Catalyzing Judicial Federalism

Introduction

In response to a U.S. Supreme Court that is retrenching many important civil rights, some advocates are turning to state courts and constitutions as alternative means of protection.1.See, e.g., Riley Brennan, ACLU Staffs Up for New Initiative: ‘State Supreme Courts Are More Important Now Than Ever,’ ALM Law.com (May 2, 2023, 11:29 AM), https://www.law.com/2023/05/02/aclu-staffs-up-for-new-initiative-state-supreme-courts-are-more-important-now-than-ever [https://perma.cc/MN9H-9YRP]; Amy Myrick & Tamar Eisen, Building Protections for Reproductive Autonomy in State Constitutions, Ms. Mag. (May 24, 2022), https://msmagazine.com/2022/05/24/state-constitution-courts-abortion-rights/ [https://perma.cc/CJ8A-A5Q9] (“A more expansive vision for reproductive autonomy is necessary—and state courts can lead the way.”).Show More The Court’s regression follows a recent ideological change, a jurisprudential turn towards originalism and a long-standing normalization of judicial supremacy.2.See, e.g., David Cole, Egregiously Wrong: The Supreme Court’s Unprecedented Turn, N.Y. Rev. Books (Aug. 18, 2022), https://www.nybooks.com/articles/2022/08/18/egregious‌ly-wrong-the-supreme-courts-unprecedented-turn-david-cole/ [https://perma.cc/2CMZ-KV‌4F]; Mark A. Lemley, The Imperial Supreme Court, 136 Harv. L. Rev. F. 97, 110–11 (2022); Noah Feldman, Opinion, Supreme Court ‘Originalists’ Are Flying a False Flag, Bloomberg (July 17, 2022, 7:00 AM), https://www.bloomberg.com/opinion/articles/2022-07-17/supre‌me-court-s-conservative-originalists-are-flying-a-false-flag#xj4y7vzkg [https://perma.cc/FZM8-G2FG] (arguing that the Court relies on selective originalism to “rationalize its activism”).Show More For some, transplanting legal strategies from federal to state courts risks bringing this old soil with it.3.See, e.g., Christopher Jon Sprigman, Congress’s Article III Power and The Process of Constitutional Change, 95 N.Y.U. L. Rev. 1778, 1833 (2020) (observing that arguments in favor of placing “a lot of faith in state courts” as an alternative to federal courts “are especially weak” and recreate judicial supremacy); Joseph Fishkin, Courts and Constitutional Political Economy, LPE Project (July 24, 2021), https://lpeproject.org/blog/courts-and-constitutional-political-economy/ [https://perma.cc/M6AN-8VZF] (arguing that “[w]e need the courts, but we also need to understand that the courts are not our friends—and are unlikely ever to be,” and cautioning against placing our hopes in them); Zachary Clopton, Commentary, Judges Will Not Save Us. Pushing for Truly Democratic Solutions Will, Chi. Trib. (Aug. 24, 2022, 1:37 PM), https://www.chicagotribune.com/opinion/commentary/ct-opinion-state-courts-constitution-rights-judicial-supremacy-20220824-ig2eravofbb5rgh3k4ckzdw52a-story.html [https://perma.cc/ZKD9-EFJR] (suggesting excessive reliance on state courts “feeds into the notion of judicial supremacy that created these problems in the first place”).Show More That is, a pivot to the states risks perpetuating these pathologies and recreating at the state level the same regressive norms and jurisprudence that precipitated the turn in federal courts in the first place.

In this brief Essay, I explore two aspects of this view. First, there are good reasons to believe originalism will not achieve the traction among state supreme courts that it currently enjoys at the U.S. Supreme Court. Briefly stated, several of the theory’s bugs and features likely disincentivize its adoption by most state supreme courts. Second, the renewed interest in state courts provides advocates with an opportunity to protect their clients and advance their causes in ways that do not necessarily require the aggressive forms of judicial review that seem characteristic of federal constitutional culture. State-level institutions offer means to protect important rights and liberties that widen the lens beyond a myopic focus on constitutional litigation. In this Essay, I briefly highlight three of these pathways: direct democracy, state courts’ non-adjudicative powers, and the common law. To be sure, expansive constitutional protection via judicial interpretation may be necessary for certain rights in certain contexts. But for advocates turning to state-level institutions, that should not necessarily be the default rule. Rather, a meaningful turn to the states should draw on the broader constellation of tools for protecting rights available at the state level that may be more effective and flexible than the predominant federal approach.

