Reframing the Debate Over Excessive
Sentences to Move Beyond the Eighth
Amendment
Brian J. Foley*
I. INTRODUCTION
When a state or the federal government takes the drastic step of
removing a person from his everyday life and imprisoning him away from
family, friends, and a chance to choose a vocation, it should have a good
reason for doing so. This should not be a controversial point. However, the
state of the law in the United States, for all practical purposes, is to
completely defer to legislative decisions and schemes to imprison people.1
The United States has become the world's biggest jailer, with 2.3 million of
its own people in prison, which exceeds other countries as a total and as a
percentage of its population. 2 Many, if not most, of these prisoners are
nonviolent and many are serving mandatory minimum sentences that can
fairly be characterized as draconian. The resort to incarceration has become
reflexive and mechanical in many cases because legislatures have increased
the criminalization of conduct and the length of sentences not in response
to real dangers, but as part of a dynamic that has been described as a ratchet
effect: Each legislative session has to be tougher on crime than the previous
* Professor of Law, Florida Coastal School of Law. Much of the research for this article was
conducted when I was a Visiting Associate Professor of Law, Boston University School of
Law, 2008-10. I thank participants in a BU Law Faculty Workshop in March, 2010, and at a
Florida Coastal School of Law Faculty Workshop in September, 2010 for their comments
and insights. I thank Ron Angerer (Florida Coastal School of Law '13), Trevor Burgess
(Florida Coastal School of Law '13), Eileen Eib (UCLA Law '12), Kellyanne Parry (BU
Law '11), Nikita Shah (BU Law '10), and Jenny Weisenbeck (BU Law '11) for their
excellent research assistance. I thank Roger Clark, Richard Frase, Joseph Hyder, M.G.
Piety, Terry Paupp, and Chris Roederer for discussing and debating drafts. I thank Dean
Peter Goplerud for the research grant that helped me to research and finish this article.
1.
See KATE STITH & JOSE A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES
INTHE FEDERAL COURTS 143-44 (1998).
2.
N.C. Aizenman, New High in U.S. PrisonNumbers, WASH. POST, Feb. 29, 2008.
3
CRIMNAL AND CIVIL CONFINEMENT
4
[Vol. 38:3
session.3
As a result, we have arrived at the "runaway legislature" that the
Framers dreaded, as described by the United States Supreme Court 100
years ago: "With power in a legislature great, if not unlimited, to give
criminal character to the actions of men, with power unlimited to fix terms
of imprisonment with what accompaniments they might, what more potent
instrument of cruelty could be put into the hands of power?" 4
The crime rate of the United States is not significantly different from
that of other developed nations.5 Our status as the world's biggest jailer
reflects a preference for incarceration. As Professor Markus Dirk Dubber
has written, the U.S. criminal justice system is "built to incapacitate the
greatest number of . .. individuals for the longest possible time with the
least effort." 6 Careful inquiry in many cases would show that incarceration
is unnecessary.7 It is this inquiry that the United States Supreme Court has,
through its Eighth Amendment excessive sentencing jurisprudence, decided
to forego; indeed, the Court's jurisprudence of deference prohibits judges
from undertaking it at all. 8
This Article argues that the Court should end its deference to
legislatures, a deference that is in fact a relatively new development in the
law of sentencing. Judges used to have broad discretion to sentence a
convicted criminal within a range of no time in prison to several years in
prison, and parole officials had broad discretion to release a prisoner who
was reformed. 9 In many cases, legislatures have taken away this
discretion.10 Put another way, the Supreme Court has quietly extinguished
3.
See STITH & CABRANES, supra note 1, at 38-77 (discussing the effect of federal
guidelines and mandatory minimums: "both have ratcheted up the severity of criminal
punishment"); Michael Tonry, The Functions of Sentencing and Sentencing Reform, 58
STAN. L. REV. 37, 49 (2005).
4.
Weems v. United States, 217 U.S. 349, 372-73 (1910) (discussing motives of the
Framers concerning the Eighth Amendment).
5.
CHRISTOPHER HARTNEY, RESEARCH FROM THE NATIONAL COUNCIL ON CRIME AND
DELINQUENCY, FACT SHEET: U.S. RATES OF INCARCERATION: A GLOBAL PERSPECTIVE 1, 5
(2006), available at www.nccd-crc.org/nccd/pubs/2006nov-factsheetincarceration.pdf.
The United States, however, has a higher murder rate than other developed nations. Id. at 56.
6.
Markus Dirk Dubber, Policing Possession: The War on Crime and the End of
CriminalLaw, 91 J. CRIM. L. & CRIMINOLOGY 829, 849 (2001).
7. See discussion infra Part II; see also Brian J. Foley, The Mass Incarceration
Crisis as an Opportunity to Rethink Blame, 9 CONN. PUB. INT. L.J. 8 (2009).
8. See James J. Brennan, The Supreme Court's Excessive Deference to Legislative
Bodies underEight Amendment Sentencing Review, 94 J.CRIM. L. & CRIMINOLOGY 551, 578
(2004).
9.
10.
See STITH & CABRANES, supra note 1, at 18-19.
Id. at 38-39.
2012]
REFRAANG THE DEBATE
5
a citizen's "right" to a considered inquiry by a judge into what would be a
proper sentence: an inquiry that might conclude that incarceration was not
necessary." The Court's deference has developed from fractured
concurring and plurality opinions over the past thirty years. 12 The Court
has failed to articulate a test that a majority of the justices have agreed on. 13
The void left from a failure to create an agreeable test is filled by a
philosophy of deference. 14 This deference coincides with the Court's broad
deference to police officers in the field, which likewise has developed over
the past thirty years.' 5 In short, the Constitution is not being enforced. It is
as if the Court has forgotten its own words from ninety years ago:
"Determination by the Legislature of what constitutes proper exercise of
police power is not final or conclusive but is subject to supervision by the
courts." 1 6
This Article challenges the Court and scholars working in this area of
law to reframe how the issue of excessiveness in sentencing is examined.
The Court, and almost every scholar to consider this issue, has not looked
beyond the Eighth Amendment to address this legal problem.' 7 Some
justices have fought over whether the Eighth Amendment even contains a
proportionality principle.' 8 The result has been the Court's fractured,
strange response that it does contain one, but just a little one: sentences are
11.
The Court has not considered this right. It recently, however, reaffirmed that there
is no constitutional right to parole. See Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011). The
right to parole is beyond the scope of this Article. Also, I use the term "right" loosely
because the highly discretionary role of a judge in sentencing was not necessarily in original
understandings of the Constitution.
See generally Richard S. Frase, Excessive Prison Sentences, Punishment Goals,
12.
and the Eight Amendment: "Proportionality"Relative to What?, 89 MINN. L. REv. 571,
576-88 (2005) (discussing the thirty-year history of the Supreme Court's jurisprudence on
punishment).
See Ewing v. California, 538 U.S. 11 (2003); Harmelin v. Michigan, 501 U.S. 957
13.
(1991).
14.
See infra Part II.
15.
See Brian J. Foley, Policing From the Gut: Anti-Intellectualism in American
Criminal Procedure,69 MD. L. REV. 261, 289-91 (2010) (discussing this difference in the
Court's constitutional criminal procedure cases).
16.
Meyer v. Nebraska, 262 U.S. 390, 400 (1923).
See, e.g., Kenneth A. Sprenger, Pass the Discretion Please-The Supreme Court
17.
Defers to State Legislatures in Interpreting What is Left of the Eighth Amendment's
ProportionalityPrinciple, 58 ARK(. L. REv. 425 (2005); Steven Grossman, Proportionality
in Non-Capital Sentencing: The Supreme Court's TorturedApproach to Cruel and Unusual
Punishment, 84 Ky. L.J. 107 (1996); Scott K. Peterson, The Punishment Need Not Fit the
Crime: Harmelin v. Michigan and the Eighth Amendment, 20 PEPP. L. REV. 747 (1993).
The arguments are ventilated fully in the opinions by Justices White and Scalia in
18.
Harmelin v. Michigan, 501 U.S. 957, 965 (1991).
6
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 38:3
constitutional unless "grossly" disproportionate. 19 There have been calls by
scholars for the Court to review sentences more rigorously while remaining
within the extremely cramped confines of rational basis review under the
Eighth Amendment. 2 0 However, another way to frame the issue has gone
almost entirely unexamined: whether the state and federal government may
constitutionally deprive citizens of their personal liberty, in effect, merely
by calling particular sorts of conduct a "crime" and then mandating a
sentence for it. The Court and scholars appear to have assumed that
legislatures have almost absolute power: the limits the Court has given are
a holding in Robinson v. Californiathat addiction to drugs alone cannot be
criminalized, 2 1 and the dictum from Robinson suggests that imprisoning
people even one day for catching a common cold would likewise be
disproportionate, 22 and the oft-repeated dictum that a life sentence for
overtime parking would likely be deemed unconstitutional.2 3 But this
leaves a broad range of conduct that apparently may be criminalized and
punished with less than life imprisonment. 24 A reading of the Constitution
that would allow deprivations of liberty to be governed only by
majoritarian politics in an area where passion easily overcomes reason is,
however, untenable.
19.
See id.
See, e.g., Donna H. Lee, Resuscitating Proportionality in Noncapital Criminal
20.
Sentencing, 40 ARIZ. ST. L.J. 527, 556-62 (2008); see generallyFrase, supra note 12, at 57476.
Robinson v. California, 370 U.S. 660, 667 (1962).
21.
Id. at 667 ("To be sure, imprisonment for 90 days is not, in the abstract, a
22.
punishment which is either cruel or unusual. But the question cannot be considered in the
abstract. Even one day in prison would be a cruel and unusual punishment for the 'crime' of
having a common cold."). Robinson is often discussed as the Court's high water mark in
delving into substantive criminal procedure, from which the Court retreated a mere six years
later. See Powell v. Texas, 392 U.S. 514, 532-34 (1968) (plurality opinion) ("Ultimately,
then, the most troubling aspects of this case, were Robinson to be extended to meet it, would
be the scope and content of what could only be a constitutional doctrine of criminal
responsibility."). See generally Robert Batey, The Costs of Judicial Restraint: Foregone
Opportunities to Limit America's Imprisonment Binge, 33 NEw ENG. J. ON CRIM. & CIV.
CONFINEMENT 29 (2007) (discussing the Court's lost opportunity in Robinson, Powell, and
other cases). As I argue in this Article, a substantive due process to the decision of whether
or not to incarcerate would not necessarily change the substantive criminal law. States could
continue to criminalize whatever conduct they wished to criminalize, but they would have to
justify incarceration.There is no need to conflate criminalization with incarceration. See
infra Part V.C.
Rummel v. Estelle, 445 U.S. 263, 288 (Powell, J., dissenting). The language was
23.
quoted with approval by the Court in its opinion. Id. at 274 n. 11 (upholding life sentence for
recidivist whose triggering crime was obtaining $120.75 by false pretences; the other two
crimes were fraud crimes).
See generally Frase,supra note 12, at 598-606.
24.
2012]
REFRAMTNG THE DEBATE
7
Considered analysis shows that there are greater limits on the
government's police power. This Article sketches a way out of the "Eighth
Amendment box" and lays the groundwork for further work. Part II of this
Article will critique the wholesale deference that the Court has engaged in
its two most recent cases where the length of the sentence was challenged:
Harmelin v. Michigan25 and Ewing v. California.26 Part III argues that
convicted criminals have a fundamental right against confinement such that
a government burden on that right must be subjected to strict scrutiny. This
argument is derived from Professor Sherry Colb's analysis in her article
titled "Freedomfrom Incarceration: Why is this Right Different from All
Other Rights?" published nearly twenty years ago. 27 This Article will build
upon on Professor Colb's argument. This section will argue that the United
States Supreme Court must re-see our criminal justice system not as one
based on retribution and blameworthiness, but rather as one whose chief
aim is public safety. 28 This function has actually become the main function
of the harsh sentencing laws, which have quietly created a regime of
preventive detention, as Professor Paul Robinson has argued. 29 The Court's
broad deference in sentencing is not really fitted for a system based on this,
but rather responds to a system based on retribution. 30 The Court defers to
legislative assessments of retribution, because these assessments ostensibly
reflect broad moral sentiment. But the Court can inquire into
dangerousness of individual defendants, which can curb the excesses of
Harmelin, 501 U.S. at 957.
Ewing, 538 U.S. at 11; see also Lockyer v. Andrade, 538 U.S. 63 (2003).
See Sherry F. Colb, Freedomfrom Incarceration:Why is this Right Diferentfrom
27.
All Other Rights?, 69 N.Y.U. L. REV. 781 (1994). Sherry Colb is currently a Professor of
Law and Charles Evans Hughes Scholar at Cornell Law School. Sherry Colb, CORNELL
UNIv., http://www.lawschool.cornell.edu/faculty/bio.cfm?id=327 (last visited Nov. 29,
2011). Professor Colb's article, despite its excellent placement and despite its authorship by
a prominent professor, has been almost entirely overlooked: not a single scholar who is
engaged in discussing the Supreme Court's approach to sentencing has meaningfully
addressed it-most do not even cite it. This article has been cited about forty times, but no
scholar or court has meaningfully engaged with its thesis. See also Warren Redlich, A
Substantive Due Process Challenge to the War on Drugs 4, available at
www.redlichlaw.com/crim/substantive-due-process-drug-war.pdf (last visited Feb. 28,
2011) (describing Colb's article as "a brilliant 1994 article . . . that has been almost
completely overlooked").
28.
See Brian J. Foley, The Mass Incarceration Crisis as an Opportunity to Rethink
Blame, 9 CONN. PUB. INTEREST L.J. 1, 8 (2009) (discussing the phenomenon of overimprisonment from a retributivist standpoint as "over-blaming").
Paul Robinson, Punishing Dangerousness: Cloaking Preventive Detention as
29.
CriminalJustice, 114 HARV. L. REv. 1429, 1447-49 (2001).
30.
Alice Ristroph, Desert, Democracy, and Sentencing Reform, 96 J. CRIM. L. &
25.
26.
CRIMINOLOGY 1293, 1298 (2006).
CRIMINAL AND CIVIL CONFINEMENT
8
[Vol. 38:3
legislatures' categorical sentencing (such as when they create mandatory
minimum sentences). The Court should not defer to what turn out to be
broad, unscientific guesses at dangerousness, guesses that are as much
based on politics as they are on wishful thinking and unspecified fears. The
fear and risk aversion that underlie harsh sentences should be opened to
scrutiny. 3 1
Part IV outlines a system that balances the convicted criminal's liberty
against public safety: a regime of shorter presumptive sentences coupled
with periodic review for dangerousness. While this proposal will be seen as
controversial, it would be less intrusive than the current system which
sentences harshly, over-inclusively, and often mechanically as a way of
creating preventive detention. 32 A prisoner, after a period of incarceration,
if warranted, could be examined for dangerousness. It is likely that many
prisoners would serve shorter sentences. This would likely end the mass
incarceration crisis, which after all is a product of the over-inclusiveness of
current sentencing regimes, that categorically over-predict for
dangerousness as a way of limiting the risk of danger.33
This proposal would not result in dangerous criminals running amuck.
Rather, a state would have a compelling interest in incapacitating criminals
who are actually dangerous. 35 Assessments of dangerousness would have
to be made with the humble understanding that such assessments are
imperfect and should avoid erring on the side of over-punishment, and that
assessments should be ongoing during incarceration, as we all lack crystal
balls. This proposal ultimately aims to force officials to: (1) justify why
they believe that people who have committed crimes, especially nonviolent
crimes, should be imprisoned, and (2) justify why people are imprisoned
for conduct that is not even treated as a criminal violation in other states.
Usually, this difference among states is seen as merely a traditional aspect
31.
Robinson concludes:
Some people will argue that it is simply not politically feasible in the United
States today to create an explicit system of preventive detention, even one limited
to dangerous felons about to be released from prison. Less feasible, however, is
political inaction in the face of recurring serious offenses that are preventable. The
inevitable pressure for protection will express itself in one form or another. If the
only choices are an open preventive detention system and a cloaked one, both the
community and potential detainees ought to prefer the open system. If there is a
danger of governmental abuse or preventive detention, that danger is greatest
when preventive detention is cloaked as criminal justice.
Robinson, supra note 29, at 1456.
See Robinson, supra note 29, at 1430.
32.
See id. at 1429-3 1.
33.
See Colb, supra note 27, at 783-84.
34.
Id. at 783.
35.
2012]
REFRAAING THE DEBATE
9
of federalism. 36 However, a state that imprisons people who engage in
conduct that other states permit, and that has not appeared to harm or
disrupt life in those other states, should have to justify the disparate
treatment that results in the deprivation of liberty. Incarceration is a
destructive act, and it should be constrained. Now, it is virtually
unconstrained.
