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August 21, 2019

"How Do Prosecutors (and the Rest of Us) Get Sentencing So Wrong?"

The title of this post is the title of this lengthy new commentary at The Crime Report authored by James Doyle.  Here are excerpts: 

When enlightened prosecutors are forming Conviction Integrity Units to reassess old convictions, initiating Sentence Review Units to re-examine distended sentences would save money, and lead to the release of prisoners who are no longer dangerous.  It’s a very good idea, even if the problem is not as simple as it might seem.  In many states, a D.A. who has identified a grotesquely excessive sentence has no procedural avenue available for cutting the sentence. New legal tools will have to be developed....

But [even if] we cut the prison population by reviewing old sentences and releasing prisoners, how do we avoid quickly replacing them?  Don’t we have to work to understand why the horrific sentences were imposed in the first place?  Why our predecessors zigged when we know that they should have zagged?

For me, the best way to approach this question is to take a few pages from the books of medicine and aviation and follow every finding of an unjust sentence with an all-stakeholders’ forward-looking, non-blaming learning review, focused on avoiding repetition.  When a D.A. uncovers a mistaken sentence it should be treated as a “Sentinel Event” — as an opportunity to learn by mobilizing the perspectives of all ranks, in all of the professional roles implicated: cops, prosecutors, defenders, probation offices, and courts.

And we should hear from the victims, from the communities the sentences were designed to protect, and from the researchers who marshal the data relevant to the decisions and their aftermaths. (It wouldn’t hurt to hear from the defendants too.)...

My prediction is that we will find that there was a moment in almost every case that a new Sentencing Review Unit identifies when human actors in the criminal justice system had a choice about whom to arrest, what to charge, which forum (state or federal) to bring the charge in, or what sentencing provision to invoke....

What we actually face is the work product of hard-pressed cops, lawyers, probation officers, and judges trying to get through their days.  They were not driven by ideological commitments or racist theories.  But they were under pressure — from the politicians and the media, from their caseloads, the docket lists, their peers, and administrators thirsty for “outputs.”

They didn’t set out to do extraordinary harm to individual minority defendants; it’s worse than that.  The fact is they didn’t care enough about any individual minority defendant to target one. They barely saw them. These players were seeking their own safety as much as they are seeking anything, and their strongest allegiance was to the path of least resistance.

They wanted to get to get rid of the damned case without a trial, and to move on to the next one.  Then, tomorrow, they would be able to handle that next case in the same way, as long as they managed to preserve the “going rate” today.  Long prison sentences were a weapon in their daily struggles, not their goal.

Mass incarceration was not produced by a clap of legislative thunder; it was produced by a process of drift — even if that process was assisted by new legislative levers. Each day’s longer sentence became the new departure point for the next day’s — which, in turn, was just a little bit longer. So, the new prisoner would be there to be counted next year too.  Who brought that about?  Everybody....

New Sentence Reviews will find individual cases where a prosecutor decided on an extreme sentence and rammed it through.  But more often, an extreme sentence involves acts (and omissions) from across the range of criminal justice operators involved in a case.

Each participant in a sentencing — cop, probation officer, prosecutor, defender, judge — makes choices that affect everyone else’s work.  And all of these players are buffeted simultaneously by external environmental factors: caseloads rise, budgets fall, treatment programs close, spasmodic media pressure ratchets up, options narrow....

A Sentencing Review Unit can do crucial work in correcting injustices.  But we ought to remember what is an axiom to the people who work in the field of public safety: Nothing is ever permanently “fixed”; your “fix” is under attack by its environment the moment it you put it in place.

August 21, 2019 at 05:07 PM | Permalink


I think that in most cases with an "excessive" sentence what has changed is the view of what an appropriate sentence is. Particularly in "non-guideline" states, most offenses carry a range of punishment and there will be a large number of offenses that are the same "class" of felony with the same range of punishment. Different people are going to disagree about what is the appropriate sentence for a particular offense; and part of what drives what offenses deserve a higher sentence is what offenses seem to be a problem at the time. When an offense becomes less of a problem, the sentences that used to seem appropriate look excessive.

Posted by: tmm | Aug 22, 2019 11:18:27 AM

As a career prosecutor I was cautious about the conviction integrity unit push because it relied so heavily on putting the right person in the job. Overall, I think the evidence is that the idea has been a good thing. It appears that they don’t have enough work to do, because now the same forces that opened up old cases on issues of innocence are pushing to rip open old cases because they are somehow enlightened about what is just when compared to the people who came before them.

Exercising mercy because one has an inflated sense of what is right is easy, but also a moral arrogance that is frequently unjustified. I’m tired of the massive push to look backward. If the individual is so safe for release, commute the sentence and answer to the victims and the public. There is already a mechanism in place in every state. There is no need for the diversion of scarce prosecutorial resources from new cases coming through the door; cases where we need to make sure the defendant is the right one before moving on to the next.

These movements are the shiny object distracting us from the most important work of determining whether a crime was committed, whether it can be proven and whether pursuit of the particular case serves a legitimate purpose. While the reasons proffered for the sentences that Mr. Doyle contemplates undoing are less grating than the usual silliness of alleging bloodthirsty prosecutors, these proposals still will rob the conviction integrity units of the limited resources they get to undo true injustice, being convicted for a crime not committed.

Posted by: David | Aug 22, 2019 11:43:55 PM

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