The Yale Law Journal


Excessive Sentencing Reviews: Eighth Amendment Substance and Procedure

10 Oct 2022

abstract. This Essay explores the doctrinal regime regulating noncapital sentences. In particular, this Essay argues that the lack of meaningful substantive protections from excessive punishment under the Federal Constitution creates a greater emphasis on state procedural rights at sentencing. Using the case study of state habitual-offender enhancements—which serve as key drivers of mass incarceration and racial disparities in sentencing—this Essay demonstrates how existing procedural rights cannot effectively protect against extreme prison sentences. Given the low probability of reinvigorated substantive review under the Eighth Amendment, this Essay argues for procedural reforms that permit postconviction review of lengthy sentences.


A man is arrested for stealing a purse. What happens next may span days or decades.

Some version of this story unfolds every day in criminal courts across the country.1 Virtually every iteration involves a period of incarceration,2 but the length of confinement may vary wildly depending on how the police, prosecutors, and courts exercise their discretion. If charged with misdemeanor theft, the individual may be released on his own recognizance or a nominal bond in a matter of hours. Even if convicted of that crime, he may be sentenced to a period of probation or community service that results in no additional incarceration.

Elijah,3 a client I represented in postconviction proceedings, falls far on the opposite end of the spectrum. He was accused of taking a purse from a passerby on the street and charged with the crime of purse snatching.4 Because he could not afford his $25,000 bond, Elijah remained in jail for sixteen months until a jury found him guilty as charged. By the time of his sentencing hearing, Elijah was eligible for release on supervision.5 However, the prosecution deployed Louisiana’s Habitual Offender law6 to seek an enhanced sentence against Elijah. Due to his criminal record, the trial court automatically sentenced him to life imprisonment without the possibility of parole.

Although Elijah’s death-by-incarceration sentence is draconian, it is not uncommon. In Louisiana, the state with the highest rate of incarceration,7 thousands of individuals have been sentenced to lengthy prison terms under the Habitual Offender law.8 These recidivist-enhancement laws, which increase the maximum permissible prison term for individuals with prior convictions, are common nationwide.9 Scholars have recognized that these strict habitual-offender laws are a key driver of mass incarceration.10 Moreover, these laws have disproportionately been applied to people of color, thereby contributing to racial disparities within the criminal legal system.11

Recently, advocates and policymakers have grown more concerned about excessive criminal punishments and racial disparities in sentencing,12 which has produced bipartisan legislative reforms.13 Despite these efforts, however, the United States remains an outlier in the criminal penalties it imposes. While thousands of Americans languish on life-without-parole (LWOP) and other extreme sentences,14 the Supreme Court of Canada, for example, held in May 2022 that LWOP sentences are impermissible under any circumstance.15 That decision noted that “in international and comparative law,” these sentences are “generally considered to be incompatible with human dignity.”16

By its own terms, the Cruel and Unusual Punishment Clause of the U.S. Constitution’s Eighth Amendment limits these noncapital sentences.17 Historically, though, both the U.S. Supreme Court and state apex courts have largely abstained from meaningful substantive regulation of criminal sentences, at least outside of the death penalty.18 Indeed, recent Supreme Court opinions suggest that even the minimal constitutional limitations on noncapital sentences currently in place may be in jeopardy.19

This Essay explores how advocates may combat and redress extreme noncapital sentences absent meaningful substantive protections. Drawing from my fellowship experience and case studies from Louisiana (where I practice), I examine how state-law procedural innovations may fill this Eighth Amendment vacuum. In particular, this Essay highlights a novel feature of Louisiana law that permits postconviction plea agreements to modify convictions and sentences.20 Through this statute, known as Article 930.10, individuals like Elijah have been able to obtain a reprieve from a lifetime behind bars.

To understand why a provision like Article 930.10 is necessary, this Essay begins by examining the lack of substantive limits on noncapital punishment under the federal and state constitutions. Part I surveys the U.S. Supreme Court’s approach to Eighth Amendment challenges to noncapital sentences. As Part I demonstrates, the Court’s hands-off approach produces “hydraulic pressure[s]”21 along two axes. First, deregulation under federal law places significant pressure on the states to regulate noncapital sentences. However, states themselves have largely adopted the Supreme Court’s approach to noncapital punishment. Consequently, this lack of substantive limitations at both the federal and state levels creates a second set of pressures that place a heightened importance on procedural rights.

Part II examines the consequences of this regime based in state-law procedural rights and the unregulated sentences it produces. To do so, this Part uses Louisiana’s Habitual Offender law as a case study. By examining the operation of that law and the rights afforded to people sentenced under its provisions, Part II shows how most existing procedural protections fail to combat excessive sentences.

Building on Part II’s analysis, Part III offers visions for reforms. I begin by considering the prospect for greater regulation of criminal sentences under the Eighth Amendment. While such a jurisprudential shift could directly reduce the prevalence of excessive sentences, it is also exceedingly unlikely given the state of the law and the current composition of the U.S. Supreme Court. Instead, as Part III discusses, postconviction plea agreements under Article 930.10 can regulate excessive sentencing in the absence of meaningful constitutional review—although this overreliance on procedure introduces pitfalls of its own. I conclude by offering further procedural fixes inspired by Article 930.10 that would permit ongoing review and potential modifications of lengthy, noncapital sentences through periodic sentencing-review hearings.

