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March 2, 2005

More Roper thoughts and the development of state constitutional law

Not surprisingly, the blogsphere continues to buzz about the Supreme Court's decision in Roper yesterday (early blog buzz is linked here, my early comments are linked here).  Will Baude here at Crestcat Sententia shares some thoughts and also has links to the thoughts of many others.  I was particularly intrigued by Orin Kerr's "evolving standards of decency" analysis here and Eugene Volokh's state constitutional law insights here and here over at The Volokh Conspiracy.

I especially want to run with the state constitutional law idea because, in my view, it has been insufficiently discussed and litigated in the arena of criminal sentencing.  Interestingly, in the search and seizure context, states have often interpreted state constitutional provisions to provide broader protection to individuals than the Fourth Amendment provides, see generally Marc Miller & Ronald Wright, Criminal Procedures (2d ed 2003), sometimes because the language of the comparable state constitutional provision is broader, see generally Hawaii Const. Art. I, sec. 7 (safeguarding the right to be secure against "invasions of privacy"). 

But I have not seen too many interpretations of state constitutional provisions which provides a broader reading of, say, Eighth Amendment-type provisions as possible limits on non-capital criminal sentences.  Notably, more than a few states (including Texas) have a state constitution prohibition on "cruel OR unusual punishments" even though the federal constitution only bans "cruel AND unusual punishments."  But, unfortunately, despite severely long sentences in many states, we have not often seen state courts willing to develop a robust jurisprudence concerning the plausibly distinct protections provided by distinct state constitution prohibitions.

These issues seem especially ripe for development in the wake of Blakely and the mess the Supreme Court is making of the federal constitution's jury trial right.  Notably, some state constitutions (including Ohio's) provide that the right to trial by jury "shall be inviolate;" it strikes me that exceptions to the federal jury trial right created by Harris (for mandatory minimum judicial fact-finding) and Almendarez-Torres (for prior conviction judicial fact-finding) might be subject to challenge under such state constitutional provisions. 

I have seen brief mention of state constitutional claims in only one or two post-Blakely decisions, and I wonder if lawyers are even thinking to raise such claims on a regular basis as the Blakely fall-out gets litigated in the states.  Readers are highly encouraged to leave comments or send me e-mails with any notable past or present developments relating to sentencing and state constitutional law.

UPDATE: Ken Lammers from CrimLaw discussed state constitutional law and litigation realities here, and Jeralyn Merritt from TalkLeft was kind enough to provide this link with all the state constitutions.

March 2, 2005 at 01:35 PM | Permalink


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