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Legal Studies Research Paper Series Paper No. 1109 
52 William and Mary Law Review (2010)  

Changing the Sentence Without Hiding the Truth:  
Judicial Sentence Modification as a Promising  
Method of Early Release 
Cecelia M. Klingele 
This paper can be downloaded without charge from the 
Social Science Research Network Electronic Paper Collection at:  

Electronic copy available at:

Cecelia Klingele*
Last year, as the State of California struggled with a $42 billion budget deficit, its
financial inability to correct constitutionally deficient prison conditions led a federal court to
order the release of 40,000 state prisoners. In Oregon, Michigan, Connecticut, Vermont, and
Delaware, spending on corrections now exceeds spending on higher education. Across the
nation, more than 1 of every 100 Americans is behind bars. When the financial crisis of 2008
dealt its blow, state correctional budgets were already nearing a breaking point. Now, in the
wake of unprecedented budget shortfalls, state governments have been forced to confront a
difficult reality: the ever-increasing prison population has come at too high a price. The question
is no longer whether to reduce the number of prisoners, but how.
Reversing years of ever-harsher sentencing policies, jurisdictions throughout the United States
are trying to cut costs by expanding good time credit, increasing parole eligibility, and
authorizing new forms of early release. This Article examines judicial sentence modification, an
often overlooked ameliorative mechanism that has potential benefits many other forms of early
release lack. For states wishing to promote early release in a manner that is both transparent
and publicly accountable, judicial sentence modification is a promising, and potentially
sustainable, new mechanism for sentence reduction.
INTRODUCTION ............................................................................................................ 2
I. HOW WE GOT HERE ................................................................................................. 4
A. Shifting Sensibilities.................................................................................... 4
B. Legislative Responses ................................................................................. 8
C. Consequences of Increased Incarceration ............................................... 12
II. WHAT STATES ARE DOING NOW ........................................................................... 14
A. Methods of Release ................................................................................... 15
1. Expansion of parole eligibility............................................................. 15
2. Sentence credit ..................................................................................... 16
3. Infirmity-based release ........................................................................ 18
B. Preliminary Results ................................................................................... 20
A. Historical Roots ........................................................................................ 23
B. Modern Use ............................................................................................... 25
1. The Rule 35 Motion Extended: Modification in Maryland ............... 26

* Visiting Assistant Professor, University of Wisconsin Law School. Many thanks to Michael E. Smith and Walter J.
Dickey for years of thought-provoking conversations on the subject of sentence modification; to Howard Erlanger,
Margaret Colgate Love, Michael Tonry, Justin Murray, Hank Shea, Robert Visher, Lahny Silva, Meredith Ross,
Keith Findley, Anuj Desai, and Ben Kempinen for their helpful comments on earlier drafts of this article; to Jesse
Norris for his research assistance; and to Brad, Kateri, Thérèse, Trea, Felicity, and Zélie Klingele for their patience.


Electronic copy available at:

2. Inherent Jurisdiction: The Wisconsin Approach ................................ 28
3. Shared Decision-making: The Federal Model ................................... 30
4. A New Approach: The Model Penal Code‟s “Second Look”............ 32
C. Advantages of Judicial Sentence Modification ........................................ 33
1. Transparency ....................................................................................... 34
2. Public Accountability ......................................................................... 35
3. Sustainability....................................................................................... 37
D. Potential Limitations of Judicial Sentence Modification.......................... 38
1. Constitutional Constraints .................................................................. 38
a. Double jeopardy.......................................................................... 38
b. Separation of powers .................................................................. 40
2. Practical Obstacles .............................................................................. 42
3. Additional Considerations .................................................................. 44
CONCLUSION ............................................................................................................... 47
From the early 1980s through the beginning of the twenty-first century, U.S. state and
federal crime policy was characterized by increasingly harsh custodial penalties. “Tough on
crime” was the rhetoric of the day: the number of criminal sanctions increased and the length of
custodial sentences soared.1 Public demand for “truth in sentencing” and accountability for
offenders and criminal justice administrators led to the abolition of parole in many jurisdictions
and limited early release in still more.2 Mandatory minimum sentences, penalty enhancements,
and determinate sentencing schemes became key tools in the law enforcement arsenal, all
designed to get—and keep—criminals off the streets.3 Yet despite significant drops in the rate of
violent crime throughout the 1990s, the growth in imprisonment continued unabated.4
As a result of the move toward more punitive policies, the number of persons confined in
U.S. jails and prisons increased substantially—from just over 1.1 million in 1990 to 2.3 million
in 2008.5 The United States now imprisons its residents at a rate seven times higher than Western
European nations.6 Though scholars have posited many possible explanations for this disparity,
1. See generally MARC MAUER, RACE TO INCARCERATE (2d ed. 2006).
STATE PRISONS 3 (1999), available at (describing abolition of
parole in fourteen states).
3. MAUER, supra note , at 45-48.
4. The U.S. Crime Index rate rose gradually from 1960-1980, dropped significantly from 1980-1984, and then rose
again until 1991, when it went into steady decline. LEONARD A. MAROWITZ, CRIMINAL JUSTICE STATISTICS CENTER,
BEYOND) 3 (2000), available at FBI crime statistics show that
after a brief uptick in crime from 2005-2006, crime rates are once again declining and have reached near record
CRIME REPORT (2009), available at
(1995), available at, with WILLIAM J. SABOL, ET AL., BUREAU OF
6. Bruce Western & Christopher Wildeman, Punishment, Inequality, and the Future of Mass Incarceration, 57 U.
KAN. L. REV. 851, 857 (2009); see also Alfred Blumstein, Michael Tonry & Asheley Van Ness, Cross-National


