Are “Sentencing Review Units” The Answer?

Conviction review units in progressive district attorneys offices are all the rage, which is a good thing. When prosecutors played dirty to get a notch on their gun, even if they really, really believed the defendant did it, the conviction is tainted. A subsequent prosecutor, more inclined to “do justice” as Justice Robert Jackson implored, should admit to the failings and correct unlawful or unconstitutional conduct by the office. That’s what integrity looks like.

Yale prawf James Forman proposes a variation on that theme.

Fortunately there is growing momentum to reduce excessive sentences. Legislation authorizing sentence reductions in old cases has passed in California and the District of Columbia. Senator Cory Booker has proposed something similar at the federal level. And in July, more than 3,000 people were released from federal custody under the First Step Act, passed in December, which allows certain federal prisoners to earn early release for good conduct.

Legislative solutions to legislative problems makes enormous sense. For decades, politicians pushed tough-on-crime agendas that included ratcheting up sentences to life plus cancer by playing on the fear and ignorance of the public. We went from ten years being an enormously harsh sentence to being a slap on the wrist. Only a million years would do. More, higher, harsher. And people believed while sentences went up. The emotion of fear is a wonderful weapon.

But getting legislatures and Congress to acquiesce in undoing the damage they caused is hard. There are a lot of people involved, and many other issues than mass incarceration push voters to elect their representatives. As activists have learned, it’s far easier to run a progressive prosecutor and get her elected than shift a legislature, so the focus has changed from representative bodies changing their laws to prosecutors unilaterally overriding legislatures.

But there is another solution to this problem. Prosecutors can recognize their role in creating the crisis and work toward fixing it. They should start by opening “sentence review units,” which would consist of small dedicated teams of lawyers, investigators, data scientists and social workers within the prosecutor’s office. The details would vary by place, but each team would review past cases, and when they find sentences that seem particularly egregious, prosecutors would give these cases a second look.

First comes the practical question. Why would the people who demanded a sentence of life plus cancer want to go back, take another look, and admit they were wrong? To the extent there’s an incentive, other than the new prosecutor’s progressive political views in contrast with their predecessor’s carceral views, it’s to reduce prison populations, eliminate the old age homes and reduce the enormous expense of incarceration.

But then, they knew what it cost when they demanded 27 life sentences in the first place. Of course, they were all hot to hurt at the time, so maybe their prosecutorial emotions got the better of them, and in the cold light of cost/benefit calculations, they realize they may have gone overboard and demanded too much.

Even if prosecutors come to realize that sentences are too damn long, how will this process work?

Despite this history, there are signs of progress. As evidence mounts that many crime survivors doubt prison’s value, a few prosecutors have begun to reduce excessive sentences. In Seattle, the district attorney, Dan Satterberg, has supported clemency applications for people who were sentenced under Washington State’s harsh three-strikes law. In Georgia, a group of district attorneys agreed to re-evaluate drug sentences imposed during the crack epidemic and have already helped some people go home. And in California, prosecutors supported recent legislation that allows them to form sentence review units.

Hidden behind the collateral arguments is a more difficult hurdle, that prosecutors have no legal authority to do squat about a sentence after it’s been imposed. Judges impose sentences, not prosecutors. And not even judges can change a lawful sentence imposed because they later change their minds or feel bad about it. You get one shot to impose a proper sentence; once done, and after any appeals are over, it’s done.

There’s clemency. There are legislative fixes such as the First Step Act. There is parole, which no longer exists in the federal system and only comes into play after a minimum sentence is served. In each of these, a prosecutor can put in his two cents, support release, help to correct the excesses. But none of these bears upon a sentence review unit.

Without enabling legislation that would entitle a defendant or prosecutor to make a motion to reduce an otherwise lawful sentence, there is nothing such a unit could do. They could identify excess sentences all day long, but they can’t correct them, reduce them, change them in any way. There is no law that would allow that to happen, and without such enabling legislation, it would be an exercise in futility.

But then comes the really scary part, perhaps implied by Forman’s argument: Is he suggesting that prosecutors, to whom progressives have already demanded the authority to veto or ignore all law with which they disagree no matter what legislatures say, should now have the authority to change sentences? Having become Superlegislators, are they now to be superjudges as well?

Finally, a collateral concern with the left’s version of one-size-fits-all solutions is that the concept of sentence review units assumes that prosecutors will be progressive going forward, and the forces against mass incarceration will be in power from now on.

There is a certain hubris of the left’s belief that when they give prosecutors, who were too powerful when they were tough-on-crime, far greater power and authority than ever when they’re on the left, this power will never get back into the hands of the other tribe. If sentencing review units become an acceptable and trusted voice for who deserves to walk out of prison alive, what will they do when the answer is “not those black guys, not those drug dealers, but the wife beaters, ex-cops and Ponzi fraudsters”?

18 thoughts on “Are “Sentencing Review Units” The Answer?

  1. Richard Kopf


    Your readers might wish to read Hopwood, Shon R., Second Looks & Second Chances (June 16, 2019). Cardozo Law Review, Forthcoming. Available at SSRN. The SSRN availability makes the paper free to the public.

    All the best.


    1. Anon Coward

      Since no one else will say it, and I’m going anon, I will. Judge, much as we love you and appreciate your being here, what the fuck are you doing? You’ve been on this hijack kick lately, and I’m sure Scott will be more than happy to publish your post on Hopwood’s law review article. But this isn’t a post about Hopwood’s law review article, and Forman’s op-ed has essentially nothing to do with Hopwood’s proposal.

      As an old Nebraskan once said, FUCKING FOCUS!!!

      With all due respect, of course.

      1. SHG Post author

        I would be thrilled to post something from the judge on Shon’s law review article. Although in fairness, the fault is mine, not Judge Kopf’s, who only sought to put a friend’s law rev that touched on the same problem on the radar. It was my fault for not anticipating that it might go orthogonal, as so often happens here.

  2. Alexander Bunin

    When conviction integrity units began, it was during the height of the attacks on junk science. It was fairly easy for a prosecutor to agree to new DNA testing and accept results that categorically excluded the defendant as the perpetrator. Now that most of those cases have been reviewed, we are left with more nuanced situations where prosecutors are loathe to concede error. The same will be true for sentencing review. Not only will they need to admit they were wrong, but they must be willing to face the political consequences of any recidivism. We once had something called parole boards before they were either eliminated or completely politicized.

      1. Alexander Bunin

        I just read the Hopwood article — which is full of institutional memory and history — and if his recommendation of an automatic review of all sentences after 10 years in prison were adopted, such units would probably be needed.

        1. SHG Post author

          This is what happens when I write a post about Forman’s proposal, someone injects something off-topic into it, and it then becomes worthlessly muddled since this isn’t a post about Shon’s proposal but the two get conflated as someone goes further down the off-topic path. Ever wonder why I try to keep comments on topic and invariably regret letting them go orthogonal?

        2. David

          I would be very reluctant to compare Hopwood’s very thoughtful ideas to Forman’s very shallow and untenable ideas.

  3. B. McLeod

    Although it doesn’t seem like it should be possible for people with the credentials of Forman and his co-author to not understand how sentences work or what prosecutors do, it looks like that somehow happened.

    1. SHG Post author

      I might be cynical here and suggest they’re screwing with readers, but since there’s no end game to it, that makes no sense either.

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