Kate and Leah attempt to wrap their heads around Aileen Cannon’s bonkers decision on the Trump classified documents case. Then, Leah talks with Josie Duffy Rice, Kathrina Szymborski Wolfkot, and Kyle Barry about the promises and challenges of relying on state courts and state constitutional law to address the criminal legal system. Check out Kyle’s piece on the subject here.

TRANSCRIPT

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Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

Kate Shaw Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts for this segment today. I’m Kate Shaw.

Leah Litman And I’m Leah Litman. And dearest gentle listeners, on our term recap episode, you heard us foolishly say that we had some evergreen content cued up for you that we had recorded to give ourselves a bit of a break in July, and you will hear some of that content later in this episode. But because Eileen Cannon is in the middle of her brat summer. Apologies to Charlie XCX. We also needed to record this topper to bring you up to speed on the latest from Florida woman. Just like last week when we read Josh Hawley’s book so You don’t have to. This week we read Eileen Cannon’s opinion dismissing the indictment against Donald Trump on the obstruction of justice and hoarding classified documents charges. So you don’t have to do that either.

Kate Shaw I really wish that I was not professionally required to have read that opinion. I would like that hour, two hours of my life back.

Leah Litman I’d like my brain cells too.

Kate Shaw That’s a thought. That would also be nice. So, you know, just to quickly bring you up to speed, as we have noted throughout this season of Donald Trump prosecutions, this Florida case before Judge Cannon is or was in many ways the most straightforward and open and shut of the cases against Donald Trump. Trump clearly retained classified documents at Mar-A-Lago long after he was president. Those documents apparently included information about nuclear secrets and intelligence sources and methods, among other things. Prosecutors have video and photographic evidence of people moving documents and storing them in places including Mar-A-Lago bathrooms. As the FBI was seeking through an initially protracted and collaborative process of seeking voluntary return to get the documents back. There are also recorded conversations in which Donald Trump brags about having classified documents and admits that he hadn’t actually declassified them. So on the merits, and that’s just a sampling of the evidence. The case is a very, very bad one for Donald Trump, and this meant that Judge Cannon was left to resort to pretty outlandish means to make the case go away.

Leah Litman Basically, between her prior reversal at the hands of the very conservative 11th Circuit, which rebuffed her earlier efforts to interfere with the case. I kind of think Eileen phoned a friend about how to junk this case once and for all. And that friend was Clarence Thomas.

Kate Shaw And what a friend he was to her and to Donald Trump.

Leah Litman A best friend. Just like to Harlan Crow.

Kate Shaw Exactly.

Leah Litman He has so many friends.

Kate Shaw So many best friends. So when we did our emergency episode on the Trump immunity opinion, we actually didn’t spend a lot of time talking about Justice Thomas’s concurrence. Although Melissa, in her infinite wisdom, both noted it and called it presciently a canon concurrence. Or maybe it was a can concurrence, since it seemed clearly designed to either prod Judge Cannon along in her path of dismissing the indictment, or maybe just write her a roadmap as to how to do that. And it did that by signaling Justice Thomas’s interest in one of the arguments that Ken was entertaining about why the entire prosecution before her was invalid.

Leah Litman I feel like there is an obligatory come on, Eileen joke here, so just have that in your mind.

Kate Shaw I got it. I mean, is anything ever going to top a Stacy’s mom joke? I’m not sure. I don’t think so. We’re not. We’re not even to try. But come on, Eileen. All right. So the argument that Thomas essentially laid out for Judge Cannon runs something like this. The appointments clause of the Constitution gives the president the authority to appoint principal officers. The Constitution goes on to say that the Congress may, by law, vest the appointment of such inferior officers as they think proper in the president alone, in the courts of law, or in the heads of departments. And some geniuses insisted that Congress has not, by law, as the Constitution requires, vested the appointment of special counsels in department heads, and here the relevant department head is the Attorney General. Therefore, this argument runs. Special counsels have to be appointed by presidents. And because Jack Smith, the special counsel in this case, was not appointed by the president, but by the Attorney general, everything Smith has done is invalid. Again, Thomas basically devoted his entire concurrence in the immunity case to this argument, even though Trump wasn’t even making that argument in that case. Right, Thomas, just to spell this out, Thomas was not content for Trump to win an enormous, sweeping victory on immunity. He also had to offer another independent on argued basis on which Trump might win bigly, which was that the appointment of Jack Smith and Robert Mueller for good measure was constitutionally improper from the jump.

Leah Litman The Republican appointed justices are the best lawyers Trump never had, like they are the true. Elite strike force legal team. And the argument Justice Thomas outlined in his concurrence. Concurrence is the argument Eileen Cannon used to dismiss the indictment. We said we read her opinion, so you don’t have to in trying to characterize it. I need to know, like, what is one step down from hist poetry or slam poetry? Because that’s where this one falls for me.

Kate Shaw I want to come to the defense of data as poetry. I actually wasn’t trying to disparage it broadly. I was just suggesting that Kavanaugh was ridiculous. But I do have actually a contender if we’re looking for, an analogy which is vogue on poetry, which is the third worst form of poetry in the universe. Okay. And that is both a Hitchhiker’s Guide to the Galaxy reference and a reference to the epic forthcoming Harvard Law Review foreword not written by one of the hosts of this podcast. And it is amazing. And that is all I’m going to say about that. But anyway, Vogue on poetry is, I think, my nominee for, you know, the best comparison to Cannon’s opinion. In this case.

Leah Litman I didn’t think things could get much worse than a Brett Kavanaugh concurrence. And yet, here we are, America.

Kate Shaw And you know what, though? And poetry is only the third worst form of poetry in the universe. So I see.

Leah Litman You’re telling me things could get worst?

Kate Shaw I’m telling you, they almost certainly will. Yeah. So anyway, back to the reasoning in bigger quotes of this opinion. So if you are thinking based on the description that we just offered of the Thomas slash cannon argument, you may be thinking, wait a minute. There have been a lot of special counsels, not just Jack Smith, but Robert, her Mueller, the special counsel overseeing Hunter Biden’s prosecution. You would be correct. And that is just in the past few years. So it turns out that both longstanding executive branch practice, as well as clear judicial precedent and the text of statutes passed by Congress are essentially impossible to square with Cannon’s conclusion in this case. So maybe let’s start off by quickly checking her claim that no law vests the appointment of special counsels in the heads of departments. There are actually quite a few relevant statutes. Let’s start with 28 U.S.C. section 515, which provides, quote, each attorney specialty retained under the authority of the Department of Justice shall be commissioned as Special Assistant to the Attorney General or Special Attorney. Seems clearly to contemplate the Attorney General commissioning and specially retaining attorneys, doesn’t it?

Leah Litman Yes. Oh, those are literally the words.

Kate Shaw Of the statute. The statute? They sure are. Let me let me continue. The same provision also refers to, quote, any attorney specially appointed by the Attorney General under law, close quote, and provides that those attorneys, quote may, when specifically directed by the Attorney General, conduct any kind of legal proceeding. Who does canon think is being referred to in these provisions? If they don’t allow for the retention of attorneys like Jack Smith? Let me read just one more. And that is 28 U.S.C. section 533, which provides that, quote, the attorney general may appoint officials to detect and prosecute crimes against the United States. Should be Boom lawyered. And yet it’s not.

