Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences

The Yale Law Journal (2020)

Full Citation

Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences, 129 Yale L.J. 1946 (2020)


Salil Dunani


The Yale Law Journal


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.