Prison Brake: Rethinking the Sentencing Status Quo

• Published date: 01 October 2021
• Date: 01 October 2021

PREFACE

PRISON BRAKE: RETHINKING THE SENTENCING STATUS QUO

Norman L. Reimer*

ABSTRACT

This Preface provides an overview of NACDL’s 2020 Presidential Summit and

Sentencing Symposium, produced in partnership with the Georgetown University

Law Center and the American Criminal Law Review.

**

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1586

I. SETTING THE SCENE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1588

II. THE ADVOCACY PRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1589

A. The Death Penalty and Sentencing: Applying the Lessons

Learned from Capital Sentencing and the Graham-Miller

Resentencing in All Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . 1590

B. Mitigation: Framing Sentencing at Every Stage . . . . . . . . . . . 1591

C. Mental Illness: Misconceptions and the Multiplier Effect . . . . 1592

D. Juvenile Sentencing Reform: Law, Policy and Prevention . . . . 1593

E. Fifth, Sixth & Eighth Amendments: Innovative Constitutional

Sentencing Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1595

F. Stepping-Up Implementation of the First Step Act . . . . . . . . . . 1597

G. Client Perspectives: Centering Impacted Persons in Reform . . 1599

III. THE REFORM PRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1601

A. Prison Abolition, and a Mule . . . . . . . . . . . . . . . . . . . . . . . . . 1602

B. Enlightened Prosecutors and Reform: Re-Envisioning Justice . 1602

C. Back-End Advocacy: Second Chances and Second Looks . . . . 1605

D. The Future of Sentencing Reform: Leveling Up and Ratcheting

Down . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1607

E. Rethinking Prison . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1610

F. Is Prison Necessary?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1611

* Norman L. Reimer has served as the Executive Director of the National Association of Criminal Defense

Lawyers (“NACDL”) since 2006. Prior to that, he was a practicing criminal defense attorney based in New York

City. Mr. Reimer gratefully acknowledges the editorial assistance provided by Ivan Dominguez, NACDL’s

Senior Director of Public Affairs and Communication. © 2021, Norman L. Reimer.

** This Preface introduces this Symposium Issue of the American Criminal Law Review, summarizes the

events of the October 2020 Summit and Symposium, and frames NACDL’s policy positions regarding the dire

need for sentencing reform in this country. Explanatory footnotes and citations have been provided for references

to specif‌ic statutes, cases, and statistics. In other places, the Preface draws support from the Author’s long career

as NACDL’s Executive Director and as a criminal defense attorney.

1585

IV. THE JUDICIAL KEYNOTE AND SOME REFLECTIONS . . . . . . . . . . . . . . . . . 1614

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1615

INTRODUCTION

Carlos F. served approximately f‌ifteen years of a sentence of twenty-f‌ive years

to life in a maximum-security state prison on a legally f‌lawed conviction for felony

murder. It took multiple levels of appeal until, f‌inally, a federal judge set aside the

conviction. One week after he was released from custody, he visited his lawyer’s

off‌ice—the f‌irst time they had ever met outside of prison walls. When his lawyer

asked him how he was enjoying his return to freedom, Carlos said it was wonder-

ful, except for one problem: eating. Whenever he ate, he would puncture his

tongue. It seemed that in prison, where he had been denied the privilege of having

metal utensils, he lost a skill that for most people is as effortless as breathing.

That lawyer Carlos visited was me. And despite having been a defense attorney

for more than twenty-f‌ive years, it was at that moment, listening to Carlos tell me

that he had lost the ability to use a fork, that I viewed the inhumanity of the

American approach to punishment with a fresh perspective. Any defense attorney

who regularly visits clients in holding cells, local jails, and state and federal prisons

sees the walls and the razor wire and experiences the deplorable squalor of the

nation’s detention facilities. One can see, hear, and feel the heartbreak of the visita-

tion room where loved ones gather, often only once every few weeks, to visit either

through plexiglass or in crowded, noisy communal rooms under the watchful eyes

of guards. And, of course, just to get into that room to have that occasional visit,

the prisoner will usually be subjected to an invasive, humiliating body cavity

search before and after the visit. Indeed, the entire American approach to incarcer-

ation revolves around complete control, degradation, and dehumanization. Every

aspect of a prisoner’s life is controlled by jailors who determine when and under

what circumstances the prisoner can eat, use a toilet, access a shower, communi-

cate with loved ones, sleep, work, rest, exercise, and see daylight. American

imprisonment is total subjugation of every aspect of an individual’s humanity.

Beyond that, inhumane, unsanitary prison conditions are prevalent—as the

COVID-19 virus vividly demonstrated.

