Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences.

• Author: Dudani, Salil

NOTE CONTENTS INTRODUCTION 2115 I. THE RIGHT AGAINST UNWARRANTED CONFINEMENT 2121 A. Freedom from Confinement as a Fundamental Right 2122 B. Civil Commitment 2124 C. Pretrial Detention: United States v. Salerno 2127 II. DUE-PROCESS SCRUTINY OF CRIMINAL CONFINEMENT 2129 A. Prison Sentences: Exempt Without Explanation 2129 B. Previous Calls for Strict Scrutiny 2134 C. Applying the Right to Criminal Confinement 2136 1. Scrutinizing Prison Sentences 2136 a. Scrutiny as to Retribution 2137 b. Scrutiny as to Utilitarian Goals 2142 i. The Law of Confinement 2142 ii. Incapacitation and Specific Deterrence 2145 iii. General Deterrence 2147 2. What Mandatory Sentences Could Survive? 2148 a. The Impermissibility of Mandatory Confinement 2150 b. Lower Courts' Misreading of Salerno 2152 c. Applying Substantive Due Process to Mandatory Minimum Sentences 2154 3. Reviewing Discretionary Sentences on Appeal 2156 III. DEFENDING THE ANALOGY BETWEEN CIVIL AND CRIMINAL CONFINEMENT 2158 A. Punishments as Legislative 2159 1. Competence 2160 2. Legitimacy 2162 3. Historical Practice 2165 B. Other Principled Objections 2167 1. Crime as Forfeiture of Liberty 2168 2. Criminal Defendants' Unique Procedural Protections 2169 3. The Eighth Amendment's Potential Exclusivity 2172 C. Overwhelming Judicial Resources 2174 CONCLUSION 2176 INTRODUCTION

At the age of fifteen, a doctor prescribed Paul Houser hydrocodone for a hurt back, launching a lifetime of addiction. (1) Three decades later, police arrested him for buying batteries and cold medicine--ingredients for methamphetamine--from a grocery store. Because of his two prior drug convictions, he faced a mandatory sentence of sixty years of prison with no possibility of parole. It did not matter whether the sentencing court believed that sixty years of confinement furthered the aims of punishment. (2) Houser was forty-four years old when the judge imposed the sentence in 2007. He will be dead on his release date in 2067, and his grandson will be fifty-eight years old. (3)

As far as the federal courts can see, this sentence does not offend the Constitution. In fact, according to the U.S. Supreme Court, the Constitution has almost nothing to say about mass incarceration. (4) The Court has upheld as constitutional a life sentence for stealing $120.75; (5) a life sentence without the possibility of parole for possessing cocaine; (6) a forty-year sentence for selling marijuana; (7) a sentence of twenty-five years to life for stealing three golf clubs; (8) and two consecutive sentences of twenty-five years to life for stealing videotapes worth $150. (9) It has held an adult's prison sentence cruel and unusual just once, (10) only to disavow this holding in short order (11) on the theory that under the Eighth Amendment "the length of the sentence imposed is purely a matter of legislative prerogative." (12) To ensure "proportionality," the Supreme Court has held that the Constitution requires some meaningful scrutiny of every form of punishment--including monetary fines, (13) death sentences, (14) and even civil punitive damages (15)--except for incarceration. (16) Unlike with dollars, the Court perceives no "constitutional distinction between one term of years and a shorter or longer term of years." (17)

At any given time, 2.3 million people, either awaiting trial or punishment or serving a sentence, are confined to jail cells in the United States. (18) This population now exceeds the population of fourteen states. (19) One of every nine people in prison is sentenced to die there. (20) One in seven is either sentenced to die in prison or--like Houser--serving a sentence of fifty years or longer. (21) The Court's Constitution is indifferent.

