“Can State Supreme Courts Preserve — or Expand — Rights?”
The title of this post is the title of this very lengthy new New Yorker piece by Eyal Press. The subtitle highlights its themes: “With a lopsided conservative majority on the U.S. Supreme Court, progressive activists are seeking legal opportunities in state constitutions.” Though covering lots of legal areas, the article discusses Eighth Amendment issues at various points. Here is one excerpt of a piece worth reading in full:
Between sessions at the N.Y.U. symposium [on state constitutional law], I went to a café to meet Kyle Barry, an advocate who hopes that a similar pattern might play out in the movement for criminal-justice reform. Barry came to the conference from San Francisco, where he directs the State Law Research Initiative, a nonprofit organization whose mission is to limit extreme sentences and address inhumane prison conditions by strengthening state-constitutional rights. Criminal-justice scholars have traditionally framed mass incarceration as a national phenomenon driven by such harsh federal legislation as the 1994 crime bill. But, as the authors of a recent Iowa Law Review article note, “ninety percent of people confined in U.S. prisons are confined under state laws.” Given this, the authors ask why state courts have been “missing from the debate” about how to curb excessive punishment regimes.
Barry’s organization hopes to address this gap. He told me that state litigation was especially urgent because the Supreme Court has “completely abdicated” enforcing constitutional rights in the criminal-justice system, rubber-stamping extreme sentences that many other countries prohibit. In most of Europe, he noted, the sentence of life without parole is unheard of. In 2022, Canada’s Supreme Court ruled unanimously that such sentences were cruel and unconstitutional for offenders of any age. In the U.S., as of 2020, sixty thousand people were serving what Barry calls “death in prison” sentences — more than in the rest of the world combined. Although the Miller ruling forbade mandatory impositions of life without parole for juveniles, it didn’t ban them altogether. And a more recent Supreme Court opinion, Jones v. Mississippi, written by Justice Brett Kavanaugh, relieved judges of having to establish that a juvenile is “permanently incorrigible” before issuing such a sentence.
In a scathing op-ed in the Washington Post, the legal scholar John Pfaff argued that the Jones ruling demonstrated that America was willing “to throw lives away.” Yet Barry told me that he felt optimistic about the possibilities for state reform, naming Michigan, in addition to Washington, as a place where a high court had recently extended Miller to young adults. Lauren McLane, the law professor fighting to reduce the sentence of Christopher Hicks, joined us at the café, dressed in a gray University of Wyoming sweatshirt. McLane and Barry had first communicated a few weeks earlier, after she’d read comments that he’d made on a Listserv about Commonwealth v. Mattis, a case in which the Supreme Judicial Court of Massachusetts banned life without parole for “emerging adults” — defined as anyone between eighteen and twenty-one. The ruling, which was made in January, cited the ban on “cruel or unusual punishment” in the Massachusetts constitution, and also the principle that Eighth Amendment jurisprudence should be informed by “the evolving standards of decency that mark the progress of a maturing society” — a standard that the U.S. Supreme Court itself has endorsed.