This Article may be difficult for some readers because it challenges
currently accepted premises and perspectives on criminal law, such as
legislative primacy and the distinction between constitutionalizing criminal
procedure and constitutionalizing substantive criminal law. However,
legislative primacy is not absolute, not in its exercise of police powers, 38
and certainly not when it comes to burdens on fundamental rights that
trigger strict scrutiny review. Constitutionalizing substantive criminal law
is beyond the scope of this Article. 39 I have a more modest goal. This
36.
Justice Scalia wrote in his Harmelin concurring opinion, joined by Chief Justice
Rehnquist:
That a State is entitled to treat with stern disapproval an act that other States
punish with the mildest sanctions follows afortiorifrom the undoubted fact that a
State may criminalize an act that other states do not criminalize at all. Indeed, a
State may criminalize an act that other States choose to reward - punishing, for
example, the killing of endangered wild animals for which other States are
offering a bounty. What great disproportion could there be than that? "Absent a
constitutionally imposed uniformity inimical to traditional notions of federalism,
some State will always bear the distinction of treating particular offenders more
severely than any other State."
Harmelin, 501 U.S. at 889-90 (Scalia, J., concurring) (emphasis added) (citing Rummel, 445
U.S. at 282). My response is that this should not be the case, that there should be some
uniformity as there is for the treatment of other fundamental rights. A state should have to
justify, under strict scrutiny, why it criminalizes conduct that other states do not when the
state takes away a person's physical liberty.
See Colb, supra note 27, at 824.
37.
38.
Meyer, 262 U.S. at 400.
As Dean Louis Bilionis has written:
39.
Criminal law scholars have pined for a substantive constitutional criminal law
ever since Henry Hart and Herbert Packer first embraced the notion in the late
1950s and early 1960s. To this day, scholars continue to search for a theory that
gives content to, in Hart's words, "the unmistakable indications that the
Constitution means something definite and something serious when it speaks of
'crime."' To their dismay, the Supreme Court has - with two exceptions seemingly resisted the notion.
Louis D. Bilionis, Process, the Constitution, and Substantive Criminal Law, 96 MICH. L.
REv. 1269, 1269 (1998). Also beyond the scope of this Article is the broader argument made
by scholars about how the Constitution has been misread to ignore the protection of
fundamental rights, broadly defined, is presumptive and that it trumps presumptions that
legislation is constitutional. See, e.g., RANDY
E. BARNETT,
RESTORING THE LOST
10
CRIMNAL AND CIVIL CONFINEMENT
[Vol. 38:3
article addresses only sentencing, an area that already has been
constitutionalized under the Eighth Amendment, with the goal of
demonstrating how the Constitution could be more effective in the realm of
sentencing. Treating a convicted criminal's right to freedom from
incarceration as a fundamental right would provide a test in an area of law
where the Supreme Court has failed to agree upon a test. It is also an
overdue way of addressing the truly radical change that has occurred in
sentencing law. Legislatures have arrogated to themselves the power to
extinguish a defendant's liberty automatically upon conviction, and the
Supreme Court has, through its philosophy of deference, abrogated its own
power to scrutinize legislative action. Conviction has been conflated with
incarceration, 40 when there should be a separate inquiry by courts as to
whether incarceration is appropriate. This Article also seeks to re-focus
sentencing reformers' efforts from legislatures to the courts. Plenty of data
have been submitted to Congress and state legislatures, to little avail. 4 1 A
change in perspective is necessary. Courts must be encouraged to use their
powers to consider whether a convicted criminal should be incarcerated.
Courts must protect the liberty that legislatures so readily take away.
II. THE COURT'S FAILURE TO PROTECT INDIVIDUAL LIBERTY FROM
RUNAWAY LEGISLATURES
In a series of opinions coming from fractured courts, the Court has
arrived at, for all practical purposes, complete deference to state and federal
legislatures. In both Ewing v. California and Harmelin v. Michigan, the
Court failed to achieve a majority opinion setting forth a test that could be
applied.42 In these cases, the Court claimed that it was applying a
proportionality test but stated that the test was informed by "common
principles that give content to the uses and limits of proportionality
review." 43 These principles actually result in full deference to the
legislature. The Court gave lip service to states' interest in public safety,
but the Court did not meaningfully question whether public safety would be
CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004); Michael Anthony Lawrence,
Government as Liberty's Servant: The "Reasonable Time, Place and Manner" Standardof
Review for All Government Restrictions on Liberty Interests, 68 LA. L. REv. 1 (2007).
Colb, supra note 27, at 803.
40.
41.
See, e.g., CONSTITUTION PROJECT, SMART ON CRIME: RECOMMENDATIONS FOR THE
ADMINISTRATION AND CONGRESS (2011), http://www.soros.org/initiatives/washington/
articles-publications/publications/smart-on-crime-20110308/smart-on-crime-20110223.pdf.
The recommendations are focused not on courts, but on the executive and legislative
branches.
42.
Ewing, 538 U.S. at 11, 23; Harmelin, 501 U.S. at 957-59.
43.
Harmelin, 501 U.S. at 998 (Kennedy, J., concurring in part and concurring in
judgment).
2012]
REFRAMTNG THE DEBATE
11
served by incarcerating Gary Ewing for twenty-five years to life after he
stole a set of golf clubs, or first-time drug offender Ronald Allen Harmelin
for the rest of his life without any possibility of parole.4 4 These sentences
were harsher than those given routinely to rapists, robbers, and even some
murderers.
A. Harmelin v. Michigan
In Harmelin, the Court upheld a Michigan law that sentenced Ronald
Allen Harmelin to mandatory life without possibility of parole. 45 The Court
upheld the sentence on the narrow grounds in the only part of an opinion to
achieve a majority, which was Part IV of Justice Scalia's opinion
announcing the judgment. 46 It held that the sentence was not
unconstitutional because it did not violate the Eighth Amendment. 47
Harmelin challenged the sentence's mandatory nature as well as his lack of
ability to resent mitigating circumstances before the harsh penalty was
imposed. 4 Any non-capital sentence, the Court concluded, could be
mandatory: "Severe, mandatory penalties may be cruel, but they are not
unusual in the constitutional sense, having been employed in various forms
throughout our Nation's history." 49 Similarly, a non-capital sentence could
be imposed without any consideration of mitigating circumstances because
of the "death is different" mantra. 50 The Court reasoned that, unlike in
death cases, at least after execution, "there remain the possibilities of
retroactive legislative reduction and executive clemency."5 1
Beyond this narrow holding, there were several opinions. The Court was
split on whether the Eighth Amendment even contained a proportionality
principle. 52 Justice Kennedy's concurring opinion, joined by Justices
O'Connor and Souter, seen as the "controlling opinion," 53 sets forth a test
that putatively reconciled the Court's earlier opinions on this issue. 54
Justice Kennedy wrote that "stare decisis counsels our adherence to the
narrow proportionality principle that has existed in our Eighth Amendment
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
Id. at 1002; Ewing, 538 U.S. at 24.
Harmelin, 502 U.S. at 1009.
Id. at 994-96.
Id. at 994-95.
See id. at 994-96 (Scalia, J., concurring).
Id. at 994-95 (Kennedy, J., concurring).
Id. at 995-96.
Id. at 996.
See id. at 960, 996-99.
Graham v. Florida, 130 S. Ct. 2011, 2021 (2010).
Harmnelin, 501 U.S. at 996-97 (Kennedy, J., concurring).
12
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[Vol. 38:3
jurisprudence for 80 years."5 5 This was an effort to reconcile the different
positions over whether the Eighth Amendment contained a proportionality
principle. "Although our proportionality decisions have not been clear or
consistent in all respects, they can be reconciled, and they require us to
uphold petitioner's sentence."56 Justice Kennedy traced the eighty-year
history and stated, "Though our decisions recognize a proportionality
principle, its precise contours are unclear."57 Justice Kennedy wrote,
"[C]lose analysis of our decisions yields some common rinciples that give
content to the uses and limits of proportionality review."
Justice Kennedy provided six guiding principles of proportionality
which include: (1) "the fixing of prison terms for specific crimes involves a
substantive penological judgment that, as a general matter, is 'properly
within the province of the legislatures, not the courts'";59 (2) "the Eighth
Amendment does not mandate adoption of any one penological theory"; 60
(3) the "marked divergences both in underlying theories of sentencing and
in the length of prescribed prison terms are the inevitable, often beneficial,
result of the federal structure"; 6 1 (4) federal courts' proportionality review
"should be informed by 'objective factors to the maximum possible
extent'; 62 (5) "the most prominent objective factor is the type of
punishment imposed"; 63 and (6) "[tjhe Eighth Amendment does not require
strict proportionality between crime and sentence. Rather, it forbids only
extreme sentences that are 'grossly disproportionate' to the crime." 64 Even
with these guiding points, the Court recognized that they "lack clear
objective standards to distinguish between sentences for different terms of
55.
Id. at 996 (Kennedy, J., concurring). Justice Kennedy was referring to Weems, 217
U.S. at 349.
56.
Id. at 996-97 (Kennedy, J., concurring in part and concurring in judgment).
57.
Id. at 998.
58.
Id.
59.
Id. (quoting Rummel, 445 U.S. at 275-76). "The function of the legislature is
primary, its exercise fortified by presumptions of right and legality, and is not to be
interfered with lightly, nor by any judicial conception of its wisdom or propriety." Weems,
217 U.S. at 379.
60.
Harmelin, 501 U.S. at 999 (Kennedy, J., concurring) ("The federal and state
criminal systems have accorded different weights at different times to the penological goals
of retribution, deterrence, incapacitation, and rehabilitation.").
61.
Id. at 1000. A rational basis review was used. Id. ("And even assuming identical
philosophies, differing attitudes and perceptions of local conditions may yield different, yet
rational, conclusions regarding the appropriate length of prison terms for particular
crimes.").
62.
Id.
63.
Id.
64.
Id. at 1001.
2012]
REFRAMNG THE DEBATE
13
years." 65
Justice Kennedy went on to state that the drug dealing in this case was a
serious crime and, as such, the harsh sentence was not grossly
disproportionate. 66 Therefore, it was not necessary for the Court to
compare Harmelin's sentence with other sentences for other crimes in
Michigan, or with sentences for similar crimes in other states.67 "A better
reading of our cases leads to the conclusion that intra-jurisdictional and
inter-jurisdictional analyses are appropriate only in the rare case in which a
threshold comparison of the crime committed and the sentence imposed
leads to an inference of gross disproportionality." 68 Without this inference,
the sentence would not even be compared to others within the state or to
the sentences for similar crimes in other states. So even when it is not
known what such a comparison would yield, any sentence would be
permitted for what a judge sees as a "serious crime." 69 No analysis
whatsoever is necessary unless a judge's intuitions say that the sentence is
grossly disproportionate. Of course this is a highly subjective test: what,
after all, is "gross disproportionality"? The judge must rely on instinct and
tradition, and compare the sentence with the judge's experience,
understanding and intuition of other sentences. In the case of a murderer,
this is not very difficult. But if the judge has limited knowledge of
sentences for, say, theft, the judge is relying on belief and perceived
understandings. Why not simply require a comparison be done on the
record, given that one is being done roughly and essentially ad hoc?
It is unclear why Harmelin's crime was so "serious" that a court should
not even take the time to inquire into whether Michigan punished
indisputably serious crimes such as murder, manslaughter, rape, robbery,
and arson more or less harshly. Harmelin was convicted of possessing more
than 650 grams (1.5 lbs) of cocaine, which, as Justice Kennedy wrote,
would have yielded between 32,500 and 65,000 doses.70 He noted,
Id. Notably, Weems concluded that a sentence had to be overturned because it was
65.
disproportionate. See Weems, 217 U.S. at 379-82.
66.
Id. at 1004 (Kennedy, J., concurring in part and concurring in judgment).
Id. at 1005.
67.
68.
Id.
69.
Id. at 1004; see also Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring in part
and concurring in judgment). Justice Kennedy came to this point by stating that the analysis
was carried out in Solem and Weems after there was an inference of gross disproportionality,
but that in Rummel and Davis, the analysis was not credited though it was carried out. Id. at
1005.
70.
Id. at 1002 (Kennedy, J., concurring in part and concurring in judgment). This
seems like a huge discrepancy-100%, as 32,500 is one half of 65,000-but it went
unmentioned. Moreover, Justice Kennedy appears to have been incorrect by an order of
magnitude. According to the European Monitoring Centre for Drugs and Drug Addiction the
14
CRIMNAL AND CIVIL CONFINEMENT
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"Petitioner's suggestion that his crime was nonviolent and victimless,
echoed by the dissent, is false to the point of absurdity. To the contrary,
petitioner's crime threatened to cause grave harm to society."" The
Michigan court was not allowed by the law to "tak[e] into account the
particularized circumstances of the crime and the criminal."72 A particular
amount of drugs, without more, poses such a threat that a mandatory life
sentence without possibility of parole is appropriate. It is hard to see how
that could be a rational decision, 73 but neither the Court nor Justice
Kennedy inquired any further into the fact surrounding the threat that
Harmelin posed.74 Notably, no harm was actually caused. Justice Kenned
stated that "petitioner's crime threatenedto cause grave harm to society."
The conclusion that the crime threatened grave harm to society was never
tested; the fact that it was seen as "nonviolent and victimless" by fellow
justices should have given Justice Kennedy pause about the crime's gravity
rather than leading him to call his colleagues' view "false to the point of
absurdity." 7 6 According to Justice Kennedy, who wrote that objective
factors should be applied, his own opinion about the severity of a crime is
what really mattered. Because the crime was severe in his eyes, no
objective analysis was necessary. Not conducting an analysis shows the
Court's full deference to the legislature, which made life without the
possibility of parole mandatory for the amount of drugs Harmelin
typical cocaine dose at "street purity" is 100 - 200 mg (one to two grams), meaning there are
3250 - 6500 doses in 650 grams. See European Monitoring Centre for Drugs and Drug
Addiction, Cocaine and Crack,availableat http://www.emcdda.europa.eu/publications/
drug-profiles/cocaine#use (last visited Mar. 31, 2011). According to Drug Abuse Help.com,
the typical dose of snorted cocaine is between .05 grams and .2 grams, which would yield
between 3250 and 13,000 doses. See Drug Abuse Help, Cocaine Addiction and Treatment,
available at http://www.drugabusehelp.com/drugs/cocaine/ (last visited Mar. 31, 2011). But
under mere rational basis review informed by a philosophy of deference, perhaps, in the
Court's mind this does not matter because regardless, danger is danger?
Harmelin, 501 U.S. at 1002 (Kennedy, J., concurring in part and concurring in
71.
judgment).
72.
Id. at 961-62.
It has been argued that mandatory minimum sentences do not meet the rationality
73.
requirement because they only consider the fact that a defendant committed the crime. See
Eva S. Nilsen, Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to
Constitutional Discourse, 41 U.C. DAVIS L. REV. 111, 173 (2007) ("Punishment is
traditionally justified by either looking backward at the blameworthiness of the criminal, or
by looking forward to prevent new crimes and protect public safety. Mandatory minimums
do neither. . . .").
See Harmelin, 501 U.S. at 959-60, 966.
74.
Id. at 1002 (Kennedy, J., concurring in part and concurring in judgment)
75.
(emphasis added).
Id.
76.
2012]
REFRAMING THE DEBATE
15
possessed. The justices were not deferring to another judge's judiciallyreasoned conclusions; Michigan judges had no discretion to do anything
other than impose the mandatory life without possibility of parole sentence.
Moreover, under rational basis review, even if the sentence were somehow
irrational as applied, such as if Harmelin were paralyzed and comatose,
another rational basis such as deterrence or retribution probably could be
relied upon to uphold the sentence.7 7
Additionally, the Court failed to examine how incarcerating Harmelin
would actually advance the goal of public safety. The effects of drugs and
the personal autonomy issues of using drugs have been well documented,
yet the government's claims of the danger have gone unexamined in the
relevant sentencing cases. 79
The main problem is the premise that high deference must be accorded
the legislature's decision-without any real explanation as to why. Yes, it
might be difficult to determine how many years is appropriate to sentence
somebody for a crime, but it is not impossible. To say, as Justice Powell
wrote for the Court in Solem v. Helm, "It is clear that a twenty-five-year
sentence generally is more severe than a fifteen-year sentence, but in most
cases it would be difficult to decide that the former violates the Eighth
Amendment while the latter does not," 80 seems disingenuous. The
difference is an entire decade. Of course, it is not really impossible; judges
used to do this all the time, 8 1 as Justice Powell himself did just that in
Solem, and legislatures and sentencing commissions that create guidelines
do it, too. What is difficult is predicting dangerousness; if a court or
legislature is trying to do that, sub silentio, then it is difficult to tell if
fifteen years versus twenty-five years is enough, and this is not to mention
that in many cases, keeping a person in prison longer may help make him
into a more hardened and therefore more dangerous criminal. That is why it
77.
Id. at 999 (Kennedy, J., concurring in part and concurring in judgment) (stating
that the Constitution "does not mandate adoption of any one penological theory").
