To Prisoners
I call for you cultivation of strength in the dark.
Dark gardening
in the vertigo cold.
in the hot paralysis. Under the wolves and coyotes of particular silences.
Where it is dry.
Where it is dry.
I call for you cultivation of victory Over
long blows that you want to give and blows you are
going to get.
Over
what wants to crumble you down, to sicken
you. I call for you
cultivation of strength to heal and enhance
in the non-cheering dark,
in the many many mornings-after;
in the chalk and choke.
--Gwendolyn Brooks1
Here is a land that never gave a damn
About a brother like me and myself
Because they never did
--Public Enemy2
INTRODUCTION
The United States has the highest incarceration rate of any country in the world.3 The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably.4 While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration.5
Rather, states have vastly different incarceration rates.6 Unlike at the federal level, where courts are bound by uniform sentencing guidelines, state courts have no such mandatory measures in place; this allows for states to implement sentencing systems and criminal codes that are entirely independent of other states’ procedures nationwide.7 Data published on states’ laws concerning criminal punishment shows that legislatures have adopted widely varying statutory approaches to both defining and determining criminal sentencing.8 One focus of this Note is to elucidate the varying state legislative approaches that result in arbitrary sentencing of the same crimes under similar circumstances, and by similar individuals, even amongst states that border one another.9 This Note further focuses on how this problem extends to the states’ judiciaries, given the data showing that state judges are afforded high levels of autonomy in determining sentencing.10 This self-governing judicial framework allows for deviations from state sentencing guidelines, which proves to be highly problematic in regions of the U.S., such as the Deep South, that are statistically proven to employ much harsher criminal sentences than other regions.11 Deep South states’ deviation from sentencing system guidelines contributes heavily to the overall rise in mass incarceration across the United States when looking at the national average.12
This Note first explores the Deep South’s contribution to mass incarceration in the United States, specifically, the national average. To accomplish this end, this Note provides an in-depth analysis of state prison incarceration data collected, synthesized, and analyzed by this Note’s author. Next, this Note discusses how the variation in criminal sentencing between states contributes to “geographic discrimination”13 and how such discrimination threatens individuals’ rights to equal protection under the Fourteenth Amendment.14 This Note then provides a modern take on possible solutions provided by the Fourteenth Amendment whereby individuals may challenge disparate sentencing in the Deep South on the basis that such disparities are a form of geographic discrimination that fails the Rational Basis Test.15
Conversely, it is important to highlight a topic that this Note does not discuss at great length but is fundamental to understanding the problem of mass incarceration in the U.S.: racial discrimination. It is essentially impossible to disentangle discussions of mass incarceration in the Deep South from discussions about racial inequities in the American legal system. The two are so closely intertwined that this Note’s scholarly dialog would be deficient without an acknowledgment that mass incarceration in the U.S. is predicated on carceral inequalities. The links between slavery and the carceral state should come as no surprise to the reader, as the bond between the two is quite literally written into the Thirteenth Amendment to the United States Constitution.16
Although racial discrimination in the Deep South is not the outright focus of this Note—many other scholars have tackled this subject—it remains an underlying ugly truth that is woven into the conversation throughout. Rather than illuminate an already expansive area of jurisprudence, the Author has sought to address racial disparities in sentencing through an alternative lens—one that might be more palatable to state courts unwilling to reflect honestly about racial inequities in criminal sentencing. That approach is through arguing an alternative method of challenging convictions: not on the basis of racial discrimination, but instead based on geographic discrimination.
If cases like McCleskey v. Kemp have taught us anything, it is that courts—even our nation’s highest Court—are uncomfortable with and illequipped to handle the presentation of data showing disparate treatment of Black Americans during sentencing.17 This Note seeks to resolve that discomfort by taking race out of the conversation, at least in part. Consider the possibility of attenuated protests from state court judges in the Deep South presented with data on discriminatory sentencing practices and policies that are predicated not on racial bias but instead on some other more neutral form of discrimination, such as geographic discrimination. This raises the question this Note’s Author encourages the reader to grapple with: would courts respond more positively to such appeals?
I. ARBITRARY PRACTICES & THEIR IMPACTS
A. Below the Mason-Dixon, Above the National Average: The Effect of the Deep South on National Incarceration Statistics
The Deep South has long been considered the epicenter of mass incarceration in the United States.18 To date, a handful of southern states have spearheaded the charge, bolstering unprecedented rates of adult incarceration, lengthy prison sentences, harsh mandatory minimum penalties, and refusal of parole, amongst other factors.19 Crime and punishment have led to mass incarceration becoming a dominant industry in the Deep South. By 2008, the top five states with the highest adult incarceration rates were in the South: Louisiana led the way, with a staggering one out of every fifty-five residents incarcerated;20 then Mississippi, Georgia, Texas, and Alabama rounded out the top five.21
To begin, this Section explains the extent to which the above-enumerated Deep South states contribute to mass incarceration in the U.S. This explanation centers around an in-depth analysis of data collected by the Author, presenting a comparison between the U.S. average and the analyzed states’ totals.22 This Section further provides explanations for the data provided in the Tables and then details and analyzes the uniquely problematic practices of each Deep South state. Finally, this Section provides a broad outlook on the lasting effects of the states’ practices on the national incarceration rate and the compelling urgency of this matter.
