First Steps and Second Chances
A Review of "A Second Chance": a Federal Judge’s Perspective on Compassionate Release and a System in Need of Reform
Norm Reimer is a legal legend. He has devoted his long career to defending those accused of crime and to making our criminal justice system more just. For over 15 years, Norm served as the Executive Director of the National Association of Criminal Defense Lawyers. Before that, for over 20 years, he defended hundreds of men and women accused of crime in state and federal trial and appellate courts and was also a passionate advocate and leader for systemic reforms. Norm now practices law at the New York City law firm, Vladeck, Raskin & Clark, P. C. We are honored that he has written this essay as part of the Sentencing Matters Substack Book Review series.
- - -
The human capacity to evolve is truly unlimited.
Like any defense lawyer with a varied practice, many of my clients have been sentenced to prison. And, as my career progressed and the American obsession with increasingly severe sentencing practices raged out of control, many of the sentences were irrationally excessive. I could never understand how a society could so blithely and cavalierly condemn people to 10, 20, 30 years or more, up to and including life imprisonment, often for nonviolent or truly aberrational behavior, without accounting for the fact that people change and mature.
My belief that lengthy irrevocable sentences overlook the capacity for human growth was only theoretical until 2014. After 2014, thanks to work on a federal clemency initiative, I saw irrefutable evidence that I was correct.
On January 30, 2014, Deputy Attorney General Attorney James Cole delivered a speech to the New York State Bar Association in which he announced the intention of the Obama administration to commute lengthy sentences and issued a call for assistance:
There are more low-level, non-violent drug offenders who remain in prison, and who would likely have received a substantially lower sentence if convicted of precisely the same offenses today. This is not fair, and it harms our criminal justice system.
To help correct this, we need to identify these individuals and get well-prepared petitions into the Department of Justice. It is the Department’s goal to find additional candidates, who are similarly situated to the eight granted clemency last year and recommend them to the President for clemency consideration.
This is where you can help. We are looking to the New York State Bar Association and other bar associations to assist potential candidates for executive clemency.[1]
Immediately after these remarks, I played a role in founding what came to be known as Clemency Project 2014 (CP 2014), which through a partnership among the National Association of Criminal Defense Lawyers, FAMM, the American Civil Liberties Union, the American Bar Association’s Criminal Justice Section, and the Federal Public and Community Defenders, created one of the most extensive pro bono projects in American legal history. Collectively, the groups recruited, trained and supported more than 3,000 lawyers, who screened approximately 30,000 clemency applications. Ultimately, CP 2014 submitted more than 2,500 petitions. Of the 1,700+ commutations granted by the Obama administration, CP 2014 secured 894 commutations, of which more than 300 were life sentences.
Among the responsibilities I shouldered in organizing and supporting CP 2014 was to participate in a review committee to assess whether individual applicants satisfied the criteria established by the Administration. It was in this process that I routinely saw how countless individuals serving decades long sentences, including those with no prospect of release, completely transformed themselves. It was astounding to regularly see applicants, including those with an extensive prior criminal history, who had few or no infractions while incarcerated. For example, I vividly recall one person serving a 30-years sentence for racketeering who over two decades had one single infraction – for having improperly brought a chicken dinner into his cell. Countless applicants had stellar work histories and had attained remarkable educational and artistic achievement while imprisoned. Often their applications were supported by prison officials who attested to their capacity to mentor and support other prisoners. As emerging scientific and other research data has detailed, people mature as they age, and the person they are in their teens or twenties is no prediction of how they might change in their thirties, forties, and beyond.
When one sees firsthand the overwhelming evidence of how people can transform themselves, it is impossible not to conclude that sound sentencing systems must provide a mechanism for reconsideration of a lengthy sentence.
And that conclusion brings me to the subject of this essay: a remarkably candid look inside the mind of a judge, A Second Chance – A Federal Judge Decides Who Deserves It, by Senior United States District Judge Frederic Block of the Eastern District of New York.
A Second Chance is Judge Block’s reflection on how he has decided applications for compassionate release under the provisions of the First Step Act, [2] the most significant federal criminal justice reform legislation in decades. But it is much more than simply a reflection on a handful of cases. It is an astute and accessible critique of the nation’s criminal legal system and a prescriptive for reform.
Before discussing the book more completely, an important disclosure: Judge Block asked me to read a draft of the book. After I read it, I was so enthused by his embrace of the power to grant a second chance and impressed by how he shines a light on various injustices rife throughout the entire system that I reached out to the leader of one of the preeminent groups supporting prosecutorial reform, and together, Miriam Krinsky, Executive Director and Founder of Fair and Just Prosecution, and I wrote a Coda for the book. Together we issued a call for comprehensive reform to address draconian sentences and ensure that the nation systemically embraces the need for second chance pathways.