See, e.g., STEVEN B. DUKE & ALBERT C. GROSS, AMERICA'S LONGEST WAR:
78.
RETHINKING OUR TRAGIC CRUSADE AGAINST DRUGS (1993); see also Steven B. Duke, Mass
Imprisonment, Crime Rates, and the Drug War: A PenologicalandHumanitarianDisgrace,
9 CONN. PUB. INTEREST L.J. 17, 32-33 (2010).
See Harmelin, 501 U.S. at 996; Hutto v. Davis, 454 U.S. 370, 370-71 (1982)
79.
(upholding two consecutive twenty year sentences for nine ounces of marijuana). One of
Justice Kennedy's concerns was stare decisis. See Harmelin, 501 U.S. at 998 ("[S]tare
decisis counsels our adherence to the narrow proportionality principle that has existed in our
Eighth Amendment jurisprudence for 80 years."). However, stare decisis in this matter
could be a judicial decision-avoidance mechanism in a court with plenary legal authority.
80.
Solem, 463 U.S. at 294.
81.
See Williams v. New York, 337 U.S. 241, 245-46 (1949) (discussing judge's
broad latitude to sentence convicted criminals).
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CRIMNAL AND CIVIL CONFINEMENT
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is better to impose shorter sentences with regular review to determine a
prisoner's dangerousness; legislatures do not have crystal balls.
B. Ewing v. California
In Ewing v. California,the Court engaged in reasoning similar to that in
Harmelin, and still the Court was unable to reach a majority opinion.8 2 Five
justices concluded, for different reasons, that the twenty-five years to life
mandatory minimum sentence did not violate the Eighth Amendment. 83
The plurality opinion stated, "The proportionality principles in our cases
distilled in Justice Kennedy's concurrence [in Harmelin] guide our
application of the Eighth Amendment in the new context we are called
upon to consider." 84
Justice O'Connor stated that the Court had a "tradition of deferring to
state legislatures," 85 and noted "[o]ur traditional deference to legislative
policy choices ....86
When the California legislature enacted the three strikes law, it made a
judgment that protecting the public safety requires incapacitating
criminals who have already been convicted of at least one serious or
violent crime. Nothing in the Eighth Amendment prohibits California
from making that choice. To the contrary, our cases establish that States
have a valid interest in deterring and segregating habitual criminals.
Recidivism has long been recognized as a legitimate basis for increased
punishment. 87
Justice O'Connor went on to state, "The State's interest in deterring crime
also lends some support to the three strikes law. We have long viewed both
incapacitation and deterrence as rationales for recidivism statutes."8 8
What is striking, however, is how strenuously Justice O'Connor argued
82.
Ewing, 538 U.S. at 11.
Id. at 30-32. The Justices were: Chief Justice Rehnquist, Justice O'Connor, Justice
83.
Scalia, Justice Kennedy, and Justice Thomas. Id. (Stevens, Souter, Ginsberg, Breyer, JJ.
dissenting).
Id. at 23-24 (plurality opinion).
84.
85.
Id. at 24.
Id. at 25. Some readers might believe that this is an issue of states' rights.
86.
However, in support of this statement, the opinion relies on Gore v. United States, 357 U.S.
386, 393 (1957), where the deference was to Congress'sfederal drug laws. That is telling in
this case, which deals with an act by the California legislature. So, this deference is simply a
matter of deference to all legislatures great and small.
87.
Ewing, 538 U.S. at 25 (plurality opinion) (internal citations and quotation marks
omitted).
88.
Id. at 26-27.
2012]
REFRAMING THE DEBATE
17
that Gary Ewing's crime was serious. 89 The fact of the matter is that Ewing
stole three golf clubs by putting them down one of his pants legs and
limping out of a golf pro shop; he was arrested in the parking lot.9 0 Stealing
golf clubs by stowing them in your pant leg is comical, not a public danger.
Justice O'Connor also sedulously arped that Ewing's criminal record
proved that he was a public danger. Ewing had convictions for firstdegree robbery, battery for which he had been sentenced to thirty days,
which may suggest that the battery was not severe firearm possession,
property crimes, and minor drug crimes. 92 While these are not innocent
crimes, it is important to have some perspective and keep in mind what
Ewing's criminal record did not include murder, rape, robbery with a
firearm, aggravated battery, or arson, and that the value of property taken
was not high. Ewing was a public nuisance, not a public danger. 9
A counterargument is that what Justice O'Connor was focusing on was
recidivism, not the theft of golf clubs. But "recidivism" must be unpacked.
A recidivist whose crimes are almost all nonviolent is not a danger.94 This
difference goes unmentioned, as if recidivism, by some sort of alchemy,
can make a non-dangerous repeat offender into a dangerous one.
It is worth pointing out that Justice O'Connor's opinion, as written,
could have reasonably supported the exact opposite result. That is, the
opinion begins by setting forth the background of the passage of the
California Three Strikes Law. 95 The law initially failed to pass in the state
assembly. 96 Public outrage led to a voter initiative to add a proposition for
a three strikes law to the general election ballot. 97 During that time, a
recidivist, Richard Allen Davis, kidnapped and murdered a twelve-year-old
girl, Polly Klaas. 98 This horrific act "galvanized support for the three
strikes initiative. Within days, Proposition 184 was on its way to becoming
the fastest qualifying initiative in California history." 99 The Assembly
89. Id. at 28 ("[T]he Supreme Court of California has noted the 'seriousness' of grand
theft in the context of proportionality review. Theft of $1,200 in property is a felony under
federal law, and in the vast majority of States.").
90.
Id. at 17-18.
91.
Id at 29-30.
92.
Id at 18-20, 29-30.
93.
Id
94.
See Solem v. Helm, 463 U.S. 277, 296-97 (1983).
95.
Ewing, 538 U.S. at 16 (plurality opinion) (discussing California's Three Strikes
Law).
96.
Id. at 14.
97.
Id
98.
Id. at 14-15.
99.
Id. at 15.
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[Vol. 38:3
stepped in and quickly passed a bill that was similar to the proposition.100
On March 12, 2000, Gary Ewing walked-or, more accurately, limpedout of a golf pro shop and into a legal tsunami. 101 In effect, the Supreme
Court turned Ewing-and, indeed, all recidivists-into Richard Allen
Davis.
III. SENTENCES THAT SATISFY THE EIGHTH AMENDMENT'S
PROPORTIONALITY REQUIREMENTS ARE IMPOSSIBLE TO CHALLENGE
It is virtually impossible to challenge a sentence under the Court's test,
which is why the Court must adopt a new one. The assumption that the
Court cannot get involved in the issue of whether a convicted criminal
loses twenty-five years of his liberty or fifteen years seems untenable. 102 A
decade carved out of a person's life is treated blithely, which might be
appropriate when the person deserves the sentence and is clearly a public
danger. That a state or the federal government can take a decade, or not, is
an enormous, unconstrained power.
The rational basis test is toothless in Harmelin and Ewing.'03 The Court
appropriately mentioned that public safety was the goal of the statutory
schemes in these cases, but it did not put any pressure on this assertion.
This may be the nature of rational basis review, but it would seem that
something more, some further scrutiny should be required because a
person's liberty is at stake. Decency would seem to require some inquiry
into the rationality of such a burden, such a life-altering and in some cases
even life-destroying act that imprisonment represents. The "evolving
standards of decency" language of the Eighth Amendment could give the
Court some purchase here. 104 Since there is no test, the Court could create
one based on decency, but that would be highly subjective: whose decency
is it, anyway?
100.
Id.
See id at 17-18. It is also worth noting that the opinion reads as comedy, in two
101.
ways. For one, it tells a story of a man who walked into a mess (the Three Strikes Law) that
ended up ensnaring him when it did not fit him. The law was written with recidivist
murderers in mind. It also reads as satire in that the recitation of the Court's prior Eighth
Amendment cases seems like a joke: a man got life in prison "for obtaining $120.75 for
false pretenses." See id. at 21.
102.
One might think that a version of the rule of lenity might come into play. See
generally Bifulco v. United States, 477 U.S. 381, 387 (1980) (discussing rule of lenity);
United States v. Bass, 404 U.S. 336, 347-48 (1971).
See Harmelin, 501 U.S. at 1000; id. at 1004 (Kennedy, J., concurring); id at 1023103.
24 (White, J., dissenting); id at 1028 (Stevens, J., dissenting); see also Ewing, 538 U.S. at
88.
See generally Nilsen, supra note 73, at 157-59; Frase, supra note 12, at 646-47
104.
(discussing damage that imprisonment can wreak on prisoners).
2012]
REFRA MNG THE DEBATE
19
Proportionality is not the appropriate test, especially when it is informed
by total deference to the legislature whenever there is any rational basis for
the sentence. Even if the rationales are limited to retribution, incapacitation,
deterrence, and rehabilitation, these rationales can be shaped to fit almost
any occasion. For example, the oft-quoted language of Justice Powell from
his dissenting opinion in Rummel v. Estellelo5 that "[a] statute that levied a
mandatory life sentence for overtime parking might well deter vehicular
lawlessness, but it would offend our felt sense of justice,"' 0 6 is not
necessarily the case after Harmelin and Ewing. A rational basis for harshly
punishing overtime parking could be public safety. For example, too many
cars left in the street could clog up a street on which ambulances, police,
and fire vehicles need to pass freely and someone might die. Alternatively,
an abandoned car with contents inside of it that might appear to be some
sort of bomb could lead to public disorder. Look at the chaos created when
a passerby noticed that a car appeared to have a bomb in it in Times Square
in 2010.107 I am being somewhat facetious of course, but the examples
suggest how far a public safety argument could be taken even in the context
of what appears to be a crime for which retribution seems inappropriate. 108
The better course of action is for a court to pressure the government's
claim that public safety is served by the particular sentence in the particular
situation before it. The arguments that a car left in a space where a meter
has expired poses a public danger are arguably as tendentious and
speculative as the arguments that Ronald Harmelin's drug dealing posed a
public danger. The test proposed by Justice Kennedy appears to take the
legislature at face value and treat that entity as if it has engaged in serious,
accurate study of the threat to public danger when it is more likely that the
legislature has reacted based on politics and fear.
Such deference to the legislature is inappropriate in criminal justice
because the legislature's judgment is likely to be the result of fear,
irrationality, and unrealistic assessments of risk.109 Rather than repeating
the mantra that legislatures are peculiarly suited to making determinations
in this area,1 10 the Court should state the opposite: that legislatures are
105.
See Rummel, 445 U.S. at 285-307 (1980) (Powell, J., dissenting).
106.
Id. at 288. The language was quoted with approval by the Court in its opinion. Id.
at 274 n.l1.
107.
Al Baker & William K. Rashbaum, Police Find Car Bomb in Times Square, N.Y.
TIMES, May 1, 2010, http://www.nytimes.com/2010/05/02/nyregion/02timessquare.html.
108.
See Youngjae Lee, The Constitutional Right Against Excessive Punishment, 91
VA. L. REv. 677, 704-08 (2005) (arguing retribution should be used as a "side constraint").
See generally William J. Stuntz, The PathologicalPolitics of CriminalLaw, 100
109.
MIcH. L. REv. 505, 529-33 (2001).
See, e.g., Rummel, 445 U.S. at 274 ("[O]ne could argue without fear of
110.
contradiction by any decision of this Court that for crimes concededly classified and
CRIMNAL AND CIVIL CONFINEMENT
20
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particularly ill-suited. Doing so might seem paternalistic, but at least it has
the attribute of being realistic. What has come to pass is a danger that the
Framers feared: the runaway legislature. This is highly likely to occur in
criminal justice policy where there is danger, fear, and a hated "other"-a
hatred that is encouraged by politicians and the government itself. The
Court needs to step in and protect a vulnerable minority from oppression by
the majority, an oppression that appears to follow proper legal procedures.
Finally, deference is inappropriate because the legislatures when left to
their own devices have failed at controlling crime in the United States.111
Despite the massive incarceration rate, the United States does not have a
lower crime rate than other developed nations, and, in particular, its murder
rate is higher.11 2 These results aside, it is apparent that criminal justice in
the United States is the product of neither logic nor experience.113
Sentencing schemes themselves seem arbitrary, as Justice Scalia set forth in
Harmelin, in the context of a different argument:
[J]udging by the statutes that Americans have enacted, there is
enormous variation . . . then perhaps the citizens of 1791 would think
that today's Congress punishes with clear disproportionality when it
sanctions "assault by . .. wounding" with up to six months in prison, 18
U.S.C. 113(d), unauthorized reproduction of the "Smokey Bear"
character or name with the same penalty, 18 U.S.C. 711 offering to
barter a migratory bird with up to two years in prison, 16 U.S.C. 707(b),
and purloining a "key suited to any lock adopted by the Post-Office
Department" with a prison term of up to 10 years, 18 U.S.C. 1704.
Perhaps both we and they would be right, but the point is that there are
no textual or historical standards for saying so.114
Although the Court appears to find it inappropriate to question the
wisdom of the legislature even when it disagrees with the legislature,115
perhaps the Court could question its own wisdom of leaving the issue of
criminal justice to the legislatures. There is no reason to do so, especially
when liberty is at stake. Even a faint recognition of what is really at stakeliberty and whether to impose enormous costs on the defendant and his
classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state
penitentiary, the length of the sentence actually imposed is purely a matter of legislative
prerogative.").
Hartney, supra note 5, at 5-6.
111.
112.
113.
Id.
But cf OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1881) ("The life of
the law has not been logic; it has been experience.").
Harnelin, 501 U.S. at 987-88 (Scalia, J., concurring) (discussing variations in
114.
state sodomy, larceny, and assault and battery laws).
See, e.g., id. at 1008-09 (Kennedy, J., concurring in part and concurring in
115.
judgment).
2012]
REFRAMJNG THE DEBATE
21
family and community 6 --could inform the Eighth Amendment review,
and the Court could apply as rigorous of a rational basis review as is
possible; it could reach the outer limits of rational basis review, so to speak.
The Court could see itself as stepping in to fix matters where a co-equal
branch has completely fallen down on the job, especially to protect a
discrete minority from majoritarian politics.1 7 Such an intervention might
seem distasteful and would further the idea that "activist judges" override
the will of the people.11 8 But even if the people want harsh laws, as
exhibited by Californians' apparent widespread support for California's
Three Strikes Law,l 9 it is doubtful that such a huge majority of
Californians would have supported that the mandatory twenty-five years to
life sentence be imposed mechanically on Gary Ewing.120
Giving as much rational basis review as possible, however, will not
necessarily prevent harsh sentences from being meted out regularly in state
and federal courts. What about other aspects of Eighth Amendment law,
such as the "evolving standards of decency" standard that the Court has
applied in some cases?' 2 1 This language and the word "decency" itself do
not appear in Justice O'Connor's plurality opinion in Ewing, or even in any
of the other opinions. It does not appear in Justice Kennedy's concurring
opinion in Harmelin, either; the only place it shows up in Harmelin is one
mention in Justice White's dissent. 2 Apparently, this standard is used
only to address categories of punishment. For example, in Trop v.
Dulles,123 where the language originated, the Court held that it would be
unconstitutional to revoke a person's U.S. citizenship as punishment for a
crime. 124 In a similar vein, what about the Court's "own independent
judgment," which the Court has applied in some Eighth Amendment
116.
BRUCE WESTERN, Incarceration,Marriage,And Family Life, in PUNISHMENT AND
INEQUALITY INAMERICA 131-167 (2004).
See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938); JOHN
117.
HART ELY, DEMOCRACY AND DISTRUST 103, 172-73 (1980).
But see Forrest Maltzman, Lee Sigelman, & Paul J. Wahlbeck, Supreme Court
118.
Justices Really Do Follow the Election Returns, 37 POL. SCI. AND POL. 839 (2004).
119.
Ewing, 538 U.S. at 14-15 (plurality opinion).
120.
See Erwin Chemerinsky, The Constitution and Punishment, 56 STAN. L. REv.
1049 (2004) (discussing what jurors said after Ewing and Andrade); see also Emily
Bazelton, Arguing Three Strikes, N.Y. TIMES, May 21, 2010; Davis Kohnm, Three Strikes,
CBS NEWS (May 2, 2009), http://www.cbsnews.com/stories/2002/10/28/6011/main527248.s
html (last visited Nov. 29, 2011).
121.
See Trop v. Dulles, 356 U.S. 86, 101 (1958) (holding that the revocation of
citizenship is unconstitutional).
See Harmelin, 501 U.S. at 1015 (White, J., dissenting).
122.
Trop, 356 U.S. at 101.
123.
124.
Id.