1. Figures Don’t Lie: Deep South & National Mass Incarceration Statistics23
Prison Incarceration Rates (Per 100,000 People)24
Table 1.1: Prison Incarceration Rates—Including Federal Jurisdiction25
Region | Incarceration Rate | Difference to National Average (%) |
|---|---|---|
U.S. Average | 355 | 100% |
Alabama | 390 | 109.86% |
Florida | 377 | 106.20% |
Georgia | 435 | 122.54% |
Louisiana | 596 | 167.89% |
Mississippi | 661 | 186.20% |
Texas | 452 | 127.32% |
Table 1.2: States’ Incarceration Rates—Not Including Federal Jurisdiction26
Region | Incarceration Rate | Difference to National Average (%) |
|---|---|---|
U.S. Average | 311 | 100% |
Alabama | 390 | 125.40% |
Florida | 377 | 121.22% |
Georgia | 435 | 139.87% |
Louisiana | 596 | 191.64% |
Mississippi | 661 | 212.54% |
Texas | 452 | 145.34% |
Table 1.3: States’ Adult Incarceration Rates27—Not Including Federal Jurisdiction28 (Adult Population Only)
Region | Incarceration Rate | Difference to National Average (%) |
|---|---|---|
U.S. Average | 397 | 100% |
Alabama | 500 | 125.94% |
Florida | 446 | 112.34% |
Georgia | 565 | 142.32% |
Louisiana | 775 | 195.21% |
Mississippi | 859 | 216.37% |
Texas | 601 | 151.39% |
Prison Incarceration Totals29
Table 2.1: Prison Incarceration Total—Including Federal Jurisdiction30
Region | Incarceration Total | Contribution to Total (%) |
|---|---|---|
U.S. Total | 1,185,648 | -- |
Alabama | 19,877 | 1.68% |
Florida | 84,678 | 7.14% |
Georgia | 47,813 | 4.03% |
Louisiana | 27,296 | 2.30% |
Mississippi | 19,442 | 1.64% |
Texas | 137,035 | 11.56% |
States’ Sum | 336,141 | 28.35% |
Table 2.2: Prison Incarceration Total—Not Including Federal (Adult Population Only)31
Region | Incarceration Total | Contribution to Total (%) |
|---|---|---|
U.S. Total | 1,039,540 | -- |
Alabama | 19,877 | 1.91% |
Florida | 84,678 | 8.15% |
Georgia | 47,813 | 4.6% |
Louisiana | 27,074 | 2.60% |
Mississippi | 19,442 | 1.87% |
Texas | 137,035 | 13.18% |
States’ Sum | 335,919 | 32.31% |
2. Decoding the Data
When looking at the data provided above, the reader should consider the following. On the most basic level, the tables above exemplify the malleable nature of statistical data once it is filtered. Table 1.1 represents the largest set of data: people of all ages, including individuals sentenced in state or federal courts. Table 1.2 represents people of all ages, but only those who were convicted and sentenced in state courts. Table 1.3 similarly provides only state jurisdiction data but has additionally been filtered to reflect only the adult population. The same methods are employed in Tables 2.1 and 2.2. One broad takeaway for the reader might be that although the census data remains the same throughout all five Tables, the way the data is filtered has a significant impact on the results. Foundationally, though, the data reflected in these Tables—measuring variations of the incarceration rate and incarceration total—is offered to provide a perspective on how many people are incarcerated nationwide. To best understand what these values mean, it is first necessary to define “people.”
Because data can be refined in a variety of ways to reflect a desired subset of the population, it is important to clarify which individuals are represented in the data set.32 For example, the incarceration rate detailed in Table 1.1—355 out of every 10,000—represents all people in the United States, meaning people of all ages, not just adults. The Author of this Note has opted to give the reader a complete picture of mass incarceration in the U.S. today. Accordingly, Tables 1.1 and 1.2 have been included to provide data on both adult and youth offenders, filtering out only federal jurisdiction in Table 1.2.
However, by including all people accounted for in the U.S. census, even juveniles, the incarceration rate is necessarily skewed downwards because youths are significantly less likely to be incarcerated than adults.33 It should be noted that the national incarceration rate is significantly higher when filtered to include only adults—453 out of every 100,000 adults, compared to 355 for people of all ages.34 The same is true of the incarceration rate when federal convictions are filtered out, as indicated by comparing Tables 1.2 and 1.3.
Understanding that no one table gives the full picture of incarceration in the U.S., the Author nonetheless suggests that the reader direct their attention primarily to Tables 1.3 and 2.2. That is because this Note focuses on specific states’ contributions to the national mass incarceration crisis, and on potential remedies available to adult citizens. Accordingly, this Note’s analysis primarily centers around Table 1.3 for the discussion of incarceration rates and Table 2.2 for the discussion of incarceration totals because those tables are filtered to show only data pertaining to state jurisdiction amongst the U.S. adult population.
3. Imparting the Importance: Why the National Incarceration Rate Matters
Comparing the national rate to the individual rates of states in the Deep South, it is clear that the Southern states analyzed are skewing the national average. Compared to the overall U.S. prison incarceration rate, Mississippi tops the list, bolstering a rate that is 116% higher than the national average. Louisiana then follows with a rate that is roughly 95% higher; Texas’s rate is 51% higher; Georgia’s rate is 42% higher. Alabama and Florida fall at the bottom of the analyzed states, with Alabama’s rate being nearly 26% higher than the national average, and Florida coming in at roughly 12% above the national average. Thus, every state in the Deep South exceeds the national incarceration rate average by at least double digits. Moreover, as of December 31, 2022, the top two states with the highest imprisonment rates were Mississippi and Louisiana, respectively.35
More important, perhaps, than the comparison between each state’s individual incarceration rate and the national average is the percentage that each state contributes to that average. Tables 2.1 and 2.2 outline the six states analyzed and compute each state’s individual contribution to the national incarceration rate.36 Notably, the far-right column of Table 2.2 lists the percentage sum of the six Deep South states. That value indicates the six states’ contribution percentage to the national total. The data shows that these six states encompass 32.31% of all adult prisoners in state penitentiaries across the U.S. While this metric might not appear facially remarkable, its significance takes form when considering what exactly constitutes that number. At its core, the data shows that six states comprise nearly one-third of the incarcerated individuals in the nation’s state prisons. Expressed differently, six states—comprising only 12% of the fifty U.S. states—incarcerate over 32% of the nation’s total of individuals in state prisons.