  1.  See, e.g., Riley Brennan, ACLU Staffs Up for New Initiative: ‘State Supreme Courts Are More Important Now Than Ever,’ ALM Law.com (May 2, 2023, 11:29 AM), https://www.law.com/2023/05/02/aclu-staffs-up-for-new-initiative-state-supreme-courts-are-more-important-now-than-ever [https://perma.cc/MN9H-9YRP]; Amy Myrick & Tamar Eisen, Building Protections for Reproductive Autonomy in State Constitutions, Ms. Mag
    .

    (May 24, 2022), https://msmagazine.com/2022/05/24/state-constitution-courts-abortion-rights/ [https://perma.cc/CJ8A-A5Q9] (“A more expansive vision for reproductive autonomy is necessary—and state courts can lead the way.”).

  2.  See, e.g., David Cole, Egregiously Wrong: The Supreme Court’s Unprecedented Turn, N.Y. Rev. Books (Aug. 18, 2022), https://www.nybooks.com/articles/2022/08/18/egregious‌ly-wrong-the-supreme-courts-unprecedented-turn-david-cole/ [https://perma.cc/2CMZ-KV‌4F]; Mark A. Lemley, The Imperial Supreme Court, 136 Harv. L. Rev. F
    .

    97, 110–11 (2022); Noah Feldman, Opinion, Supreme Court ‘Originalists’ Are Flying a False Flag, Bloomberg (July 17, 2022, 7:00 AM), https://www.bloomberg.com/opinion/articles/2022-07-17/supre‌me-court-s-conservative-originalists-are-flying-a-false-flag#xj4y7vzkg [https://perma.cc/FZM8-G2FG] (arguing that the Court relies on selective originalism to “rationalize its activism”).

  3.  See, e.g., Christopher Jon Sprigman, Congress’s Article III Power and The Process of Constitutional Change, 95 N.Y.U. L. Rev. 1778, 1833 (2020) (observing that arguments in favor of placing “a lot of faith in state courts” as an alternative to federal courts “are especially weak” and recreate judicial supremacy); Joseph Fishkin, Courts and Constitutional Political Economy, LPE Project (July 24, 2021), https://lpeproject.org/blog/courts-and-constitutional-political-economy/ [https://perma.cc/M6AN-8VZF] (arguing that “[w]e need the courts, but we also need to understand that the courts are not our friends—and are unlikely ever to be,” and cautioning against placing our hopes in them); Zachary Clopton, Commentary, Judges Will Not Save Us. Pushing for Truly Democratic Solutions Will, Chi. Trib. (Aug. 24, 2022, 1:37 PM), https://www.chicagotribune.com/opinion/commentary/ct-opinion-state-courts-constitution-rights-judicial-supremacy-20220824-ig2eravofbb5rgh3k4ckzdw52a-story.html [https://perma.cc/ZKD9-EFJR] (suggesting excessive reliance on state courts “feeds into the notion of judicial supremacy that created these problems in the first place”).

