reframing the debate over excessive sentences to move beyond the eighth amendment

8/12/2019 Reframing the Debate Over Excessive Sentences to Move Beyond the Eighth Amendment

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Reframing the Debate Over Excessive

Sentences to Move Beyond the EighthAmendment

Brian J. Foley

I.INTRODUCTION

When a state or the federal government takes the drastic step ofremoving a person from his everyday life and imprisoning him away fromfamily, 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, thestate of the law in the United States, for all practical purposes, is tocompletely defer to legislative decisions and schemes to imprison people.1The United States has become the worlds biggest jailer, with 2.3 million ofits own people in prison, which exceeds other countries as a total and as apercentage of its population.2 Many, if not most, of these prisoners arenonviolent and many are serving mandatory minimum sentences that canfairly be characterized as draconian. The resort to incarceration has becomereflexive and mechanical in many cases because legislatures have increasedthe criminalization of conduct and the length of sentences not in responseto real dangers, but as part of a dynamic that has been described as a ratcheteffect: 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

IN THE FEDERAL COURTS143-44 (1998).2. N.C. Aizenman,New High in U.S. Prison Numbers, WASH.POST, Feb. 29, 2008.


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4 CRIMINAL AND CIVIL CONFINEMENT [Vol. 38:3

session.3

As a result, we have arrived at the runaway legislature that theFramers dreaded, as described by the United States Supreme Court 100

years ago: With power in a legislature great, if not unlimited, to givecriminal character to the actions of men, with power unlimited to fix termsof imprisonment with what accompaniments they might, what more potentinstrument of cruelty could be put into the hands of power?4

The crime rate of the United States is not significantly different fromthat of other developed nations.5 Our status as the worlds biggest jailerreflects a preference for incarceration. As Professor Markus Dirk Dubberhas written, the U.S. criminal justice system is built to incapacitate thegreatest number of . . . individuals for the longest possible time with theleast effort.6Careful inquiry in many cases would show that incarcerationis unnecessary.7It is this inquiry that the United States Supreme Court has,through its Eighth Amendment excessive sentencing jurisprudence, decided

to forego; indeed, the Courts jurisprudence of deference prohibits judgesfrom undertaking it at all.8

This Article argues that the Court should end its deference tolegislatures, a deference that is in fact a relatively new development in thelaw of sentencing. Judges used to have broad discretion to sentence aconvicted criminal within a range of no time in prison to several years inprison and parole officials had broad discretion to release a prisoner whowas reformed.9 In many cases, legislatures have taken away thisdiscretion.10Put another way, the Supreme Court has quietly extinguished

3. See STITH & CABRANES, supra note 1, at 38-77 (discussing 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, 58STAN.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_factsheet_incarceration.pdf.

The United States, however, has a higher murder rate than other developed nations. Id. at 5-

6.

6. Markus Dirk Dubber, Policing Possession: The War on Crime and the End of

Criminal Law,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 Courts Excessive Deference to Legislative

Bodies under Eight Amendment Sentencing Review, 94J.CRIM.L.&CRIMINOLOGY 551, 578(2004).

9. See STITH &CABRANES,supranote 1, at 18-19.

10. Id.at 38-39.


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2012] REFRAMING THE DEBATE 5

a citizens right to a considered inquiry by a judge into what would be aproper sentence: an inquiry that might conclude that incarceration was notnecessary.11 The Courts deference has developed from fractured

concurring and plurality opinions over the past thirty years.

12

The Courthas failed to articulate a test that a majority of the justices have agreed on.13The void left from a failure to create an agreeable test is filled by aphilosophy of deference.14This deference coincides with the Courts broaddeference to police officers in the field, which likewise has developed overthe past thirty years.15In short, the Constitution is not being enforced. It isas if the Court has forgotten its own words from ninety years ago:Determination by the Legislature of what constitutes proper exercise ofpolice power is not final or conclusive but is subject to supervision by thecourts.16

This Article challenges the Court and scholars working in this area oflaw to reframe how the issue of excessiveness in sentencing is examined.The Court, and almost every scholar to consider this issue, has not lookedbeyond the Eighth Amendment to address this legal problem.17 Somejustices have fought over whether the Eighth Amendment even contains aproportionality principle.18 The result has been the Courts 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.

12. See generallyRichard S. Frase, Excessive Prison Sentences, Punishment Goals,

and the Eight Amendment: Proportionality Relative to What?, 89 MINN. L. REV. 571,576-88 (2005) (discussing the thirty-year history of the Supreme Courts jurisprudence on

punishment).

13. See Ewing v. California, 538 U.S. 11 (2003); Harmelin v. Michigan, 501 U.S. 957

(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

Courts constitutional criminal procedure cases).

16. Meyer v. Nebraska, 262 U.S. 390, 400 (1923).

17. See, e.g., Kenneth A. Sprenger, Pass the Discretion PleaseThe Supreme Court

Defers to State Legislatures in Interpreting What is Left of the Eighth Amendments

Proportionality Principle, 58 ARK.L.REV. 425 (2005); Steven Grossman, Proportionality

in Non-Capital Sentencing: The Supreme Courts Tortured Approach 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).

18. The arguments are ventilated fully in the opinions by Justices White and Scalia in

Harmelin v. Michigan, 501 U.S. 957, 965 (1991).


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constitutional unless grossly disproportionate.19There have been calls byscholars for the Court to review sentences more rigorously while remainingwithin the extremely cramped confines of rational basis review under the

Eighth Amendment.

20

However, another way to frame the issue has gonealmost entirely unexamined: whether the state and federal government mayconstitutionally deprive citizens of their personal liberty, in effect, merelyby calling particular sorts of conduct a crime and then mandating asentence for it. The Court and scholars appear to have assumed thatlegislatures have almost absolute power: the limits the Court has given area holding inRobinson v. Californiathat addiction to drugs alone cannot becriminalized,21 and the dictum from Robinson suggests that imprisoningpeople even one day for catching a common cold would likewise bedisproportionate,22 and the oft-repeated dictum that a life sentence forovertime parking would likely be deemed unconstitutional.23 But thisleaves a broad range of conduct that apparently may be criminalized andpunished with less than life imprisonment.24A reading of the Constitutionthat would allow deprivations of liberty to be governed only bymajoritarian politics in an area where passion easily overcomes reason is,however, untenable.

19. See id.

20. See, e.g., Donna H. Lee, Resuscitating Proportionality in Noncapital Criminal

Sentencing, 40 ARIZ.ST.L.J. 527, 556-62 (2008); see generallyFrase, supranote 12, at 574-

76.

