To fight mass incarceration, prosecutors need to give extreme sentences a second look.
By James Forman Jr. and
Mr. Forman is a law professor at Yale. Ms. Lustbader is senior legal counsel at the Justice Collaborative.
What can we do to shrink our prison population, the world’s largest?
Most answers to that question point forward: They look to reduce future arrests, prosecutions and sentences. But such changes, while desperately needed, do nothing for the hundreds of thousands of people who are already serving long sentences in America’s expensive and overcrowded prison system.
And make no mistake about it: There are a lot of people serving extraordinarily long sentences. The state prison population grew 222 percent from 1980 to 2010; the National Research Council attributes half of that growth to an increase in incarceration time. The Sentencing Project reports that one in seven American prisoners is serving either a life sentence or its functional equivalent. (In some states, the number is almost one in three.) Once, parole boards could truncate some of these long sentences, but the decimation of parole has largely eliminated that possibility.
The explosion in sentence length has turned some prison wings into de facto nursing homes, with prisons responsible for providing costly medical care to a growing elderly population. Keeping people locked up for so long does little for public safety. Most people who commit crimes, including violent crimes, do so while young. Arrest rates for violent crimes peak during people’s late teens (rates for robbery, for example, are highest at age 19), and criminal careers for violent crime typically last only five to 10 years.
Middle-aged and older prisoners are an especially good bet for early release, particularly when they receive support during the re-entry process. For example, in 2012 a Maryland court ordered the release of nearly 200 prisoners who had served sentences of more than 30 years, mostly for homicide and rape. Fewer than 1 percent have committed a crime in the years since release.
Social science data, religious teachings and common sense acknowledge something our justice system does not: People change. Today, there are tens of thousands of people serving long sentences who have completely turned their lives around, but have no hope for release.
Fortunately there is growing momentum to reduce excessive sentences. Legislation authorizing sentence reductions in old cases has passed in California and the District of Columbia. Senator Cory Booker has proposed something similar at the federal level. And in July, more than 3,000 people were released from federal custody under the First Step Act, passed in December, which allows certain federal prisoners to earn early release for good conduct.
But there is another solution to this problem. Prosecutors can recognize their role in creating the crisis and work toward fixing it. They should start by opening “sentence review units,” which would consist of small dedicated teams of lawyers, investigators, data scientists and social workers within the prosecutor’s office. The details would vary by place, but each team would review past cases, and when they find sentences that seem particularly egregious, prosecutors would give these cases a second look.
Social workers and investigators would sit down with incarcerated people and their families to better understand what brought the individuals to prison and how they have changed during their years behind bars. If the team decides that release would serve the interests of justice and public safety, the prosecutor could argue for those long-incarcerated people to be reunited with their communities.
The concept of sentence review units is not entirely unfamiliar; it builds on conviction review units that root out cases where an innocent person has been found guilty. Sentence review units are similar, but instead of wrongful convictions, they seek out cases where the sentence seems excessive. What counts as “excessive” is necessarily a judgment call, but examples include sentences that in retrospect seem disproportionate to the severity of the offense, or those that are far longer than what a person sentenced today would receive.
Why should prosecutors be the ones to lead the movement to cut down long sentences? Because they were, and in many places still are, a major driver of the country’s sentencing explosion. In the courtroom, they have pushed for maximum sentences and resisted appeals for leniency. In statehouses, they have lobbied legislatures for longer sentences and opposed reform efforts.
Despite this history, there are signs of progress. As evidence mounts that many crime survivors doubt prison’s value, a few prosecutors have begun to reduce excessive sentences. In Seattle, the district attorney, Dan Satterberg, has supported clemency applications for people who were sentenced under Washington State’s harsh three-strikes law. In Georgia, a group of district attorneys agreed to re-evaluate drug sentences imposed during the crack epidemic and have already helped some people go home. And in California, prosecutors supported recent legislation that allows them to form sentence review units.
Larry Krasner, Philadelphia’s district attorney, intends to open a sentence review unit. “Sometimes extreme sentences reflect unscientific beliefs; sometimes they reflect racism; and sometimes they reflect judges who punish you 10 times harder if you went to trial,” he told us in an interview. In all these cases, he said, the upshot is the same: “There are a lot of people in jail who very clearly don’t need to stay in jail.”
For now, sentence review remains ad hoc. But demands from citizens and leaders can help these local efforts grow into a national movement. Cutting down excessive sentences will not, on its own, solve the crisis of mass incarceration or bring our prison population in line with the rest of the world. But failing to act will ensure that the wounds caused by those sentences never heal.
James Forman Jr., (@jformanjr) a professor at Yale Law School, is the author of “Locking Up Our Own: Crime and Punishment in Black America.” Sarah Lustbader (@SarahLustbader) is senior legal counsel at the Justice Collaborative, a nonprofit organization working to reform the criminal legal system, and a senior contributor to The Appeal.
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