[music] I'm Alexander Heffner, your host on The Open Mind.

I'm delighted to welcome our guest today, Kyle Barry.

He's director of the State Law Research Initiative, and previously served as senior council at the Justice Collaborative, where he focused on reducing incarceration through local policy reforms to the criminal legal system.

Welcome, Kyle.

Hi.

Thanks for having me.

Kyle, one of the most interesting things about your work is that you're looking at the original state constitutions in all 50 states, and finding opportunity for juster outcomes.

Can you just explain to us why when you look at the text of some of our state constitutions, if not all of them, you're able to advance opportunities for more just outcomes?

Sure.

Well, as sort of a foundational point, I would note that what the US Supreme Court has done when applying the Eighth Amendment to prison sentences in particular is almost nothing.

I would characterize it as both a legal and moral failure on the part of the US Supreme Court to protect people from extremely long prison sentences and to enforce even minimal rights against what the Eighth Amendment terms as cruel and unusual punishment.

So looking to state constitutions as a pathway for rights in this area is extremely important and urgent, given how little the US Supreme Court has done.

When you look at a state constitution many state constitutions have language that is close to, but not identical to the Eighth Amendment.

Only 11 states, have say, exactly the same thing as the Eighth Amendment.

And even there, there's very strong arguments that they do more than what the US Supreme Court has said.

But when you actually look at the text of, and you go state by state, you'll see that some states will have small, but potentially hugely impactful differences, like banning cruel or unusual punishments as opposed to cruel and unusual punishments.

But still, others have their own unique provisions that don't exist at all in a federal analog, for example, there are five states that prohibit, "Unnecessary rigor in the treatment of people who are incarcerated."

There are other states such as Montana, that have a right to dignity.

If you look at the Illinois Constitution, there's a right that punishment must serve the goal of reformation or rehabilitation, essentially.

And there are other examples around the country.

And so it turns out that there's been so much attention paid, I think, not just by the public, but even by lawyers to what the US Supreme Court is saying about federal law, that a lot of these provisions have just been neglected for a long time.

And so we develop research, legal arguments, and just very basically encourage people to actually start considering what these provisions mean, because they can do a lot more for protecting people's rights than what's been available under federal law.

So, Kyle, when did you begin rediscovering this as a jurisprudential approach?

How long has it been going on to say, let's look at the text of these original documents in our various 50 states, haven't always been 50 states, but as time has evolved, is this a relatively novel approach that justice reformers are taking to understand the history of jurisprudence in these states and make the argument that maybe even laws that are more modern, contemporary laws, are violating the essence and fiber of their original constitutions?

Yeah, I think yes and no.

I think it's important to note that it's not entirely new.

This is not a radical or really revolutionary concept.

And until the 1960s, it was unclear that the Eighth Amendment applied to the states.

And so if you're going to raise this kind of claim against a state and post punishment, you would look to state law until the Supreme Court held in the early 1960s that the Eighth Amendment applies to the states.

And there are some cases going back a couple of decades from State Supreme Courts in Washington and Michigan, where they explicitly disagreed with what the US Supreme Court said.

The two cases are, one is an example where the US Supreme Court upheld a life without parole sentence merely for drug possession.

In another case, the court upheld a life sentence for stealing a few hundred dollars over the course of many years, and going back decades, State Supreme Courts rejected that, and they used their own state constitutions to do that.

But at that point, those cases were essentially the exception.

And what we've seen over the last, you know, maybe five years or so, is this really developing trend where a number of state supreme courts around the country, some in what you might think of as typically more progressive areas like Washington and Massachusetts, but also in places like Iowa, for example, and in Alaska, where we're seeing a kind of building of a jurisprudence on a state by state basis, but also establishing a national trend where they are, courts are explicitly saying our constitutions do more than what the Eighth Amendment does according to the US Supreme Court.

And that's mostly been protecting youth.

And even more so lately protecting what might be termed “young adults” or “emerging adults”, people into their early 20s from the harshest punishments that are available under law.

And that's really been an area developing like again for the last few years with more cases in the pipeline in different places around the country.

As of this recording, Kyle, where in America is it possible, if anywhere to sentence a young offender to life with or without parole?

Is it essentially illegal for that to happen according to the Supreme Court?

According to the US Supreme Court, it is not unlawful to sentence even a child under the age of 18 to life without parole.

