Prison Brake: Rethinking the Sentencing Status Quo

Published date01 October 2021
Date01 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, SENTG PROJECT, STILL LIFE: AMERICAS 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

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