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June 01, 2017

From the Bench: Federal Sentencing: Time for a Second Look?

Hon. Paul G. Gardephe

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Sentencing in the federal criminal justice system is driven by retribution, not rehabilitation. In part for that reason, there are scant opportunities for sentencing modification, even for inmates who are serving lengthy sentences of 15 years or more. It was for this reason that so many inmates, in the waning days of the Obama administration, sought and obtained commutations of their sentences pursuant to the president’s pardon power. Many of the inmates who obtained relief had undergone rehabilitation while in prison such that their continued incarceration for the length of their original sentences was no longer necessary or appropriate. In many hundreds of cases, these sentences were drastically reduced.

Whatever one’s views are of executive clemency, it is worth considering whether our federal criminal justice system should provide, in a systematic way, an opportunity for judges to consider—midway through a lengthy sentence—whether the inmate’s continued incarceration remains necessary and appropriate. Two recent cases brought home to me that such a “second look” at sentencing is already happening in our federal system in a haphazard fashion that is inconsistent with the fair administration of justice.

The first was a federal racketeering case I prosecuted in the early 1990s. The defendants, posing as police officers, kidnapped drug dealers, tortured them, and held them for ransom. Some of the victims were murdered. The two lead defendants were convicted at trial of racketeering, racketeering conspiracy, kidnapping, extortion, committing violent crimes in aid of racketeering, and multiple firearms counts. In 1993, both defendants were sentenced to life imprisonment. Their convictions were affirmed by the Second Circuit in 1995.

In 2009, a lawyer for one of the defendants filed a petition for a writ of coram nobis. This defendant had been convicted on 25 counts, but the judgment filed after sentencing imposed a sentence on a count on which the defendant had been acquitted at trial. Given that the defendant had received multiple life sentences, the error had no practical effect. But it was an illegal sentence and required a resentencing.

By this time—16 years after the original sentence was imposed—the trial judge had long since left the bench and the matter was assigned to a new judge for resentencing.

The defendant requested a sentence of time served, which amounted to 18 years on what was a life-without-parole sentence. His application for a time-served sentence was supported by seven letters from prison guards and officials at the U.S. Penitentiary in Lewisburg, Pennsylvania, all of whom represented that the defendant had undergone an extraordinary transformation. The government did not oppose his application, and the judge resentenced the defendant to time served, even though he found that the defendant had engaged in “the worst kind of criminal activity that one could conjure up.”

In sum, because of an error in a judgment reflecting 25 counts of conviction, the defendant obtained, at a resentencing, a time-served sentence, based on what had been a life-without-parole sentence. His codefendant—convicted of the same horrific crimes and also sentenced to life without parole—died in prison.

The second case that got me thinking about a second look at sentencing was United States v. Calcano. In 2000, Shirley Calcano was convicted of narcotics conspiracy and committing a violent crime in aid of racketeering. Calcano had sold crack for a Bronx-based drug gang called the 165th Street Organization. Calcano’s outlet was in Reading, Pennsylvania. She was involved in an assault of someone she had supplied crack to, but who had not paid. Although the jury found her responsible for selling between five and 50 grams of crack, the sentencing judge concluded that she had distributed four kilograms of crack and sentenced her to 40 years’ imprisonment.

Calcano’s conviction was ultimately affirmed by the Second Circuit, but the court remanded for resentencing in light of United States v. Booker, 543 U.S. 220 (2005), which made the federal Sentencing Guidelines of advisory rather than mandatory application. In 2009, more than four years later, the case was reassigned to me, following the trial judge’s retirement. The government conceded that Calcano should be resentenced. The government also stated, somewhat inconsistently, that while the original 40-year sentence was a reasonable sentence, “the Government agrees with defense counsel that a re-sentence of time served . . . would be a reasonable sentence.” Calcano had by that time served over 13 years of her 40-year sentence. There was evidence of significant rehabilitation in prison. I concluded that the sentence that Calcano had already served was sufficient to satisfy all of the purposes of sentencing set forth in 18 U.S.C. § 3553(a), and I resentenced her to time served.

There are countless other examples of defendants who received lengthy terms of imprisonment and who, by virtue of a technical error or because of a change in the sentencing regime, have a right to be resentenced. Accordingly, some defendants are getting a second look at their sentences, and some of these defendants are obtaining significant relief, sometimes with no opposition from the government. But this second look at sentences is not happening in a systematic fashion.