I. constitutional deregulation

A. The State of the Eighth Amendment

The U.S. Constitution’s Eighth Amendment prohibits “cruel and unusual punishment.”22 Although the Eighth Amendment does not explicitly distinguish between the death penalty and other punishments,23 the Supreme Court has increasingly limited the force of the Cruel and Unusual Punishment clause in noncapital cases.24 Technically, a narrow majority of the Court has consistently interpreted the Eighth Amendment over the last several decades as “contain[ing] a ‘narrow proportionality principle.’”25 Under this interpretation, the Constitution prohibits a sentence that is “grossly disproportionate” to the underlying offense.26 In practice, however, the Court has emphasized that successful proportionality challenges to noncapital sentences will be “exceedingly rare.”27 In fact, since the Supreme Court formalized its distinction between death and prison sentences, the Justices have repeatedly clashed over whether the Eighth Amendment imposes any substantive limitation on noncapital prison sentences.28 As a result, commentators have declared the Eighth Amendment “a dead letter with respect to noncapital” sentences.29

Although the Court has expressed some reservations about LWOP sentences and habitual-offender laws in particular, it has largely declined to establish categorical, Eighth Amendment limitations on enhanced sentences.30 In the wake of the brief death-penalty moratorium imposed by the Supreme Court’s decision in Furman v. Georgia,31 the Court began to consider Eighth Amendment challenges to lengthy prison terms imposed by state courts.32 For instance, in Rummel v. Estelle, the petitioner was convicted of felony theft in the amount of $120.75.33 Because Rummel had two prior theft convictions, he received a mandatory life sentence under Texas’s habitual-offender law.34 On appeal, he argued that a life sentence, “as opposed to a substantial term of years,” was grossly disproportionate for the crime of theft given that other jurisdictions would punish his conduct less severely.35 Ultimately, the Supreme Court rejected his challenge, finding that “a constitutionally imposed uniformity” in sentencing would be “inimical to traditional notions of federalism” and the prerogative of individual states to “treat[] particular offenders more severely than any other State.”36

Just three years later, the Court ostensibly changed course and invalidated a sentence enhanced by a state habitual-offender law. In Solem v. Helm, the defendant raised an Eighth Amendment challenge to the life-without-parole sentence he received under South Dakota’s habitual-offender law for passing a bad check valued at $100.37 Although the Court endorsed a case-specific approach to noncapital proportionality review38 and identified a number of relevant factors to be applied in that analysis,39 its decision emphasized the nonviolent nature of Helm’s crime.40 Moreover, the Solem Court engaged in a comparative analysis of both “the sentences that could be imposed on other criminals in the same jurisdiction”41 and “the sentences imposed for commission of the same crime in other jurisdictions.”42 Finally, the Court distinguished its holding in Rummel on the basis of parole eligibility. In Rummel, the Court had emphasized the fact that Texas’s “relatively liberal policy of granting ‘good time’ credits to its prisoners” would render Rummel eligible for parole “in as little as 12 years.”43 But because Helm was ineligible for parole and therefore required to serve his entire sentence unless he received executive clemency, the Court determined that his punishment was “far more severe” than the sentence Rummel received and thus violated the Eighth Amendment.44

Over the next two decades, the Supreme Court significantly rolled back each of these key features of noncapital proportionality review: comparative analysis, parole eligibility, and the severity of the underlying offense. None of these opinions produced a single majority, but the analyses in the plurality and concurring opinions indicate a clear retreat from the framework announced in Solem. For instance, the plurality and concurring opinions in the 1991 case of Harmelin v. Michigan limited the first two features of Solem’s test.45 In that case, a majority of the Court rejected Eighth Amendment challenges to both the “severe length”46 and the mandatory imposition of a life-without-parole sentence for possession of 672 grams of cocaine.47 To support this challenge, the petitioner argued that Solem required the Court to conduct “a comparative analysis between petitioner’s sentence and sentences imposed for other crimes in Michigan and sentences imposed for the same crime in other jurisdictions.”48 Justice Scalia’s plurality opinion asserted that “the Eighth Amendment contains no proportionality guarantee,”49 but Justice Kennedy, writing for three members of the Court, declined to go so far.50 However, Justice Kennedy’s application of Solem in his concurring opinion narrowed the scope of the “intrajurisdictional and interjurisdictional analyses” factor by declaring that such comparisons are “not always relevant to proportionality review.”51 Rather, the concurrence stated, a court need only perform this comparative analysis in the “rare case” where the court’s “initial judgment” or “threshold comparison” of the crime and sentence suggests “gross disproportionality.”52 Notably, though, the Harmelin concurrence neglects to provide guidance on how a court should make this “threshold” proportionality determination: whereas Solem considered the comparative analysis to be part of its “objective” review,53 the Harmelin concurrence replaces that analysis with a subjective, standardless inquiry.

