Second Circuit Issues Important Decision Validating Defense Sentencing Advocacy

Second Circuit Judge Denny Chin, a former district court judge, has long recognized the importance of defense advocacy at sentencing and the unfairness of penalizing mitigation efforts. In United States v. Lee, 653 F.3d 170 (2d Cir. 2011). writing for the Court, he held that the government abused its authority when it withheld a third “acceptance of responsibility” point because the defendant had challenged errors in his presentence report. Now, in United States v. Singh, 2017 WL 6327823 (2d Cir. December 12, 2007), he has turned his sights to the sentencing judge. Rejecting, in part, a judge’s characterization of the defendant’s apology letter as a disavowal of responsibility, he has authored an opinion reversing a sentence of 60 months in an illegal re-entry case where the guidelines recommended 15 to 21 months.

Notably, the Court found the sentence unreasonable both on procedural and substantive grounds. To support the latter finding, the Court utilized data from the Sentencing Commission on average sentences in illegal reentry cases nationally. At almost three times the top of the guidelines, the sentence “stir[red] the conscience” if it didn’t “shock” it, particularly, where the Probation Department and the government both recommended a sentence within the advisory guideline range. Moreover, Singh’s low-level, non-violent criminal history, which the district court viewed as justifying the sentence, was not that serious, again, when compared to national sentencing data.

Procedurally, the Court took particular issue with the sentencing judge’s apparent position that Singh’s effort to explain his crime (foolish behavior under the influence of friends, and fear for his life in his native Guyana) indicated a failure to accept responsibility. While granting him acceptance points (to avoid “creat[ing] an appeal point”), the sentencing judge noted that she would nonetheless consider the acceptance of responsibility issues in fashioning the appropriate sentence under 18 U.S.C. § 3553.

The Circuit concluded that “[t]o the extent the district court increased Singh’s punishment because of a perception that in attempting to explain his actions and plead for mercy he did not fully accept responsibility, it committed procedural error.”

But the opinion did not end there. The district court’s position was viewed as so egregious that Judge Chin’s opinion included an admonition about the appropriate role of the sentencing judge, and her obligation to act with generosity and humanity:

“Sentencing, that is to say punishment, is perhaps the most difficult task of a trial court judge.” Jack B. Weinstein, Does Religion Have a Role in Criminal Sentencing?, 23 Touro L. Rev. 539, 539 (2007). While there are many competing considerations in every sentencing decision, a sentencing judge must have some understanding of “the diverse frailties of humankind.” See Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion). In deciding what sentence will be “sufficient, but not greater than necessary” to further the goals of punishment, 18 U.S.C. § 3553(a), a sentencing judge must have a “generosity of spirit, that compassion which causes one to know what it is like to be in trouble and in pain.” Guido Calabresi, What Makes a Judge Great: To A. Leon Higginbotham, Jr., 142 U. Pa. L. Rev. 513, 513 (1993); see also Edward J. Devitt, Ten Commandments for the New Judge, 65 A.B.A. J. 574 (1979), reprinted in 82 F.R.D. 209, 209 (1979) (“Be kind. If we judges could possess but one attribute, it should be a kind and understanding heart. The bench is no place for cruel or callous people regardless of their other qualities and abilities. There is no burden more onerous than imposing sentence in criminal cases.”).

Important Study from the Open Philanthropy Project on the Effect of Incarceration on Crime

One of the most intractable questions in criminal justice is whether incapacitation of offenders reduces crime. The assumption that it does undergirds our explosive rise in incarceration rates over recent decades, but is it accurate? The answer is not purely an academic one. It is a critical prerequisite to current criminal justice reform efforts, and in particular, those focused on decarceration and alternatives to incarceration. It is also important to sentencing advocates, who will frequently cite to studies that conclude that long sentences do not deter and that prison actually exacerbates recidivism. Now, there is a an important meta-study from the Open Philanthropy Project, published in September 2017, The Impacts of Incarceration on Crime (see also here and here), in which David Roodman subjects three dozen empirical studies on the link between incarceration and crime to a rigorous review, including replication and reanalysis of eight of the studies. He concludes, in essence, that while incarceration may modestly lower crime rates temporarily, this decrease is cancelled out by the criminogenic impact of incarceration, which increases crime rates. As such, the “best impact of additional incarceration on crime in the United States today is zero.” His key findings, subject to several caveats, can be summarized as follows:

• Deterrence: Longer sentences do not clearly deter crime. Swift and certain punishment can deter, when practical, but perhaps works mainly when complemented with positive incentives and appropriate treatment.

• Incapacitation: Incapacitation is real — time inside prison does indeed reduce crime outside prison.

* but *

• Rehabilitation: Most relevant, credible studies suggest that incarceration aftereffects are harmful, and strong enough to offset the crime benefits of incapacitation.

Finally, Roodman focused on “high credibility” studies (those that could exploit randomized experiments), and in particular, eight studies where he could access the underlying data and code (i.e. the studies with the highest integrity). “Replication and subsequent reanalysis of these eight revealed significant econometric concerns in seven and led to major reinterpretations in four” leading him to conclude that “even the best studies on incarceration and crime are less reliable than they appear.” Moreover, Roodman’s review “focuses mainly on studies that compare incarceration to ordinary freedom or traditional supervised released (probation and parole), as distinct from alternatives such as in-patient drug treatment and restorative justice conferences. Those options may offer promise, and deserve more research and evidence reviews.”