Felony murder — a murder charge based on a defendant’s participation in a serious crime, such as a robbery, during which a person dies — has long attracted criticism for failing to take into account whether a defendant had an intent to kill. In one example detailed last year in the New Yorker, a man faced a mandatory life-in-prison sentence after his accomplice in a series of car burglaries fled the police and accidentally struck and killed two cyclists. The fact that the defendant was miles away and sitting in handcuffs at the time the car accident took place didn’t impact either the felony murder charge or the sentence.

Until now, states have largely had free rein under the Eighth Amendment to impose draconian prison sentences for felony murder. But a series of state cases are now raising the question of whether state constitutions might provide further protection.

As detailed in a new piece by State Court Report’s Kathrina Szymborski Wolfkot and University of Michigan law student Anna Benham, the Pennsylvania Supreme Court heard arguments last week in Commonwealth v. Lee, a challenge to mandatory life sentences for felony murder. (As part of an exciting new partnership, this piece is also cross-posted in Slate — more on that below.) Derek Lee, who was upstairs during a house robbery when his codefendant killed a man in a struggle over a gun, argues that his lack of intent to kill diminishes his culpability. A mandatory life sentence based on his participation in the robbery, he contends, violates a state constitutional prohibition against “cruel punishments.”

While I know well enough not to make predictions based on an oral argument, Wolfkot and Benham report that several justices appeared open to the claim that a life sentence in a case like Lee’s violates the state constitution. It’s an uphill climb: to date, the Pennsylvania Supreme Court has interpreted the state constitution’s prohibition against cruel punishments in lockstep with the Eighth Amendment. But among other things, Lee points to historical evidence that the framers of the Pennsylvania Constitution were animated by Enlightenment-era philosophies that viewed as cruel any punishment not focused on either deterrence or rehabilitation. This history warrants, he argues, a different approach than the federal courts have taken.

The Michigan high court is considering a similar case involving a now-elderly man serving a life sentence based on a 1976 robbery in which a co-conspirator killed a store owner. Unlike Pennsylvania, Michigan has already interpreted its state constitution as more protective than the Eighth Amendment in other contexts — part of a broader trend — though not yet in the context of felony murder.

But before we get too sanguine about the role that state constitutions might play in limiting prison sentences, consider that the Colorado Supreme Court recently rejected a similar challenge to a felony murder life sentence. In 2021, the Colorado legislature eliminated life sentences for felony murder, but only prospectively. A man who was convicted in 2019 and sentenced to life in prison for participating in a robbery in which an accomplice shot and killed someone then challenged his sentence under both the U.S. and Colorado Constitutions.

In rejecting the claim, the Colorado Supreme Court focused its analysis on the Eighth Amendment. Notably, the court didn’t do an independent state constitutional analysis but rather treated the state and federal claims as coextensive. It’s an important reminder that notwithstanding the increased attention on state constitutions, in most states and on most issues, lockstepping state constitutional claims with the U.S. Constitution is still the order of the day.

I’ll finish with a shameless plug: If you are interested in the role that state constitutions play in criminal punishment, we have an event for you. State Court Report and the Brennan Center, along with the State Law Research Initiative, are thrilled to be cosponsoring a symposium on State Constitutions and the Limits of Criminal Punishments at Rutger Law School in Camden, NJ, on October 24. Remote attendance is available, and you can register here. We hope to see you then!

Starting this week, Slate will be copublishing on its website selected State Court Report articles. “Having State Court Report as a partner allows us to highlight for our readers an under-appreciated but critical aspect of the law,” noted Slate’s jurisprudence editor Jeremy Stahl in the announcement. Read more

Voters in 10 states will consider ballot measures this fall that would protect the right to abortion. Even where they pass, federal and state legislators and judges could all make moves to lessen their impact. The measures will be among the major stories of the 2024 election, writes Mary Ziegler, a professor at the University of California, Davis School of Law, but “it is equally clear that reproductive rights won’t be guaranteed in a state just because a ballot measure succeeds.” Read more

