Sentence Reform Movement Gains Momentum

Mood in Washington: Shift in Favor of Sentencing Reform Continues to Accelerate

by Derek Gilna

            After a few days in our nation's capital, I can report that criminal sentencing reform is still gathering strength.   There are virtually no elected representatives (not named Senator Tom Cotton) who are willing to be quoted as being in favor of longer sentences, and often appear in competition to be more supportive of the concept.

            The reason is quite simple: there is no longer any political danger in being labeled

"Soft on Crime." As a result, there is nothing in the budget for new guards, new prisons, or anything else that would drive an increase the prisoner counts. Expect the federal counts to drop further.

            All of the "action" (money) is now in the recidivism and rehabilitation areas, and this can only help lower prisoner counts and reduce returns to prison on technical violations. In the feds, "follow the money" to see what policy is now in favor. The new battles in Congress will be to see who gets their share of the pie in the new system. The President clearly supports criminal reform, and there is not one Democratic candidate who has not come out for even more reform, trying to "out-reform" the President.

            The new emphasis on restorative justice means that radical changes to the argument that harsh punishment is always appropriate are on the way., including a change to the pardoning process. There will be immense pressure to release older and sick prisoners, and lawsuits will further accelerate this process.

            One of the initiatives being discussed involved letting the jury known the potential sentence if they find someone guilty:www.prosecutorialaccountability.com, argues that this is an idea that would turn federal criminal justice upside down.

            In the U.S. Supreme Court case of McDonough v. Smith, the court is considering the allowing of more time for prisoners to file a claim based upon police or prosecutor fabricated evidence, as well as recognize that this is a "rampant problem. 18-485, argued 4-17-19.

            In US v. Winbush, 17-7148, (4th Cir. 4-23-19), the court reversed and remanded a denied 2255 habeas petition brought for failure to challenge an incorrect designation as a career offender (CO).    The district court erred by permitting the substitution of a previously unidentified conviction to sustain the CO designation. In US v Copeland, 17-5125, (10th Cir. 4-23-19), the court reversed an ACCA enhanced sentence, finding that defendant proved that the district court relied on the now-overturned residual clause when it initially sentenced.