Chronic Nuisance Ordinances, Impossible Choices, and State Constitutions

Introduction

When Lakisha Briggs’s partner attacked her in April 2012, her daughter called the police.1.Lakisha Briggs, I Was a Domestic Violence Victim. My Town Wanted Me Evicted for Calling 911, Guardian (Sept. 11, 2015, 6:45 PM), https://www.theguardian.com/‌commentisfree/2015/sep/11/domestic-violence-victim-town-wanted-me-evicted-calling-911 [https://perma.cc/7NR4-Z269]; Verified First Amended Complaint at 10, Briggs v. Borough of Norristown, No. 2:13-cv-02191 (E.D. Pa. Apr. 29, 2013). Because Ms. Briggs’s story was well-publicized compared to most evictions resulting from chronic nuisance ordinance (“CNO”) enforcement, other scholarly pieces about chronic nuisance ordinances have also highlighted her endeavor. See, e.g., Salim Katach, Note, A Tenant’s Procedural Due Process Right in Chronic Nuisance Ordinance Jurisdictions, 43 Hofstra L. Rev. 875, 875–78 (2015).Show More Their response ensured that neither Ms. Briggs nor her daughter would ever take that risk again. Once officers arrived at Ms. Briggs’s home, they told her that, even as a victim of domestic violence, she was “on three strikes,” and they were “gonna have [her] landlord evict [her].”2.Briggs, supra note 1 (internal quotation marks omitted).Show More Unfortunately, Ms. Briggs lived in Norristown, Pennsylvania, one of hundreds of municipalities across the country with a chronic nuisance ordinance (“CNO”) in effect.3.Norristown, Pa., Mun. Code § 245-3 (2012). Norristown repealed this law as part of Briggs’s settlement, but its text remains available in Briggs’s complaint. Verified First Amended Complaint, supra note 1, at 1–2.Show More

Under a CNO, a local government can deem a property a “nuisance” when a certain number of police visits—responding to everything from marijuana use to domestic violence calls—occur at the property.4.SeeScout Katovich, NYCLU & ACLU, More Thana Nuisance: The Outsized Consequences of New York’s Nuisance Ordinances 6 (2018) [hereinafter More Than a Nuisance], https://www.nyclu.org/sites/default/files/field_documents/nyclu_nuisancereport_‌20180809.pdf [https://perma.cc/QPG3-L6P2] (explaining how CNOs operate in New York); see also Emily Werth, Sargent Shriver Nat’l Ctr. on Poverty L., The Cost of Being “Crime Free”: Legal and Practical Consequences of Crime Free Rental Housing and Nuisance Property Ordinances 2, 4, 8 (2013) (examining CNOs and other similar crime-free housing provisions in Illinois).Show More If the landlord fails to “abate the nuisance,” often an implicit command to evict the tenant, the locality retains broad discretion to impose heavy fines upon the landlord, revoke their rental license, close the property temporarily, or even seize it.5.More Than a Nuisance, supra note 4, at 6, 8; Matthew Desmond & Nicol Valdez, Unpolicing the Urban Poor: Consequences of Third-Party Policing for Inner-City Women, 78 Am. Socio. Rev. 117, 118–20 (2012) (identifying potential punishments).Show More With the threat of eviction looming over her and her children, Ms. Briggs was forced to suffer in silence.

Ms. Briggs’s troubles reached a new height two months later, when that same ex-partner stabbed her in the neck.6.Verified First Amended Complaint, supra note 1, at 15.Show More Despite her pleas not to call 9-1-1, concerned neighbors did so, and she was airlifted to the hospital.7.Erik Eckholm, Victims’ Dilemma: 911 Calls Can Bring Eviction, N.Y. Times (Aug. 16, 2013), https://www.nytimes.com/2013/08/17/us/victims-dilemma-911-calls-can-bring-evict‌ion.html [https://perma.cc/QUX7-ZWYG].Show More Her fears were well-founded. When she returned home, her landlord informed her that she had to leave within 14 days: the town’s restrictive nuisance ordinance “gave him no choice but to file a case against [her].”8.Briggs, supra note 1.Show More The town had revoked his license three days after Ms. Briggs was hospitalized.9.Verified First Amended Complaint, supra note 1, at 16.Show More Even though she subsequently succeeded in eviction court, the city insisted that Ms. Briggs leave.10 10.Briggs, supra note 1.Show More The Norristown ordinance “gave the city the power to condemn the property if [the landlord] did not remove me,” she explained.11 11.Id.Show More

