Changing the sentence without hiding the truth: judicial sentence modification as a promising method of early release.

• Author: Klingele, Cecelia

ABSTRACT

Last year, as the State of California struggled with a $42 billion budget deficit, its financial inability to correct constitutionally deficient prison conditions led a federal court to order the release of 40,000 state prisoners. In Oregon, Michigan, Connecticut, Vermont, and Delaware, spending on corrections now exceeds spending on higher education. Across the nation, more than one of every one hundred Americans is behind bars. When the financial crisis of 2008 dealt its blow, state correctional budgets were already nearing a breaking point. Now, in the wake of unprecedented budget shortfalls, state governments have been forced to confront a difficult reality: the ever-increasing prison population has come at too high a price. The question is no longer whether to reduce the number of prisoners, but how.

Reversing years of ever-harsher sentencing policies, jurisdictions throughout the United States are trying to cut costs by expanding good time credit, increasing parole eligibility, and authorizing new forms of early release. This Article examines judicial sentence modification, an often overlooked ameliorative mechanism that has potential benefits many other forms of early release lack. For states wishing to promote early release in a manner that is both transparent and publicly accountable, judicial sentence modification is a promising, and potentially sustainable, new mechanism for sentence reduction.

TABLE OF CONTENTS INTRODUCTION I. HOW WE GOT HERE A. Shifting Sensibilities B. Legislative Responses C. Consequences of Increased Incarceration II. WHAT STATES ARE DOING NOW A. Methods of Early Release 1. Expansion of Parole Eligibility 2. Sentence Credit 3. Infirmity-Based Release B. Preliminary Results III. AN ALTERNATIVE MECHANISM: JUDICIAL SENTENCE MODIFICATION A. Historical Roots B. Modern Use 1. The Rule 35 Motion Extended: Modification in Maryland 2. Inherent Jurisdiction: The Wisconsin Approach 3. Shared Decision Making: The Federal Model 4. A New Approach: The Model Penal Code's "Second Look" C. Advantages of Judicial Sentence Modification 1. Transparency 2. Public Accountability 3. Sustainability D. Potential Limitations of Judicial Sentence Modification 1. Constitutional Constraints a. Double Jeopardy b. Separation of Powers 2. Practical Questions 3. Additional Considerations CONCLUSION INTRODUCTION

From the early 1980s through the beginning of the twenty-first century, U.S. state and federal crime policy was characterized by increasingly harsh custodial penalties. "Tough on crime" was the rhetoric of the day: the number of criminal sanctions increased and the length of custodial sentences soared. (1) Public demand for "truth in sentencing" and accountability for offenders and criminal justice administrators led to the abolition of parole in many jurisdictions and limited early release in still more. (2) Mandatory minimum sentences, penalty enhancements, and determinate sentencing schemes became key tools in the law enforcement arsenal, all designed to get--and keep---criminals off the streets. (3) Yet despite significant drops in the rate of violent crime throughout the 1990s, the growth in imprisonment continued unabated. (4)

As a result of the move toward more punitive policies, the number of persons confined in U.S. jails and prisons increased substantially--from just over 1.1 million in 1990 to 2.3 million in 2008. (5) The United States now imprisons its residents at a rate seven times higher than Western European nations. (6) Though scholars have posited many possible explanations for this disparity, no single theory appears to capture the causes of "American exceptionalism," and the reasons for its persistence remain a source of much debate. (7)

What is not debated is the fact that America's growing prison population has come at a cost. The human costs of incarceration have led to widespread critiques of America's overreliance on incarceration as a tool of social control. (8) In recent years, however, it is the financial consequences of current penal policy that have drawn the most attention from policymakers. As the number of inmates has burgeoned, correctional budgets have been strained by many factors. Larger prison populations have led to the construction of more prisons with associated staffing and overhead expenses. (9) More prisoners has also meant higher costs for basic necessities, along with increased costs for "optional" programming, such as GED instruction, vocational training, and drug and alcohol rehabilitation. (10) Significant, too, has been the rapidly rising cost of delivering even rudimentary health care--a cost states bear in full for those within their custody. (11)

