Second Looks & Criminal Legislation

Abstract

This Essay explores the relationship between second-look sentencing and retributive theory by focusing on the primary vehicle for authorizing and distributing punishment in most American jurisdictions: criminal legislation. Looking beyond debates over the import of evolving norms to desert judgments, the Essay argues that the central retributive issue presented by second-look policies is whether the long-term punishments imposed by criminal courts comport with the proportionality standards of any period. Using the District of Columbia’s criminal statutes as a case study, the Essay explains how three pervasive legislative flaws—statutory overbreadth, mandatory minima, and offense overlap—combine to support (and in some instances require) extreme sentences for actors of comparatively minimal blameworthiness. The Essay argues that this finding, when viewed in light of the structural forces driving prosecutorial and judicial decision-making, provides reason to doubt the systemic proportionality of the severe punishments meted out in the District, as well as in other jurisdictions that suffer from similar legislative and structural problems. It also explains why this epistemic uncertainty supports authorizing courts to reevaluate (and in appropriate cases reduce) severe punishments through second-look sentencing reform—both in the District of Columbia and beyond.