Group
#18: Criminal Law Alternatives
Taking a “Second Look” at Section 3553(a)
Meredith Esser, University of Denver Sturm
College of Law
The federal sentencing statute (Section 3553(a)) has
been incorporated into several federal retroactive relief efforts that allow
federal defendants to petition sentencing courts for sentence reductions based
on various legal theories. These include retroactive changes in the law as well
as the new and groundbreaking compassionate release statute, which was passed
as part of the First Step Act in December of 2018.
In these contexts, the grant of sentencing relief
generally has both a legal component (whether a defendant meets some legal
threshold) and a discretionary component that directs a judge to incorporate
the Section 3553(a) sentencing factors into her decision.
There are several problems with this approach.
First, Section 3553(a) does not explicitly direct courts on how to take into
account a person’s conduct while in prison, efforts toward rehabilitation, the
severity of the conditions of confinement, or any other aspect of prison
life—factors that might inform a discretionary grant of post-sentencing relief.
Moreover, by default, motions for sentence reductions go back to the original
sentencing judge. Often, then, judges will return to the original sentencing
proceedings to see what factors justified a sentence in the first instance.
Thus, even where a person has served a lengthy prison term before applying for
sentencing relief, a judge may have little reason to incorporate new
information into the analysis.
This article explores the reasons why Section
3553(a) needs to be amended or augmented to account for the post-sentencing
context and proposes several possible ways to approach such a change.
Moderator and Discussant: Jonathan Kerr, University of
Baltimore School of Law
Incentivizing Diversion: How States Can Equitize and
Maximize Statutory Diversion
Christina E. Miller, Suffolk University
Law School
Throughout the past 50 years, courts,
prosecutors, and legislatures have developed programs that divert those accused
of criminal acts out of the traditional-adjudicatory path taken in criminal cases
into alternative adjudicatory or sentencing programs, in an effort to address
root-causes of those criminal acts, while also reducing incarceration and
adjudicative costs. Using diversion as one feature criminal justice reform,
approximately 26 states have enacted pre-adjudication diversion legislation
where the accused is diverted out of the typical adjudicatory path into
alternative programs without tendering an admission. These enactments, however, present structural
barriers which require reforms to better align legislative diversion programs
with underlying reformist goals of diversion.
State legislatures present structural
barriers by restricting who is eligible, based on types of crimes and criminal
history. States also explicitly exclude
individuals from sentencing diversion who seek to assert various constitutional
rights, such as the right not to incriminate oneself, to defend oneself against
the charges and a speedy trial, or to counsel.
Still others discriminate against individuals in diversion programs by
failing to give second chances when a diversion participant struggles with
treatment or the conditions of their diversion. Drawing from a nationwide
review of legislative diversion programs, this Article shows how states can,
and have, sought to make diversion more accessible and as equitable as
possible.