1

Violence is common, and abuses such as

predatory sexual practices are so prevalent that special legislation was needed to

1. See Brendon Derr, Rebecca Griesbach & Danya Issawi, States Are Shutting Down Prisons as Guards Are

Crippled by COVID-19, N.Y. TIMES (Jan. 1, 2021), https://www.nytimes.com/2021/01/01/us/coronavirus-prisons-

jails-closing.html (“There have been more than 480,000 conf‌irmed coronavirus infections and at least 2,100

deaths among inmates and guards in prisons, jails[,] and detention centers across the nation, according to a New

York Times database.”); Beth Schwartzapfel, Katie Park & Andrew Demillo, 1 in 5 Prisoners in the U.S. Has

Had COVID-19, MARSHALL PROJECT (Dec. 18, 2020), https://www.themarshallproject.org/2020/12/18/1-in-5-

prisoners-in-the-u-s-has-had-COVID-19 (“While the nationwide infection rate among prisoners is four times the

rate in the general U.S. population, . . . the mortality rate for COVID-19 among prisoners is 45 percent higher

than the overall rate.”).

1586 AMERICAN CRIMINAL LAW REVIEW [Vol. 58:1585

address it.

2

These deplorable facts are well known to anyone who pays any atten-

tion whatsoever to conditions of conf‌inement in the United States.

But there is something about the interference with the simple act of eating

that underscores the banal, routine inhumanity of the American approach to

incarceration.

Then too, there is the brutal length of sentences. The United States did not

become the leading incarcerator in the world—both per capita and in sheer num-

bers, with more than two million people behind bars at any given time—by acci-

dent.

3

It was quite deliberate. For decades, politicians of all stripes lined up to

outdo one another in pushing for ever harsher sentencing policies: increased maxi-

mum statutory sentences, compulsory sentencing guidelines, abolition of parole,

mandatory minimums, three-strikes laws, and the list goes on and on. In fact, a

study found that as of 2016, more than 200,000 people are serving some form of

life sentence, with about 45,000 serving the equivalent of life without parole.

4

But life sentences are only part of the story. Double-digit sentences are routinely

handed out in this country for all manner of crimes, including non-violent and vic-

timless crimes. Ten, twenty, thirty-year sentences are routine. And these draconian

sentences are often imposed without regard to the age of the offender, their

capacity for growth, or a full appreciation of the factors that led to the offending

behavior and what steps might be available to address those factors.

5

The defense lawyer lives with the brutality of sentence length and what a prison

sentence means to the client and the client’s family every day. To a signif‌icant

extent, harsh sentencing is the omnipresent cloud that casts a shadow over every

aspect of defense advocacy. Indeed, the threat of these draconian sentences has so

distorted the system as to render trials virtually obsolete. The threat of a trial pen-

alty, a geometrically increased sentence for those who assert fundamental rights,

including the right to challenge the legality of the prosecutor’s evidence or even

the question of guilt or innocence, induces the overwhelming majority of accused

2. See Prison Rape Elimination Act of 2003, 34 U.S.C. §§ 30301–30309.

3. Since at least 2003, the incarcerated population has exceeded two million people. Recently, in the wake of

declining pretrial detention and early releases related to the COVID-19 pandemic, the number has dropped below

two million. See JACOB KANG-BROWN, CHASE MONTAGNET & JASMINE HEISS, VERA INST. OF JUST., PEOPLE IN

JAIL AND PRISON 2020, at 3 (2021), https://www.vera.org/downloads/publications/people-in-jail-and-prison-in-

2020.pdf (“The total number of people incarcerated in state and federal prisons and local jails in the United

States dropped from around 2.1 million in 2019 to 1.8 million by late 2020.”); C.J. Ciaramella, U.S. Incarcerated

Population Dropped Below 2 Million Last Year for First Time Since 2003, REASON (Jan. 27, 2021), https://

reason.com/2021/01/27/u-s-incarcerated-population-dropped-below-2-million-last-year-for-f‌irst-time-since-

2003/ (“The total incarcerated population of the U.S. fell dramatically last year amid the COVID-19 pandemic,

dipping below 2 million for the f‌irst time since 2002, according to a new report by the Vera Institute of Justice.”).

4. ASHLEY NELLIS, SENT’G PROJECT, STILL LIFE: AMERICA’S INCREASING USE OF LIFE AND LONG-TERM

SENTENCES 7 (May 3, 2017), https://www.sentencingproject.org/wp-content/uploads/2017/05/Still-Life.pdf.

5. See, e.g., Marc Mauer, Long-Term Sentences: Time to Reconsider the Scale of Punishment, 87 UMKC L.

REV. 113 (2018).

2021] PRISON BRAKE 1587