’s Analysis marks an historic moment in 8th Amendment jurisprudence with sweeping implications for the constitutional limits of criminal punishments.

In a new essay for New York Magazine, law professors Lara Bazelon and James Forman, Jr. argue that progressives should respond to a reactionary Supreme Court by focusing on state courts “where they actually stand a chance.” It’s a call to action not just for lawyers looking to strengthen constitutional rights through litigation, but also organizers and activists who to this point have ignored state courts as a target for change: “Progressives must do with state courts what the right has already done with conservative judges: elevate liberal jurists who have principles, guts, and vision.”

The Alaska Court of Appeals this month issued the latest state constitutional ruling to protect children from excessive criminal punishments—doing so by explicitly rejecting the U.S. Supreme Court’s recent gutting of 8th Amendment protections. The case is just the latest example of how state constitutions can protect children and young adults from death-in-prison sentences, and shows how even state constitutions that track the 8th Amendment verbatim retain their independent meaning.

In its latest effort to root out racism in the criminal legal system, the Washington Supreme Court wields the state constitution to limit the role of police in transit fare enforcement. The ruling shows how Fourth Amendment analogs in state constitutions can curtail needless, discriminatory, and dangerous police encounters, and ultimately reduce our reliance on policing.

The Kansas Court of Appeals ruled this month that because voting is a “fundamental” state constitutional right, any restrictions on voting must pass strict scrutiny—the most exacting form of constitutional review. This particular case involves a series of new laws regulating how votes may be collected and counted, but the court’s analysis could be far-reaching. For one, the Kansas Supreme Court has also noted that “liberty” is a fundamental right that is “obviously impair[ed]” by imprisonment. If that’s true (and it does indeed seem obvious) then prison terms should also be subject to strict scrutiny. It also casts doubt on felony disenfranchisement, which serves no real purpose other than to transfer political power from certain groups to others, and it does so in flagrantly discriminatory fashion.

A Kansas trial court held a rare hearing to examine how the death penalty is a proven policy failure -- but the same sort of evidence challenging capital punishment could be marshaled against other draconian sentences that are discriminatory, fail to deter, waste public resources, and are disproportionately foisted upon people with intellectual disabilities and mental illness. Death may be different in some respects, but not in its failure to efficiently and fairly promote public safety, and not in its ability to inflict needless suffering. The sort of evidentiary hearing held this week in Sedgwick County, Kansas should be the norm, not the rare exception, so that courts can meaningfully test the theories of punishment against the proven reality. 

The State Law Research Initiative’s report on the professional diversity of state supreme court justices, Behind the Bench, now reflects justices newly elected in November and sworn in this month. It also reflects recent governor-appointees, including former prosecutor Joe Deters in Ohio; criminal justice reform advocate Kyra Harris Bolden in Michigan; and former public defender Bronson James in Oregon. As of today, 139 of the 348 active state supreme court justices in the U.S. are former prosecutors, while only 38 are former public defenders — that’s 40% v. 11%.

Hamilton County Prosecuting Attorney Joe Deters is not just another prosecutor but a distinctly reactionary one, someone who has embraced and advocated for some of the cruelest excesses of Ohio’s, and America’s, criminal legal systems. Adding him to the closely-divided court in place of retiring Chief Justice Maureen O'Connor, a swing vote, would instantly move the court to the right on criminal legal issues.

The 2022 elections were critical for state supreme courts, with partisan control at stake in several battleground states and the looming reality that, as the U.S. Supreme Court marches aggressively rightward, whether anyone besides gun owners and the Christian Right enjoys constitutional rights increasingly depends on state constitutions and how state courts apply them. There will be just one state supreme court election in 2023 (including retention elections, of which there are zero), but the stakes remain high. Partisan control of Wisconsin’s supreme court will turn on the election to replace retiring Republican Justice Patience Roggensack.

The idea that “finality” is what preserves the integrity of criminal convictions—and not, say, justice or fairness or accuracy—is a deeply unsettling axiom of federal law. The federal reports are littered with concerns about how expensive and laborious and time-consuming it would be if courts actually enforced the Constitution and protected innocent people from wrongful convictions. In theory at least, finality should be a lower priority in state appellate courts, where there is no pretense of respecting other niceties like “comity” or “federalism.” But it doesn’t always work that way.