Previewing SCOTUS oral argument in Hewitt with a liberty lament

Next Monday, the Supreme Court will hear oral argument in Hewitt (et al.) v. U.S. to consider this formal question presented:

Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the FSA’s enactment when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the FSA’s enactment.

After reviewing the briefs submitted to SCOTUS, I put together this substack essay titled "Liberty’s absence in jurisprudence and practice regarding extreme prison sentences." As the title suggestion, the extended essay is mostly about what strikes me as mostly missing in the briefs, and here is how the essay starts and ends:

Our nation has long valorized liberty. The Declaration of Independence champions “life, liberty and the pursuit of happiness." The U.S. Constitution’s preamble declares that the document seeks to "secure the Blessings of Liberty to ourselves and our Posterity." President Abraham Lincoln’s Gettysburg Address describes the United States a nation "conceived in liberty." And yet our historic commitment to the concept of liberty does not always find expression in our sentencing systems. My review of briefs filed in a pending Supreme Court case prompts me to grouse here about an example of liberty’s conspicuous absence in our sentencing jurisprudence and practices....

 I will close this discussion by lamenting a particular missing argument in Hewitt briefs. The Supreme Court stated in Graham v. Florida that a “sentence lacking any legitimate penological justification is by its nature disproportionate to the offense” and thus violative of the Eighth Amendment.  The chief dissent in Graham, while disputing whether Florida’s use of life sentences for juveniles advanced goals like deterrence and incapacitation, did not take issue with the majority’s assertion that wholly pointless punishment would be constitutionally problematic. In turn, given that it seems entirely pointless, as well as ridiculous, to reimpose multi-century (and congressionally repudiated) prison terms on defendants like Corey Duffey, Tony Hewitt and Jarvis Ross, I am troubled the Hewitt briefs do not raise any constitutional clams based in the Eighth Amendment or even the statutory argument of constitutional doubt. Again, given modern practices and jurisprudence, I am not actually surprised that a case about decades, even centuries, of imprisonment do not engender robust constitutional arguments. But, as I see it, this reflects problems with our modern practice rather than with our founding constitutional commitments.

Check out the whole essay here and lots of other great content at the Sentencing Matters Substack.