22
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 38:3
cases? 125 This language does not show up at all in either Ewing or
Harmelin. Despite that the Court has not achieved a majority opinion with
an agreed-upon standard for dealing with the length of prison sentences,
these concerns are apparently not what the justices have in mind. The Court
appears to want to prevent itself from using its discretion in cases
challenging the length of incarceration. But there comes a point when
deference becomes a dereliction of duty.126
Some clarity came recently, when the Court articulated its Eighth
Amendment jurisprudence in Graham v. Florida.127 In a five to four
opinion, the Court explained that there are two general classifications of
proportionality discussions.1 28 The first classification challenge was to
term-of-years sentences. 129 The second classification comprised of cases
that use categorical rules in determining restrictions on the use of the death
penalty.130 There is almost no role for the Court beyond the threshold
determination of gross disproportionality vel non in the first category of
situations. If the Court finds gross disproportionality as a threshold issue,
then it defers to the legislatures by conducting a comparison to both the
state and interstate punishments. If the crime is punished a certain way by
other legislatures, then it is not a violation of the Eighth Amendment. There
is no place for the Court to apply its own independent judgment in
determining the constitutionality of the penalty. There appears to be no
ultimate power for the Court when it comes to the proportionality analysis
of a prison sentence.
That said, perhaps Graham offers hope. The Court did, after all, step
beyond the death penalty/non-death penalty distinction and strike down a
non-capital sentence based on a category of offender.131 If we set aside that
Roper v. Simmons, 543 U.S. 551, 564 (2005) (striking down as violative of the
125.
Eighth Amendment the death penalty as applied to criminals who committed crime while
under age 18).
126.
See Lee, supra note 108, at 558 ("[The Court's] adopting a perspective of
wholesale deference contradicts the judiciary's duty to interpret and uphold the
Constitution"); see also Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (citing Lawton v.
Steele, 152 U.S. 133, 137 (1894)) ("Determination by the legislature of what constitutes
proper exercise of police power is not final or conclusive but is subject to supervision by the
courts.").
127.
Graham v. Florida, 130 S. Ct. 2011 (2009). The Court held that a juvenile could
not be sentenced to life without parole for a non-homicide crime. Id. at 2022 ("The present
case involves an issue the Court has not considered previously: a categorical challenge to a
term-of-years sentence.").
128.
Id. at 2021.
129.
Id.
Id. Within the second category are two subdivisions: the nature of the offense and
130.
the offender's characteristics. Id. at 2022.
131.
See Rachel E. Barkow, The Court of Life and Death: The Two Tracks of
2012]
REFRAMJNG THE DEBATE
23
life-without-parole could be seen as a categorical sentence, too, and take at
face value the Court's description of the issue in Graham, which was, "The
present case involves an issue the Court has not considered previously: a
categorical challenge to a term-of-years sentence." 1 32 We see that perhaps
the Court might at some point import some of its death penalty
jurisprudence into term-of-years sentence cases for defendants who are not
in any protected category such as juveniles or the mentally retarded.133 On
the other hand, Graham may merely represent a new mantra to add to the
mantra of "death is different": "juveniles are different."
A new, less deferential test is necessary and a new way of seeing
criminaljustice is necessary. These come as a result of re-seeing criminal
law as just another government program, rather than as an almost mystical
act by government that seeks to do justice and mete out retribution-to set
the world aright.134 It also can come as a result of recognizing what so far
has gone unrecognized: that a convicted criminal retains his fundamental
right to be free of incarceration such that the government cannot simply
infringe on it subject only to rational basis review. Rather, as the next
section will show, there is a strong argument that this right is not
extinguished upon conviction of a crime. This right, then, may be burdened
only if there is a compelling government interest to do so and the burden is
narrowly tailored. 135 While this would not hamper sentencing of murderers
and rapists and robbers, it would prevent governments from imposing harsh
sentences needlessly, as they were on Gary Ewing and Ronald Allen
Harmelin.
IV. SAME AS IT NEVER WAS: THIS DEFERENCE IS A DEPARTURE FROM THE
NORM, NOT BUSINESS AS USUAL
In the Court's opinions, there is a sense that this deference to a
legislature that has created detailed, harsh sentences, accords with tradition
or business as usual. It is important to note that this is not the case. The
ConstitutionalSentencing Law and the Casefor Uniformity, 107 MICH. L. REv. 1145, 1146
(2009) (arguing that this massive difference in review of death v. non-death sentences is
arbitrary and should cease). Barkow does not mention Colb's article or argument. See id.
132.
Graham, 130 S. Ct. at 2022.
133.
See Atkins v. Virginia, 536 U.S. 304 (2002) (holding that death sentence violative
of Eighth Amendment when applied to mentally retarded). I think that the Court's stating
"term-of-years sentence" rather than "life-without-possibility-of-parole" (LWOP) in the
quoted language above is telling. Otherwise, a response to the Court's prohibiting LWOP
sentences to be imposed on juveniles convicted of crimes other than homicide could lead to
sentences for, say, 100 years.
134.
See Ristroph, supra note 30, at 1293 (calling determination of the appropriate
level of blame under a retributivist theory "a metaphysical mystery").
See discussion infra Part IV.
135.
CRIMINAL AND CIVIL CONFINEMENT
24
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harsh laws that the Court addressed in Harmelin and Ewing were a
relatively new development that represented an increase in legislatures'
mandating extremely severe sentences. The sentencing regime that
obtained generally in the United States was one where judges had broad
discretion to sentence convicted criminals and after that, the convicted
criminal would be subjected to review by parole officials who could
determine whether he could be released.136 The Supreme Court itself
engaged in limited review of the trial judge's sentencing. There was little
need to review the legislatures' sentencing schemes beyond the death
penalty because the legislatures were not dictating extremely severe
sentences. This understanding of historical context appears to be missing
from Harmelin and Ewing.
What also appears to be missing is an understanding of the actual
meaning of the maxims the Court relied on; again, historical context is
missing. For example, in Ewing and Harmelin, the Court expressed a
reluctance to engage in legislating criminal law. 137 However, this
traditional deference was grounded in the idea that the system had opted for
a regime where legislatures, not judges, are supposed to create the
crimes. 138 There was opposition to common law crimes, meaning the
judicial creation of crimes. 139 This activity is different from a court's
reviewing a sentence; courts were in far more control of sentences than
legislatures were.140 Sentencing used to be in a court's hands, specifically
and appellate courts were reluctant to overturn sentencing
the trial court's,
14
decisions.
1
There has also been a school of thought in criminal law that argued
against judicial discretion in sentencing.14 But those arguments were not
made in the context of a battle over the merits of judicial discretion versus
legislative discretion. Rather, they were made in the context of whether
such discretion should lie with experts in the parole process, who could
monitor a prisoner's process over time or with judges who could only set a
sentence at the front end, often with limited information and necessarily
without the knowledge of how the prisoner is progressing during the time
of his sentence. 14 3
136.
STITH & CABRANES, supra note 1, at 7.
137.
Ewing, 538 U.S. at 12; Harmelin, 501 U.S. at 959.
138.
STITH & CABRANES, supra note 1, at 22.
139.
Id. at 22-23.
140.
Id. at 23.
141.
Id. ("Without appellate review of sentencing, there has been almost no 'common
law' of sentencing in this country.").
142.
Id. at 21.
143.
Id. at 21.
2012]
REFRAMHNG THE DEBATE
25
So, in a sense, the Court did not always defer to legislatures in
sentencing matters-it was the other way around. The lack of cases
concerning judicial deference to the legislature reflects that there was
nothing to review, or that review was rare, not that there was no review;
arguably, that there was thus somehow a rule against such review. As we
will see, the convicted criminal was not necessarily seen as losing any
consideration of his right to freedom from incarceration.1 44 Rather, he was
placed under the control of a judge, who would engage in a searching
review and determination of a sentence which included the possibility of no
incarceration at all.145 The sentencing regimes that the Court upheld in
Harmelin and Ewing fully extinguish a convicted criminal's liberty interest
and allow a "sentencing judge" who is a sentencing judge in name only, to
ignore the convicted criminal's liberty interest. 146 The rise of this sort of
mechanical sentence represented a new development.14 7
What the Court failed to recognize in Harmelin and Ewing was that the
sentences in those cases represented a departure from the norm; they were
not the continuation of a norm. They represented an arrogation of power by
the legislature. This legislative expansiveness should have been met with a
higher level of scrutiny by the Court, not with deference. As much as
philosophers argue that a person cannot sell himself into slavery, 148 the
Court should have recognized that it cannot defer to the legislature's
removal of courts' ability to review its actions.
V. GETTING OUT OF THE EIGHTH AMENDMENT Box: Do CONVICTED
CRIMINALS HAVE A LIBERTY INTEREST AGAINST INCARCERATION THAT
THE GOVERNMENT CANNOT INFRINGE UNLESS DOING SO PASSES STRICT
SCRUTINY?
The Court has deferred to the legislatures in cases challenging sentences
as excessive because the Court does not regard a convicted criminal as
having any liberty interest after conviction-that is, a right to freedom from
confinement or incarceration. 149 Despite having never seriously considered
the issue, the Court has stated with certainty that a convicted criminal has
no liberty. The interest, according to the Court, is extinguished upon
conviction. This section's analysis will build on the argument by Professor
Colb and the work of Warren Redlich, the only other commentator to
144.
145.
146.
147.
See, e.g., Meachum, 427 U.S. at 224.
See id.
STITH & CABRANES, supra note 1, at 80-8 1.
Id. at 123 (discussing mandatory minimum sentences).
148.
See, e.g., JOHN STUART MILL, ON LIBERTY 158 (1869).
149.
Colb, supra note 27, at 781.
26
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 38:3
address this issue. 150 One of the important points this Article's analysis
adds is that the Court has never addressed the issue because for most of
U.S. history, a searching review by a judge as to the appropriateness of
prison and the appropriate number of years was inherent in the judicial act
of sentencing.15 1 Given the changed circumstances vis a vis legislative
involvement in sentencing, the Court should hold that courts must consider
whether it is necessary to incarcerate a convicted criminal, and if so, for
how long.
A. The Liberty Interest in .. . Liberty
The Court has stated that "freedom, from bodily restraint,"l5 is a liberty
interest that is subject to substantive due process protection, but it has not
dealt with a substantive due process challenge to a criminal sentence on
these grounds. For example, in Meyer v. Nebraska, where the Court
asserted this interest, the case addressed a statute that prohibited "the
teaching in school of any subject except in English; also the teaching of any
other language until the pupil has attained and successfully passed the
eighth grade, , which is not usually accomplished before the age of
Redlich, supra note 27. Redlich relies on Colb but limits his argument to drug
150.
cases. Id.
See supra Part IV. An interesting argument that is beyond the scope of this article
151.
is that a convicted criminal has a right to a judge's discretion in sentencing him; that the
removal of this discretion by legislative fiat is actually a due process violation, given the
rich tradition ofjudicial discretion and deep understanding that such discretion was inherent
in the act of sentencing. It also violates the narrow tailoring requirement of strict scrutiny.
Legislatively-mandated sentences may violate the Eighth Amendment's proportionality
requirement. See Frase,supra note 13, at 641.
Meyer v. Nebraska 262 U.S. 390, 399-400 (1923). Meyer discussed liberty
152.
interests in the following context:
While this court has not attempted to define with exactness the liberty thus
guaranteed, the term has received much consideration and some of the included
things have been definitely stated. Without doubt, it denotes not merely freedom
from bodily restraint but also the right of the individual to contract, to engage in
any of the common occupations of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God according to the dictates
of his own conscience, and generally to enjoy those privileges long recognized at
common law as essential to the orderly pursuit of happiness by free men ... The
established doctrine is that this liberty may not be interfered with, under the guise
of protecting the public interest, by legislative action which is arbitrary or without
reasonable relation to some purpose within the competency of the state to effect.
Determination by the Legislature of what constitutes proper exercise of police
power is not final or conclusive but is subject to supervision by the courts.
Id. at 399-400 (citations omitted) (emphasis added). This liberty was an accepted premise,
not an issue of dispute in the case. Notably, there is also an accepted premise that the police
power of a state is not absolute. Id. (citing Lawton v. Steele, 152 U. S. 133, 137 (1894)).
2012]
REFRAMTNG THE DEBATE
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twelve."l 53 The liberty interest that the Court protected by striking down
the statute and conviction was not freedom from bodily restraint, but rather
plaintiffs occupation of teaching a foreign language. "Plaintiff in error
taught this language in school as part of his occupation. His right thus to
teach and the right of parents to engage him so to instruct their children, we
think, are within the liberty of the amendment." 54 The Court has also
recognized the interest in freedom from bodily restraint in cases
concerning: preventive detention of terrorism suspects,155 preventive, pretrial detention of arrestees,15 6 preventive, continued detention of "sexually
violent predators" after their sentence has been served,15 7 and
preventive/protective detention of the mentally ill.158 However, the Court
has never meaningfully considered the argument that a convicted criminal
has a liberty interest in his liberty that survives conviction and certainly not
in the context of a claim that a sentence is disproportionate or excessive.
Nevertheless, when the Court has encountered the argument more
generally, it has rejected it out of hand. It does not always cite authority for
its rejection. But when it does, it cites ultimately to Meachum v. Fano,159
which itself does not cite any authority. 160 (When the Court cites cases
other than Meachum, those cases ultimately cite Meachum.) But Meachum
did not squarely address the issue. The issue in Meachum was whether
prisoners (who had already been convicted and were serving sentences) had
a liberty interest in not being transferred from one prison to another that
had substantially worse conditions; the Court held that they did not. The
idea that no such right exists is treated as a foundational premise, one that
perhaps needs no citation, but the lack of judicial reasoning on this topic is
notable. 16 1 I will briefly trace the Court's addressing this topic beginning
with Meachum.
In Meachum, the Court in an opinion by Justice White, addressed a
challenge by prisoners who had been transferred from one Massachusetts
state prison to another, but with worse conditions. The Court stated:
153.
Id. at 400.
Id. at 401.
154.
See Hamdi v. Rumsfeld, 542 U.S. 507, 531 (2004).
155.
See United States v. Salerno, 481 U.S. 739, 749 (1987).
156.
See Kansas v. Hendricks, 521 U.S. 346, 357 (1997).
157.
158.
See, e.g., Foucha v. Louisiana, 504 U.S. 71, 73 (1992); O'Connor v. Donaldson,
422 U.S. 563, 565 (1975).
159.
Meachum v. Fano, 427 U.S. 215 (1976).
See id. at 224 (stating this claim without citation).
160.
This is not surprising. The Court has actually created a jurisprudence in which it
161.
refuses to consider, and refuses to make police officers consider, criminal suspects' rights.
See Foley, supra note 15.
28
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The Due Process Clause by its own force forbids the State from
convicting any person of crime [sic] and depriving him of his liberty
without complying fully with the requirements of the Clause. But given
a valid conviction, the criminal defendant has been constitutionally
deprived of his liberty to the extent that the State may confine him and
subject him to the rules of its prison system so long as the conditions of
confinement do not otherwise violate the Constitution. . . . The
conviction has sufficiently extinguished the defendant's liberty interest
to empower the State to confine him in any of its prisons. 162
Notably, the Court made this statement without citation. The Court was
dealing with the impropriety of applying its own discretion instead of the
prison officials' discretion.163 This is different from an argument that a
court has no discretion in sentencing, a discretion that many trial judges,
especially federal judges, had at that time. 164 In fact, criminal law
reformers who argued that the main goal of punishment was rehabilitation
argued in favor of prison and parole officials' discretion and against
judicial discretion in sentencing, at least in mandating harsh sentences that
might give a prisoner a lack of incentive to reform or that might
incapacitate him beyond the time when he has reformed. 165
In the dissenting opinion, Justice Stevens, joined by Justices Brennan
and Marshall, argued that prisoners still enjoyed a partial liberty interest. 166
He also noted that, "the view once held that an inmate is a mere slave is
now totally rejected." 167 Again, however, it is important to note that in
most cases an inmate, even one who was considered a "mere slave" of the
state, had been sentenced by a judge who, presumably, considered whether
prison was even appropriate in the first place.1 68
162.
Meachum, 427 U.S. at 224. There were no citations to other authority. See id.
163.
Id. at 228-29 ("Holding that arrangements like this are within reach of the
procedural protections of the Due Process Clause would place the Clause astride the day-today functioning of state prisons and involve the judiciary in issues and discretionary
decisions that are not the business of federal judges.").
164.
The U.S. Sentencing Guidelines, which severely curtailed federal district judges'
discretion, took effect in 1987. STITH & CABRANEs, supra note 1, at 1.
165.
Id. at 17 (noting argument that "without the incentive of early release for good
behavior, prisoners seemed increasingly to engage in unruly and violent behavior").
166.
Meachum, 427 U.S. at 231 (Stevens, J., dissenting).
167.
Id. at 231 (Stevens, J., dissenting) (quoting U.S. ex rel. Miller v. Twomey, 479
F.2d 701, 712-13 (7th Cir. 1973) (opinion by Stevens, J.)).
168.