Leah Litman It is not. You know, I want to go back to how you introduced seize laws, which is that since the beginning of time, attorneys general have appointed special counsels. You know, the practice goes back to at least the grant administration. And since 1999, a potentially relevant cutoff date. I’ll explain in a second. There have been like at least seven special counsel appointments. So the reason why 1999 is a potentially relevant cutoff date is that from 1978 to 1999, the Ethics and Government Act was a law that also specially authorized the appointment of independent counsels to investigate and prosecute government officials. That law was passed in response to Nixon and Watergate. Don’t worry, we’ll return to that period in a bit. But Congress let the independent counsel provision lapse in 1999, in part because of evidence of special counsel abuses Korff, Ken Starr and Brett Kavanaugh. But that just means some people say, well, that law authorizes special counsel. So all the appointments between 1978 and 1999 were fine. But that, of course, would exclude the 100 years of appointments before 1978. But the real history and tradition in this country is no law decides. Judges get to say whatever they want. History notwithstanding.

Kate Shaw Indeed. So that’s, you know, the period from essentially post-Civil War till 78, then 78 to 99, we were under this independent counsel statute. And then following the lapse of the independent counsel statute in 1999, the Department of Justice issued regulations implementing the statutory authorization of the appointment of special counsels by the Attorney General that predated that 20 year period in which we had this independent counsel statute. So post 99, under these regs, the Attorney General has appointed multiple special counsels, and Congress seems pretty clearly to have believe that all of that is just fine. There is not a hint of Congress responding to say something like, no, these laws don’t authorize appointments of special counsels. Instead, Congress has clearly acquiesced and confirmed DOJ’s view that the laws Congress has passed do authorize the appointment of special counsels.

Leah Litman But now, back to Watergate, as promised. So during the affair, Watergate, or as Brett Kavanaugh likes to call it, you know, the worst period in American history where people entertained the idea that presidents are not above the law for special counsels were appointed, though they called them special prosecutors. And, of course, one of those proceedings made its way to the Supreme Court as Richard Nixon resisted efforts to obtain Nixon’s recordings. So what did the courts say in the United States versus Nixon? Or as Brett Kavanaugh likes to call it, one of the worst decisions in United States history? Well, the court observed, quote, Congress has vested in the attorney general and, quote, the power to conduct investigations and start, quote, again, vested in him, that is, the attorney general, the power to appoint subordinate officers to assist him in the discharge of his duties, end quote. Then, citing the laws sections 515 and 533, we noted above, and the court continued, quote, acting pursuant to those statutes and quote, the Attorney General begin, quote again, has delegated the authority to represent the United States in these particular matters to a special prosecutor with unique authority and tenure. End quote. How did Judge Cannon grapple with these aspects of the Nixon decision? By calling them dicta.

Kate Shaw And beginning with this, I can’t remember. Was it with a Kavanaugh concurrence that you, on an earlier episode, might have referred to as like a bad term paper? I do think that her exposition of the distinction between holdings and dicta also deserves that. Yes, a word of a truly, truly terrible term paper. So but cannon tries to do is to get out from under this pretty clear language in Nixon by suggesting that these statements were not necessary to the disposition of the case. They weren’t presented, they were not argued. And in a way, I am not defending Judge Cannon in any way, but it is in some sense true that Nixon does not contain pages and pages of discussions of the permissibility of this appointment, and that is because no one was challenging. The appointment of the special prosecutor at Nixon was not. And that only underscores another measure, I think, of the current court canons radicalism, which is that they are embracing positions that no one even had the audacity, including one Richard Nixon, to take, because in light of 100 years of history and tradition, appointing special counsels or special prosecutors, it has been widely accepted by courts and executive branch actors alike that even if there are arguments on the margins, the core permissibility of this practice is well settled. So Nixon never raised this challenge. There have subsequently been some challenges to appointments of special counsels raised, but every court to have actually grappled on the merits with these arguments, and that includes a very extensive opinion by the D.C. circuit, has rejected those challenges.

Leah Litman And also, just going back to Nixon, like, I think there is a serious question about whether. Though that language is even dicta. That is whether it was unnecessary to the holding, since in order to decide whether the dispute in that case was justiciable, that is whether the court could resolve it. The court had to decide whether the regulations gave the special counsel authority to contest the president’s invocation of executive privilege. Because Nixon had argued in the case, the entire case was non justiciable. There wasn’t a controversy because presidents decided that issue, not special counsels. But I digress. I wanted to kind of underscore, like both the hubris and the hackery of this opinion. As we have now outlined, special counsels have been appointed for more than 100 years. Every court that has addressed the argument has rejected this challenge. Congress has seemingly ratified the attorney General’s ability to appoint special counsels, in part by appropriating money to pay these attorneys, and the 1966 statutes were passed in light of almost a century of appointing special counsels at that point, which also sounds like ratification to me, and Judge Cannon, in her infinite wisdom, is like, you know, everyone got it wrong. I read the dictionaries real fucking hard, sounded out the words like very carefully, the words specially retained under authority of Department of Justice. And she’s like retained, retained. Retained obviously does not mean appointing additional attorneys. It doesn’t say appointed like she actually says this in the opinion absent from you know this law is any reference to the verb appoint an active verb used in the appointments clause itself, you know? And at times I take her to be saying, you can repurpose someone from within the department for a new role, but can appoint from outside.

Kate Shaw She would find a way out from under this appointment if he had been somewhere. I told you in percent. Well, yeah, she does, like, gesture in that direction. Yeah.

Leah Litman And as to the provision authorizing the attorney general to appoint officials, she says the term officials is not synonymous with officers. This is definitely like a boom, lawyered iteration of extreme textualism. She does deign to acknowledge that the words share linguistic echoes and roots, though.

Kate Shaw I mean, when you were just talking about the hubris and the kind of everybody got it wrong, it was just I was just brought to mind Melissa’s. I learned it from watching you, dad. Like, sort of description of the Fifth Circuit. I think that’s very much. There is so much like I alone understand it. That is the vibe of so many of the Supreme Court’s recent opinions. Right? Think about right. Overruling Chevron and saying both the unanimous court in that case and all of the court’s since just failed to understand the basic inconsistency of that rule with the 1946 Administrative Procedure Act. We alone understand it. You know, like, there is like a we alone can fix it. We alone can see it, we alone can understand it vibe and and yet it is. It is one thing. It’s galling enough when it is the Supreme Court taking that position. But a district court judge I mean wow. But she is emulating what she has seen them do. And so and so I think that that that is sort of the through line. Okay, a couple of additional notes. I mean, one, in addition to claiming that this language from the Nixon opinion is dicta, she also has to get around the fact that even dicta is supposed to get some weight in the 11th circuit, and she tries to do that by basically saying like, no, this unanimous 1974 opinion is not well thought out, thoroughly reasoned and carefully articulated.

Leah Litman Hot calling kettle pot meat.

