Task Force members are asked to join a consensus signifying that they endorse the general policy thrust and judgments reached by the group, though not necessarily every finding and recommendation. Members may append to the group report an additional perspective if they wish.
Members Amy Fettig, Trey Gowdy, and Bryan Stirling submitted the following statements.
I’m a proud member of the Council on Criminal Justice Task Force on Long Sentences. I believe that the work of the Task Force was incredibly significant and that progress was made over months of discussions, research, back and forth, agreements, disagreements, and compromise. At a fundamental level, I think the work of the Task Force also represents an evolution of our understanding about the impacts of crime for victims, survivors, and perpetrators. In this respect, I believe that the Task Force’s emphasis on the importance of individualized sentencing, the need for second looks, and ensuring that our systems of care help all victims and survivors of violent crime should constitute a baseline for reform efforts across the country.
Of course, I did and I do believe we need bolder, more affirmative calls for reform in order to end the age of mass incarceration and the extreme sentences that perpetuate it. Recognizing these realities based on decades of research and on-the-ground policy work in jurisdictions across the country, the organization that I lead, The Sentencing Project, recommends several key reforms that will help scale back extreme prison sentences that are both infused with racial bias and counterproductive to public safety. Specifically, I recommend several measures that go beyond the consensus recommendations of the Task Force.
First, I recommend eliminating mandatory sentences for all crimes. Mandatory minimum sentences, habitual offender laws, and mandatory transfer of juveniles to the adult criminal system give prosecutors too much authority while limiting the discretion of impartial judges, and disproportionately imposing unduly harsh sentences on Black and Latinx individuals. Eliminating all mandatory sentences is necessary to promote justice and equity in our criminal legal system, while undoing some of the most costly and ineffective policies of the mass incarceration era.
Second, states should require prospective and retroactive racial impact statements for all criminal statutes. In order to undo the racial and ethnic disparity resulting from decades of so-called “tough-on-crime” policies, states should also repeal existing racially biased laws and policies. The impact of racial impact laws will be modest at best if they remain only forward looking.
Third, states and jurisdictions should require sentencing reconsideration after 10 years. States and jurisdictions must institute an automatic sentence review “second look” process within a maximum of 10 years of imprisonment, with a rebuttable presumption of resentencing.
Finally, a 20-year cap on most sentences should be instituted. We now know that extreme sentences are counterproductive to advancing public safety. Long sentences should be consistent with the fact that criminological research has established that people age out of crime. Addressing extreme sentences and the system of mass incarceration that they support will take bold action.
Ultimately, more will be needed than the recommendations from this Task Force. In particular, we must address the racism and racial disparities in the criminal legal system that support and perpetuate mass incarceration and the extreme punishment it spawned. The facts of history and the reality of today demand nothing less from all of us.
Public safety is the preeminent function of government and a justice system worthy of respect is essential to a thriving society. These precepts lead me to offer my own perspective on some of the recommendations. I have a different view of the “evidence” as it relates to some recommendations and draw different conclusions from the evidence in others.
It is worth noting I do not consider ten years to be a “long” prison sentence for many crimes, particularly crimes of violence. Ten years was the working definition for the Task Force of what constitutes a “long” prison sentence but not my own definition. Ten years represents merely one-third of the mandatory minimum prison sentence for some serious offenses under current sentencing structures. And I continue to draw a distinction between violent and non-violent crimes. Recommendations which might be appropriate in non-violent cases would not be, in my judgment, appropriate in violent crime cases.
The sentencing process must provide certitude and transparency and those twin aims risk being jeopardized by some of these recommendations or the interpretations thereof.
Recommendation 6 states legislatures should “allow judges to consider individualized mitigating and aggravating factors whenever imposing a sentence that includes 10 or more years of imprisonment.” To be fair this recommendation is permissive and not mandatory, but nevertheless I am not able to support it. Many states and the federal criminal code have mandatory minimum prison sentences for certain crimes of violence including, depending on the jurisdiction, murder, sexual assault, the sexual assault of a child, burglary, and robbery. I cannot fathom the fact pattern where someone convicted of murder, criminal sexual conduct in the first degree, or the sexual assault of a child would receive a sentence of less than ten years and would never impose a duty on a judge to explain why he or she was following the law when the sentence was imposed. I continue to believe mandatory minimum prison sentences are appropriate in crimes of violence. If there is a belief that certain statutory maximums or minimums do not proportionally reflect the gravity of the offense, it should be the legislative body asked to do the weighing and balancing and not the sentencing judge.
Recommendation 8 asserts legislatures should “limit the extent to which criminal history can automatically and significantly increase sentences that require 10 or more years of imprisonment.” The implementation steps note that there should be “presumptive limitations placed on using criminal history to enhance sentences beyond 10 years based on “juvenile criminal history” or “a prior conviction, charge, or alleged crime that occurred no more than 10 years prior to the date of sentencing or 10 years after defendant was released from prison.” I cannot support shifting the burden to a sentencing judge to explain how and why she is using criminal history to justify a longer prison sentence, nor do I believe the age of the conviction alone is automatically disqualifying.
