In a recent New York Times op ed piece, James Forman, Jr. and Sarah Lustbader pose the question, “What can we do to shrink our prison population, the world’s largest?”

Their essay’s title, “Every D.A. in America Should Open a Sentence Review Unit,” provides one answer.

Forman and Lustbader don’t offer this step as a panacea. They recognize that there is no “silver bullet” solution to the U.S. incarceration crisis.

But they do argue that building a Sentence Review capacity is one place to start.

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.

There is also the question of what a different D.A. — one who is inclined to abuse the power to incentivize witnesses—might be tempted to do with a rich pool of inmate applicants who are serving life terms when that D.A. is handed the keys to the new process.

Neither of those problems is insurmountable; they are complications to work through.

But I do want to pose a question — as a supplement to Forman’s and Lustbader’s query, not as a challenge to it.

One More Question

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.)

Justifying that effort requires clearing away some dead wood — shedding some simplistic answers to how we got to where we find ourselves today.

We’re Not Just Smarter Now

There is a tendency to see the recent bipartisan recognition of exaggerated sentences as just one more chapter in The Progress of Mankind.

But before we stop at “We are smart now; they were stupid then.” we should recognize that if they were stupid, they got stupid.

For once, my elderly defender’s memories of The Old Days are verified by the data.

When I first practiced in the District of Columbia in the mid-1970’s I immediately began representing people charged with serious, often violent, crimes.

If you did the work, you had a realistic shot at saving clients from lengthy prison sentences.

There were programs a judge could send them to in the community. The Federal Youth Corrections Act and the Narcotic Addicts’ Recovery Act presented nuanced (although not exactly attractive or effective) options, and it was several years before a client of mine was whacked with a substantial term. There was a mandatory minimum sentence for murder: that was about it.

A glance at The Sentencing Project’s compelling graphic representation of U.S. Sentencing Trends is all that’s needed for you to see that the people doing the sentencing then were doing better than most enlightened progressives are proposing to do now in avoiding mass incarceration.

Mass incarceration was something the system learned how to do. How did that happen?

The Laws Didn’t Make Us Do It

The media have agreed that we face a catastrophic crisis in mass incarceration, and we are being treated to a swelling chorus of ex-presidents, and remorseful prosecution agencies all agreeing that we have a disaster on our hands.

The ensemble harmonizes flawlessly on the anthem: “The Law Made Us Do It!”

Like Hell it did.

“The Law” gave you the tools to do it with, but you are the ones who choose to pick up the tools and to use them.

Unless we all face up to that fact and understand why the choices these actors made seemed like good ideas to them at the time, they (or their successors) will, after a fleeting interval, just do it all again.

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.

The prevailing version of the etiology of mass incarceration imagines that some legislator, prosecutor, or judge sat and pondered the interaction of various substantive criminal law goals such as punishment, deterrence, incapacitation, and rehabilitation, while deciding on a legislative scheme, a prosecutorial strategy, or a sentence.

Next, they picked a number based on a careful policy calculation, then put it in a mandatory guideline or minimum sentence.

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.

The D.A. Didn’t Act Alone

There is plenty of social science indicating that prosecutors’ behavior was the most powerful driver of the incarceration trend. Put that together with the reality that prosecutorial initiative is the most direct way to get things moving now, and the Forman and Lustbader route makes pragmatic sense.

But unjust sentences were not the product of prosecutors working alone; they are system errors.

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.

Sentences may be driven by prosecutors, but they are also influenced by defenders. For example, a recent study makes clear that the Bronx Defenders’ self-consciously “holistic” approach managed to significantly bend the incarceration curve downwards.

The barriers against delivering that sort of advocacy will face tomorrow’s defender even after the Sentencing Review Unit has corrected yesterday’s sentence.

In some jurisdictions, probation’s presentence reports might fill any information gap left by hard-pressed defenders: they could outline the “fit” between the defendant’s history, the available programs, and the community’s safety.

But even that report can be influenced by the absence of defender input, and the likelihood of a probation officer compiling a useful alternative to “longer is better” can be decimated by caseload and resource issues.

Any judges who might have been inclined to resist prosecutors’ extreme sentencing demands faced an asymmetrical risk. If the defendant was Kalief Browder, who would likely never have committed a future serious crime, no one would ever know that he should not have been locked up, and the judge was safe.

But if the defendant was released over the prosecutors’ objections and turned out to be Willie Horton, then the sentencing judge would be toast.

Recent attacks by “enlightened” media outlets such as the Washington Post (editorializing against sentence reviews) and the Boston Globe (attacking D.A. Rachel Rollins with individual horror stories) make it clear that threat will be a background condition of future sentencing proceedings too.

It will turn out that many of the horrific sentences uncovered by Sentencing Review Units were imposed without much thought at all. One function of the draconian sentence is to sustain the “going rate”—to project a credible threat that leverages guilty pleas in an overwhelmed system and keeps the line moving.

If tomorrow’s docket is the deluge that yesterday’s was, yesterday’s solutions will continue to exert their pull. Besides, how can we give this guy only three years when we gave yesterday’s five?

It Isn’t Fixed

No one is about to step forward and say “Let’s try mass incarceration again”; the strategy is renounced even by William Barr who did say it back then.

Because we now encounter the incarceration crisis as a genuinely mass phenomenon it is sometimes hard to remember that it was built one prisoner (and one prison year) at a time.

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.

Prosecutors’ Sentence Review Units will be most important if they can be harbingers of a cultural shift in criminal justice toward a new collaboration—toward a practice community in which everyone accepts individual responsibility for a just collective outcome and works continuously (and together) to reach that goal.

For D.A.’s to say “We made a mistake in this sentencing” will signal a new commitment to the recognition that longer is not better in sentencing.

For D.A.’s to say “We want to work together to learn how and why this mistake was made” will signal—to the staff, and to the community—a determined commitment to avoiding repeating the mistake tomorrow.

Learning reviews of bad sentences will show us that there are conditions to be changed, influences to be counteracted, things we can do differently. This would be a good place to get to work.

This piece was originally published on The Crime Report.

James M. Doyle

The Crime Report

James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report.


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