In the criminal justice system, there are at least three parties involved in every case: prosecutors, defense attorneys and judges. In high-profile cases, prosecutors and defense attorneys may hold press conferences or otherwise talk to the media. But it is rarer to hear from judges on any specific case or on larger issues.
Last month, the New York Times featured a guest column written by a federal judge named Stefan R. Underhill. In his essay, Underhill discussed the difficulties judges face when trying to determine appropriate sentences for convicted defendants.
He cites a 2006 case that he still thinks about regularly. The defendant in that case had committed horrible crimes (including murder) as part of a gang of drug dealers. But the man had also been very cooperative in helping police capture and prosecute others in the group. As Underhill put it, the man “seemed to be making an unusually sincere effort to atone for” his crimes.
So do you sentence the man who committed the crimes or the better man he is becoming? Ultimately, Judge Underhill decided on a prison sentence of 18 years, which was more than prosecutors were seeking. Underhill fretted about that decision and has since decided it was too harsh. This was confirmed when he visited the man in prison in 2012 and found that he had become a model citizen.
While it is interesting and inspiring to hear from a judge who cares deeply about the impact of his sentencing decisions, the essay is also prescriptive. Judge Underhill argues that in addition to getting rid of mandatory minimums and three-strikes laws, Congress should consider enacting a “second-look review.”
It would work like this: inmates who showed significant improvement and rehabilitation would have a one-time opportunity to appeal their sentence and seek early release. Those filing an appeal would need support from their wardens and the judge hearing the appeal would be the same judge who handed down the original sentence.
Underhill believes that a second-look review would give many inmates much-needed incentive to improve themselves and to “prepare themselves for productive lives on the outside.”
A proposal like Underhill’s may not be perfect or complete, but it is at least food for thought. If the goal of incarceration is to reform as well as punish, shouldn’t judges be able to show leniency to inmates who truly go above and beyond what is expected of them?