Federal Sentencing: Time for a Second Look?

• Author: Hon. Paul G. Gardephe
• Position: The author sits on the U.S. District Court for the Southern District of New York.
• Pages: 6-8

Published in Litigation, Volume 43, Number 4, Summer 2017. © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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FEDER AL SENTENCING:

TIME FOR A

SECONDLOOK?

Sentencing in the federal crim inal justice

system is driven by retri bution, not reha-

bilitation. In par t for that reason, there

are scant opportunit ies for sentencing

modification, even for in mates who are

serving leng thy sentences of 15 years or

more. It was for this reason that s o many

inmates, in the wa ning days of the Obama

administr ation, sought and obtained com-

mutations of their sentences pursuant to

the president’s pardon power. Many of the

inmates who obtained relief ha d under-

gone rehabilitation while in pri son such

that their continued inca rceration for the

length of thei r original sentences wa s no

longer necessary or appropriate. In ma ny

hundreds of cases, thes e sentences were

drastically reduced.

Whatever one’s views are of executive

clemency, it is worth considering whet her

our federal crimin al justice system should

provide, in a systematic way, an oppor-

tunity for judges to con sider—midway

through a leng thy sentence—whether

From the Bench

HON. PAUL G. GA RDEPHE

the inmate’s continued incarcerat ion re-

mains necessa ry and appropriate. Two re-

cent cases brought home to me that such

a “second look” at sentencing is already

happening in our federal sy stem in a hap-

hazard fashion t hat is inconsistent with

the fair admi nistration of justice.

The first was a federal r acketeering

case I prosecuted in the ea rly 1990s. The

defendants, posing as police of ficers, kid-

napped drug dealers, tor tured them, and

held them for ransom. Some of the vic-

tims were murdered. The two lead defen-

dants were convicted at tr ial of racketeer-

ing, racketeering conspiracy, kidnapping,

extortion, commit ting violent crimes in

aid of racketeering, and mult iple firearms

counts. In 1993, both defendants were

sentenced to life i mprisonment. Thei r

convictions were aff irmed by the Second

Circuit in 1995.

In 2009, a lawyer for one of the defen-

dants filed a pet ition for a writ of coram

nobis. This defendant had been convicted

on 25 counts, but the judgment filed a fter

sentencing imposed a sentence on a count

on which the defendant had been acquit-

ted at trial. Given that t he defendant had

received multiple life sentences, the error

had no practical effec t. But it was an ille-

gal sentence and require d a resentencing.

By this time—16 years a fter the orig-

inal sentence was imposed—t he trial

judge had long since left the bench and

the matter was as signed to a new judge

for resentencing.

The defendant requested a sentence

of time served, which a mounted to 18

years on what was a life-wit hout-parole

sentence. His application for a time-

served sentence was supported by seven

letters from prison g uards and officials

at the U.S. Penitentiary i n Lewisburg,

Pennsylvania, a ll of whom represented

that the defendant had undergone a n ex-

traordinar y transformation. The govern-

ment did not oppose his application, and

the judge resentenced the defendant to

time served, even thoug h he found that

the defendant had engaged in “ the worst

kind of crimina l activity that one could

conjur e up.”

In sum, because of an er ror in a judg-

ment reflecting 25 count s of conviction,

the defendant obtained, at a re sentencing,

a time-served sentence, base d on what

had been a life-without-parole sentence.

His codefendant—convicted of the same

horrific crimes a nd also sentenced to life

without pa role—died in prison.

The second case that got me thi nking

about a second look at sentencing was

United States v. Calcano. In 2000, Shirley

Calcano was convicted of na rcotics con-

spiracy and committ ing a violent crime

in aid of racketeering. Calca no had sold

crack for a Bronx-based drug gang c alled

the 165th Street Organ ization. Calcano’s

outlet was in Reading, Penns ylvania. She

was involved in an assau lt of someone

she had supplied crack to, but who had

not paid. Although the ju ry found her

responsible for selling between f ive and

50 grams of crack , the sentencing judge

The author sits on the U.S. District Court for the Southern District of New York.