Fortunately, the American Civil Liberties Union (“ACLU”) soon took up Ms. Briggs’s case.12 12.Verified First Amended Complaint, supra note 1, at 38.Show More She reached a settlement with the city that included repealing the CNO.13 13.Briggs, supra note 1; see also Press Release, ACLU, Norristown Will Pay $495,000 to Settle Case on Behalf of Woman Threatened with Eviction for Calling Police (Sept. 8, 2014), https://www.aclu.org/press-releases/pennsylvania-city-agrees-repeal-law-jeopardizes-safety-domestic-violence-survivors [https://perma.cc/GB3P-EV7Y] (stating that Norristown voted to repeal the ordinance as part of the Briggs settlement).Show More Pennsylvania then passed a law prohibiting municipalities from punishing victims for calling emergency services.14 14.53 Pa. Cons. Stat. § 304 (2014).Show More

Although Ms. Briggs and the ACLU succeeded in repealing this CNO, hundreds like it remain in effect throughout the United States—from its largest cities to its smallest towns.15 15.See, e.g., Cincinnati, Ohio, Mun. Code § 761-1-C–N (2013); Sumner, Wash., Mun. Code ch. 9.50 (2022). Over one hundred municipalities in Illinois have enacted CNOs and other harmful types of crime-free ordinances. Werth, supra note 4, at 26–28 app. A. A non-exhaustive study of Ohio CNOs and other crime-free ordinances revealed that at least forty municipalities have enacted them. Joseph Mead et al., Cleveland State Univ., Who Is a Nuisance? Criminal Activity Nuisance Ordinances in Ohio 19–20 app. A (2017). An investigation into New York CNOs revealed that twenty-five of the forty most populated municipalities outside of New York City have enacted them. More Than a Nuisance, supra note 4, at 10.Show More This Essay explores how CNOs harm marginalized groups and how local communities can stop that harm. Part I explains how CNOs typically operate and where they come from. Part II illustrates how CNOs can detrimentally impact communities of color, domestic violence victims, and people with physical and mental disabilities or illnesses. Finally, Part III examines how legal challenges and state-level reform can mitigate the harms of CNOs. This Essay intervenes in the scholarly discussion by arguing that state constitutional amendments—an undervalued instrument of reform—can limit harmful exercises of local power, invalidate CNOs, and strengthen individual rights. To that end, the Essay proposes model language for these amendments.

  1.  Lakisha Briggs, I Was a Domestic Violence Victim. My Town Wanted Me Evicted for Calling 911, Guardian (Sept. 11, 2015, 6:45 PM), https://www.theguardian.com/‌commentisfree/2015/sep/11/domestic-violence-victim-town-wanted-me-evicted-calling-911 [https://perma.cc/7NR4-Z269]; Verified First Amended Complaint at 10, Briggs v. Borough of Norristown, No. 2:13-cv-02191 (E.D. Pa. Apr. 29, 2013). Because Ms. Briggs’s story was well-publicized compared to most evictions resulting from chronic nuisance ordinance (“CNO”) enforcement, other scholarly pieces about chronic nuisance ordinances have also highlighted her endeavor. See, e.g., Salim Katach, Note, A Tenant’s Procedural Due Process Right in Chronic Nuisance Ordinance Jurisdictions,
    43 H

    ofstra

    L. R

    ev

    .

    875, 875–78 (2015).

  2.  Briggs, supra note 1 (internal quotation marks omitted).
  3. N

    orristown

    , P

    a

    ., M

    un

    . C

    ode § 245-3 (2012). Norristown repealed this law as part of Briggs’s settlement, but its text remains available in Briggs’s complaint. Verified First Amended Complaint, supra note 1, at 1–2.

  4.  See Scout Katovich,
    NYCLU & ACLU, M

    ore

    T

    han

    a Nuisance: The Outsized Consequences of New York’s Nuisance Ordinances 6 (2018) [hereinafter More Than a Nuisance], https://www.nyclu.org/sites/default/files/field_documents/nyclu_nuisancereport_‌20180809.pdf [https://perma.cc/QPG3-L6P2] (explaining how CNOs operate in New York); see also Emily Werth, Sargent Shriver Nat’l Ctr. on Poverty L., The Cost of Being “Crime Free”: Legal and Practical Consequences of Crime Free Rental Housing and Nuisance Property Ordinances 2, 4, 8 (2013) (examining CNOs and other similar crime-free housing provisions in Illinois).