Electronic copy available at:

no single theory appears to capture the causes of “American exceptionalism,” and the reasons for
its persistence remain a source of much debate.7
What is not debated is the fact that America‟s growing prison population has come at a
cost. The human costs of incarceration have led to widespread critiques of America‟s
overreliance on incarceration as a tool of social control.8 In recent years, however, it is the
financial consequences of current penal policy that have drawn the most attention from
policymakers. As the number of inmates has burgeoned, correctional budgets have been strained
by many factors. Larger prison populations have led to the construction of more prisons with
associated staffing and overhead expenses.9 More prisoners have also meant higher costs for
basic necessities, along with increased costs for “optional” programming, such as GED
instruction, vocational training, and drug and alcohol rehabilitation.10 Significant, too, has been
the rapidly rising cost of delivering even rudimentary health care—a cost states bear in full for
those within their custody.11
State correctional costs are now estimated to exceed $50 billion annually.12 That sum
would be burdensome in the most affluent of times, but in the wake of the financial crisis of
2008, it has become unsustainable. Spurred to action by funding deficits, in recent months many
states have begun to pass legislation and implement administrative measures designed to reduce
incarceration rates, increase public safety, improve successful re-integration for former
offenders, and, ideally, alleviate the financial burdens of the “tough on crime” policies that
defined the period from 1980-2000.13 Some of these measures have focused on reducing the
number of people entering prison as a result of conviction or revocation from community
supervision. Many others, however, have focused on reducing the number of people in custody
Measures of Punitiveness, 33 CRIME & JUST. 347, 358-50, 375 (2005) (describing differences between U.S. and
European rates of imprisonment with respect to various crimes).
AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR (2007); Michael Tonry, Explanations of American
Punishment Policies: A National History, 11 PUNISHMENT & SOC‟Y 377, 377-79 (2009) [hereinafter Tonry,
See infra Part II.B.
(“During the last quarter of the twentieth century, state prison systems grew from 592 prisons to 1,023 prisons—an
increase of 73 percent.”).
10. In some jurisdictions, programs once thought to be central to achieving institutional objectives, such as internal
order maintenance and preparation for successful release, were reduced or even eliminated altogether as a result of
fiscal and capacity constraints. See, e.g., RYAN S. KING & MARC MAUER, THE SENTENCING PROJECT, STATE
SENTENCING AND CORRECTIONS POLICY IN AN ERA OF FISCAL RESTRAINT 11-15 (2002), available at (describing correctional cost
reduction measures such as cuts in education and drug treatment programming).
11. See 42 U.S.C. § 1396d(a)(28)(A) (2008) (prohibiting states from receiving federal reimbursement for the
medical costs of inmates of public institutions); Eric Neisser, Is There a Doctor in the Joint? The Search for
Constitutional Standards for Prison Health Care, 63 VA. L. REV. 921, 936 n.76 (1977) (discussing fiscal
ramifications of the inmate exception on the provision of prison health care).
12. PEW CENTER ON THE STATES, ONE IN 31: THE LONG REACH OF AMERICAN CORRECTIONS 11 (2009), available at [hereinafter
ONE IN 31].
13. See infra Part II.


following conviction by authorizing early release.14
Although some of these back end legislative reforms have already delivered a modicum
of short-term relief in the form of reduced sentences and their associated cost-savings,15 there are
reasons to question the long-term sustainability of many new early release laws.16 With rare
exception, new legislation places the release decision in the hands of prison administrators or
parole boards that are unaccountable to the communities in which offenders have been sentenced
and to which they will often return. By failing to grapple with concerns about transparency and
public accountability, these new legislative reforms leave themselves vulnerable to the criticisms
that led to the dissolution of prior forms of early release.17
This Article examines the recent proliferation of early release legislation and highlights
judicial sentence modification—until now a largely overlooked ameliorative mechanism—as an
additional, and potentially more sustainable, tool for states wishing to promote early release in a
manner that is both transparent and publicly accountable. Part I reviews in some detail the policy
concerns and legislative changes that led to the abolition or restriction of early release in most
jurisdictions from 1980-2000. Part II examines a variety of common legislative responses to the
mounting correctional crisis, analyzing the ways in which they work and exploring questions
about their long-term sustainability. Part III then introduces judicial sentence modification as an
additional and currently underutilized mechanism for early release. After examining the
mechanism‟s unique history and characteristics, the Article concludes that judicial sentence
modification merits greater attention, not only because of its ability to reduce sentence lengths,
but because of its potential for enhancing the public legitimacy of the early release decision.
A. Shifting Sensibilities
At the turn of the twentieth century, reformers schooled in the emerging field of
criminology began to champion a new model of incarceration. They asserted that the prison
ought to be more than a place of detention: it should be a state-of-the-art facility designed to
reform the criminally deficient through “correctional” programming.18 In order to promote and
facilitate rehabilitation, reformers urged states to transition away from the short, determinate
sentences favored in the eighteenth and nineteenth centuries to a model of indeterminate
sentencing in which release was tied directly to successful rehabilitation.19 Unlike the old
14. See infra Part II.A.
15. See id.
16. See infra Part II.B.
17. See id.
18. Criminologists such as William White argued that “degeneracy” was a disease and that criminals “should be sent
to reformatories as patients, to remain until cured and not for a fixed time, and criminals should know that this is the
course and that liberty depends on themselves.” Criminality a Disease, N.Y. TIMES, Oct. 18, 1895, at 1. See also The
Medical Aspects of Crime, 2 BRIT. MED. J. 100, 100 (1899) (reporting on the 1899 meeting of the American Medical
Association at which one of the keynote speakers advocated “that inebriates should be kept in prolonged
confinement under treatment ... that all sentences should be indeterminate pending reformation or cure; and lastly,
that there should be penitentiaries for the lifelong incarceration of those who are incapable of reformation”).
19. As one scholar of the period explained:
A madman or a person afflicted with a dangerous disease is prevented, for his own interests as
well as the interests of the community, from freely moving about until he is restored to health; so


