When a Prison Sentence Becomes Unconstitutional

• Author: Michael L. Zuckerman
• Position: I wrote this piece while serving as a Visiting Assistant Professor at The Ohio State University's Moritz College of Law and as Litigation Counsel at the Ohio Justice & Policy Center (I am in government service as of its publication)
• Pages: 281-341

When a Prison Sentence Becomes Unconstitutional

MICHAEL L. ZUCKERMAN*

Mass incarceration has many evils. One of them is the length and

apparent fixedness of many criminal sentences—a relatively new devel-

opment 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 “sec-

ond 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 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 substantive

due process requires that criminal confinement satisfy rational ba-

sis scrutiny. In the context of civil confinement, that same due pro-

cess right to bodily liberty applies throughout the duration of a

detainee’s confinement. Logic, along with the Court’s discussions of

actual innocence and substantive retroactivity, indicates that the

same ongoing protection should apply in the context of criminal

confinement.

Just as a sentence can be irrational from the moment of issuance (as

with an actually innocent defendant), a sentence can also become irra-

tional over time. And there can be no rational basis for continuing to

imprison a person when the branch of government responsible for identi-

fying 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 infor-

mally call the “Holloway Doctrine.”

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

* © 2022, Michael L. Zuckerman. I wrote this piece while serving as a Visiting Assistant Professor at

The Ohio State University’s Moritz College of Law and as Litigation Counsel at the Ohio Justice &

Policy Center (I am in government service as of its publication). For invaluable feedback, I am grateful

to Doug Berman, Katie Eyer, Jonathan Gould, Michael Klarman, Alan Michaels, Martha Minow, Ben

Notterman, Ric Simmons, David Singleton, Carol Steiker, and ImeIme Umana. I am likewise grateful to

the editors of The Georgetown Law Journal for their excellent editing. All views expressed, and all

errors, are my own.

281

movements—including forcing adverse parties to give reasons for their

actions. Incarceration must be supported by one of the recognized pur-

poses of punishment, and there are instances in which none of those pur-

poses meets the test. Courts themselves, therefore, have due process

authority to release prisoners whose sentences have come to be irra-

tional, 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.

TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283

I. THE HISTORICAL TRADITION OF SENTENCE NON-FINALITY . . . . . . . . . . . . 290

A. THE COLONIAL AND FOUNDING ERAS . . . . . . . . . . . . . . . . . . . . . . . . . 291

B. THE PRE-PROGRESSIVE NINETEENTH CENTURY. . . . . . . . . . . . . . . . . . 293

C. FROM THE PROGRESSIVE ERA TO THE WAR ON CRIME . . . . . . . . . . . . 294

D. MASS INCARCERATION AND THE (LIMITED) POSSIBILITIES FOR

REVISITING SENTENCES TODAY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

II. SCRUTINIZING ONGOING PHYSICAL CONFINEMENT . . . . . . . . . . . . . . . . . . . 300

A. DIFFERENT WAYS IN WHICH COURTS CAN SCRUTINIZE PUNISHMENT. 301

1. Criminalization of the Act . . . . . . . . . . . . . . . . . . . . . . . 301

2. The Legislatively Prescribed Punishment . . . . . . . . . . . . 302

3. The Punishment Imposed on the Individual by the Court. 302

4. The Ongoing Punishment of the Individual. . . . . . . . . . . 303

B. SUBSTANTIVE DUE PROCESS PROTECTS BODILY LIBERTY, THOUGH

ONLY RATIONAL BASIS SCRUTINY APPLIES IN THE CRIMINAL

CONTEXT............................................... 304

C. THE SUBSTANTIVE DUE PROCESS RIGHT TO BODILY LIBERTY

EXTENDS THROUGHOUT AT LEAST CIVIL CONFINEMENT . . . . . . . . . . 309

D. (MINIMAL) PROTECTION UNDER SUBSTANTIVE DUE PROCESS MUST

CONTINUE THROUGHOUT CRIMINAL INCARCERATION, TOO . . . . . . . . 311

1. Actual Innocence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312

2. Substantive Retroactivity . . . . . . . . . . . . . . . . . . . . . . . . 313

282 THE GEORGETOWN LAW JOURNAL [Vol. 111:281

III. WHY PROSECUTORS CAN BE SECOND LOOK SENTENCERS TODAY . . . . . . 315

A. PROSECUTORS CAN CONCEDE THAT A CRIMINAL SENTENCE HAS

BECOME IRRATIONAL EVEN IF IT WAS RATIONAL AT THE TIME OF

ISSUANCE.............................................. 316

B. COURTS SHOULD NOT MAKE UP A RATIONAL BASIS WHEN THE

GOVERNMENT EXPRESSLY DISCLAIMS ONE . . . . . . . . . . . . . . . . . . . . 318

C. STATE COURTS CAN ALWAYS ADOPT THIS APPROACH UNDER STATE

CONSTITUTIONAL ANALOGUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326

IV. COURTS CAN BE SECOND LOOK SENTENCERS TOO . . . . . . . . . . . . . . . . . . 328

A. THE RATIONAL BASIS TEST IS NOT TOOTHLESS . . . . . . . . . . . . . . . . . 329

B. A PRISON SENTENCE IS IRRATIONAL WHEN IT NO LONGER SERVES

AN ACKNOWLEDGED PURPOSE OF PUNISHMENT. . . . . . . . . . . . . . . . . 331

1. Retribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332

2. General Deterrence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335

3. Specific Deterrence, Incapacitation, and Rehabilitation . 338

C. IF COURTS EVER APPLY STRICT SCRUTINY IN THE SENTENCING

CONTEXT, THEY SHOULD APPLY IT TO ONGOING INCARCERATION AS

WELL.................................................. 338

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339

INTRODUCTION

In a sense, as Abduel Poe’s mother would later put it, two lives were lost

the evening of July 22, 1995. The first life belonged to Abduel, who, twenty

years old at the time, was gunned down in the parking lot of the Jug Liquor

Store in Minneapolis, Minnesota, over $20,000 in cash and a pound of mari-

juana that had gone missing.

1

The second belonged to Jerome Nunn, the

nineteen-year-old convicted of first-degree murder in the case arising from

Abduel’s death, who was sentenced to life imprisonment in the Minnesota

Department of Corrections.

2

1. State v. Nunn, 561 N.W.2d 902, 904 (Minn. 1997); Letter from Danielle Jones, Mother of Abduel

Poe 1 (Oct. 26, 2021) [hereinafter Jones Letter], in Motion and Stipulation to Vacate Conviction, to

Enter and Accept Plea, and for Sentence of Time Served at ex. 2, State v. Nunn, No. 27-CR-95-068982

(4th Jud. Dist. Ct. Dec. 23, 2021) (on file with author) [hereinafter Nunn Motion to Vacate Conviction].

2. 561 N.W.2d at 903–04; Nunn Motion to Vacate Conviction, supra note 1, at 1–2.

2022] WHEN A PRISON SENTENCE BECOMES UNCONSTITUTIONAL 283