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August 10, 2022

"When a Prison Sentence Becomes Unconstitutional"

The title of this post is the title of this notable new article now available via SSRN authored by Michael Zuckerman.  Here is its abstract:

Mass incarceration has many evils.  One of them is the length and apparent fixedness of many criminal sentences — a relatively new development in the history of American criminal adjudication.  Sympathetic system actors, concerned about this problem, often complain that they lack the ability to revisit sentences that have outlived commonsense value. This complaint has prompted incarcerated people, their families, attorneys, scholars, judges, and even many prosecutors to call for “second-look” legislation that would create the authority they say is needed.

This Article argues that such legislation is unnecessary: the same authority should already exist, under current doctrine, in the substantive component of the federal Due Process Clause and (or) its state analogues.  Though the Supreme Court’s approach to incarceration is anomalous as compared with other fundamental rights, the Court has made clear that incarceration pursuant to a criminal conviction must satisfy rational-basis scrutiny.  Some sentences are plainly irrational: for example, when a person is factually innocent, their incarceration was never rational (though it may have once looked that way).  But a sentence can also become irrational over time.  And there can be no rational basis for continuing to imprison a person when the branch of government responsible for identifying such a basis expressly disclaims it.  In other words, any prosecutor who recognizes a sentencing injustice should, at any point in time, be able to trigger second-look resentencing — a conclusion that provides a previously unexplored doctrinal basis for what some federal courts informally call the “Holloway doctrine.”  (This Article’s account likewise provides a doctrinal grounding for the proposition that the Constitution prohibits the execution of an actually innocent person and requires the retroactive application of a new substantive rule.)

Furthermore, just because a prosecutor asserts a rational basis does not mean that there is one.  Rational-basis scrutiny is forgiving, but it is not altogether toothless, and it offers additional values to social movements — including forcing adverse parties to give reasons for their actions.  Incarceration must be supported by one of the recognized purposes of punishment, and there are instances in which none of those purposes meets the test.  Courts themselves, therefore, have due-process authority to release prisoners whose sentences have come to be irrational, regardless of the prosecutor’s position.  Finally, if the Court ever resolves its fundamental-rights anomaly and subjects prison sentences to strict scrutiny, that scrutiny should apply with equal force to ongoing incarceration.

August 10, 2022 at 11:37 PM | Permalink


I agree that fixed sentences can and do become archaic when you consider multiple factors: age of the accused, property crime vs. violent crime, time that's elapsed since the alleged offense, the current economic or employment status of the accused. Incarceration should only be considered for violent offenses and even those should be subject to scrutiny. A 10 year prison sentence for allegedly strangling someone 3 years ago is harsh and arguably cruel and unusual.

I advocate legislation so that sentence reform is codified in the law. The problem however, is that reforms take longer than necessary.

Posted by: Anon | Aug 11, 2022 12:18:39 AM

At least at the federal level there is already a perfectly serviceable system if the President believes someone should no longer be incarcerated. That he doesn't wish to pay the political price of exercising that power is, perhaps, an indication that most of those offenders are actually where they belong.

Posted by: Soronel Haetir | Aug 11, 2022 11:45:14 AM

Just b/c the executive has a role to play doesn't mean the courts do not.

Posted by: John | Aug 15, 2022 4:09:14 PM

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