determinate sentencing system, which required judges to set firm release dates for defendants,
the indeterminate sentencing model required judges to impose a range of permissible
punishment. Parole boards then decided when to authorize any given offender‟s release based on
the board‟s subjective assessment of the offender‟s personal rehabilitation.20
Advocates of the indeterminate sentence saw it as a humanitarian reform that would bring
much needed treatment to those whose criminal deficiencies led them to pose risks to society at
large.21 They hailed the dawn of a new era of reform that would end the perceived brutality of
retributive sentencing and would convert prisons into places of healing and reconciliation. 22 So
successful were these arguments that by mid-century, all states and the federal government had
adopted some form of indeterminate sentencing.23
Throughout the first six decades of the twentieth century, rehabilitation was considered
the chief purpose of sentencing and the indeterminate sentence served increasingly as its primary
tool.24 During the 1970s, however, new research gave rise to doubts about the effectiveness and
fairness of the rehabilitative model. In a number of influential studies and articles, prominent
academics questioned whether then-existing correctional programs were capable of achieving
the criminal, for his own interests as well as the interests of society, is prevented from moving
freely about until he is cured from his criminal proclivity; and as in the first case so in the second,
it is impossible to fix beforehand the date when the restoration to a normal condition will be
effected. Therefore ... the sentence must not be for a certain period, but for a certain purpose, i.e.,
until reformation is effected.
Alexander Winter, The Modern Spirit in Penology, 8 POL. SCI. Q. 445, 454 (1893).
When it appears to the board of parole that there is a strong reasonable probability that any inmate
will remain at liberty without violating the law, and that his release is not incompatible with the
welfare of society, they shall issue to such inmate an absolute release or discharge from
N.Y. CODE CRIM. PROC. § 93 (1920). Several states‟ parole statutes used nearly identical language. REPORT OF THE
21. See Edward D. Duffield, Criminal Law Reform (Report of the Committee of the American Prison Association), 9
J. AM. INST. CRIM. L. & CRIMINOLOGY 193, 195 (1918) (asserting that “[b]y common consent those interested in
prison reform have reached the conclusion that [indeterminate sentencing] furnishes the best method of fixing the
extent of punishment it is necessary for society to inflict in order to produce the result sought” and arguing that “[i]t
should be the purpose of this Association to see that it is universally adopted”); Eugene Smith, The Old Penology
and the New, 184 N. AM. REV. 80, 83-86 (1907) (describing a shift from the old penology, focused on retribution
and sentences fixed in advance, toward the new penology, characterized by indeterminate sentences and efforts to
reform prisoners).
22. See, e.g., Charlton T. Lewis, The Indeterminate Sentence, 9 YALE L.J. 17, 20 (1899) (“The principle of the
reformatory sentence, in its completeness, implies the conversion of the prison into an institution combining the
means and aims of hospital, school and church, for the healing and culture of body, mind and will.... [I]t is to be held
in view as the standard by which our partial and tentative reforms must be measured; and just in the degree that it is
approached will the possible beneficence of the principle be realized.”).
23. “By 1925, forty-six out of the forty-eight states of the union had parole laws,” and the laggards (Mississippi and
(1993). See also MICHAEL TONRY, SENTENCING MATTERS 6 (1996) (noting that in 1970, every state in the United
States had an indeterminate sentencing system).
36-38 (1971) (“The individualized treatment model ... has for nearly a century been the ideological spring from
which almost all actual and proposed reform in criminal justice has been derived. It would be hard to exaggerate the
power of this idea or the extent of its influence.... [T]he movement toward the individualized treatment model is
unmistakable. Every state has some form of parole, which provides a core indeterminancy.”).


their stated goals.25 In 1974, Robert Martinson famously wrote that “[w]ith few and isolated
exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect
on recidivism.”26 Although Martinson himself left open the possibility that the failure of
programs might be more attributable to poor execution than to the impossibility of success, he
did question whether it was true that “we haven‟t the faintest clue about how to rehabilitate
offenders and reduce recidivism.”27 In the wake of his seminal work, many commentators began
to assert that the rehabilitative ideal was unachievable: “Nothing works” became the motto of the
Further undermining the theoretical soundness of the rehabilitative ideal were scholars
who questioned whether it was the right of the state to interfere with an offender‟s motivations
and thoughts—indeed, with his very soul—through coercive programming.29 To some, the
problem with state-sanctioned rehabilitation was that it impermissibly imposed on the moral
autonomy of the criminal offender.30 For others, the rehabilitative ideal reduced to a form of
covert class warfare that threatened undeserved punishment on those whose lifestyles and mores
differed from those favored by the governing elite.31 Regardless of the form the critique
assumed, there was a growing skepticism among observers that penal rehabilitationism was
either as effective or humane as previously assumed.
Practical and philosophical doubts regarding the validity of the practice of indeterminate
sentencing were bolstered by other systemic concerns. Unlike sentencing decisions made in open
court, release decisions in the indeterminate system were made privately, always outside public
view, and often without input from victims or other interested parties, and ordinarily without
explanation.32 Statewide parole boards were typically composed of political appointees who
25. Robert Martinson, What Works?—Questions and Answers About Prison Reform, 35 PUB. INT. 22, 22-23 (1974);
TREATMENT: A SURVEY OF TREATMENT EVALUATION STUDIES 6-8 (1975) (seminal review of 231 studies of
rehabilitative prison programming concluding that there was no correlation between programming and actual
rehabilitation); David F. Greenberg, The Correctional Effects of Corrections, in CORRECTIONS AND PUNISHMENT
111, 140-41 (David F. Greenberg, ed. 1977) (reviewing various studies and concluding that many rehabilitative
programs fail to reduce recidivism).
26. Martinson, What Works?, supra note , at 25 (emphasis omitted).
27. Id. at 48 (emphasis omitted).
28. ANDREW VON HIRSCH, DOING JUSTICE: THE CHOICE OF PUNISHMENTS 18 (1976) (asserting that while “[i]t
would be an exaggeration to say that no treatment methods work .... in the more commonplace instances where no
successful treatments are known, the rehabilitative disposition is plainly untenable”); JAMES Q. WILSON, THINKING
ABOUT CRIME 43-63 (1975) (arguing that rehabilitative policies have derived from criminologists‟ opinions rather
than any evidence that the policies work).
29. MICHEL FOUCAULT, DISCIPLINE AND PUNISH 18 (Alan Sheridan trans., Pantheon Books 1977) (1975).
30. See, e.g., VON HIRSCH, supra note , at 17.
31. AM. FRIENDS SERV. COMM., supra note , at 85 (“An important force in the reform movement was the mixture of
hatred, fear, and revulsion that white, middle-class, Protestant reformers felt toward lower-class persons.... These
difficult feelings were disguised as humanitarian concern for the „health‟ of threatening subculture members.
Imprisonment dressed up as treatment was a particularly suitable response for reformers‟ complicated and
inconsistent feelings.”);FRANCIS A. ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL 39 (1981) (describing
“what has come to be known as the social control school” of criminology, in which “an effort is made to incorporate
social deviance and the repressive responses of the bourgeois society into a much broader theory of social
32. See Marvin E. Frankel, Lawlessness in Sentencing, 41 U. CIN. L. REV. 1, 15 (1972) (“Whatever the qualities of
prison life itself ... parole officials carry on for the most part the motif of Kafka‟s nightmares. It has been expressed


