Mass incarceration has many evils. One of them is the length and apparent fixedness of many criminal sentences—a relatively new development in the history of American criminal adjudication. Sympathetic system actors, concerned about this problem, often complain that they lack the ability to revisit sentences that have outlived commonsense value. This complaint has prompted incarcerated people, their families, attorneys, scholars, judges, and even many prosecutors to call for “second look” legislation that would create the authority they say is needed.

This Article argues that such legislation is unnecessary: the same authority should already exist, under current doctrine, in the Federal Due Process Clause and (or) its state analogues. Though the Supreme Court’s approach to incarceration is anomalous as compared with other fundamental rights, the Court has made clear that substantive due process requires that criminal confinement satisfy rational basis scrutiny. In the context of civil confinement, that same due process right to bodily liberty applies throughout the duration of a detainee’s confinement. Logic, along with the Court’s discussions of actual innocence and substantive retroactivity, indicates that the same ongoing protection should apply in the context of criminal confinement.

Just as a sentence can be irrational from the moment of issuance (as with an actually innocent defendant), a sentence can also become irrational over time. And there can be no rational basis for continuing to imprison a person when the branch of government responsible for identifying such a basis expressly disclaims it. In other words, any prosecutor who recognizes a sentencing injustice should, at any point in time, be able to trigger second look resentencing—a conclusion that provides a previously unexplored doctrinal basis for what some federal courts informally call the “Holloway Doctrine.”

Furthermore, just because a prosecutor asserts a rational basis does not mean that there is one. Rational basis scrutiny is forgiving, but it is not altogether toothless, and it offers additional values to social movements—including forcing adverse parties to give reasons for their actions. Incarceration must be supported by one of the recognized purposes of punishment, and there are instances in which none of those purposes meets the test. Courts themselves, therefore, have due process authority to release prisoners whose sentences have come to be irrational, regardless of the prosecutor’s position. Finally, if the Court ever resolves its fundamental rights anomaly and subjects prison sentences to strict scrutiny, that scrutiny should apply with equal force to ongoing incarceration.

Continue Reading When a Prison Sentence Becomes Unconstitutional.