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INSIGHT: Can Covid-19 Become Sentencing Game-Changer?

May 5, 2020, 8:00 AM

The criminal dockets of the federal courts around the nation today are overwhelmingly about one thing — COVID-19: “My client is in imminent danger of dying if not immediately released from prison where the conditions are horrendous.”

Judges are issuing decisions on this issue all over the lot, and for good reason: the currently unclear state of the law.

The law needs to be changed back to where it was many years ago. Covid-19, ironically, can be the impetus to enhance the authority of judges to re-sentence defendants for good cause.

Until November 1987, when the Federal Sentencing Guidelines went into effect, federal judges had an important wildcard in their hip pockets. Old Federal Criminal Rule 35(b), as it were, enabled judges to lower sentences that they had initially imposed on any defendant.

Yes, up to 120 days from when his appeals ran out, a defendant could ask the judge to reduce his sentence for no specific reason—although it would have been wise to have one such as a dramatic showing of remorse, health issues or helpfulness in the prison. The judge could reduce the sentence to time served, home confinement, probation or literally anything lower than the original sentence, and she could do it on her own if she simply changed her mind about the initial sentence.

But this is ancient history. Since late 1987, based on the goal to eliminate sentencing disparities, judges no longer have this power. And even though federal sentencing guidelines haven’t been mandatory, only persuasive, since 2005 when the Supreme Court said as much in U.S. v. Booker, federal judges largely no longer have the power to reduce a sentence once it has been imposed.

Compassionate Release Requests Up Due to Covid-19

In the age of Covid-19 though, the world has changed. Every day it seems judges around the country are being bombarded by inmates for release from federal prison—many asking for home confinement for the balance of their terms. The basis for these “compassionate release” petitions is the dangerous health conditions in prisons, particularly if the defendant is elderly or “vulnerable” based on a pre-existing medical condition which might make them a significant target of COVID-19.

As Heidi R. Freese of the Federal Public Defender’s Office (Middle District of Pennsylvania) explains, The pandemic highlights the need—with so many vulnerable incarcerated defendants at risk—to provide federal judges with an expedient sentence-reduction procedure.”

Yes, a pandemic that has infused the prison population is certainly a valid basis to reduce a defendant’s sentence, although sometimes the defendant—and, by the way, the judge too—must traverse procedural hurdles.

For example, the government might argue, as it has been doing, that the defendant hasn’t “exhausted his administrative remedies.” Meaning, he hasn’t taken the sometimes time-wasting, and thereby possibly life threatening, measure of first seeking “furlough” or “release to home confinement” from the Bureau of Prisons itself.

Let Federal Judges Modify Sentences

Wouldn’t it be better, though, if federal judges—state and local judges are presented with different and other extreme difficulties given the enormity of cases and the violent nature of so many state court defendants—were simply authorized to avoid the procedural morass?

A committed judge who believes that the defendant’s application is merit-based could make a rapid determination and modify the remainder of the sentence. Such a result would not only be better for the individual defendant, but for the prisoners in the institution and those who guard that population.

Ms. Freese’s experience confirms this. “My office has had great success in sentence reductions under the First Step Act which gave federal judges a second look at sentences that now seem too harsh. Just as Congress has seen the wisdom in giving federal judges authority to reduce sentences for non-violent drug offenders, why shouldn’t judges have authority to reconsider sentences for changes in health or rehabilitative efforts?”

But there’s a broader issue. Why shouldn’t federal judges—appointed by the president and confirmed by the senate—be re-accorded the authority to reduce sentences across the board? If a federal judge were to decide that, perhaps, her initial sentence should be reduced, why shouldn’t she have the power that she once had to reconsider?

After all, the law accords presidents and legislators a “second bite at the apple”—that is, an opportunity to rethink their prior acts, decisions or even votes by proposing amendatory legislation. Why shouldn’t the law accord the same to judges—particularly given that federal judges aren’t motivated by ballot box considerations and therefore their decisions are less suspect as being partisan?

Maybe now, given the influx of “compassionate release” petitions based on Covid-19, there is a strong—maybe urgent—reason to rapidly reconsider this issue on a broader scale. Meaning, reinstitute old Rule 35(b), or some version of it, accord a defendant a “second bite of the apple” regarding his sentence, and release judges, particularly in Covid-19 cases, from the procedural hurdles of possible administrative remedies.

The overall issue of sentencing—the most difficult decision a judge makes (as every judge would tell you)—is a far broader issue to study. But given this pivotal moment in history, there is strong reason to reconsider how punishment is meted out in the federal courts, and maybe some good might come out of all of this.

Dostoevsky famously said: “The degree of civilization in a society can be judged by entering its prisons.” Today, he might say that the “degree of civilization” can be judged by how society reacts to its current situation: to allow judges to reduce an individual’s punishment even well into the sentence, if meaningful justice seems to require it.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Joel Cohen, a former state and federal prosecutor, practices white collar criminal defense law as Senior Counsel at Stroock & Stroock & Lavan, LLP and a columnist at the New York Law Journal. He is the author of “Blindfolds Off: Judges on How They Judges Decide” (ABA Publications, 2014) and an adjunct professor at both Fordham and Cardozo Law Schools where he teaches a courses based on the book.

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