B. Habitual Offender Laws
Arbitrary sentencing is further exacerbated by judges and juries, whose sentencing decisions revolve around statutory schemes that seek purely punitive or retributive results, such as Louisiana’s Habitual Offender Statute.37 The Habitual Offender Statute requires that individuals convicted of two or more felony crimes be subjected to longer and harsher sentences with each subsequent felony conviction.38 The law is premised upon the idea that individuals with multiple convictions cannot be rehabilitated, and higher incarceration rates make communities safer. This law, like many others enacted in the Deep South, is the product of decades-long bolstering of “tough-on-crime” attitudes that have led to sentencing approaches focused solely on punishment, rather than redemption or rehabilitation.39
Yet, research shows enactments of these hard-on-crime tactics often do not have the desired effects and can sometimes lead to devastating unintended consequences. For instance, a study conducted by the U.S. Department of Justice (DOJ) on Alabama’s Habitual Felony Offender Act40 showed that the prospect of Life Without Parole (LWOP)41 removed all incentive for good behavior; instead of deterring crime, many surveyed individuals voiced concerns that the Act would encourage offenders to kill witnesses to avoid a fourth conviction equating to LWOP.42 Similar to the issues surrounding Alabama’s Habitual Felony Offender Act, Louisiana faces setbacks due to its Habitual Offender Law.43 Of the two, Louisiana’s habitual offender law is notably stricter because it only allows for only two offenses before imposing LWOP: one prior and one current, whereas Alabama’s law is a “three-strikes” law. Akin to Louisiana, Mississippi has implemented a habitual offender law that similarly singles out repeat offenders, subjecting them to the same disadvantages intrinsically tied to the habitual offense laws.44 Repeat offenders are often maligned despite many not being violent offenders, making it one of the harshest habitual offender laws in the nation. For example, the Mississippi Criminal Code authorizes the sentencing of habitual criminals to “maximum term[s] of imprisonment,”45 including life imprisonment after committing two felony offenses and other archaic criminal punishment enhancements.46 Specifically, this portion of the Code states every person convicted in Mississippi of a felony with two prior felony convictions “shall be sentenced to the maximum term of imprisonment prescribed for such felony . . . , and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.”47
Georgia has also adopted a similar scheme.48 Its Habitual Offender Statute provides increased lengths of sentencing for repeat offenders, effectively increasing punishment despite the severity of the crime, severely limiting the eligibility for parole with each added offense, and striking the possibility of parole for individuals convicted of a fourth felony offense.49 Finally, as with previously discussed states, Texas adheres to a strict “three strikes” law for repeat and habitual felony offenders.50 Like Mississippi’s law, under Texas’s habitual offender statute, judges are forced to impose harsh sentencing enhancements upon individuals convicted of three felonies, regardless of whether they are violent felonies.51
C. Sentencing Credits: Olive Branches or Empty Promises?
1. “Earned Time” versus “Good Time”
Defined Sentence credit policies vary by state;52 information on the applicability of sentencing credits for individuals incarcerated in state prisons is explicitly written in each state’s statutes.53 The National Conference of State Legislatures delineates two separate divisions of sentencing credit policies: “earned time” and “good time.”54 Earned time is a credit against a sentence or period of incarceration—unless otherwise denoted by the state legislature—that the individual earns for participating in or completing various productive activities.55 Earned time credits are distinguished from and can be offered in addition to good time credits, which are awarded for participating in required activities and following required prison rules.56 As such, the main difference between good time and earned time is that good time is awarded for obeying mandatory requirements, whereas earned time is awarded for going above and beyond what is required.
2. Restrictions
Although most states have incorporated good time and earned time sentencing credits into their criminal statutes, each state’s statutory scheme is unique. Where states in the Deep South are particularly individualistic is in their decisions to restrict or limit the availability or circumstances of these credits offered.
a. Let the Good Times Roll. . . Up to a Point (Florida, Louisiana, & Mississippi)
Louisiana allows for both good time and earned time.57 However, Louisiana restricts good time based on the kind of conviction.58 For example, good time does not apply to sentences of individuals presently serving terms for violent crimes or sex offenses and inmates categorized as “habitual offenders.”59
Similarly, although Mississippi allows for both good time and earned time, it places a unique limitation on good time by requiring that individuals have “trusty status.”60 This limitation means incarcerated individuals are only eligible for earned time if their participation in various programs is deemed satisfactory.61 Further, despite falling within trusty status, various individuals are ineligible for a reduction in their sentences if the offender: (1) was sentenced to life imprisonment;62 (2) was convicted as a habitual offender;63 or (3) was convicted of a sex crime; or has not served the mandatory time required for parole eligibility.64 Mississippi’s high incarceration rate and strict limitations on good time also exacerbate some of Mississippi’s most glaring issues, such as its felony disenfranchisement rate, which is the highest in the nation at roughly 11%.65
Florida allows for both good time and earned time;66 however, Florida places restrictions on both forms of sentence credits.67 Such restrictions come in various statutory forms, such as capping participation in two of the three categories of possible earned time—education and vocation—to one-time awards.68 These restrictions have proven to be a massive encumbrance upon incarcerated individuals’ abilities to lessen the burdens of their sentences due to their application with Florida’s “Truth in Sentencing” procedures—sometimes also called the 85% rule—which mandates that incarcerated individuals serve at least 85% of their sentence.69 The 85% rule applies regardless of the severity of the crime.70 The result is that any credits earned that would ordinarily reduce an individual’s sentence beyond 15% effectively have no benefit, meaning no additional sentence reduction.71 When coupled with Florida’s parole abolition for crimes occurring after 1983, decarceration of the state’s prison population is nearly impossible.72
b. Here for a Good Time, Not for Earned Time (Alabama)
Alabama allows for good time but not earned time.73 Further, individuals may not receive correctional incentive time if the incarcerated individual: (1) has been convicted of a class A felony; (2) has been convicted of any crime that caused the death of another person by means of a deadly weapon; (3) has been sentenced to life, sentenced to death, or received a sentence of more than fifteen years; or (4) has been convicted of a sex offense involving a child.74 These exceptions are especially problematic because they exacerbate Alabama’s existing issues with prison overcrowding and overlap with the state’s rigid three-strikes law.75
c. Earned Time’s Not a Good Time (Georgia)
Georgia does not allow for the award of any good time and has further opted to allow for only minimal earned time under its current laws.76 Such earned time awards are seriously constrained by the various limitations that bar individuals from ever accumulating meaningful sums of sentence reduction earned time. Amongst these limitations is the cap on earned time, which confines the accrual to “up to one day per one day of participation,” and it can only be earned through education or work.77 Georgia is unique in this regard.
