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August 10, 2023

Finding broader Eighth Amendment echoes from Fifth Circuit's ruling that lifetime felon disenfranchisement is unconstitutional

It has been quite an interesting month for interesting Fifth Circuit opinions, and I am still hoping to find some time to comment on the Circuit's split panel ruling last week in Hopkins, et al v. Hosemann, No. 19-60662 (5th Cir. Aug. 4, 2023) (available here).  But I have already seen that folks involved with The State Law Research Initiative have shares some thoughts on the ruling having broader Eighth Amendment echoes.  This newsletter commentary highlights its themes in its full title: "How Other Cruel Punishments Could Fall After Court Strikes Down Lifetime Voting Ban: The Fifth Circuit’s Analysis Marks An Historic Moment In 8th Amendment Jurisprudence With Big Implications For Criminal Sentencing."  I recommend folks check out the full commentary (with many links), but here is how it concludes:

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.

August 10, 2023 at 05:14 PM | Permalink


This is great analysis. I'm hopeful that Hopkins survives for the life that it breathes into what I'd assumed was more or less a decorative amendment, given the usual cruelty inherent in much of our punishment apparatus. It's also exciting in that it expressly recognizes the applicability of the Eighth Amendment and punishment analysis to so-called collateral consequences of convictions, and I can also see its applicability to "civil regulatory" measures like public conviction registries as well.

But I fear Hopkins has a bumpy road ahead.

Posted by: Guy Hamilton-Smith | Aug 12, 2023 8:19:35 AM

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