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December 14, 2013

"Freeing Morgan Freeman: Expanding Back-End Release Authority in American Prisons"

The title of this post is the title of this notable and important new piece by Frank Bowman now available via SSRN. Here is the abstract:

This article, written for a symposium hosted by the Wake Forest Journal of Law & Policy on “Finality in Sentencing,” makes four arguments, three general and one specific.

First, the United States incarcerates too many people for too long, and mechanisms for making prison sentences less “final” will allow the U.S. to make those sentences shorter, thus reducing the prison population surplus.

Second, even if one is agnostic about the overall size of the American prison population, it is difficult to deny that least some appreciable fraction of current inmates are serving more time than can reasonably be justified on either moral or utilitarian grounds, and therefore American criminal justice systems ought to adopt mechanisms for identifying both individuals and categories of prisoners whose terms should be shortened.

Third, it is impossible, or at least unwise, to try to make “final” decisions — at least good final decisions — about how long someone should spend in prison at the beginning of the prison term, at least if that term is supposed to be very long. Thus, in cases where a long sentence is imposed, one ought not make the initial, front-end, judicial sentencing decision “final,” but should instead create mechanisms for one or more later second looks.

After exploring these contentions, I conclude that discretionary early-release mechanisms should be restored where they have been abandoned, and reinvigorated where they have languished. In particular, I propose instituting a discretionary back-end release mechanism for some categories of both federal and state long-sentence prisoners and I explore the political and institutional difficulties of doing so.

December 14, 2013 at 09:45 AM | Permalink


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When did Frank "The Quality of Mercy Must be Restrained" Bowman suddenly see the light????
Professor Stan Adelman

Posted by: Stan A. | Dec 14, 2013 9:59:44 AM

We should choose either one model or the other: finality or continuing review. There are reasonable arguments for both, but let's assume for present purposes that continuing review is the better choice.

With that assumption, it's true that some inmates will show that they are more-or-less safe for early release. Fair enough. But other inmates will get worse, more manipulative, angry and violent. Their initial sentences will turn out to have been inadequate.

If we are to shorten the sentences for the former group, why, under a continuing-review model of sentencing, should we not be able to lengthen the sentences for the latter?

Or is this simply a more sophisticated sort of push to get to backend lower sentences now that it seems that the prospects for frontend lowering (e.g., the Leahy/Paul bill and the Durbin/Lee bill) have dimmed?

Inquiring law teachers want to know!

Posted by: Bill Otis | Dec 14, 2013 10:02:17 AM

this is true Bill!

"more manipulative, angry and violent"

But the big question is why is it happening. Could a big part of it be they know the gov has shafted them with idiotic lifetime sentences and the lifetime of persecution for same IF they get out?

Especially that 10% of them the govt has admitted are factually innocent!

Posted by: rodsmith | Dec 14, 2013 11:11:53 AM

rodsmith --

The more likely reason some of them get more angry and violent is that that was the trajectory of their behavior way before they got to court. The government has less ability to change behavior, and hearts, than is often believed. Some people you just have to keep off the streets. This is not a happy fact, but it is, unfortunately, true.

I'd be very interested in your source for the assertion that the government "has admitted" that ten percent of its inmates are factually innocent. Could you link that?

I was an AUSA for 18 years, and I can tell you that the percentage of factually innocent defendants I saw go to prison was zero. In the huge majority of cases, factual innocence was not contested AT ANY TIME.

The modern reality is that the only "contest" that goes on anymore is how much of an excuse the defendant can gin up for his behavior, not whether he did it.

Posted by: Bill Otis | Dec 14, 2013 11:27:19 AM

Are there other related articles, like one about freeing Tim Robbins concerning wrongful convictions? Or, prison libraries or tax help? Do you trust your wife?

Seriously, I appreciate the first comment.

Posted by: Joe | Dec 14, 2013 12:11:14 PM

The article stated:

"Third, it is impossible, or at least unwise, to try to make “final” decisions — at least good final decisions — about how long someone should spend in prison at the beginning of the prison term, at least if that term is supposed to be very long. Thus, in cases where a long sentence is imposed, one ought not make the initial, front-end, judicial sentencing decision “final,” but should instead create mechanisms for one or more later second looks."

