Adjunct Professor Joel Cohen wrote an opinion piece for The Hill about federal inmates and sentencing reform.
Once a federally prosecuted defendant is sentenced, except in extremely unusual cases where a commutation (which makes a prisoner eligible for early release) or even a pardon (he is immediately released) is granted by the president, or where the defendant has provided the government with post-sentence cooperation after which his sentence can be lowered, albeit only based on the government’s motion, the ballgame is over for him in terms of his sentence.
Unless the sentence was way out of bounds as to its length, or the judge took a serious misstep at sentencing and an appellate reversal is warranted, the defendant will have to serve the entire sentence (less roughly 15 percent for “good time”, for example, 8-1/2 of a 10 year sentence). There is no federal parole, period.
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But there used to be an escape hatch. Before the Sentencing Reform Act, effective late 1987, required virtually mandatory sentences (which, in 2005, became more malleable “guidelines”), a judge had the unbridled power to reduce a sentence – for any reason, or no reason at all– as long as the defendant filed for the reduction within 120 days from when he was sentenced or when his appeals ran out, whichever was later.
There were, at the time, no sentencing guidelines that would have informed a judge’s sentencing leniency and the judge was permitted to take a “second look” under “Rule 35” (of the Federal Rules of Criminal Procedure), a then reflexively-used weapon in the defense lawyer’s arsenal.
So, once the judge’s ardor had cooled; or the judge simply had a second thought; or the defendant had gotten what the judge perceived as a needed “taste” of prison; or the victim was more forgiving given the passage of time; or even the judge’s baby granddaughter simply had a pretty smile on her face when the judge left for court that day; the judge could simply lower the sentence – literally to any period of time that the judge chose, even immediate probation.
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Sentencing is not only about punishment and deterrence. It is also about mercy and hope.
Why should Congress want to deprive defendants – and, for that matter, our judges – of that “mercy” function? Shouldn’t the Legislature reinstate that second bite of the apple when cooperation is not implicated so that, at least to some extent, a judge can revisit his now non-mandatory sentence?
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Federal judges are appointed by the president and confirmed by the Senate for life – they are not political hacks. Based on the challenging vetting process involved, Congress should have confidence in their ability to rethink their earlier sentencing decisions, and to take action consistent with that rethinking, if they think it is justified.
This is a nation of second chances – or at least one that gives everyone the hope and belief that there is the possibility of a second chance, when that second chance is warranted.
Few in America believe that criminal justice reform is not warranted. According defendants that second chance by allowing judges to take that second look, through a legislatively-enacted new Rule 35 (modeled after the old Rule), is one way to begin. At a time when the incoming Administration’s future policies are being considered by the Congress (partly in confirmation proceedings), maybe the wisdom of a renewed Rule 35 would be a worthwhile question not only for an incoming Attorney General, but also for the Congress itself.’
