Sentencing Law

Criminally Yours: Is Sentencing Reform Really A Sea Change, Or Just A Drop In The Bucket?

Putting these men in jail is not making society safer, but stripping whole generations of their dads, uncles, brothers, and sons, while at the same time leaving a very bad taste in the communities left behind.

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I was heartened this week to see that the people who normally put defendants in jail – police and prosecutors — have formed a group to promote the notion that our country incarcerates too many. Enforcement leaders went to Washington, D.C., to try and change laws that mandate jail time, when other alternatives make more sense.

This change of consciousness about the severity of punishment in the U.S. and the damage it’s causing both economically, but more importantly socially, to generations of mostly black and Hispanic men, is remarkable not only because of who it’s coming from but because it now seems to be something inevitable – we’ve reached the Malcolm Gladwell turning point – change is needed, change must happen.

Yet while the time for sentencing reform appears to have come, the devil will be in the implementation. It will take a lot of coordination and guts to make it work.

Coordination should come from the many facets of society that deal with criminal justice. Certainly, the defense bar but also the judiciary, prison officials, social workers, drug program coordinators, mental health providers, etc. All of these people could and should get involved.

If punishment is reduced for certain crimes, there needs to be a net of services in place to help those newly released find the help they’ll need to get GEDs, learn skills, and find housing and jobs.

Next, work has to be done to legislate the expunging of records. Expungement does not exist in New York State or federally. When you get a conviction for anything, it follows you the rest of your life (except under very limited circumstances, such as being under 18 at the time of crime’s commission). According to reports, more and more employers are using the internet to access the criminal histories of job candidates. If we really want to give people a hand in avoiding further criminality and staying off the dole, they’ll need to find work. So let’s temper the consequences of having a criminal record.

My top four list in sentencing reform is the following:

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– Eliminate all mandatory sentences. Such sentences strip judges of all discretion and in many cases are far out of whack with the seriousness of the crime. (More on this in a future column.)

– Create better drug programs for the indigent that treat drug users first and foremost as patients and not criminals.

– Commit to the drug programs, not as a way to punish defendants even more severely if they fall off the wagon, which judges and prosecutors often do, but as a first step in working to navigate a non-jail solution to the many problems that got defendants into jail in the first place.

– Permit anyone who does well for a certain number of years to get their record expunged.

And let’s not kid ourselves, sentencing reform will also require guts because bad things will happen. Last week in New York, a man indicted for a felony was given the opportunity to attend a drug program instead of jail. A month after he failed to attend his program and a warrant was issued for his arrest, he shot and killed a New York City police officer. Ironically, he was recommended for ‘judicial diversion’ (a drug program) by one of the toughest judges in the courthouse. No one could have foreseen what happened, nor should it mean that judicial diversion is not a valid option for 99% of the people who qualify or that further programs shouldn’t be developed and extended to more people.

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What I’m reading into this moment (call it wishful thinking) is an implied recognition that even though most of the people incarcerated in urban centers are young black and Hispanic men, that doesn’t necessarily mean they’re committing most of the crime. It just means they’re being targeted the most. Putting these men in jail is not making society safer, but stripping whole generations of their dads, uncles, brothers, and sons, while at the same time leaving a very bad taste in the communities left behind, particularly toward the police and prosecution, forces that truly could be there to help those same communities.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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