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
To continue reading
Request your trial