Federal inmates need second chances and Congress can act

Once a federally prosecuted defendant is sentenced, except in extremely unusual cases where a commutation (which makes a prisoner eligible for early release) or even a pardon (he is immediately released) is granted by the president, or where the defendant has provided the government with post-sentence cooperation after which his sentence can be lowered, albeit only based on the government’s motion, the ballgame is over for him in terms of his sentence. 

Unless the sentence was way out of bounds as to its length, or the judge took a serious misstep at sentencing and an appellate reversal is warranted, the defendant will have to serve the entire sentence (less roughly 15 percent for “good time”, for example, 8-1/2 of a 10 year sentence). There is no federal parole, period.

And, let’s face it, putting one’s hopes in the basket of gaining leniency by virtue of a president’s clemency power is often a fool’s errand. Bill Clinton did issue many midnight – actually, some scandalous – clemencies the night before he left office.

{mosads}Still, during the last two administrations – George W. Bush’s questionable commutation for Scooter Libby aside – comparatively no clemencies were granted until 2016 and, where they were, it was largely for drug convictions where people were serving throw-away-the-key type draconian sentences.

And given the new administration about to take office, there are serious questions as to whether any convicts will be accorded clemency, and if they are, who they will be.

But there used to be an escape hatch. Before the Sentencing Reform Act, effective late 1987, required virtually mandatory sentences (which, in 2005, became more malleable “guidelines”), a judge had the unbridled power to reduce a sentence – for any reason, or no reason at all– as long as the defendant filed for the reduction within 120 days from when he was sentenced or when his appeals ran out, whichever was later. 

There were, at the time, no sentencing guidelines that would have informed a judge’s sentencing leniency and the judge was permitted to take a “second look” under “Rule 35” (of the Federal Rules of Criminal Procedure), a then reflexively-used weapon in the defense lawyer’s arsenal.

So, once the judge’s ardor had cooled; or the judge simply had a second thought; or the defendant had gotten what the judge perceived as a needed “taste” of prison; or the victim was more forgiving given the passage of time; or even the judge’s baby granddaughter simply had a pretty smile on her face when the judge left for court that day; the judge could simply lower the sentence – literally to any period of time that the judge chose, even immediate probation.

And the sentencing judge could choose boldly and wildly; indeed, some judges (it is said) actually factored into the initially harsh sentence their intention to reduce it later.

Added to this mix is that judges are flatly unable – other than by making recommendations to the Bureau of Prisons, a bureaucracy that, under case law, is completely free to ignore them – to decide what prison a defendant should be placed in and whether it is near or far from family who, the judge believes, would visit if they could?

Meaning, a judge cannot tell the Bureau how to treat its prisoner – formerly the judge’s defendant – when he has been a model prisoner or is gravely or even terminally ill. No, when a defendant is sentenced, the judge has virtually no ability whatsoever to follow up or add to the discussion of that defendant’s future even in compassionate release scenarios.

So, when the U.S. Supreme Court in 2005 determined that the Sentencing Reform Act’s mandatory sentences could be no more than “guidelines,” why didn’t Congress reinstate the Rule 35 escape hatch, if you will; a procedural device that empowered judges to rethink the sentence which may have been too harsh when executed – the harshness perhaps motivated, in part, by the public fury over the case at the time (even though appointed-for- life federal judges will state, likely truthfully, that the public’s views do not factor into their decision-making).

Perhaps it is simply that a previously arrogant defendant, having spent a mere 120 days in jail, has finally come to grips with the gravity of what he did, and can better articulate his remorse.

Sentencing is not only about punishment and deterrence. It is also about mercy and hope.

Why should Congress want to deprive defendants – and, for that matter, our judges – of that “mercy” function? Shouldn’t the Legislature reinstate that second bite of the apple when cooperation is not implicated so that, at least to some extent, a judge can revisit his now non-mandatory sentence?

Unquestionably many, many individuals sitting in prison deserve to be there for long periods of time. But there are also many, many that don’t deserve to be there as long as originally imposed by the sentencing judge.

Federal judges are appointed by the president and confirmed by the Senate for life – they are not political hacks. Based on the challenging vetting process involved, Congress should have confidence in their ability to rethink their earlier sentencing decisions, and to take action consistent with that rethinking, if they think it is justified.

This is a nation of second chances – or at least one that gives everyone the hope and belief that there is the possibility of a second chance, when that second chance is warranted.

Few in America believe that criminal justice reform is not warranted. According defendants that second chance by allowing judges to take that second look, through a legislatively-enacted new Rule 35 (modeled after the old Rule), is one way to begin. At a time when the incoming Administration’s future policies are being considered by the Congress (partly in confirmation proceedings), maybe the wisdom of a renewed Rule 35 would be a worthwhile question not only for an incoming Attorney General, but also for the Congress itself.’

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. An adjunct professor at Fordham Law School, he regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications. Dale J. Degenshein of Stroock assisted in preparing this article.

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