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July 10, 2018

Eager for a "51 Imperfect Solutions" approach to a new wave of constitutional proportionality litigation (with broadside Harmelin attacks, too)

9780190866044Not long after Justice Anthony Kennedy announced his retirement, I authored a post hoping to germinate an idea with criminal justice reformers and litigants: "With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers."  I am not especially optimistic that Judge Brett Kavanaugh, who has now been tapped as Justice Kennedy's replacement, will be chomping at the bit to reverse his old boss's troublesome Eighth Amendment work in Harmelin.  But I remain optimistic that a new generation of judges (including Chief Justice Roberts and Justice Gorsuch) may be significantly more open these days to "refreshing" an Eighth Amendment jurisprudence in order to put at least some limits on some extreme prison terms for some adult offenders.

With these thoughts swimming in my mental soup, an important new ingredient came to mind as a result of recent opportunities to talk with Sixth Circuit Judge Jeffrey Sutton about his terrific new Oxford University Press book titled "51 Imperfect Solutions: States and the Making of American Constitutional Law." Here is how the book is described by Oxford:

When we think of constitutional law, we invariably think of the United States Supreme Court and the federal court system.  Yet much of our constitutional law is not made at the federal level.  In 51 Imperfect Solutions, U.S. Court of Appeals Judge Jeffrey S. Sutton argues that American Constitutional Law should account for the role of the state courts and state constitutions, together with the federal courts and the federal constitution, in protecting individual liberties.

The book tells four stories that arise in four different areas of constitutional law: equal protection; criminal procedure; privacy; and free speech and free exercise of religion.  Traditional accounts of these bedrock debates about the relationship of the individual to the state focus on decisions of the United States Supreme Court.  But these explanations tell just part of the story.  The book corrects this omission by looking at each issue — and some others as well — through the lens of many constitutions, not one constitution; of many courts, not one court; and of all American judges, not federal or state judges.  Taken together, the stories reveal a remarkably complex, nuanced, ever-changing federalist system, one that ought to make lawyers and litigants pause before reflexively assuming that the United States Supreme Court alone has all of the answers to the most vexing constitutional questions.

If there is a central conviction of the book, it's that an underappreciation of state constitutional law has hurt state and federal law and has undermined the appropriate balance between state and federal courts in protecting individual liberty.  In trying to correct this imbalance, the book also offers several ideas for reform.

I recommend Judge Sutton's book to all serious legal thinkers (and not-so- serious ones, too), and I mentioned to Judge Sutton that I viewed proportionality litigation around the Eighth Amendment and its state analogues to be another area full of dynamic (though often disconcerting) stories about the role of the state courts and state constitutions in a jurisprudential dialogue with federal courts.  Indeed, as some reader may recall, a little over five years ago I worked with folks at National Association of Criminal Defense Lawyers (NACDL) to develop this 51 state resource in the form of a "collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences."

As states continue to work through the implications of Graham and Miller and Montgomery, I sense and surmise there is plenty of interesting constitutional litigation over the Eighth Amendment still on-going in state courts, and Judge Sutton's work has me wondering how much of that litigation also involves state constitutional proportionality claims pressed in addition to federal claims.  (A key theme in Judge Sutton's book is that lawyers always should, when available, be pressing state constitution claims on behalf of their client as well as federal claims.)  I know I am overdue on a pledge to be updating these NACDL state-by-state resources, and I would be especially eager to hear from any and all state defense lawyers about whether there has been considerable new proportionality jurisprudence in their jurisdictions in recent years.

As thew title of this post suggest, I think Judge Sutton's book can and should serve as a suggestion to all state criminal defense lawyers to keep pressing state constitutional claims.  Doing so could not only lead to important state-level rulings, but also provide still further ideas and energy to perhaps help the US Supreme Court see a reason to overrule or at least recast its ugly work in Harmelin.

July 10, 2018 at 12:45 PM | Permalink

Comments

How about pressing for state legislative claims, instead, and not trying to cut corners with lawless shortcuts?

Posted by: David Behar | Jul 10, 2018 4:16:58 PM

Doug, I'm puzzled by your comment about Justice Kennedy's "troublesome Eighth Amendment work in Harmelin." My recollection is that Kennedy wrote a concurring opinion in Harmelin, in which he articulated the three step test of analyzing as applied Eighth Amendment challenges, which was later adopted by the Court in Graham.

Posted by: bruce cunningham | Jul 11, 2018 8:01:51 AM

Bruce, the three step test for the Eighth Amendment was developed in Rummel/Solem, but Kennedy's concurrence reformulated the test to essentially ensure no defendant can get past the first step. This recent post provides a bit more background on how Harmelin nearly ensures adults lose any and every challenge to prison terms: http://sentencing.typepad.com/sentencing_law_and_policy/2018/07/with-justice-kennedy-retiring-overturning-harmelin-should-become-a-focal-point-for-criminal-justice-.html

Graham applied a "categorical" Eighth approach for juvenile offenders, which has helped ensure no other types if offenders get any real help from the decision. In a world of mass incarceration and lots of extreme prison sentences and extreme mandatory minimum terms, one would hope (and reasonably expect) the Eighth Amendment would be applied more robustly to prison terms. Harmelin, due to Kennedy's concurrence, has been the main reason that it hasn't.

Posted by: Doug B | Jul 11, 2018 9:30:05 AM

thanks for your response Doug. bruce

Posted by: bruce cunningham | Jul 11, 2018 9:36:03 AM

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