Last term, the U.S. Supreme Court held in Johnson v. City of Grants Pass that the Eighth Amendment’s ban on cruel and unusual punishment does not prohibit cities from punishing unhoused people for sleeping in public. The ACLU’s Bridget Lavender argues that “though devastating — especially amid extreme shortages in affordable housing and rising costs of living — the ruling leaves open the door for other legal avenues for combatting the criminalization of homelessness, including state constitutions.” She notes that multiple states have already interpreted their state constitutions as more protective of unhoused people than the federal counterpart. Read more

The debate over relying on “history and tradition” in constitutional interpretation — known as originalism — is also playing out in state supreme courts, where justices “echo federal judges’ arguments and raise state-specific concerns of their own,” writes the Brennan Center’s Chihiro Isozaki. Judges’ critiques include that originalism reinforces the subordination of marginalized groups and that it’s a veneer for subjective value judgments. Read more

By making nonpartisan elections partisan, altering judicial nominating commissions, and redrawing judicial districts (among other machinations), state legislators have found backdoor ways to affect judicial races. “When voters enter the ballot box, they should be aware of the ways some state legislatures have quietly tipped the scales in their own favor,” writes the Brennan Center’s Michael Milov-Cordoba. Read more

Three of the seven seats on the Ohio Supreme Court are up for election in November. The outcome could maintain or expand the court’s Republican majority, or Democratic justices could take a 4–3 majority. The state high court will likely consider cases related to abortion rights, ballot initiatives, and much more in upcoming years, write State Court Report’s Kathrina Szymborski Wolfkot and Georgetown University Law Center student Zachary Kronsberg. Read more

The Hawaii Supreme Court recently sided with Native community groups against private companies in a dispute over water access. Isaac Moriwake, the managing attorney of Earthjustice’s Mid-Pacific Office and counsel for the community groups in the case, explains the importance of the streams at issue to Native Hawaiians and outlines Hawaii’s legal framework for resolving disagreements over water use. “The ruling signals a thorough affirmation of the state’s constitutional public trust duty to prioritize the restoration of water resources and Native Hawaiians’ rights,” he writes. Read more

In an interview with State Court Report, former Ohio Chief Justice Maureen O’Connor talked about the unique history of the Ohio Constitution and her recent travel to Ukraine to advise on fair courts. She also discussed her work on an Ohio ballot initiative that would create a citizen-led redistricting commission in the state, which she hopes “will return to citizens a concept of fairness and trust.” Gerrymandering has discouraged Ohioans from voting, she said, “because they feel that their votes are worthless.” Citizen-led commissions “shield the redistricting process from manipulation by political actors,” she explained. Read more

Spung v. Evnen, Nebraska Supreme Court
Ordered election officials to implement immediately a 2024 law that reinstated voting rights to those convicted of a felony upon completion of their sentence, meaning affected people can now register to vote for November’s election. The secretary of state, based on an advisory opinion from the state attorney general calling the law unconstitutional, had directed election officials to stop registering people with a felony conviction who had not received a pardon. // Associated Press

Planned Parenthood of Montana v. State and Planned Parenthood of Montana v. State, Montana Supreme Court
Upheld, in two related cases, temporary blocks on abortion restrictions passed in 2023 that limit Medicaid funding for abortion; ban the only outpatient procedure available in the second trimester; and require an ultrasound, effectively preventing telehealth medication abortions. Litigation will continue. The state’s ballot this fall will include a proposed amendment that would enshrine the right to abortion until viability. // Montana Free Press

Georgia v. Sistersong Women of Color Reproductive Justice Collective, Georgia Supreme Court
Reinstated the state’s six-week abortion ban by staying a trial court’s injunction, which had struck the ban as an unconstitutional violation of a woman’s right to liberty and privacy. The state’s appeal of that ruling directly to the Georgia Supreme Court is pending. // Associated Press

Virtual Event What’s at Stake on State Ballots Tuesday, October 29, 3–4 p.m. ET Electing a president is not the only high-stakes choice voters will make in November. In Ohio, citizens will vote on a constitutional amendment that would end gerrymandering in the state. Voters in 10 states have the opportunity to amend their state constitutions to affirm or expand protections for abortion care. Three states will decide whether to remove language against same-sex marriage from their state constitutions. Join this expert discussion about the issues on state ballots in the 2024 election, as well as efforts to reduce citizens’ ability to enact policy through ballot initiatives. RSVP today.