Debevoise’s Holloway Project and “Second Looks”

The president’s power to grant clemency is but one feature of a sentence-correction ecosystem. But the abolition of federal parole in the 1980s left the clemency power as the only way to correct lawfully imposed sentences for the simple reason that they are too damn long. This article is about another way to correct sentences for that simple reason, one that has been right there all along but was moribund for decades, and about a 2018 statute and a Debevoise & Plimpton pro bono project that breathed life into it. And it is a critical Article III complement to the Article II clemency power. For the past five years, the Holloway Project at Debevoise has advocated for federal prisoners, overwhelmingly men of color, who were given bone-crushing sentences pursuant to the cruelest mandatory sentencing law the federal system had to offer. The typical Holloway Project client is a middle-aged man who was sentenced decades ago for robbery sprees in which a firearm was used but no one was hurt and little was stolen. In almost all of their cases, the indefensible sentences—often as not the equivalent of life without parole—had nothing to do with their culpability and everything to do with their refusals to cooperate and/or plead guilty. This article describes the Holloway Project and how it has used what has become known colloquially as the “compassionate release” statute, 18 U.S.C. § 3582(c)(1)(A), and 2018’s First Step Act to persuade federal judges to undertake holistic, compassionate reevaluations of the men these incarcerated individuals have become after all their years in prison, and inject some humanity and justice into a sentencing regime that is still in desperate need of both.

Weinstein on Sentencing

Over more than half a century of service on the federal bench Judge Weinstein has produced reams of articles, speeches, and opinions, attempting to convince higher courts and Congress to recast sentencing law on the basis of fairness. Like any great jurist, Judge Weinstein did not win every battle, but he pursued the ideal of individualized justice with unflagging dedication. In the process, he transformed sentencing law. He brought due process to sentencing by conceiving of and instituting Fatico hearings, and later became among the most powerful voices against mandatory sentencing regimes. Judge Weinstein’s ingenuity always withstood public controversy and criticism. He refused to mete out unduly harsh or unduly lenient sentences, relying instead on a commitment to reasonableness and simple fairness. While Judge Weinstein enjoyed a reputation for compassion and social consciousness, he applied the law faithfully, without disguising the difficulties inherent in the art of judging. He leaves a legacy of intellectual honesty, integrity, and faith in the promise of the law to do justice.

Juvenile Homicide Offenders Look Back 35 Years Later: Reasons They Were Involved in Murder

Murders committed by juveniles have been a serious concern in the United States for more than 50 years. Decisions by the United States Supreme Court during the 21st century have reduced the likelihood that juvenile homicide offenders will be sentenced to life without parole (LWOP). As a result of these decisions, hundreds of prisoners who were sentenced as juveniles for murder to LWOP under mandatory sentencing statutes or its equivalent are now eligible for the reconsideration of their sentences. In light of these changes in sentencing policies and practices, follow-up research on juveniles convicted of murder is essential. This research is part of a 35-year follow-up study of 59 boys who were convicted of murder and sentenced to adult prisons in a southeastern state, and initially interviewed in the early 1980s. Twenty of these men agreed to participate in clinical interviews during which they reflected upon the reasons (i.e., motives, circumstances) for which they got involved in criminal behavior as juveniles. These reasons, which broadly tap tenets of psychological and sociological theories, were analyzed in terms of predominance. Thereafter, the attention focuses on looking at the relationship of these 20 reasons to recidivism among the 18 juvenile homicide offenders (JHOs) who have been released from prison. JHOs who lived in neighborhoods where crime was routine and who engaged in crime because the opportunity presented itself were approximately 20 and 22.50 times more likely to be arrested post release and returned to prison, respectfully. The implications of these findings, the limitations of the study, and suggestions for future research are discussed.