See STITH & CABRANES, supra note 1, at 19 ("[F]ederal trial judges retained the
important authority to sentence the defendant to no time in prison. This procedure was first
developed in Massachusetts during the nineteenth century on the theory that imprisonment
was not necessary or proper for the rehabilitation of certain individuals. Even under those
few statutes that provided for minimum prison terms, federal courts continued on occasion
to order a 'suspension' of a sentence-a power state courts had also assumed and exercised.
2012]
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29
Three years later, in Greenholtz v. Nebraska Inmates, which dealt with
whether there was a right to parole, 169 the Court relied on Meachum:
There is no constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence. The
natural desire of an individual to be released is indistinguishable from
the initial resistance to being confined. But the conviction, with all its
procedural safeguards, has extinguished that liberty right: "[G]iven a
valid conviction, the criminal defendant has been constitutionally
deprived of his liberty."170
The next year, in Vitek v. Jones, the Court concluded that a prisoner being
involuntarily transferred from prison to a mental hospital had a liberty
interest that was implicated by such a transfer. 17 1 This was for two reasons:
the prison could reasonably expect that there would have to be a finding
that he was suffering from a mental illness that could not be treated in
prison, and that there was a "stigmatizing" effect from such a transfer. 172
The transfer "constituted a major change in the conditions of confinement
amounting to a grievous loss that should not be imposed without the
opportunity for notice and an adequate hearing." 73 In this procedural due
process case, the Court distinguished this context from the context of
freedom from incarceration after conviction writing, "Undoubtedly, a valid
criminal conviction and prison sentence extinguish a defendant's right to
freedom from confinement. Such a conviction and sentence sufficiently
liberty 'to empower the state to confine him in any
extinguish a defendant's
1 74
prisons."'
its
of
In 1986, in McMillan v. Pennsylvania,the Court cited only Meachum as
authority in stating that a prisoner had no liberty interest after
conviction. 175 "Once the reasonable-doubt standard has been applied to
obtain a valid conviction, the criminal defendant has been constitutionally
deprived of his liberty to the extent that the State may confine him."l76
McMillan concerned the burden of proof required for the government to
While the Supreme Court held in 1916 that federal courts had no authority to permanently
'suspend' a statutorily prescribed minimum term of imprisonment, the power was restored
in 1925 when Congress enacted the National Probation Act.").
169.
See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979).
170.
Id. at 7 (quoting Meacham, 427 U.S. at 224).
Vitek v. Jones, 445 U.S. 480, 487-88 (1980) (White, J.).
171.
172.
Id.
173.
Id. at 488.
174.
Id. at 493 (quoting Meachum, 427 U.S. at 224).
175.
McMillan v. Pennsylvania, 477 U.S. 79, 92 n.8 (Rehnquist, J.) (quoting Meachum,
427 U.S. at 224).
176.
Id.
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prove, during sentencing, facts not proved at trial-sentencing factors. 177
These opinions then took on a life of their own and finally were used in
the context of a challenge to a sentence. In 1991, in Chapman v. United
States, the Court rejected a challenge to a sentence in which it was argued
that the sentence should be subjected to strict scrutiny. 7 ' But the Couirt did
not address the issue head-on:
Petitioners argue that the due process of law guaranteed them by the
Fifth Amendment is violated by determining the lengths of their
sentences in accordance with the weight of the LSD "carrier," a factor
which they insist is arbitrary. They argue preliminarily that the right to
be free from deprivations of liberty as a result of arbitrary sentences is
fundamental, and therefore the statutory provision at issue may be
upheld only if the Government has a compelling interest in the
classification in question. But we have never subjected the criminal
process to this sort of truncated analysis, and we decline to do so now.
Every person has a fundamental right to liberty in the sense that the
Government may not punish him unless and until it proves his guilt
beyond a reasonable doubt at a criminal trial conducted in accordance
with the relevant constitutional guarantees. Bell v. Wolfish, 441 U.S.
520, 535, 536, and n. 16 (1979). But a person who has been so
convicted is eligible for, and the court may impose, whatever
punishment is authorized by statute for his offense, so long as that
penalty is not cruel and unusual, McMillan v. Pennsylvania, 477 U.S.
79,92, n. 8 (1986); Meachum v. Fano, 427 U.S. 215, 224 (1976), and so
long as the penalty is not based on an arbitrary distinction that would
violate the Due Process Clause of the Fifth Amendment . .. We find
that Congress had a rational basis for its choice of penalties for LSD
distribution.
Two points deserve mention. First, the Court rejected the challenge by
relying on precedent in the broadest sense, that of tradition, stating that
"we have never subjected the criminal process to this sort of truncated
analysis, and we decline to do so now."180 The cases cited are from a
different context, so this reliance on mere tradition is not proper judicial
reasoning. Also, the Court calls strict scrutiny a "truncated" analysis, which
177.
Id. at 85.
178.
Chapman v. United States, 500 U.S. 453, 464-65 (1991) (Rehnquist, C.J.). It is
worth noting that Professor Colb does not discuss Chapman in her article.
179.
Id. (emphasis added) (parallel citations omitted). Notably, Bell addressed the
rights of pretrial detainees. See Bell v. Wolfish, 441 U.S. 520, 535-36, 536 n.16 (1979). In
Jones, the Court held that the government may confine in a mental hospital a person found
not guilty by reason of insanity beyond the time the putative criminal sentence would have
expired. Jones v. United States, 463 U.S. 354, 362 i.10 (1983).
Chapman, 500 U.S. at 464-65.
180.
2012]
REFRAMTNG THE DEBATE
31
is dismissive and inapt, when in fact, a strict scrutiny analysis is detailed
and searching, hardly "truncated" at all. Justice Rehnquist stated:
But a person who has been so convicted is eligible for, and the court
may impose, whatever punishment is authorized by statute of this
offense, so long as that penalty is not cruel and unusual .. . and so long
as the penalty is not based on an arbitrary distinction that would violate
the Due Process Clause of the Fifth Amendment. 181
He was begging the question: was this an arbitrary distinction? More
unconsciously
perhaps
was
Rehnquist
Justice
importantly,
mischaracterizing the sentencing process, at least in some cases, and
certainly as it played out in cases such as Harmelin from the same year and
Ewing more than ten years later. In such cases, the idea that "the court may
impose" is merely formal. The sentences are mandatory and allow for no
discretion. So "whatever punishment is authorized by statute" is the
punishment, no ifs, ands, or buts about it. My point is that prisoners used to
have some "right," (a term I use loosely) to a searching review by a judge
before being sentenced, a review that might include the possibility of no
incarceration at all.
The following year, in Foucha v. Louisiana, which held that the state
violated due process by continuing to confine a defendant who had been
found not guilty by reason of insanity on the basis that the defendant
exhibited anti-social behavior but had no mental illness.182 The Court
declared that the "State, pursuant to its police power, may of course
imprison convicted criminals for the purposes of deterrence and
retribution."18 3 This statement was not followed by any citation. However,
the Foucha dissent by Justice Thomas addresses this issue relying on
Chapman to again, substitute tradition for reasoning. Justice Thomas
stated:
[F]reedom from involuntary confinement is at the heart of the "liberty"
protected by the Due Process Clause. But a liberty interest per se is not
the same thing as a fundamental right. Whatever the exact scope of the
fundamental right to "freedom from bodily restraint" recognized by our
cases, it certainly cannot be defined at the exceedingly great level of
generality the Court suggests today. There is simply no basis in our
society's history or in the precedents of this Court . . . to support the
existence of a sweeping, general fundamental right to "freedom from
For an analysis of Justice Rehnquist's many logical fallacies throughout his
181.
opinions, see Andrew Jay McClurg, Logical Fallacies and The Supreme Court: A Critical
Examination ofJustice Rehnquist's Decisions in Criminal ProcedureCases, 59 U. COLO. L.
REv. 741, 781-85 (1988).
182.
Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (White, J.).
183.
Id.; see also Colb, supra note 27, at 790.
CRIMINAL AND CIVIL CONFINEMENT
32
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bodily restraint" applicable to all persons in all contexts . . .. If
convicted prisoners could claim such a right, for example, we would
subject all prison sentences to strict scrutiny. This we have consistently
refused to do. See, e.g., Chapman v. United States, 500 U.S. 453, 465
(1991).184
The "consistent refusal" based on authorities used in different contexts and
which ultimately cite no authority and based on the simple fact that no such
review had been carried out became the authority. Tradition trumped
reasoning-just as it does in the Court's deference to the legislature, which
in the Court's most recent Eighth Amendment non-capital, non-juvenile
sentencing case, Ewing, was described as a "tradition" of deferring to the
legislature. 8 5
It is as if the Court were saying, "We do it this way because we've
always done it this way." This refusal, therefore, has not been based on
principle, or if it has, the principle has not been articulated. The issue
actually has not been addressed head-on. However, Justice Thomas seemed
to suggest that there might be something to the issue, writing:
Unless the Court wishes to overturn this line of cases, its substantive
due process analysis must rest entirely on the fact that an insanity
acquittee has not been convicted of a crime. Conviction is, of course, a
significant event. But I am not sure that it deserves talismanic
significance. Once a State proves beyond a reasonable doubt that an
individual has committed a crime, it is, at a minimum, not obviously a
matter of federal constitutional concern whether the State proceeds to
label that individual "guilty," "guilty but insane," or "not guilty by
reason of insanity." A State may just as well decide to label its verdicts
"A," "B," and "C." It is surely rather odd to have rules of federal
constitutional law turn entirely upon the label chosen by a State. Cf
Railway Express Agency, Inc. v. Virginia, 358 U.S. 434, 441(1959)
(constitutionality of state action should not turn on "magic words").186
Justice Thomas was writing this in the context of how an insane person is
treated. But the point that he was "not sure that [conviction] deserves
talismanic significance" is provocative. It suggests that a state's
criminalizing conduct that is rarely criminalized, or ought not to be
Foucha, 504 U.S. at 117-18 (Thomas, J., dissenting) (emphasis added) (joined by
184.
Chief Justice Rehnquist and Justice Scalia).
185.
Ewing, 538 U.S. at 24 (plurality opinion) ("Though three strikes laws may be
relatively new, our tradition of deferring to state legislatures in making and implementing
such policy decisions is longstanding."). Notably, although discussing deference to state
legislatures, Justice O'Connor cited, inter alia, Gore v. United States, 357 U.S. 386 (1958),
which dealt with deference to Congress.
Foucha, 504 U.S. at 118 n.13 (Thomas, J., dissenting).
186.
REFRAMNG THE DEBATE
2012]
33
criminalized, could lead to Court review more searching than a mere
determination that the conduct was "criminalized" and that the defendant
was "convicted." However, neither Justice Thomas nor the Court has
picked up the issue since.
What is also interesting is what Justice Thomas called a "line of cases,"
citing only Chapman, which cited only Meachum. The "line of cases" as I
have shown above is one where the actual issue was not addressed, and the
Court's conclusion was without ostensible reliance on authority. Justice
Thomas further rejected a broad right in a preceding footnote:
The Court cites only Youngberg v. Romeo, 457 U.S. 307, 316 (1982), in
support of its assertion that "[f]reedom from bodily restraint has always
been at the core of the liberty protected by the Due Process Clause from
arbitrary governmental action," ante, at 1785. What "freedom from
bodily restraint" meant in that case, however, is completely different
from what the Court uses the phrase to mean here. Youngberg involved
the substantive due process rights of an institutionalized, mentally
retarded patient who had been restrained by shackles placed on his arms
for portions of each day. See 457 U.S., at 310, and n.4. What the Court
meant by "freedom from bodily restraint," then, was quite literally
freedom not to be physically strapped to a bed. That case in no way
established the broad "freedom from bodily restraint" - apparently
meaning freedom from all involuntary confinement - that the Court
discusses today.18 7
Certainly, that a convicted criminal has no liberty interest other than a de
minimis interest grounded in the Eighth Amendment, in not having to serve
a grossly disproportionate sentence, has been the understanding of courts
and commentators. There was not even a challenge to this idea in Ewing or
Harmelin. This has been an accepted, but yet wholly unproven, premise.
Because the Court has not considered that a convicted criminal has an
interest in liberty that is constitutionally implicated in the decision to
incarcerate or not and if so for how long, the Court has deferred to
legislatures' determinations of what conduct can be criminalized. From
that, it follows, as if a fortiori, that the person may be thrown into prison
for having done this conduct. Unlike the pre-Guidelines era, and unlike
when judges had discretion to sentence in a broad range, including
sentencing to no time at all in prison, the sentencing regimes represented in
Harmelin and Ewing lack the requirement for any intermediate step where
the Court may ask, "Although the person has been convicted of the crime,
can the government incarcerate this person?" Answering this question has
been seen traditionally (as far as it goes) as the province of the
187.
Id. at 118 n.12.
34
CRIMNAL AND CIVIL CONFINEMENT
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legislature. 8 8 (I say "as far as it goes" because courts used to be able to,
before mandatory schemes such as those in Harmelin and Ewing became
prevalent, along with guidelines, ask whether a convicted criminal should
be imprisoned or not.) The step of a court's asking if incarceration is a
permissible infringement on the liberty interest in a particular case should
be required.
B. There is a Fundamental Right
Professor Sherry Colb has argued that convicted criminals do have an
interest in liberty.1 89 This argument has been virtually ignored by courts
and commentators who argue that and how the Court's non-capital, termof-years sentencing jurisprudence should be reformed.190 Colb argued that
liberty from confinement is a fundamental right and that contrary to
statements by the Supreme Court, a valid conviction does not extinguish
it. 19 1 Courts should apply strict scrutiny to any government infringement on
it. If the convicted criminal does have a fundamental right to freedom from
incarceration, then, of course, the Court's applying rational basis review to
legislatively-created sentences is unconstitutional. In this section, I describe
and build on Professor Colb's argument. I will also, in the rest of this
article, sketch out some of the implications of her argument. I suspect that
some of the reasons this argument has been ignored is that it seems to
create a legal regime that would be impossible to manage. But it can be
managed if it is understood as a balance between society's interest in public
safety, rather than retribution, and the convicted criminal's interest in
liberty.
It is important to note that in this Article, I build off theories that can be
seen as a harsh criticism of our current criminal justice and incarceration
system. As such, this Article is not meant to subvert our current
institutions, but rather like Colb, it calls for a "close examination of laws
providing for the incarceration of individuals whose actions violate the
criminal law but do not otherwise cause serious harm to society's
interest."1 92 Like Professor Colb, I start with the premise that "a law cannot
deprive individuals of fundamental rights without strong substantive
188.
See, e.g., Henry M. Hart Jr., The Aims of the Criminal Law, reprinted in INTHE
NAME OF JUSTICE: LEADING EXPERTS REEXAMINE THE CLASSIC ARTICLE "THE AIMS OF THE
CRIMINAL LAW" 26 (Timothy Lynch, ed. 2009).
189.
Colb, supra note 27, at 781.
190.
See Lee, supra note 108, at 528.
191.
Colb, supra note 27, at 790-94 (critiquing Meachum and Vitek); see supra Part
V.A.
192.
Colb, supra note 27, at 783-84. Colb also says that "serious property crimes"
would also be addressed.
REFRAkMNG THE DEBATE
2012]
justification."
35
93
Colb suggests that the use of rational basis as the Court's review of
sentencing might be based on the idea that significantly less deference to
the legislature could result in courts' returning dangerous people to the
streets:
One could legitimately worry that questioning the incarceration of
murderers would be devastating to personal security. Successful
substantive challenges to the use of incarceration, however, would
necessarily concern only the more ambiguous offenses that do not
endanger the community's safety. The restriction through incarceration
of a dangerous and violent criminal would not, in other words, be
subject to serious challenge because restraint of a dangerous person is
necessary to the community's security. Rather, the use of incarceration
is most vulnerable to attack when the "offense" itself is not much of an
offense at all. 194
Fundamental rights can be burdened by a state or the federal government
only if the strict scrutiny test is satisfied. 195 This means that the burden
must serve a compelling government interest and that the burden must be
the least restrictive way of carrying out that goal.196
Say for example, a state criminalizes and applies a seven year mandatory
minimum sentence to a restaurant chef who heats olive oil above 410
degrees Fahrenheit and serves it in a dish for a child because the legislature
accepted a questionable study that suggested that olive oil heated above
410 degrees may pose a cancer risk.197 Under rational basis review under
the Eighth Amendment, the Court would not be likely to delve into the
science of such a study that the legislature relied on. If we assume the
science is inconclusive but that the legislature went ahead with its
criminalization and incarceration scheme anyway, out of an abundance of
caution, or perhaps based on a political desire to be seen as protecting
children, it seems likely that the Court would nevertheless defer to the
legislature here as in other examples.
Justice Kennedy further illustrated this point in his concurring opinion in
Id.
193.
194.
Id. at 819-20.
195.
Id. at 785-86.
196.
Id. at 786, 793-94, 803-04 (providing examples that demonstrate a convicted
criminal's fundamental right to freedom from confinement).
