Newsletter & Blog

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”?

An Illinois appellate court in August used the state’s unique anti-punishment clause to rule that a man who was convicted and imprisoned decades ago must receive a new sentence. While just an intermediate appellate court decision, the analysis shows how state constitutions can check outdated sentencing practices and end-run intractable parole boards that ignore evidence of profound change and rehabilitation. 

State supreme courts in Washington & Louisiana rollback criminal justice reforms; NJ appellate court kicks ‘junk science’ out of courtrooms; MN supreme court nixes “I smelled marijuana” justification for police to search cars; and WI & MI supreme courts shape eviction rules

In 2019, the Hawaii Supreme Court made a groundbreaking ruling that restricted police deception during interrogations: Falsely telling someone that they have failed a polygraph test, the court held, is inherently coercive and any resulting statements must be excluded from trial. This year, the Michigan Supreme Court could have adopted the Hawaii court’s reasoning and applied it more broadly to protect people—or at least young people—from the coercive force of police deception. But rather than break new ground under the state constitution, the court took a modest approach that followed federal footsteps. 

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.

The movement to end mass incarceration has pulled various levers of power, from backing reform candidates in local races for prosecutor, sheriff, and mayor, to pushing for statewide legislative change. This focus on the state and local makes sense — 90% of America’s prison population is confined under state and local laws or practices — but it also reveals a glaring absence from this list: state supreme courts and the powerful state constitutions over which they have final say.

Unable to obtain drugs for lethal injections, South Carolina in 2021 revived its electric chair as the default method of execution, while adding firing squad (with a quickly cobbled-together protocol from “the internet”) as another option. Last week, a South Carolina trial court struck down this scheme, finding that it violated the state constitution’s prohibition on excessive punishments. 

In a chilling display of dictatorial theatrics, Florida Governor Ron DeSantis last week made a spectacle of using felony disenfranchisement laws — always racist tools of voter suppression — to intimidate and criminalize potential voters. DeSantis touted the arrests for fraud of people whom election officials, including those in his own administration, had approved to vote despite their previous felony convictions (many people with felony convictions in Florida are in fact eligible voters). Under intense scrutiny, it has become increasingly clear that police, including a SWAT team in at least one case, had rounded up and caged bewildered voters for nothing more than their good-faith efforts to engage in democracy. 

But getting far less attention is a devastating Fifth Circuit Court of Appeals decision, dropped just days later, upholding the felony disenfranchisement provision in Mississippi’s state constitution — a law that, not even its defenders dispute, was originally designed to prevent Black people from voting. 

Police officers constantly ask courts for more power and less accountability. More power to search and surveil and even kill people, and immunity from any sort of consequence when they abuse that power. And for the most part, courts have complied. U.S. Supreme Court precedent warns lower courts not to second-guess police conduct from “the peace of a judge’s chambers,” and the judge-made doctrine of qualified — and in some cases even absolute — immunity makes suing law enforcement officers nearly impossible. 

But on Tuesday the Montana Supreme Court decided a different kind of police liability case, and, in allowing a lawsuit over police violence to move forward, sent the government a clear if subtle message: Be careful what you wish for. 

The Michigan Supreme Court closed its term last month with a string of major decisions that shield kids from long prison sentences while showing the power of state courts and state constitutions to curb extreme punishments