21. Robinson v. California, 370 U.S. 660, 667 (1962).

22. Id. at 667 (To be sure, imprisonment for 90 days is not, in the abstract, a

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 Courts high water mark indelving 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, wereRobinsonto 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 Americas Imprisonment Binge, 33 NEW ENG. J. ON CRIM. & CIV.

CONFINEMENT29 (2007) (discussing the Courts 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.

23. Rummel v. Estelle, 445 U.S. 263, 288 (Powell, J., dissenting). The language was

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).

24. See generally Frase, supranote 12, at 598-606.


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Considered analysis shows that there are greater limits on thegovernments police power. This Article sketches a way out of the EighthAmendment box and lays the groundwork for further work. Part II of this

Article will critique the wholesale deference that the Court has engaged inits two most recent cases where the length of the sentence was challenged:Harmelin v. Michigan25 and Ewing v. California.26 Part III argues thatconvicted criminals have a fundamental right against confinement such thata government burden on that right must be subjected to strict scrutiny. Thisargument is derived from Professor Sherry Colbs analysis in her articletitled Freedom from Incarceration: Why is this Right Different from AllOther Rights? published nearly twenty years ago.27This Article will buildupon on Professor Colbs argument. This section will argue that the UnitedStates Supreme Court must re-see our criminal justice system not as onebased on retribution and blameworthiness but rather as one whose chiefaim is public safety.28This function has actually become the main functionof the harsh sentencing laws, which have quietly created a regime ofpreventive detention, as Professor Paul Robinson has argued.29The Courtsbroad deference in sentencing is not really fitted for a system based on thisbut rather responds to a system based on retribution.30The Court defers tolegislative assessments of retribution, because these assessments ostensiblyreflect broad moral sentiment. But the Court can inquire into

25. Harmelin,501 U.S. at 957.

26. Ewing v. California,538 U.S. 11 (2003). See alsoLockyer v. Andrade, 538 U.S.

63 (2003).

27. SeeSherry F. Colb, Freedom from Incarceration: Why is this Right Different from

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, CORNELLUNIV., http://www.lawschool.cornell.edu/faculty/bio.cfm?id=327 (last visited Nov. 29,

2011). Professor Colbs 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 Courts approach to sentencing has meaningfully

addressed it most do not even cite it. This article has been cited about 40 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 Colbs article as a brilliant 1994 article . . . that has been almost

completely overlooked).

28. SeeBrian 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 over-

imprisonment from a retributivist standpoint as over-blaming).

29. Paul Robinson, Punishing Dangerousness: Cloaking Preventive Detention as

Criminal Justice, 114 HARV.L.REV. 1429, 1447-49 (2001).

30. Alice Ristroph, Desert, Democracy, and Sentencing Reform, 96 J. CRIM. L. &

CRIMINOLOGY1293, 1298 (2006).


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dangerousness of individual defendants, which can curb the excesses oflegislatures categorical sentencing (such as when they create mandatoryminimum sentences). The Court should not defer to what turn out to be

broad, unscientific guesses at dangerousness, guesses that are as muchbased on politics as they are on wishful thinking and unspecified fears. Thefear and risk aversion that underlie harsh sentences should be opened toscrutiny.31

Part IV outlines a system that balances the convicted criminals libertyagainst public safety: a regime of shorter presumptive sentences coupledwith periodic review for dangerousness. While this proposal will be seen ascontroversial, it would be less intrusive than the current system whichsentences harshly, over-inclusively, and often mechanically as a way ofcreating preventive detention.32A prisoner, after a period of incarceration,if warranted, could be examined for dangerousness. It is likely that manyprisoners would serve shorter sentence. This would likely end the massincarceration crisis, which, after all, is a product of the over-inclusivenessof current sentencing regimes, that categorically over-predict fordangerousness as a way of limiting the risk of danger.33

This proposal would not result in dangerous criminals running amuck.34Rather, a state would have a compelling interest in incapacitating criminalswho are actually dangerous.35Assessments of dangerousness would haveto be made with the humble understanding that such assessments areimperfect and should avoid erring on the side of over-punishment, and thatassessment should be ongoing during incarceration, as we all lack crystalballs. This proposal ultimately aims to force officials to: (1) justify whythey believe that people who have committed crimes, especially nonviolentcrimes, should be imprisoned; and (2) justify why people are imprisonedfor conduct that is not even treated as a criminal violation in other states.

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, supranote 29, at 1456.

32. See Robinson, supra note 29, at 1430.33. Seeid. at 1429-31.

34. SeeColb, supranote 27, at 783-84.

35. Id.at 783.


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Usually, this difference among states is seen as merely a traditional aspectof federalism.36 However, a state that imprisons people who engage inconduct that other states permit, and that has not appeared to harm or

disrupt life in those other states, should have to justify the disparatetreatment that results in the deprivation of liberty. Incarceration is adestructive act, and it should be constrained. Now, it is virtuallyunconstrained.37

This Article may be difficult for some readers because it challengescurrently accepted premises and perspectives on criminal law, such aslegislative primacy and the distinction between constitutionalizing criminalprocedure and constitutionalizing substantive criminal law. However,legislative primacy is not absolute, not in its exercise of police powers,38and certainly not when it comes to burdens on fundamental rights thattrigger strict scrutiny review. Constitutionalizing substantive criminal lawis beyond the scope of this Article.39 I have a more modest goal. This

36. Justice Scalia wrote in his Harmelinconcurring 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 a fortiorifrom 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 (citingRummel, 445 U.S. at 282) (Scalia, J., concurring). My

response is that this should not be the case, that there should be some uniformity as there isfor 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

persons physical liberty.

37. See Colb, supranote 27, at 824.

38. Meyer, 262 U.S. at 400.

39. As Dean Louis Bilionis has written:

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 Harts 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


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article addresses only sentencing, an area that already has beenconstitutionalized under the Eighth Amendment, with the goal ofdemonstrating how the Constitution could be more effective in the realm of

sentencing. Treating a convicted criminals right to freedom fromincarceration as a fundamental right would provide a test in an area of lawwhere the Supreme Court has failed to agree upon a test. It is also anoverdue way of addressing the truly radical change that has occurred insentencing law. Legislatures have arrogated to themselves the power toextinguish a defendants liberty automatically upon conviction, and theSupreme Court has, through its philosophy of deference, abrogated its ownpower to scrutinize legislative action. Conviction has been conflated withincarceration,40 when there should be a separate inquiry by courts as towhether incarceration is appropriate. This Article also seeks to re-focussentencing reformers efforts from legislatures to the courts. Plenty of datahave been submitted to Congress and state legislatures, to little avail.41Achange in perspective is necessary. Courts must be encouraged to use theirpowers to consider whether a convicted criminal should be incarcerated.Courts must protect the liberty that legislatures so readily take away.

