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May 17, 2010

Strong arguments for second-look sentencing reforms from SCOTUS concurrences

My chief gripe with all LWOP sentences as a policy matter, especially now that modern presidents and governors have largely refused to give serious consideration to nearly all prison commutation requests, is that these sentences essentially pronounce and encrust a final fate for a defendant at the time of initial sentencing.  Though good arguments can and have been made for "truth-in-sentencing" reforms that restrict the authority of a parole board or other institution to change significantly a sentence initially imposed by a judge, I think it folly to assume or even expect that "first-look" sentencing determinations (by prosecutors and/or judges and/or juries) will always be correct and thus should always be final.

The opinion for the Court in Graham speaks to these concerns when it notes that an LWOP sentence is akin to a death sentence in that "the sentence alters the offender’s life by a forfeiture that is irrevocable." And, of course, the Court goes on not only to note that LWOP "is an especially harsh punishment for a juvenile," but also to hold that such a sentence is unconstitutional for all juveniles convicted only of nonhomicide offenses.  But I found some of the "second look" ideas expressed by the Graham concurrences to speak more generally to my own affinity for second-look sentencing reforms.

The brief concurrence by Justice Stevens (which was joined by Justices Ginsburg and Sotomayor), for example, makes these points:

Society changes.  Knowledge accumulates.  We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time....

Though articulated here principally to justify Justice Stevens' concept of an evolving Eighth Amendment, I am inclined to give these insights a policy spin in tough budget times by replacing the phrase "cruel and unusual" with "ineffectual and unduly expensive."  Whatever one thinks about LWOP and constitutional interpretation, as a policy matter I just think it a bad idea for jurisdictions to preordain that certain offenders will always take up prison space given that our societal crime and punishment needs and knowledge is always changing.

Similarly, Chief Justice Roberts has these astute comments at the close of his Graham concurrence (my emphasis added):

The Court is of course correct that judges will never have perfect foresight — or perfect wisdom — in making sentencing decisions.  But this is true when they sentence adults no less than when they sentence juveniles. It is also true when they sentence juveniles who commit murder no less than when they sentence juveniles who commit other crimes.

I have added the emphasis here because I read the Chief Justice to be asserting — rightly, in my view — that all judges are severely limited in their ability predict and prescribe just and effective outcomes during "first-look" sentencing determinations.  In my view, recognizing that humans are necessarily imperfect in this context makes the the argument for second-look sentencing reforms especially compelling. 

May 17, 2010 at 07:05 PM | Permalink


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I happily find myself in TOTAL agreement with every word of your summary.

Posted by: peter | May 18, 2010 4:43:57 AM

Doug --

The irony is that Graham itself was a second-look sentence. Graham was given a big break (probation) for his first assault, then proved that he was just spinning the judge by his declaration of being a "changed person." The only notable change was that next time he broke into a home instead of a store. At that point, the judge who initially granted probation quite understandably took a "second look."

In theory, I agree that second look sentencing is a good idea. People do change. The problem is that second look sentencing as a practical matter works only in one direction (sentence reduction), while people change in BOTH directions. People get less dangerous, sure; they can also get more dangerous. Indeed it happens all the time.

Second look sentencing would be a really good idea if it conformed to this reality. That, as currently proposed, it conforms to only half of reality makes it a more problematic matter.

P.S. It is another irony that the Comstock case, also decided yesterday, can be viewed as a form of second look sentencing in the direction I am proposing. But Comstock comes in a very narrow context.

Posted by: Bill Otis | May 18, 2010 10:05:07 AM

I am glad your PS spotlights, Bill, that Comstock is second-look in exactly the way you propose for sex offenders. In addition, as you know, under the FSG people who commit crimes while still serving part of a sentence for another crime get their criminal history score enhanced, which is a way in which people getting more dangerous get a second-look enhancement. Indeed, arguably our emphasis on criminal history in all modern sentencing structures amount to a formal vindication of your view that people who show themselves to be more dangerous can/should/will get longer and longer sentences.

You make a good point about the irony that Graham itself was a kind of second-look sentence, and the related irony is that both times Graham appeared before a sentencing judge the judge appears to have made a deeply misguided choice in the exercise of his (in my view excessive) sentencing discretion. Graham's subsequent crime revealed that probation was likely the wrong sentence for his first adult crime, and his over-reactive response with an LWOP sentence was deemed constitutionally excessive by six SCOTUS Justices. It is a shame that the initial probation sentence did not get a sober second look, as that might have helped prevent Graham from thinking he need not really change his ways. And, critically, all that the ruling by SCOTUS does is give Terrance Graham a (slim?) chance to avoid dying in prison for teenage stupidity.

Thus, in addition to drawing second-look lessons from Graham, we might also draw judicial sentencing discretion lessons, too.

Posted by: Doug B. | May 18, 2010 10:46:32 AM

I think it is gread. That is the main motivating factor in what all people do. Criminals just are willing to go farther to get their money than the rest.

Posted by: P90x | Sep 15, 2010 3:11:01 AM

It is no use doing what you like; you have got to like what you do.

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