Plus: Limits of the line-item veto


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This week I’m turning over the newsletter to State Court Report Managing Editor Kathrina Szymborski Wolfkot, who writes about opportunities for state courts to improve conditions in prisons.

—Alicia Bannon

The Eighth Amendment’s ban on cruel and unusual punishment requires that incarcerated people be held in humane living conditions. In practice, however, federal courts sometimes permit deeply troubling conditions behind bars. One federal appellate court found

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no Eighth Amendment violation where a man was held in solitary confinement for years without a single hour of exercise. Another dismissed

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claims against a correctional officer who allegedly trapped an elderly man in a backed-up shower containing feces and urine for up to 40 minutes. (Full disclosure: I was part of a team that represented both these plaintiffs in my past life as an appellate attorney at the MacArthur Justice Center

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.) The list of constitutionally permissible mistreatment goes on

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and on

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Weak federal protections present an opportunity

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for state supreme courts to apply their states’ bans on cruel punishment to prison conditions. Yet few have done so, even though the issue is increasingly a matter of public discussion

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State high courts have not hesitated to use their Eighth Amendment analogues in other contexts. At least a dozen have found that their cruel and/or unusual punishment clauses offer broader protections

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against excessive prison sentences than the federal Eighth Amendment. And state constitutional excessive sentencing litigation is gaining momentum: at least five cases currently pending in Michigan alone ask the state high court to expand sentencing protections under the state’s bar on cruel or unusual punishments.

I have some guesses as to why there is comparatively little state prison conditions litigation. First, some federal courts help

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people who can’t afford lawyers to find pro bono counsel — a huge draw for incarcerated plaintiffs. Litigants in civil rights cases are not guaranteed lawyers, as they are in criminal matters. The importance of legal representation cannot be overstated. Professor Joanna Schwartz of UCLA Law School found

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that represented civil rights plaintiffs succeeded 70 percent of the time, while fewer than 17 percent of those bringing similar claims without counsel prevailed.

Second, federal law entitles

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a winning civil rights plaintiff to legal fees, which increases the likelihood of finding counsel absent access to a court-appointed attorney. Very few states have similar fee-shifting provisions.

Third, a federal statute known as Section 1983

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allows damages awards — in the form of money — for civil rights violations. An Institute of Justice report found

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that only eight states have similar statutes authorizing state constitutional damages claims.

While prison conditions cases in state court are rare, there are a few notable examples. The Washington Supreme Court, for example, in 2021 rejected

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the federal standard in favor of a more plaintiff-friendly test for incarcerated people challenging their living conditions. Applying the new standard, the court ruled in favor of a wheelchair-bound man denied proper hygiene behind bars during the Covid-19 pandemic.

In 1981, the Oregon Supreme Court held

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that the state constitution’s guarantee that no one in custody “be treated with unnecessary rigor” prohibited pat-down searches of incarcerated men by female prison officers. The court called the practice a “needless indignity” that “cannot be justified by necessity.” An Oregon appellate court last year relied on that precedent to hold

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that a prison’s inconsistent enforcement of masking requirements during the pandemic was unconstitutional.

These cases suggest state constitutions are a promising avenue for curbing abuses behind bars. And, indeed, a (modest) recent uptick in new conditions cases suggests we may soon see additional state supreme court rulings in this area.

In Oregon, for example, at least half a dozen lower court decisions over the last 12 months have found that correctional officials violated the state’s unnecessary rigor clause. The orders address all manner of indignity, from conditions that exacerbate mental illness to failure

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to provide gender-affirming care to inadequate treatment

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of chronic pain, herpes, and post-traumatic stress disorder. Notably, Oregon law authorizes

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attorneys’ fees for successful petitions for writs of habeas corpus, the legal mechanism the litigants in these cases used to challenge their treatment.

And the American Civil Liberties Union of New Mexico this year filed a complaint alleging that the solitary confinement of a woman living with mental illness violated the state constitution’s ban on cruel and unusual punishment. The case was brought under the state’s new Section 1983 equivalent, the New Mexico Civil Rights Law

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, which was passed in 2021 to create a right to sue for state constitutional violations. As far as I can tell, the case is the first of its kind in the state — and it highlights the potential power of legislation authorizing people whose rights have been violated to sue.





