May 25, 2016
In the past two years we have heard that Congress is on the brink of passing legislation that would reform our criminal justice system — by shifting away from the practice of warehousing drug offenders in prison, and moving in the direction of rehabilitation. This was one thing, it was reported, upon which Republicans and Democrats could agree. Well, here in the last year of the Obama Administration, that appears to be nothing more than fantasy. For one, it is apparent that Congress is so dysfunctional it cannot pass any meaningful legislation. Most of the justice reform legislation being thrown around – on the State and Federal levels – has been watered down to the point where its impact is limited. Measures like the Smarter Sentencing Act, currently languishing in the House of Representatives, are unlikely to pass in a meaningful form. At the State level, measures like The Maryland Justice Reinvestment Act are compromise provisions that give relief to one group by taking from another group. At the end of the day, politicians still feel they need to appear “tough on crime” in order to get reelected. Then, there is the reality on the ground. One problem is mandatory minimum sentences, which take all discretion out of the hands of judges. I just had a judge impose a 10-year sentence in a marijuana case – not because he wanted to, but because he had to. Another problem is that sentencing decisions are often driven by prosecutors. All too often, judges look to prosecutors to tell them what the proper sentence should be. Most of the time, the judges (themselves former prosecutors) oblige. In one of my recent cases, a judge practically apologized to a prosecutor when he sentenced a defendant below the Government’s recommendation. But then, every now and then, along comes a judge who is willing to set aside these decrepit institutional traditions and do the right thing. One such judge is Frederic Block of the Eastern District of New York. In an extraordinary proceeding, in U.S. v. Nesbeth, he sentenced a federal drug defendant to probation rather than the sentencing guidelines recommendation of 33 to 41 months in prison. His reason? He cited all of the collateral consequences that a convicted felon faces – and drew the conclusion that those consequences were punishment enough. It was enough, he said, that the defendant would lose her job, become ineligible for federal grants, and most likely be held back for much of her life because of one very bad decision. While Judge Block’s opinion is not binding on other jurisdictions, it will surely become a useful tool in the belts of defense attorneys across the country – and hopefully it will inspire other judges to brush aside the catastrophic dogma that has predominated our criminal justice system for too long.