Reasons for Revision

There are, in my judgment, a number of reasons why a “second look” provision in our federal system might make sense.

The United States has the highest per capita rate of incarceration in the world. We incarcerate people at rates that dwarf—by many multiples—the rates of incarceration seen in Western European nations and in Canada, which are democracies that share many of our values. Given the damage that incarceration inflicts on defendants and their families, we have a moral obligation to be certain that our high rates of incarceration are necessary and serve a purpose. In particular, we must be certain that a lengthy sentence of 15 years or more is appropriate, not just at the beginning of the sentence but also throughout its term.

There are crimes that cry out for sentences of that length. Such a sentence might be necessary for a society to express its condemnation of a particular crime or to reflect the consequences of the crime to a victim or to ensure the safety of the community. In such cases, a second look might not result in any reduction in sentence. But we already know, from real-world experience, that not every lengthy sentence—whether it be life imprisonment, 40 years, or something less—is determined to be appropriate when, as the result of a change in the law or a technical error, a resentencing occurs. We know that in some instances the government agrees that the lengthy sentence originally imposed is no longer necessary.

The drafters of the Model Penal Code say that there is a need for great caution when imposing penalties that deprive offenders of their liberty for a substantial portion of their adult lives, or forever, and that a “profound sense of humility ought to operate when punishments are imposed that will reach nearly a generation into the future, or longer still.” I agree.

No one can predict what effect a sentence of 15 years or more may have on a particular defendant. What we do know is that in cases in which there is an opportunity for resentencing, judges—and sometimes even prosecutors—conclude that the lengthy sentence imposed originally is no longer necessary. I believe that there is a moral imperative to ensure that sentences of this magnitude remain appropriate throughout their term.

How It Would Work

How might a “second look” provision be implemented? A select portion of the federal prison population—perhaps those serving sentences of 15 years or more—would have the right to seek a sentence modification after serving 10 years, and at five- or 10-year intervals thereafter.

Why after 10 years of incarceration? The logic is that enough time must have passed to raise questions about whether the rationale for the original sentence remains valid.

The application for a sentence modification would be made to the sentencing judge. If the application made by the inmate appeared to have merit, the judge would have the discretion to appoint counsel for an indigent defendant. Notice of the requested sentence modification would be given to the government and any victim of the crime, and both would have the right to address the request for a sentence modification.

Determination of the sentence modification request would turn on whether the sentence originally imposed remains necessary to accomplish all the purposes of sentencing, as set forth in 18 U.S.C. § 3553(a). The breadth of that inquiry would be comparable to the breadth of the inquiry at the time of the original sentencing. The defendant would have the burden of demonstrating that a sentencing modification should be granted; a high standard of proof might be appropriate for that determination, such as clear and convincing evidence.

Sentencing modifications would not be limited to merely reducing the term of imprisonment. Changes in supervised release conditions might be made, or release to a halfway house might be imposed in lieu of continued confinement in a Bureau of Prisons institution.

Sentencing modification would be a one-way street. There would be no opportunity for the government to seek a longer sentence. Any sentence modification would have to be justified by a reasoned explanation for the change and would be subject to appellate review.


What are the objections to a “second look” provision? Some commentators contend that the concept undermines the judicial and societal interest in finality. Finality, in turn, is important because it promotes deterrence, preserves scarce judicial resources, and offers closure to crime victims. The availability of sentence modification relief may undermine the deterrent value of the punishment originally imposed. My response is that sentence modifications are happening now, but they are happening in an ad hoc and random fashion that may not be fair.

Some commentators have suggested that a “second look” provision might impose an unsustainable burden on the judiciary. The data I have seen suggest that sentences of 15 years or more constitute a small percentage of the sentences imposed in federal court.

Other commentators have suggested that the availability of a “second look” provision might encourage judges to impose more draconian sentences initially, knowing that they would have an opportunity later to modify the sentence. I don’t see this as a serious concern because I don’t believe that judges would intentionally impose an unreasonable sentence knowing that there might be an opportunity to fix it later.

A “second look” provision could have a significant effect on the federal prison population. As of 2014, nearly 7,400 inmates had been in federal prison for more than 15 years, and that number will grow over time. Indeed, the federal prison population has grown by a factor of eight since 1980.

I believe that the time has come to have a serious public dialogue about whether having a “second look” provision as part of the federal sentencing scheme makes sense.

Hon. Paul G. Gardephe

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