Kate Shaw No no no no no. That’s her opinion is all those things and the way you know, that is because she repeatedly tells us after engaging in careful study and careful review. I mean, this is a real like tell not show like if you’re if you have to continually insist that you’re answering the question the way you are because you have engaged in careful study and careful review, which again she says repeatedly. And also, by the way, it was like a few weeks and she heard oral arguments by some law professors on this matter. But fine. She’s engaged in very diligent study, since I feel like that’s usually a tell that in fact, that is not what has transpired.

Leah Litman Yeah. And on this point that she would have found a way to invalidate this case no matter what. She also suggested that even if Congress passed a law authorizing the attorney general to appoint special counsels, she wasn’t quite convinced. Special counsel is qualified as the kind of inferior officers that could be appointed by department heads. So maybe that statute would be unconstitutional. But, you know, back to the Appointments Clause, because that is the kind of the bulk of the argument. You know, the hubris point is that everyone has been doing it wrong for 100 years. But her position would also call into a question, you know, a bunch of other positions that attorneys general create that aren’t Senate confirmed, like deputy Solicitor general’s or deputy assistant attorney generals in various DOJ departments. And so that’s a hubris. But there’s also the hackery, like it has been clear for a while that this is not a case of just incompetence masquerading as malevolence. And the latest antic to me, just confirms it, like how decayed our institutions have become. And we’re made to be you during the Trump presidency. And how much worse they will become under a second Trump presidency. Because if he wins, you know, Eileen Cannon is going straight to the 11th circuit. Probably going to be on the shortlist for the Supreme Court and everyone else but on the courts is going to be like calm.

Kate Shaw Yeah. In case that sounds like we are just speculating, like, no, we are not. So on this point, there was a tweet from Representative Matt Gates just after this opinion came down, her judicial photograph right in her robes as a judge cannon. And just the text, future Supreme Court Justice Cannon. And as Professor Ruth Ben-ghiat wrote on Twitter following the opinion as well, quote, the logic of corruption is one reason it is publicized when you are trying to destroy the norms of democratic justice, such as the rule of law and impartiality. You have to signal to others the rewards for transgressing professional ethics and more. And I thought that was a very good gloss on what we saw, with gates and others seeming to kind of attaboy Judge Cannon for this truly lawless opinion. She has now been celebrated for it. And that just further incentivizes this kind of behavior from her and other justices. I just said justices.

Leah Litman Oh, God.

Kate Shaw The point is, she wants a promotion, and she is being told this kind of behavior is going to position her for one. And I just I was brought to mind of something from just a couple of years ago that I think actually illustrates just how insane the lower federal courts have gotten in just the last couple of years, and that is the lower court opinion in the Dobbs case. Dobbs, of course, in 2022, overruled Roe versus Wade. But that was a case involving a Mississippi ban on abortion after 15 weeks. The law on its face was inconsistent with Roe and Casey, and so applying those precedents required striking down that Mississippi law and even the Fifth Circuit understood that. So when this case, when the Dobbs case was before the Fifth Circuit, Judge Ho wrote a concurrence agreeing that this district court opinion enjoining the 15 week ban had to be upheld. And what Judge Hall wrote was basically he says, look, Roe is wrong. It’s not supported by the text or original understanding of the Constitution. But he goes on to say, basically, the only thing that requires us to rule in this way is Supreme Court precedent. He says. Look like we weren’t even asked to give oral argument in this case. The Mississippi lawyers kind of understood they were going to lose here. And that omission, meaning the omission of a request for oral argument, he writes, makes no sense. But for the fact that Supreme Court precedent requires affirm. And so even Judge Ho so hostile the constitutional protections for abortion understood that it was not up to him to overrule Roe versus Wade in that case. And I think cannon has essentially abandoned even that. I mean, there’s just no way to reconcile this opinion with a system of vertical precedent in which lower courts are bound by the pronouncements of higher courts. Because she doesn’t recognize those pronouncements of case. She tries a little bit to get around Nixon, but fundamentally, she doesn’t think I don’t. I don’t think Nixon binds her. What she decides she’s bound by is these assertions of their kind of ideal vision to the Constitution and law by particular justices, whom she believes are entitled to deference and weight and are legitimate expositor of the meaning of the Constitution. So that’s Justice Thomas in his immunity concurrence. That’s Justice Scalia in his Morrison dissent. But that’s not the unanimous Supreme Court in Nixon. It’s not the majority opinion in Morrison. And you can sort of see there are some sources of authority she’s willing to credit as legitimate, and some she is not. And that is wildly inconsistent with the rule of law. Maybe one more thing to mention, even though, as you said, Leia, most of the opinion is devoted to this appointments clause issue, it also kind of throws in casually that the funding mechanism for the special counsel is also unconstitutional under the appropriations clause. But she says that. But we do have to worry about remedy because I I’m striking the whole thing down on other grounds. But, you know, belt and suspenders, I get.

Leah Litman Exactly, lots of careful study and careful review went into this opinion. Some of you wrote in with some questions that we’ll just kind of respond to. So this decision is appealable. The Solicitor General has already authorized an appeal. An appeal has been docketed to the 11th Circuit. But this decision guarantees there is not going to be a trial before the election. Some people wanted to know, like, why not go with an immunity ruling? While, you know, the Supreme Court’s decision in the immunity case directed lower courts to go through allegations in an indictment with a careful fine tooth comb, and that’s not something Eileen Kennedy was willing to do. So, you know, it also like avoiding the immunity ruling preserves that as, like a backstop, right, to like, do do in the event that this case comes back to her, some other people wanted to ask about the chances that she’s removed from this case after an appeal. I think virtually no chance, in part because, you know, the 11th Circuit would have to say this argument that Justice Thomas signaled interest in is so outlandish and so hackish. We are required to remove the district court for adopting it. And so I think Justice Thomas really did give her cover in important respects here. So anything else on this delightful Appointments Clause decision?

Kate Shaw I mean, in terms of what next? There is the possibility of reversal, maybe even reassignment by the 11th circuit. I mean, there is talk about a refiling of these charges by the U.S. attorney. Maybe she finds a way to find the U.S. attorney position unconstitutional as well. Who knows? But I’m not sure that that’s likely to happen in the short term. I think an ordinary appeal is more likely. And so this two is on hold for the foreseeable future. And I guess it just really underscores the correctness of the sentiment voiced in the shirt you are wearing right now. Leia, which is Justice Sotomayor’s dissent in the immunity case with fear for our democracy, I dissent. I mean, the fear just mounts by the day. And I think that’s the uplifting note I need to end on.

Leah Litman Great. So I’ll just add one more sentence on the possibility of refiling. I think part of why some people think that is unlikely is it would require Merrick Garland to authorize an indictment against the president’s political opponent, and some people don’t think that’s likely. And even if he did so, I think there would be a question about whether the evidence Jack Smith gathered would be admissible in that proceeding. You know, if Jack Smith’s appointment was invalid. And so, you know, there are difficult questions that would arise there. Anyways, so thank you all for listening to this commentary on the latest and greatest emanating from the great state of Florida. I know several of you. Many of you wrote in requesting an emergency episode on this. The bar for those during the summer is quite high after the court finishes releasing its opinions, and we have been hoping to be able to use episodes we had already recorded this month. But alas, it seems it is always time for some bad decisions.