This is what they do in many states with sentences that are subject to parole and, if parole is never granted, a maximum sentence which results in release when it is served if the maximum sentence is for a period of years (rather than life subject to parole). This is sometimes referred to as "indeterminate sentencing" as opposed to "determinate" (or flat sentences).
I think they did something like this with federal sentences prior to reforms passed in 1986 or so -- which is before I graduate from law school.
Before some anonymous poster starts making belligerent comments about how I am taking some type of liberal approach to this, I am not advocating either approach --- determinate sentencing vs this form of indeterminate sentencing. (and I even hesitated to post this as I expect someone on here will figure out how to bend something out of this -- and I am not talking about Bill Otis, who I may not agree with in many instances, but find to be respectful and often logical - except for getting upset about someone calling him "Otis" without using his first name LOL).

Posted by: Tim Holloway | Dec 14, 2013 1:06:50 PM

I certainly hope that policy-makers give these ideas serious consideration. I would break it down in a slightly different way.

First, offenders should be held accountable. The reasons for holding offenders accountable do not change over time. Accountability determinations should be made at the outset of the planning process by judges.

Second, the risk that offenders will commit another crime should be controlled and reduced when that would be cost-effective. Risk does change for the better or worse. Accordingly risk control decisions should be changeable and incremental, and should be made by a Risk Control Board.

Deprivations are imposed to accomplish both categories of objectives. Those restraints that are most restrictive should control at any given point in time. In this way both categories of objectives can be accomplished in each case.

Posted by: Tom McGee | Dec 14, 2013 1:12:36 PM

The fundamental problem is that there is an inherent tension between consistency (equality) and individualization. This is also a problem that rears its head in Doug's love for creative sentencing. The more a sentence is targeted towards the individual's circumstances the more difficult it becomes to ascertain that this individual is being treated equitably in relationship to all members of the class to which it belongs (all fraud crimes between 10K and 20K, for instance.) On the other had, the more one strives for equability in sentences among group members the more problematic it becomes to ensure that the individual is been treated reasonably on moral or utilitarian grounds (to quote the article.) This tension is ultimately not resolvable.

My sense is to be opposed to continuing review because it strikes me as an easy way for the rich and famous to skate out the back door after all the media frenzy over their crimes has abated. We already know that there have been huge issues related to racial and class based disparities in up-front sentencing. Does anyone honestly believe that this problem is going to get better under some notion of continuing review? I can't imagine how. If racial and class based disparities in sentencing are already problematic when the sentence is open and public I can only imagine the problem being magnified once people turn their back on the passing scene.

Let me toss out another issue. In the article just below this one the UK is proposing that "good behavior" prior to a crime should be an aggravating factor in the initial sentencing. So should good behavior then also be an aggravating factor in terms of a second look under a system of continuing review? It makes no sense that a society would treat good behavior as an aggravating factor one situation and then treat good behavior as a mitigating factor in another situation.

Eric made a comment in another thread about the need of the system to "maintain and nourish power." Off the cuff, it strikes me that a system of continuing review is far more amendable to the maintenance and nourishment of power than a system of up-front sentencing. With up front sentencing the system has only one chance to toy with the condemned and its either make or break; with continuing review it has endless opportunities to twist and massages the facts to fits its own agenda. No thanks. I'll pass.

Posted by: Daniel | Dec 14, 2013 2:39:47 PM


Great post.

Posted by: TarlsQtr | Dec 14, 2013 2:58:48 PM

One of the difficulties with sentencing is that you lawyers fall for the "Prison is a Program Fallacy". Two people can be put in the same facility, but be placed in vastly different programs. One may be experience a vastly different set of deprivations than the other. Programs are what count, not places.

Posted by: Tom McGee | Dec 14, 2013 6:39:53 PM

We have too many locked up. Why? The lock up costs too much. Why? If you did the eye for an eye justice routine then we would kill more of them and blind more of them. Rapists get it in the rear with a big baseball bat with thorns. Killers get killed by the same method they inflicted. Talk em to death if you have to. Do not forget the 11th Commandment: Thou Shalt Not Pee In One's Own Pond. That seems to be a better approach.

Posted by: Liberty1st | Dec 14, 2013 7:27:53 PM

wish I could find it bill. was a report I saw years ago. link disappeared many computers ago.

I would also agree some are just bad. in fact it's probably MOST.

Posted by: rodsmith | Dec 15, 2013 2:09:18 AM

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