often lacked knowledge about the local conditions to which offenders would return upon
release.33 Moreover, board members acted with nearly unfettered discretion: their decisions were
usually unreviewable and were often made in reliance on institutional factors that bore only a
tenuous connection to public safety.34 Judge Marvin Frankel criticized the system thusly:
As things stand in most jurisdictions ... and have long stood, parole boards,
subject to no precise criteria and offering no explicit clues as to why particular
decisions go as they do, exercise secretly the power to decide within broad ranges
the actual number of years of confinement.... Decisions based upon secret reasons
bear no credentials of care or legitimacy.35
The insular and unexplained nature of these release decisions led many critics, inside and
outside the academy, to assert that the practice of parole undermined accountability, thwarted
judicial sentencing decisions, and lacked legitimacy.36 Similar criticisms were leveled against the
use of sentence credits, which allowed prison officials to shorten sentences administratively to
control overcrowding and reward compliance with institutional rules.37 As a result of these
concerns over the unguided and opaque manner in which ameliorative mechanisms were being
used, many scholars and politicians began to advocate for the adoption of more certain durations
of confinement, with a severely circumscribed role for all mechanisms governing early release.38
by the United States Board of Parole almost as a matter of pride that the judgment whether or when a prisoner will
be released is inscrutable.”); Robert W. Kastenmeier & Howard C. Eglit, Parole Release Decision-Making:
Rehabilitation, Expertise, and the Demise of Mythology, 22 AM. U. L. REV. 477, 481 (1973).
33. See Daniel S. Medwed, The Innocent Prisoner‟s Dilemma: Consequences of Failing to Admit Guilt at Parole
Hearings, 93 IOWA L. REV. 491, 504 & n.59 (2008) (collecting authorities).
34. Robert M. Garber & Christina Maslach, The Parole Hearing: Decision or Justification?, 1 LAW & HUM. BEHAV.
261, 261-63, 278-80 (1977) (suggesting that parole hearings may not have any effect on the parole release decision
based on a study of parole hearings in California); Edward A. Gargan, Has Parole Run Out of Time in New York?,
N.Y. TIMES, Feb. 19, 1984, at E8 (quoting Lawrence T. Kurlander, criminal justice coordinator for Governor Mario
Cuomo, stating, “[r]ight now we have judges supposedly doing the sentencing.... But the real sentencing is being
done by the Parole Board within the confines of prison walls, by what criteria we don‟t know.”).
35. Frankel, supra note , at 15-16. One commentator described the attacks on parole in this way:
At the heart of the attack on the discretionary power of parole boards was not only the essential
arbitrariness of many of their decisions but also a general lack of concern to articulate the
principles and criteria underlying them. At times, parole authorities appeared to take pride in the
indecipherability of their work. Even when parole authorities did have explicit criteria and
principles, this did not necessarily resolve the problem, as they never really have clarified the
process by which decisions to grant or deny parole were made.
A. Keith Bottomley, Parole in Transition: A Comparative Study of Origins, Developments, and Prospects for the
1990s, 12 CRIME & JUST. 319, 338 (1990) (citations omitted).
36. See Kastenmeier & Eglit, supra note , at 494 (asserting that now-discredited rehabilitative considerations drove
the “diminution of the role of the judiciary in determining the length of incarceration to be served by a convicted
offender”); Wendell Rawls Jr., Pennsylvania Shapes Prison Law to Cut Crime, N.Y. TIMES, Jul. 8, 1982, at A1
(discussing new laws abolishing parole and quoting a member of Pennsylvania Governor Dick Thornburgh‟s
administration as stating, “The public is ... often misled by the news media into thinking that a person sentenced to
two to 10 years is going to serve as much as 10 years .... What we are looking for is greater accountability in
sentencing and release and more responsible sentencing by judges.”).
37. See, e.g., James B. Jacobs, Sentencing by Prison Personnel: Good Time, 30 UCLA L. Rev. 217, 221 (1982)
(arguing for the abolition of good time credit in favor of “more open practices beyond the control of prison
authorities” that are “less prone to abuse”).
38. See ABA STANDARDS FOR CRIMINAL JUSTICE: SENTENCING 138-39 (3d ed. 1994) [hereinafter ABA:
SENTENCING] (proposing determinate sentence with limited good time as the only method of sentence reduction);


As reformers began calling for a shift away from indeterminate sentencing based on
doubts about its efficacy and fairness, other phenomena pushed public sentiment away from the
humanistic principles that had animated the rehabilitative ideal.39 With a few short-lived
exceptions, the U.S. Crime Index rose steadily from 1960-1991,40 and fear of crime rose with it.
Polls conducted in the mid-1970s and early 1980s found that roughly half of all American adults
felt uncomfortable walking alone, and that two of every five Americans were “highly fearful” of
falling victim to violent crime.41 The rising crime rates attracted considerable attention,42 and
contributed to public and academic calls for reform in policing, prosecution, sentencing, and
B. Legislative Responses
Although states responded in various ways to changing public attitudes toward crime and
sentencing following the collapse of the rehabilitative ideal, the general legislative trend was
toward sentences that were both longer and more rigid.44 Newly passed legislation increased
maximum penalties, added new penalty enhancers, adopted determinate sentencing schemes, and
abolished traditional forms of early release.
In the states, legislatures raised maximum sentences for standard offenses,45 created
VON HIRSCH, supra note , at 98-102; see also George F. Cole, A Return to Punishment, N.Y. TIMES, Feb. 19, 1978,
at CN20 (noting that “[d]uring the last five years ... [r]ehabilitation as the goal [of imprisonment] has given way to
calls for a simpler, fairer and more open form of justice. Not only has there been an accumulating literature pointing
to the ineffectiveness of rehabilitative programs, the disparity of sentences and the often whimsical nature of the
parole decision, but also the pervasiveness of the discretion required by the treatment model has been of mounting
concern to scholars, prisoners, practitioners and politicians”).
39. For a more detailed and nuanced description of the reasons underlying shifts in public sentiment during this
period, see Michael Tonry, Obsolescence and Immanence in Penal Theory and Policy, 105 COLUM. L. REV. 1233,
1238-39 (2005).
40. MAROWITZ, supra note , at 3.
(1988), available at
42. Barbara Basler, Serious Crimes Nearing Record in New York, N.Y. TIMES, Nov. 18, 1980, at B1 (describing
sharp rise in crime in New York City as part of national trend); Linda Greenhouse, Burger Urges Plan of „Damage
Control‟ to End Cities‟ Crime, N.Y. TIMES, Feb. 9, 1981, at A1 (Chief Justice of U.S. Supreme Court calling for
new ambitious program to address rising crime rates, and describing urban crime as “terrorism” and “warfare”).
43. The rising crime rate alone does not explain the massive shift toward more punitive sanctions, however. Other
developed nations saw similar increases in crime throughout the same period and none revised their sentencing
policies as swiftly or as harshly as did the United States. Tonry, Explanations, supra note , at 379. Moreover, many
of the most punitive reforms to come would be enacted after 1990, when crime rates began to fall precipitously. See
What explains the change in public sentiment that began in the 1970s? Scholars have suggested causes
ranging from “conditions of late modernity,” GARLAND, supra note , at 193 (which include globalization and
increased public fear about crime and society more generally), to the American political structure and style to racial
tensions to “a Manichean moralism associated with Protestant fundamentalism.” Tonry, Explanations, supra note ,
at 379. Whatever combination of complex causes best explains the phenomenon, this much is clear: By the early
1980s, legislators, prosecutors, judges, and ordinary citizens alike began pressing for greater and more certain
punishment for criminal offenders.
44. For further discussion of this phenomenon, see MICHAEL TONRY, U.S. DEP‟T OF JUSTICE, THE FRAGMENTATION
45. In Wisconsin, for example, the maximum term of imprisonment for a Class B felony increased from twenty