Barriers to Home Rule

Constitutional amendments giving cities greater authority over local policy — known as “home rule” provisions — have repeatedly met resistance from state courts over the last century, writes Fordham University law professor Nestor M. Davidson. Recent state laws undermining local authority across “an array of policy domains, including public health, labor and employment, civil rights, gun safety, environmental protection, and tenant protections,” Davidson writes, “have brought home rule reform back to national salience.” Read more

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The Right to Petition Explained

The right to make requests of or complaints against the government “is foundational to a healthy democracy,” writes the ACLU’s Bridget Lavender. “The federal Constitution and 48 state constitutions include within them the right to petition the government,” Lavender explains. “But state constitutions often phrase the right more expansively than the federal First Amendment — suggesting courts should interpret state petition rights as more protective.” Read more

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Wisconsin Governor’s 400-Year School Funding Expansion

In 2023, Wisconsin Gov. Tony Evers used his partial veto of a bill that provides funding “for the 2023–24 school year and the 2024–25 school year” to read “for 2023–2425” by cleverly deleting certain characters — a 400-year extension of school funding. A state constitutional challenge by taxpayers to the edit is pending before the state high court, writes attorney Joseph R. Richie. “However the court decides these issues,” Richie writes, “the amusement provided by fervently creative vetoes is not worth the toll they exact on representative democracy and the separation of powers.” Read more

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Conflict Over Exonerations in Missouri

The Missouri prosecutor whose office originally prosecuted Marcellus Williams — a man set to be executed this fall — now says Williams is innocent, but the state attorney general wants to keep Williams on death row. The case highlights “the troubling trend of state officials across the country undermining the discretion of local prosecutors,” write Brennan Center attorney Brianna Seid and intern Catherine Negroni, “with disastrous implications for innocent people behind bars.” Read more

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Kansas Reaffirms Abortion Rights

The Kansas Supreme Court this month rejected the state’s request that the court overturn its 2019 holding that abortion is protected under the state constitution. The case concerned a law prohibiting the most common second-trimester abortion procedure, known as dilation and evacuation, explains attorney Julia R. Livingston. The court said that the law “prohibits doctors from offering a safe and common method of abortion with no patient benefit and will force physicians to administer more dangerous procedures.” Read more

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What Else We’re Reading

Bryna Godar of the University of Wisconsin Law School’s State Democracy Research Initiative analyzed

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an “often-overlooked set of state entities that hold substantial power: judicial conduct commissions” in a new white paper. These entities exist in every state, she explains, and “are primarily designed to protect the public from judicial misconduct and have broad authority to investigate and sanction state judges.”

The Brennan Center’s Michael Milov-Cordoba spoke to Mother Jones

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about how U.S. Supreme Court decisions on partisan gerrymandering and abortion have highlighted the importance of state courts and lawmakers’ efforts to gain political influence over them.





You May Have Missed

New lawsuits in Alabama

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and Nebraska

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challenge the disenfranchisement of people with past felony convictions. The Brennan Center’s Patrick Berry and Kendall Karson Verhovek wrote about

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the Nebraska case on the Brennan Center website. State Court Report has previously covered cases in Florida

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, Minnesota

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, North Carolina

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, and Tennessee

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relating to the voting rights of people with felony convictions, as well as the racist history

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of disenfranchisement measures.

A lower court in Georgia refused

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to block a commission created to discipline and remove local prosecutors, finding it does not violate separation of powers principles or state or federal free speech guarantees. Jordan Phillips of Public Rights Project, which represents the plaintiff district attorneys in the case, previously wrote

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in State Court Report that the oversight body undermines prosecutorial independence, “which is necessary to advance public safety, promote justice, and protect local democracy.”

The Washington Supreme Court denied

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a request to modify a stay that keeps in effect a ban on high-capacity magazines pending appeal of a lower court ruling that invalidated the ban under the Washington Constitution’s right to bear arms clause and the Second Amendment. Oral arguments in the case are anticipated for the fall or winter. State supreme courts continue to grapple

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with recent U.S. Supreme Court precedent interpreting the Second Amendment, SMU Dedman School of Law professor and Brennan Center fellow Eric Ruben previously wrote in State Court Report.

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State Court Report Managing Editor Kathrina Szymborski Wolfkot and State Law Research Initiative Director Kyle Barry went on the Strict Scrutiny

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podcast to talk about how state constitutions can protect people in the criminal justice system.





Notable Cases

Owens v. Stirling

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, South Carolina Supreme Court

Held that execution by electrocution and firing squad

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are not “cruel or unusual” punishments under the state constitution. // New York Times

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People v. Lymon

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, Michigan Supreme Court

Held that a law requiring registration as a sex offender violates the state constitutional ban on "cruel or unusual" punishments when applied to people whose convictions lack a sexual component. // Detroit News

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Mothering Justice v. Attorney General

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, Michigan Supreme Court

Held that the legislature's adoption and amendment of proposed ballot initiatives in the same legislative session violated the people’s right to propose and enact laws through the initiative process. Ordered that proposals raising the minimum wage and providing earned paid sick time take effect as originally adopted, not as amended. // WXYZ 7 News Detroit

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Planned Parenthood of the Heartland v. Hilgers

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, Nebraska Supreme Court

Held that a bill restricting both abortion and gender-affirming care for minors did not violate the state constitution’s prohibition on bills that contain more than one subject because both issues relate to regulating health care. // ABC News

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Castellanos v. State of California

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, California Supreme Court

Upheld a ballot measure passed by voters in 2020 that classifies

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rideshare drivers for companies such as Uber and Lyft as independent contractors, a status that exempts them from workers’ compensation coverage. // New York Times

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You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database

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.









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