Recommendation 12 states legislatures and policymakers “should consider creating selective opportunities for people serving long sentences to receive judicial second looks consistent with the purposes of sentencing.” I do not believe all persons sentenced to 10 years or more should be eligible for second looks, especially those convicted of serious and violent offenses. What’s more, existing law already provides multiple opportunities for "second looks” through direct appeal, collateral review, post-conviction relief, habeas corpus, or parole boards. These pre-existing “second looks” are closer in time to the crime, prosecution, and sentencing.
There are other recommendations upon which my views differ from the consensus of the larger Task Force, but I felt compelled to address those mentioned above with particularity. The evidence relied upon for the some of the recommendations is not conclusive, indeed research commissioned for the Task Force shows long prison sentences can prevent crime by incapacitating those persons most likely to present an ongoing or future threat to public safety. The criticism, inter alia, is that public safety through long prison sentences exacts too high a societal expense. Reasonable minds can differ on balancing the societal costs of incarceration with the gain in public safety. I will err, if at all, on the side of public safety.
There is value in rehabilitation separate and aside from sentencing credit eligibility. Rehabilitation should not ipso facto lead to a decreased period of incarceration. There are defendants who should remain incarcerated for the balance of their natural lives regardless of remorse, restitution, rehabilitation, or restoration. There are ways to incent desired outcomes through classification changes, access to in-custodial programs, and other institutional benefits.
Long prison sentences require prosecutors, judges, and legislators to explain the length of a sentence, and the attendant consequences, to defendants, their family members, and the public. Shorter prison sentences force the police, victim advocates, prosecutors, and legislators to explain to victims, and/or their families, and the larger public. The most challenging explanation is the one with the second set of victims, those victimized by someone who had already shown the willingness to commit acts of violence and yet was afforded another opportunity to inflict more violence.
Throughout the course of the Task Force’s work, we have seen that people can and do change, but some do not. An act of violence is committed and over the course of time, education, rehabilitation, employment, or for other motivations a new person emerges. But some offenders continue to victimize so long as there's an opportunity to do so. And there are crimes so horrific that even a defendant's “rehabilitation” should not equate to freedom or a reduced sentence. The challenge is knowing who can change, who has changed, who cannot change, and which crimes are so grievous that the punishment should remain intact regardless of change. To the extent there is uncertainty, I will err, if at all, on the side of public safety.
Sentencing should be transparent and certain. That is not always the case in the courts in this country. Prisons are for public safety and rehabilitation. Ten years is the definition this task force used to define a “long prison sentence.” For violent crimes and frankly some nonviolent crimes, ten years is not a long time to pay the debt owed to society. Some nonviolent crimes can and often do lead to violence. The recommendations are lengthy; therefore, I choose to focus on just a few that I feel compelled to write about in this letter.
Recommendation 6: “Safety Valve,” states that judges should be allowed to give principled consideration to individualized mitigating and aggravating factors when imposing a sentence for over ten years, essentially letting judges use a “safety valve” to depart from what the respective legislative bodies instructed judges to sentence through legislation. A judge does this when imposing a sentence by deciding how long beyond the mandatory minimum a person is sentenced for the crime committed. State legislators and Congress have passed these sentencing laws after hearings that include testimony, and with votes for the respective members. If these bodies wanted the courts to sentence someone for less than ten years for a crime, then they would have passed a law allowing such departures.
Recommendation 8: Limiting Criminal History for Sentences Over Ten Years. Criminal history is often very informative to a court when deciding a sentence length and placing a limit on using criminal history in sentencing and making a court justify why it is using criminal history for a sentence is not something I can support.
Recommendation 12: Second Looks for People Serving Over Ten Years. This recommendation doesn’t say whether it is prospective or retrospective. Think of the family that lost a loved one and agreed to have that person plea to a certain amount of time, only to have a court, ten or so years later, give that person a “second look” and release them from custody. This would be breaking the state's contract with that victim and their loved ones. Even, if it is designed to be prospective, the same principle applies: The court should state at sentencing that at some point this person could be released from custody because of a “second look.” This “second look” defeats the transparency and certainty that is needed in criminal sentencing.
Combining a few of the recommendations, I do believe that there is a tremendous public safety benefit to rehabilitation and second chances once someone has served their sentence. To that end, states should incentivize folks to participate in programs and behave while they are incarcerated, and afford them the opportunity to progress through different housing levels when it is safe to do so both for the public and for those serving or working inside a prison. For example, in South Carolina some people can earn up to 15% off their sentence by participating in programs and/or working while incarcerated. South Carolina has the lowest recidivism rate in the country because in this state, the two governors I have served, along with a legislature that supports these funding programs. understand the role they play in public safety and tax savings.
There are other things in the report that I agree with and disagree with, but felt I needed to specifically address those mentioned above.