Modifying Unjust Sentences

71 Pages Posted: 9 May 2014 Last revised: 8 Sep 2015

See all articles by E. Lea Johnston

E. Lea Johnston

University of Florida Levin College of Law

Date Written: April 23, 2015


Judicial sentence modification offers a means to address the phenomenon of over-incarceration as well as the harsh prison conditions that threaten unjust punishment. Indeed, some legislatures have framed states’ early release provisions as fulfilling goals of proportionality and just punishment. This Article 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.

Keywords: over-incarceration, disproportionate punishment, sentence modification, mental illness, mental disorder

Suggested Citation

Johnston, E. Lea, Modifying Unjust Sentences (April 23, 2015). 49 Ga. L. Rev. 433 (2015), University of Florida Levin College of Law Research Paper No. 15-4, Available at SSRN:

E. Lea Johnston (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics