Thousands of inmates across the country, predominantly people of color, have been released or resentenced under a provision of the new law that allowed changes to the sentencing provisions to be applied retroactively. As of January, 2,387 inmates had their sentences reduced under the provision that allows some crack cocaine offenders to be resentenced, out of 2,660 that the United States Sentencing Commission estimated in May 2018 were eligible.<\/p>\n
But the law gives judges discretion in reducing sentences, leaving some inmates like Mr. Maxwell without much recourse when their applications are rejected. In those cases, activists and defense lawyers worry that the First Step Act gives too much authority to judges to determine who does and does not deserve early release. \u201cIt\u2019s like the luck of the draw,\u201d said Sarah Ryan, a professor at Wesleyan University who has analyzed hundreds of First Step Act resentencing cases. \u201cYou\u2019ve got people sitting in prison during a pandemic, and it\u2019s not supposed to come down to who your judge is. It\u2019s supposed to come down to the law….\u201d<\/p>\n
Many public defenders \u2014 who handle most of these applications \u2014 in the toughest districts declined to speak on the record for fear of upsetting the judges who oversee their cases. Parks Small, a federal public defender in Columbia, S.C., said an imperfect First Step Act was still better than nothing, calling the bill a \u201cgodsend\u201d for many inmates. He added that judges varied as to the importance they placed on the original offense or the inmate\u2019s behavior behind bars. \u201cYou give it to different judges, they\u2019re going to come up with different opinions,\u201d Mr. Small said. \u201cIt\u2019s frustrating.\u201d<\/p><\/blockquote>\n
Thank you, Mr. Small and Prof. Ryan!\u00a0 I could have written those words myself; indeed I very likely did at one or more points during the debate about the SRA and its aftermath.<\/p>\n
It’s unfortunate, but to be expected, that the defense bar would discover the problems with excess discretion only when criminals come out on the short end of it.\u00a0 A more balanced view of the truth is that discretion is a problem, regardless of who wins and who loses, because it is subject to (1) flat-out abuse and (2) good faith but idiosyncratic application inconsistent with a system that aspires to equal justice under law.<\/p>\n
To make a very long story shorter, the nature of sentencing requires a mix of rules and discretion.\u00a0 Too much of the former will produce excess rigidity; too much of the latter will produce a crap shoot.\u00a0 The only question adults get to ask is what the precise mix of rules and discretion should be, not whether one or the other should be eliminated.<\/p>\n
My own view is that, for the most part, a rules-oriented system is better.\u00a0 There are a bunch of reasons for this\u00a0 —\u00a0 I’ve spent years writing about them\u00a0 —\u00a0 but the main one is this:\u00a0 The rule of law serves justice better than the rule of taste.\u00a0 There were other important considerations that drove Congress in the mid-Eighties as well.\u00a0 Perhaps the main one was that, in light of the generation-long, bloody crime wave that had been going on since the Sixties\u00a0 —\u00a0 to which lax and careless sentencing had contributed\u00a0 —\u00a0 judges needed considerably more guidance, and frankly more sobriety, than they had been getting.<\/p>\n
But for however that may be, I’m glad that, even if belatedly, at least some elements in the defense bar have come to understand that the previous gushing embrace of untethered discretion has its own share of pitfalls.<\/p>\n
<\/p>\n
<\/p>\n
<\/p>\n","protected":false},"excerpt":{"rendered":"
I spent a good chunk of my career at the Justice Department and my life afterwards speaking up for a sentencing system that more nearly resembles law than the “anything-goes” regimen that existed when I started my career.\u00a0 At that time, with limited exceptions, judges were free to sentence as they chose within any point in a very broad statutory range, pretty much with no questions asked.\u00a0 This led to scandalously wide and irrational disparity.\u00a0 In the Eighties, Congress noticed, and responded with one of its signal achievements, the Sentencing Reform Act of 1984.\u00a0 The SRA established the Sentencing Commission and a system of mandatory sentencing guidelines, with departures allowed in exceptional cases, for good reason explained by the court on the record. One of the main criticisms I encountered was that the SRA system was too rigid and took the human element out of sentencing.\u00a0 We should “let judges be judges,” or so I was told.\u00a0 I now see, however, that the adversaries of law-driven sentencing have had at least a modest change of heart.<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[49],"tags":[],"class_list":["post-1767","post","type-post","status-publish","format-standard","hentry","category-sentencing"],"yoast_head":"\n
Defense Bar Discovers that Judicial Discretion Has Downsides - Crime & Consequences<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.crimeandconsequences.blog\/?p=1767\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Defense Bar Discovers that Judicial Discretion Has Downsides - Crime & Consequences\" \/>\n<meta property=\"og:description\" content=\"I spent a good chunk of my career at the Justice Department and my life afterwards speaking up for a sentencing system that more nearly resembles law than the “anything-goes” regimen that existed when I started my career.\u00a0 At that time, with limited exceptions, judges were free to sentence as they chose within any point in a very broad statutory range, pretty much with no questions asked.\u00a0 This led to scandalously wide and irrational disparity.\u00a0 In the Eighties, Congress noticed, and responded with one of its signal achievements, the Sentencing Reform Act of 1984.\u00a0 The SRA established the Sentencing Commission and a system of mandatory sentencing guidelines, with departures allowed in exceptional cases, for good reason explained by the court on the record. 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