The two-day conference ‘Rewriting the Sentence II Summit on Alternatives to Incarceration’ held in the Dorothy Betts Pavilion on the campus of George Washington University, presented a cross section of significant names with a stake in reforming sentencing within the American Justice System.
I rushed into the pavilion five minutes ahead of the start of the afternoon session to collect my credentials, my program, and the inevitable conference swag. I located Bill Livolsi and reconciled the three-dimensional version with the one that had been furnished courtesy of Zoom these past three years. We had just enough time to hug a fast greeting and rush into the mostly filled auditorium for the first session of the afternoon; a panel discussion titled: Spotlight on Alternatives: Sharing Success Stories The moderator was Professor Doug Berman, Executive Director, Drug Enforcement and Policy Center & Chair in Law, Moritz College of Law, Ohio State University. Professor Berman was a recent guest of ours for our Tuesday Speaker Series.
The panel consisted of representatives from three jurisdictions, an administrator, and a beneficiary from each. The respective programs differed in the details with all coming to the same conclusion: there are no easy roads back. Those facing sentencing or already serving out a sentence but qualifying for an Alternative to Incarceration (ATI) program are set to confront personal and systemic challenges as a consequence of their offense. The question of proportionality underlies the conference. Whether the current default of incarceration is best serving the public good.
Hard data and feel-good empiricism were used to argue for expansion of existing programs and to implement like-minded ones. The underlying imperative to grow beyond the ad hoc pockets that currently exist throughout the country were offset by the sobering fact that nationally ATI programs were being applied in less than 1% of all adjudications. Political will and the allocation of resources will continue to be committed in support of the current system. Foreseeably, incarceration will continue as the outcome in the vast majority of sentences.
The second session that I attended was deemed an Interactive Mock Sentencing Workshop, featuring the former US District Judge, Nancy Gertner. Introduced as a “Rock Star” she delivered on as much of the promise as one could expect from a former federal judge.
Underpinning the workshop was the idea that there was a lack of consideration given to a defendant’s own unaddressed prior trauma and/or mental health conditions in current sentencing practice.
She argued there is a segment of criminal activity attributed to underlying stressors that need to be better understood in the context of how sentencing of these crimes is addressed. Judges imposing long custodial sentences in circumstances where abuse or mental health disability are at the root yields results that cause greater damage to the system and the individual.
Throughout the variously themed events, the voices of regret from judges handcuffed by mandatory minimums and the rigidity of the current guidelines could be heard. Judge Mark Bennet, recounted visiting prison the men that he had sentenced under the Mandatory Minimum guidelines and became emotional from the dais when discussing these sentences that he had been bound to deliver.
The role of mitigating factors in sentencing practices was a defining theme throughout the conference.
Across all segments of the criminal justice system the same message was heard: effective diversionary programs yield better outcomes. The system weighted as it currently is, towards retribution does not result in greater public safety nor does it act as effective deterrence. It is fundamentally a lose-lose proposition for large segments of the population impacted by the current state of affairs.
It boiled down to this: far more needs to be done. The commitment and the will of those in attendance can be brought to bear to affect change remains to be seen. With the final recommendations of the U.S. Sentencing Commission yet to be seen, immediate improvement in sentencing practice is likely to continue moving forward slowly.
There were conversations throughout the two days touching on the role of the Probation Department regarding supervised release. The question was framed as whether the Department’s primary focus should continue as one of policing infractions or if there should be a move towards it providing greater support for integration and reentry. That “Zero Tolerance” policies were not supporting successful re-entry.
It was acknowledged that Probation working along a supportive model would require the department to join with appropriate support organizations to deliver on the outcomes desired from a more engaged supervised release program.
White Collar and the associated offense conduct wasn’t raised as needing specific redress within broader sentencing reform. Much of the messaging was buried in the subtext. However, many of the issues seen as having an impact for improved sentencing outcomes can be applied to those within our community who are or may soon be facing sentencing.
Judges acknowledged that they looked for details within the Pre-Sentence Report (PSR) to mitigate the mandates of the current guidelines. Aware that defense attorneys regularly understate or outright omit mitigating information in sentencing briefs, at least Judge Bennet recounted instructing Probation that they should clearly detail in the PSR any mitigating circumstances that they were to uncover so as to provide toe hold for him to give consideration to more fair-minded sentences.
In a tribute to Judge Jack Weinstein, who presided over the Eastern District Bench for 57 years, John Gleeson, a Commissioner on the US Sentencing Commission and former Judge from the Easter District of New York, summarized Judge Weinstein’s frustrations. He quoted Judge Weinstein on the bad outcomes derived from the system put in place in the mid 1980s as “not judging at all”
It was repeated throughout the conference that for the foreseeable future, systemic reform was still a long way off. Until then, the application of more equitable sentencing would continue to fall upon the shoulders of individuals working on localized solutions to create better outcomes within the American Justice system.
Jeff Krantz is a member of the Ministry’s White Collar Support Group that meets every Monday evening on Zoom. Jeff is also a member of the ministry’s planning group.