August 11, 2023
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. The 2-1 ruling is a massive win for democracy and racial justice and will, if it stands, restore voting rights for thousands of people.
The decision is remarkable not just for its outcome but how it got there. Faced with two distinct legal standards from the Supreme Court’s 8th Amendment case law, the court applied the far more powerful and exacting one—a decision that could have sweeping implications for the limits of criminal punishment set both by the 8th Amendment and state constitutions.
Mississippi adopted felony disenfranchisement in order to exclude Black people from voting. “Mississippi’s constitutional convention of 1890,” one of the law’s framers announced, “was held for no other purpose than to eliminate the n***er from politics.” So state delegates enacted a permanent voting ban for people convicted of certain felonies (along with other racist but “facially neutral” voter suppression tools, including a poll tax and so-called “literacy tests”), and listed only those felonies they believed Black people were more likely to commit (murder, for example, was not on the original list).
To find the ban “cruel and unusual,” the Fifth Circuit applied what is known as the “categorical approach” or “categorical framework.” This standard is responsive to evolving norms and practices, as well as to modern social science and other empirical evidence about the efficacy of harsh criminal punishments. It asks whether there is a growing consensus against challenged punishments, and, separately, whether punishments track with the culpability of those who receive them and serve legitimate penological goals. Roughly speaking, the first question goes to whether a particular punishment is “unusual,” and the second to whether it is “cruel.”
This stands in stark contrast to the “gross proportionality” standard. This test purportedly compares only the gravity of the offense to the severity of the punishment—an “eye for an eye” sort of analysis. But in practice it does even less; the Supreme Court has ruled that it is not “grossly disproportionate” to imprison people for decades over stolen video tapes or for mere drug possession.
So when does each test apply? According to the Supreme Court, the categorical approach applies when a “case implicates a particular type of [punishment] as it applies to an entire class of offenders who have committed a range of crimes.” And it has used this standard to strike down capital punishment for youth and others withreduced culpability, to ban life without parole sentences for youth convicted of non-homicide offenses, and to prohibit mandatory life without parole for all youth regardless of offense. In all these cases the Court imposed a “categorical” ban on certain severe punishments for certain categories of people. The toothless “gross proportionality” standard, on the other hand, has been reserved for adults who challenge their particular prison sentence.
The Fifth Circuit applied the categorical test for the straightforward reason that this case involved a particular type of punishment—permanent disenfranchisement—applied to “an entire class of offenders”—people convicted of crimes who have completed their sentences. Applying the two-part inquiry the court found, first, that:
In the last fifty years, a national consensus has emerged among the state legislatures against permanently disenfranchising those who have satisfied their judicially imposed sentences and thus repaid their debts to society. Today, thirty-five states plus the District of Columbia disavow the practice embodied in [Mississippi’s Constitution], a supermajority whose size is dispositive under controlling Supreme Court precedent.
[P]ermanent disenfranchisement serves no legitimate penological purpose. By severing former offenders from the body politic forever, [Mississippi’s voting ban] ensures that they will never be fully rehabilitated, continues to punish them beyond the term their culpability requires, and serves no protective function to society. It is thus a cruel and unusual punishment.
This is straightforward, yes, but also historic. Just last year, the Colorado Court of Appeals considered a challenge to life without parole sentences (a particular punishment) as applied to people convicted of “felony murder”—that is, people who neither intended to nor actually killed anyone (an entire class of incarcerated people). But the court refused to apply the categorical approach for one reason: “neither the Supreme Court nor, apparently, any other appellate court in the nation has applied the categorical analysis to cases not involving either the death penalty or juvenile offenders.”
Well, now one has.
In wresting free of “gross proportionality” in a voting rights case, the court echoed commentators who have urged courts to dump the test entirely. In the Iowa Law Review this year, Robert Smith, Emily Hughes, and Zoe Robinson argue that state supreme courts should always reject the gross proportionality test under state law, and “that the categorical ban framework is the approach that best fits with the power and responsibility of state courts interpreting their own constitution.” Prof. William Berry has suggested that the “categorical” label is a limiting misnomer, and that similar heightened review can and should work in individual cases, even without a broader “category” of “offenders.”
But even extending the test to categorical claims beyond capital and youth cases has major implications. In the Colorado case, for example, the reduced culpability of people who are serving life terms but did not intend to kill would be constitutionally relevant. As would the effects of severe mental illness, intellectual disability, and past trauma—all characteristics that go to culpability and could define classes of people seeking relief from extreme punishments. And in asking whether certain punishments serve a valid purpose, courts would have to consider the gaping racial and other disparities showing how harsh sentences are both discriminatory and arbitrary. Any number of sentencing practices, from life without parole to “habitual offender” enhancements, once rubber stamped after cursory review, would look constitutionally suspect.
Related Scholarship: The Neglected Anti-Punishment Clauses In State Constitutions
Two forthcoming law review articles explore the origins and meaning of anti-punishment clauses in Pennsylvania and North Carolina, respectively. The articles add to a growing body of scholarship and case law that reexamines long-neglected state analogs to the 8th Amendment.
In an essay for the Brennan Center’s State Court Report, the authors invoke both text and history to show that the state provisions provide far greater protections against extreme criminal punishments than the 8th Amendment, at least under current Supreme Court case law. Each provision, for example, can be traced back to Enlightenment theories that view rehabilitation and deterrence as the only acceptable goals of criminal punishments.