d. Where Time Stands Still (Texas)
Texas is also unique in its stringent application of sentencing credits. Texas allows both good time and earned time.78 Yet, both forms of good conduct credits apply only to the eligibility of parole and do not otherwise lessen the term of a Texas inmate’s sentence.79 Ultimately, this means that inmates who are ineligible for parole—including those on death row and those serving LWOP or life sentences for capital felony offenses—cannot and will not ever benefit from accrued credits.80 Where Texas encounters significant obstacles is in relation to the sheer number of inmates who are ineligible for these sentencing credits—as represented by the enormous mass of individuals in Texas state prisons81—and particularly, the large number of those inmates serving LWOP and death sentences.82 Further, the abundance of individuals ineligible for such credits is especially onerous on Texas’s already maladaptive criminal carceral system, primarily due to its enforcement of sentencing enhancements.
Texas is one of only a handful of states in the U.S. that has enacted enhanced mandatory penalties for felonies.83 Enhancements are provisions that raise the minimum sentence based on various aspects of both the crime and the individual. With increased mandatory sentences, judges have little autonomy to correct overly harsh penalties for those found guilty of even minor offenses. For example, a recent news story detailed the conviction of Larry Dayries, a Texas man who was sentenced to seventy years in prison for stealing a sandwich from Whole Foods.84 This sentence length is standard procedure under Texas’s current sentencing scheme due to Dayries’s prior convictions for burglary and theft.85 In this way, Texas perfectly embodies the way in which the Deep South states’ differing approaches lead to blatantly arbitrary enforcement and results. Stories such as Mr. Dayries’s also humanize the issue, giving it greater depth than what statutory language alone conveys.
II. HUMANIZING THE DATA: THE PROBLEMATIC PRACTICES FESTERING IN THE DEEP SOUTH
Although data can prove remarkably helpful when identifying the degree to which an issue is problematic, numbers alone fail to fully explain both why the data is skewed a certain way and how the data developed to this point.86 A deeper dive into the individual practices of each of the analyzed Deep South states provides a more human component to the research, one that elaborates on how exactly these states became the epicenter of mass incarceration in the U.S. and provides a framework for addressing the damage that has already been done. The primary focus of this Section is to highlight the problematic practices of each of the six states analyzed and then explain why such practices produce arbitrary sentencing results.
Black’s Law Dictionary defines “arbitrary” in two ways:
Depending on individual discretion; of, relating to, or involving a determination made without consideration of or regard for facts, circumstances, fixed rules, or procedures.
(Of a judicial decision) founded on prejudice or preference rather than on reason or fact.87
While analyzing each state’s unique—and often grievous—incarceration practices is central to understanding the problem, questioning whether these practices conform to or deviate from standard procedure across the United States is paramount. The following Section explores this quandary in greater detail, focusing on the arbitrary nature of each Deep South state’s incarceration procedures. The analysis in this Section is centered around Louisiana, the state most widely recognized for its arbitrary sentencing practices.88 To supplement, this Section also analyzes other states’ adoption of similarly harsh schemes as well as their own uniquely arbitrary sentencing practices.
A. Tour de Trouble: Major Issues Arising in the Deep South
1. Louisiana: Incarceration Capital of the World89
Louisiana is frequently referred to as the “incarceration capital of the world.”90 This is primarily attributed to the fact that Louisiana incarcerates more individuals for non-violent crimes than any other state in the nation.91 Another critical factor in Louisiana’s hefty incarceration rate is the proliferation of sentence durations for nonviolent crimes.92 A prime example is that of twenty-two-year-old Brian Martin, who received a twenty-fouryear sentence—without the possibility of parole—for the burglary of a vehicle’s stereo and steering wheel.93 Martin initially faced life without parole, a sentence his attorney vehemently argued against, noting that other states would issue vastly shorter sentences, if any, for petty crimes.94 In Louisiana, Martin’s case is no outlier. Rather, it exemplifies the norm. His case is a prime example of the arbitrariness of Louisiana’s criminal sentencing because it highlights how other states do not follow similar procedures. In fact, many U.S. states take the opposite approach, refusing to dispense prison sentences for non-violent crimes. This trend follows a surfeit of recent studies highlighting the benefits of not prosecuting non-violent crimes at both the misdemeanor and felony levels.95 Yet, Louisiana does not ascribe to these modern trends in criminal justice research.
