Taking a Second Look at (In)Justice by Michael Serota

Should we reevaluate the sentences of individuals we incarcerate for long periods of time for crimes committed in their youth after they’ve served a decade or more in prison? That’s the question at the heart of a contentious debate over second-look sentencing, which is currently transpiring in the District of Columbia—but is poised to spread throughout the country.

In 2016, the District’s local legislative authority, the D.C. Council, passed the Incarceration Reduction Amendment Act (IRAA), which affords those incarcerated for serious crimes committed before the age of eighteen the opportunity to ask judges to reconsider—and, where appropriate, reduce—their sentences after they spend at least fifteen years in prison. To grant these requests, judges are required to conclude that, in light of a range of factors, “the defendant is not a danger to the safety of any person or the community and that the interests of justice warrant a sentence modification.” (The court’s determination must also be reduced to a written opinion “stating the reasons for granting or denying the application,” which is subject to review under “well-established standards of reasonableness.”)

The policy has thus far been successful in safely reducing long-term sentences. For example, none of the eighteen people that have thus far been released under the IRAA have reoffended. And many of the beneficiaries of these sentencing reductions have become active in the community, working as violence interrupters, mentors, and advocates of nonviolence.

Inspired by the positive results, as well as the powerful narratives of personal redemption they reflect, the chair of the D.C. Council’s Committee on the Judiciary and Public Safety, Charles Allen, began working on a bill that would expand the IRAA’s modest reach. Introduced in February 2019, the Second Look Amendment Act (SLAA) simply increases the age of eligibility under the IRAA from 18 to 25 at the time of the crime. (This is based on, among other considerations, a growing body of research showing brain development continues into a person’s mid-twenties).

Initially, the SLAA received little attention. But that all changed in the summer of 2019 when, after many months of silence, the city’s chief local prosecutor, the U.S. Attorney’s Office for the District of Columbia (USAO-DC), embarked on an aggressive public lobbying campaign in opposition to the bill. In September 2019, that campaign reached a crescendo with a divisive community event organized by USAO-DC, during which one of the Office’s prosecutors sought to dismiss “a lot of talk about the brain science and the concern for [defendants] who are 16 to 24 years old” by highlighting the frequently young victims, whose “16- to 24-year-old brains were never developing because they’re being prematurely snuffed out by violence that we need to be doing more to stop.”

More inflammatory yet was this same prosecutor’s false claim that “the District of Columbia has the lowest incarceration rate in the country.” In reality, just the opposite is true: the District of Columbia has one of the highest incarceration rates in the country. After much foot-dragging, USAO-DC finally retracted this misstatement (through a tweet). However, the Office continues to misrepresent other aspects of the legislation, such as by claiming that judges are not able to consider the nature of the crime when deciding whether to reduce a sentence under the legislation. In fact, IRAA does afford judges this ability—and District prosecutors have argued as much in court. Needless to say, USAO-DC still appears to be very much against the Second Look Amendment Act.

***

Recent legal scholarship demonstrates why USAO-DC’s position is misguided if the goal is to promote the overall societal welfare of the District’s residents. Reevaluating—and in appropriate cases, reducing—long-term sentences after fifteen years of imprisonment is supported by a wide range of utilitarian considerations, including the interests of public safety (due to the criminogenic effect of prison), rehabilitation, the preservation of families, the efficient use of government resources (for example, because recidivism rates decline markedly with age), and the effective integration of prisoners into their communities.

At the same time, though, many do not view matters of criminal liability and punishment from this kind of utilitarian perspective. Rather, it’s also common to take a more retributive approach, in which the focus of sentencing is to do justice by calibrating punishment to fit the seriousness of the defendant’s conduct and the blameworthiness of his or her state of mind. In that case, the potential prospective benefits of revisiting lengthy sentences may be beside the point. Instead, the central question is simply whether those sentences were deserved—and therefore fairly imposed—in the first instance.

Arguably, it is this backward-looking perspective, and a concomitant belief in the fairness of prior sentences, that lies at the heart of prosecutorial lobbying efforts against second-look sentencing. There are, of course, other reasons why prosecutors might oppose these policies, which would require them to show up in court and face the prospect of judges reducing longstanding sentences that all parties—including the victim(s)—may have relied upon. However, to the extent that prosecutors take their unique role as “ministers of justice” seriously, one suspects a fundamental belief in the fairness of the judgments already in place drives the prosecutorial motivation to lobby against second look proposals. Which raises the following question: Is this belief justified?

***

I don’t believe that the District’s federal prosecutors—or anyone else for that matter—have reasons to trust in the systemic justice of the District’s sentencing judgments, due to a problem that I explore in a forthcoming essay in the peer-reviewed Ohio State Journal of Criminal Law: the District’s flawed criminal statutes. The crux of my argument is that the District’s criminal code—like many criminal codes around the country—frequently authorizes, and in some instances requires, the imposition of unjust and disproportionately severe sentences.

At the root of the problem are three systemic flaws that pervade the District’s criminal code (as well as, to varying degrees, criminal codes around the nation):

First, many of the District’s criminal statutes are overbroad, and therefore cover too much conduct. With respect to sentencing, this subjects individuals who do not even deserve to be held liable for an offense to the same range of punishment—that is, the statutory minimum and maximum—applicable to the most culpable actors covered by that offense.