II.THE COURTS FAILURE TO PROTECT INDIVIDUAL LIBERTY FROMRUNAWAY LEGISLATURES

In a series of opinions coming from fractured courts, the Court hasarrived at, for all practical purposes, complete deference to state and federallegislatures. In both Ewing v. California and Harmelin v. Michigan, theCourt failed to achieve a majority opinion setting forth a test that could beapplied.42 In these cases, the Court claimed that it was applying aproportionality test but stated that the test was informed by commonprinciples that give content to the uses and limits of proportionalityreview.43 These principles actually result in full deference to thelegislature. The Court gave lip service to states interest in public safety,but the Court did not meaningfully question whether public safety would be

legislation is constitutional. See, e.g., RANDY E. BARNETT, RESTORING THE LOST

CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004); Michael Anthony Lawrence,

Government as Libertys Servant: The Reasonable Time, Place and Manner Standard of

Review for All Government Restrictions on Liberty Interests, 68 LA.L.REV. 1 (2007).

40. Colb, supranote 27, at 803.

41. See, e.g.,Smart on Crime Coalition,Smart on Crime: Recommendations for the

Administration and Congress,THE CONSTITUTION REPORT(2011), http://www.besmarton

crime.org/ (last visited Oct. 19, 2011). 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).


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served by incarcerating Gary Ewing for twenty-five years to life after hestole a set of golf clubs, or first-time drug offender Ronald Allen Harmelinfor the rest of his life without any possibility of parole.44These sentences

were harsher than those given routinely to rapists, robbers, and even somemurderers.

A. Harmelin v. Michigan

In Harmelin, the Court upheld a Michigan law that sentenced RonaldAllen Harmelin to mandatory life without possibility of parole.45The Courtupheld the sentence on the narrow grounds, in the only part of an opinion toachieve a majority, which was Part IV of Justice Scalias opinionannouncing the judgment.46 It held that the sentence was notunconstitutional because it did not violate the Eighth Amendment.47Harmelin challenged the sentences mandatory nature as well as his lack ofability to present mitigating circumstances before the harsh penalty was

imposed.48

Any non-capital sentence, the Court concluded, could bemandatory: Severe, mandatory penalties may be cruel, but they are notunusual in the constitutional sense, having been employed in various formsthroughout our Nations history.49 Similarly, a non-capital sentence couldbe imposed without any consideration of mitigating circumstances, becauseof the death is different mantra.50 The Court reasoned that, unlike indeath cases, at least after execution, there remain the possibilities ofretroactive legislative reduction and executive clemency.51

Beyond this narrow holding, there were several opinions. The Court wassplit on whether the Eighth Amendment even contained a proportionalityprinciple.52 Justice Kennedys concurring opinion, joined by JusticesOConnor and Souter, seen as the controlling opinion,53sets forth a test

that putatively reconciled the Courts earlier opinions on this issue.

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Justice Kennedy wrote that stare decisis counsels our adherence to thenarrow proportionality principle that has existed in our Eighth Amendment

44. Id.at 1002;Ewing, 538 U.S. at 24.

45. Harmelin, 502 U.S. at 1009.

46. Id.at 994-96.

47. Id.at 994-95.

48. See id.at 994-96 (Scalia, J., concurring).

49. Id.at 994-95 (Kennedy, J., concurring).

50. Id.at 995-96.

51. Id.at 996.52. See id. at 960, 996-99.

53. Graham v. Florida, 130 S. Ct. 2011, 2021 (2010).

54. Harmelin, 501 U.S. at 996-97 (Kennedy, J., concurring).


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jurisprudence for 80 years.55This was an effort to reconcile the differentpositions over whether the Eighth Amendment contained a proportionalityprinciple. Although our proportionality decisions have not been clear or

consistent in all respects, they can be reconciled, and they require us touphold petitioners sentence.56 Justice Kennedy traced the eighty-yearhistory and stated, Though our decisions recognize a proportionalityprinciple, its precise contours are unclear.57 Justice Kennedy wrote,[C]lose analysis of our decisions yields some common principles that givecontent to the uses and limits of proportionality review.58

Justice Kennedy provided six guiding principles of proportionalitywhich include: (1) the fixing of prison terms for specific crimes involves asubstantive penological judgment that, as a general matter, is properlywithin the province of the legislatures, not the courts;59(2) the EighthAmendment does not mandate adoption of any one penological theory;60(3) the marked divergences both in underlying theories of sentencing andin the length of prescribed prison terms are the inevitable, often beneficial,result of the federal structure;61(4) federal courts proportionality reviewshould be informed by objective factors to the maximum possibleextent.;62 (5) the most prominent objective factor is the type ofpunishment imposed;63and (6) [t]he Eighth Amendment does not requirestrict proportionality between crime and sentence. Rather, it forbids onlyextreme sentences that are grossly disproportionate to the crime.64Evenwith these guiding points, the Court recognized that they lack clearobjective 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.


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years.65

Justice Kennedy went on to state that the drug dealing in this case was aserious crime and, as such, the harsh sentence was not grossly

disproportionate.66

Therefore, it was not necessary for the Court tocompare Harmelins sentence with other sentences for other crimes inMichigan, or with sentences for similar crimes in other states.67A betterreading of our cases leads to the conclusion that intra-jurisdictional andinter-jurisdictional analyses are appropriate only in the rare case in which athreshold comparison of the crime committed and the sentence imposedleads to an inference of gross disproportionality.68Without this inference,the sentence would not even be compared to others within the state or tothe sentences for similar crimes in other states. So even when it is notknown what such a comparison would yield, any sentence would bepermitted for what a judge sees as a serious crime. 69 No analysiswhatsoever is necessary unless a judges intuitions say that the sentence isgrossly disproportionate. Of course this is a highly subjective test: what,after all, is gross disproportionality? The judge must rely on instinct andtradition, and compare the sentence with the judges 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 ofsentences for, say, theft, the judge is relying on belief and perceivedunderstandings. Why not simply require a comparison be done on therecord, given that one is being done roughly and essentially ad hoc?

It is unclear why Harmelins crime was so serious that a court shouldnot even take the time to inquire into whether Michigan punishedindisputably serious crimes such as murder, manslaughter, rape, robbery,and arson more or less harshly. Harmelin was convicted of possessing morethan 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,

65. Id. Notably, Weemsconcluded that a sentence had to be overturned because it was

disproportionate. See Weems,217 U.S. at 379-82.