Instead, research shows Louisiana’s lofty incarceration rate is both explained and exacerbated by the vast number of people serving LWOP and “virtual life”96 sentences.97 In Louisiana, this accounts for a staggering one out of every five people incarcerated.98 Given the arbitrariness of LWOP statutes, such as mandatory LWOP and other minimum sentencing requirements, the sheer number of individuals serving LWOP is especially concerning.99
For example, Louisiana is one of only two states in the nation to impose mandatory LWOP for second-degree murder convictions.100 This practice is uniquely troublesome because Louisiana law does not distinguish between the individual who actually committed the killing and another involved party; both would be charged with second-degree murder.101 As such, many individuals convicted of second-degree murder and sentenced to LWOP have never killed anyone or even committed a violent act.102 The magnitude of this issue is encompassed in the statistics showing that roughly 53% of inmates are serving LWOP for second-degree murder convictions.103
2. Alabama: Most Overcrowded Prisons in the Nation
Alabama is home to the most overcrowded prisons in the country, currently at 151% capacity.104 In recent years, Alabama has garnered an onslaught of media attention over various prison crises, eventually drawing the attention of the DOJ.105 The DOJ conducted two separate investigations within a fifteen-month period and ultimately filed a lawsuit against the state of Alabama, alleging “constitutional deficiencies” within its state prisons.106 The lawsuit specifically addressed the DOJ’s concerns about how Alabama’s severely overcrowded prisons contribute to unsafe, unsanitary, and increasingly violent conditions.107 However, even after sentencing reforms were passed in 2017, recent legislation concerning the Alabama Board of Pardons and Paroles has severely diminished the parole chances of currently incarcerated people.108
3. Florida: Oldest Prison Population in the South
Florida still adheres to a “Truth in Sentencing” rule,109 which requires incarcerated people to serve at least 85% of their sentences, regardless of any demonstration of rehabilitation.110 Florida’s abolishment of parole for crimes after October 1983 also makes it nearly impossible to decarcerate in the manner of other states.111 As a result, Florida has the oldest prison population in the South, a group whose care is increasingly expensive.112
Furthermore, Florida adheres to a criminal statute colloquially called the “10-20-life” law that imposes lengthy mandatory minimum sentences upon its population;113 its application results in exceedingly stringent sentencing that is not implemented by the vast majority of other U.S. states. Florida’s “10-20-Life” law requires judges to order mandatory minimum sentences of ten years, twenty years, or twenty-five years to life for the commission of certain convictions for felonies involving the use or attempted use of a firearm.114 The penalties become harsher if the firearm used is an assault weapon or machine gun.115 In those cases, judges must impose a sentence of fifteen years, twenty years, or twenty-five years to life.116
4. Georgia: The Nation’s Capital Punishment Capitol
Georgia similarly adheres to a handful of problematic criminal sentencing policies that have plagued the state’s prisons and produced arbitrary sentences for decades. Among those factors most responsible for exacerbating lengthy imprisonment terms is Georgia’s parole system, which disallows discretionary parole for the majority of violent offenders and for habitual offenders.117 Further issues arise out of Georgia’s practice of allowing for discretionary LWOP for both adults and juveniles.118 Further issues arise due to a lack of structure for judges and juries, given Georgia’s absence of a formal sentencing guidelines system.119 The result is similar to that of states such as Louisiana that have a guideline system, yet the system is inherently deferential to judicial opinion. Without a sentencing guideline system, the capacity for arbitrary and capricious sentencing is enormous. Although Georgia has no formal sentencing guideline system, the state still maintains sentencing statutes, such as the Habitual Offender Statute discussed previously.120
5. Texas: Largest Incarceration Population Anywhere in the World
If each state in the United States were its own country, Texas would have the largest number of incarcerated people of any country in the world. The sheer number of individuals incarcerated in the state’s prisons is astronomical, totaling 137,035 people.121 Though the state has a significant population, the number of individuals incarcerated in Texas is high both in relation to its population size and in relation to the rest of the world. Given the large portion of the U.S. state prison population that comes from Texas, it should come as no surprise that Texas’s sentencing practices have a severe effect on the U.S. state prison population.
For instance, the state’s policy of providing enhanced punishments for offenders with both prior misdemeanor and felony convictions is a policy that is unique to Texas, yet widely problematic for the national rate of incarceration.122 More specifically, this practice is unique because Texas is the only state to provide enhanced punishments—meaning harsher sentences—for repeat misdemeanor offenders.123 Texas employs two separate sentencing statutes that cover repeat or habitual felony and misdemeanor offenders. For habitual felony offenders, Texas allows for sentence enhancements, including the possibility of life imprisonment.124 Additionally, for repeat misdemeanor offenders, Texas allows for sentence enhancements when it is shown an offender has a prior misdemeanor of the same class level or higher or a previous felony on their record.125
6. Mississippi: Highest Life Without Parole Rate for Children in the U.S.
While also employing methods similar to other states previously analyzed, Mississippi poses its own unique sentencing challenges, such as its allowance of discretionary LWOP for adult and juvenile LWOP.126 Mississippi additionally faces related issues to those in states such as Georgia in that, like Georgia, Mississippi does not have a sentencing guideline system.127 Further, though Mississippi does have a vast array of sentencing statutes available for judges and juries to reference and rely upon, Mississippi has some of the strictest and most comprehensive sentencing statutes in the nation.
B. A Recognized Right or Simply a Suggestion? Sentencing Guidelines that Allow for Arbitrary Judicial Discretion
Arbitrary sentencing is deeply influenced by judges and juries. Although Louisiana has a sentencing guideline system in place, it is fundamentally flawed. Despite sentencing report requirements, judges have wide latitude to impose any proportionate sentence within a given statutory range.128 However, this is of little accord because judges may depart from the guidelines if they state a reason for the departure on the record.129 This gives judges vast discretion to choose longer sentences as they see fit. Further, judges’ departures from the sentencing guidelines cannot be appealed.130 It is not difficult to imagine how the potential for arbitrary sentencing decisions is greatly magnified by including such limitations in a state’s statutory sentencing scheme. Thus, judges wield immense power over defendants’ futures. Yet judges are not the only parties with great influence; until recently, Louisiana’s juries were also uniquely powerful.
The final example of Louisiana’s draconian sentencing procedures— which was only recently overturned—was its practice of permitting criminal convictions in felony cases where a jury does not unanimously find the defendant guilty.131 In the 2020 case of Ramos v. Louisiana, the U.S. Supreme Court ended Louisiana’s vestige to Jim Crow-era laws by deeming non-unanimous jury verdicts unconstitutional.132 Before this decision, though, Louisiana was one of only two states in the nation to employ a non-unanimous jury rule when deciding the outcomes at trial; the other was Oregon.133 Though the holding in Ramos has since nullified these laws, they are worth mentioning, at least in part, because of a more recent U.S. Supreme Court holding.