While lawyers and other stakeholders in the criminal justice process will find A Second Chance fascinating and insightful, this is really a book for the general public. Far too few of our fellow Americans think about the innate harshness in the criminal process. The U.S. public remains uniquely susceptible to political demagoguery that reflexively suggests that more and harsher criminal penalties are a panacea for every perceived societal problem. Often, it is only when a loved one, a colleague, a friend, or a neighbor becomes enmeshed in the criminal process that many become aware of how abusive, retributive, and cruel the system can be.
Few truly recognize the brutal severity of the sentences that are routinely imposed throughout the nation. Judge Block directly confronts this fundamental disconnect and he does so by employing a thoroughly engaging and innovative approach. He invites readers to join him on the bench in considering requests for federal sentence reductions that he actually received and urges them to make their own decisions before later disclosing how he ruled.
Although perhaps not as memorable as “Call me Ishmael” or “It was the best of times, it was the worst of times,” Judge Block opens the book with this attention-getter: “I am a federal judge. On June 2, 2023, I let a murderer serving a lifetime sentence out of jail.” Following a brief introduction in which he describes the scope of the national mass incarceration problem, Judge Block then describes six gripping cases in which he received a request for a sentence reduction under the provisions of the First Step Act, outlining the nature of the crimes for which the individuals were convicted, the sentence imposed, and the rationale for it. The cases range from one of the highest profile cases of police abuse of the past 30 years, one involving murder in aid of racketeering related to a drug enterprise, an individual with an otherwise spotless record convicted of receipt of child porn, and three organized crime cases – all involving multiple murders.
As noted, the context for A Second Chance is the enactment of the First Step Act in December of 2018. The law provides a vehicle for federal prisoners to directly petition the sentencing court and seek a sentence reduction, or what is generally known as “compassionate release,” based on a wide range of extraordinary or compelling reasons.
Before sharing with the reader how he decided the cases, Judge Block provides a primer on the First Step Act. This includes a fascinating section speculating on how and why then-President Trump signed the law in 2018, despite his lifelong tough-on-crime proclivities, including his infamous public campaign calling for the execution of the later exonerated “Central Park Five.” Shockingly, he has never expressed a word of regret, let alone an apology for that vile advocacy, which undeniably contributed to the climate which produced the infamous wrongful conviction. Judge Block speculates that Trump hoped that signing the First Step Act would improve his support among minority communities and help him gain reelection. That did not come to pass in the 2020 election. Of course, we now know that the 2024 election was another story.
Most significantly, Judge Block describes how the Act gave prisoners a direct path to the courts to seek consideration of compassionate release applications. Previously that power rested solely with the Bureau of Prisons, which rarely exercised it, and then only for a handful of prisoners who were literally at death’s door.
A Second Chance then focuses on the compassionate release motion in each of the six cases, providing a succinct synopsis of the ground for the application and the government’s opposition. There will be no spoilers in this review but suffice it to say that as a defense lawyer, I would have granted all the requests. Judge Block did not do so. But he does give a remarkably candid and revealing explanation of his thought process. Lawyers will find this candor instructive. The public will find this look into the inner workings of a judicial mind enormously revelatory and fascinating. What is particularly interesting is how Judge Block uses each of the cases to provide a critique of various flaws in the criminal process, including the impacts of flawed and arbitrary judging.
For example, in a case involving a pro se petition from an applicant who had served 21 years of a 30 year sentence, Judge Block denied the application for early release acknowledging that he may have subconsciously given undue weight to the prosecutor’s opposition submission because she was one of his former law clerks and that he, like other judges, was “not up to speed” on emerging case law that had expanded his authority to grant relief under the First Step Act. In the same case, the Judge illuminates the universal problem with lack of access to post-conviction counsel when he later came to realize that he was wrong to deny the applicant’s request for appointment of counsel.
In another case, the Judge’s favorable ruling highlighted the emerging body of evidence that youth at the time of the offense of conviction is an important consideration when coupled with evidence of rehabilitation. And, as importantly, Judge Block forthrightly called out the trial tax in noting that co-conspirators of the applicant, who had committed crimes that were at least as serious, were sentenced to far less time merely because they pled guilty. For all defense lawyers who daily grapple with the agonizing reality that a client who loses at trial will face a geometrically enhanced penalty, Judge Block’s observation will resonate with deep poignancy: “It did not seem right that a criminal defendant ... should receive a significantly longer sentence for exercising a fundamental right than had he pled guilty.” His concern with the imposition of a trial penalty is a factor he considers in several of the six cases; in other examples, he references in his plea for a more rational approach to sentencing.