Taking these ideas seriously would mark a substantial break from federal Eighth Amendment precedent, which permits retributive punishments and is typically uninterested in scrutinizing how prison sentences serve legitimate state interests. And yet for most of the modern era, state courts in both Pennsylvania and North Carolina have ignored these distinctions to hold that their own antipunishment clauses are “coextensive” with, and do nothing more than, federal precedent.
In North Carolina, courts have sometimes misquoted the clause; the North Carolina Court of Appeals made this error just last year while treating the 8th Amendment and the state constitution as interchangeable. Meanwhile, the Pennsylvania Supreme Court has adhered to 8th Amendment case law because litigants have failed to “suggest that Pennsylvania’s history favors a broader proportionality rule than what is required by the United States Supreme Court.” Yet, as author Kevin Bendesky argues, the exact opposite is true: “The historical record should support, not suppress, a distinctly Pennsylvanian definition of cruelty.”
“[R]eviving the promise of state Eighth Amendment analogues should not be a partisan project,” the authors conclude. “Judicial conservatives who preach the primacy of text and history should welcome the reexamination of key constitutional provisions, especially when it means empowering state rights and protecting personal liberty. If they do, they’ll unearth deeply rooted constraints on excessive punishments that have lain dormant for decades.”
After Tennessee Supreme Court Ruling, State Officials Raise The Price Of Voting
Our last newsletter covered a Tennessee Supreme Court ruling that upheld the state’s pay-to-vote scheme for people with felony convictions. In that case, Tennessee denied voter registration to a man who had received clemency for an old conviction in Virginia. Clemency met one requirement to restore voting rights, officials said, but he also had to pay any outstanding court obligations, such as restitution. And the state supreme court agreed.
The court explicitly limited its ruling to people with out-of-state convictions, but Tennessee’s Republican Secretary of State has used it to further restrict rights for anyone who has been disenfranchised. The New York Times reports: “Tennessee has sharply restricted the conditions under which it will restore voting rights to people who have completed prison sentences for felonies, joining a growing list of Republican-controlled states that have rolled back access to the ballot by former felons.”
Before, Tennesseans could regain voting rights through an administrative process that, while Byzantine and rarely used, was at least automatic. But a July 21 letter from the state’s Coordinator of Elections announced a change: Now all formerly incarcerated people must also secure clemency from the governor or have their rights restored by a circuit judge. The new policy “puts Tennessee in a class with Virginia and Mississippi as the only states in which restoring voting rights is a matter of official discretion.”
It also makes voting more expensive. “It costs $159.50 to ask a judge for such an order in Davidson County, home to Nashville … adding another financial hurdle to what was already a nearly impassable process,” Daniel Nichanian wrote in Bolts Mag.
“The Tennessee elections division is anti-voter,” Blair Bowie, an attorney with the Campaign Legal Center, told the Times. “They’re just using every tool at their disposal to make sure people don’t have their voting rights.”
When Can State Officials Extend Terms Of Incarceration? The Washington & Ohio Supreme Courts Offer Opposing Views
The Washington Supreme Court last month ruled that the state “plainly violated” state law when it extended psychiatric holds in behavioral health treatment facilities. “Involuntary detention, even when done for the person’s own good, is a profound deprivation of liberty that the State may not impose without due process of law,” Chief Justice Steven González wrote in one of two 5-4 decisions, citing state constitutional rights. And “if the State seeks to involuntarily detain a person for more than a brief period of time, it must establish its case by clear, cogent, and convincing evidence and may be required to do so before a jury.”
In these cases, state hospitals held people up to a month beyond the court-authorized time, and then tried to remedy that violation by simply starting the cases over—following the more relaxed rules for emergency intakes. “We cannot allow the State to hold people without authority of law and avoid repercussions simply by starting a new case,” Justice Helen Whitener added.
The Ohio Supreme Court’s conservative majority took a weaker view of due process when it ruled, in a 5-2 opinion, that state corrections officials can extend incarceration terms beyond a presumptive release date based on certain rules violations. The case involved a state sentencing scheme that, for certain offenses, provides an “indefinite sentence consisting of a minimum and a maximum prison term.” The minimum term sets a person’s presumptive release date, but whether that holds is left entirely to the Department of Corrections—meaning that an entity with a direct institutional interest in perpetuating incarceration acts as the prosecutor, judge, and jury. Justices Jennifer Brunner and Michael Connelly dissented.
ICYMI: Illinois Supreme Court Upholds Bail Reform Law
Illinois will become the first state to abolish cash bail after the state supreme court last month upheld a landmark reform law. A legal challenge from sheriffs and prosecutors claimed that the law violated the state constitutional rights of crime victims. The Chicago Sun Times reports: “In its 5-2 ruling, the court said the state’s constitution ‘does not mandate that monetary bail is the only means to ensure criminal defendants appear for trials or the only means to protect the public. Our constitution creates a balance between the individual rights of defendants and the individual rights of crime victims. The Act’s pretrial release provisions set forth procedures commensurate with that balance.'”
As the court explained in its opinion, the reform law began with the court’s own Commission on Pretrial Practices, which in 2020 urged the state legislature to “ensure defendants are not denied liberty solely due to their inability to financially secure their release from custody.” Instead of holding people before trial because they cannot afford to buy their freedom, the law allows pretrial detention when prosecutors prove, and a court finds, that someone “poses a real and present threat to the safety of any person or persons or the community” or there is “a high likelihood of willful flight to avoid prosecution.” The new law takes effect in September.