What the US Supreme Court has banned under the Eighth Amendment is a mandatory sentence of life without parole for youth, meaning without any individualized sentencing whatsoever.

So that's an important protection.

And...

I'm trying to understand the distinction.

Can you spell it out a bit more?

Sure.

So a mandatory sentence says that if you're convicted of a certain offense, the only punishment available for a court to impose is life without parole, without any consideration of characteristics of the offender, mitigating circumstances around the offense, it happens automatically.

And what the Court has said is that for youth, that's unconstitutional.

At a minimum, there has to be some individualized sentencing consideration, and a court must determine that.

But the end outcome could still be that?

It could still be a life without parole.

And so there are still youth in America sentenced to and serving life without parole.

That has been, I don't have the exact numbers in front of me, but there's been a legislative trend away from that to be sure.

And that's very important.

Those extreme sentences are becoming far less popular as a legislative matter.

We've seen courts take that US Supreme Court decision, state courts, and build upon that.

And so what have some state courts done?

Well, in Iowa and in Massachusetts and in Washington, they have banned youth life without parole entirely, mandatory or discretionary.

It's illegal under the state constitutions in those places.

Massachusetts has actually said that no one under the age of 21 can receive life without parole at all.

Some states have gone a little bit further.

For example, Michigan has taken the mandatory piece and applied it to 18 year olds.

So if you're 18, you cannot receive a mandatory sentence of life without parole.

And as of right now, there's a case pending in Michigan to decide whether to ban life without parole for youth and potentially people up to 18 entirely.

So the Supreme Court has... That a 2012 decision called Miller v. Alabama.

It's very important, but it sort of sets this minimal floor of rights protection for youth.

And we've seen state courts really build upon that and have been using their own state constitutions to do that.

If there are states where this rediscovery of textualism in the state constitutions is newfound, I know it's not a novel concept to reintroduce archaic language or founding language of legislation, but if there's states where you're examining the promise or potential to do just that and to take the original constitution, say, we're not living up to that outside of the states that you've held now as examples of progress, which are states where you're navigating now to see that the constitution be more in line with active pursuits of justice in legislation in those states?

Yeah, I mean, I would say as a threshold matter, this is really a 50 state approach, potentially.

Every state should consider the federal civil rights protections as the floor of legal protections and explore the possibility looking to text, but also history and also other state specific considerations that inform constitutional decision making.

And think about, should we apply our rights independently?

Should they be broader than what the federal courts have said about the federal constitution?

You know, I'll give one, I think really important example that highlights a lot of the concepts at play here, which is the state of Illinois.

As I mentioned, Illinois has language that does not exist at the federal level, that says that the punishments must be geared toward the goal of reforming people and returning them as useful citizens.

That must be the constitutional goal of any punishment that's imposed.

And until now, the courts haven't really done much with that in the state of Illinois.

At the very least, I would argue that suggests that life without the the possibility of parole is unconstitutional or ought to be unconstitutional, because that is completely at odds with the idea that you're reforming someone to return them to society.

The other thing about Illinois, and this is true in other places and I think people don't necessarily realize this, they think of the federal constitution as something that's very old, but on a state by state basis, that's not necessarily true that this particular clause in Illinois was ratified in the early 1970s, and it was ratified amid this national civil rights movement, of which Chicago was very much the epicenter in many ways.

And it was, there's a lot of robust convention history from not that long ago talking about we need to limit punishments as a matter of human rights, as a matter of racial justice, as a matter of civil rights.

And so there's this both unique and modern history informing a constitutional right.

You know, its not just you know, 18th century federalist papers type analysis.

There's a lot of modern history that informs state constitutional rights.

And at the very least, I would suggest that lawyers and judges and researchers take that history seriously and think about what it means when you're applying these constitutional rights.

The reason I'm so fascinated by it, as I alluded to from the outset, is just because textualism in the last 25 years has been justifying legislative and judicial policies that protected and amassed incarceration.

And you're reverse engineering this in a sense to say you can be textualists at the state level and come to a different outcome.

And I'm namely referring to the Rehnquist and Roberts Courts with the exception of the decision you mentioned that have generally favored the incarcerating powers.

Now, there is a justice, Justice Gorsuch, on the federal stage who has at least talked the libertarian talk about sentence reduction and concerned about the impact of mass incarceration nationally.