mandatory minimum sentences,46 and enacted three-strike provisions.47 Hate crime statutes48 and
repeat offender enhancements49 also contributed to sentences of increasing duration. Lawmakers
do not bear sole responsibility for the incarceral trends of the period, however. When exercising
charging discretion, prosecutors began seeking convictions under newly enacted criminal
legislation and demanding penalties in accordance with the enhanced sentencing provisions.50
Judges followed suit and began sentencing offenders to sentences of longer and more certain
durations of confinement.51 And even in those jurisdictions where parole remained legally
available, executive branch officers—often at the direction of politically accountable state
officials—became more reluctant to exercise their release authority.52
years imprisonment to forty years in 1994 and then to sixty years in 1999. Compare WIS. STAT. § 939.50(3)(b)
(1990), with WIS. STAT. § 939.50(3)(b) (1994) and WIS. STAT. § 939.50(3)(b) (2000).
46. See TONRY, supra note , at 146 (“By 1983, forty-nine of the fifty states ... had adopted mandatory sentencing
laws for offenses other than murder or drunk driving.”); U.S. SENTENCING COMM‟N, SPECIAL REPORT TO THE
CONGRESS: MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM 11 (1991), available at (“Today there are approximately 100 separate federal mandatory
minimum penalty provisions located in 60 different criminal statutes.”).
47. See, e.g., 18 U.S.C. § 3559(c) (2006) (providing for a mandatory life sentence for those convicted of serious
violent felonies on three separate occasions, first passed in 1994, Pub. L. No. 103-322, 108 Stat. 1796, 1982 (1994));
CAL. PENAL. CODE § 667 (West 2010) (codifying California‟s three strikes law, passed in 1994 both through the
legislative process and by Proposition 184, establishing lengthy sentences, often twenty-five years to life, for those
convicted of three separate felonies); N.M. STAT. § 31-18-23 (1996) (statute first taking effect in 1994, establishing
mandatory life sentence with possibility of parole after 30 years, for those convicted of three violent felonies); 42
PA. CONS. STAT. § 9714 (2001) (statute first taking effect in 1995, establishing sentences of twenty-five years to life
for those convicted of three crimes of violence); TENN. CODE ANN. § 40-35-120 (1995) (statute first taking effect in
1994, providing for a sentence of life without parole for those convicted of three felonies); WASH. REV. CODE §
9.94A.555 (2010) (statute first taking effect in 1993, establishing sentences for defendants convicted of three most
serious offenses).
48. See, e.g., MONT. CODE ANN. § 45-5-222 (2009) (statute first passed in 1989, providing that offenders committing
any crimes because of the victim‟s “race, creed, religion, color, national origin, or involvement in civil rights or
human rights activities” may receive a sentence from two to ten years in addition to and consecutive to the penalty
for the offense itself); TEX. PENAL CODE ANN. § 12.47 (Vernon 2010) (statute first passed in 1993, increasing the
penalty to the next higher offense category when motivated by bias or prejudice regarding “race, color, disability,
religion, national origin or ancestry, age, gender, or sexual preference.” (quoting by reference TEX. CODE CRIM.
PROC. ANN. art. 42.014 (Vernon 2010))); WIS. STAT. § 939.645 (2009) (statute, first passed in 1987, allowing for
increases in fines and prison sentences for offenders targeting victims based on their “race, religion, color, disability,
sexual orientation, national origin or ancestry”). At the federal level, the Violent Crime Control and Law
Enforcement Act of 1994 specified that sentences be enhanced at least “3 offense levels for offenses that ... are hate
crimes.” Pub. Law No. 103-322, 108 Stat. 1796, 2096 (1994) (codified at 28 U.S.C. § 994 note).
49. See, e.g., COLO. REV. STAT. § 16-13-101(2) (1996) (stating that any person with three separate prior felony
convictions who is convicted of another felony will be adjudged an habitual offender and must receive a sentence
four times the maximum range of the felony classification of the offense); GA. CODE ANN. § 17-10-7(a) (1994)
(mandating that anyone with a prior felony conviction who commits another felony punishable by a prison sentence
must be sentenced to the maximum for the offense); LA. REV. STAT. ANN. § 15:529.1(A)(1)(a) (1996) (establishing
that anyone convicted of a second felony may be sentenced for a term of as much as twice the longest term available
for the first conviction); WASH. REV. CODE § 9.92.090 (1996) (providing that every person convicted of a felony
who has one prior felony conviction must receive a sentence of at least ten years).
50. See infra notes 135-36, 234 and accompanying text.
51. See infra note 213.
52. See Kevin R. Reitz, Questioning the Conventional Wisdom of Parole Release Authority, in THE FUTURE OF
IMPRISONMENT 199, 227 (Michael Tonry ed., 2004) (noting that “most parole boards in the 1980s and 1990s became


