Why not defer individual jail sentences?

You committed a federal crime. It’s a felony, and any felony is serious. You did it because you’re young and stupid. Or maybe not so young, but still stupid. Maybe you were roped into it by someone your senior. Maybe you did the crime simply because you needed money badly — to pay off a debt, or even to feed your children. Your excuse, if there is one, may be sympathetic; maybe not. Either way, your lawyer tells you the best chance to gain a softer landing is to plead guilty. Still, you may face serious jail time, although you’re currently out on bail. 

As for the length of that jail sentence? It will depend on several things. While the draconian sentencing guidelines for all federal crimes no longer are mandatory — meaning judges aren’t “required” to blindly follow them — they still carry a lot of weight, depending on the judge. Some judges tend to follow them closely, and others employ them as only one of many factors in their decision. Either way, it’s a starting point in sentencing determinations.

Importantly, though, the sentencing judge is still being asked by “the system” to take a snapshot of the defendant when he committed the crime. True, a judge likely will consider a defendant’s past good deeds and other mitigating factors and will consider a defendant’s level of remorse. Some judges consider how quickly the defendant pleaded guilty to save the resources of the government and the court. Did he, maybe with his lawyer’s help, write a heartfelt letter or speak from the heart at sentencing, explaining how remorseful he truly is for his illegal conduct?  

Even so, that only shows the defendant’s remorse over the few months since his guilty plea while he awaited his sentence. If, however, the sentence wouldn’t occur for another two or three years, the judge might get a far better sense of whether the defendant actually picked himself up and turned his life around, demonstrating that he’s not only remorseful when sentencing is imminent, but also a good citizen who has learned from his “mistake” and earned more than just a sentencing diminution — maybe even, in some cases, a sentence of probation.

It all sounds good, right? But, strictly speaking, nothing in federal criminal procedure necessarily enables an individual to have the court postpone his sentence so that the judge, if so inclined, can consider two or three more years of personal growth and “turnaround” on the part of the defendant.  

Oddly, by contrast, a corporate defendant can get such a benefit. If a prosecutor accords an indicted corporate defendant a deferred prosecution agreement, the case typically is put on hold for months, maybe a year or more, so that the corporation can show the court that it is, indeed, “cleaning up its act.” Perhaps, ideally, during that period it has established a corporate compliance program calculated to monitor the type of misconduct that got the corporation into trouble. Under the agreement, if approved by the court, the indictment typically would be fully dismissed when the monitoring period ends. 

So, why isn’t something similar available for individual defendants? I’m not suggesting an outright dismissal of a person’s case after an agreed-upon (somewhat court-monitored) period of “good behavior.” Instead, I’m proposing that a defendant’s sentence be postponed (at the request of, or with the consent of, the defendant), with the judge receiving periodic, informal reports about the defendant’s ongoing conduct. During this period, the sentencing judge becomes the defendant’s “probation officer” by being able to determine whether the person is walking the straight and narrow. 

Is there a better means to determine if the defendant is truly being rehabilitated? Not only that, doesn’t it also incentivize rehabilitation when the judge will continue to maintain the gavel for use after this period of sentence postponement ends? 

To be sure, some defendants will run afoul of the judge’s beneficence in having granted such a continuance. If so, however, the judge would be positioned to remand the defendant  immediately to begin his sentence. And that sentence likely would not be particularly lenient — maybe even more harsh than it otherwise would have been. That’s the price a person should pay if given a second chance and he blows it. 

Yes, the procedure proposed here would place added duties and time burdens on judges whose calendars already are overburdened, and likely for probation officers, too, if the judge decides to direct the probation department to periodically report the defendant’s progress. Still, wouldn’t the judges who employ this procedure be making valuable contributions to criminal justice in helping to rehabilitate defendants and lowering the need for incarceration in an overloaded federal prison system? Most importantly, the suspense period would give the defendant every impetus to straighten up and live a law-abiding life.  

Yes, in some cases it might be painful for a defendant to wait two or three years for his “day of judgment,” not knowing if he will have satisfied the judge when sentencing day finally arrives. The ball is in his court, though. He can opt out, or never ask his lawyer to request that the judge put the case on hold. People make important choices in life all the time, and it would be up to each defendant whether to roll the dice, hoping to reduce a jail sentence or even gain a sentence of probation. This will not work with all judges — most judges wouldn’t even consider it, especially if the government opposes it. Knowing a judge’s sentencing pattern is a key factor to consider.

I did not initiate this idea in my imagination. U.S. District Judge Emmet Sullivan of the District of Columbia occasionally employs this “suspense” practice in cases where it makes sense to him. And, as I understand it, he sometimes proposes it if an informed defendant affirmatively requests it. It seems to be working. I suspect it probably doesn’t require the government’s consent, although obviously that would be preferable. It’s something for other judges to think about.

The federal sentencing process — including a judge’s consideration of guidelines that are merely “advisory” — needs to be overhauled. Nonetheless, while that arduous review process is under way, judges could employ mechanisms such as the one described here to make justice work in their courtrooms.

Joel Cohen, a former federal and state prosecutor, practices white-collar criminal defense law at Stroock & Stroock & Lavan and is an adjunct professor at both Fordham and Cardozo law schools. He is the author of “Blindfolds Off: Judges On How They Decide.”