Again, the question about a state by state approach, I was going to, I was asking that in the spirit that you were revealing to our viewers there's states where the terminology is different that might have been more protective of citizens against invasive and illegitimate or unfair prosecutorial practices.

So if you are taking a 50 state approach, there still must be the places where you have the federal baseline you mentioned, but then there's nomenclature or there is the political will or the public outcry to act.

So, in your own strategy about this, where are you most focused right now?

Well, there are a number of different factors, you think about who is serving on a particular court and who might be receptive to these arguments.

You know, obviously, when your strategy is focused on particular legal arguments that you're making to state courts, the success of that largely depends on who is serving on those, on those state courts.

Other things to think about are where is this where is this issue the most urgent?

By which I mean, where are there simply the most people who are currently being warehoused for the rest of their lives?

And so I mentioned Michigan earlier as a place where there's some ongoing litigation invoking the state anti-punishment clause in a number of cases.

And Michigan has the fifth most fifth highest life without parole population in the country.

And so it's become an especially urgent issue there, just because of how many people are affected.

The same is true in Pennsylvania where again, the court will be taking up issues in the taking up cases in this area in the very near future, another state with an extremely high population of people serving life without parole.

And so there are places that are, I think especially ripe for judicial intervention where the application of these extreme sentences have really reached a crisis level.

And you know, that's another factor as well.

Other than the considerations of youth and examining excessive sentencing for young people, where are some of the other opportunities to consider this unwieldy and ineffective system in many respects and to justify in the law as much as in our morality, so on legal and moral terms, where state constitutions might step in and say this is excessive outside of the youth, the youth piece?

Yeah, I think that's a great question.

And what I would say is I think that a lot of people recognize that typically if an individual right is infringed in some way or an individual liberty is taken away, you can file a lawsuit in the courts, and the courts will demand a very good justification from the state before they uphold that right separation.

And that's whether there's infringement on freedom of religion or speech or even an equal protection claim.

And for some reason, I would argue a kind of deficiency in constitutional analysis, when individual liberty has been taken away by a prison sentence, that level of review just hasn't happened.

Instead, there's been a lot of difference to what state legislatures have done.

And I think what we have seen in the youth context is an important shift, which is courts actually demanding a justification, for example, sending a 16 year old kid to a sentence that requires him to die in prison.

And when they've done that, they have found, as it turns out, when you look at actual evidence that these sentences are not serving any legitimate purpose whatsoever.

And I think if courts start to do that more generally, they will find that it's very hard for the state to justify sending anyone to die in prison without any chance whatsoever of their release, no matter how well they have rehabilitated.

Because when you look under the hood of who receives the most extreme sentences in America, it's not the most culpable people, it's not the worst of the worst.

It's heavily young people.

It's disproportionately people of color.

It's people who have intellectual and other disabilities.

It's people with diagnosed mental illnesses.

And if you start really demanding evidence to say that this is serving a helpful or acceptable purpose in confining these people for the rest of their lives, it becomes very hard to do.

And so I think that lawyers should start pushing courts more to demand that sort of justification when people are sent to prison for the rest of their lives.

And I think as courts do that more and more, they'll realize that the line doesn't stop at youth.

The line doesn't stop at capital punishment.

There are really, really long prison sentences that exceed any legitimate purpose.

And there's really good evidence to show that.

And I think as courts start taking that seriously, we'll see broader categories of people who are protected from these punishments.

Upon reflection, Kyle, is the three strikes framework that was touted as a source of potential accountability and preserving people's opportunity to exit the system for a warning, a second warning, and then too often throwing away the key after the third incident, has that paradigm or framework ultimately proved pretty fatal, or has it actually been constructive and helpful in the states where it's been applied or federally?

I think three strikes laws are one of the worst examples of the product of our harsh sentencing era, really in the 1980s and 1990s that have contributed dramatically to the rise in our prison population, particularly people serving extremely long sentences.

And so we had... And it's worth noting, they were invented for the appearance of some fairness, some idea of accountability.

And yet, that's why I asked you, if they've been fatal.

And you say quite clearly, they have been pretty fatal.

Yes, I think they have proven completely ineffective at best, useless, but truly counterproductive and destructive.