In the federal system, the desire for harsher and more certain punishment was expressed
through several major legislative acts. First and most notable was the Comprehensive Crime
Control Act of 1984 (CCCA), which abandoned indeterminate sentencing in the federal system
and adopted mandatory penalty guidelines for use in all federal criminal sentencings.53 Ten years
after the CCCA was passed, Congress acted again to toughen criminal penalties and encourage
the widespread adoption of determinate sentencing legislation. Described by President Bill
Clinton as “the toughest, largest, and smartest Federal attack on crime in the history of the
United States of America,”54 the Violent Crime Control and Law Enforcement Act of 1994
(VCCLEA) resurrected the federal death penalty and introduced three strikes legislation. 55 The
Act and its 1996 amendments also provided prison-building grants to all states that required
violent prisoners to serve longer portions of their sentences.56
Although twenty states and the District of Columbia modified their sentencing laws
following passage of the VCCLEA, in reality the legislative incentive played a minor role in the
move to determinate sentencing. By the time the VCCLEA amendments took effect, a majority
of states had already begun to adjust their sentencing practices in accordance with new
sensibilities. In 1984, the State of Washington became the first to enact so-called “truth-insentencing” legislation,57 and Utah, Oregon, Delaware, and others soon followed suit.58
Following passage of the VCCLEA, twenty additional states and the District of Columbia
modified their sentencing practices to a degree that qualified them for funding under the
VCCLEA; however, survey findings suggested that federal incentive grants were the primary
motivating factor in the enactment of tougher sentencing laws in only four states.59 In the
stingier in their release decisions”).
53. Pub. L. No. 98-473, 98 Stat. 1976, 1991-92 (1984). The Federal Sentencing Guidelines remained mandatory
until 2005, when the United States Supreme Court held that mandatory application of the Guidelines violated the
Sixth Amendment. United States v. Booker, 543 U.S. 220, 226-27 (2005). Since Booker, federal judges have
continued to anchor their sentencing decisions in the Sentencing Guidelines, but retain discretion to vary from them.
Federal sentences continue to be determinate.
54. President William J. Clinton, Remarks on Anticrime Legislation at the Department of Justice (Jul. 28, 1994),
available at
55. Pub. L. No. 103-322, 108 Stat. 1796, 1959-60, 1982 (1994) (codified at 28 U.S.C. § 994 note).
STATES‟ SENTENCING PRACTICES AND PRISON POPULATIONS 1-3 (2002), available at (citing Department of Justice Appropriations Act, Pub. L. No.
104-134, 110 Stat. 1321 (1996)). The Violent Offender Incarceration and Truth in Sentencing grant programs
authorized by the original and amended legislation provided federal funds to help states increase their prison
capacity by funding the building and expansion of correctional facilities and jails. 42 U.S.C. § 13702 (1996) The
funds have not, however, covered the ongoing cost of maintaining new facilities. Although more than $2.7 billion in
grant funds were awarded to states between 1996 and 2001, Congress has since ceased to appropriate additional
57. See Sentencing Reform Act of 1981, WASH. REV. CODE § 9.94A (2010) (implementing determinate sentences
for all offenses committed after Jul. 1, 1984); DITTON & WILSON, supra note , at 2 (1999).
58. SABOL ET AL., supra note , at 11 tbl. 1.5.
IN SOME STATES 6-8 (1998), available at (reporting survey findings
indicating that TIS grants were a key factor in the enactment of tougher sentencing laws only in Louisiana, Maine,
New York, and Oklahoma); see also SABOL ET AL., supra note , at 18 (explaining that the truth-in-sentencing grant
program was a major motivating factor for the move to determinate sentencing in only a few states).


remaining sixteen states, the move to determinate sentencing was a response to mounting public
pressure from within each state to provide for more certain punishment.60 By the end of the
1990s, determinate sentencing was at its height with 84 percent of states placing firm limits on
the amount of time prisoners were required to serve before becoming eligible for release.61 The
vast majority of these states required prisoners to serve more than 85 percent of their sentences.62
At the same time jurisdictions were adopting determinate sentencing, many also moved
to restrict or eliminate traditional mechanisms for early release. The CCCA abolished parole for
federal defendants beginning in 1987,63 and by 2000, sixteen states had eliminated the possibility
of parole for all newly convicted prisoners.64 Several other states restricted parole eligibility to
certain classes of offenders, such as those convicted of nonviolent crimes.65 In addition to
restricting or eliminating discretionary parole release, many jurisdictions also reduced
opportunities for early release by imposing restrictions on prisoners‟ ability to reduce the length
of their sentences through the accrual of so-called “good time” and “earned time” credits.66 By
the turn of the century, the “truth-in-sentencing” movement, with its emphasis on minimizing the
discretion of prison officials and parole boards, had succeeded in restricting or eliminating early
release in a majority of states.
C. Consequences of Increased Incarceration
The decision to imprison more people for longer and more certain periods of time has had
significant consequences. Between 1970 and 2005, the number of people in prison increased
more than sevenfold.67 More than one of every one hundred Americans is now behind bars and
one of every thirty-one is under some form of pre- or post-sentence correctional supervision.68
Imprisonment is no longer an experience reserved for a deviant few: It has become “a
pervasive event in the lives of poor and minority men”69 and is an experience increasingly shared
60. U.S. GEN. ACCOUNTING OFFICE, supra note , at 7-8.
61. SABOL ET AL., supra note , at 7.
62. Id. at 8 tbl. 1.4.
63. Pub. L. No. 98-473, 98 Stat. 1976, 2032 (1984) (repealing 18 U.S.C. § 5041).
64. These states included Arizona, California, Delaware, Florida, Illinois, Indiana, Kansas, Maine, Minnesota,
Mississippi, North Carolina, Ohio, Oregon, Virginia, Washington, and Wisconsin. DITTON & WILSON, supra note ,
65. DITTON & WILSON, supra note , at 3 (listing Alaska, New York, Tennessee, and Virginia among the states
restricting parole eligibility).
66. Notable examples include Texas and North Carolina, in which prisoners served less than 20 percent of their
sentences on average before public outcries led the states to dramatically reduce the availability of sentence
reduction credits. Nora V. Demleitner, Good Conduct Time: How Much and For Whom? The Unprincipled
Approach of the Model Penal Code: Sentencing, 61 FLA. L. REV. 777, 781-82 (2009).
FORECASTING AMERICA‟S PRISON POPULATION 2007-2011 1 (2007), available at [hereinafter PUBLIC SAFETY, PUBLIC SPENDING] (relying on data
from Bureau of Justice Statistics Correctional Surveys and adult resident population data from the U.S. Census
68. PEW CENTER ON THE STATES, One in 100: Behind Bars in America 2008, at 5 (2008), available at At year end 2007,
the number of persons under correctional control and supervision ranged from one of every eighty-eight persons in
New Hampshire to one of every thirteen in Georgia. ONE IN 31, supra note , at 7.


