Massachusetts Rejects Harmful Federal Standard for Evaluating Whether Punishment Is Unconstitutional
The highest court in Massachusetts made history last week when it became the nation’s first to ban life without parole sentences for anyone under age 21. The historic outcome made headlines, but the court’s reasoning also deserves attention. In an easily overlooked footnote, the court explicitly adopted heightened constitutional review of prison terms — a move that could have sweeping implications for future cases, both in Massachusetts and elsewhere. With this approach, the court further distanced itself from weak federal precedent that scholars say has all but “rendered the Eighth Amendment a dead letter,” and showed state constitutional law’s potential to limit our cruelest criminal punishments.
In its Eighth Amendment cases, the U.S. Supreme Court uses two different tests to assess whether criminal punishments are unconstitutionally severe, one far more protective of individual rights than the other. The twin tests have sowed confusion among lower federal courts and state courts that, while not bound by it, have looked to Eighth Amendment law when applying their own state constitutional rights against excessive punishments. In Commonwealth v. Mattis, the Massachusetts high court expanded its use of the stronger test — showing how it should apply to a broader set of cases and perhaps taking a step toward heightened constitutional review of all extreme prison terms.
The two legal standards work like this: On the one hand, in cases involving capital punishment and life without parole sentences for children, the U.S. Supreme Court has used what it calls “the categorical framework,” which tests criminal punishments against “contemporary” or “evolving” “standards of decency.” This standard, as I wrote elsewhere, “is responsive to evolving norms and practices, as well as to modern social science and other empirical evidence about the efficacy of harsh criminal punishments.” Though the test takes different forms, the key is that it asks both whether there is a growing consensus against challenged punishments, and, separately, whether punishments align with the culpability of those who receive them and serve legitimate penological goals.
On the other hand, the U.S. Supreme Court has upheld individual prison terms unless they are “grossly disproportionate” to the crime, a standard met only when the sentence is so unconscionably severe that it “shocks the conscience and offends fundamental notions of human dignity.” In practice, that standard has proved even weaker than it sounds. “Gross disproportionality” has meant condoning the cruelest and most punitive impulses of state lawmakers, and it has, as law professor Rachel Barkow observed, “effectively taken the judiciary out of the business of checking the state when it seeks to impose outrageously long punishments.”
Under the gross disproportionality test, for example, decades in prison for relatively paltry offenses — such as stealing a few hundred dollars or golf clubs, or merely possessing drugs — have all been upheld. But applying the categorical framework, the U.S. Supreme Court struck down, for example, death sentences for children and people with intellectual disabilities, as well as life without parole prison terms for children convicted of nonhomicide offenses. It is the standard, in other words, with bite, a framework that provides for meaningful, evidence-based judicial review and not just a rubber stamp.
In Mattis, the Massachusetts high court agreed.
In a footnote, the court explained how gross disproportionality review makes little sense when a particular group of people — in this case, emerging adults under age 21 — challenge a particular sentence. In such cases, the question is not whether the punishment fits the crime, but whether the characteristics of those subject to the punishment (such as reduced culpability due to still-developing brains) demand greater leniency. To decide that, the court said, the categorical framework is more helpful. It gave a clear mandate to consider myriad indicators, including scientific consensus, that consigning young people to die in prison is disfavored at the state, national, and international levels, and fails to serve any of the state’s legitimate purposes of imprisoning people.
This may seem like the obvious approach — even the U.S. Supreme Court has said that the stronger categorical approach applies whenever a “case implicates a particular type of [punishment]” as applied “to an entire class of offenders.” But one of gross disproportionality review’s most frustrating features is how it has stubbornly remained the default standard among state and lower federal courts, including in cases that would seem to meet the U.S. Supreme Court’s criteria for the categorical framework.
Just last year, for example, a Colorado appellate court used the gross disproportionality test in a challenge to life without parole sentences for people who neither killed nor intended to kill, but were convicted of murder for their role in some other felony that led to someone’s death. That case involved “an entire class of offenders,” but the court clung to the weaker test for one reason: “neither the [U.S.] 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.” In short, courts have declined to apply the categorical framework outside the discrete circumstances where the U.S. Supreme Court has already done so.
Since the Colorado ruling, though, Mattis is at least the second appellate decision to apply the categorical test more broadly. While Mattis applied it to emerging adults over age 18, a panel of the U.S. Court of Appeals for the Fifth Circuit applied it to strike down Mississippi’s lifetime voting ban for people with felony convictions. This logical expansion of the categorical test has far-reaching implications, opening the door for other people with shared characteristics — people with intellectual disabilities, for example, or people serving life terms because of draconian “three strikes” laws — to seriously challenge their prison sentences.
But courts shouldn’t stop there. State courts in particular should go further, and reject gross disproportionality review entirely, whether a case involves a particular category of offenders or not. Over the last 30 years, the persistent reliance on gross disproportionality review has provided constitutional cover to expand extreme prison sentences, increasing the proportion of people serving decades and turning state prisons into warehouses for human beings and de facto nursing homes. Even if federal courts are reluctant to interfere with the state policies driving this crisis out of federalism concerns, that dynamic simply doesn’t extend to state supreme courts applying their state constitutions. Instead, when setting the limits of extreme prison sentences, courts should always engage in the fact-intensive inquiry that embodies “evolving standards” review and give real meaning to the rights against cruel punishment.
Kyle C. Barry is director of the State Law Research Initiative.