The United States is in the midst of an incarceration crisis. Over-incarceration is depleting state budgets and decimating communities. It has also led to the overfilling of prisons, which has degraded conditions of confinement, increased violence, and reduced access to needed medical and mental health care. Judicial sentence modification offers a means to address both the phenomenon of over-incarceration and harsh prison conditions that threaten unjust punishment. Indeed, some legislatures have framed states’ early release provisions as fulfilling goals of proportionality and just punishment. Proportionality is also an express purpose of the proposed Model Penal Code provisions on judicial sentence modification.
This paper explores whether the tools available to judges at sentence modification hearings are adequate to respond to the unjust punishment experienced by prisoners. In examining this question, the article focuses on one population particularly likely to experience disproportionate or inhumane punishment: inmates with serious mental disorders. A deep literature suggests that individuals with serious mental illnesses are especially likely to be victimized by staff and inmates, to be housed in isolation, and to experience an exacerbation of mental illness while incarcerated. This article’s analysis reveals a gap in remedial coverage for some members of this population. In particular, existing remedies are inadequate to respond to the plight of those prisoners who must remain incarcerated, but for whom incarceration in current conditions constitutes a disproportionate or inhumane punishment. To remedy this shortcoming, the article proposes that states authorize judges, upon a finding of past and likely future unjust punishment, to modify a mentally disordered prisoner’s conditions of confinement. Only with such expanded authority will the process of sentence modification allow judges to reserve prison for those who deserve it and ensure that continued confinement will be a just and appropriate sanction.
E. Lea Johnston, Modifying Unjust Sentences, 49 Ga. L. Rev. xx (2015), available at http://scholarship.law.ufl.edu/facultypub/632