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What Happens When Sentences Are Ruled Unconstitutional?

By Molly Zilli, Esq. | Last updated on

The fascinating thing about law is that it's always changing. Whether legislators create new ones or the judiciary clarifies or invalidates existing ones, what was legal yesterday might not be legal tomorrow. This is certainly true in the realm of criminal procedure and criminal justice, where prosecutors, law enforcement, defense attorneys, and civil rights activists all battle over what justice and public safety look like.

But what happens when the law changes? Does it also change for people convicted before the new law took effect? For example, of interest to the U.S. population living in prison, what happens when sentences are ruled unconstitutional?

Juvenile Justice

A good example of this scenario is the issue of juvenile sentencing, though it also comes up with regard to drug offenses and the death penalty. In 2005, the Supreme Court ruled that sentencing juveniles to death was unconstitutional. In 2010, the Court said juveniles could only be sentenced to life without parole in very extreme cases. And in 2012, they decided that mandatory life sentences without the possibility of parole were unconstitutional. So, what then for all of the adults still serving time whose sentences would be considered unconstitutional if applied to a person convicted today?


The answer is, it depends. In many cases nothing happens. When the court announces a new rule, they don't always say whether that rule is retroactive or not. And when they do consider it, they often decide against retroactivity, leaving the states to decide whether or not to apply it to cases decided before the change. In the case of juvenile sentencing, the Supreme Court initially left it up to the states, but in 2016 they decided that their earlier ruling banning mandatory life sentences for juveniles must be applied retroactively.

The Mercy Rule

Some argue that when a type of sentence is ruled unconstitutional, those previously sentenced under that rule should automatically be given a lighter sentence. This is known as the mercy doctrine. Others argue that this would be too administratively laborious and that it goes against the principle of finality, an important aspect of the justice system.

To that, mercy doctrine proponents contend that if a sentence is ruled unconstitutional today, someone who received that same sentence 10 years ago shouldn't be forced to serve it. As Amanda Solter, a mercy doctrine researcher, explains, "The idea that it is administratively challenging or logistically difficult sounds like such a cop out when you are talking about people's lives."

Even without the mercy doctrine, there are options for appealing someone's sentence. Contact an attorney to discuss your options if you know of someone whose sentence should be reconsidered.

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