RECOMMENDATION 10
Allow Courts to Take a Second Look at Sentences
In the high-crime and tough-on-crime era of the 1980s, American leaders across the political spectrum were united by a defining rallying cry: “Lock them up and throw away the key!” At both the state and federal levels, laws were overhauled to turn that rhetoric into reality.
These policies have served several of their intended purposes, including greater punishment, incapacitation, and assurances to victims and survivors of crime about how long their assailants will be off the streets. But they also have come with great costs and diminishing benefits for public safety. In the federal system, more than 45,000 people—28% of the 175,000 people incarcerated—are serving sentences of at least 15 years. Given the system’s scant opportunities for clemency, people over age 55 now make up more than 11% of the federal prison population. Incapacitating older individuals pays fewer dividends as a crime-control strategy, because people are less and less likely as they age to commit new offenses, particularly violent ones. The frequency of criminal activity reaches a peak in a person’s late teens or early 20s and then declines, with most offenders aging out of crime by their 30s or 40s. Costs associated with aging inmates follow an opposite trajectory. It costs about 8% more (nearly $2,000) to house people age 50 and older in federal prisons, mainly because of their medical needs. While long sentences are warranted in many cases, the Task Force believes people should have enhanced opportunities for reconsideration of lengthy sentences in the interests of justice and cost-effective crime control. Without federal parole, which was eliminated in 1987, opportunities for a reduced sentence or accelerated release are limited. The power of executive clemency can commute (reduce) a sentence or offer a full pardon. The “compassionate release” statute allows for consideration of early release in narrowly defined situations, where “extraordinary or compelling circumstances” exist and could not have been foreseen by the sentencing court. A person may also challenge the constitutionality of a sentence through a writ of habeas corpus. These various mechanisms for expedited release, however, apply to only a fraction of people serving federal time. The “second look” proposal advanced by the Task Force is based on the revised Model Penal Code promulgated by the American Law Institute. Under the recommendation, individuals serving federal sentences could petition the court for reexamination of their sentences under certain circumstances. Further, the U.S. Sentencing Commission would develop guidelines for a sentence modification process, including reapplication, if the original request was denied. By acting on this recommendation, Congress would offer incarcerated individuals stronger incentives to complete treatment, educational, and employment programs; to maintain good behavior; and to demonstrate positive change. That record of conduct would be considered by courts as they evaluate whether a sentence adjustment would serve the interests of safety and justice.
Recommendation
Congress should enact legislation that provides an opportunity for people serving federal criminal sentences to petition the sentencing court for modification of such sentences after 15 years, with eligibility for reapplication every 10 years thereafter.
Implementation Steps
- Congress should authorize the U.S Sentencing Commission to develop guidelines and procedures for a sentencing modification process.
- The Commission, in turn, should develop a list of factors for sentencing courts to consider in determining whether a sentence modification is warranted, and if so, the extent of such modification. The list should include: a. the protection of the public; b. the individual’s behavior while incarcerated, including participation in rehabilitative and other programming; c. any statutory or guideline changes that have occurred during the individual’s period of incarceration and that are directly related to the underlying offense(s); d. the views of victim(s) or survivor(s) of the relevant crime(s); and e. any additional factors that relate to the nature of the offense, the culpability of the individual, and the interests of justice more generally that the Commission deems relevant.
- The Commission should create procedures for sentence modifications that include: a. the appointment of counsel, notice to all relevant stakeholders of the petition, and the opportunity for such stakeholders to present views to the court on the petition; b. a schedule for reapplication for sentence modification if the initial request is denied; c. a term of supervised release for individuals who are released under this procedure; and d. procedures regarding hearings, appeals, the rights of crime victims, or other issues deemed appropriate by the Commission.
- The Commission should publish a detailed annual report on cases heard under this provision, which should include information on courts’ rulings on the petitions, offense and geographic information of petitions and rulings, and demographic information—such as race, ethnicity, gender, age, etc.—on those who file petitions (with the resulting rulings).
Annotated Citations
American Law Institute, Model Penal Code, § 11.02 Modification of Long-Term Prison Sentences; Principles for Legislation. https://www.ali.org/projects/show/sentencing/ “1. The legislature shall authorize a judicial panel or other judicial decisionmaker to hear and rule upon applications for modification of sentence from prisoners who have served 15 years or any sentence of incarceration.” “2. After first eligibility, a prisoner’s right to apply for sentence modification shall recur at intervals not to exceed 10 years.” “4. Sentence modification under this provision should be viewed as analogous to a resentencing in light of present circumstances. The inquiry shall be whether the purposes of sentencing in Section 1.02(2)(a) would better be served by a modified sentence than the prisoner’s completion of the original sentence …” The American Law Institute suggests, in part, that “… governments should be especially cautious in the use of their powers when imposing penalties that deprive offenders of their liberty for a substantial portion of their adult lives. The provision reflects a profound sense of humility that ought to operate when punishments are imposed that will reach nearly a generation into the future, or longer still. A second-look mechanism is meant to ensure that these sanctions remain intelligible and justifiable at a point in time far distant from their original imposition.”
Mauer, Marc. “A 20-Year Maximum for Prison Sentences.” Democracy: A Journal of Ideas. Winter 2016, https://democracyjournal.org/magazine/39/a-20-year-maximum-for-prison-sentences/ “The excessively lengthy incarceration of offenders—yes, even for violent crimes—is counterproductive, costly, and inhumane. To remedy this problem, Congress and state legislative bodies should establish an upper limit of 20 years in prison as a maximum penalty, except in unusual cases such as a serial rapist who has not been amenable to treatment in prison or a mass murderer. The rationale for such a policy shift is grounded in both humanitarian and public-safety concerns. Life sentences ruin families and tear apart communities; they deprive the person of the chance to turn his or her life around. Moreover, it has long been known that individuals ‘age out’ of crime, and that this occurs at a surprisingly young age. As is true of all adults, offenders mature in prison as they age and develop a longer-term vision for their lives.”
Klingele, Cecelia. “Changing the Sentence Without Hiding the Truth: Judicial Sentence Modification as a Promising Method of Early Release.” William & Mary Law Review, vol. 52, no. 2, 2010, p. 465. https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3366&context=wmlr Judicial sentence modification is “an early release mechanism that permits sentencing courts to reduce inmates’ lawfully imposed terms of imprisonment when specified criteria have been met.” Modifications are critical today because “[f]rom the early 1980s through the beginning of the twenty-first century, U.S. state and federal crime policy was characterized by increasingly harsh custodial penalties.” This has led to state correctional costs that currently exceed $50 billion per year. Although recent legislative reforms have delivered some reduced sentencing schemes, most of this legislation places the decisions in the hands of prison officials or parole board members who are unaccountable to the communities in which the incarcerated people were sentenced and to which they likely will return. Instead, judicial sentence modification has potential as a more sustainable means to effectuate reduced sentencing, and guarantees aspects of transparency and accountability that are noticeably lacking when left to administrators or parole boards.
Hunt, Kim Steven, and Billy Easely II. The Effects of Aging on Recidivism Among Federal Offenders. U.S. Sentencing Commission, December 2017. https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171207_Recidivism-Age.pdf “The measure of time to first recidivism event can be useful in distinguishing offenders who recidivate early from those who eventually recidivate, but are apparently crime-free for a longer interval. The Commission found that the median amount of time between an offender’s release and his or her rearrest, which is highlighted on each timeline, reflected the greater tendency for younger cohorts to recidivate. Offenders who were younger than 30 when they were released had the shortest median time to rearrest (17 months). Conversely, the oldest offenders in the study, those 60 years and older, had the longest time to rearrest (28 months).”