State correctional costs are now estimated to exceed $50 billion annually. (12) That sum would be burdensome in the most affluent of times, but in the wake of the financial crisis of 2008, it has become unsustainable. Spurred to action by funding deficits, many states began to pass legislation and implement administrative measures designed to reduce incarceration rates, increase public safety, improve successful re-integration for former offenders, and, ideally, alleviate the financial burdens of the "tough on crime" policies that defined the period from 1980 to 2000. (13) Some of these measures have focused on reducing the number of people entering prison as a result of conviction or revocation from community supervision. Many others, however, have focused on reducing the number of people in custody following conviction by authorizing early release. (14)

Although some of these back-end legislative reforms have already delivered a modicum of short-term relief in the form of reduced sentences and their associated cost-savings, (15) there are reasons to question long-term sustainability of many new early release laws. (16) With rare exception, new legislation places the release decision in the hands of prison administrators or parole boards that are unaccountable to the communities in which offenders have been sentenced and to which they will often return. By failing to grapple with concerns about transparency and public accountability, these new legislative reforms leave themselves vulnerable to the criticisms that led to the dissolution of prior forms of early release. (17)

This Article examines the recent proliferation of early release legislation and highlights judicial sentence modification--until now a largely overlooked ameliorative mechanism--as an additional, and potentially more sustainable, tool for states wishing to promote early release in a manner that is both transparent and publicly accountable. Part I reviews in some detail the policy concerns and legislative changes that led to the abolition or restriction of early release in most jurisdictions from 1980 to 2000. Part II examines a variety of common legislative responses to the mounting correctional crisis, analyzing the ways in which they work and exploring questions about their long-term sustainability. Part III then introduces judicial sentence modification as an additional and currently underutilized mechanism for early release. After examining the mechanism's unique history and characteristics, the Article concludes that judicial sentence modification merits greater attention, not only because of its ability to reduce sentence lengths, but also because of its potential for enhancing the public legitimacy of the early release decision.

1. HOW WE GOT HERE

   A. Shifting Sensibilities

   At the turn of the twentieth century, reformers schooled in the emerging field of criminology began to champion a new model of incarceration. They asserted that the prison ought to be more than a place of detention: it should be a state-of-the-art facility designed to reform the criminally deficient through "correctional" programming. (18) In order to promote and facilitate rehabilitation, reformers urged states to transition away from the short, determinate sentences favored in the eighteenth and nineteenth centuries to a model of indeterminate sentencing in which release was tied directly to successful rehabilitation. (19) Unlike the old determinate sentencing system, which required judges to set firm release dates for defendants, the indeterminate sentencing model required judges to impose a range of permissible punishment. Parole boards then decided when to authorize any given offender's release based on the board's subjective assessment of the offender's personal rehabilitation. (20)

   Advocates of the indeterminate sentence saw it as a humanitarian reform that would bring much needed treatment to those whose criminal deficiencies led them to pose risks to society at large (21) They hailed the dawn of a new era of reform that would end the perceived brutality of retributive sentencing and would convert prisons into places of healing and reconciliation. (22) So successful were these arguments that by mid-century, all states and the federal government had adopted some form of indeterminate sentencing. (23)

   Throughout the first six decades of the twentieth century, rehabilitation was considered the chief purpose of sentencing and the indeterminate sentence served increasingly as its primary tool. (24) During the 1970s, however, new research gave rise to doubts about the effectiveness and fairness of the rehabilitative model. In a number of influential studies and articles, prominent academics questioned whether then-existing correctional programs were capable of achieving their stated goals. (25) In 1974, Robert Martinson famously wrote that "[w]ith few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism." (26) Although Martinson himself left open the possibility that the failure of programs might be more attributable to poor execution than to the impossibility of success, he did question whether it was true that "we haven't the faintest clue about how to...