In addition, the Harmelin opinions eviscerated the distinction between parole-eligible and LWOP sentences that was central to both Solem and Rummel. Solem recognized “[a]s a matter of law” the distinction between parole-eligible sentences and the mere possibility of executive clemency.54 The decision thus made clear that the chance of executive clemency could not salvage an otherwise-excessive LWOP sentence.55 Nevertheless, the plurality opinion unceremoniously collapsed that distinction: despite the categorical language of Solem, Justice Scalia’s opinion asserts that “[i]n somecases . . . there will be negligible difference” between an LWOP sentence and a lengthy prison term with a long initial period of parole ineligibility.56 Furthermore, his opinion suggests that LWOP sentences are not as severe as Solem had thought due to “the possibilities of retroactive legislative reduction and executive clemency.”57

The Court subsequently considered Ewing v. California,58a challenge to a twenty-five-years-to-life sentence under California’s “three strikes” law for the theft of three golf clubs valued at $399 each.59 Both Harmelin’s and Ewing’s plurality opinions considered the seriousness of the underlying offense as a feature of noncapital proportionality review, but those opinions introduced a less protective version of that criterion. To be sure, they both emphasized that the predicate convictions used in enhancement by a habitual-offender law are relevant to sentencing decisions.60 But where Solem held that the defendant had “paid the penalty for each of his prior offenses” and so directed courts to “focus on . . . the felony that triggers” the enhanced sentence,61 the Ewing plurality opinion again retreated from this stance, noting that the petitioner “incorrectly frames the issue” by focusing primarily on the triggering offense.62 Instead, the plurality in Ewing determined that proportionality review of a sentence imposed under a recidivist enhancement must “accord proper deference” to a state’s decision to punish repeat offenders more severely.63

Most notably, the recent noncapital proportionality jurisprudence changes how lower courts should analyze the severity of the offense giving rise to a contested sentence by imposing a hierarchy of offenses that usurps authority from the states.64 Notably, the early noncapital Eighth Amendment decisions deferred to the states by emphasizing the ability of each jurisdiction to declare certain content criminal or felonious.65 However, in Harmelin, the concurrence asserted that the drug-possession offense at issue could not be considered “relatively minor.”66 Although Justice White’s dissent argued that Harmelin’s conduct was “not exceptionally serious,”67 the concurrence dismissed the claim that his offense was “nonviolent and victimless” as “false to the point of absurdity.”68 Thus, rather than affirming state-by-state variation on punishment under a constitutional ceiling, as Rummel and Solem did, Harmelin arguably requires that drug offenses be treated as sufficiently severe to impose a life sentence without parole, thereby creating a constitutional floor.

Each of these jurisprudential changes narrows the scope of proportionality generally and particularly in ways that limit challenges to extreme sentences under habitual-offender laws. Most explicitly, Ewing’s plurality expands the “fram[ing]” of noncapital proportionality review to encompass review of predicate offenses and requires deference to state legislative goals of punishing repeat offenders more severely.69 Furthermore, and as discussed below, many habitual-offender laws “flatten” sentences by removing parole eligibility.70 Thus, by deemphasizing the role of parole eligibility in noncapital proportionality review, Harmelin erased a key protection from particularly cruel applications of recidivist enhancements for minor offenses. Similarly, states vary widely in which offenses can serve as predicates for a recidivist enhancement.71 As in Solem, robust comparative analysis could constrain extreme applications of habitual-offender laws in cases where the predicate and triggering offenses are all relatively minor. However, by abandoning that requirement, Harmelin permits these outlier applications so long as the sentence does not appear disproportionate under a judge’s subjective analysis. Although the Supreme Court may still invalidate a life sentence for “overtime parking”72 even under this weakened form of noncapital proportionality review, it has defanged the Eighth Amendment’s relevance to the habitual-offender laws that permeate state code books.

B. State Analogues to the Eight Amendment

In theory, individual states are free to adopt more expansive protections against excessive sentences through their own constitutions and legislatures. Nearly every state constitution contains a provision analogous to the federal Eighth Amendment.73 Slight semantic variations in these state constitutions “suggest[] that some state provisions . . . may place greater restrictions on state punishment practices than the U.S. Constitution.”74 As Professor William Berry III has documented, eleven state constitutions feature the same “cruel and unusual” phrasing as the Eighth Amendment.75 “Another thirteen states have adopted the ‘cruel and unusual’ language and supplemented it with additional requirements.”76 Six states’ constitutions ban “cruel, but not unusual, punishments.”77 The remainder of state constitutions prohibit cruel or unusual punishments using a disjunctive conjunction.78

In the capital context, some state courts have interpreted their constitutions more robustly than the U.S. Supreme Court has read the Eighth Amendment.79 For example, although the U.S. Supreme Court famously rejected an Eighth Amendment challenge to the constitutionality of the death penalty based on racial disparities in its application,80 the Supreme Court of Washington subsequently held that the state’s capital punishment regime violated the state constitutional prohibition on “cruel punishment”81 because it had been administered in an “arbitrary and racially biased manner.”82