  5.  More Than a Nuisance, supra note 4, at 6, 8; Matthew Desmond & Nicol Valdez, Unpolicing the Urban Poor: Consequences of Third-Party Policing for Inner-City Women, 78 Am. Socio. Rev. 117, 118–20 (2012) (identifying potential punishments).
  6.  Verified First Amended Complaint, supra note 1, at 15.
  7.  Erik Eckholm, Victims’ Dilemma: 911 Calls Can Bring Eviction, N.Y. Times (Aug. 16, 2013), https://www.nytimes.com/2013/08/17/us/victims-dilemma-911-calls-can-bring-evict‌ion.html [https://perma.cc/QUX7-ZWYG].
  8.  Briggs, supra note 1.
  9.  Verified First Amended Complaint, supra note 1, at 16.
  10.  Briggs, supra note 1.
  11.  Id.
  12.  Verified First Amended Complaint, supra note 1, at 38.
  13.  Briggs, supra note 1; see also Press Release, ACLU, Norristown Will Pay $495,000 to Settle Case on Behalf of Woman Threatened with Eviction for Calling Police (Sept. 8, 2014), https://www.aclu.org/press-releases/pennsylvania-city-agrees-repeal-law-jeopardizes-safety-domestic-violence-survivors [https://perma.cc/GB3P-EV7Y] (stating that Norristown voted to repeal the ordinance as part of the Briggs settlement).
  14.  53 Pa. Cons. Stat.
    § 304 (2014).

  15.  See, e.g., Cincinnati, Ohio, Mun. Code § 761-1-C–N (2013); Sumner, Wash., Mun. Code ch. 9.50 (2022). Over one hundred municipalities in Illinois have enacted CNOs and other harmful types of crime-free ordinances. Werth, supra note 4, at 26–28 app. A. A non-exhaustive study of Ohio CNOs and other crime-free ordinances revealed that at least forty municipalities have enacted them. Joseph Mead et al., Cleveland State Univ., Who Is a Nuisance? Criminal Activity Nuisance Ordinances in Ohio 19–20 app. A (2017). An investigation into New York CNOs revealed that twenty-five of the forty most populated municipalities outside of New York City have enacted them. More Than a Nuisance, supra note 4, at 10.

The Animal Crushing Offense Loophole

The Preventing Animal Cruelty and Torture (“PACT”) Act of 2019 established the first federal criminal penalties targeting the most extreme forms of animal abuse. Hailed by humane groups as a watershed moment in the development of animal welfare law, the PACT Act created a new federal crime: “animal crushing”—i.e., the crushing, burning, drowning, suffocation, and impalement of living non-human creatures. But as the first defendants convicted under the PACT Act face sentencing in federal courts, judges and other stakeholders find little direction in the Federal Sentencing Guidelines. The United States Sentencing Commission, which until recently lacked a voting quorum, has yet to promulgate an amendment to the Guidelines that accounts for this change in the law. Instead, the current framework perpetuates a loophole in which the recommended penalty for animal crushing is typically less than the recommendation for offenders convicted of creating or distributing videos of that conduct. As federal prosecutors increasingly bring charges under the PACT Act, this gap in the Guidelines will continue to lead to unjust sentencing disparities that do not adequately reflect the depravity of animal torture.

This Essay is the first to identify what it terms the “animal crushing offense loophole.” It offers three potential solutions on the eve of the Commission’s annual amendment cycle: the creation of a new Animal Crushing Guideline, the express recognition of animal victimhood, and the use of a set of sentencing factors that distinguish among animal crushing defendants.