66. Id. at 1004 (Kennedy, J., concurring in part and concurring in judgment).

67. Id. at 1005.

68. Id.

69. Id. at 1004. See alsoHarmelin, 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 Solemand Weems after there was an inference of gross disproportionality,

but that inRummelandDavis, 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 discrepancy100%, as 32,500 is one half of 65,000but 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


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Petitioners suggestion that his crime was nonviolent and victimless,echoed by the dissent, is false to the point of absurdity. To the contrary,petitioners crime threatened to cause grave harm to society.71 The

Michigan court was not allowed by the law to tak[e] into account theparticularized circumstances of the crime and the criminal.72A particularamount of drugs, without more, poses such a threat that a mandatory lifesentence without possibility of parole is appropriate. It is hard to see howthat could be a rational decision,73 but neither the Court nor JusticeKennedy inquired any further into the fact surrounding the threat thatHarmelin posed.74Notably, no harm was actually caused. Justice Kennedystated that petitioners crime threatened to causegrave harm to society.75The conclusion that the crime threatened grave harm to society was nevertested; the fact that it was seen as nonviolent and victimless by fellowjustices should have given Justice Kennedy pause about the crimes gravityrather than leading him to call his colleagues view false to the point ofabsurdity.76 According to Justice Kennedy, who wrote that objectivefactors should be applied, his own opinion about the severity of a crime iswhat really mattered. Because the crime was severe in his eyes, noobjective analysis was necessary. Not conducting an analysis shows theCourts full deference to the legislature, which made life without thepossibility 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

3,250 - 6,500 doses in 650 grams. See European Monitoring Centre for Drugs and Drug

Addiction, Cocaine and Crack, available athttp://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 andTreatment, 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 Courts mind this does not matter because regardless, danger is danger?

71. Harmelin, 501 U.S. at 1002 (Kennedy, J., concurring in part and concurring in

judgment).

72. Id.at 961-62.

73. It has been argued that mandatory minimum sentences do not meet the rationality

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 . . . .).

74. See Harmelin, 501 U.S. at 959-60, 966.

75. Id. at 1002 (Kennedy, J., concurring in part and concurring in judgment)

(emphasis added).

76. Id.


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possessed. The justices were not deferring to another judges judicially-reasoned conclusions; Michigan judges had no discretion to do anythingother than impose the mandatory life without possibility of parole sentence.

Moreover, under rational basis review, even if the sentence were somehowirrational as applied, such as if Harmelin were paralyzed and comatose,another rational basis such as deterrence or retribution probably could berelied upon to uphold the sentence.77

Additionally, the Court failed to examine how incarcerating Harmelinwould actually advance the goal of public safety. The effects of drugs andthe personal autonomy issues of using drugs have been well documented,78yet the governments claims of the danger have gone unexamined in therelevant sentencing cases.79

The main problem is the premise that high deference must be accordedthe legislatures decisionwithout any real explanation as to why. Yes, itmight be difficult to determine how many years is appropriate to sentence

somebody for a crime, but it is not impossible. To say, as Justice Powellwrote for the Court in Solem v. Helm, It is clear that a twenty-five-yearsentence generally is more severe than a fifteen-year sentence, but in mostcases it would be difficult to decide that the former violates the EighthAmendment while the latter does not,80 seems disingenuous. Thedifference is an entire decade. Of course, it is not really impossible; judgesused to do this all the time,81 as Justice Powell himself did just that inSolem, and legislatures and sentencing commissions that create guidelinesdo it, too. What is difficult is predicting dangerousness; if a court orlegislature is trying to do that, sub silentio, then it is difficult to tell iffifteen years versus twenty-five years is enough, and this is not to mentionthat in many cases, keeping a person in prison longer may help make himinto 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).

78. See, e.g., STEVEN B. DUKE & ALBERT C. GROSS, AMERICAS LONGEST WAR:

RETHINKING OUR TRAGIC CRUSADE AGAINST DRUGS(1993); see alsoSteven B. Duke,Mass

Imprisonment, Crime Rates, and the Drug War: A Penological and Humanitarian Disgrace,

9 CONN.PUB.INTEREST L.J. 17, 32-33 (2010).

79. See Harmelin, 501 U.S. at 996; Hutto v. Davis, 454 U.S. 370, 370-71 (1982)

(upholding two consecutive twenty year sentences for nine ounces of marijuana). One of

Justice Kennedys concerns was stare decisis. See Harmelin, 501 U.S. at 998 ([S]tare

decisiscounsels 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 judges

broad latitude to sentence convicted criminals).


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is better to impose shorter sentences with regular review to determine aprisoners dangerousness; legislatures do not have crystal balls.

B. Ewing v. California

InEwing v. California, the Court engaged in reasoning similar to that inHarmelin, and still the Court was unable to reach a majority opinion.82Fivejustices concluded, for different reasons, that the twenty-five years to lifemandatory minimum sentence did not violate the Eighth Amendment.83The plurality opinion stated, The proportionality principles in our casesdistilled in Justice Kennedys concurrence [in Harmelin] guide ourapplication of the Eighth Amendment in the new context we are calledupon to consider.84

Justice OConnor stated that the Court had a tradition of deferring tostate legislatures,85 and noted [o]ur traditional deference to legislativepolicy choices . . . .86

When the California legislature enacted the three strikes law, it made ajudgment 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 OConnor went on to state that, [t]he States interest in deterringcrime also lends some support to the three strikes law. We have longviewed both incapacitation and deterrence as rationales for recidivismstatutes.88

What is striking, however, is how strenuously Justice OConnor argued

82. Ewing, 538 U.S. at 11.

83. Id.at 30-32. The Justices were: Chief Justice Rehnquist, Justice OConnor, Justice

Scalia, Justice Kennedy, and Justice Thomas. Id. (Stevens, Souter, Ginsberg, Breyer, JJ.

dissenting).

84. Id.at 23-24 (plurality opinion).

85. Id.at 24.

86. Id. at 25. Some readers might believe that this is an issue of states rights.

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 Congresss federal 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.