This hypothetical was presented at faculty workshops at Boston University School
197.
of Law and Florida Coastal School of Law. For a discussion of the apparent controversy, see
Karen Collins, Nutrition Wise, AM. INST. FOR CANCER RESEARCH, Nov. 2009,
http://www.aicr.org/site/News2?abbr=prhf &page=NewsArticle&id=17161&news-iv-ctrl
=1090.
CRIMNAL AND CIVIL CONFINEMENT
36
[Vol. 38:3
Harmelin affirming the sentence of life imprisonment without parole for
his crime of possession of more than 650 grams of cocaine.198 Justice
Kennedy wrote:
The dangers flowing from the drug offenses and the circumstances of
the crime committed here demonstrate that the Michigan penalty
scheme does not surpass constitutional bounds. Michigan may use its
criminal laws to address the issue of drug possession in wholesale
amounts in the manner that it has in this sentencing scheme. 19 9
Justice Kennedy expressed absolute, even dismissive, certainty about the
public dangers posed by drugs. However, that view was not shared, as he
noted, albeit dismissively: "Petitioner's suggestion that his crime was
nonviolent and victimless, echoed by the dissent, is false to the point of
absurdity. To the contrary, petitioner's crime threatened to cause grave
harm to society."200 It seems likely that the Court would defer to the
legislature's reading of the science behind the overheated olive oil danger,
as well as the legislature's weighing of the risk.
A classic case where the Court did not find a liberty interest in the
criminalized conduct and failed to consider the convicted criminal's liberty
was the now-overruled Bowers v. Hardwick.201 As Professor Colb argued,
just because a person has no fundamental right to homosexual sodomy,
according to the Bowers Court, it should not mean that without more, he
may be incarcerated merely if he is properly convicted of carrying out the
act.
[T]he [Bowers] Court did not even evaluate whether incarceration, as
provided by the statute, served some compelling interest in preventing
or punishing sodomy ... the Court allowed that incarceration of people
who engage in homosexual sodomy might or might not promote any
worthwhile (much less compelling) interest, but permitted such
incarceration nonetheless. 202
On the other hand, as Professor Colb argued, if the statute had stripped
someone convicted of sodomy not of his liberty but of his speech rights, the
Court would have engaged in strict scrutiny review. 203
Likewise, if a state mandated confinement in an institution that was not
technically a prison, but say far nicer accommodations for people who
committed torts, it is likely that the Court would subject the deprivation of
198.
199.
200.
201.
202.
203.
Harmelin,501 U.S. at 1008-09.
Id.
Id. at 1008-09, 1012.
Bowers v. Hardwick, 478 U.S. 186 (1986); see Colb, supra note 27, at 806.
Colb, supra note 27, at 806.
Id.
REFRAMHNG THE DEBATE
2012]
37
liberty to strict scrutiny. If the state was thwarted in this desire to
incapacitate tortfeasors and then decided to criminalize the tortious
conduct, the Court would not question the deprivation of liberty. It would
probably rely on the "line of cases" that I discussed above to say that no
strict scrutiny challenge was possible and would carry out rational basis
review under the Eighth Amendment. The statute and incarceration would
likely pass, as the Court could conclude that the criminal defendant had
engaged in activity that posed a risk to other people. Here, the line between
the criminal and civil conduct truly would be arbitrary, but it would be
dispositive under the Court's jurisprudence. It seems unlikely that the Court
would heed Justice Thomas's words that, here, the distinction between the
tort and crime might be one to which the Court should not give talismanic
effect. 204 The "moral blame" that many jurists ascribe to criminal activity is
not really here. It is simply that the legislature has decided to call the
conduct criminal. Wrapped up in this is perhaps a sense that the state has an
interest in preventing people from violating the criminal law as opposed to
the civil law, but this distinction seems arbitrary. This is even more the case
when we deal with crimes that are strict liability. There is no inquiry into
blame. The criminal law at this point in our history has already moved well
beyond the realm of blame and into the realm of social control; 20 5 in some
crimes, the distinction between civil and criminal violation is arbitrary.
Therefore, the Court should look beyond these labels and look at the
underlying conduct and ask if incarceration is an appropriate response to it.
Perhaps, as Colb suggested, there might be a distinction between the
right to be free from incarceration and other rights, given that a person can
avoid incarceration if he chooses to follow the criminal law. 206 A person
with proper notice of these laws can be deprived of his liberty for violating
them, the thinking goes. However, "[n]otice and the alternative of
compliance do not fully satisfy the government's obligation to respect
fundamental rights." 207 For example, in Skinner v. Oklahoma ex rel.
Williamson,20 8 where the Court addressed a statute that subjected some
criminals to sterilization, the Court applied strict scrutiny to this
deprivation, which it characterized as a deprivation of the fundamental
204.
See Foucha, 504 U.S. at 118 n.13 (Thomas, J. dissenting); see also William J.
Stuntz, Substance, Process, and the Civil-CriminalLine, 7 J. CONTEMP. LEG. ISSUES 1, 1
(1996) ("[T]he government's natural incentive is to evade or exploit the procedural civilcriminal line by changing the substantive civil-criminal line.").
205.
See Bilionis, supra note 39, at 1279-8 1; see also JEFFREY REIMAN, THE RICH GET
RICHER, THE POOR GET PRISON: IDEOLOGY, CLASS, AND CRIMINAL JUSTICE 67 (6th ed. 2001).
206.
Colb, supra note 27, at 795-96.
207.
Id. at 796.
208.
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).
38
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 38:3
right to procreate. 20 9 The Court intervened despite that the person had
notice of the penalty and had chosen to violate the criminal law. One might
consider a similar example where, for some crimes, say murder, the penalty
is not incarceration but a stripping of speech rights. Again, notice is
present, and the person who commits the crime is "blameworthy" for doing
so. But the Court would most likely scrutinize strictly the infringement of
speech rights. 2 10
C. How Could the Court Get this Wrong?
One might ask: How could the Court get something so fundamental so
wrong? Colb explained "the Court's confusion" 2 11 as based on three
reasons. The first is what Colb called a "false equation between two
propositions":
"you cannot do X = you will go to prison if you do X"2 12
This equation is "implicit in the Court's general failure to subject prison
sentences to strict scrutiny." 213 But there is no need to conflate
criminalization with incarceration. The decision to incarcerate is a separate
decision, which has been recognized as such by other jurists, including
judges who fully engaged in sentencing individual defendants before the
onslaught of mandatory minimum sentences and guidelines sentencing 2 14
and by those who drafted the Model Penal Code. 2 15
The second reason how the Court could be wrong is that the justices
have been "blinded by procedure." 2 16 Because the Court has spent several
decades developing a detailed law of criminal procedure meant to protect
due process rights (and balance those rights against the government's need
to investigate crime and prove guilt in crime), it has not recognized that at
Colb, supra note 27, at 797.
209.
See id. at 799-802 (discussing Simon & Schuster, Inc. v. New York State Crime
210.
Victims Bd., 502 U.S. 105 (1991), invalidating on First Amendment grounds a statute that
required that any income from a criminal's works describing his crimes be placed in escrow
to compensate the criminal's victims and creditors).
211.
Id. at 803.
212.
Id.; see also Hart, supra note 188, at 5 ("In traditional thought and speech, the
idea of crime and punishment have been inseparable; the consequences of conviction for
crime have been described as a matter of course as 'punishment."'). Perhaps we could also
say also that "punishment" has been equated with "prison."
Colb, supranote 27, at 809.
213.
214.
STrrH & CABRANES, supra note 1, at 18-19.
Id. at 24.
215.
216.
Id. at 813 ("[T]he Court and constitutional scholars may be unwilling to scrutinize
imprisonment substantively because they are permitting procedure to serve as a surrogate
for substance in the area of the criminal law.").
2012]
REFRAMING THE DEBATE
39
times, it could have been prescribing a fair trial to prove that someone has
engaged in the most innocent and negligible conduct. However, "[i]f there
is indeed a fundamental right to liberty from confinement, then that right
must receive substantive as well as procedural protection, strict scrutiny as
well as proof beyond a reasonable doubt. Procedure cannot serve as a
proper surrogate for substance." 217
The third reason why the Court could be wrong is that there has been a
"philosophy of deference." 2 18 Professor Colb argues that this may come
from an equation of criminal justice with prison itself, and that "we tend to
equate criminal justice with prison and defer to them both." 2 19 This
deference may be the result of a belief that "criminal justice itself
represents a compelling state interest and that legislative and executive
flexibility are necessary to serve that end. If we place too many limitations
upon the criminal justice system, it will fail to function." 220 Colb argues,
however, that the government is not unfettered in its pursuit of criminal
justice. There are significant restraints on police and courts, i.e., the
numerous rules, constitutional and otherwise, restraining police
investigations and court adjudication. 22 1
Additionally, there are two more "confusions" I would add to the three
that Colb identifies. First, the "confusion" that deference to the legislature
is appropriate is based on several confused beliefs: that the legislature has
and applies special expertise in creating criminal laws and sentences; that
the legislature must be respected when it determines issues of moral blame
(there is a sense that there is an almost mystical aspect at work here, one
that involves retribution); that a state must be deferred to when acting
pursuant to its "police powers"; that separation of powers requires such
deference; and that a respect for states' rights requires such deference.
Second, there is a sense, promoted, for example, by influential jurists
such as Henry M. Hart, that an inherent state interest in criminal law is
punishing anybody who would violate the law, as part of making them into
217.
218.
219.
Colb, supra note 27, at 816.
Id.
Id.
[T]he criminal justice system plays an important symbolic role in our national
consciousness. The system ideally protects citizens from danger, from anarchy,
from moral chaos. It constitutes an army of sorts, charged with fighting the enemy
from within, the 'criminal.' As with the military, we tend to defer to the criminal
justice system because we perceive ourselves as incompetent to evaluate its
efficacy. . . We tolerate military policies that would never survive civilian review.
Id. at 817.
220.
Id.
221.
Id. at 818-19.
40
CRIMTNAL AND CIVIL CONFINEMENT
[Vol. 38:3
good citizens. 222 The next sections will briefly address these in turn below.
1. Misplaced deference to the legislature
Deference to the legislature must be combined with an appreciation of
the fact that a particular legislature can become a "runaway legislature," a
majoritarian bully. The last mention of this in any of the Court's sentencing
cases was in 1910 in Weems v. United States. 23 After that, the Justices
simply talked about deference to the legislature. The deference, however,
must also be combined with the understanding that the legislative power is
not absolute. 224
Criminals are a vulnerable minority who need to be protected from
legislative and majoritarian passions as opposed to reason. 2 25 So when a
legislature is engaged in questionable lawmaking-such as in Harmelin
and Ewing-there should be more scrutiny, not less. Is the legislature really
exercising expertise? Did it conduct a balanced fact-finding that took into
account various viewpoints? Does the law seem to be a reflexive reaction
to an infamous crime, as the three strikes law in Ewing was? 226 Does the
law seem to be a reflexive reaction to irrational fears, where the calculation
of risk is not consonant with the reality of that risk?22 7 What sorts of
lobbying were involved? It must be noted that crime is now big business as
several states have outsourced their prisons to for-profit businesses that
profit from increased criminalization and increased sentence length, which
means more people are in prison for longer terms as these companies are
paid on a per prisoner basis. 2 28
Perhaps a legislature, as a body that is putatively broadly representative
of society and its mores, can be said to have expertise in how to allocate
moral blame. But determining blameworthiness should be separated from
the determination of whether someone who is blameworthy for committing
a crime should be imprisoned. "Blame" is a murky concept at best. It is
Hart, supra note 188, at 10.
222.
223.
Weems, 217 U.S. at 349.
224.
See Calder v. Bull, 3 U.S. 386, 387-88 (1798).
225.
See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938); Erwin
Chemerinsky, The Constitution and Punishment, 56 STAN. L. REv. 1049, 1071 (2004)
(applying this idea to Ewing). Dean Chemerinsky was counsel to the habeas petitioner in the
companion case to Ewing, Lockyer v. Andrade, 538 U.S. 63 (2003).
226.
See Ewing, 538 U.S. at 14-15 (plurality opinion) (discussing how California's
three strikes law gained wide public support after a recidivist kidnapped and murdered a
girl).
227.
See generally BARRY GLASSNER, THE CULTURE OF FEAR: WHY AMERICANS ARE
AFRAID OF THE WRONG THINGS (2000).
228.
See Prisonsfor Profit,Now (May 9, 2008), http://www.pbs.org/now/shows/419/
index.html (describing for-profit businesses that are paid on a per prisoner basis).
2012]
REFRAMNG THE DEBATE
41
also subject to deep-seated biases and prejudices and irrationalities, such as
the now-unconstitutional Georgia statute in Bowers v. Hardwick,2 2 9 which
criminalized sodomy between consenting adults and the nowunconstitutional laws against miscegenation. 3 0o There are even differing
views of criminality and blameworthiness across the fifty states. For
example, prostitution and gambling are legal in Nevada, but those activities
can land you in prison in other states. Marijuana possession of less than an
ounce has been decriminalized in Massachusetts, 31 but possession of that
amount in neighboring Connecticut can land a person in prison.232 Rather
than celebrating these differences as a product of federalism, the Court
should scrutinize why a state would imprison someone for conduct that is
legal in another state, especially where the other state has not fallen into
anarchy. The notions of blame and retribution are too murky and too fuzzy
to serve as reliable bases for imprisonment. 233
The response to the desire to defer based on separation of powers is
straightforward: the legislature's power is not absolute. It may not infringe
upon fundamental rights and if it does, the offending statute will be struck
down as unconstitutional.23 4 A less straightforward response is that the
Court's involvement in the decision of whether to incarcerate actually
would be a return to a balance of powers that existed before the
proliferation of mandatory minimum and guidelines sentencing. Sentencing
was seen as something inherently judicial, not legislative. The legislature
supplied broad ranges and a judge exercised his or her discretion within
those broad ranges, including the discretion concerning whether to
imprison a particular defendant at all, not just for how long. 23 5 The
response to the desire to defer based on states' rights 236 and police powers
Bowers v. Hardwick, 478 U.S. 186 (1986), rev'd by Lawrence v. Texas, 539 U.S.
229.
558 (2003).
See Loving v. Virginia, 388 U.S. 1 (1967).
230.
MASS. GEN. LAWS ch. 94 § 32L (2009) (stating that "possession of one ounce or
231.
less of marihuana shall only be a civil offense").
CoNN. GEN. STAT. ANN. § 21a-279(c) (2011) (possessing any amount of marijuana
232.
up to four ounces punishable by up to one year in prison).
Wrapped up in "blame" could be senses of racism and other biases; strict scrutiny
233.
would help to unwrap the notion of blame and expose these improper biases. See Foley,
supra note 15, at 339-41 (2010) (discussing this idea in the context of United States
Supreme Court's refusal to scrutinize police discretion).
See City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (holding that Religious
234.
Freedom Restoration Act of 1993 exceeded Congress' § 5 enforcement powers); see also
Davis v. Fed. Election Comm'n, 554 U.S. 724, 742 (2008) (holding that Bipartisan
Campaign Reform Act's expenditure thresholds violated the First Amendment).
235.
STITH & CABRANES, supra note 1, at 19.
In my discussions with several law professors about this idea, many suggested that
236.
states' rights was at the heart of the deference. That was my instinct as well. However, the
42
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 38:3
are the same: states' rights and police powers are not absolute. 237
2. Molding people into good citizens Henry M. Hart has argued that criminal law is useful to make people into
good citizens, that criminal law is part of, "free society's effort to build up
each individual's sense of responsibility as a guide and a stimulus to the
constructive development of his capacity of effectual and fruitful
decision."238 This view seems circular: give people laws to follow so that
they learn to follow laws? I want to assume that the laws Hart are talking
about are meaningful and have as their subject conduct that is deemed
harmful in some way. Hart argued that blameworthiness should be the main
purpose of criminal law and that laws that do not address conduct that is
morally blameworthy should not be passed. 2 39 But what about criminal
laws that ultimately do not concern conduct that is morally wrong or
harmful-a sort of criminal law that even Hart recognizes that legislatures
have the power to pass? 24 0 Is training citizens the main value of those
laws? There seems to be better ways of training citizens. For one, civics
could be taught in American schools again as schools are already a place
where one can learn how to follow rules without the threat of imprisonment
or brutal conditions. For another, people could be rewarded for following
laws rather than being punished-reward has been seen as a more effective
teacher than punishment. 24 1 This view of the criminal law seems like a lastditch, tendentious justification for a body of law whose justifications, at
least for ones that do not obviously help prevent harm, at times seem
Court made a strong statement of deference to Congress in Gore v. United States, 357 U.S.
386 (1958).
See Boyd v. United States, 116 U.S. 616, 635 (1886) ("It is the duty of the courts
237.
to be watchful for the constitutional rights of the citizen, and against any stealthy
encroachments thereon"); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)
("One's right to life, liberty, and property, to free speech, a free press, freedom of worship
and assembly, and other fundamental rights may not be submitted to a vote; they depend on
the outcome of no elections."); see also Warren Redlich, A Substantive Due Process
Challenge to the War on Drugs, n.249, available at www.redlichlaw.com/crim/substantivedue-process-drug-war.pdf (last visited February 28, 2011).
