Sentencing, Redemption and Predicting the Future (8/26/13)

There is a lot of buzz in the sentencing world about long sentences, often the product of politicians playing to the base by getting tough on crime.  One driver for questionably long sentences are mandatory minimum sentences which prevent a judge from fashioning an appropriate sentence based on the individual before the court.  See e.g., Sari Horwitz, Holder seeks to avert mandatory minimum sentences for some low-level drug offenders (Washington Post 8/11/13), here.  A variation on that theme was the problem with the "mandatory" sentencing guidelines which, while not as inflexible as mandatory minimum sentences, did limit the sentencing judge's ability to fashion an appropriate sentence.  Fortunately, after years of mischief, the Supreme Court made the sentencing guidelines advisory only and permitted the sentencing judge to fashion its sentence with considerable discretion under 18 USC 3553(a), here.

The New York Times today has a remarkable story  on a a person convicted of crime and sentenced to a significant incarceration period.  The person, Shon R. Hopwood, redeemed himself and is now on a path to being a lawyer, with his first stop as clerk on a prestigious U.S. Court of Appeals.  See Adam Liptak, Taking a Second Chance, and Running With It (NYT 8/26/13), here.

Here are the opening paragraphs which I hope will encourage you to read more.

A 23-year-old bank robber named Shon R. Hopwood stood before a federal judge in Lincoln, Neb. He asked for leniency, vowing to change. 

Judge Kopf reflected on the exchange this month. “When I sent him to prison, I would have bet the farm and all the animals that Hopwood would fail miserably as a productive citizen when he finally got out of prison,” he wrote on his blog. “My gut told me that Hopwood was a punk — all mouth, and very little else.” 

“My viscera was wrong,” Judge Kopf went on. “Hopwood proves that my sentencing instincts suck.” 

Judge Kopf had just heard the news that Mr. Hopwood, now a law student, had won a glittering distinction: a clerkship for a judge on the United States Court of Appeals for the District of Columbia Circuit, which is generally considered the second most important court in the nation, after the Supreme Court. 

Now this is an anecdotal instance.  It is not representative of prisoners that their acts of redemption can reach such heights.  But, I suspect there are many other acts of redemption throughout the system.

Readers of the excerpt and the whole article will note that Judge Kopf was not inclined to give this defendant a break when he encountered him as a brash 23 year old.  He called the future wrong.

One question that might be asked is, like mandatory minimums and mandatory guidelines, refusing parole is an idea that should be reconsidered.  In some ways, the denial of parole can function somewhat like mandatory minimums, at least for a judge who takes the sentencing commission "recommendations" seriously.  Paroles can permit someone to take a later look to see if there mitigating factors exist that could not be known to the judge in fashioning a sentence, even with Booker discretion.  Judges do not always predict the future well.