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that Gary Ewings crime was serious.89The fact of the matter is that Ewingstole three golf clubs by putting them down one of his pants legs andlimping out of a golf pro shop; he was arrested in the parking lot.90Stealing

golf clubs by stowing them in your pant leg is comical, not a public danger.Justice OConnor also sedulously argued that Ewings criminal recordproved that he was a public danger.91 Ewing had convictions for first-degree 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 innocentcrimes, it is important to have some perspective and keep in mind whatEwings criminal record did not include murder, rape, robbery with afirearm, aggravated battery, or arson, and that the value of property takenwas not high. Ewing was a public nuisance, not a public danger.93

A counterargument is that what Justice OConnor was focusing on wasrecidivism, not the theft of golf clubs. But recidivism must be unpacked.A recidivist whose crimes are almost all nonviolent is not a danger.94Thisdifference goes unmentioned, as if recidivism, by some sort of alchemy,can make a non-dangerous repeat offender into a dangerous one.

Its worth pointing out that Justice OConnors opinion, as written, couldhave reasonably supported the exact opposite result. That is, the opinionbegins by setting forth the background of the passage of the CaliforniaThree Strikes Law.95The law initially failed to pass in the state assembly.96Public outrage led to a voter initiative to add a proposition for a threestrikes law to the general election ballot.97During that time, a recidivist,Richard Allen Davis, kidnapped and murdered a twelve-year-old girl, PollyKlaas.98That horrific act galvanized support for the three strikes initiative.Within days, Proposition 184 was on its way to becoming the fastestqualifying initiative in California history.99The Assembly stepped in and

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. SeeSolem v. Helm, 463 U.S. 277, 296-97 (1983).

95. Ewing, 538 U.S. at 16 (plurality opinion) (discussing Californias Three Strikes

Law).

96. Id. at 14.97. Id.

98. Id.at 14-15.

99. Id.at 15.


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quickly passed a bill that was similar to the proposition.100On March 12,2000, Gary Ewing walkedor, more accurately, limpedout of a golf proshop and into a legal tsunami.101 In effect, the Supreme Court turned

Ewingand, indeed, all recidivistsinto Richard Allen Davis.

III.SENTENCES THAT SATISFY THE EIGHTH AMENDMENTSPROPORTIONALITY REQUIREMENTS ARE IMPOSSIBLE TO CHALLENGE

It is virtually impossible to challenge a sentence under the Courts test,which is why the Court must adopt a new one. The assumption that theCourt cannot get involved in the issue of whether a convicted criminalloses twenty-five years of his liberty or fifteen years seems untenable.102Adecade carved out of a persons life is treated blithely, which might beappropriate when the person deserves the sentence and is clearly a publicdanger. That a state or the federal government can take a decade, or not, isan enormous, unconstrained power.

The rational basis test is toothless inHarmelinandEwing.103

The Courtappropriately mentioned that public safety was the goal of the statutoryschemes 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 thatsomething more, some further scrutiny, should be required, because apersons liberty is at stake. Decency would seem to require some inquiryinto the rationality of such a burden, such a life-altering and in some caseseven life-destroying act that imprisonment represents. The evolvingstandards of decency language of the Eighth Amendment could give theCourt some purchase here.104Since there is no test, the Court could createone based on decency, but that would be highly subjective: whose decencyis it, anyway?

Proportionality is not the appropriate test, especially when it is informed

100. Id.

101. Seeid. at 17-18. Its also worth noting that the opinion also reads as comedy, in

two 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 didnt fit him. The law was written with recidivist

murderers in mind. It also reads as satire in that the recitation of the Courts 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).

103. See Harmelin, 501 U.S. at 1000; Id. at 1004 (Kennedy, J., concurring); Id. at

1023-24 (White, J., dissenting); Id. at 1028 (Stevens, J., dissenting); see alsoEwing, 538

U.S. at 88.

104. See generally Nilsen, supra note 73, at 157-59; see Frase, supra note 12, at 646-47

(discussing damage that imprisonment can wreak on prisoners).


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by total deference to the legislature whenever there is any rational basis forthe 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 fromhis dissenting opinion inRummel v. Estelle105that [a] statute that levied amandatory life sentence for overtime parking might well deter vehicularlawlessness, but it would offend our felt sense of justice,106 is notnecessarily the case afterHarmelinandEwing. A rational basis for harshlypunishing overtime parking could be public safety. For example, too manycars 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 somesort of bomb could lead to public disorder. Look at the chaos created whena passerby noticed that a car appeared to have a bomb in it in Times Squarein 2010.107 I am being somewhat facetious of course, but the examplessuggest how far a public safety argument could be taken even in the contextof what appears to be a crime for which retribution seems inappropriate.108

The better course of action is for a court to pressure the governmentsclaim that public safety is served by the particular sentence in the particularsituation before it. The arguments that a car left in a space where a meterhas expired poses a public danger are arguably as tendentious andspeculative as the arguments that Ronald Harmelins drug dealing posed apublic danger. The test proposed by Justice Kennedy appears to take thelegislature 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 thelegislature has reacted based on politics and fear.

Such deference to the legislature is inappropriate in criminal justicebecause the legislatures judgment is likely to be the result of fear,irrationality, and unrealistic assessments of risk.109Rather than repeatingthe mantra that legislatures are peculiarly suited to making determinationsin this area,110 the Court should state the opposite: that legislatures are

105. SeeRummel, 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.11.

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).

109. Seegenerally William J. Stuntz, The Pathological Politics of Criminal Law, 100

MICH.L.REV. 505, 529-33 (2001).

110. See, e.g., Rummel, 445 U.S. at 274 ([O]ne could argue without fear of

contradiction by any decision of this Court that for crimes concededly classified and

classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state


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particularly ill-suited. Doing so might seem paternalistic, but it at least hasthe attribute of being realistic.What has come to pass is a danger that theFramers feared: the runaway legislature. This is highly likely to occur in

criminal justice policy where there is danger, fear, and a hated otherahatred that is encouraged by politicians and the government itself. TheCourt needs to step in and protect a vulnerable minority from oppression bythe majority, an oppression that appears to follow proper legal procedures.

Finally, deference is inappropriate because the legislatures when left totheir own devices have failed at controlling crime in the United States.111Despite the massive incarceration rate, the United States does not have alower crime rate than other developed nations, and, in particular, its murderrate is higher.112These results aside, it is apparent that criminal justice inthe United States is the product of neither logic nor experience.113Sentencing schemes themselves seem arbitrary, as Justice Scalia set forth inHarmelin, in the context of a different argument:

[J]udging by the statutes that Americans have enacted, there isenormous variation . . . then perhaps the citizens of 1791 would think

that todays 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 areno 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 ofcriminal justice to the legislatures. There is no reason to do so, especiallywhen 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

penitentiary, the length of the sentence actually imposed is purely a matter of legislative

prerogative.).

111. Hartney, supranote 5, at 5-6.

112. Id.

113. But cf.OLIVER WENDELL HOLMES,JR.,THE COMMON LAW1 (1881) (The life of

the law has not been logic; it has been experience.).