A Crucial Test

Chapter 5 tells the story of the first official Citizens’ Initiative Review (CIR) through the eyes of one of its participants, Marion Sharp. The CIR asked twenty-four demographically stratified voters to review an Oregon ballot measure that increased mandatory minimum sentencing for repeat sexual offenses and driving under the influence of intoxicants. Over five days, participants heard from expert witnesses and reviewed evidence related to the need for and potential impact of mandatory sentencing. Participants engaged in facilitated discussion aimed at gauging the credibility of that evidence and distilling it for voters. Despite flare-ups among participants and behind-the-scenes challenges, at the end of the review Marion and her fellow panelists drafted a Citizens’ Statement containing key facts about the measure and the best arguments favoring and opposing it. That statement appeared in the state Voters’ Pamphlet for the electorate to use before casting their ballots.

Rural crime and law

This paper discusses the nature and extent of rural crime and suggested solutions to rural crime; providing the author’s opinion on mandatory sentencing, increased penalties, certainty of detection, and reduction of the profit motive. Particularly, the article discusses the issues of stock theft, abalone poaching, firearms offences, traffic offences, logging protest cases, pastures protection – legal principles, proposed solutions, practical issues. The article also touches on changes in law enforcement, technology and the administration of justice, as well as police interviews with suspects, DNA, video surveillance, domestic violence issues and women in courts. The paper concludes with a description of the experiences of a magistrate who lived and worked in rural NSW, discussing issues that arise as a result of inevitable relationships with accused and others in the town.

Bitches, Fishes, and Monsters: Prison Slang and Nonhuman Animal Terminology

The adult prison population in the U.S. is one of the most important, marginalized, yet misunderstood groups within the country. Not only is the population larger than those of other industrialized nations, but the prisons themselves also tend to be more punitive in nature. While there have been many proposed reasons for this, ranging from differences in the “American Character” to the increasing severity of mandatory sentencing guidelines, explanations of the American prisoner setting remain thin. One area that has relevance to this topic but in which there has been little research is the language used to describe prisoners. This language is replete with images of nonhuman animals. Examples and explanations of this phenomenon are provided through the inspection of the lexicons and argots (“prison slang”) for animal themes, and implications regarding implicit power relationships and the effects on both prisoners and nonhuman animals stemming from this language are explored.

Lethal State

For years, American states have tinkered with the machinery of death, seeking to align capital punishment with evolving social standards and public will. Against this backdrop, North Carolina had long stood out as a prolific executioner with harsh mandatory sentencing statutes. But as the state sought to remake its image as modern and business-progressive in the early twentieth century, the question of execution preoccupied lawmakers, reformers, and state boosters alike. In this book, Seth Kotch recounts the history of the death penalty, including lynching, in North Carolina from its colonial origins to the present. He tracks the attempts to reform and sanitize the administration of death in a state as dedicated to its image as it was to rigid racial hierarchies. Through this lens, Lethal State helps explain not only Americans' deep and growing uncertainty about the death penalty but also their commitment to it. Kotch argues that Jim Crow justice continued to reign in the guise of a modernizing, orderly state and offers essential insight into the relationship between race, violence, and power in North Carolina. The history of capital punishment in North Carolina, as in other states wrestling with similar issues, emerges as one of state-building through lethal punishment.

Plea Bargaining under the Common Law

This chapter examines plea bargaining under the common law in England and the United States, with brief references to Canada, Australia, and New Zealand. The work reveals plea bargaining operates in combination with mandatory sentencing to contribute to the rise of mass incarceration. It first considers the current nature, frequency, and patterns of variation of Anglo-American plea bargaining, noting that both U.S. and English criminal justice systems employ distinct kinds of agreements that are similar to negotiated guilty pleas and that civil forfeiture agreements are sometimes components of negotiated resolutions. The chapter proceeds by examining some of the major criticisms against plea bargaining as well as constitutional controversies (particularly in the U.S. context) that bargaining raises. It analyzes the constitutionality of plea bargaining, its relation to human rights, and some of the presumptions of the high courts about the practice. By probing competing accounts of the causes of plea bargaining, this work enables us to see how this controversial practice arose. The chapter concludes by analyzing the consequences of plea bargaining for the nature of “justice” meted out, focusing on four outcomes—false convictions, wrongful acquittals/dismissals, equity in sentencing, and administrative efficiency—and arrives at findings that challenge some of the key presumptions of high courts.