Kate Shaw On that note, stay tuned for a segment on state constitutional law, which is focused on criminal cases with some very special guests. The court’s decision in Grants Pass, which rejected an Eighth Amendment challenge to a law criminalizing homelessness, underscores the need for state court action in this space, and that is the topic that we will turn to next.

Leah Litman [AD].

Leah Litman With hot state court summer in full swing, we wanted to bring you an episode focused on state courts and state law, which we’ve talked about a lot on the show, at least with respect to certain topics like reproductive rights as in Michigan, Ohio, Kansas, Arizona and other places, as well as voting rights like in Wisconsin and Pennsylvania. But state courts and state law are super important for so many issues that touch so many people’s everyday lives in really significant ways. So we don’t always have time to cover all of those matters, given everything that the Supreme Court has going on. Which is why in this hot state court summer, we are bringing you an episode focused on state courts and state law as they relate to criminal legal matters. I am delighted to be joined by three amazing guests. I’m going to rattle off their names and impressive resume, so please hold your applause for a second until we get through all three intros. First we have Kyle Barry, who is the director of the State Law Research Initiative, a legal advocacy organization dedicated to reviving and strengthening state constitutional rights that prevent extremes in criminal systems, with a focus on excessive prison terms. Kyle previously served as senior counsel at the Justice Collaborative and the NAACP Legal Defense and Educational Fund, and Kyle has written extensively on the courts, judges and civil rights for a variety of outlets. We also have, Kathrina “Kasia” Szymborski Wolfkot, who is a senior counsel at the Brennan Center for justice at NYU law, where she works to realize a fair and inclusive judicial system. Kasia is the managing editor of State Court Report, a Brennan Center publication focused on state courts and state constitutional law. Kasia previously worked as a lawyer at the MacArthur Justice Center and developed a robust state constitutional practice focusing on state anti punishment constitutional provisions to protect and expand the rights of people housed in carceral facilities. And finally, we have Josie Duffy Rice, who is a journalist whose work is primarily focused on criminal justice. She is a host of the excellent series podcast on reformed. And she also co-hosts Crooked’s delightful What a Day podcast. So Kyle, Kathrina and Josie, welcome to the show.

Josie Duffy Rice Hi.

Kathrina (Kasia) Szymborski Wolfkot Hi.

Kyle Barry Thanks for having me.

Kathrina (Kasia) Szymborski Wolfkot Thanks for having us.

Leah Litman So there are also some kind of small world connections between this, group. I should note that Kasia and I went to law school together. Kasia, this is a moment where you are allowed, at most, one embarrassing story about me. So I’m going to give you two seconds. And then we will quickly move on.

Kathrina (Kasia) Szymborski Wolfkot Yeah. I came prepared to talk for one hour about what Leah was like in law school. Or I could talk about state constitutions.

Leah Litman State constitutions it is. Perf.

Josie Duffy Rice Oh, my God, Kyle and I are work besties. You guys are law school besties. This is works out great.

Leah Litman So why don’t we dive right in? Why is it so important for state courts and state constitutions to play a bigger role in enforcing and articulating rights against extreme punishments? Or to put another way, you know, what do you want to answer this part of the question? Like, what are some additional ways that the Supreme Court is terrible, horrible, no good, very bad that they might not hear about as much on this show given the capacity of the court’s criminal docket as of late.

Kathrina (Kasia) Szymborski Wolfkot I can start with that one. Federal courts are currently inhospitable or even just hostile to, the claims to claims of abuse or torture behind bars. So I know much more about conditions. I think Kyle knows much more about excessive sentencing, so I’m just going to limit my answer here to conditions. But an excessive sentence is like just the sentence that is handed down by a judge after you have been convicted of a crime, like how many years you’re going to spend in prison, for example. And then once you get to prison, you, sometimes you’re beat up, sometimes you are held in, extreme cold, sometimes, some sometimes. In one case that I handled in federal court, an elderly man who had, open source on his ankles was forced to stand in a backed up shower that somebody else had defecated in for 45 minutes as waste water seeped into his wounds. When he got out, the correctional official, stripped his cell of anything that he could use to, to clean himself, and then, forbade him from showering for a week. And he developed life threatening, a life threatening infection and almost died. So that is the kind of thing that happens all over this country that we took that case. It went up to the 11th circuit, and the 11th circuit was like, yeah, you know, this is bad. But, you know, we have never ruled in this exact circumstance that this is unconstitutional. So this correctional official is protected by qualified immunity. So we, the Supreme Court decided not to to grant cert so that that’s where I ended. But qualified immunity is is is one reason why these claims go nowhere. There’s lots of other like, judge made doctrines, and like laws passed by Congress, like the Prison Litigation Reform Act that make it really hard for people tortured in prison to get any relief.

Leah Litman And then, Kyle, I think you wanted to add about sentences.

Kyle Barry Yeah, I mean, I would. Describe the Supreme Court’s jurisprudence when it comes to prison terms as just, a complete moral, intellectual and constitutional, failure, which is to say, a complete abdication of the judicial role in enforcing constitutional rights and in this case, the Eighth Amendment right against cruel and unusual punishment, which is at least theoretically understood as a right against excessive or extreme sentences. And the court has essentially taken the position that, if you’re an adult who’s convicted of a crime, you the state can send you to prison for however long and there are virtually no constraints, on that. A number of commentators, I think Rachel Bacow at, NYU law is a leading voice on this, has called it the Court of Mass Incarceration for this very reason, because extremely long prison terms have proliferated under its watch. And it’s done nothing. So I think there’s an opportunity there for state courts and state constitutions to fill that gap. And the other piece of it is that federal constitutional law is willing to tolerate so many atrocities just because they’re attached to a prison term, things that we would normally find, morally and legally repugnant, separating people from their families psychologically and physically torturing people. If, if it happens in the course of a prison term. Again, the Supreme Court has been completely hands off, providing no restraints, no limitations and no rights enforcement, whatsoever. In that context.

Leah Litman Josie, I saw you nodding along. I don’t know if you wanted to add anything.

Josie Duffy Rice Yeah, yeah. No, I mean, I think something that this podcast. Has been clear about, and I think people have been talking about a lot more recently, as just like the Supreme Court’s power is not just in what it does it and what it doesn’t do and what it doesn’t decide to take, and it doesn’t. So I said, look at and what you know, it decides it has no power over. And, you know, there has been kind of a like, eyes closed, ears closed, approach to, criminal law. When it comes to the Supreme Court, especially more recently, people sometimes don’t realize how much of criminal law is local. And, obviously that doesn’t mean that it never becomes relevant to the Supreme Court. But, you know, we’re talking about states where 95% of cases are and we’re talking about, these, these incredibly powerful courts that end up being the, you know, the bottom line for so much of this stuff, given Scotus, is refusal to kind of engage. And they just don’t get as much attention as, you know, they deserve when we are talking about the powers that shape criminal. Criminal law in this country.

Leah Litman Yeah. So I definitely want to come back to the volume of cases that are heard in the state courts, because I think that that is really important. But first, I want to follow up on something that you all kind of mentioned, which is the things that the Supreme Court doesn’t do, that is the spaces it kind of leaves open to just green light. You know, what is happening either with the lower federal courts or what is happening with lengthy sentences or in prisons. So I guess could you you already gave an example of a case where the Supreme Court essentially allowed a lawsuit against corrections officers to fail, on the basis of qualified immunity on facts, where it seems like that should have warranted some liability. But I was curious if, you know, you had additional examples or areas of law where you think the Supreme Court has just kind of vacated the space, and not attempted to enforce constitutional rights?

