Plus: A 176-year-old law does not ban abortion, unpacking Alabama’s constitution, and more


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This week, I’m handing over the State Court Report essay to our managing editor, Kathrina Szymborski Wolfkot, who summarizes recent trends related to the death penalty.

—Alicia Bannon

Delaware lawmakers last week voted to amend the state’s constitution to prohibit the death penalty. Should the measure pass again in the next legislative session, as required

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for constitutional amendments in the state, Delaware would become only the second state with an explicit constitutional bar on the death penalty, after Michigan

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. (The death penalty is forbidden in 21 additional states

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by statute or because their supreme courts have found laws allowing it unconstitutional.)

For death penalty opponents, the move is a rare bright spot. This year, 26 people

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have been executed nationwide, compared with only 9 people by this time last year. As of Tuesday night, when Florida executed Michael Bell

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, more people have been put to death in 2025 than in any year since 2015. The executions have been concentrated in three states

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(Florida, South Carolina, and Texas) at a time of declining public support

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for the death penalty.

Faced with difficulties obtaining the drugs needed for lethal injections — largely because pharmaceutical companies have objected

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to the use of their products for executions — states have passed laws resurrecting long-abandoned methods

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like electrocution or adopting untested ones

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like nitrogen hypoxia.

The results have been gruesome. When Alabama killed Kenneth Smith last year in the country’s first-ever nitrogen hypoxia execution, witnesses said he writhed and gasped

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for several minutes. It took at least 22 minutes for him to die.

This April, a three-person firing squad in South Carolina executed Mikal Mahdi. An autopsy revealed only two bullets struck him, neither in the heart, likely causing him immense suffering

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while still conscious.

The South Carolina Supreme Court last summer rejected

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claims that execution by firing squad or electrocution violated the state’s ban on “cruel or unusual” punishment. The court noted that a person killed by firing squad would feel “excruciating pain” for only 10 to 15 seconds unless there was “a massive botch . . . in which each member of the firing squad simply misses the inmate’s heart” — exactly what then happened to Mahdi.

When it comes to challenges to the method of execution, the South Carolina high court is the only one to have considered the constitutionality of the firing squad. However, the high courts of Georgia

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and Nebraska

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both declared execution by electric chair cruel and unusual in violation of their state constitutions in 2001 and 2008, respectively. Florida’s

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found it constitutional in 1999.

The U.S. Supreme Court, meanwhile, “has been very clear repeatedly

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that it has no interest in method-of-execution challenges,” said

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John Mills of public-interest law firm Phillips Black, which represents multiple people on death row, in an interview with State Court Report. “States have become more willing to experiment as a direct result of the federal courts’ unwillingness to get involved and stop them.”

This experimentation and uptick in executions comes amid potentially grave miscarriages of justice. In September, Missouri executed Marcellus Williams despite a motion to vacate his conviction by the prosecutor’s office that originally tried his case. The prosecutor asserted

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that new evidence undermined the conviction. Missouri Attorney General Andrew Bailey argued that res judicata — the principle that parties cannot raise claims or defenses that have already been decided — barred any relief for Williams. The state supreme court rejected the prosecutor’s motion.

In Oklahoma, the court of criminal appeals — the state’s highest court on criminal matters — similarly refused last year to vacate the conviction and death sentence of Richard Glossip, despite the state attorney general’s concession that prosecutorial misconduct required a new trial. The U.S. Supreme Court this term agreed with Glossip and the attorney general

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and ordered the state to retry Glossip. (Mills represented Glossip in that case.)

And yesterday, a Texas court scheduled a new execution date

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— October 16 — for Robert Roberson, whose possible innocence sparked an interbranch conflict

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in December. Roberson was sentenced to death in 2003 for the murder of his daughter based on “shaken baby” syndrome, a diagnosis increasingly labeled “junk science

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.” The day before he was set to die, a bipartisan state legislative committee issued him a subpoena to testify, forcing the executive branch to either halt the execution or dishonor the subpoena. The Texas Supreme Court held

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that the legislature’s action interfered with the executive branch’s lawful administration of the death penalty in violation of the separation of powers under the Texas Constitution.

Finally, a case pending before the California Supreme Court claims

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that the racially discriminatory application of the state’s death penalty violates the state constitution’s equal protection clause. At least one state, Washington, has invalidated

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its death penalty because it was imposed “in an arbitrary and racially biased manner” in violation of the state’s ban on cruel punishment. Across the country, Black defendants are many times more likely

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to receive death sentences than similarly situated white defendants. Study

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after study

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also shows that the likelihood of a death sentence significantly increases if a victim is white.

