The Yale Law Journal

May 2020

Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences

Constitutional LawCriminal Law

abstract. The deprivation of a fundamental right triggers strict scrutiny, and freedom from physical restraint is a fundamental right. Indeed, the right to be free from physical restraint lies at the very core of the liberty protected by the Due Process Clause. In the contexts of pretrial detention and civil commitment, courts hold that due process prohibits unnecessary incarceration and requires the government to prove the necessity of incarceration in each individual case. Without explanation, courts do not apply these same principles to criminal sentences, which just as surely infringe on physical liberty. This Note argues that they should: there is no good reason to exempt sentences of confinement from the fundamental due-process right to freedom from physical restraint. If the government cannot prove that a criminal sentence is necessary to achieve a compelling state interest, the sentence is unconstitutional, even when it is purportedly required by a statute establishing a “mandatory minimum sentence” for the crime of conviction. The Note discusses how courts should implement this scrutiny and suggests that state courts should lead the way in doing so.

author. Yale Law School, J.D. 2019; Trial Attorney, Federal Defenders of San Diego. For their invaluable feedback, I am indebted to Sebastian Brady, Stephen Bright, Eric Fish, Miriam Gohara, Katie Hurrelbrink, Alec Karakatsanis, Gabe Newland, Cody Poplin, Kelley Schiffman, Christopher Tutunjian, Max Schoening, and Matt Wasserman, and the editors of the Yale Law Journal, particularly Rosa Hayes, Briana Clark, Peter Kallis, Josh Blecher-Cohen, and Ela Leshem. I owe special thanks to Alec; his ideas inspired this Note and his support has been indispensable.