Kathrina (Kasia) Szymborski Wolfkot Yeah. I mean, unfortunately, I have too many examples, like another one that I always go back to is, Johnson Johnson v Prentice. It was another MacArthur Just Justice Center case where a man was held in solitary confinement for years without any exercise, like not even an hour of exercise. I think there was a stretch of 18 months where he didn’t even have one hour of exercise. And, the Seventh Circuit found that there was no constitutional violation there. And, the Supreme Court declined to review that case, and it could be worse. Like, we have a, like, decades of, Justice Thomas dissents where he’s basically saying, hey, I don’t think that the Eighth Amendment should apply to prison conditions at all. And I would love for, like, the right case for us to be able to reverse ourselves on ever having said that, the Eighth Amendment has anything to do with prison conditions. So I think that that’s one reason why advocates started looking to state courts, because it was like, this is kind of a scary, a scary time to be, doing these kinds of bringing these kinds of cases to two federal courts.

Leah Litman So I promise I will let Kyle and Josie talk in a second. But I just want to underscore again, kind of iterate something Kasia said, which is things could get worse. Justice Thomas is laying breadcrumbs to make the law even harsher for people in prison right now, when he says the Eighth Amendment wouldn’t apply to prison conditions, what he is saying is, the only thing the Eighth Amendment has to say is about the length of the sentence that is imposed on you in court. What happens to you in prison after that? The Constitution just has nothing to say, nothing to see here. And so, like all of those cases that you just mentioned would go nowhere.

Kathrina (Kasia) Szymborski Wolfkot Yeah. Well, and I think Kyle probably should jump in here about the what what Justice Thomas might think that the Eighth Amendment should say about the length of a sentence.

Leah Litman Spoiler alert. Also, nothing but. Yes.

Kyle Barry How did you know? Yes. Yeah. Things. Things get, even worse than that. Yeah. The position I you know, what I would describe as sort of the, fed sock right wing, quote unquote, originalist account of the Eighth Amendment, that has gained some traction and various opinions from certain justices, e.g. Scalia, over the years is that the Eighth Amendment has absolutely nothing to say about the severity of a criminal punishment and prison sentence for prison sentences in particular. And so, if you if if prison is considered an acceptable type of punishment, then the number of years is beside the point for Eighth Amendment, analysis. That’s their view. That’s never gained a majority of the Supreme Court. But that’s the kind of, threat that the the far right wing of the judiciary poses, which is to say, you know, they might step in if, pulling out your fingernails is a punishment for a crime and say, that’s cruel and unusual. But beyond that, when it comes to the severity, if the punishment itself is permitted, the court’s not going to do, anything, about it. And as long.

Josie Duffy Rice As they pull out your fingernails in prison. Right? And then you’re fine. That’s actually okay. Yeah.

Leah Litman America’s thought leaders.

Kathrina (Kasia) Szymborski Wolfkot That’s exactly right.

Kyle Barry Exactly right. Yeah. What a court can’t order, can’t order it, but prison officials are allowed to do it.

Leah Litman The majesty of the law or the Eighth Amendment, according to Justice Thomas. So, you know, I feel like we have already been gesturing in this direction, but I want to make the point explicit. Like what is at stake here? You know, if state courts became more aggressive in policing either lengthy prison sentences or demanding humane treatment for incarcerated people, like what is the potential effect on a national scale?

Josie Duffy Rice I mean, I’ll give a general answer and then, people who know the law better than me can, get more specific. But I would just say that, like everything in criminal law, basically trends and, and approaches and. Culture around criminal law originates, on the state level and even more on the local level. So whenever we kind of have a conversation about what the federal government is doing, whether it’s the president or Congress or the Supreme Court, whether it’s, you know, like mandatory minimums or, the 1994 crime bill or, the death penalty, like, it’s that’s a trickle down effect. And we tend to think that the federal government has created the culture that reflects back. But that’s wrong. What is actually happening is that in the 2300 prosecutors offices and 18,000 police departments and 50 states and a gazillion courts, like that is where, criminal law practices become, we go from thinking they’re cruel or unusual to them being very usual and us thinking they’re fine. Right. And so when we think about what’s at stake, like there is the specifics, which again, people who are real lawyers, we’re going to get into better than, than than me. But I would just underscore the, the pattern of behavior here, which is a cycle that lots of people, generally have backwards, which is like, this is where it’s shaped. It is shaped here. Right. And these places and these courts by these people who have a wider berth to act, get lots of attention, which is both good and bad, and are sometimes willing to be bolder and more creative, sometimes almost always willing to be bolder and more creative, than their federal counterpart.

Kathrina (Kasia) Szymborski Wolfkot Yeah, I love that framing. And I just want to add, in terms of the stakes from a condition’s perspective, like the prevalence of abuse behind bars is really astounding. And as I Josie mentioned this before, about 95% of cases are in state court and over 90% of people incarcerated across the United States are incarcerated by states. So they’re in state custody. At any given moment, tens of thousands of people across the country are in solitary confinement. Tens of thousands of people every year are sexually assaulted behind bars. I think it’s something like 45% of people, who are incarcerated have been diagnosed with a mental illness. And something around 75% of people who who, who are incarcerated say that they’ve never been offered any kind of mental health care, behind bars. So, I mean, I think it’s like an issue of our humanity that like, we need to find a way to solve this. And if the federal courts are not going to step up, like, then we have to turn to the state courts. But if, like, the humanity argument isn’t enough for people, remember, like most of most of the people who are incarcerated are going to end up back in society like they’re going to be your neighbors. They’re going their kids are going to go to daycare with your kids like we want them. We want people to come out, healthy. And we want people to come out like, like ready to, to to be part of society. And we currently have a situation where we are, we’re where people go to prison and they deteriorate because of the conditions behind bars and like, no remedies. There’s nothing that they can do about it. So I’m, I’m really hopeful that, like state courts and state constitutions might help us find a way forward.

Kyle Barry For most of the sort of modern era, you know, the last 60 or 70 years, state courts have too often, in my view, been deferential to what the US Supreme Court is saying around excessive punishments. And we’re going to get into the trend that’s reversing that, with state Supreme Court stepping up, invoking state rights to do a lot more than what the Supreme Court has done. But that hasn’t been, that hasn’t been the norm. The norm has been kind of following the Supreme Court’s lead. And I think Josie very well made the point that that’s extremely odd. Given the nature of these, of these systems. And so it really makes, and is in this area of the law as much as any other, it makes sense for state supreme courts, to step up and do more and exert some power and independence from what the Supreme Court is saying about federal law.

Leah Litman May they embrace their state court, summer and state court spring and all state court seasons to actually do a state court thing rather than the federal one. But, more seriously, Kyle, I think that that point kind of might allow us to transition to a more hopeful and optimistic, part of the show, which is the recent trend of state courts actually departing from what federal courts say are the constitutional protections for either lengthy sentences or conditions in prison. And so, I guess, could you give us some examples of where or how state courts have used state constitutions to expand rights beyond what the Eighth Amendment protections are for lengthy sentences?