During a period when the U.S. Supreme Court has shown little interest in addressing injustices associated with the death penalty, state constitutions can offer an alternative path. “States should be willing to give independent meaning to their constitutional clauses,” Mills said. “There are opportunities there.”





The Alabama Constitution: Lingering Traces of a Racist Past

Alabama’s 1901 constitution was meant to maintain the pre–Civil War system of white supremacy, writes the Southern Poverty Law Center’s Keisha Stokes-Hough. Although the state adopted a new constitution in 2022, it “was derived by and large from the 1901 document, meaning the vestiges of Alabama’s discriminatory foundations remain.” This essay is part of State Court Report’s series

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on the nation’s constitutions. Read more

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Natural Rights in State Courts

“Just because some constitutional provisions are written with broad terminology doesn’t mean they don’t do real work,” the Institute for Justice’s Anthony Sanders writes of provisions guaranteeing “inherent,” “inalienable,” or “intrinsic” rights. Translating that language “into actual protections for the individual against the state takes judges and lawyers willing to take them seriously.” Read more

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Wisconsin Supreme Court Rules 176-Year-Old Law Doesn’t Ban Abortion

The state high court denied state Republicans’ claims that an 1849 law acted as a near-total abortion ban, finding that later-passed legislation made the law obsolete as to abortion. Still, abortion fights will continue in the swing state, writes Mary Ziegler of the University of California, Davis School of Law. Read more

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Redefining “Cruel” and “Unusual” Punishments

Too many state courts have declined to extend the protections of their constitutional punishment clauses beyond the federal floor, writes University of Mississippi law professor William Berry, who establishes a taxonomy to guide litigators and state appellate judges interested in developing jurisprudence in this area. Read more

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What Else We’re Watching

State Court Report hosted a panel discussion

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Tuesday on how the Trump administration’s education policies affect states and what powers states have to respond. The event, featuring former U.S. Secretary of Education John King Jr., law professor Aaron Saiger, and journalist Martha Dalton, was held the day after the U.S. Supreme Court said the administration could proceed with firing thousands of U.S. Department of Education employees and 24 states sued the administration over billions in frozen education funding.





You May Have Missed

The U.S. Supreme Court declined to review a Montana high court decision striking down a law requiring parental consent for abortion, but Justices Samuel Alito and Clarence Thomas said

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the refusal should not be read by future litigants and courts as rejecting the argument that rulings like Montana’s infringe parents’ federal constitutional rights. State Court Report has previously

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written

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about parental consent disputes.

A Florida federal court blocked

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part of a new state law that makes it harder for citizens to place initiatives on the ballot by restricting who can gather signatures. State Court Report has covered

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recent attacks on direct democracy by lawmakers in multiple states.

Abortion is available

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again in Missouri after a trial judge reimposed preliminary injunctions against restrictions she previously had blocked based on the state’s 2024 reproductive freedom amendment. The state high court reversed that judge’s previous orders blocking the restrictions because, it said, she applied the wrong standard. A new lawsuit also seeks to prevent the secretary of state from placing on the 2026 ballot a measure to undo last year’s abortion rights initiative, arguing the ballot language is misleading and unfair

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. State Court Report covered

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the restriction litigation and proposed measure.





Notable Cases

Evers v. Marklein

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, Wisconsin Supreme Court

Held that statutes permitting a legislative committee to pause, object to, or suspend agency rules for varying periods of time — used by the committee in this case to temporarily block a rule banning “conversion therapy” for LGBTQ+ patients — violate the state constitution’s requirement that legislative action altering legal rights and duties of people outside the legislative branch pass both chambers and be presented to the governor. // NBC News

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Contoocook Valley School District v. New Hampshire

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, New Hampshire Supreme Court

Held that the state’s existing education funding law is constitutionally inadequate and affirmed the trial court’s calculation of $7,356 per pupil as a minimum constitutional guidepost for the legislature, but said the lower court insufficiently accounted for separation of powers concerns when it ordered the state to pay that increased amount immediately. // New Hampshire Union Leader

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Sikora v. Iowa

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, Iowa Supreme Court

Held that a former incarcerated person’s state constitutional and tort damages claims against the state and correction officers for releasing him from prison five months late were barred by the legislature’s choice not to waive sovereign immunity for false imprisonment claims. Three dissenting justices said the right to sue an official for false imprisonment was part of the common law at the state constitution’s adoption and was secured by its liberty guarantees, precluding legislators from eliminating that right in the state tort claims act. // Iowa Capital Dispatch

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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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