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March 21, 2018

Highlighting new DAs working on new sentence review efforts to address excessive punishments

This Marshall Project article, headlined "The DAs Who Want to Set the Guilty Free: ‘Sentence review units’ would revisit harsh punishments from the past," spotlights ways prosecutors are now reconsidering past prosecutorial punitiveness.  Here is an excerpt:

None of these conviction review units [created in DA offices] have undertaken the far more ambitious task of examining cases where the conviction might be sound but the punishment doesn’t fit the crime.  That would mean poking into the sentences sought by a previous generation of prosecutors whose reflexive stance, for decades, was often to seek maximum charges carrying hefty terms behind bars.  “It might open the floodgates to reviewing thousands of sentences,” said Steven A. Drizin, a law professor at Northwestern University and an expert on wrongful convictions who said he supports sentence reviews.

Despite the daunting undertaking, the idea is gaining traction.  In Philadelphia, where former civil-rights attorney and public defender Larry Krasner was recently sworn in as district attorney, staffers are making plans for a sentence review program, likely the first of its kind in the country.  Nationally, nearly two dozen newly elected prosecutors are working with an advocacy organization called Fair and Just Prosecution to implement their own sentencing-review procedures in the coming year, said Miriam Krinsky, the group’s executive director and a former longtime federal prosecutor.

Such a massive undertaking is, like many of the ambitions of this new breed of prosecutors, far easier said than done.  Normally, courts allow a prosecutor to seek re-sentencing only in limited circumstances, such as when new evidence arises or when legislators pass a new sentencing law that needs to be applied retroactively.  For example, Maryland in 2016 revised its mandatory minimum sentences, with a clause allowing judges to use those changes to reduce the time that then-current prisoners were serving.  Sometimes, a prisoner can be rewarded with a reduced sentence for cooperating in a police investigation. The compassionate release process also lets corrections agencies and courts reduce sentences retroactively, usually when the prisoner is gravely ill.  But there is no mechanism in many states for requesting a new sentence for a current inmate simply because a newly elected prosecutor says it’s in the best interest of justice....

In Philadelphia, Patricia Cummings, head of the conviction integrity unit, already has a workaround in mind.  She said a group within the DA's office focused on sentencing — which she would likely direct but that still needs staff and funding — could start by looking into first- or second-degree murder cases the office prosecuted in the past.  In Pennsylvania, a conviction on those charges automatically ends in a sentence of life in prison without parole. More than 5,000 of the state’s prisoners are currently serving these sentences, the second-highest number in the nation, and about half are from Philadelphia.  If the unit identifies a case where they believe the facts did not warrant such a harsh sentence, it would ask the trial court to throw out the original conviction and accept a guilty plea on a lesser charge of third-degree murder or manslaughter. Those charges carry much lighter sentences. “We’re still kicking this around,” said Cummings, who previously ran the conviction integrity unit in Dallas....

Another precedent can be found in Seattle, where prosecuting attorney Dan Satterberg has been giving people in prison second chances for the past decade.  He and his staff review old cases in which defendants were banished to life in prison for relatively minor crimes, often under the state’s three-strikes-you’re-out law.  They then sign onto clemency petitions for some of those prisoners.  Three of the 16 prisoners who were effectively “re-sentenced” this way have committed new crimes since getting released. But, Satterberg said, “there’s no way to avoid that other than to leave everyone in prison forever.”

“I think a prosecutor has a continuing obligation to justice, past the sentencing date,” said Satterberg. “We have to be willing to roll up our sleeves, look through the files of old cases, and really... compare them to our contemporary law and practice.”

Most states don’t have such a robust clemency system that prosecutors can use it as a kind of back-door re-sentencing program.  In Pennsylvania, for example, only eight life sentences have been shortened through commutation since 1995.  State law requires a pardons board to agree unanimously on any such decision. That means the mechanism will have to differ by state, said Krinsky, the head of the prosecutors’ group.  It may even require lobbying efforts to pass new legislation granting DAs the power to file a special motion for amending a sentence.

I am very pleased to hear of these developments, though I cannot resist noting that I urged them nearly a decade ago in at a symposium about prosecutorial discretion at Temple School of Law.  A reprinting of my remarks appear here as Encouraging (and Even Requiring) Prosecutors to be Second-Look Sentencers, 19 Temp. Pol. & Civ. Rts. L. Rev. 429 (2010). Here is part of what I said back then:

I strongly believe that modem criminal justice systems ought to incorporate formally some type of prosecutor-driven safety valve on the back-end of the system, a straightforward and relatively simple way for prosecutors to be involved in assessing and publicly noting who may be among the [many thousands of] people currently incarcerated in the United States who they now think, after taking the time to take a sound, sober, and sensible second look, can be safely released from prison and returned to freedom.

I suppose I should enjoy being old enough to see some of my old ideas become new again.

March 21, 2018 at 06:22 PM | Permalink

Comments

Congratulations to Prof. Berman, for having his idea put into effect. I have always felt policy makers and administrators should be reading this blog.

I have always advocated putting 5% of any savings into follow up research. So we need to know the level of desistance, the number of overdose deaths among the felons and their acquaintances and customers, the child abuse and domestic violence reports, health costs of relapses into addiction, including ICU costs for overdoses, the drops in real estate values where they move to, the loss of population to the suburbs, the consequences of the initiative.

Posted by: David Behar | Mar 22, 2018 11:15:41 AM

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