Hart, supra note 188, at 10.
238.
Id. at 4, n.13.
239.
240.
Id. at 18-22.
241.
See Yoshihiro Nakatani, et al., Why the Carrot is More Effective Than the Stick:
Different Dynamics of Punishment Memory and Reward Memory and Its Possible
Biological Basis, 92 NEUROBIOLOGY OF LEARNING AND MEMORY 370 (2009); see also
Markus Dirk Dubber, Theories of Crime and Punishment in German CriminalLaw, 53 AM.
J. COMP. L. 679, 699 (2005) (discussing a German idea/theory of "positive general
prevention," which "seeks to prevent crime not by scaring potential lawbreakers into
compliance, but by bolstering the law-abidingness of the rest of the population").
2012]
REFRAMING THE DEBATE
43
elusive. 242 With state and federal budget crises, there seem to be better uses
of the government's limited resources, such as protecting people from
physical harm, and to a lesser extent, protecting people's property.
Ultimately, the Court is confused because of tradition and habit. I have
pointed out that sentencing was not always this way. Legislatures did not
routinely involve themselves in creating mandatory sentences and
removing discretion from judges. Rather, throughout most of our history,
sentencing was seen as a uniquely judicial enterprise. So uniquely judicial,
so discretionary, in fact, that appellate courts rarely meddled in a trial
judge's sentencing, unless there was a clear abuse of discretion. 243 For this
reason, there was not a highly developed appellate law on sentencing.244 So
when the Court began looking at claims that particular sentences were
excessive, from Solem v. Helm in 1980 and up through Harmelin in 1991,
the Court was not really equipped to do so because before then, the Court
had not engaged in reviewing sentences at all. But the Court seems to have
taken the fact that since it did not review sentences that meant that
somehow it could not review sentences. The Court seemed to take the fact
that there was not a body of authorities concerning how to review sentences
to mean that the Court lacked authority to review sentences, in the sense
that it was prohibited from reviewing sentences, even new types of
sentences created by legislatures that removed judges' traditional discretion
to sentence. Because of this subtle and perhaps unconscious move, the
Court's customary deference to judges became deference to legislatures, a
deference that was not "traditional" but something new.
D. But Isn't the Eighth Amendment Enough?
It should be clear by now that the Eighth Amendment, as the Court
appears to have interpreted it, is insufficient to protect a convicted
criminal's liberty interest because satisfaction of the Eighth Amendment is
not equivalent to strict scrutiny. Colb wrote:
This conception of "constitutional overlap" is equally applicable to the
eighth amendment and substantive due process. The ban on cruel and
unusual punishment therefore does not define the outer boundary of
constitutional protection against imprisonment. It does, however,
affirmatively demonstrate that punishment, including a prison sentence,
cannot be justified solely by resort to the unprotected nature of the
prohibited conduct [i.e., whether a person has a fundamental right to
242.
See Hart, supra note 188, at 1-2, 5-6, 25, 31.
243.
244.
STITH & CABRANES, supra note 1, at 23.
Id.
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CRIANAL AND CIVIL CONFINEMENT
[Vol. 38:3
engage in the prohibited conduct, such as, for example, speech]. 245
A benefit of the Court's adopting a strict scrutiny approach is that the
decades-long argument over whether the Eighth Amendment even contains
a proportionality limitation may become moot. Perhaps the Eighth
Amendment truly is only about categories of punishment as Justice Scalia
has famously argued,2 46 but given that the implication of that argument is
that there is no limit whatsoever on sentencing, jurists who believed that
there should be a limit have looked for one in the Eighth Amendment.
VI. BUT WHAT ABOUT RETRIBUTION?
One of the difficulties in sentencing reform is how to measure
retribution. Despite the Court's focus on public safety in Harmelin and
Ewing,247 proportionality is supposed to concern retribution. As Justice
Scalia noted in his opinion in Harmelin, "In fact, it becomes difficult even
once deterrence and
to speak intelligently of 'proportionality,'
rehabilitation are given significant weight. Proportionality is inherently a
retributive concept, and perfect proportionality is the talionic law." 24 8
Moreover, retribution and the concomitant idea of moral blameworthiness
is what makes criminal law special and what sets it apart from civil law. 249
Criminal law is also supposed to satisfy the public's putative thirst for
vengeance when a crime is committed.25 0 Of course, this aspect of criminal
law has been eroded by the use of strict liability crimes and mandatory
minimum sentences. 2 51
But how is retribution measured? According to the Court, it is near
impossible as shown by Justice Powell's quotation about distinguishing
245.
Colb, supra note 27, at 812.
246.
Harmelin,501 U.S. at 962-94.
Id. at 985; Ewing, 538 U.S. at 14-15.
247.
Harmelin, 501 U.S. at 989. But see Frase, supra note 12, at 622-23 (discussing
248.
utilitarian proportionality principles and noting that, contrary to Scalia's quoted statement,
proportionality can be a utilitarian concept).
Sanford H. Kadish, Fifty Years of CriminalLaw: An OpinionatedReview, 87 CAL.
249.
L. REv. 943, 946 (1999) (discussing "the most distinctive and fundamental feature of the
criminal law, the ascertainment of blame"). There is moral blame inherent in the
determination that a person has committed a crime. On the other hand, there is not moral
blame in the determination that a person has breached a contract. Nor is there moral blame
in some torts.
See Richard A. Posner, Henry Hart's "The Aims of the Criminal Law": A
250.
Reconsideration, in IN THE NAME OF JUSTICE: LEADING EXPERTS REEXAMINE THE CLASSIC
ARTICLE "THE AIMS OF THE CRIMINAL LAw" 99 (2009) ("In thus ignoring the public's
prelegal evaluation of harmful acts, Hart overlooked the role of the public's thirst for
vengeance in shaping criminal law.").
251.
Foley, supra note 15, at 8.
2012]
REFRAMTNG THE DEBATE
45
between a twenty-five-year and a fifteen-year sentence. 252 Of course it is
difficult, but not impossible. The important point here is that it is difficult
for people to agree on how much retribution is appropriate. It is even
harder when one is not supposed to consider some factors that some people
might see as causative, such as difficult upbringing, poverty, and the
like.2 53 The difficulty in measuring retribution causes some reformers to
balk. Professor Colb, for example, after setting forth her argument that
strict scrutiny should be applied to the decision of whether to incarcerate,
wrote that she did not believe that sentence length should be scrutinized.
She wrote:
The cases elaborating the meaning of narrow tailoring do not make
clear how one would quantify the amount of prison time 'necessary' to
serve the compelling interest in retribution. The Supreme Court has
refused, in its eighth amendment jurisprudence, to second guess states'
determinations of the appropriate length of prison sentences. I would
accordingly (albeit tentatively) suggest that courts leave the issue of
sentence length out of the overinclusiveness inquiry, once it is
determined that some prison term for the relevant conduct would
otherwise satisfy the demands of strict scrutiny. 254
Granted, determining the number of years is difficult, someone still has to
do it. Why leave this task to legislatures and defer to them fully, when
legislatures are susceptible to politics, money, fear, or prejudice? The
difficulty of determining the number of years, however, should not be used
as a reason to stop reform. Rather, it should be used as a reason to deemphasize retribution in the calculus of what is a proper penalty.
An important step in cabining the government in its sentencing is for the
government to get out of the business of exacting retribution and instead
get into the business of public safety, which is a legitimate and widelyagreed-upon goal. Rather than a "criminal justice system" that putatively
metes out justice, we should re-envision our system as a public safety
system that protects people and property. Murderers would still be
incarcerated, of course, but it would not be in order to exact retribution, but
to protect the public. The criminal would still suffer, much to the delight of
some people, but the suffering would be a collateral consequence. Right
now, the two goals of retribution and public safety are often the other way
around.
Consider the following example found in the Code of Hammurabi,
which famously calls for the proportionality of an eye for an eye, a tooth
252.
Solem, 463 U.S. at 294.
253.
Notably, the U.S. Sentencing Guidelines bar judges from considering these things.
Foley, supra note 6, at 5-7.
254.
Colb, supra note 27, at 835-36.
CRIMINAL AND CIVIL CONFINEMENT
46
[Vol. 38:3
for a tooth.255 This was meant as a brake on retribution: no more, no less;
just perfect proportionality. 256 The problem, of course, is that this is not
how we mete out retribution. Rather, prison and length of time .in prison
serves as a proxy. If we focus solely on retribution, we end up putting a
price on crimes. So an aggravated battery, for example, merits a certain
number of years in prison. During that time, the person is incapacitated and
the public is protected. At the end of this time period, however, the batterer
must be released. He has paid his price for the crime committed, but what
if he is still dangerous?
In our current system, that does not matter, unless he is diagnosed with a
discrete mental illness that makes.him dangerous. 257 Assume that he has no
such illness. He is released and he may batter again. He might even be
more dangerous as a result of the years in prison, where he might have
honed his skills in fighting and built up his muscles with weightlifting. But
that is no matter in a system based on retribution because the criminal has
served his sentence and has paid his price. Retribution, therefore, does not
guarantee public safety. In fact, it has no necessarily direct relationship to
the issue of public safety. But, one might say he is deterred from doing it
again because prison was harsh. Perhaps, but perhaps not. He might be
even angrier than when he went to prison and he may have learned that
violence works to solve problems. Perhaps prison was so horrible that he
may simply be determined not to go again, but in the sense that he will
resolve to work hard to elude authorities, and if caught, to kill the police to
get away or die trying. This mindset makes him increasingly dangerous. So
much, at least in some cases, for deterrence through harshness.
At the end of the day, as a descriptive point, most people want their
government to provide safety much more than retribution.2 58 People would
255.
Avalon
Project,
Hammurabi's
Code,
YALE
UNIV.
LAW
SCHOOL,
http://avalon.law.yale.edu/subject menus/hammenu.asp (last visited Feb. 27, 2011). See
e.g., Number 196 and 200. Id.
256.
Id. Number 196 of the Code of Hammurabi is the eye for an eye, and Number 200
is the tooth for a tooth. But even the Code does not create perfect retribution. See, e.g.,
Number 195 ("If a son strike his father, his hands shall be hewn off."). Also, even the "eye
for an eye" is not perfect in that the criminal, who knows his fate, suffers a different sort of
fear than his victim suffered, which might have included surprise and worry about what the
criminal might do to him or her.
257.
See, e.g., Kansas v. Hendricks, 521 U.S. 346, 358-59 (1997); Foucha, 504 U.S. at
71.
258.
See Robinson, supra note 29, at 1456.
Some people will argue that it is simply not politically feasible in the United
States today to create an explicit system of preventive detention, even one limited
to dangerous felons about to be released from prison. Less feasible, however, is
political inaction in the face of recurring serious offenses that are preventable. The
inevitable pressure for protection will express itself in one form or another. If the
2012]
REFRAMING THE DEBATE
47
rather someone be incapacitated for as long as he is dangerous. There is
probably little approval among the public of the idea that after some
number of years, whether he is dangerous or not, he has paid the price.
Consider how hard it is for ex-convicts to be hired for jobs in the public
sector. If criminals were deemed to have paid their price, then hiring them
should not be a problem. But that is not the case. Indeed, underlying the
retributive view of criminal law is that someone is tacitly "permitted" to
commit a crime if he is willing to "pay the price." If you want to kill
someone, you can, you just might have to spend your life in prison if you
get caught. For some killers, that might be a fair deal. You want to rob a
bank, you are permitted to do so, but there is a price. And so on. This is a
game theory of criminal law. .The problem, of course, is that this is not a
game. There are innocent victims who have not opted to play. It is actually
irresponsible of the government to oversee such a game.
VII. WE ARE NOT THAT FAR OFF: RE-SEEING "CRIMINAL JUSTICE" AS A
GOVERNMENT PROGRAM THAT PURSUES "PUBLIC SAFETY"
One thing the California and Michigan legislatures appeared to get right
in the laws involved in Ewing and Harmelin, was to focus on public safety.
The problem was not the goal, but the level of deference the Court applied
to this goal and to the legislature's putatively serious study of the issue. In
any event, public safety is the appropriate focus, one that can be seen as
enshrined in the preamble of the Constitution. 259 I suggest that we re-see
criminal law as a government program to safeguard public safety: nothing
more, nothing less. This view collides with the widely accepted purpose of
criminal law as criminal justice, as the government's meting out justiceretribution. On this view, enshrined by scholars such as Henry Hart in his
famous essay, "The Aim of the Criminal Law," criminal law is special,
almost mystical. 260 Hart wrote against the rising idea of "treatmentism" in
his day, when the American Law Institute was drafting the Model Penal
only choices are an open preventive detention system and a cloaked one, both the
community and potential detainees ought to prefer the open system. If there is a
danger of governmental abuse of preventive detention, that danger is greatest
when preventive detention is cloaked as criminal justice.
Id.
259.
The Preamble states:
We the people of the United States, in order to form a more perfect union,
establish justice, insure domestic tranquility, provide for the common defense,
promote the general welfare, and secure the blessings of liberty to ourselves and
our posterity, do ordain and establish this Constitution for the United States of
America.
U.S. CONST., pmbl.
See generally Bilionis, supra note 39 (critiquing Hart's treatmentism view).
260.
48
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 38:3
Code. Under that view, the criminal is someone who is sick and who
should be rehabilitated. This treatmentist view has not prevailed over time
and we are back at least in the academy, to retribution. 26 1 The "get tough
on crime" shibboleth was a response to the treatmentist perspective.
Perhaps the criminal law of the future would combine the best of both
worlds, though retribution would not be the main focus. 262
Criminal law needs to be stripped of its special status. It is different from
civil law, with its own procedures and often its own courts. Principles that
inhere in other areas do not inhere in criminal law. Why? Because life or
liberty is at stake. What is striking, however, is that almost all of the
functions of the criminal law can be carried out by civil law. We are able to
incapacitate people using the civil system, such as with mental health
patients who are a danger to themselves or others. 263 We also use a system
other than the criminal system to incapacitate people who ose a danger of
terrorism: the shadow court system erected after 9/11. 264 People can be
punished via civil fines, 265 and quite severely. This includes punitive
damages. Civil courts are able to use a variety of remedies including
injunctive relief and restraining orders. In these systems there is both more
and less protection. There are fewer protections as far as evidentiary
restrictions and burden of proof goes, but there is more searching review by
courts. In the criminal justice system, there is a great deal of protection for
the criminal defendant insofar as the court's procedures for determining
whether he is guilty. 266 But after that determination, and perhaps after his
appeals are exhausted, there is almost no review of what happens to the
criminal's liberty. The state can take one, ten, or fifty years of his
liberty.267 Compare this to a system of regular review of dangerousness that
is conducted at GuantanamO68 and for mental patients. Perhaps we are
261.
Id.
STITH & CABRANES, supra note 1,at 29-35.
262.
Dora W. Klein, Involuntary Treatment of the Mentally Ill: Autonomy is Asking the
263.
Wrong Question, 27 VT. L. REV. 649, 670 (2002).
264.
AMNESTY INT'L, FIVE YEARS ON: TIME TO END THE CONTROL ORDERS REGIME
(2010), availableat http://www.amnesty.org/en/library/asset/EUR45/012/201 0/en/bbaadcd 1
-28fe-491f-9e4a-1550e63fbed9/eur450122010en.pdf.
See MASS. GEN. LAWS ch. 94, § 32L (2009) (imposing $100 civil fine and
265.
confiscation are penalty for possession of less than an ounce of marijuana).
266.
These protections do not necessarily reach the many defendants who forego trial
and plead guilty.
See Solem, 463 U.S. at 294 ("It is clear that a 25-year sentence generally is more
267.
severe than a 15-year sentence, but in most cases it would be difficult to decide that the
former violates the Eighth Amendment while the latter does not.").
268.
See Deputy Sec'y of Def., Memorandum for Secretaries of the Military
Departments, Chairman of the Joint Chiefs of Staff, Under Sec'y of Def. for Policy, Revised
2012]
REFRAMING THE DEBATE
49
seeing some sort of convergence between the civil and criminal systems.
The only difference is that the criminal system purportedly seeks to ascribe
blame and measure blameworthiness and mete out retribution. Is this a
reason to have a separate system and not to review legislatures'
determinations of how much blame a particular act should be accorded and
how much punishment should be meted out, even when the legislature's
stated goal, as in Harmelin and Ewing, is public safety?
I am not, however, arguing that there be no separate criminal justice
system. I am arguing that there be more searching review of liberty
deprivations, and that the focus be placed on public safety, which is
coherent with other penological purposes of deterrence and incapacitation
and rehabilitation-not retribution. Retribution would come as a collateral
effect. 269
It is time that we look at criminal law as no different from any other
government program. At bottom, the criminal law is a tool a government
uses to try to prevent, or more realistically limit, conduct that it finds
undesirable.
