Should Second Look Efforts Focus Particularly on Drug Offense Sentences?
Jonathan’s most recent post discussed second-look sentencing in conjunction with a set of defendants who had all been convicted of murder and received life prison terms. Thinking through second-look sentencing issues with the worst homicides in mind is reasonable and important given that murderers generally receive the longest prison sentences and that many second-look proposals call for allowing all prisoners to seek resentencing after serving some fixed lengthy period behind bars. Given that the very worst violent crimes – including rapes and well as homicides – typically result in the lengthiest of prison terms, broad second-look sentencing proposals necessarily require grappling with whether and when the very worst violent criminals should receive a second look.
Though I have long been an advocate for traditional and modern forms of second-look sentencing ranging from clemency to parole to judicial resentencing, I must admit to some ambivalence as to whether second looks should be automatic or readily available for the very worst offenders. Especially when offenders are sentenced for serious violent crimes that result in lasting victims whose personal repose and psychic peace may be undermined by lingering uncertainty about the offender’s sentence, I can see forceful arguments for sometimes limiting opportunities for second looks. Thinking about heinous crimes involving multiple victims and profound community impact – such as the Tree of Life synagogue mass shooting or the Boston Marathon bombing – I would be inclined to favor rules that give victims and community representatives a direct voice in whether and when the sentences imposed on the very worst violent criminals can receive a second look.
But the concerns that make me hesitant about supporting broad second-look mechanisms for the most serious violent offenders explain, in part, my firm support for second-look sentencing for drug crimes. Relatively few drug offenses have defined victims or directly produce lasting community harms so as to create a group of individuals who are concerned with, or have settled expectations regarding, whether an initial drug sentence will be served in full. More broadly, as noted by the drafters of the American Law Institute’s recent revision of the Model Penal Code’s sentencing provisions, modern times have seen a “flux in community attitudes toward many drug offenses” showing how societal assessments of offense gravity and offender blameworthiness can shift in relatively short order. Clear doctrinal manifestations of shifting community views of drug offenses include the reduction of crack cocaine sentences by Congress in 2010, the reduction of all drug guideline ranges by the US Sentencing Commission in 2014, the legalization of marijuana by nearly half of all states over the last decade, and the further reduction of federal drug sentences through the First Step Act.
A full, detailed accounting of all the philosophical and policy arguments that might be made in support of an especially robust use of second-look sentencing mechanisms in drug cases is beyond the scope of this medium. But, with a particular eye on the federal sentencing system, I want to make a few observations about the practices and politics of second-look sentencing mechanisms as they relate to drug offenses:
On Recent Federal Practice: Data from the federal Bureau of Prisons show that less than 45% of those in the federal prison population are serving times for drug offenses. But the US Sentencing Commission’s compassionate release data reports show that nearly 60% of those recently receiving reduced sentences upon a showing of “extraordinary and compelling reasons warrant such a reduction” are drug offenders. Similarly, the vast majority of commutations of prison sentences by the last three Presidents have been granted to drug offenders. These realities reveal that the most prominent forms of second-look sentencing being applied in the federal system are being regularly utilized by a wide array of federal judges and by Presidents of both parties to reduce federal drug sentences. Put another way, in the federal system we can see a kind of second-look common law practice that reflects and reinforces the notion that robust use of second-look sentencing mechanisms may be especially appropriate in drug cases.
On Broader Politics: A growing number of states have enacted new statutes or are considering new proposals to authorize judges to review prison sentences for certain sets of offenders under certain circumstances. And while second-look sentencing advocates are understandably eager to have few limits on who should be eligible for possible resentencing and seek to increase the population of those eligible for sentence review, I wonder if second-look practices might be most effectively advanced now by seizing the “low-hanging fruit” that may be presented by a history of extreme sentencing in some drug cases. Calling for automatic second-look opportunities for all marijuana sentences when a state legalizes this drug, or perhaps seeking to create a relatively quick opportunity for review – say, after five years of imprisonment – for drug offenses that were not associated with any violence seem unlikely to engender robust political opposition. And through such proposals focused on drug offenders, advocates for broad second-look mechanisms may be able to build momentum and establish best practices that will make it politically and practically easier to expand second-look sentencing to more populations in the near future.
On rigorous data collection and analysis: As suggested above, recent federal sentencing history with commutations and compassionate release grants may already provide a valuable basis to start analyzing and assessing some emerging second-look trends. Similarly, as more state adopt or expand various resentencing mechanisms, data is starting to emerge on what types of crimes and offenders are getting considered for and securing reduced sentences. Drawing on Jonathan’s other recent discussion of how machine learning might help with the work of the US Sentencing Commission, I would suggest that an array of policymakers, analysts and advocates give particular attention to robust collection and sophisticated analyses of data on second-look sentencing. The range of means and goals for second-look sentencing efforts can be diverse and daunting, but that only makes it that much more important for government actors and many others to rigorously track, report and assess how these emerging new (re)sentencing tools are functioning.