Introduction

In a 1999 hearing before the House Judiciary Committee, members of Congress were introduced to the growing interstate market in animal “crush videos.”1.H.R. Rep. No. 111-549, at 2 (2010), as reprinted in 2010 U.S.C.C.A.N. 1224, 1225.Show More Animal crush videos glamorize small creatures being tortured to death in brutal fashion, often for the viewer’s sexual gratification.2.Sirin Kale, ‘Sometimes They’re Boiled Alive’: Inside the Abusive Animal Crush Industry, Vice (Nov. 3, 2016, 9:50 AM), https://www.vice.com/en/article/d3gv7q/inside-abusive-animal-crush-fetish-industry [https://perma.cc/63P9-MRJX].Show More At the time, thousands of crush videos were available for purchase in some of the darkest corners of the internet.3.H.R. Rep. No. 111-549, at 2.Show More One such video, described in graphic detail by the Humane Society of the United States in a 2010 amicus brief, shows a speckled kitten, locked to the ground, shrieking in pain as a woman slams her high-heeled stiletto into its eye socket.4.Brief for the Humane Society of the United States as Amicus Curiae Supporting Petitioner at 2, United States v. Stevens, 559 U.S. 460 (2010) (No. 08-769).Show More Viewers hear the kitten’s skull shatter.5.Id.Show More Yet the woman keeps stomping. By the time the video ends, all that is left of the kitten is a “moist pile of blood-soaked hair and bone.”6.Id.Show More

Following that initial hearing, Congress passed a series of laws that criminalized the creation and distribution of animal crush videos. But those laws contained a crucial exception: the actual conduct depicted in animal crush videos was not subject to a federal penalty. Not until 2019 was the act of “animal crushing”—which is a term of art encompassing the most extreme forms of animal cruelty—prohibited under federal law. The United States Sentencing Commission, however, has yet to promulgate an amendment to the Federal Sentencing Guidelines7.U.S. Sent’g Guidelines Manual (U.S. Sent’g Comm’n 2021).Show More (“Guidelines” or “U.S.S.G.”) that accounts for this change. Today, courts are sentencing animal crushing defendants using guideline calculations that do not reflect the depravity of extreme animal abuse. That gap in the Guidelines—which this Essay terms the “animal crushing offense loophole”—presents a serious threat to the administration of justice in cases involving some of the most depraved and sadistic forms of human behavior.

This Essay is the first to identify and offer solutions to this glaring gap in the Federal Sentencing Guidelines. It calls the problem to the attention of the United States Sentencing Commission as it prepares to enter a new amendment cycle in late spring 2023. This Essay also provides guidance to judges, prosecutors, probation officers, and defense attorneys on how to approach sentencing in animal crushing cases. It proceeds in four parts. Part I briefly addresses the history of the federal anti-animal cruelty statute, 18 U.S.C. § 48. Part II explains the animal crushing offense loophole and how it leads to dramatically insufficient recommended guideline sentences for defendants convicted of animal crushing. Part III suggests three reforms that would help courts fashion a sentence that adequately accounts for the cruelty of animal crushing offenses. The Commission could create a new Animal Crushing Guideline; alternatively, it could amend the Guidelines to recognize animal victimhood. In addition, sentencing judges can utilize a set of factors to better distinguish among animal crushing defendants. This Essay concludes by assessing the likelihood of reform.

  1.  H.R. Rep. No. 111-549, at 2 (2010), as reprinted in 2010 U.S.C.C.A.N. 1224, 1225.
  2.  Sirin Kale, ‘Sometimes They’re Boiled Alive’: Inside the Abusive Animal Crush Industry, Vice (Nov. 3, 2016, 9:50 AM), https://www.vice.com/en/article/d3gv7q/inside-abusive-animal-crush-fetish-industry [https://perma.cc/63P9-MRJX].
  3.  H.R. Rep. No. 111-549, at 2.
  4.  Brief for the Humane Society of the United States as Amicus Curiae Supporting Petitioner at 2, United States v. Stevens, 559 U.S. 460 (2010) (No. 08-769).
  5.  Id.
  6.  Id.
  7. U.S. Sent’g Guidelines Manual (U.S. Sent’g Comm’n 2021).