VIII. FOCUSING ON DANGEROUSNESS: WHAT A PUBLIC SAFETY SYSTEM
WOULD LOOK LIKE
What would a criminal justice system based on public safety rather than
on retribution look like? The key inquiry would be dangerousness, as the
government's goal would be public safety. Strict scrutiny of a sentence
would not be a simple matter and dangerousness is not simple to predict. 270
Implementation of Admin. Review Procedures for Enemy Combatants Detained at U.S.
Naval Base Guantanamo Bay, Cuba, Combatant Status Review Tribunal Process (July 14
2006), availableat http://www.defenselink.millnews/Aug2006/d20060809ARBProcedures
Memo.pdf.
269.
But see Lee, supra note 108 (arguing that retribution should be a "side constraint"
in sentencing). The "side-constraint" function of retribution could also come as a collateral
effect. For example, for a crime that caused no physical harm to anybody, the government
may lack a compelling interest in incarcerating the criminal, or in incarcerating him for very
long. It is likely that the felt-need for retribution would be slight in such a case as well.
There may well be in many cases a match of sorts between government interest in
incarceration to protect the public and an interest in retribution. I am not, however, arguing
that such a match should be required. Perhaps considering retribution could serve as a gutcheck on some sentences. I am not opposed to the idea of retribution serving as a limit on
sentences, but I nevertheless want to see governments focus less on retribution and more on
public safety. I thank Richard Frase for bringing to my attention that I should address the
possibility of considering retribution as a limit, especially if risk-averse parole boards,
focusing on public safety, ended up expanding prison populations.
270.
See, e.g., United States v. Scheffer, 523 U.S. 303, 334-35 (1998) (Stevens, J.,
dissenting) ("Expert testimony about a defendant's 'future dangerousness' to determine his
eligibility for the death penalty, even if wrong 'most of the time,' is routinely admitted.").
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CRIMINAL AND CIVIL CONFINEMENT
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Discussion of initial and continued detention based on dangerousness
should be infused with an attitude of utmost carefulness as conclusions of
dangerousness are based on speculation. 27 1 As such there must be a way to
limit government infringement on liberty, especially unnecessary and
unjustified infringement.
One reason to seriously consider inquiring into dangerousness is that, as
Professor Paul Robinson has argued, this is what governments are doing
already; but they are doing it badly, because they are not always doing it
openly or even perhaps consciously. 272 The increase in harsh, long
sentences may merely be an attempt to incapacitate dangerous people for as
long as it seems necessary. 273 The sentences are long and over-inclusive
because officials' tolerance for risk is low. 274 Notably, there is no actual
inquiry into dangerousness. The crime serves as a proxy for it. However,
the label attached to the crime does not tell the whole story and it does not
inform a decision-maker about the particular criminal's character. 2 75
Say, for example, a dangerous bank robber will be released at the
conclusion of his sentence because according to the legislature's thinking,
271.
See Rinat Kitai-Sangero, The Limits of Preventive Detention, 40 McGEORGE L.
REV. 903, 933-34 (2009) (reviewing the scholarship and discussing dangers of detention
based on dangerousness). Professor Kitai-Sangero concludes by proposing, cautiously, that
the following restrictions be placed on preventive detention: strong evidence of
dangerousness; a limited duration; requirement of proportionality; compensation for the
deprivation of liberty; and pleasant conditions of confinement. Id In addition, all alternative
means for avoiding the potential danger posed by a person, short of detention, should be
explored. Such restrictions are an unavoidable trade-off for sacrificing such persons for the
benefit of society. Id These restrictions, I hope, would make preventive detention not
worthwhile for the state in the ordinary case. Detention should be an exception used only in
an emergency, in the face of a clear and present danger, and only under strict limits. Id. at
933-34. I hope that readers take my sketch of this proposal as having been made with an
attitude of care and caution. A great deal more work must be done to make such a system
workable, but the overall goal is to limit infringement on liberty through more intelligent
and less deferential-to-the-legislature sentencing. It may be that retribution would have to be
considered as a limiting principle, at least in some cases.
272.
Robinson, supra note 29, at 1456; see also Adam L. Pollock, Using Parole to
ConstitutionallyReconcile the Criminal Punishment Goals of Desert and Incapacitation, 8
U. PA. J. CONST. L. 115, 115 (2006) ("Many criminal justice systems incapacitate potentially
dangerous offenders following the completion of their deserved sentences. Modes of
incapacitation include lengthy prison sentences, recidivist statutes, and the post-sentence
commitment of sexually violent predators. These efforts, however, are unjust in that they
imprison many offenders long after their so-called 'debt to society' has been paid and their
dangerousness has passed. A just society should imprison more accurately.").
273.
Robinson, supra note 29, at 1429-31.
Id.
274.
275.
See Brian J. Foley, Until We Fix the Labs and Fund Criminal Defendants:
FightingBad Science With Storytelling, 43 TULSA L. REv. 397, 401 (2007).
2012]
REFRAMING THE DEBATE
51
conscious or not, when it created the sentence, most people who rob banks
are likely not to be dangerous after serving the sentence. But it would be
better and more accurate if there was an open inquiry into the particular
robber'sdangerousness.
The best way to do this is to get as many actual facts as possible. That
would mean that a judge might determine an initial sentence, but a fairly
short one. After that, there could be periodic review of the criminal's
progress toward, for lack of a better word, non-dangerousness. After a time
period, perhaps shorter than the initial sentence, the criminal could be
released if it were shown that he is no longer dangerous. Such a system
once predominated in the sense of parole, which has been abolished or
limited in some states and it exists in a U.S. shadow court system, the most
famous of which is Guantanamo. The touchstone would be narrow
tailoring. Less burdensome alternatives to imprisonment but short of full
release could also be considered during these periodic reviews.
Courts have engaged in such inquiry before. There is a rich history of it
in civil commitment cases. Courts conduct this sort of review under the
Bail Reform Act of 1984, which allows for preventive detention of a
pretrial detainee if there is clear and convincing evidence of dangerousness
after "a full blown adversarial hearing."2 76 At Guantanamo, an
"Administrative Review Board" conducts annual reviews. 277 Almost 600 of
774 prisoners at Guantanamo have been released.2 78
Moreover, parole boards have long engaged in this sort of assessment.
The latest scientific research could be used to help parole boards determine
dangerousness. Of course, there will be mistakes of over-inclusion or
under-inclusion. But at least there would be an inquiry, some application of
reason, into the question of dangerousness. Now sentences are meted out
robotically. They are blunt instruments, a shotgun approach when a
surgical approach is required. After all, we are talking about a person's
276.
18 U.S.C. § 3142(f) (2006); see also United States v. Salerno, 481 U.S. 739, 75052 (1987) (holding that the Bail Reform Act provided sufficient safeguards for arrestees
because it required a "full blown adversary hearing" and "immediate appellate review of the
detention decision"). These situations are distinguishable from the system I am suggesting,
because in the context of Salerno, the detention is not indefinite. Ultimately the arrestee, if
the government decides to prosecute him, will be guaranteed a trial using a beyond a
reasonable doubt standard of proof, within a reasonable amount of time as guaranteed by the
Constitution's right to a speedy trial. See U.S. CoNsT. amend. VI.
277.
See Administrative Review Boards at Guantanamo, U.S. DEP'T OF DEF., (Feb. 22,
2007), availableat www.defense.gov/.../ARB%20Fact%20Sheet%20-%2OFinal%20%2022
%20Feb%2007.pdf.
278.
Andy Worthington, CounteringPentagon PropagandaAbout PrisonersReleased
from Guantanamo, TRUTHOUT, (Jan. 19, 2011), http://www.truth-out.org/counteringpentagon-propaganda-about-prisoners-released-guant%C3%Alnamo 66993.
CRIMINAL AND CIVIL CONFINEMENT
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[Vol. 38:3
liberty.
A. Examples
Armed robbery might be presumptively a five-year sentence, with
periodic, annual, or every-six-month review during and after this time if the
sentence is extended due to the convict's dangerousness, or the sentence
might be one that is less than five years. There would be opportunities for
rehabilitation because the government should not release a dangerous
person. The prisoner would have incentive to complete this rehabilitation,
since his release would be contingent upon it. Also, as mentioned above,
retribution would not be absent; it would come as a collateral effect of the
overall deprivation of liberty as opposed to now, where retribution is
primary and public safety is a collateral effect. Most people would find it
painful to have their liberty taken from them for five years and to have to
engage in rehabilitation. Liberty is such a fundamental interest that any
burden on it is painful, and hence, any burden on it can be seen as
satisfying a retributive urge.
Many drug offenders may be deemed non-dangerous and may not
require incarceration, allowing the government to focus on rehabilitation of
these offenders. 27 9 If a state or federal government wishes to keep people
off drugs, it could use means that are less burdensome on liberty, such as
rehab or halfway houses. This might satisfy many opponents of the Drug
War and also satisfy supporters of that "war": it would be more effective at
limiting what some see as the scourge of drugs.
B. Effects of a New System Focusing on Public Safety
A major change from the current system would be attitudinal. With the
goal of prison being the protection of public safety, efforts could be made
openly to improve public safety. Rehabilitation programs would be used.
The goal would be to use the least restrictive means possible to satisfy the
government's and public's interest in public safety.
Professor Colb argued that the least restrictive means analysis could not
be applied to a prison sentence, because one could always argue that one
day less could still accomplish the goal. 280 However, my idea would be
something of a hybrid in that there could be presumptive, but nonmandatory sentences, with periodic inquiry into dangerousness. My sense
is that Professor Colb was thinking only of a judge devising a sentence at
sentencing, a sentence that one could theoretically erode by questioning
whether one day could be removed, and if so, another, and so on. But with
U.S. DEP'T OF JUSTICE, AN ANALYSIS OF NON-VIOLENT DRUG OFFENDERS WITH
279.
MINIMAL CRIMINAL HISTORIES 2-3 (1994).
280.
Colb, supra note 27, at 833.
2012]
REFRAMING THE DEBATE
53
a regime of regular review, we could be satisfied that we are at least
approaching the least restrictive means. The perfect need not be the enemy
of the good.
There would be many things that would have to be worked out, of
course, and they go beyond my mere sketch here. For example, those
designing such a system would have to choose between sentences that are
indefinite or ones that are for presumptive (rebuttable) time periods for
particular crimes. It is likely that some presumptive time without review
and possibility of release could pass strict scrutiny in many cases. The
system would have to be designed so that the government may not use
minor crimes to arrest people as a way of then being able to then make a
case for dangerousness that would lead to a long confinement, such as
preventive detention. That would merely perpetuate a practice that goes on
in a similar way now, when harsh sentences are given for relatively minor
crimes. The difference is that, under my proposal, dangerousness would at
least have to be proved rather than assumed, and most sentences likely
would be shorter with periodic review. Some ways to prevent oversentencing a defendant would be that the proof of dangerousness would
have to be overseen strictly; facts would likely have to be proved beyond a
reasonable doubt.2 81 Perhaps civil commitment standards would apply after
a presumptive sentence is up. It is also likely that any confinement after the
presumptive sentence would have to be in less harsh conditions than prison,
or only partial, such as in some sort of supervised living arrangement.
Again, the confinement would have to pass strict scrutiny. Also, there
might be public pressure not to incarcerate criminals longer than necessary
because of the cost to taxpayers. This pressure would be more prevalent
than it is currently because in many cases, whether a convicted criminal
will be incarcerated is not an open question.
It is also possible that a dangerous criminal might be released
erroneously, in that his dangerousness would go undetected. However, a
dangerousness inquiry is not even conducted at all under the current
system.282 Instead, a person locked up under a harsh sentence is
categorically presumed dangerous, and he is subsequently released when
his sentence has been served, whether he is dangerous or not at the time of
his release. 2 83
Reformers and scholars certainly would have their work cut out for
them: again, this is a brief sketch for now. That said, it is nevertheless
See United States v. Booker, 543 U.S. 220 (2005) (holding that the Sixth
281.
Amendment requires that all facts a maximum sentence is based on must be proven to a jury
beyond a reasonable doubt or be admitted to by defendant).
282.
See Robinson, supra note 29, at 1450.
283.
Id.
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CRIMINAL AND CIVIL CONFINEMENT
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worth trying to change the current system, which machine-like, determines
a sentence without any regard to the criminal himself, at least in mandatory
minimum sentences such as the one that the Court upheld in Harmelin. The
system I sketch here is not perfect, but it is good. It would be better than
what we have now, in that it is preferable that we ask the question of
dangerousness and risk getting it wrong rather than not ask it at all. 284
This change also likely would put the United States back onto something
akin to "treatmentism," a view of criminal law that prevailed in the 1950s
and informed the Model Penal Code. 285 The view was never fully realized,
however, because the rehabilitative ideal gave way to the retributive
ideal.28 6 It has also given way to increasing sentences as a way of
protecting against releasing a prisoner who is dangerous. It has also given
way to politics and the "ratchet effect" described above. Much of the rest
of the developed world has taken something akin to the treatmentist
approach and focuses on rehabiliation. 2 87 These countries also suffer less
violent crime than the United States. Perhaps we can learn from them.
IX. CONCLUSION
The Court, jurists, and scholars should rethink the Court's approach to
sentencing, which effectively gives legislatures carte blanche to devise
increasingly long and harsh prison sentences, in a sort of ratchet effect that
is ultimately more about political gain for legislators than it is about public
safety or even retribution. The Court's current hands-off interpretation of
the Eighth Amendment has rendered courts toothless in reviewing
sentences. It is probably no coincidence that the Court's failure to rein in
Id. at 1429-3 1.
284.
See Hart, supra note 188, at 6-7 (discussing work of Professors Livingston Hall
285.
and Sheldon Glueck); see also LIVINGSTON HALL & SHELDON GLUECK, CRIMINAL LAW AND
ENFORCEMENT 19 (1958) (quoted in Hart, supra note 174, at 6-7).
It is the opinion of many of those who have studied both the causes of crime and
the results of its treatment by means of the death penalty and the usual forms of
incarceration, that for the vast majority of the general rule of delinquents and
criminals, the corrective theory, based upon a conception of multiple causation
and curative-rehabilitative treatment, should clearly predominate in legislation
and in judicial and administrative practices. No other single theory is as closely
related to the actual conditions and mechanisms of crime causation; no other
gives as much promise of returning the offender to society not with the negative
vacuum of punishment-induced fear but with the affirmative and constructive
equipment - physical, mental and moral - for alw-abidingness. Thus, in the long
run, no other theory and practice gives greater promise of protecting society.
Id.
286.
STrrH & CABRANES, supra note 1, at 29-35.
287.
See, e.g., John Pratt, Scandinavian Exceptionalism in an Era of Penal Excess, 48
BRIT. J. CRIMINOLOGY 119 (2008); Dubber, supra note 241.
2012]
REFRAMTNG THE DEBATE
55
harsh sentences has coincided with a period of over-criminalization and
over-sentencing that has seen the United States become the world's largest
jailer. Indeed, legislatures have turned their power to criminalize conduct
and create sentences into the "potent instrument of cruelty" that the
Framers feared and sought to prevent.
Rethinking the Court's approach to challenging sentences as excessive
could come fairly easily if it is recognized that the Eighth Amendment is
not the only part of the Constitution that applies to sentencing. Rather,
sentencing, which is the harshest government infringement of all on liberty,
should be subject to strict scrutiny review. The infringement on liberty
should be balanced against the societal interest in public safety, not
retribution. It is time that the Court recognized this. The result would not be
criminals released to run amuck, but rather more public safety, especially
given that the current system releases prisoners after they have "served
their time," regardless of dangerousness. There would also be protection of
liberty, a protection that is entirely missing from the Court's sentencing
jurisprudence. This recognition that the infringement on liberty should be
more limited than it is now could help reverse the mass incarceration crisis.
More, requiring that liberty be protected and that crime cannot merely be
addressed by more and more incarceration could bring a flowering to
criminal law and criminology, 2 88 where there could be a renewed emphasis
on trying to determine the root causes of crime, and how to extirpate them.
288.
Dubber, supra note 241, at 682 ("Anglo-American theories of punishment have
been stuck in a conceptual rut for quite some time, with battle-weary consequentialists (who
advocate punishment for the sake of some beneficial consequence, such as crime reduction)
and retributivists (who prefer punishment for its own sake, as a matter of 'just deserts')
continuously reenacting a conflict that has advanced little since the days of Beccaria and
Bentham."); Markus Dirk Dubber, Reforming American Penal Law, 90 J. CRIM. L. &
CRIMINOLOGY 49, 57 (1999) (noting that the second half of the Model Penal Code dealing
with "treatment and corrections" has been "largely ignored by scholars and legislatures
alike," which is "symptomatic of the neglect of this crucial subject . . . the law of
punishment infliction").