State courts could issue similar rulings in noncapital cases, but “the overwhelming majority of states” have declined to enforce greater protections against excessive prison sentences.83 As Professor Berry has documented, forty states “simply apply the Supreme Court’s gross disproportionality doctrine” in reviewing noncapital punishments.84 Consider, for instance, the Supreme Court of Iowa’s recent decision in Dorsey v. State.85 The petitioner, James Dorsey, appealed a mandatory life-without-parole sentence for a first-degree murder he committed at the age of eighteen years and five days.86 Dorsey raised two challenges to that sentence. First, attempting to expand the U.S. Supreme Court’s Miller ruling87 and citing “medical and social science literature,” he argued that imposing a mandatory LWOP sentence on someone who was under twenty-five years old violated the state constitutional prohibition on “cruel and unusual punishment.”88 The Iowa high court denied relief on that claim, citing precedent that established a “bright-line constitutional distinction between juvenile offenders and adult offenders for purposes of” the state’s Eighth Amendment analog.89 Second, Dorsey asserted that his LWOP sentence was “grossly disproportionate” to his offense.90 Though Dorsey raised this challenge under the state constitution, the Iowa Supreme Court analyzed his claim through the “gross disproportionality” analysis outlined in Justice Kennedy’s concurrence in Harmelin.91 Under that stringent analysis, the state high court affirmed the sentence.

In Dorsey, the language of the state constitutional provision at issue happened to match the language of the Eighth Amendment’s Cruel and Unusual Punishment Clause, which arguably supports the Iowa court’s reasoning.92 However, “irrespective of the language of the state constitution,” most states do not provide greater protections from excessive noncapital sentences.93 The Louisiana state constitution, for example, prohibits “cruel, excessive, or unusual punishment.”94 The Louisiana Supreme Court has offered two general definitions for what constitutes an excessive punishment. First, a sentence is unconstitutionally excessive when “it makes no measurable contribution to acceptable goals of punishment.”95 A sentence is also unconstitutionally excessive when it violates a gross proportionality principle, echoing the federal standard.96 Further, sentencing courts have a “duty[] to reduce” disproportionate sentences “to one[s] that would not be constitutionally excessive” even when the sentences fall within the prescribed sentencing range.97

Despite these protections, the Louisiana state constitution still permits a range of extreme sentences in practice, including many imposed through the Habitual Offender law. Consider, for instance, the case of Fair Wayne Bryant. In 1997, Mr. Bryant was convicted of theft “for unsuccessfully attempting to make off with somebody else’s hedge clippers.”98 Due to his four prior felony convictions, Mr. Bryant received a life sentence for the attempted theft under Louisiana’s Habitual Offender law—even though only one of his prior convictions, a 1979 attempted armed robbery, was considered a “crime of violence.”99 On direct appeal, the court upheld that sentence.100 After two decades of incarceration, Mr. Bryant filed a motion to correct an illegal sentence in the trial court, arguing that his sentence was excessive and therefore illegal under the state constitution. The trial court denied relief on procedural grounds: because the trial court had signed an order of appeal, it was divested of jurisdiction over the case.101 An appellate court affirmed that ruling but noted that, under state procedural law, the trial court did still have jurisdiction to correct Bryant’s sentence if that sentence were, in fact, excessive and therefore illegal.102 Thus, the appellate court’s denial of relief amounted to a decision that Bryant’s sentence was not excessive. The state high court declined to disturb the appellate court’s decision.103

Mr. Bryant’s case generated considerable publicity, and he fortunately secured his release on parole shortly after his appeal was denied.104 However, he served twenty-four years in prison before securing his freedom. As his case demonstrates, the addition of “excessive” in the Louisiana constitution does not confer much protection beyond the narrow protection of the Eighth Amendment.

C. Pressures on Procedure

Because the Eighth Amendment does not effectively protect against draconian prison sentences, litigants must rely on a regime of state procedural rights to combat excessive punishments.105 As Professor Lee Kovarsky diagnosed when discussing narrowed federal habeas review, the unavailability of a federal forum creates “hydraulic pressure redirecting the critical . . . activity to state courts.”106 This observation applies equally to the context of excessive sentences, where deregulation under the Eighth Amendment redirects substantive review of noncapital sentences to state courts. In this case, that flow is quite deliberate: the Supreme Court has repeatedly invoked “traditional notions of federalism”107 and “defer[ence] to state legislatures”108 in narrowing the scope of Eighth Amendment noncapital proportionality review. At its extreme, this “hydraulic pressure” renders the Eighth Amendment so much of a “dead letter” that litigants like James Dorsey abandon federal constitutional claims altogether in favor of arguments under state law.109

These lax limits on excessive punishment create a second set of hydraulic pressures beyond the shift toward state courts. Because state constitutions largely mirror the toothless federal standard, substantive regulation of noncapital sentences fails at the state level as well. In the resulting “vacuum” of regulation, procedural rights necessarily receive greater emphasis.110 As with its substantive provisions, the Federal Constitution provides only a baseline measure of procedural rights at sentencing: defendants are entitled to representation by counsel at sentencing,111 and individuals subjected to habitual-offender laws must receive “reasonable notice” of the enhancement and an opportunity to contest it at a (nonjury) hearing.112 However, the Due Process Clause does not require an adversarial sentencing hearing, and the federal right to confront witnesses does not apply to noncapital sentencing proceedings.113

Thus, within the realm of federal procedural rights at sentencing, a “hydraulic pressure” identical to the one identified by Kovarsky shifts the focus to state procedural rights. These procedural protections vary among jurisdictions,114 but they may include the right to present mitigation evidence at a sentencing hearing or a requirement that trial courts provide their reasoning for discretionary sentencing decisions so that appellate courts can review the sentences for excessiveness.115 The following Part explores these baseline procedural rights through a case study of Louisiana law and demonstrates how existing procedure-based regimes fail to prevent excessive punishments.