Legal challenges to this state of affairs have relied on the Eighth Amendment's prohibition on cruel and unusual punishments. (22) But a different constitutional problem has gone largely unnoticed, even by the Court itself: the Court's approach to sentencing breaks from how it generally treats deprivations of fundamental liberties such as physical freedom. Courts subject noncriminal ("civil" or "regulatory") confinement, such as the civil commitment of people suffering psychiatric disorders or the pretrial detention of criminal defendants, to exacting oversight. (23) A few days of civil confinement are constitutionally intolerable, unless the government can prove that confinement is necessary to meet compelling government interests. (24) Legislatures cannot override this right to judicial scrutiny. (25) Courts have concluded that the gravity of an individual's interest in physical liberty demands no less. Yet a lifetime of confinement in an institution called a "prison" requires no such justification. So long as the government is punishing a person convicted of a crime, the right against unwarranted confinement is suspended entirely. (26)

The Supreme Court has never explained why. This Note argues that there is no good explanation: criminal confinement should not be exempted from the fundamental due-process right against unwarranted confinement. A criminal conviction cannot justifiably be viewed as extinguishing a person's right against unwarranted confinement; the commission of a crime may warrant confinement of some length, but it does not erase an individual's right against unwarranted confinement. Thus, criminal confinement that is not necessary to serve a compelling government interest violates due process.

In its cases on pretrial detention and civil commitment, the Supreme Court has defined the right burdened by regulatory confinement broadly, alternately terming it "freedom from physical restraint" (27) or from "commitment," (28) an "individual's liberty interest," (29) the right to "freedom from bodily constraint," (30) and the "constitutional right to freedom." (31) This right is not absolute, since both civil commitment and pretrial detention are constitutional under appropriate circumstances. This Note thus calls the constitutional principle "the right against unwarranted confinement." (32)

The right against unwarranted confinement first requires that a person's confinement be justified by compelling purposes. The Supreme Court has determined that containing dangerousness caused by mental illness warrants civil commitment and that containing flight risk or dangerousness warrants pretrial detention. (33) In the context of criminal sentences of confinement, this Note will assume that any one of the traditional legal justifications of punishment--incapacitation, deterrence, and retribution--is adequately compelling to warrant confinement under due process. (34) The right against unwarranted confinement further requires that confinement be "narrowly focused" (35): it must be necessary--and must last no longer than necessary--to achieve its purposes. (36) Therefore, where alternatives to confinement would suffice to meet the government's interests, confinement is unconstitutional. This Note argues that due process imposes this same rule of necessity on criminal sentences of confinement.

Whether this simple argument succeeds is of enormous significance. Where the right against unwarranted confinement applies, it entitles individuals to a judicial determination that confinement is necessary--that there is no alternative way of achieving the constitutionally adequate purposes of confinement. Nothing excuses courts from heeding this constitutional right when imposing criminal confinement. Two important consequences follow. First, the right renders minimum sentences presumptively unconstitutional. Courts cannot constitutionally condemn people like Houser to die in prison automatically, without regard to whether it is necessary in each case. Second, in all sentencing--whether mandatory (that is, mandated by a legislature) or discretionary (that is, determined by a judge)--courts may not impose imprisonment to the extent that an alternative punishment would meet the lawful purposes of punishment.

This Note proceeds in three parts. Part I summarizes the due-process case law recognizing a right against unwarranted confinement, focusing on civil commitment and pretrial detention.

Part II considers the upshot for criminal confinement. It discusses the Court's unexplained refusal to apply substantive-due-process scrutiny to criminal sentences in Chapman v. United States (37) and explains how courts should scrutinize criminal confinement to comply with due process. Congress has long required federal sentencing courts to impose prison sentences "not greater than necessary" to meet the aims of sentencing (38)--but this is a statutory rather than a constitutional rule of necessity, and it applies to federal courts only. To constitutionalize this rule, courts should draw on existing "proportionality" doctrines to gauge the extent to which a given order of confinement is warranted for the sake of retribution. But to faithfully implement the due-process rule of necessity, they should scrutinize confinement's retributive value with less deference to the legislature than proportionality doctrines recommend. As for the nonretributive "utilitarian" aims of punishment--incapacitation and deterrence--sentencing courts must only impose sentences based on empirically defensible premises, as modeled in the case law on pretrial detention. In particular, courts must not indulge the theory of general deterrence without empirical proof. Under this scrutiny, current mandatory minimum sentences would be impermissible, and sentences would be reviewed for compliance with due process de novo on appeal.

Part III addresses likely objections to recognizing the right against unwarranted confinement in the context of criminal confinement, none of which succeeds in distinguishing criminal confinement as unworthy of due-process scrutiny. First, one might think there are special reasons to defer to legislative judgments regarding punishment: institutional competence, democratic...