114. Harmelin, 501 U.S. at 987-88 (Scalia, J., concurring) (discussing variations in

state sodomy, larceny, and assault and battery laws).

115. See, e.g., id. at 1008-09 (Kennedy, J., concurring in part and concurring in

judgment).


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family and community116could inform the Eighth Amendment review,and the Court could apply as rigorous of a rational basis review as ispossible; 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-equalbranch has completely fallen down on the job, especially to protect adiscrete minority from majoritarian politics.117Such an intervention mightseem distasteful and would further the idea that activist judges overridethe will of the people.118 But even if the people want harsh laws, asexhibited by Californians apparent widespread support for Californiasthree strikes law,119it is doubtful that such a huge majority of Californianswould have supported that the mandatory twenty-five years-to-life sentencebe imposedmechanically on Gary Ewing.120

Giving as much rational basis review as possible, however, will notnecessarily prevent harsh sentences from being meted out regularly in stateand federal courts. What about other aspects of Eighth Amendment law,such as the evolving standards of decency standard that the Court hasapplied in some cases?121This language and the word decency itself donot appear in Justice OConnors plurality opinion inEwing, or even in anyof the other opinions. It does not appear in Justice Kennedys concurringopinion inHarmelin, either; the only place it shows up in Harmelin is onemention in Justice Whites dissent.122 Apparently, this standard is usedonly to address categories of punishment. For example, in Trop v.Dulles,123where the language originated, the Court held that it would beunconstitutional to revoke a persons U.S. citizenship as punishment for acrime.124 In a similar vein, what about the Courts own independent

116. BRUCE WESTERN,Incarceration, Marriage, And Family Life, in PUNISHMENT AND

INEQUALITYIN AMERICA 131-167(2004).

117. See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938); J OHN

HART ELY,DEMOCRACY AND DISTRUST103, 172-73 (1980).

118. But see Forrest Maltzman, Lee Sigelman, & Paul J. Wahlbeck, Supreme Court

Justices Really Do Follow the Election Returns, 37 POLITICAL SCIENCE AND POLITICS 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,

CBSNEWS(May 2, 2009), http://www.cbsnews.com/stories/2002/10/28/60II/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).122. See Harmelin, 501 U.S. at 1015 (White, J., dissenting).

123. Trop, 356 U.S. at 101.

124. Id.


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judgment, which the Court has applied in some Eighth Amendmentcases?125 This language does not show up at all in either Ewing orHarmelin. 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 Courtappears to want to prevent itself from using its discretion in caseschallenging the length of incarceration. But there comes a point whendeference becomes a dereliction of duty.126

Some clarity came recently, when the Court articulated its EighthAmendment jurisprudence in Graham v. Florida.127 In a five to fouropinion, the Court explained that there are two general classifications ofproportionality discussions.128 The first classification challenge was toterm-of-years sentences.129 The second classification comprised of casesthat use categorical rules in determining restrictions on the use of the deathpenalty.130 There is almost no role for the Court beyond the thresholddetermination of gross disproportionality vel non in the first category ofsituations. If the Court finds gross disproportionality as a threshold issue,then it defers to the legislatures by conducting a comparison to both thestate and interstate punishments. If the crime is punished a certain way byother legislatures, then it is not a violation of the Eighth Amendment. Thereis no place for the Court to apply its own independent judgment indetermining the constitutionality of the penalty. There appears to be noultimate power for the Court when it comes to the proportionality analysisof a prison sentence.

That said, perhaps Graham offers hope. The Court did, after all, stepbeyond the death penalty/non-death penalty distinction and strike down a

125. Roper v. Simmons, 543 U.S. 551, 564 (2005) (striking down as violative of the

Eighth Amendment the death penalty as applied to criminals who committed crime while

below age 18).

126. See Lee, supra note 108, at 558 ([The Courts] 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.

130. Id.Within the second category are two subdivisions: the nature of the offense and

the offenders characteristics.Id. at 2022.


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non-capital sentence based on a category of offender.131If we set aside thatlife-without-parole could be seen as a categorical sentence, too, and take atface value the Courts description of the issue in Graham, which was, The

present case involves an issue the Court has not considered previously: acategorical challenge to a term-of-years sentence.132We see that perhapsthe Court might at some point import some of its death penaltyjurisprudence into term-of-years sentence cases for defendants who are notin any protected category such as juveniles or the mentally retarded.133Onthe other hand, Grahammay merely represent a new mantra to add to themantra of death is different: juveniles are different.

A new, less deferential test is necessary and a new way of seeingcriminal justiceis necessary. These come as a result of re-seeing criminallaw as just another government program, rather than as an almost mysticalact by government that seeks to do justice and mete out retribution to setthe world aright.134It also can come as a result of recognizing what so farhas gone unrecognized: that a convicted criminal retains his fundamentalright to be free of incarceration such that the government cannot simplyinfringe on it subject only to rational basis review. Rather, as the nextsection will show, there is a strong argument that this right is notextinguished upon conviction of a crime. This right, then, may be burdenedonly if there is a compelling government interest to do so and the burden isnarrowly tailored.135While this would not hamper sentencing of murderersand rapists and robbers, it would prevent governments from imposing harshsentences needlessly, as they were on Gary Ewing and Ronald AllenHarmelin.

131. For an argument before Graham that this massive difference in review of death

verses non-death sentences is arbitrary and should cease, seeRachel E. Barkow, The Court

of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for

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 Colbs article or argument. See id.

132. Graham, 130 S. Ct. at 2022.

133. SeeAtkins v. Virginia, 536 U.S. 304 (2002) (holding that death sentence violative

of Eighth Amendment when applied to mentally retarded). I think that the Courts stating

term-of-years sentence rather than life-without-possibility-of-parole in the quoted

language above is telling. Otherwise, a response to the Courts 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).

135. Seediscussion infraPart IV.


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IV.SAME AS ITNEVER WAS:THIS DEFERENCE IS A DEPARTURE FROM THENORM,NOT BUSINESS AS USUAL

In the Courts opinions, there is a sense that this deference to a

legislature that has created detailed, harsh sentences, accords with traditionor business as usual. It is important to note that this is not the case. Theharsh laws that the Court addressed in Harmelin and Ewing were arelatively new development that represented an increase in legislaturesmandating extremely severe sentences. The sentencing regime thatobtained generally in the United States was one where judges had broaddiscretion to sentence convicted criminals and after that, the convictedcriminal would be subjected to review by parole officials who coulddetermine whether he could be released.136 The Supreme Court itselfengaged in limited review of the trial judges sentencing. There was littleneed to review the legislatures sentencing schemes beyond the deathpenalty because the legislatures were not dictating extremely severe

sentences. This understanding of historical context appears to be missingfromHarmelinandEwing.

