June 2, 2023
Vacancies & Elections Roundup
- In Connecticut, Governor Ned Lamont’s state supreme court nominee withdrew from consideration due in part to concerns over her 2017 endorsement of then-law professor Amy Coney Barrett for the Seventh Circuit Court of Appeals. Sandra Slack Glover, who has been a federal prosecutor since 2004, clerked in the U.S. Supreme Court during the same term as Barrett, and joined a fellow law clerks’ letter that praised Barrett’s “respect for the law.” At the same time, the Leadership Conference on Civil and Human Rights warned that “Barrett’s statements and writings reveal a strong bias against reproductive freedom.” Barrett later joined the Supreme Court majority that overturned Roe v. Wade.
- The Delaware state senate this month confirmed both Christopher Griffiths and Abigail LeGrow to the state supreme court. Their backgrounds reflect Delaware’s reputation as the wellspring of corporate law: LeGrow was a corporate litigator before she was appointed to the state superior court, while Griffiths was previously a corporate lawyer and wealth manager.
- New Jersey governor Phil Murphy nominated immigration attorney Michael Noriega to fill the last remaining vacancy on the state supreme court. If confirmed, Noriega would be the court’s first ever former public defender, and would join four former prosecutors on the seven-member court.
- The November general election to replace former Pennsylvania chief justice Max Baer will feature Republican Carolyn Carluccio against Democrat Dan McCaffery. In the Republican primary, Carluccio defeated the only judge in America to side with Donald Trump and order the state to halt election certification in 2020 (the state supreme court quickly overturned that order). November’s winner will be the seventh member of the currently 4-2 Democratic court.
Decision Spotlight: Alaska Court of Appeals Joins State Court Movement To Protect Kids From Death-In-Prison Sentences
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.
Starting in 2005, when Justice Anthony Kennedy was still part of the Republican-appointed majority, the Supreme Court built a body of case law holding that kids must be punished differently from adults. It repeatedly emphasized the social and cognitive science showing how young people are inherently less culpable than adults—how they are more impulsive and more vulnerable to peer pressure while retaining greater capacity to change. When the Court decided Miller v. Alabama in 2012, and banned mandatory life without parole for youth, it explained that these factors “diminish] the penological justification for imposing the harshest sentences on juvenile offenders[,]” and require judges to consider how the attributes of youth “counsel against irrevocably sentencing them to a lifetime in prison.”
When the Court held in 2016 that Miller applied not just to new cases, but retroactively to sentences that had already been imposed, it pushed juvenile life without parole toward the brink of extinction. It not only limited such sentences to the “rare” child who is “permanently incorrigible,” it spurred a raft of reform legislation giving people the opportunity for release. As the Alaska Court of Appeals noted, “as a result of post-Miller legislative enactments, all juvenile offenders in at least 18 states and the District of Columbia are eligible for parole or resentencing after serving between 15 and 40 years.”
But in 2021, after Justices Kavanaugh and Barrett replaced Justices Kennedy and Ginsburg, the Court reversed course. In Jones v. Mississippi, the new conservative majority whittled Miller down to the bone. By ignoring much of the opinion, the Court said that Miller required only discretion: So long as judges have the option to impose less than a life term, there is no 8th Amendment violation. No requirement to consider the mitigating role of youth, and no need to make an actual finding—written or otherwise—explaining why what should be a rare, almost unheard-of punishment is necessary in a particular case.
To dull the depravity of its decision, the Court stressed—as it often does while refusing to enforce constitutional rights—that individual states are free to take a different approach.
The Alaska Court of Appeals did exactly that on May 12 when it rejected Jones, and revived the promise of Miller, under the Alaska State Constitution.
In Fletcher v. State of Alaska, a woman serving 135 years for crimes committed at age 14 challenged her sentence under both the state and federal constitutions. Applying Alaska’s own “cruel and unusual” clause, the court held that “the constitutional principles underlying Miller apply to discretionary life without parole sentences,” including terms of years so long they are de facto LWOP. It ordered courts to both “affirmatively consider” youth as a mitigating factor and to justify any life sentence with “an on-the-record sentencing explanation” as to why “the juvenile offender is one of the ‘rare’ juvenile offenders ‘whose crime reflects irreparable corruption.””