In the 2021 case of Edwards v. Vannoy, the U.S. Supreme Court concluded that the holding in Ramos does not apply retroactively, meaning earlier convictions by non-unanimous juries do not merit collateral review.134 The highest courts in both Louisiana and Oregon have since been faced with the issue of whether their states will independently choose to review past convictions decided by non-unanimous juries retroactively. This is where Louisiana and Oregon depart. In a recent decision by the Louisiana Supreme Court—which relied on the U.S. Supreme Court’s holding in Vannoy—the highest court in the state decided that the juryunanimity holding in Ramos does not retroactively apply in Louisiana on collateral review.135 In an even more recent decision, the Oregon Supreme Court came to the opposite conclusion, holding that the requirement of unanimous jury verdicts in serious criminal cases merits retroactive application.136
Where Louisiana and Oregon further differ is in the history behind each state’s decisions to enact conviction via non-unanimous jury laws in the first place. In Louisiana, the non-unanimous jury law was enacted by admitted white supremacist lawmakers in 1898 as a direct response to the then recently enacted Fourteenth Amendment, which not only guaranteed African Americans the right to vote but also the right to serve on juries.137 The lawmakers’ rationale—seeking to nullify Black votes on juries and generally disenfranchise Blacks after the Civil War—remains a documented fact.138 The non-unanimous jury law was proposed at the 1898 Constitutional Convention in Louisiana, a convention whose documented purpose was to “perpetuate the supremacy of the Anglo-Saxon race in Louisiana.”139
Conversely, Oregon’s non-unanimous jury rule was enacted in direct response to the exact phenomenon that Louisiana sought to protect: racial and religious ethnocentrism. Due to the deep recession in the 1920s and 1930s, Oregon found its state laws and culture especially vulnerable to “the growing menace of organized crime and the bigotry and fear of minority groups” such as the Ku Klux Klan.140 The pervasive racism and religious bigotry fueled by the presence of Protestant members of the Klan in Oregon, as well as a controversial jury verdict in a murder trial that sparked widespread public outrage,141 were the driving forces behind the decision to enact the non-unanimous jury vote law, an effort to avoid religiously and racially-biased jury decisions.142 Though no state’s criminal practices are perfect, considering the juxtaposition between two states’ practices—such as is emblematic in the comparison of Oregon and Louisiana—can provide valuable insight into examples of how states like Louisiana continue to enact and uphold laws that often have blatantly arbitrary results.
In summary, Louisiana’s framework of problematic policies and practices set the standard for criminal sentencing issues in the United States. Though no other state is as widely beleaguered as Louisiana, other states—many of which are further analyzed in this Note—have adopted practices akin to those in Louisiana with similarly arbitrary and disastrous results.
C. Lasting Effects and Additional Considerations
What does all of this mean, and why might someone care? The extremity of the Deep South states’ varying practices provides certainty that without their inclusion in the U.S. total, the national mass incarceration average would differ significantly. Moreover, outside of combating the mass incarceration movement, making systemic changes to the current methods of incarcerating individuals in the Deep South would re-afford residents their constitutional rights that have been infringed upon by those states’ arbitrary imposition of inordinately harsh and lengthy prison sentences that do not reflect the national average.
III. POTENTIAL REMEDIES: THE INTERSECTION OF CONSTITUTIONAL LAW & MASS INCARCERATION
A. Injury via Geographic Discrimination: How Mass Incarceration in the Deep South Violates Equal Protection Guarantees under the Fourteenth Amendment
The main issue arising out of the differentiation in sentencing between Deep South states and other U.S. states is that this variation produces what this Note’s Author calls “geographic discrimination.” In the field of law, broadly, geographic discrimination is understood to be discrimination based on a person’s location or country of origin.143 While geographic discrimination is not a new concept on its own, this Note’s use of the phrase is “new” in that it does not comport with the phrase’s more traditionally recognized use affiliated with employment law.144 Rather, this Note’s use of the phrase seeks to indicate the disparate treatment of U.S. citizens residing in a certain region, by that region’s government, and on the basis of those citizens’ residency in that region.
There is a strong argument in favor of courts recognizing geographic discrimination in the manner employed in this Note. Because other areas of law implicitly recognize geographic discrimination,145 it is not unimaginable that modern criminal courts might consider protection against geography-based discrimination a protected right in the future. Nonetheless, as the law currently stands, geographic discrimination is neither a procedurally protected right nor an enumerated right under the Bill of Rights; thus, parties claiming the infringement of this right would have to do so by asserting an equal protection violation. Such is the premise of this Note’s main argument.
The disparities in sentencing—including length of sentence—administered by Deep South states, as opposed to other U.S. states—as quantified by the U.S. average metric—produce arbitrary sentencing results. The central theory of this Note postulates that these wildly varying sentencing practices between states in the Deep South and the larger majority of the U.S. states are tantamount to a violation of Southern citizens’ rights under the Fourteenth Amendment’s Equal Protection Clause. This Note argues that the arbitrary sentencing of individuals in the Deep South is a clear indicator of government discrimination, which is prohibited under the Equal Protection Clause.
