Why not postpone individual prison sentences?

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You have committed a federal crime. It is a crime, and all crime is serious. You did it because you are young and stupid. Or maybe not that young, but still stupid. Maybe you’ve been tied to it by someone your older brother. Perhaps you committed the crime simply because you were in dire need of money – to pay off debt or even to feed your children. Your excuse, if there is one, may be sympathetic; maybe not. Either way, your lawyer tells you that the best chance of getting a soft landing is to plead guilty. Still, you can face heavy prison terms even if you are currently out on bail.

As for the length of this prison sentence? It will depend on several things. While the draconian sentencing guidelines for all federal crimes are no longer required – which means that the judges are not “obliged” to follow them blindly – they still carry a lot of weight, according to the judge. Some judges tend to follow them closely, while others only use them as one of the many factors in their decision. Either way, it is a starting point for sentencing.

It is important to note, however, that the “system” always asks the sentencing judge to take a snapshot of the accused when he committed the crime. Certainly, a judge will likely take into account the past good deeds of an accused and other mitigating factors and take into account an accused’s level of remorse. Some judges take into account the speed with which the accused has pleaded guilty to save government and court resources. Did he, perhaps with the help of his lawyer, write a heartfelt letter or speak from his heart during the sentencing, explaining how much he truly has remorse for his unlawful conduct?

Even so, it only shows the accused’s remorse in the few months that have passed since his guilty plea while awaiting conviction. If, however, the sentence did not come for two or three years, the judge might have a much better idea of ​​whether the accused actually stood up and changed his life, showing that he did not only have remorse when sentence is imminent, but also a good citizen who has learned from his “mistake” and won more than just a reduced sentence – perhaps even, in some cases, probation.

Everything sounds good, right? But, strictly speaking, nothing in federal criminal procedure necessarily allows an individual to have his sentence postponed by the court so that the judge, if he wishes, can consider two or three more years of personal development and of life. “Recovery” on the part of the accused. .

Oddly enough, on the other hand, a corporate defendant can obtain such an advantage. If a prosecutor grants an indicted corporate defendant a deferred prosecution agreement, the case is usually put on hold for months, perhaps a year or more, so that the company can show the court that it is indeed “cleaning up its act.” Perhaps, ideally, during that time, he established a calculated corporate compliance program to monitor the type of misconduct that got the business in trouble. Under the agreement, if approved by the court, the indictment would generally be dismissed entirely at the end of the surveillance period.

So why is something similar not available for individual defendants? I am not suggesting an outright dismissal of a person’s case after an agreed (somewhat court-controlled) period of “good conduct”. Instead, I propose that an accused’s sentence be postponed (at the accused’s request or consent), with the judge receiving periodic informal reports on the accused’s continued conduct. During this period, the sentencing judge becomes the defendant’s “probation officer” by being able to determine whether the person is walking in the right way.

Is there a better way to determine if the defendant is really being rehabilitated? Not only that, does it not also encourage rehabilitation when the judge continues to maintain the hammer to be used after the end of this remission period?

Certainly, some defendants will come up against the charity of the judge in having granted such an extension. If this is the case, however, the judge would be able to dismiss the accused immediately to begin his sentence. And that sentence probably wouldn’t be particularly lenient – maybe even harsher than it otherwise would have been. This is the price a person should pay if given a second chance and misses it.

Yes, the procedure proposed here would impose additional tasks and time constraints on judges whose schedules are already overloaded, and probably also on probation officers, if the judge decides to order the probation service to periodically report on the progress of the trial. ‘accused. Yet would not judges who employ this procedure make valuable contributions to criminal justice by helping rehabilitate defendants and reducing the need for incarceration in a criminal justice system? overburdened federal prison system? More importantly, the waiting period would give the accused full impetus to recover and live a law-abiding life.

Yes, in some cases it can be painful for an accused to wait two or three years for “judgment day”, not knowing whether he will have satisfied the judge when sentencing day finally arrives. But the ball is in his court. He may withdraw or never ask his lawyer to ask the judge to stay the case. People make important choices in life all the time, and it would be up to each accused to roll the dice, hoping to reduce a prison sentence or even get a probation sentence. It won’t work with all judges – most judges wouldn’t even consider it, especially if the government opposes it. Knowing a judge’s sentencing model is a key factor to consider.

I did not initiate this idea in my imagination. U.S. District Judge Emmet Sullivan of the District of Columbia occasionally employs this practice of “hanging” where it makes sense. And, if I understand correctly, he sometimes suggests it if an informed defendant affirmatively requests it. It seems to be working. I suspect that probably does not require the consent of the government, although obviously it would be preferable. It’s something other judges need to think about.

The federal sentencing process – including a judge’s review of guidelines that are merely “advisory” – needs to be overhauled. Nonetheless, while this arduous review process is underway, judges could use mechanisms such as the one described here to make justice work in their courtrooms.

Joel Cohen, former federal and state prosecutor, practices white-collar criminal defense law at Stroock & Stroock & Lavan and is an assistant professor at Fordham and Cardozo law schools. He is the author of “Blindfolded: Judges on How They Decide. ”


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