by women.70 For those who have been imprisoned, the experience has lasting implications for
labor prospects, lifetime earnings, and educational and housing opportunities.71 Large scale
imprisonment has also had well-documented adverse effects on the larger community, altering
traditional family structures and contributing to the destabilization of impoverished
neighborhoods.72 A growing body of research suggests that the numbers of persons confined in
prison has profound effects on the distribution of political power, as well.73
Although the social and moral costs of mass imprisonment have drawn serious criticism
in academic circles, it is the rapidly escalating financial cost of imprisonment that has captured
the attention of policymakers. And with good reason: between 1985 and 2008, national annual
correctional expenditures from general funds alone74 increased from $6.7 billion to more than
$47 billion dollars—an increase of 700 percent.75 Incarcerating a federal prisoner for one year
averages $25,900,76 a figure roughly commensurate with the annual cost of incarcerating a state
prisoner.77 The cost of incarceration is significantly higher for elderly prisoners, whose ranks
note , at 141 (“The odds of an African American man going to prison today are higher than the odds he will go to
college, get married, or go into the military.”); Donald Braman, Families and Incarceration, in INVISIBLE
PUNISHMENT 117, 117 (Marc Mauer & Meda Chesney-Lind eds., 2002) (“Under current conditions, well over 75
percent of African-American men in the District [of Columbia] can expect to be incarcerated at some time in their
available at (noting a 57 percent growth in female population from
1995-2005 compared to a 34 percent increase for men during the same period); PUBLIC SAFETY, PUBLIC SPENDING,
supra note , at 10.
DIMENSIONS OF PRISONER REENTRY (2004), available at (discussing obstacles to employment faced
by persons leaving prison); Bruce Western, The Impact of Incarceration on Wage Mobility and Inequality, 67 AM.
SOC. REV. 526, 541-42 (2002).
REENTRY 7-10 (2005), available at
(discussing ways social service agencies can help former prisoners surmount barriers to family reunification
following imprisonment).
73. Pamela S. Karlan, Conviction and Doubts: Retribution, Representation, and the Debate over Felon
Disenfranchisement, 56 STAN. L. REV. 1147, 1148-49 (2004); Marc Mauer, Mass Imprisonment and the
Disappearing Voters, in INVISIBLE PUNISHMENT 50, 50, 57 (Marc Mauer & Meda Chesney-Lind eds., 2002); David
Hamsher, Comment, Counted Out Twice—Power, Representation & the “Usual Residence Rule” in the
Enumeration of Prisoners: A State-Based Approach to Correcting Flawed Census Data, 96 J. CRIM. L. &
CRIMINOLOGY 299, 300-04 (2005) (discussing the Census Bureau‟s method of counting prisoners and its
ramifications for political representation).
74. Total state corrections expenditures for fiscal year 2008 totaled $52 billion. NAT‟L ASS‟N OF STATE BUDGET
(2009). These figures do not adjust for inflation.
76. Annual Determination of Average Cost of Incarceration, 74 Fed. Reg. 33,279 (Jul. 10, 2009) (reporting average
cost of incarceration for federal inmates in Fiscal Year 2008 as $25,895).
77. JAMES J. STEPHAN, BUREAU OF JUSTICE STATISTICS, STATE PRISON EXPENDITURES, 2001 1 (2004), available at (reporting a difference of less than $20 between the average
annual cost of incarcerating a state prisoner versus a federal prisoner in 2001); see also JUSTICE POLICY INSTITUTE,
available at (citing American


have swelled as a result of lengthening sentences.78 Corrections now consumes one of every
fifteen state general fund dollars, making it the second-fastest growing category of general fund
expenditures, outpaced only by the growing cost of Medicaid.79
The still-unfolding financial crisis of 2008 has exacerbated concerns about the growing
cost of incarceration. High unemployment, combined with plummeting real estate values and
declining corporate profits, has resulted in substantial decreases in state tax revenue over the past
three years.80 Diminishing resources have forced states across the country to cut back on social
services, eliminate jobs, and lower salaries for state workers.81 And the worst may be yet to
come: as of this writing, state budget deficits are predicted to last well into the new decade.82
California has perhaps been the state hit most heavily by the recent financial crisis. As a
result of the state‟s harsh sentencing laws, which include one of the most draconian three-strikes
laws in the country,83 and high rates of parole revocation, California‟s prisons were overcrowded
long before its current budget woes began. In 2005, the state‟s prison health care system was
placed under federal receivership as a result of constitutionally deficient conditions in its prisons,
which were found to be causing the deaths of more than one inmate a week.84 In 2006, as
crowding in the prison system worsened, Governor Arnold Schwarzenegger declared a “State of
Correctional Association figures showing an average annual cost of $24,655 per prisoner in 2006).
78. Geriatric inmates are the fastest growing age group within federal and state prisons, and their numbers are
expected to continue rising at a rapid rate. CARRIE ABNER, COUNCIL OF STATE GOV‟TS, GRAYING PRISONS: STATES
FACE CHALLENGES OF AN AGING INMATE POPULATION 9 (2006), available at On average, elderly inmates cost states three
times more than their younger counterparts. Id. at 10.
POLICIES AND PRACTICES 3 (2009), available at (citing data compiled by the National Association of State Budget Officers).
(2009), available at
STATE BUDGET CUTS 5-6 (2010), available at (describing recent cuts in
services and jobs and listing pending proposals for additional cuts).
82. According to Vermont Governor Jim Douglas, Chairman of the National Governors Association, “State revenues
continue to deteriorate, as most states are witnessing monthly totals lower than their recent forecasts, which have
been revised downward.” Robert Pear, States Have Not Yet Seen the Worst of Economic Times, Governors at
Meeting Say, N.Y. TIMES, Feb. 21, 2010, at 16. That assessment is consistent with more formal surveys of the effect
of the budget crisis on state governments. CTR. ON BUDGET AND POLICY PRIORITIES, RECESSION CONTINUES TO
BATTER STATE BUDGETS 1 (2010), (reporting that forty-one states faced
budget shortfalls for fiscal year 2011 and predictions suggest larger shortfalls for fiscal year 2011); PEW CENTER ON
THE STATES, BEYOND CALIFORNIA: STATES IN FISCAL PERIL 2 (2009), available at (noting that “states historically have their worst
years shortly after a national recession ends, as they cope with higher Medicaid and other safety-net expenses at the
same time revenues lag because of stubborn unemployment.”).
83. The California statute does not require that a defendant‟s third felony offense be violent in order to earn him a
mandatory indeterminate sentence of life imprisonment. CAL. PENAL CODE § 667(e)(2) (2009). The provision has
been applied to third-offense cases involving offenses as minor as the theft of $153 in videotapes. Erwin
Chemerinsky, The Essential but Inherently Limited Role of the Courts in Prison Reform, 13 BERKELEY J. CRIM. L.
307, 309 (2008).
84. See Plata v. Schwarzenegger, No. C01-1351, 2005 WL 2932253, at *1 (N.D. Cal. Oct. 3, 2005) (declaring the
California Department of Corrections and Rehabilitation‟s medical care system “broken beyond repair” and ordering
it placed under receivership).