1. How Geographic Discrimination Rises to the Level of Being an Equal Protection Violation
First, consider the language of the Fourteenth Amendment, “[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”146 This portion of the Fourteenth Amendment establishes the equal protection of citizens of the several states against the unequal application of laws, thus preventing state governments from enacting criminal laws that discriminate in an unreasonable or unjustifiable manner.147 Further, this portion of the Fourteenth Amendment requires states to comply with the constitutional notion of equal protection.148 As it applies to incarcerated individuals in the Deep South states, the argument this Note proposes is that citizens of these states face harsher sentencing penalties as a result of the geographic location where they live. Accordingly, citizens experiencing geographic discrimination are not afforded equal protection, as is their constitutional right under the Fourteenth Amendment. For these reasons, this Note posits that citizens might find solace under the protections of the Fourteenth Amendment’s Equal Protection Clause by challenging harsh and arbitrary sentences on the basis of geographic discrimination.
a. The Framework for Equal Protection
As noted above, the central tenet of the equal protection clause is protection from unreasonable or unjustifiable government discrimination, but the prohibition on government discrimination is not absolute.149 Rather, it depends on the class of individuals targeted or treated differently by the government. Accordingly, all equal protection cases pose the same basic question: Is the government’s classification justified by a sufficient purpose? Many government laws draw distinctions among specific groups of people and, thus, are potentially susceptible to an equal protection challenge. However, if laws or government actions are challenged based on equal protection, the issue is whether the government can identify a sufficiently important objective for its discrimination.150 What constitutes a “sufficient justification” depends entirely on the type or classification of discrimination.151 The government may use certain discriminatory classifications under specific circumstances, but only if it proves that they are necessary to achieve a compelling government purpose.152 This is known as strict scrutiny. Conversely, parties may also prevail by proving that the law was not rationally related to a legitimate government purpose.153 This is known as rational basis review.
Different levels of scrutiny are applied depending on the type of discrimination. For example, race or national origin discrimination are subject to strict scrutiny;154 gender discrimination is subject to intermediate scrutiny;155 all other discrimination not falling under those categories is subject to rational basis review. Because geographic discrimination is not a currently recognized form of discrimination by the Court, it would automatically be subjected to the minimum standard of review, which is rational basis review. While the modern canon of rational basis review that is taught in most law schools provides the view that rational basis is a weak, if not almost entirely ineffective means of bringing an equal protection claim, this Note seeks to dispel that notion.
The level of scrutiny is the rule of law that is applied to the government action being challenged as denying equal protection. For rational basis, there must be a legitimate purpose. In other words, a law meets rational basis review if it is rationally related to a legitimate government purpose. As previously mentioned, the widespread modern teaching of rational basis review suggests that any conceivable government purpose would meet this level of scrutiny. The implication here is that the rational basis test provides no hope for parties seeking to challenge laws that are discriminatory in less widely recognized manners than gender or racial discrimination, for example. Yet this is not true.
While the Court has enunciated that “[s]tate legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality,”156 this holding does not encapsulate the entire outlook of rational basis review. Unlike legal scholars who argue that the rational basis test has not been consistently applied, or that there exists a stronger or more rigorous underlying rational basis test that the Court sometimes applies,157 this Note does not ascribe to that belief. Instead, this Note argues that the Court has consistently applied the rational basis test and that the Court has simply determined that certain laws lack a legitimate purpose or are so arbitrary as to be unreasonable.
B. An Ultra-Modern Interpretation of Rational Basis Review
Various legal scholars have recently argued that rational basis review is far from ineffective as a means of challenging equal protection violations.158 One such author, Nicholas Walter, points to recent landmark Supreme Court decisions that invalidated same-sex marriage bans,159 and struck down the Trump administration’s travel bans,160 all of which were done under rational basis review standards.161
While most paladins of the effectiveness of rational basis review have focused on Supreme Court cases to best exemplify their position,162 there are also notable examples of the rational basis test being utilized successfully at the lower court levels.163 Because the Supreme Court grants certiorari in so few cases, scholars have argued that a better measure of the importance of the rational basis review is the level of success at the lower court level.164 Perhaps the best recitation of this view comes from Professor Katie R. Eyer,165 who argues that constitutional change is an “amorphous, complicated [process]” and that “rational basis review—as deployed in the lower and state courts, as well as within the political branches—has often afforded one of the most plausible openings for social movements to create space for constitutional change.”166
Further, the cases nullifying state laws under rational basis review and straying from the traditional notion of the test’s rigidity or impossibility of success fall into various categories. Such categories are much more wide-reaching than the current constitutional law canon purports.167 This perfunctory analysis present in the modern constitutional law canon overlooks major successes in the realm of challenging laws under rational basis of review. For such reasons, this Note suggests a new and more modern approach to analyzing rational basis review.
1. Applying the Ultra-Modern Rational Basis Test to Geographic Discrimination
Historically, rational basis review has been highly deferential to state legislatures. A statutory classification comports with the Equal Protection Clause if it is “rationally related to a legitimate state interest.”168 The party challenging the statute bears the burden of proving the challenged statute is irrational or arbitrary.169 State legislatures are given significant leeway in asserting the ends that such challenged statutes seek to achieve. As such, the challenging party not only has the burden of proving that the motivation behind enacting the statute was irrational but also must negate any “conceivable basis which might support it[s] [enactment].”170 In other words, if the legislature could rationally decide that the classification could promote a legitimate state purpose, then the statute should be upheld, even when there is an imperfect fit between means and ends.171
However bleak and implausible as it may seem, the Supreme Court has invalidated a host of cases that exemplify the validity of rational basis review. Far from being a weak and ineffective means of challenging discriminatory laws, rational basis review has undeniably acted as the springboard upon which plaintiffs have successfully challenged state discriminatory laws.