II. a case study in procedural regulation under state law

Unbounded by the Eighth Amendment and their own constitutions, many states have enacted laws that impose severe prison terms. Nowhere is this more apparent than in habitual-offender laws, which lengthen sentences for second or subsequent felony convictions.116 Using Louisiana’s recidivist-enhancement law as a case study, this Part explores how the regime of procedural rights applicable at sentencing attempts to regulate such extreme sentences. I begin by outlining how the Louisiana law operates both in theory and in application. I then describe the relevant state procedural rules that attempt to constrain application of the habitual-offender law. As this discussion demonstrates, this regime of procedural protections fails to prevent unjust and extreme sentences.

A. Louisiana’s Habitual Offender Law

Louisiana, like most states, prescribes a range of penalties for violations of a criminal law. For example, a conviction for purse snatching, the crime for which my client, Elijah, was convicted, normally carries a wide range of two to twenty years of incarceration at hard labor.117 In order to guide the sentencing court’s discretion, the Code of Criminal Procedure outlines a number of nonbinding factors for the judge to consider in fixing punishment within that range.118

Under Louisiana’s Habitual Offender law, also known as the “multiple bill,” individuals with prior felony convictions face significantly longer prison terms than the law would normally authorize.119 The mechanics are complicated, but the law essentially enhances the range of permissible prison terms based on the defendant’s number of prior convictions and whether the current or prior convictions constitute “crime[s] of violence” or “sex offense[s]” under Louisiana law.120 Additionally, the law provides that individuals sentenced under it are ineligible for probation121 or good-time parole, which otherwise can reduce a sentence because of good behavior.122 Under the current iteration of the Code, the sentencing range for an individual with one prior felony conviction would expand to “a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction.”123 Therefore, for example, the sentencing range for purse snatching grows from a period of two to twenty years, up to a mandatory minimum term of six-and-two-thirds years and a maximum term of forty years. The harsher version of the Habitual Offender law in effect at the time of Elijah’s offense, which permitted the State to enhance his sentence with older prior drug convictions, required Elijah to serve a mandatory life-without-parole sentence for his purse-snatching conviction because he had at least three prior felony convictions.124

Notably, any prior felony conviction can be used to enhance the current offense if that conviction is sufficiently recent.125 Because Louisiana punishes as a felony the simple possession of any drug other than marijuana,126 the range of enhanceable felonies is vast. For individuals like Elijah, a prior drug conviction can make the difference between a lengthy but finite sentence and death by incarceration.

In practice, the Habitual Offender law also cedes considerable control to local prosecutors, raising separate concerns about fairness in its application. Perhaps the most striking feature of the Habitual Offender law is that it does not automatically apply in every eligible case. Instead, local prosecutors wield significant discretion in choosing when to seek enhanced sentences.127 In general, Louisiana prosecutors apply the law relatively sparingly. Over ninety percent of Louisiana prosecutors brought three or fewer habitual-offender cases in 2015.128 However, the previous two district attorneys of Orleans Parish routinely invoked the Habitual Offender law.129 In 2015 alone, the Orleans Parish district attorney used the habitual-offender enhancement 154 times, the most of any judicial district130 and far more frequently than prosecutors in other similarly sized urban jurisdictions.131 With the ever-present threat of the multiple bill if an individual proceeded to trial, an untold number forewent their constitutional right to a jury trial and entered guilty pleas to avoid enhanced sentences.132

These concerns about inequitable applications are hardly abstract. As both the former Chief Justice of the Louisiana Supreme Court133 and the academic community have recognized,134 habitual-offender laws disproportionately target people of color and “undoubtedly contributed to the expansion of the Black prison population.”135 Among southern states, these laws “replaced the Black Codes that were prevalent after the Civil War ended” and “criminalized recently emancipated African American citizens by introducing extreme sentences for petty theft associated with poverty.”136 In the present day, the laws have had the discriminatory effect that was originally intended: Black Louisianans comprise less than a third of the state’s total population,137 but eighty percent of those incarcerated under the habitual-offender law are Black.138

B. Procedural Regulation in the Absence of Substance

The wide reach of the Habitual Offender law, the penalty it imposes on individuals who exercise their trial rights, and the disparities in its application all warrant more stringent regulation of its use. To be sure, the law itself recognizes the unremarkable proposition that it cannot justify imposition of a “constitutionally excessive” sentence.139 However, as Part I described, state and federal courts have routinely denied substantive constitutional challenges to applications of the Habitual Offender law: as the Louisiana judiciary recently clarified in Fair Wayne Bryant’s case, life imprisonment for attempted theft is not unconstitutionally excessive.140 Moreover, to the extent that sentencing courts actually find that an application of the habitual-offender law is excessive, the law still requires the court to “impose the most severe sentence that is not constitutionally excessive.”141

In the absence of meaningful substantive protections, robust procedural rights can, in theory, mitigate the risk of erroneous punishments and may even help reduce their substantive harshness. However, as this Section will illustrate, existing procedural rights fail to protect defendants against unjust punishment. Technically, under the Habitual Offender law, a sentencing court must hold an adversarial proceeding before imposing an enhanced sentence.142 But in essence, these so-called multiple-bill hearings amount to bench trials on strict-liability issues with low burdens of proof.143 Thus, the procedural rights afforded to the accused do not meaningfully mitigate the harshness of the penalty.

