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August 2, 2019

"Every D.A. in America Should Open a Sentence Review Unit"

The title of this post is the title of this notable new New York Times commentary authored by James Forman Jr. and Sarah Lustbader. Here are excerpts:

What can we do to shrink our prison population, the world’s largest?

Most answers to that question point forward: They look to reduce future arrests, prosecutions and sentences. But such changes, while desperately needed, do nothing for the hundreds of thousands of people who are already serving long sentences in America’s expensive and overcrowded prison system.

And make no mistake about it: There are a lot of people serving extraordinarily long sentences. The state prison population grew 222 percent from 1980 to 2010; the National Research Council attributes half of that growth to an increase in incarceration time. The Sentencing Project reports that one in seven American prisoners is serving either a life sentence or its functional equivalent. (In some states, the number is almost one in three.)  Once, parole boards could truncate some of these long sentences, but the decimation of parole has largely eliminated that possibility.

The explosion in sentence length has turned some prison wings into de facto nursing homes, with prisons responsible for providing costly medical care to a growing elderly population. Keeping people locked up for so long does little for public safety. Most people who commit crimes, including violent crimes, do so while young. Arrest rates for violent crimes peak during people’s late teens (rates for robbery, for example, are highest at age 19), and criminal careers for violent crime typically last only five to 10 years....

Fortunately there is growing momentum to reduce excessive sentences. Legislation authorizing sentence reductions in old cases has passed in California and the District of Columbia. Senator Cory Booker has proposed something similar at the federal level. And in July, more than 3,000 people were released from federal custody under the First Step Act, passed in December, which allows certain federal prisoners to earn early release for good conduct.

But there is another solution to this problem. Prosecutors can recognize their role in creating the crisis and work toward fixing it. They should start by opening “sentence review units,” which would consist of small dedicated teams of lawyers, investigators, data scientists and social workers within the prosecutor’s office. The details would vary by place, but each team would review past cases, and when they find sentences that seem particularly egregious, prosecutors would give these cases a second look....

The concept of sentence review units is not entirely unfamiliar; it builds on conviction review units that root out cases where an innocent person has been found guilty. Sentence review units are similar, but instead of wrongful convictions, they seek out cases where the sentence seems excessive. What counts as “excessive” is necessarily a judgment call, but examples include sentences that in retrospect seem disproportionate to the severity of the offense, or those that are far longer than what a person sentenced today would receive.

Why should prosecutors be the ones to lead the movement to cut down long sentences? Because they were, and in many places still are, a major driver of the country’s sentencing explosion. In the courtroom, they have pushed for maximum sentences and resisted appeals for leniency. In statehouses, they have lobbied legislatures for longer sentences and opposed reform efforts...

Larry Krasner, Philadelphia’s district attorney, intends to open a sentence review unit. “Sometimes extreme sentences reflect unscientific beliefs; sometimes they reflect racism; and sometimes they reflect judges who punish you 10 times harder if you went to trial,” he told us in an interview. In all these cases, he said, the upshot is the same: “There are a lot of people in jail who very clearly don’t need to stay in jail.”

For now, sentence review remains ad hoc. But demands from citizens and leaders can help these local efforts grow into a national movement. Cutting down excessive sentences will not, on its own, solve the crisis of mass incarceration or bring our prison population in line with the rest of the world. But failing to act will ensure that the wounds caused by those sentences never heal.

Regular readers will not be surprised to know I am a big fan of this idea. Indeed, I wrote an a short article on this very topic nearly a decade ago, titled Encouraging (and Even Requiring) Prosecutors to be Second-Look Sentencers, 19 Temp. Pol. & Civ. Rts. L. Rev. 429 (2010).

August 2, 2019 at 06:23 AM | Permalink


In my experience, having watched this very concept in action, is that the cases that are brought to the attention of this essentially “super parole board” are sometimes through connections which calls into serious question the equity of the system. Additionally, the mindset that goes into these reviews is nearly exclusively a moralistic arrogance over the persons who made decisions in the past. That kind of thinking is dangerous. We should be making decisions based upon the law and fact, not perceived superiority of wisdom.

Finally, these review units feed on the good feelings that we get when we exercise mercy. Of course, the only reason (in Ca) these prosecutors have the power to exercise mercy in otherwise final cases is because they have asked the legislature for that power. It’s like printing money. Frankly, the diversion of resources from current pending cases is unwise. These decisions should be left to the parole board or clemency system, not prosecutors.

Posted by: Eric | Aug 2, 2019 9:45:01 AM

While I knew James when he was a law student, this proposal unfortunately is the nation-wide one-size fits all proposal (unfortunately also sometimes seen from the ABA) that ignores the different ways that states structure their criminal justice system. In many states, the role of the local prosecutor in a case ends at a certain point in the case (maybe immediately after sentencing, maybe after the initial collateral review). At that point, all control over the case shifts to the Attorney General who handles all subsequent challenges to the conviction and sentence. In those states, there is no mechanism by which the local prosecutor could change the sentence even if the local prosecutor wanted to.

Rather than assuming that the prosecutor has the power to change the sentence, the better proposal would be to have states establish a sentence review mechanism (other than the power to grant parole or the power to commute) regardless of which agency has that responsibility.

Posted by: tmm | Aug 2, 2019 10:55:02 AM

I'm sorry, what institutional incentive is there for prosecutors to open up such units? This proposal may be sensible, but highly idealistic. I wish the authors would have spent more addressing how, realistically, DA's can be incentivized to create these units.

Posted by: sacamanow | Aug 2, 2019 6:58:24 PM

One practical problem for a "sentence review unit" is that it would violatesthe state constitutional separation of powers doctrine in at least a few states: the reduction of a final sentence is equivalent to the power of commutation, and the power of commutation is reserved exclusively to the governor. See People v. Herrera, 516 P.2d 626, 629 (Colo. 1973) (collecting cases from Michigan, Mississippi, North Carolina, and Texas).

That said, there's nothing preventing district attorneys from supporting applications for clemency made by persons serving outrageous sentences. It's just that district attorneys are often elected officials, and advocating for the release of inmates is perceived as something that might hurt one's chances for reelection.

Posted by: MBC | Aug 2, 2019 6:58:45 PM

I suppose a county attorney could establish an internal sentencing review panel in order to reduce the chances of a costly appeal. I suppose they could also add external reviewers to the panel as well. Anything that will reduce the case load can help ameliorate the problem.

Posted by: John Neff | Aug 2, 2019 10:19:11 PM

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