A few years ago, I had the great pleasure of attending Haverford College’s commencement exercises at which Bryan Stevenson, one of the most renowned civil rights litigators and leaders of our time, received an honorary degree. Stevenson is the founder and Executive Director of the Equal Justice Initiative in Montgomery, Alabama. He led the litigation that eliminated mandatory life imprisonment for those under 18 years old, created the National Memorial for Peace and Justice to commemorate those who were lynched in the South between 1877 and 1950, and is the author of the acclaimed book,
Very good to see you doing this newsletter (I do one too!).
I ran into Bryan a few years back when we were both witnesses at a House Judiciary hearing. A thoroughly cordial gentleman, I thought, although as you might expect we had little agreement of policy.
I have a question about second look sentencing: At present, the proposals for it go in only one direction, that being in the inmate's favor. But, just as people can get better, they can also get worse. Indeed, many defense counsel claim that incarceration is counter-productive, because prison is little more than crime school, where inmates mainly learn how to commit more c rime better. And recidivism raters are awful.
So I'm thinking that, in plea bargains (which as you know resolve 95% of federal felony cases), we could add a provision that the court could have a second look after, say, half the sentence was served. At that second look, the sentence could be either decreased or increased depending on the court's judgment whether, all things considered, the inmate had learned the right lessons (sentence decreased) or the wrong ones (sentence increased).
The central premise of second look theory -- that people can change -- seems to me to be unassailable. But I would not urge my fellow conservatives to support it unless it also recognized the equally unassailable, if unfortunate, truth that they sometimes change for the worse.
I enjoy you newsletter, and you could not have chosen two finer "co-conspirators" than Doug and Steve. You wouldn't confuse them with Tom Cotton or Jeff Sessions, but they're good guys.
Thank you so much, Bill, for your comment and for reading this Substack. I agree with you about Doug and Steve. They are good people, and I'm thrilled to be working with them. And I plan to begin reading your newsletter soon too. Thank you for staying engaged with criminal justice and crime policy debates all these many years.
Your question is one I have been thinking about too. First, it strikes me that the "second look" movement is just a step back towards the parole system that was in place in most of the country into the 1970s. And in most parole jurisdictions, the sentence imposed placed some outer limit on the imprisonment term that could be served, with the amount of that term that would actually be served determined by the parole agency at various check-in points during the service of the sentence.
I am inclined to believe that with any sentencing system, there should be -- and perhaps now must be -- some outer limit to the imprisonment term based on the offense(s) of conviction. I think the days of courts imposing an indeterminate life sentence on someone who commits a non-heinous crime are likely over. The Supreme Court this term issued two opinions -- Erlinger v. United States and SEC v. Jarkesy -- that included impassioned defenses of the jury trial right, and in the criminal context, a stern reminder that the power to punish is derived wholly from, and is always controlled by, the jury and its verdict. It seems to me that no matter how much someone changes for the worse in prison, that if the government wants to keep that person there for a reason unrelated to the offense for which she was convicted beyond a reasonable doubt, Justice Gorsuch and his colleagues will look on that quite skeptically.
On the hand, and to your hypothetical, it also strikes me that you plea bargaining suggestion is not unlike jurisdictions where judges impose a prison sentence -- say, ten years -- then suspend much of it -- say, eight years -- and order the defendant to serve the residual (two years) AND fulfills certain conditions. If the inmate in that scenario learns "the wrong lessons," the conditions imposed as part of the suspended sentence would presumably not have been met, and those remaining eight years can be ordered served.
I think in the federal system, under current law, the plea bargaining approach you suggest will not work, generally. I don't think there is an authorized mechanism for a typical case to be reviewed after half the sentence is served. There is no general authority -- with or without the parties' approval -- to modify the sentence at the halfway mark (short of extraordinary and compelling reasons or a retroactively applied statute or guideline). Congress would need to get involved to create your system, and if it did, it could permit the kind of suspended sentence approach common in states with an explicit second look timeline. Such a system would do as you suggest, allowing the sentencing judge to review the behavior of the defendant against a set of conditions imposed at sentence and either reduce the sentence or order some part of the suspended sentence to be served.