And I think some of the worst Eighth Amendment decisions from the US Supreme Court have been in this context upholding life sentence for stealing videotapes, because that was a third strike, or stealing a few golf clubs because that was a third strike, and people have been sent to prison for life for those sorts of offenses.

And so I think actually three strikes laws are if if you're looking for discreet categories of sentences that state supreme courts could, I think, very easily and really should recognize broader rights protection, the three strikes or habitual so called habitual offender law context is very ripe for judicial review.

It's just ironic to me, I wanted you to reflect on that more, because again, it was set up as an alternative to something like that would ostensibly appear more punitive.

It at least even in its current formulation in the way that I think the public receives it, it's not cited as a culpable factor in something that is morally reprehensible or that's something that is enlarging a system and making us less safe.

And that's what I want to get at the crux of this, which is how do you, again, kind of reverse engineer this and say, three strikes was not accountable or fair, and here's a different paradigm to work in, when people think, oh, well, if you had three opportunities to sort of prove yourself and you didn't it's, again, it's using a language that was intended to mythologize fairness, but in fact, that's all it was.

It was a myth of fairness and not the reality.

So what's the alternative?

Well, I think that the, the initial one initial point is that as far as judicial intervention in this area there are people just serving the most draconian sentences for even relatively minor offenses under those regimes.

And so that's sort of a starting point, is that there are many tens of thousands of people who are incarcerated who absolutely do not need to be.

And you know, my focus is getting state court's attention on that particular...

Right.

And can I just ask you follow up on that?

Yeah.

And how are we able to track the frivolousness and impertinence of the, the sort of, what youre suggesting is so many people were convicted of crimes that were of a superficial nature or were not causing real or lasting harm, that seems to be a salient point you're making.

Yeah, but I think that's one of other relevant relevant points to make.

Yeah, I mean, a fundamental flaw in the repeat offender or three strike framework is this idea that you know, at some point, we're abandoning the idea that someone could safely exist in society.

And what we do is we send them into a criminogenic environment and further destabilize their lives and think that, well, the next time around prison will have worked, and when it doesn't, we're just gonna send them to prison even longer.

I think that's just completely ineffective in that part is well established.

But even aside from the whatever the nature of the initial offense was, we're often talking about people who have been in prison for many decades, and who are often elderly or are turning elderly, and who are now continuing to serve these offenses when we know that people typically age out of whatever criminal behavior they have been involved in.

And so just the idea that these are people who pose any kind of threat to public safety, for example, is just not being considered.

And I think that courts have a role or should have a role in saying, even assuming that incarceration was a reasonable response to something at the initial, there is at some point when a sentence should become unconstitutional because the sentence is no longer serving a purpose.

That's edifying.

Because in all these state constitutions, there's probably some clause that is reminiscent of our preamble, to our constitution, our federal constitution, which is domestic tranquility, the pursuit and preservation of domestic tranquility.

And I think you're pointing out that there's a failure in elucidating a justice system that preserves, that is incentivized by that goal, not punishment, but public safety or put another way, domestic tranquility.

I'll give you the last word on language like that in our 50 state constitutions that could be embraced more fully and in understanding how we can deliver those outcomes of something like peace or tranquility.

Yeah.

Well, I think looking at, if you look at every state constitution has language that when, when looked at as a whole I think requires courts to limit punishments that, at their broadest serve some legitimate purpose whether that's deterring crime, whether that's promoting public safety, for example.

In some states, it's even narrower than that.

So, I don't want to even concede that.

That's sort of the tranquility is the kind of like the acceptable purpose.

I, like I said, in some state constitutions, it's very explicit that the state is in the business of rehabilitating people helping people be useful and productive members of society, both as a matter of civil rights, but also as a matter of public safety.

That's the constitutional commitment to that philosophy of public safety, which is helping people, not just punishing them and destabilizing their lives even further.

And I would really encourage anyone but in particular, lawyers and judges and lawmakers to take seriously their own state constitutions and perhaps look at them for the first time.

And to look at not just what they say about cruel or unusual punishments, but you know, like you said, the dedicated purpose to public tranquility, but also rights to dignity, rights to privacy, rights against the unnecessary rigor of treatment by the state, and so forth.

And so I think that it's long past time for people who haven't taken their state constitution seriously in this area to really start to do so.

Kyle Barry, thank you for your insight today.

Thank you.

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