In other situations, in weighing an applicant’s request to relief, Judge Block considers the deplorable conditions that pervade the nation’s federal prisons, specifically considering time spent in especially problematic facilities, such as the Metropolitan Detention Center in New York, as reason to reduce a sentence. As Judge Block sees it, not all time spent in custody is equal. When a person is confined in a place with squalid conditions, including freezing temperatures, rampant violence, maggots in food, and raw sewage in cells, that is an appropriate factor in assessing whether it is time to give a person a second chance.
In two final sections of the book, the Judge notes that harsh mandatory sentences and non-existent or broken parole systems are a far greater problem among the states and contribute much more significantly to mass incarceration. More broadly, he addresses the problems of wrongful conviction, unethical prosecutorial behavior, excessive sentencing, problems with broad prosecutorial immunity, irrational application of gun and drug laws, and the pervasive challenge of collateral consequences.
Judge Block puts a human face on several of these problems through the lens of an Arizona case that came before him on appeal by the state of a vacated conviction, when he sat by designation on the Ninth Circuit Court of Appeals. He critiques excessively harsh sentencing, the potential for wrongful conviction, and the tyranny of constricting laws that divest courts of the power to correct injustice in the sad and riveting tale of Stephen May. With no prior history, Stephen was sentenced to 75 years in prison for a child sexual abuse crime he may not have committed and, after serving 10 years, was released when a federal district court granted May’s post-conviction motion. The federal district court found that trial counsel had been ineffective for not objecting to a continuation of deliberations (which resulted in a guilty verdict) after the jury declared itself hung, a mistrial was declared, and the jury dismissed. While the jurors were putting on their coats to leave, the foreperson asked to resume deliberations and defense counsel did not object. As Judge Block writes, “[t]he role of the dice turned out to be snake eyes.”
Adding to the heartbreak, after the federal district court decision overturning his conviction, Stephen May was released and for four years lived a wholly law-abiding life while the state’s appeal was pending in the Ninth Circuit. He was later returned to prison, where he will likely die serving the remainder of his sentence. Initially, the three-judge panel that heard the state’s appeal voted 2-1 to uphold the district court’s decision setting Stephen free, with Judge Block writing the majority opinion. But before that decision was released, the judge who had originally joined Judge Block in the majority opinion changed her mind and joined what was originally the dissent to reinstate the conviction. Ironically. that judge wrote a concurrence noting “[t]he potential that May was wrongly convicted” and lamenting that “May’s sentence reflects poorly on our legal system…”
In so many ways, Judge Block bears witness to the fact that truth is surely stranger than fiction, and A Second Chance gives readers a truly unprecedented look into the inner workings of judicial decision-making and the many flaws that permeate the criminal legal system. Hopefully, Judge Block’s book will energize the emerging national movement to promote second chances. In recent years, various efforts to find vehicles to revisit overly long, compulsory sentences have begun to gain traction.[3] The Obama administration clemency initiative, that I was privileged to support, was certainly one noteworthy example, and recently, numerous groups, dozens of members of Congress, and 54 clemency recipients from five different Presidents (Biden, Obama, Trump, George W. Bush, and Clinton) have urged President Biden to broadly exercise the clemency power in his remaining days in office.[4]
The United States desperately needs second chance vehicles, and it needs judges like Fred Block, was well as presidents, governors, and prosecutors, who are willing to use the power when it is available. For those who are unfamiliar with the intricate human nuances and consequences of severe mandatory prison sentences, and for seasoned lawyers too, A Second Chance opens a window into how one judge grapples with the power to undo those sentences. Is the public ready to broadly undo the tyranny of mandatory minimums? Irrespective of candidate choice, ideology, or political preference, perhaps the outcome of the recent presidential election is proof positive that the American public is ready to embrace the concept of second chances.
[1] Remarks as Prepared for Delivery by Deputy Attorney General James Cole at the New York State Bar Association Annual Meeting (January 30, 2014), https://www.justice.gov/opa/speech/remarks-prepared-delivery-deputy-attorney-general-james-cole-new-york-state-bar.
[2] 18 U.S.C. § 3582 (c)(1)(A).
[3] For example, the National Association of Criminal Defense Lawyers released a report supporting Model Second Look legislation. https://www.nacdl.org/Document/SecondLookSecondChanceNACDLModelSecondLookLegis. Fair and Just Prosecution has produced a brief calling for prosecutors to adopt second look processes. https://www.fairandjustprosecution.org/staging/wp-content/uploads/2020/02/FJP_Issue-Brief_SentencingReview.pdf. The Sentencing Project leads a Second Chance Network, https://www.sentencingproject.org/advocacy/second-look-network/, and in May 2024 published a report The Second Look Movement – A Review of the Nation’s Sentence Review Laws, https://www.sentencingproject.org/reports/the-second-look-movement-a-review-of-the-nations-sentence-review-laws/.
[4] https://www.documentcloud.org/documents/25354946-2024-11-20-letter-to-president-biden-on-clemency?responsive=1&title=1.
 | A guest post by
|