To seek an enhanced sentence under the Habitual Offender law, the prosecution must file a bill of information “accusing the person of a previous conviction.”144 The sentencing court then schedules an adversarial hearing, where the prosecutor must prove that the defendant has prior convictions “beyond a reasonable doubt.”145 In practice, the prosecution can usually meet this burden quite easily. In fact, the law provides that the “presumption of regularity of judgment shall be sufficient to meet the original burden of proof,” so the prosecution can simply supply certified records of the prior conviction as a means of identifying the defendant.146

The limited scope of the multiple-bill hearing does not consider the propriety of the prosecutor’s choice to invoke the sentencing enhancement. Further, defendants have no right to a jury trial in determining whether they qualify for enhanced sentences. In general, the Sixth Amendment requires that facts used to enhance a sentence be submitted a jury.147 However, the Supreme Court decision establishing this rule, Apprendi v. New Jersey, created an exception for “the fact of a prior conviction.”148 Louisiana courts have followed Apprendi’s holding under the state-law analog of the Sixth Amendment, meaning that the multiple-bill hearing occurs before a judge.149 But there are good reasons why a jury should decide whether the State has proved that an individual qualifies for an enhanced sentence under the Habitual Offender Law . Ordinarily, introducing a prior felony conviction during a jury trial may prejudice a defendant.150 But the risk of prejudice at a multiple-bill hearing is minimal given that the hearing occurs after the individual has already been convicted of the triggering offense.151 On the other hand, an individual may be subjected to an enhanced sentence under Louisiana’s Habitual Offender law without a jury ever learning of the enhancement: Louisiana law normally permits the parties to discuss unenhanced mandatory sentences in closing arguments.152 However, if an individual has been or may be subjected to the Habitual Offender law, Louisiana law prohibits the defense from informing the jury of the heightened mandatory penalty that would be imposed under the multiple bill.153 Thus, the current procedural regime deprives the accused of a jury’s “common-sense judgment,” which may help protect against “corrupt or overzealous” applications of the Habitual Offender law.154

While the Habitual Offender law is particularly harsh, the regime of procedural rights that applies to unenhanced noncapital sentences also insufficiently protects against excessive punishment. A recent appellate court opinion in State v. Toney illustrates these limitations.155 In that case, the defendant’s intoxicated driving killed two bikers and seriously injured several others.156 The trial court sentenced the defendant to a ninety-one-year cumulative sentence by imposing the maximum sentence for each count, ordering the sentences for Toney’s vehicular-homicide convictions to run consecutively as opposed to concurrently, and denying parole eligibility on the vehicular homicide counts.157 The defendant appealed, arguing both that the sentences were unconstitutionally excessive and that the sentencing judge provided insufficient justification for her discretionary decisions.158 The appellate court agreed with the latter claim and remanded the case for a “meaningful sentencing hearing.”159

While the Toney opinion vindicates the basic procedural rights at sentencing, it also demonstrates how minimally protective those rights are. The court declined to reach the substantive excessive-sentence claim because the trial court’s “lack of sufficiently articulated reasons” rendered the appellate record “insufficient to allow for a meaningful review of defendant’s excessiveness claim.”160 Earlier in the decision, though, the appellate court acknowledges that the punishment at issue in the case is “the harshest sentence for vehicular homicide in Louisiana jurisprudence.”161 As the opinion notes, the second-closest sentence on record was nearly half as long as the punishment at issue in Toney.162 Based on this, the appellate court certainly could have found the original sentence substantively excessive and mandated not only a meaningful hearing but also a cap on the eventual punishment. However, the court chose instead to remand the case for additional fact-finding. While compliance with the rules protecting these procedural rights may ultimately result in a less excessive sentence, nothing in the appellate court’s opinion prohibits the sentencing court from imposing the exact same—or even a more severe—sentence if it spells out its justifications. Indeed, the appellate court’s refusal to rule that the sentence was impermissibly excessive, despite the comparative evidence that the opinion cited, suggests that the appellate court may be inclined to uphold the same sentence if imposed again on remand so long as the trial court follows the proper procedures.

III. visions of reform

The foregoing discussion demonstrates how criminal sentencing exists within a vacuum of substantive rights that places significant hydraulic pressure on procedural protections. Furthermore, as discussed in the previous Part, defendants are afforded only a minimal baseline of procedural rights. How, then, can a regime based in procedure protect against draconian sentences?

