Gavel and handcuffs

Massachusetts Reminds Youth Defense Attorneys to Consider State Constitutions

By holding that life without parole sentences are unconstitutional for anyone under 21, the Massachusetts high court goes far above the federal floor.


This article is part of a content series on Commonwealth v. Mattis. You can read all the pieces in the series here

When I was a new public defender in New Jersey, a supervisor once told me, “If the law is on your side argue the law. If the facts are on your side, argue the facts. If neither are on your side, argue the Constitution, but you will probably lose.”

He wasn’t wrong. The U.S. Constitution sets a floor that sometimes feels impossibly low for those accused of crimes. But a far more famous New Jerseyan — Justice William J. Brennan — once said that the “very premise of the cases that foreclose federal remedies constitutes a clear call to state courts to step into the breach.” In plain English: where federal law is terrible, states can make less terrible law.

Indeed, state constitutions should give even grizzled, battle-worn defenders like my former supervisor cause for optimism. In particular, in the ever-changing landscape of the juvenile carceral system, young people facing criminal charges enjoy some unique protections under state constitutions that go measurably beyond what federal law provides. 

Last week, for example, Massachusetts became the first state in the country to categorically bar life without parole sentences for people aged 18 to 20. In other words, youth who are no longer minors — sometimes known as “emerging adults” — cannot be sentenced to die in prison in Massachusetts under any circumstance. The case, Commonwealth v. Mattis, extended the court’s 2013 holding that the state constitution prohibited sentencing children to life without parole. The court declared unambiguously that “youth matters” in sentencing.

By contrast, in Miller v. Alabama, the U.S. Supreme Court outlawed only mandatory life without parole sentences — not all life without parole sentences — and only for youth under age 18. And in 2021’s Jones v. Mississippi, the Court signaled that it was done advancing protections for kids facing life in prison when it declined to require sentencing courts to make a separate factual finding of “permanent incorrigibility” prior to imposing on a child a discretionary life sentence without the possibility of parole. Please read that again. This means that, as far as the Court is concerned, it is totally constitutional to sentence a child to die in prison. The federal floor is made up of mere procedural protections, and pretty weak ones at that. Justice Sonia Sotomayor’s dissent in Jones spoke directly to sentencing courts: “For present purposes, sentencers should hold this Court to its word: Miller [is] still good law” — despite the fact that the majority’s holding in Jones appeared to eviscerate the progress of Miller and its kin.

Massachusetts isn’t the only state to have heard Sotomayor. Two other states, Washington and Iowa, have declared it categorically unconstitutional under their state constitutions to sentence people under 18 to die in prison. Michigan’s supreme court has held that courts must consider the mitigating qualities of youth when giving sentences of life without parole to 18-year-olds, in addition to minors — a modest extension of Miller, but an extension nonetheless. The Washington Supreme Court broadened those protections to include people up to 20 years old. (A Washington appellate court recently declined to extend that holding to 24-year-olds.)

Notwithstanding the recent appellate decision on 24-year-olds, Washington’s anti-punishment clause is something of a state constitutional jewel. It bans “cruel punishment inflicted,” not just “cruel and unusual punishment” like the federal Eighth Amendment. This jewel becomes particularly shiny when it colors how the court interprets even federal youth jurisprudence. In State v. Houston-Sconiers, for example, the Washington Supreme Court read into Miller a limit to all mandatory minimum periods of incarceration as cruel and unusual, not just those that involve lengthy or de facto life without the opportunity of parole sentences.

Meanwhile, in 2017’s New Jersey v. Zuber, the New Jersey Supreme Court extended Miller to sentences that are the practical equivalent of life without parole. It built on that holding in 2022’s State v. Comer, where it held that juveniles sentenced under a statute that required them to serve a minimum of 30 years in prison with no possibility of parole may petition the court to review their sentence after 20 years — a lookback necessary to save the statute from “constitutional infirmity.” The Comer court said the statute left no room for sentencing judges to consider the mitigating qualities of youth as required by Miller and Zuber. The court noted that the state constitution’s ban on cruel and unusual punishment “can confer greater protection than the Eighth Amendment affords.”

Four years earlier, in State in Interest of C.K., the New Jersey Supreme Court held that a lifetime sex offender registration statute, with no method to terminate registration, violated a youth’s substantive due process rights under the state constitution. The court took issue with the statute’s irrebuttable presumption that such youth would always be a risk to society. Allowing youth to be “branded as irredeemable” — “at a point when their lives have barely begun and before their personalities are fully formed” — is “not supported by scientific and sociological studies or our jurisprudence,” the court said. The clear takeaway: New Jersey blows the feds out of the water on the decency scale, and beats most states, too.

Other states have juvenile protections grounded in state rights that have no federal counterpart. For example, in Louisiana, the state constitution prevented the legislature’s attempt to add to the list of offenses that subject youth to potential adult prosecution. The Louisiana Supreme Court in State in Int. of D.T. held that a constitutional amendment was required to expand the list of offenses which may be excepted from juvenile court jurisdiction.

California provides another example. In 2016, Californians passed Prop 57, which contained a statutory provision that ended prosecutor’s ability to prosecute and sentence juveniles as adults absent an order from a juvenile court judge. The statute was later amended again to clarify that a minor may only be transferred out of juvenile court if “clear and convincing evidence” demonstrates the minor “is not amenable to rehabilitation.” These changes led a California appellate court to label an order transferring a minor to adult court an unconstitutional “miscarriage of justice” because the judge had used an older, less favorable standard in deciding to transfer the case. A true consideration of amenability to rehabilitation would “likely” require expert evaluation, the court said, not just a social history provided by a probation officer.

More than 50 years ago, Chief Justice Warren Burger wrote a concurring opinion in California v. Green just to give props to state constitutional jurisprudence, citing “the importance of allowing the states to experiment and innovate, especially in the area of criminal justice.” He noted that “if new standards and procedures are tried in one state, their success or failure will be a guide to others and to the Congress.” Justice Louis Brandeis was an even bigger stan, describing states as the laboratories of democracy in New State Ice Co. v. Liebmann: “A single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

Massachusetts, Washington, New Jersey and others have the courage to treat kids like kids. Here’s hoping other states follow their lead. And, please, young attorneys, seasoned attorneys, all attorneys: do not discount your state constitution.

Kristina Kersey is an assistant professor at the University of Tennessee College of Law, where her scholarship focuses on the juvenile carceral system and youth rights. She previously worked in youth defense for over two decades.

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