And when does a long sentence become a life without parole sentence? Noting that a chance at “geriatric” release is hardly the “meaningful opportunity” to build a life outside prison that Miller promised, the court concluded that “a sentence that allows an opportunity for release only after 45 years is a de facto life without parole sentence” that requires Miller’s protections.
The case is just the latest example of how state constitutions can protect children and young adults from death-in-prison sentences and other extreme punishments. As Fletcher details, state courts have helped drive a growing national consensus toward greater leniency for young people. Other courts have, for example, banned juvenile life without parole entirely; banned all mandatory minimum sentences for youth; ordered resentencing for kids who have served 20 years; recognized a constitutional right to counsel at parole hearings; and required resentencing for youth who have been repeatedly denied parole. Courts have also extended protections to young adults.
Fletcher also shows how even state constitutions that track the 8th Amendment verbatim retain their independent meaning. In addition to the text banning “cruel and unusual” punishments, the court relied on Alaska’s “robust tradition of independent state constitutional analysis,” as well as its “strong tradition of requiring on-the-record sentencing explanations to ensure that sentences are imposed constitutionally and in accordance with Alaska law.” It also noted the relevance of related state constitutional provisions, including the clause that requires “penal administration . . . based on the principle of reformation and upon the need for protecting the public.” As recent scholarship has explored, these are just some of the state-specific factors that can inform the meaning of state analogs to the 8th Amendment.
Read the full opinion: Fletcher v. State of Alaska
Decision Spotlight: Massachusetts Supreme Judicial Court Expands Protections Against Discriminatory Policing
In 2020, the Supreme Judicial Court of Massachusetts eased the burden on people stopped by police to show discriminatory enforcement. In Commonwealth v. Long, the court recognized that existing standards under both state and federal law left equal protection claims too difficult if not impossible to prove. Among other problems, they require people to prove a negative: that similarly situated members of different racial groups could have been but were not targeted for enforcement. Under this bar, the court said, “the right of drivers to be free from racial profiling will remain illusory unless and until it is supported by a workable remedy.” In response, the court crafted a relatively relaxed standard that requires people to establish only a “reasonable inference” of discrimination before the state must prove that enforcement was based on race-neutral reasons.
This month, in Commonwealth v. Robinson-Van Rader, the court clarified that the same test applies not just to traffic stops but to all selective enforcement claims, including those involving pedestrian stops. And it reaffirmed that the initial inference of discrimination can be based on statistical evidence, such as “patterns of enforcement actions by the particular officer[s]” involved.
Related: While Long and Robison-Van Rader involved equal protection claims, other state courts and judges have recently invoked the 4th Amendment analogs in state constitutions–that is, the state constitutional right to be free from unreasonable searches and seizures–to root out discriminatory policing. In Washington, the state supreme court cited racial bias to limit police authority to conduct fare enforcement on public transit; while in Maryland, an appellate judge called federal 4th Amendment case law “wrong and dangerous” and called on the state supreme court to reject it.
State Constitutions In The News
Oregon court invokes “unnecessary rigor” to order gender-affirming care. The Oregonian reports:
A Marion County Circuit Court judge this month ordered the Oregon Department of Corrections to immediately provide gender-affirming care to an incarcerated transgender woman who alleged she had been denied such care while in custody at Snake River Correctional Institution. . . . In the latest case, Senior Judge Cheryl Pellegrini found the state violated a clause of the Oregon Constitution that prohibits officials from treating people in custody with ‘unnecessary rigor.’ Oregon is one of five states with such a constitutional guarantee prohibiting prisons and jails from making their environments more dangerous through their own practices or policies.
Related Context: Kathrina Szymborski Wolfkot, an appellate attorney with the MacArthur Justice Center, has this recent essay on “unnecessary rigor” clauses in state constitutions. She wrote that of the five states with such clauses, Oregon and Utah have the most developed case law, and agree that the clause provides more protection than the federal 8th Amendment—which, as applied by federal courts, allows abhorrent conditions and even torture to persist behind bars. In Oregon, courts found that inadequate protections against COVID 19 violated the clause, and that the “unnecessary rigor clause . . . offers an avenue to redress the very real harms that incarcerated people can experience even in the absence of physical injury—a mechanism that federal law lacks.”