Kyle Barry Yeah, sure. So I want to start with two cases that are actually decades old and kind of out in front on this issue, where two state supreme courts looked at what the US Supreme Court did in a particular case and was like, no, this is way beyond the pale and unacceptable, and our state constitution is going to do more. Exactly. One involved the case. There was a 1980 decision from Via Style. The US Supreme Court upheld a mandatory life without parole sentence for someone who, essentially stole about $230 over the course of 15 years through some very small scale check and credit card fraud. The Washington Supreme Court that same year considered a case with virtually identical facts. Someone wrote a few bad checks totaling about $400, and the court said, look, we can’t do anything under the Eighth Amendment because the US Supreme Court just said this was fine. Sentencing someone to death by incarceration over $230. But the court also said our state constitution is its own thing. It has a right in the state against cruel punishments. And this is clearly cruel. And we’re going to strike this down. The sentence is, is excessive. The Michigan Supreme Court in 1992 did the same thing after the US Supreme Court allowed a life without parole sentence for merely possessing drugs. About 650g of cocaine. Court. A divided US Supreme Court. To be fair, said that a life without parole sentence for drug possession was constitutionally permissible. The Michigan Supreme Court, one year later, invoked, its own state constitution to say, no, that’s that’s not that’s not true. And so I do want to underscore that this is not an entirely new trend. But what we’re seeing now over the last few years is courts really expanding protections, in particular for children and teenagers in the category of what’s often called emerging adults, people in their early 20s up to about age 25 or so, and whether they can be sent to prison for the rest of their lives. And a number of state supreme courts around the country have said, that, regardless of where the US Supreme Court would come down on these questions, we’re going to we’re going to protect these young people from the most extreme sentences that, that, that’s provided for in criminal law and strike them down.

Leah Litman I do want to give a shout out to home state Michigan. You know, you mentioned a previous 1992 Michigan Supreme Court ruling. You know, since our Supreme Court flipped to a majority of progressive or Democratic, appointees, you know, they have reached decision saying parole label life sentence for youth, you know, violate the Michigan Constitution also directed that courts have to consider youth when imposing term of year sentences. So message to people like if you want to have a good time, state supreme courts matter. Because like, you know, this is where a lot of the potential lies. So, I guess, like, are there similar trends or examples happening in the conditions context, in addition to policing lengthy sentences and the categories that Kyle mentioned?

Kathrina (Kasia) Szymborski Wolfkot Yeah. I mean, I think certainly, the state supreme courts. State courts more generally have been much more active in the excessive sentencing area. But there have been a few really, really great examples, of, of just like case law that that is what we’d like to see happening across the whole country in the conditions context as well. So again, Washington state is one example. A few years ago and, and and Roy Williams, that court ruled that if somebody is abused behind bars, and they sue under Washington’s Eighth Amendment cognate, they only have to show that the conditions created an objectively unreasonable risk of harm. Which might sound really obvious. Like. Yeah, that that seems like that seems like a kind of reasonable standard. Right. But, and and under the federal law, if, if you sue, to challenge your conditions, you have to show that, the person who actually did the abusing, like, knew that there was like, an excessive risk to you, and disregarded it. So you you basically have to show what is in the mind of your abuser, and it makes it really hard to do things like challenge, like institutional failures where there isn’t, like one particular bad actor to point at.

Leah Litman So that was another Washington example. I think that some of the expansions have come in states that have focused on provisions that are unique to their state constitutions. So I guess could you give us kind of an example of what that looks like?

Kathrina (Kasia) Szymborski Wolfkot Yeah. So there are some, very exciting provisions that just don’t appear anywhere in the federal Constitution. And one of those is a provision that, prohibits treating people in custody with unnecessary rigor. But recently, an Oregon trial court ruled that there unnecessary rigor clause required prison to, provide gender affirming care. Another great case out of Oregon had to do with masking during the Covid 19 pandemic. You know, as somebody who was involved in some federal cases, challenging, Covid conditions, the idea that a court said that I think it was, inconsistent masking exposed incarcerated people in Oregon to like, an inappropriate risk of harm under the unnecessary trigger clause like that felt huge compared to like the the the defeats that we were seeing across the country and federal courts challenging, Covid conditions. So there are some bright spots. But I overall, I think there are a lot of opportunities, in the conditional context, which I’m happy to talk about later.

Leah Litman So I guess I would put that question both to like Josie and the group either, like, are there other examples where, you know, you see positive developments in this area or kind of missed opportunities where you think courts are maybe not doing what they could be doing in this space.

Josie Duffy Rice Yeah. I mean, what I would say is the missed opportunities are infinite and unknowable in a way that is like deeply depressing to think about. And sorry, that’s like a depressing answer. But I mean, I just to say, like, there’s so much harm there. So like the, the day in and day out harm of the system is so overwhelming that like, even to talk about what state supreme courts are doing that federal courts are, you know, not doing. It’s worth underscoring that they’re also not doing enough, nor. Nor almost could they.

Kyle Barry I think that the more positive framing of what Jose was saying is that, while the missed opportunities are infinite, these are also places where the law could go and where I think there is some hope, perhaps especially at the state court level, the law, will go. And so take the example of a recent case from the Massachusetts Supreme Judicial Court, which completely banned life without parole or death by incarceration sentences for anyone under the age of 21. This is significantly further than the US Supreme Court has gone and even other state courts in this area. And I think, what I want to point to about functionally, what the court is doing is that it’s a court that is finally asking the state and the prosecutors to justify what they’re doing to these, young people. So I think the what the court and what other state supreme courts have done in similar cases is to, demand that the state and the prosecutors provide some evidence based justification for imposing, the most extreme punishments, in these cases, upon young people. And so, you see the courts looking to neuroscience and other social science, for example, and noting that the science there’s scientific consensus and, on refuted evidence that younger people have reduced culpability, they have a greater capacity to change. And that’s really important in these cases.

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Leah Litman So I guess I would like to hear, you know, what you think is driving some of these decisions, like what you think is leading state courts to depart from federal counterparts, but also more specifically, whether you think there is something institutionally about state courts that potentially makes them more receptive to these claims, or if it is just it just matters who’s on the courts. And that is, you know, what is doing the work here.

Kyle Barry As to the second question, I think it’s both. And this is kind of what Josie raised earlier about how state courts are institutionally well positioned to be enforcing rights within systems that are inherently state and local systems. And I think there are facets about state constitutions. Joshua talked about some of the rights that are unique to state constitutions that open the door to some more aggressive judicial review in these areas. And I think that’s all been important for state courts as they issue better and more stronger rights rulings in this area. But I think, let’s also be real. Who serves on these courts is is critically important. And, you know, it’s in in part of our advocacy in trying to push for expanded views of these rights. A key part of that is being very straightforward. The courts need more people who have been public defenders in their careers. Courts need more people who have litigated civil rights claims and actually represented it in advocated for, people who have been subject to abuses in these in these systems because, at the at both the federal and state level, that perspective has been largely absent from judicial decision making and replaced by a bench full of corporate lawyers and, and prosecutors. And so I think we need to be real about how much, that that matters. So I think both things are true.