What also appears to be missing is an understanding of the actualmeaning of the maxims the Court relied on; again, historical context ismissing. For example, in Ewing and Harmelin, the Court expressed areluctance to engage in legislating criminal law.137 However, thistraditional deference was grounded in the idea that the system had opted fora regime where legislatures, not judges, are supposed to create thecrimes.138 There was opposition to common law crimes, meaning thejudicial creation of crimes.139 This activity is different from a courtsreviewing a sentence; courts were in far more control of sentences thanlegislatures were.140Sentencing used to be in a courts hands, specifically

the trial courts, and appellate courts were reluctant to overturn sentencingdecisions.141

There has also been a school of thought in criminal law that arguedagainst judicial discretion in sentencing.142But those arguments were notmade in the context of a battle over the merits of judicial discretion versuslegislative discretion. Rather, they were made in the context of whethersuch discretion should lie with experts in the parole process, who could

136. STITH &CABRANES,supranote 1, at 7.

137. Ewing, 538 U.S. at 12;Harmelin, 501 U.S. at 959.

138. STITH &CABRANES,supranote 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.


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monitor a prisoners process over time or with judges who could only set asentence at the front end, often with limited information and necessarilywithout the knowledge of how the prisoner is progressing during the time

of his sentence.

143

So, in a sense, the Court did not always defer to legislatures insentencing mattersit was the other way around. The lack of casesconcerning judicial deference to the legislature reflects that there wasnothing 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 wewill see, the convicted criminal was not necessarily seen as losing anyconsideration of his right to freedom from incarceration.144Rather, he wasplaced under the control of a judge, who would engage in a searchingreview and determination of a sentence which included the possibility of noincarceration at all.145 The sentencing regimes that the Court upheld inHarmelinandEwingfully extinguish a convicted criminals liberty interestand allow a sentencing judge who is a sentencing judge in name only, toignore the convicted criminals liberty interest.146The rise of this sort ofmechanical sentence represented a new development.147

What the Court failed to recognize in Harmelinand Ewingwas that thesentences in those cases represented a departure from the norm; they werenot the continuation of a norm. They represented an arrogation of power bythe legislature. This legislative expansiveness should have been met with ahigher level of scrutiny by the Court, not with deference. As much asphilosophers argue that a person cannot sell himself into slavery,148 theCourt should have recognized that it cannot defer to the legislaturesremoval of courts ability to review its actions.

V.GETTING OUT OF THE EIGHTH AMENDMENT BOX:DO CONVICTED

CRIMINALS HAVE A LIBERTY INTEREST AGAINST INCARCERATION THATTHE GOVERNMENT CANNOT INFRINGE UNLESS DOING SO PASSES STRICT

SCRUTINY?

The Court has deferred to the legislatures in cases challenging sentencesas excessive because the Court does not regard a convicted criminal ashaving any liberty interest after conviction that is, a right to freedom fromconfinement or incarceration.149Despite having never seriously considered

143. Id. at 21.

144. See, e.g.,Meachum, 427 U.S. at 224.

145. See id.

146. STITH &CABRANES,supranote 1, at 80-81.147. Id. at 123 (discussing mandatory minimum sentences).

148. See, e.g., JOHN STUART MILL,ON LIBERTY158 (1869).

149. Colb, supra note 27, at 781.


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the issue, the Court has stated with certainty that a convicted criminal hasno liberty. The interest, according to the Court, is extinguished uponconviction. This sections analysis will build on the argument by Professor

Colb and the work of Warren Redlich, the only other commentator toaddress this issue.150 One of the important points this Articles analysisadds is that the Court has never addressed the issue because for most ofU.S. history, a searching review by a judge as to the appropriateness ofprison and the appropriate number of years was inherent in the judicial actof sentencing.151 Given the changed circumstances vis a vis legislativeinvolvement in sentencing, the Court should hold that courts must considerwhether it is necessary to incarcerate a convicted criminal, and if so, forhow long.

A. The Liberty Interest in . . . Liberty

The Court has stated that freedom from bodily restraint,152is a liberty

interest that is subject to substantive due process protection, but it has notdealt with a substantive due process challenge to a criminal sentence onthese grounds. For example, in Meyer v. Nebraska, where the Court

150. Warren Redlich, supra note 27. Redlich relies on Colb but limits his argument to

drug cases.Id.

151. See supraPart IV. An interesting argument that is beyond the scope of this article

is that a convicted criminal has a right to a judges discretion in sentencing him; that the

removal of this discretion by legislative fiat is actually a due process violation, given the

rich tradition of judicial 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 Amendments proportionality

requirement. SeeFrase, supranote 13, at 641.

152. Meyer v. Nebraska 262 U.S. 390, 399-400 (1923). Meyer discussed libertyinterests 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)).


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asserted this interest, the case addressed a statute that prohibited theteaching in school of any subject except in English; also the teaching of anyother language until the pupil has attained and successfully passed the

eighth grade, which is not usually accomplished before the age oftwelve.153The liberty interest that the Court protected by striking downthe statute and conviction was not freedom from bodily restraint, but ratherplaintiffs occupation of teaching a foreign language. Plaintiff in errortaught this language in school as part of his occupation. His right thus toteach and the right of parents to engage him so to instruct their children, wethink, are within the liberty of the amendment.154 The Court has alsorecognized the interest in freedom from bodily restraint in casesconcerning: preventive detention of terrorism suspects,155preventive, pre-trial detention of arrestees,156preventive, continued detention of sexuallyviolent predators after their sentence has been served,157 andpreventive/protective detention of the mentally ill.158However, the Courthas never meaningfully considered the argument that a convicted criminalhas a liberty interest in his liberty that survives conviction and certainly notin the context of a claim that a sentence is disproportionate or excessive.

Nevertheless, when the Court has encountered the argument moregenerally, it has rejected it out of hand. It does not always cite authority forits rejection. But when it does, it cites ultimately to Meachum v. Fano,159which itself does not cite any authority.160 (When the Court cites casesother thanMeachum, those cases ultimately citeMeachum.) ButMeachumdid not squarely address the issue. The issue in Meachum was whetherprisoners (who had already been convicted and were serving sentences) hada liberty interest in not being transferred from one prison to another thathad substantially worse conditions, the Court held that they did not. Theidea 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 isnotable.161I will briefly trace the Courts addressing this topic beginningwithMeachum.