Second, some of the District’s most routinely charged criminal statutes are subject to mandatory minima, which take away judicial discretion to sentence below a certain threshold. When paired with an overbroad criminal statute, these one-size-fits-all punishments effectively require the imposition of unjust sentences upon individuals who may not even be deserving of a conviction—let alone a lengthy stay of incarceration—for violating a particular criminal statute. (Mandatory minima have also “disproportionately targeted people of color,” as the D.C. Attorney General and Councilmember Allen recently acknowledged.)

Third, most of the District’s criminal statutes are very similar to, and therefore overlap with, many other District statutes. By (re)criminalizing the same harm many times over, the District’s statutes support the aggregation of convictions and punishment against defendants who have committed what is intuitively considered a single offense.

Individually, each of these legislative problems is worrisome in its own right. But taken together, they routinely empower prosecutors to threaten the prospect of extreme sentences, thereby leaving defendants with a difficult choice between pleading down to some less disproportionate charge(s), or risking the possibility of serving decades—if not a lifetime—in prison, even in cases in which the defendant may not have actually committed the offense.

To illustrate how this operates, consider the scale of liability and punishment arising under the D.C. Code for an individual who commits the following vehicular theft.

In this example, the defendant, D, sees the victim, V, fueling her luxury car at a gas station. While wearing a backpack that contains an unloaded firearm, D quickly jumps into V’s car while she has her back turned. Finding the keys still in the ignition, D immediately drives away but is pulled over, and then arrested, a few blocks later.

Incredibly, although on these facts no force, violence, or weapon is actively employed, D’s conduct would nevertheless satisfy the District’s “armed carjacking” offense. This is because the District’s carjacking law incorporates the same arcane “stealthy seizure” language employed in the District’s century-old robbery statute. Enacted by the U.S. Congress in 1901 but still routinely charged today, that older robbery provision employs this outdated terminology for the purpose of “getting tough” on pickpockets, who are subject to the same harsh penalties governing violent robbers.

Along similar lines, the District’s more recent carjacking provision, which was passed by the D.C. Council in 1997 during the heyday of the tough-on-crime era, employs a comparably punitive approach to deal with nonviolent vehicular theft. Specifically, under this statute, any person who—like D—engages in the “stealthy seizure” of any automobile while having a dangerous weapon “readily available” is not only subject to a jaw-dropping twenty-one year mandatory minimum sentence, but also faces the prospect of any sentence up to the forty-year statutory maximum.

But this is only the start of the potential liability and punishment confronting D under the D.C. Code. That’s because his conduct would also meet the definition of many other overlapping District offenses, such as: (1) robbery while armed (subject to a five- to ten-year mandatory minimum and forty-five-year statutory maximum); (2) felony theft (subject to a ten-year statutory maximum); (3) unlawful use of a vehicle (subject to a five-year statutory maximum); and (4) possession of a firearm during a crime of violence (subject to a five-year mandatory minimum and fifteen-year statutory maximum).

And because the District’s courts apply the narrow (and therefore punitive) elements test to address issues of sentencing merger, D could be charged with and convicted of each of these offenses. In which case, he or she would be subject to a combined mandatory-minimum sentence of more than thirty years of imprisonment, while also confronting the possibility of well over a century (and thus a lifetime) of incarceration stemming from the aggregate statutory maxima found in these offenses.

The point of this analysis is not to illustrate the injustice of the District’s treatment of carjacking. Rather, it is to illustrate the ways that the problems of statutory overbreadth, mandatory minima, and overlapping offenses converge to authorize—and in some instances, require—the imposition of extreme sentences for conduct that is of comparatively lesser blameworthiness. And these same problems permeate just about every area of the District’s criminal code. From carjacking, to kidnapping, to drug and gun offenses, one would be hard-pressed to find any area of District legislation that does not suffer from at least two—if not all three—of these flaws. (Fortunately, the D.C. Criminal Code Reform Commission is working on comprehensive legislative recommendations for the D.C. Council that would ameliorate many such problems.)

Of course, not all—or even most—of the District’s criminal defendants suffer the unjust consequences of these flaws. Both the prosecutorial conscience and the exercise of judicial discretion (which is guided by the District’s voluntary and nonbinding sentencing guidelines) operate to ensure that in many, if not most, cases District defendants will not be charged with or sentenced to the most severe extent allowable under the law.

But the fact that the sentences meted out by the District’s criminal-justice system may only sometimes be extreme and disproportionate is not a persuasive argument against a second-look policy, which merely asks courts to determine whether “the interests of justice warrant a sentence modification.” Rather, it is an argument in favor of expanding it to as many people as possible—because, for the reasons I’ve laid out here, the injustice stemming from the District’s flawed criminal legislation is in no way bounded by the age of offenders. Rather, it’s endemic to the entire D.C. criminal code.

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In this criminal-justice-reform moment, we are beginning to witness decarcerative policy innovation and experimentation in jurisdictions around the country. Some of these ideas will miss their mark, and fail to serve the interests of justice. In that case, honest and forthright engagement by prosecutors’ offices in policy reform debates is welcome and should be applauded. However, for the reasons laid out here, neither the Second Step Amendment Act, nor USAO-DC’s aggressive lobbying campaign against it, fits that characterization. The D.C. Council’s proposed legislation is but a modest remedial step in a sentencing system that frequently allows for the possibility of—and in some instances requires—long-term sentences in situations of comparatively minimal blameworthiness. In a jurisdiction with one of the nation’s highest incarceration rates, that step is something the local federal prosecutors responsible for administering justice in the District of Columbia ought to embrace.

 

Michael Serota is a Visiting Assistant Professor and Associate Deputy Director of the Academy for Justice at Arizona State University’s Sandra Day O’Connor College of Law.

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