Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences

By Dudani, Salil | The Yale Law Journal, May 2020 | Go to article overview

Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences


Dudani, Salil, The Yale Law Journal


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. …

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