This final Part considers reform efforts that may mitigate some of the harsh sentencing laws in effect. To begin, I briefly consider the prospect of more robust substantive protections. Due to jurisprudential and political barriers, such reforms are not likely to occur. Instead, then, I identify procedural fixes that may undo some of the harms of excessive sentencing regimes. In particular, I describe a novel aspect of Louisiana law that authorizes postconviction plea agreements to “amend[] the petitioner’s conviction, sentence, or habitual offender status.”163Although this law has certain drawbacks, it permits individuals like Elijah to revisit his harsh sentence. Building on this provision, I consider an additional procedural reform.

A. Reinvigorating Substantive Review

Although the Supreme Court has largely divested from noncapital proportionality review, there are jurisprudential reasons to renew that call.164 In recent Terms, the Court has reaffirmed that the Eighth Amendment “incorporates ‘evolving standards of decency’” that may require reevaluation of past precedent.165 To evaluate ever-changing standards of decency, the Supreme Court has looked to “objective indicia of society’s standards, as expressed in legislative enactments and state practice[s].”166 For habitual-offender laws, the 2017 amendments to Louisiana’s multiple-bill law—which made it harder for the government to use prior felonies to enhance sentences—should provide some measure of “objective” proof that society has moved beyond its most draconian recidivist rules. Similarly, prosecutors’ declining use of the habitual-offender enhancement—including a campaign pledge from Orleans Parish’s district attorney not to invoke the law167—should provide additional corroboration for applying greater Eighth Amendment scrutiny to enhanced sentences. But the Supreme Court has only struck down sentencing practices for violating “evolving standards of decency” when there is a societal trend toward completely abolishing the practice.168 In this binary conception between permissible and outlawed practices, the legislative tweaks to the habitual-offender law likely do not provide sufficient evidence of a shift in society’s standards because they do not completely outlaw habitual-offender laws.

More fundamentally, the success of these arguments is as much a question of politics as it is a question of law. A majority of the current Supreme Court favors an originalist understanding of the Eighth Amendment that limits the viability of the more expansive Eighth Amendment claims described above.169 Just this Term, for instance, a majority of the Court intimated that, in its view, the Eighth Amendment might not confer any procedural rights, even in capital or JLWOP cases, because the provision, as originally understood, concerns only “the character of the punishment.”170 Read optimistically, this dictum could potentially create an opening for more substantive challenges to noncapital sentences because excessive sentences, one could argue, fall under “the character of the punishment.” The stronger tea-leaf reading, though, cuts the other way: if the Court is willing to reconsider a long-standing right of a capital defendant to present all relevant mitigating evidence to the sentencer,171 it would be naive to think that it would be open to more expansive arguments, albeit substantive ones, on behalf of noncapital defendants.

B. A Procedural Solution: Article 930.10

If, after all, the law of noncapital sentencing is not amenable to substantive reforms, then procedural innovations may be the only realistic path to review and mitigation of excessive sentences. Article 930.10 of Louisiana’s Code of Criminal Procedure, for example, may provide a novel answer for people like Elijah. This statute, which was added to the code books only in 2021, authorizes postconviction plea agreements that “amend[] the petitioner’s conviction, sentence, or habitual offender status.”172

In short, Article 930.10 is a sea change in postconviction procedure. Usually, collateral proceedings are governed by “a twisted labyrinth of deliberately crafted legal obstacles” that constrain a court’s ability to revisit a final judgment.173 Under Louisiana law, for instance, all postconviction claims must be brought within two years of a conviction becoming final.174 Additionally, the Post-Conviction Relief Act imposes a procedural default rule that prohibits collateral review of arguments that could have been raised at previous stages but were not argued at that time.175 Therefore, unless an individual challenged the harshness of their sentence in their initial appeal and then renewed that challenge within just two years of their conviction becoming final, they generally cannot raise a future claim arguing that their sentence is excessive. Consequently, these postconviction procedural rules block individuals serving long sentences from arguing that they have become rehabilitated behind bars and that their sentence thus no longer makes any “measurable contribution to acceptable goals of punishment.”176

Article 930.10 cuts directly through these procedural barriers and permits substantive review of time-barred sentences and convictions. Specifically, if the defense and prosecution reach a postconviction agreement, Article 930.10 allows the parties to “deviate from any of the provisions” of the Post-Conviction Relief Act, regardless of “any provision of law to the contrary.”177 So long as the trial court approves the agreement,178 the parties can effectively bypass the two-year statute of limitations and any other procedural default rule.

In an era where stories of wrongful convictions have become all too commonplace,179 a number of states have amended their postconviction procedures to allow for greater review of problematic convictions and sentences.180 None go as far as Article 930.10, which is unprecedented in its ability to waive any and all procedural barriers to review. In my own practice, this statute has permitted me to seek justice for folks like Elijah who otherwise have no meaningful avenue through which to revisit their sentences. Over their decades of incarceration, many of my postconviction clients have worked tirelessly toward rehabilitation. One individual who grew up in an underserved community could not read or write at the time of his arrest. After nearly fourteen years of incarceration on a habitual-offender sentence for a nonviolent drug offense, he painstakingly taught himself to read and recently earned his GED. With those new skills and credentials, he has become eligible for programming at his prison that seeks to address the root causes of his misconduct. The court and prosecutor who imposed an enhanced sentence four times longer than his original prison term likely could not have anticipated these developments. Without Article 930.10, they would have no legal means of evaluating his progress and reexamining his sentence.

