Second Looks & Criminal Legislation

22 Pages Posted: 11 Dec 2019

See all articles by Michael Serota

Michael Serota

Arizona State University, Sandra Day O'Connor College of Law; Academy for Justice

Date Written: December 5, 2019


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 post-conviction judicial sentencing reductions is whether the long-term punishments imposed by criminal courts live up to the proportionality standards of any time 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) the imposition of extreme sentences upon actors of comparatively minimal culpability. The Essay argues that this code-based sentencing reality, when viewed in light of structural forces driving prosecutorial and judicial decisionmaking, provides very strong reasons 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. And it explains why this epistemic uncertainty offers a compelling reason to authorize courts to reevaluate (and in appropriate cases reduce) severe punishments through second look sentencing reform—both in the District of Columbia and beyond.

Suggested Citation

Serota, Michael Eli, Second Looks & Criminal Legislation (December 5, 2019). Ohio State Journal of Criminal Law, Forthcoming. Available at SSRN: or

Michael Eli Serota (Contact Author)

Arizona State University, Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ
United States

Academy for Justice ( email )

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