Josie Duffy Rice I’d also say like it’s worth recognizing the broader trend in state supreme courts, right. Which has been, a focus of the Republican project for 40 years. And it reflects that, you know, we have a history in this country of state, supreme courts in this country for years were more democratic, and now they’re more conservative. And that trend, is has continued. And we’ve seen the influx of money in these elections. Brennan center has done incredible work on that over the past 20 years, really looking at like, who’s what, who’s trying to get certain just, you know, certain state Supreme Court judges elected and how and what what impact does that have on their decisions. And so, you know, I. I just would point out, like, it obviously does really matter who’s on the court. And it also matters who’s who’s has power in those states in order to kind of drive what they’re trying to drive.

Leah Litman So I guess next question is kind of looking ahead, but also trying to take some lessons from the past. And it’s, I guess, two part, which is what do you see as some challenges to a state by state strategy, but also what’s next for this movement?

Kathrina (Kasia) Szymborski Wolfkot A few challenges. You know, I think I think the obvious one is that if you have a state by state approach, some states are going to be left out, like, you know, you’re doing an analysis and you’re figuring out which states are really the places where these kinds of claims could be fruitful. And state Supreme Court seems poised to expand rights. That’s not going to be all 50 states, unfortunately. So at the end of the day, a state by state approach, I don’t think is a it’s not a perfect replacement for a high federal floor. So we we have to we have to keep we have to keep trying to move the whole country and like all of the institutions and like, like a rights towards rights expansion, one way or another.

Kyle Barry Yeah. As far as what’s next, I think that we will see state constitutions play a much bigger role in the broader movement to abolish life without parole or death by incarceration sentences. You know, when you start to kind of look under the hood of life without parole and other extremely long prison sentences in the United States, as these state supreme courts have started to do a bit more of, you know, what do you say? You don’t see that the people who are the most culpable, the most blameworthy or the most dangerous are the ones who are receiving these sentences and said extreme sentences in the US are decided by, race. They are given to, people who have endured extraordinary trauma, who have lived in extreme poverty, who have intellectual disabilities. You know, they are at best arbitrarily but more realistically doled out in discriminatory, fashion. And that, applies, across the board. And so, right now as, as we have this conversation, there are cases, pending in both Colorado and Pennsylvania in their state supreme courts, challenging life without parole for people who are convicted of felony murder, which is to say, it’s the theory that allows murder convictions even for people who did not intend to kill nor actually kill anyone. And yet they’re serving mandatory life without parole, sentences. And those decisions should come down by the end of 2024. And I think, you know, mandatory sentencing of all kinds is going to become come under closer scrutiny as, again, as more state courts ask the question of whether, certain sentences are necessary and serving any kind of legitimate purpose.

Josie Duffy Rice So, a couple of years ago, I worked on a story in Tennessee, where there is a 52 year, mandatory minimum sentence for, juveniles convicted of felony murder. And the state Supreme court was considering, the constitutionality of that sentence. And it’s interesting how state supreme courts are are influenced by other state supreme courts. When you say that’s the longest sentence that exists in the country, even in some of the more regressive states, like they don’t want to be the worst, right? They don’t. What it signals to people is like this, we’re out of step, and we are reflecting a different reality than the rest of the country. And so I, you know, I think, you know, the state I think the point’s made about a state by state strategy. Are are right. It’s obviously quite inefficient to do things 50 times than, than one if you can get away with it. But, you know, you are, are creating trends that hopefully reflect the way down.

Kathrina (Kasia) Szymborski Wolfkot Yeah. Jose, I love that point. At the Brennan Center at, since we launched this project, the state court report, we’ve been tracking state constitution, state, state supreme court cases that advance state constitutional law. We have a whole database. You should check it out.

Josie Duffy Rice I’m subscribed. I’m very subscribed.

Kathrina (Kasia) Szymborski Wolfkot Oh amazing. Everybody. Everybody should subscribe. But, so I read all of these cases, and we get we get all this commentary on these cases and over and over again, all of these cases, all these state supreme courts are citing to each other like there’s always a section that’s like, you know, we are not the first state to consider this question. Like, here are five other states that have considered this question. And here’s how they did it. And they’re borrowing their borrowing, reasoning from each other. So it is true that even if you’re just practicing in one state, it can have a spillover effect.

Leah Litman And just to kind of take that point from the horizontal level to the vertical level, you know, Josie and Kasia, you’re talking about state courts influencing each other. But that also kind of over a longer time horizon has the potential to influence federal law as well. You know, potentially not with the Supreme Court, but maybe down the road. You know, on this podcast we’ve talked about before how when the 19th amendment was ratified, you know, that followed a state constitutional movement that had secured women’s right to vote, right in state constitutions, on a state by state basis, you know, similarly, the movement for the Equal Rights Amendment followed on state constitutional initiatives and state organizing in order to, you know, enact anti-discrimination provisions, at the state level. This was also, you know, a dynamic in the same sex marriage and marriage equality litigation where you had states being first movers and recognizing constitutional rights to marriage equality. And when the Supreme Court eventually recognized that, it pointed to the states and said, look, the sky doesn’t fall in a world of marriage equality. And this shows, again, like a changing, trying to change in culture, and states signaling like what this constitutional provision means. And so if, you know, just to kind of put in a plug, this is uncharacteristic, and out of character for me, but a plug for optimism. Like, I recognize that like the short term horizon and the federal level at the Supreme Court is not great when we are thinking about, like, these sentences or conditions of confinement. But I also think it’s wrong to say, well, if I just focus on the state level, I can make things better in my state. For people who live here, because that does really have the potential to shape things down the road, at the federal level for everyone else. And so if you’re thinking about, you know, upcoming state Supreme Court elections, you know, here in Michigan, there is a woman running who’s actually a colleague of mine, Kim Thomas, who works on behalf of juvenile justice, you know, and so if you’re thinking about people getting on the state court who have actually had experience representing people in the criminal legal system, you know, against some of its worst excesses, like she would be someone, you know, the following year, justice Animals Bradley on the Wisconsin Supreme Court announced she’s not running for reelection. So control for that court is going to be up for grabs. Like, these are all opportunities to not just make the law better at a state and local level, but to change what Josie referred to as like the culture and the trends, you know, that have the potential to influence other states, but also at the federal level, kind of down the road.

Kathrina (Kasia) Szymborski Wolfkot Yeah. I also want to add that I said something about that. One of the drawbacks of a of a state strategy being that some states are left behind, but I just sort of want to want to add a little bit of a more optimistic spin to that, because I think that there’s a strategy for every state, like it’s not going to be the same strategy if you’re trying to to limit harm. But but there’s still work that can be done. And I’ve been really inspired by the people in the reproductive rights space in this regard, because you see people in some states like, you know, swinging for the fences and trying to get a state Supreme Court to declare that abortion is protected by the state constitution. And in other states, the strategy is, well, let’s try to pry open this, the exception a little bit. And, you know, obviously a lot of that’s very depressing. But the point is, like, you don’t give up on any state and you don’t give up on any anybody. And, you know, I, I really, like, firmly believe that. There is a way to expand rights for people in every single state.

Josie Duffy Rice I’ll just say, that it’s a good reminder to like I also find myself getting caught up in this like oh my God my like the future of my work as in Clarence Thomas, his hands off like things don’t go the right way. And just talking earlier about this kind of conception, this radical and extremely radical perception of these justices on the on the federal level at the Supreme Court that like, you know, sentencing and prison conditions aren’t covered by the by the Eighth Amendment, which, you know, that’s not something that like, that’s not actually a position that most, you know, judicial professionals in this country holds. I would I think, I think that’s fair to say. And not like it’s not they actually are on the fringes of something that can be protected in a much more extreme way. And it’s, it’s a reminder like they are one branch of the federal government, but it’s it’s only the federal government, you know, there’s a whole other whole other government that that matters. I live in Georgia, so that’s also not like super encouraging. But, you know, in theory, if you live in a more logical state.

Kyle Barry I would underscore that, this movement that’s prioritizing state constitutional rights is not abandoning the Eighth Amendment. It really is also about strengthening the Eighth Amendment. And I think the Eighth Amendment is actually uniquely suited to kind of be strengthened by the state level trends in, in the rights enhancing direction, because part of the legal test under the Eighth Amendment doctrine is looking to trends looking to consensus across what states are doing.

Leah Litman So, final question to all of you. What can listeners do, to get involved in this movement or advance the ball or any kind of final thoughts, you know, you would like to leave people with?

Kathrina (Kasia) Szymborski Wolfkot Well, 33 states this year, have openings, or have races for 82 seats on their state supreme courts. So, you know, pay attention to what’s happening, pay attention to those races. Those are typically very low information races. So so become a high information voter. Go to state court reporter, read up about all these races. Tell your friends about them. Vote if you are an attorney. Take on some of these conditions cases pro bono, because I think that one of the reasons why the law has been so bad in this area is because so many of these, these plaintiffs are pro se. So, you know, if you work at a law firm, take one of these pro bono and reach out to subject matter experts. If you’ve never done one of these cases before and like, everybody’s door is open, like I, I’m speaking for like, all of my colleagues, everyone I’ve ever worked with, I’m sure that they would all be thrilled to hear from you and like, just, you know, give you advice on whatever the cases, like every time an incarcerated person is represented when they are challenging their conditions of confinement, we have an opportunity to make good law.

Kyle Barry Yeah. If you’re a public defender, please consider becoming a judge, as well. I think that’s increasingly, of increasing importance. And I think a lot of people who are anything other than a prosecutor or a big law, attorney think that their odds of becoming a judge are kind of a long shot. I actually think we should give credit to the Biden administration for doing an unprecedented job and putting more public defenders and civil rights lawyers on the federal bench. But we need more people with that background kind of putting their names in at the state level, as well. I agree with Kasia, my, my, that my door is is open. I don’t mind you speaking for me on that one. And, I, you have part of, you know, the, the the reason, for, the state Law Research Initiative’s, existence is to is to help people to bring claims both to challenge, extreme sentences or also conditions of confinement and to provide resources and networking and expertise to anyone who’s interested in kind of learning more about how to effectively, bring these, claims. So be in touch.

Josie Duffy Rice Yeah, well, my advice is to, to reach out to Kyle and. I’m not. I’m going to reach out to them. But really, I mean, the election point really is so important. And even people who are generally high information voters are, are, are not when it comes to judicial elections. And, and they’re so incredibly important and they are there’s more to understand than just what happens when you go to someone’s website on this. Right? Because there are so many dynamics kind of, driving the power behind these elections. And, and so there’s that I think is like, these are races that we can win. They are the ROI on these races is really, really high. And yet, like, they still don’t get the attention that they should get. So as always, I’m beating the same drum. Know who you’re voting for? For da. And no, you’re voting for for court. And that’s. Yeah. That’s the that’s the bottom line. That’s the that’s the most basic thing you can do.

Kathrina (Kasia) Szymborski Wolfkot Well I’ve also been a long time fan of Josie. And so.

Josie Duffy Rice That’s very.

Leah Litman You and me both Kasha you and.

Kyle Barry Us. But none of us say, oh.

Leah Litman I’ve been a short time, shorter time fan of you, Kyle. Just because I have been following your work more recently, you’ve done. I was introduced to Jesse’s. And of course, Kasia and I again go back to law school.

Kyle Barry Very fair. I’m a big fan of Jesse, too. It’s very understandable.

Josie Duffy Rice That’s very kind and a lie. But I do want to say that Garza and Kyle also have amazing newsletters. Say corporate is really good. And. And Carl, what’s your newsletter called? Yeah, I look at it as all are I. Sorry, what’s.

Kyle Barry Behind the benches? The name behind the bench.

Josie Duffy Rice Behind the bench. Kyle’s newsletter is really good.

Leah Litman Behind that. Yeah.

Josie Duffy Rice Yeah, yeah, it’s really good.

Kathrina (Kasia) Szymborski Wolfkot Behind the bench is one of my favorite things to read. Just like hands down in the world. Yeah, it’s so good.

Josie Duffy Rice It’s refreshing to have a very small group of people who are court newsletters. But if you are, these are two great to read.

Kyle Barry Which is really my audience on this on this podcast episode.

Leah Litman I’m going to plus one all of that. And just to reiterate, you know, the great organizations that are doing work in this space, you know, either for purposes of reaching out to them, if you are potentially thinking about working in this area or for supporting them in other ways. You know, Kyle, as we mentioned, is at the State Law Research Initiative at the Brennan Center for justice at NYU law, running the state court report. There’s also the MacArthur Justice Center right behind bars. Kasha, you mentioned a lot of this litigation is happening pro se. You know, they are attempting to intervene in that space in order to help shape the law in more positive ways, and more coordinated ways. So, again, like there are organizations there that are willing and excited to help. But, you know, stay informed. Both as an electoral matter but also as a lawyer. You know, there are different, different things you can do. So thank you so much. Kyle, Kasia and Josie for joining us for this. At times, very bleak. But at other notes, sometimes optimistic or meant to be helpful. Episode on state criminal matters in state courts and state constitutional law. We really appreciate it.

Josie Duffy Rice Thank you for having us.

Kathrina (Kasia) Szymborski Wolfkot Thank you.

Kyle Barry Yeah, thanks for having us.

Leah Litman One last thing before we go. It’s such an uncertain time, but there’s one thing that always makes us feel better. Retail therapy and getting involved in progressive politics, obviously. At the Crooked store, you can do both. Shop a new collection of progressive merch for summer and feel good knowing that a portion of the proceeds from every purchase goes to support organizations doing incredible work across the United States to ensure every voice can be heard. Pick up a Hot People Vote for your next canvasing shift, or grab a women Run Everything hat for your next feminist global takeover picnic. Head to Crooked.com/store now. Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Litman, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell, with help from Bill Pollock. Michael Goldsmith is our associate producer. Our interns this summer are Hannah Saraf and Tess O’Donohue. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production thanks to our digital team, Phoebe Bradford and Joe Matosky. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com/at Strict Scrutiny podcast. If you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast apps so you never miss an episode, and if you want to help other people find the show, please rate and review us. It really helps.

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