C. Drawbacks of Procedural Reforms

As Elijah’s case demonstrates, reforms like Article 930.10 are certainly beneficial given the status quo. However, a system that permits decades-long sentences for petty crimes while providing only a mere possibility for a postconviction plea agreement is still suboptimal. Such a case-by-case approach to resentencing will necessarily be slow and incomplete. Furthermore, the vague prospect of release can take a serious psychological toll on incarcerated people.181

More fundamentally, an overreliance on postconviction procedures like Article 930.10 may have “perverse” effects on constitutional rights other than the freedom from excessive punishments,182 such as the right to a jury trial. As Professor William Stuntz explains, “Procedural rules make broader criminal liability more attractive, since the latter can be used as a device for evading the costs of the former.”183 Therefore, enacting procedural rules without substantive constraints may actually “give the government an incentive to generate bad substantive rules.”184

In the case of habitual-offender laws, this risk of perverse results is not merely theoretical. As described above, prosecutorial threats of filing a multiple bill have already induced hundreds of guilty pleas from individuals who forwent their right to a jury trial to avoid an enhanced sentence upon conviction.185 The availability of a postconviction remedy may amplify these pressures: for instance, prosecutors may threaten harsher sentences before trial, with the understanding that litigants have future opportunities to seek leniency. Additionally, the existence of a postconviction procedural mechanism to undo plea agreements may make it more appealing for individuals to take a deal up front and then argue for relief later.186 In both scenarios, then, procedural reforms like Article 930.10 may further deter the exercise of jury-trial rights.

D. Additional Procedure-Based Reforms: Periodic Sentencing-Review Hearings

Though imperfect, Article 930.10 represents a realistic avenue for combating unjust punishments. It contemplates case-specific adjudications and provides further opportunities for postsentencing review beyond the usual two-year window permitted under the Post-Conviction Relief Act. However, Article 930.10 relies on the parties to initiate sentencing review. A legislature could easily extend Article 930.10 to create automatic periodic postconviction sentencing-review hearings—that is, hearings that do not depend on the parties to initiate. Under such a regime, trial courts would hold status hearings every few years to evaluate the progress and utility of lengthy sentences. The courts could then reduce or suspend sentences that no longer serve their original purposes.187 Given that Louisiana law prohibits sentences that “make[] no measurable contribution to acceptable goals of punishment,”188 this periodic review is arguably necessary to ensure that a sentence does not become excessive.

Although these hearings may burden already crowded trial courts, trial courts are ideally positioned to conduct postconviction sentencing-review hearings: they regularly oversee the probation of individuals they sentence,189 and sentencing-review hearings could occur far less frequently than probation status hearings.190 In addition, Louisiana, like many other states, requires petitions for postconviction relief to be filed in “the district court for the parish in which the petitioner was convicted.”191 Given that trial courts already must field collateral appeals, scheduling periodic sentencing review hearings aligns with this longitudinal review function. In fact, sentencing-review hearings may actually streamline adjudication of postconviction petitions, which could be scheduled simultaneously. Though these sentencing reviews would, of course, increase the toll on judicial resources, “considerations of cost cannot carry the day when a constitutional interest as fundamental as bodily liberty is at stake.”192

Finally, although these sentencing-review hearings may appear to undermine the finality of a criminal conviction,193 this concern must be balanced against the underlying constitutional values of dignity and humanity, which the prohibitions on excessive sentencing seek to vindicate.194 As Angela Davis observed, “[P]risons do not disappear problems, they disappear human beings.”195 Therefore, elevating finality erases the reality of individuals condemned to languish behind bars for interminable sentences but who should ultimately return to the outside world.


Through a novel postconviction procedure, my client Elijah—sentenced to die in prison for snatching a purse—was able to walk free after receiving a new, more humane sentence. Countless others like him remain incarcerated on extreme sentences.

By limiting the scope of the Eighth Amendment in noncapital cases, the U.S. Supreme Court has permitted states to enact habitual-offender laws like Louisiana’s that facilitate draconian sentences. Without meaningful substantive restraints or a reinvigorated Eighth Amendment, individuals must resort to a weak set of procedural protections to combat excessive noncapital punishment. Though this prognosis may seem bleak, creative procedural mechanisms like the Article 930.10 postconviction plea statute or a system of postconviction sentencing-review hearings may mitigate the harm of severe sentences.

Matt Kellner wrote this Essay as a Yale Law Journal Public Interest Fellow and Staff Attorney with the Orleans Public Defenders. The Author owes a debt of gratitude to Eshan Dabak and the editors of the Yale Law Journal Forum for their diligent work and thoughtful, encouraging feedback throughout the editing process. In addition, the Author would like to thank Sarah O’Brien, Beth Sgro, and all his colleagues in the Special Litigation Unit, the Re-Sentencing Unit, the Training Class of 2021 at OPD, and Michael Tayag for their constant support and brilliant insights. Most of all, the Author thanks all the individuals who have permitted him to share their stories in court and beyond.