This is evidenced by the plenitude of data outlined in the prior Sections of this Note when analyzed in relation to various factors that the Court repeatedly emphasized in its decisions to invalidate laws under rational basis review. Various legal scholars have opined on the factors most important to the Court when conducting rational basis review of a challenged law. Still, one scholar’s work best encapsulates the breadth of relevant factors considered by the Court, citing nine that frequently recurred in rational basis review cases.172 Holoszyc-Pimental reviewed every Supreme Court case decided during the 1971 through 2014 terms where the Court invalidated a law for violating the Equal Protection Clause under rational basis review.173 This audit produced the finding of nine recurrent factors in the Court’s holdings.174 Though this Note diverges from Holoszyc-Pimental’s stance,175 the nine factors remain relevant and central to the Court’s determination of whether a law will be invalidated under rational basis review. For this reason, all nine factors are analyzed here. The list includes (1) history of discrimination; (2) political powerlessness; (3) capacity to contribute to society; (4) immutability; (5) burdening a significant right; (6) animus; (7) federalism concerns; (8) discrimination of an unusual character; and (9) inhibiting personal relationships.176
Given the Court’s reliance on such factors in determining to strike down discriminatory state laws, each factor bears significant weight. Further, in considering the factors in totality, cases challenging laws under the rational basis test where multiple factors are found to be present appear to pass muster. Similarly, because numerous factors listed are relevant to incarcerated individuals’ potential geographic discrimination claims, this strongly evidences the success of such claims should they be brought.
a. History of Discrimination
The Court has recognized on numerous occasions that the history of discrimination against groups is a relevant factor in its rational basis review analysis. For example, in Weber v. Aetna, the Court invalidated a law because it discriminated against nonmarital children, directly citing the history of such discrimination.177 Further, though not addressed directly by the majority, concurrences in Doe v. Plyler addressed the history of discrimination against undocumented immigrant children.178 Similarly, even a shallow analysis of U.S. history provides a plethora of instances in which incarcerated individuals have historically faced discrimination. Repeat felony offenders in Deep South states have historically been subjected to discrimination throughout the criminal justice system, as is evidenced by the “tough-on-crime” laws which are unambiguous in their purposes. One example is Louisiana’s Habitual Offender Statute,179 which was enacted upon the foundational belief that individuals with multiple convictions cannot be rehabilitated and that communities are safer and better without these individuals.180
b. Political Powerlessness
Increased judicial protection of the politically powerless is frequently hearkened back to United States v. Carolene Products Co.181 The basis of this theory is that groups deficient in political power are unable to protect themselves through ordinary political processes like voting and, as such, should be afforded greater judicial protections. The Court has discussed the importance of this factor in various cases, including Frontiero v. Richardson,182 where women’s political powerlessness was at issue. More significantly, however, the issue also arose in Doe v. Plyler, relating to undocumented immigrant children’s future inability to vote.183 Incarcerated persons in the Deep South suffer the same consequences. For example, consider Mississippi, the state with the highest felony disenfranchisement rate in the U.S.184 Mississippi is a prime example of how sentencing laws in the U.S. discriminate against incarcerated people in the Deep South by denying them the right to vote and leaving them politically powerless.
c. Capacity to Contribute to Society
Frontiero also enunciated that characteristics that “frequently bear[] no relation to ability to perform or contribute to society” may be viewed as a suspect basis for classification.185 Though the Court has recognized this factor, it has only once invalidated a law on such a basis. A strong argument can be made that incarcerated individuals serving longer and harsher sentences in Deep South states are almost certainly disparaged due to their incapacity to contribute to society, as they are partitioned apart from society at large. This is most glaringly exemplified in the stringent manner in which Deep South states award “good time” and “earned time,” if any at all.186
d. Burdening a Significant Right
Courts have also invalidated laws under the rational basis test on the grounds that such laws burden a significant right. The Court’s analysis has encapsulated both instances of infringements upon recognized fundamental rights and “quasi-fundamental” rights.187 In such circumstances, the alleged infringed-upon right may—in the eyes of the Court—be sufficiently substantial to warrant a careful review of the questioned law’s rationality, even if strict scrutiny is not implicated.188 For example, in Lubin v. Panish, the Court invalidated unreasonable restrictions on ballot access on the grounds that such restrictions unduly burdened the right to vote.189 Similarly, individuals experiencing geographic discrimination in Deep South states can make the argument, as stated above, that felony disenfranchisement is a burden on a significant right: the right to vote. Further, a stronger argument could be made that the arbitrary nature of the sentencing laws in each of the Deep South states infringes upon the most substantial human rights: the rights to freedom and justice, as is reiterated in the Equal Protection and Due Process Clauses of the U.S. Constitution.190 The Court has previously recognized arguments such as this, as was the case in Jackson v. Indiana,191 and Logan v. Zimmerman Brush Co.192 In both Logan and Jackson, the Court found actual violations of plaintiffs’ right to due process, aside from any equal protection issues.193 The major takeaway from the holdings in these cases is the significance that the Court places on one’s fundamental rights; challenged laws can appear far less rational to the Court when such laws burden a fundamental right or interest without persuasive justifications.194
CONCLUSION
Mass incarceration in the United States is a serious issue. Upon further inspection, it is not difficult to see that the Deep South is a major contributor to the blight of mass incarceration nationwide. While the harsh and often arbitrary sentences that judges and juries employ undoubtedly paint a bleak picture of the outlook for incarcerated individuals in the Deep South, all hope is not lost. In fact, one of the strongest arguments in favor of incarcerated individuals’ ability to succeed in their challenges is the argument that their sentences are arbitrary. The vast amount of data available—both described in this Note and beyond—provides abundant support for this claim. Though history indicates change does not happen overnight, that does not mean change is out of the question. Rather, it implores the next generation of legal practitioners to come up with creative solutions to these problems. Such solutions might include challenging sentencing as discriminatory on new grounds, like geographic discrimination, or rethinking the utility of the rational basis test.
The potential for a successful challenge to the existing state sentencing schemes in the Deep South is nonetheless available to individuals interested in pursuing radical change and testing new challenges—such as challenges on the basis of geographic discrimination—before the courts. Individuals who are serious about finding solutions to the infringements of their rights can find reprieve by arguing they have suffered a deprivation of equal protection under the law, and such an infringement cannot survive rational basis review. Successful appeals of individuals’ sentences can be made possible by re-framing the issue of arbitrary incarceration to better comport with the recognized factors the Court has deemed valid grounds to invalidate laws under rational basis review. That is, by re-framing the conversation around the utility of the rational basis test and other modern challenges, individuals can find a legitimate means of pursuing their claims.