I think there may be room for common ground, here. What do you think?
Hi Jonathan,
Very good to see you doing this newsletter (I do one too!).
I ran into Bryan a few years back when we were both witnesses at a House Judiciary hearing. A thoroughly cordial gentleman, I thought, although as you might expect we had little agreement of policy.
I have a question about second look sentencing: At present, the proposals for it go in only one direction, that being in the inmate's favor. But, just as people can get better, they can also get worse. Indeed, many defense counsel claim that incarceration is counter-productive, because prison is little more than crime school, where inmates mainly learn how to commit more c rime better. And recidivism raters are awful.
So I'm thinking that, in plea bargains (which as you know resolve 95% of federal felony cases), we could add a provision that the court could have a second look after, say, half the sentence was served. At that second look, the sentence could be either decreased or increased depending on the court's judgment whether, all things considered, the inmate had learned the right lessons (sentence decreased) or the wrong ones (sentence increased).
The central premise of second look theory -- that people can change -- seems to me to be unassailable. But I would not urge my fellow conservatives to support it unless it also recognized the equally unassailable, if unfortunate, truth that they sometimes change for the worse.
I enjoy you newsletter, and you could not have chosen two finer "co-conspirators" than Doug and Steve. You wouldn't confuse them with Tom Cotton or Jeff Sessions, but they're good guys.
Cheers,
Bill
Thank you so much, Bill, for your comment and for reading this Substack. I agree with you about Doug and Steve. They are good people, and I'm thrilled to be working with them. And I plan to begin reading your newsletter soon too. Thank you for staying engaged with criminal justice and crime policy debates all these many years.
Your question is one I have been thinking about too. First, it strikes me that the "second look" movement is just a step back towards the parole system that was in place in most of the country into the 1970s. And in most parole jurisdictions, the sentence imposed placed some outer limit on the imprisonment term that could be served, with the amount of that term that would actually be served determined by the parole agency at various check-in points during the service of the sentence.
I am inclined to believe that with any sentencing system, there should be -- and perhaps now must be -- some outer limit to the imprisonment term based on the offense(s) of conviction. I think the days of courts imposing an indeterminate life sentence on someone who commits a non-heinous crime are likely over. The Supreme Court this term issued two opinions -- Erlinger v. United States and SEC v. Jarkesy -- that included impassioned defenses of the jury trial right, and in the criminal context, a stern reminder that the power to punish is derived wholly from, and is always controlled by, the jury and its verdict. It seems to me that no matter how much someone changes for the worse in prison, that if the government wants to keep that person there for a reason unrelated to the offense for which she was convicted beyond a reasonable doubt, Justice Gorsuch and his colleagues will look on that quite skeptically.
On the hand, and to your hypothetical, it also strikes me that you plea bargaining suggestion is not unlike jurisdictions where judges impose a prison sentence -- say, ten years -- then suspend much of it -- say, eight years -- and order the defendant to serve the residual (two years) AND fulfills certain conditions. If the inmate in that scenario learns "the wrong lessons," the conditions imposed as part of the suspended sentence would presumably not have been met, and those remaining eight years can be ordered served.
I think in the federal system, under current law, the plea bargaining approach you suggest will not work, generally. I don't think there is an authorized mechanism for a typical case to be reviewed after half the sentence is served. There is no general authority -- with or without the parties' approval -- to modify the sentence at the halfway mark (short of extraordinary and compelling reasons or a retroactively applied statute or guideline). Congress would need to get involved to create your system, and if it did, it could permit the kind of suspended sentence approach common in states with an explicit second look timeline. Such a system would do as you suggest, allowing the sentencing judge to review the behavior of the defendant against a set of conditions imposed at sentence and either reduce the sentence or order some part of the suspended sentence to be served.
I think there may be room for common ground, here. What do you think?