Sentences, Revisited

When Second Circuit Judge Denny Chin was profiled by the New York Times, one phrase stood out to me: “Rule and roll.” I got it then. I still get it now. A decision has to be made. It’s not just because that’s a judge’s job, but because the wheels of “justice” must keep turning or the system cranks to a halt, to no one’s benefit. And yet, there is a callousness to the phrase, that a person’s life, his family’s life, can be devastated and the judge just rules and rolls.

Right? Wrong? Either way, it’s done and they move on to destroy more lives. Work, work, work.

A pair of Kevins raised a different mechanism to be applied to sentences.

We have both worked with people who have taken extraordinary steps to rehabilitate themselves in prison. One of us is a former federal judge who resigned, in large part, because he could no longer stand to impose the excessive and unjust prison terms Congress mandates in so many cases. The other is a former prisoner and the leader of a national organization that works with thousands of families directly impacted by harsh federal and state sentencing laws.

Kevin Sharp is a wonderful guy, though his decision to walk away from the bench was not one that struck me as the most effective way to address the problems with the system. Kevin Ring is now the head of FAMM, Families Against Mandatory Minimums, which has never lost sight of its mission, to fight one of the worst blights of the legal system. In other words, these are two people who know what they’re talking about.

Their proposal is “second-look laws,” where the judge who “rules and rolls” would be obliged to go back to determine whether the sentence imposed was excessive.

We know that implementing second-look laws, which would allow judges to review every offender’s sentence after a certain period — say 10 or 15 years — could reform our criminal justice system in a way that would recognize the capacity for rehabilitation, ensure public safety and reduce excessive sentences.

Second-look laws would give any individual hoping for a second chance more than enough time to show that he or she has earned it. Knowing that an opportunity for resentencing exists would very likely improve morale and behavior inside prisons, benefiting prisoners and corrections officers alike.

They go on to provide anecdotes of people who did wrong, but learned from their mistakes and went on to improve themselves and help others. Of course, there are others who don’t. Sometimes, it’s the person, or the underlying problems that created the person who committed the crime and remained unaddressed by prison. Sometimes, it’s the failure of rehabilitation in prison, where warehousing people is the only concern. Sometimes, a person comes out the other end a better person, and the inordinate length of incarceration is just pointlessly destructive.

Which is which? That would be the point of second-look laws. Like parole, which no longer exists in federal sentencing, it provides an incentive to do better, be better. And unlike sentencing, which presumes judges have some magic in determining what periods of time suffice for the putative parsimony of the § 3353 criteria. Maybe triple digits in months seems about right at the time of sentence, when the focus is on the worst thing a defendant has ever done, but will that number hold up a decade later? Will that defendant be the same person a decade later?

What remains unclear are the mechanics of such laws. Would every defendant get an automatic review after some fixed period of time, or would it provide an opportunity for a defendant to seek a second look at his sentence? How would a defendant’s claim of rehabilitiation be investigated, as some defendants aren’t entirely honest about their accomplishments? What if application was made prematurely, as many would be a little too itchy for release to wait until they’ve earned it? Would a third look be available?

A second-look law would create a burden to the system, more pro se applications, more investigation, more craziness. But it would also be the alternative to Chad Marks’ circumstance.

Chad Marks committed a more serious offense: selling cocaine while in possession of firearms. At 24, he turned down a prosecutor’s plea offer of 10 years, was convicted at trial and sentenced to a mandatory minimum of 40 years in federal prison. He has now served 16 years. During that time, Marks has earned a college degree through a correspondence course, helped others earn their GED diplomas, and started a leadership class to assist incarcerated fathers. The judge who sentenced him was so impressed by Marks’ self-improvement that he asked Trump to grant him clemency. The president has not responded.

The upshot is that a sentencing judge who “ruled and rolled” when he imposed sentence can’t, no matter how certain he may be that his sentence, in retrospect, was unduly harsh, correct his error. It’s not that every judge worries about the mistakes he might have made, or that every defendant he’s sentenced might have been denied the parsimony the law requires.

But some do, and each defendant is a human being deserving of sufficient individualized consideration that his life not be needlessly and pointlessly squandered by arbitrarily long and harsh sentences. The words of Micah 6.8 ring as true a decade after the judge rules and rolls.

He has shown you, O man, what is good;
And what does the Lord require of you
But to do justly,
To love mercy,
And to walk humbly with your God?

There may be a great many technical details to work out to make a second-look law work as intended, but there needs to be a means by which the judge who “rules and rolls” can correct his arrogance when, a decade or more later, it’s clear that the defendant has paid his debt and should no longer be imprisoned.

8 thoughts on “Sentences, Revisited

  1. Richard Kopf

    SHG,

    See Shon Hopwood, A Second Look at a Second Chance: Seeking a Sentence Reduction under the Compassionate Release Statute, 18 U.S.C. § 3582(c)(1)(A), as Amended by the First Step Act, at Prison Professors ( Jun 18, 2019) (available on the Web). Shon’s post has been followed up with a law review article using a similar name that is available now on the SSRN.

    There is a serious problem lurking in the “second look” idea. It is a separation of powers question. When a judge “takes a second look” is the judge exercising the President’s prerogative of clemency?

    I have told Professor Hopwood that I largely agree with the utility of second looks. Good policy aside, you are correct to suggest that there are “technical” issues to work out. But, in the end some things are more important than others. Thus, it would be nice if those issues were worked out soon rather than waiting years and years as was done with Booker, et al.

    All the best.

    RGK

    Reply
    1. SHG Post author

      As I wrote this post, I pondered whether to write about you and Shon, but I knew you would and it’s your story to tell. I’ve added in links to Shon’s writing work.

      Reply
      1. Richard Kopf

        SHG,

        My small part in Shon’s remarkable journey can be summarized easily. My sentencing instincts suck. I would guess I am not the only federal judge who is sucky.

        All the best.

        RGK

        Reply
        1. SHG Post author

          You keep saying that as if it’s just you who is compelled to make a determination that no person is rationally capable of making. It’s not your instincts, Judge, but the notion that there is a “correct” sentence. It’s just voodoo, and at least you have the humility to realize that there is no magic to the numbers you pull out of thin air.

          Reply
  2. John Neff

    Hopwood’s sentence was successful because he did not return to prison. The problem was that he had figured out how to stay out long before he was released. It used to be that 70% did not return and now it is about 60% so we have the wrong trend. I am an outsider so I don’t know how to fix it and members of Congress are the only ones authorized to fix it and I don’t think they know either.

    Reply

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