153. Id.at 400.

154. Id.at 401.

155. See Hamdi v. Rumsfeld, 542 U.S. 507, 531 (2004).

156. See United States v. Salerno, 481 U.S. 739, 749 (1987).

157. See Kansas v. Hendricks, 521 U.S. 346, 357 (1997).

158. See, e.g., Foucha v. Louisiana, 504 U.S. 71, 73 (1992); OConnor v. Donaldson,

422 U.S. 563, 565 (1975).

159. Meachum v. Fano, 427 U.S. 215 (1976).

160. See id.at 224 (stating this claim without citation).

161. This is not surprising. The Court has actually created a jurisprudence in which it

refuses to consider, and refuses to make police officers consider, criminal suspects rights.

See Foley, supra note 15.


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In Meachum, the Court in an opinion by Justice White, addressed achallenge by prisoners who had been transferred from one Massachusettsstate prison to another, but with worse conditions. The Court stated:

The Due Process Clause by its own force forbids the State fromconvicting 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 defendants liberty interestto empower the State to confine him in any of its prisons.162

Notably, the Court made this statement without citation. The Court wasdealing with the impropriety of applying its own discretion instead of theprison 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 lawreformers who argued that the main goal of punishment was rehabilitationargued in favor of prison and parole officials discretion and againstjudicial discretion in sentencing, at least in mandating harsh sentences thatmight give a prisoner a lack of incentive to reform or that mightincapacitate him beyond the time when he has reformed.165

In the dissenting opinion, Justice Stevens, joined by Justices Brennanand Marshall, argued that prisoners still enjoyed a partial liberty interest.166He also noted that, the view once held that an inmate is a mere slave isnow totally rejected.167 Again, however, it is important to note that inmost cases an inmate, even one who was considered a mere slave of the

state, had been sentenced by a judge who, presumably, considered whetherprison was even appropriate in the first place.168

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-to-

day 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,supranote 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. SeeSTITH &CABRANES, supranote 1, at 19 ([F]ederal trial judges retained the

important authority to sentence the defendant to no time n prison. This procedure was first


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Three years later, in Greenholtz v. Nebraska Inmates, which dealt withwhether there was a right to parole,169the Court relied onMeachum:

There is no constitutional or inherent right of a convicted person to be

conditionally released before the expiration of a valid sentence. Thenatural 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 constitutionallydeprived of his liberty.170

The next year, in Vitek v. Jones, the Court concluded that a prisoner beinginvoluntarily transferred from prison to a mental hospital had a libertyinterest that was implicated by such a transfer.171This was for two reasons:the prison could reasonably expect that there would have to be a findingthat he was suffering from a mental illness that could not be treated inprison, and that there was a stigmatizing effect from such a transfer.172

The transfer constituted a major change in the conditions of confinementamounting to a grievous loss that should not be imposed without theopportunity for notice and an adequate hearing.173In this procedural dueprocess case, the Court distinguished this context from the context offreedom from incarceration after conviction:

Undoubtedly, a valid criminal conviction and prison sentence

extinguish a defendants right to freedom from confinement. Such a

conviction and sentence sufficiently extinguish a defendants liberty to

empower the state to confine him in any of its prisons.174

In 1986, inMcMillan v. Pennsylvania, the Court cited only Meachum asauthority in stating that a prisoner had no liberty interest afterconviction.175 Once the reasonable-doubt standard has been applied to

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 sentencea power state courts had also assumed and exercised.

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. SeeGreenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979).

170. Id. at 7 (quotingMeacham, 427 U.S. at 224).

171. Vitek v. Jones, 445 U.S. 480, 487-88 (1980) (White, J.).

172. Id.

173. Id. at 488.

174. Id. at 493 (internal citations omitted) (quotingMeachum, 427 U.S. at 224).

175. McMillan v. Pennsylvania 477 U.S. 79, 92, n.8 (Rehnquist, J.) (quotingMeachum,

427 U.S. at 224).


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obtain a valid conviction, the criminal defendant has been constitutionallydeprived of his liberty to the extent that the State may confine him.176McMillan concerned the burden of proof required for the government to

prove, during sentencing, facts not proved at trialsentencing factors.

177

These opinions then took on a life of their own and finally were used inthe context of a challenge to a sentence. In 1991, in Chapman v. UnitedStates, the Court rejected a challenge to a sentence in which it was arguedthat the sentence should be subjected to strict scrutiny.178But the Court didnot 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 theclassification 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 findthat Congress had a rational basis for its choice of penalties for LSD

distribution.179

Two points deserve mention. First, the Court rejected the challenge byrelying on precedent in the broadest sense, that of tradition, stating thatwe have never subjected the criminal process to this sort of truncated

176. Id.

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 Chapmanin her article.

179. Id. (emphasis added) (parallel citations omitted). Notably, Bell addressed the

rights of pretrial detainees. SeeBell 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, n.10 (1983).


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analysis, and we decline to do so now.180 The cases cited are from adifferent context, so this reliance on mere tradition is not proper judicialreasoning. Also, the Court calls strict scrutiny a truncated analysis, which

is dismissive and inapt, when in fact, a strict scrutiny analysis is detailedand searching, hardly truncated at all. Second, when Justice Rehnquiststates, But a person who has been so convicted is eligible for, and thecourt may impose, whatever punishment is authorized by statute of thisoffense, so long as that penalty is not cruel and unusual . . . and so long asthe penalty is not based on an arbitrary distinction that would violate theDue Process Clause . . . . he was begging the question:181 was this anarbitrary distinction? And, more importantly, Justice Rehnquist was,perhaps unconsciously, mischaracterizing the sentencing process, at least insome cases, and certainly as it played out in cases such as Harmelinfromthe same year andEwingmore than ten years later. In such cases, the ideathat the court may impose is merely formal. The sentences are mandatoryand allow for no discretion. So whatever punishment is authorized bystatute is the punishment, no ifs, ands, or buts about it. My point is thatprisoners used to have some right, a term I use loosely, to a searchingreview by a judge before being sentenced, a review that might include thepossibility of no incarceration at all.

The following year, in Foucha v. Louisiana, which held that the stateviolated due process by continuing to confine a defendant who had beenfound not guilty by reason of insanity, on the basis that the defendantexhibited anti-social behavior but had no mental illness.182 The Courtdeclared that the State, pursuant to its police power, may of courseimprison convicted criminals for the purposes of deterrence andretribution.183This statement was not followed by anycitation. However,the Foucha dissent

reframing the debate over excessive sentences to move beyond the eighth amendment

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