Emergency.”85 Declaring that “immediate action” was essential “to prevent death and harm
caused by California‟s severe prison overcrowding,” the Governor sought to transfer inmates to
out-of-state prisons.86 His efforts ultimately proved unsuccessful, however, and as a result of the
state‟s continued failure to remedy the unconstitutional condition of its prisons, in August 2009,
a federal court ordered the state to produce a two-year plan for reducing the state prison
population by approximately 43,000 inmates.87 Facing an unprecedented $26 billion budget
shortfall, the state is now struggling to alleviate overcrowding while at the same time reducing its
correctional budget.
Although California presents an extreme example, it is far from the only state being
forced to reduce correctional spending in the face of increased correctional costs. Facing
unprecedented financial pressures, forty-two states reduced their budgets in 2009 through both
targeted and across-the-board cuts.88 Confronted with the necessity of cutting funds for higher
education and social services to fund more prison beds, correctional budgets are now being
reduced in some states—even as the cost of maintaining inmate populations continues to grow.
Twenty-five states made cuts in their correctional programs in 2009.89 Absent significant and as
yet unforeseeable changes in the economy, that number is likely to increase over the next several
Practical concerns over managing current correctional costs and long-term worries over
the future of the criminal justice system have caused many states to begin reexamining the ways
in which criminal cases are handled at every stage, from arrest to punishment. A number of states
have formed criminal justice councils tasked with recommending legislative and administrative
reforms.90 Others have commissioned outside reviews and sought advice on how best to manage
growth in their prison populations.91 Regardless of the method of reexamination, the end result is
often the same: Across the country, jurisdictions are beginning to agree that less is more when it
comes to incarceration, particularly when nonviolent or first-time offenders are at issue.
Although the methods by which states are attempting to control burgeoning correctional
85. Gov. Arnold Schwarzenegger, Prison Overcrowding State of Emergency Proclamation (Oct. 4, 2006), available
86. Id.
87. Coleman v. Schwarzenegger, No. CIV S-90-0520 LKK JFM, 2009 WL 2430820, at *115-16 (E.D. Cal. Aug. 4,
2009); see also Carol J. Williams, State Gets Two Years To Cut 43,000 from Prisons, L.A. TIMES, Aug. 5, 2009, at
A1. The United States Supreme Court has agreed to review the validity of the release order during its October 2010
term. See Orders in Pending Cases, Schwarzenegger v. Plata, No. 09-1233 (U.S. June 14, 2010).
89. Id. at 3 tbl. 1-A.
90. SCOTT-HAYWARD, supra note , at 10.
91. The Justice Reinvestment Initiative administered by the Council of State Governments is one example of a
sophisticated outside resource available to state governments. Program researchers map prison admissions data in
participating states, suggest options for managing prison growth that are tailored to the operation of the state‟s
criminal justice system, propose ways in which costs saved on incarceration might be invested elsewhere with better
public safety returns, and help create accountability by designating outcome measures for the state to track. So far,
Arizona, Connecticut, Kansas, Michigan, Nevada, New Hampshire, North Carolina, Ohio, Pennsylvania, Rhode
Island, Texas, Vermont, and Wisconsin have all obtained varying levels of assistance from the program. For more
information, see


populations vary tremendously, they can be divided into two rough categories. First are front-end
diversion efforts, designed to keep low-level, nonviolent defendants out of the formal criminal
justice system or, at the very least, out of custody. These efforts, which often involve cooperation
among law enforcement, prosecutors, defense counsel, and community service providers, offer
an alternative means of managing offenders, usually by connecting them to important services,
ranging from drug treatment and mental health care to employment services and parenting
classes.92 Front-end efforts vary in scope and structure, encompassing community service
sanctions, electronic monitoring, day reporting centers, problem-solving courts, and restorative
justice initiatives.93 Because these efforts are designed to increase the community‟s imagination
and capacity for noncustodial penalties and interventions, they hold great promise for breaking
the cycle of overreliance on imprisonment as a primary means of social control. This Article
focuses, however, on developments occurring at the back end of the criminal justice system.
These new efforts, designed to reduce costs and relieve overcrowding by allowing inmates to
leave prison early, have rapidly gained popularity in the wake of the current fiscal crisis.
A. Methods of Early Release
In order to obtain more immediate cost savings and relief from overcrowding, many
states have begun to question the necessity of long, predictable prison sentences. Through new
legislation, many states have begun to ameliorate the effects of harsh prison sentences by
reintroducing old forms of early release and developing new methods as well. The most common
early release mechanisms in use today fall into three general categories: increased parole
eligibility, reinstatement or expansion of sentence credit, and creation of infirmity-based release
for geriatric and seriously ill prisoners.
1. Expansion of Parole Eligibility
It is important to remember that the move to determinate sentencing, while widespread,
was not complete. Only fourteen states abolished parole entirely during the twentieth century. 94
The rest have retained parole eligibility in one form or another, often constrained by truth-insentencing requirements that make prisoners eligible only after serving significant portions of
their sentences.95 In recent years, many of these states have been able to mitigate the effects of
incarceration by scaling back the time in custody inmates must serve before becoming paroleeligible.
One notable example is Mississippi. Beginning in 1995, the state moved from an
indeterminate sentencing system to one in which all offenders were required to serve 85 percent
of their sentences before gaining parole eligibility.96 This change was heightened by low rates of
parole for eligible inmates.97 As a result, the state‟s prison population and correctional budget

94. See DITTON & WILSON, supra note , at 3.
95. Id.
96. MISS. CODE § 47-5-138 (2009).
(2009), available at


rapidly grew. Motivated by growing resource concerns,98 in 2001 the state reauthorized parole
for most first-time nonviolent offenders who had served 25 percent or more of their sentences.99
This did not solve the problem, however, and by 2007 the state‟s correctional budget was more
than twice what it had been in 1994.100 In 2008, therefore, the state expanded early parole
eligibility to all nonviolent offenders.101 These newly implemented changes, designed to
eliminate all growth in the prison population over the next decade, so far appear to be working.
Since 2008, the prison population has actually seen a decline, and the state‟s prison population is
on track to stabilize with no further growth within the next several years.102
There are signs that other states may follow Mississippi‟s lead. Early in 2010, West
Virginia Governor Joe Manchin proposed increasing parole eligibility for low risk offenders as
part of his 2010-11 budget,103 and the Massachusetts State Senate recently voted in favor of a bill
that would make drug offenders eligible for parole after serving two-thirds of their mandatory
minimum sentences.104
2. Sentence Credit
Another common mechanism for accelerating release is sentence credit. Unlike parole,
which requires the individualized consideration of each applicant eligible for release, sentence
credit provides an administrative reduction in sentence that ordinarily applies automatically to
any eligible offender.105 Sentence credit tends to take one of three forms: good time credit, which
applies to inmates who do not violate institutional rules; earned release credit, which provides
prisoners with a reduction in sentence proportional to time spent in designated programs or
activities; or meritorious good time credit (also called extraordinary good time credit), which
allows prison administrators to reduce prisoners‟ sentences for special reasons.106 Originally
designed to reward exemplary service to the institution, such as preventing escape or saving a
guard‟s life, meritorious good time credit has long been used to address exceptional institutional
needs as well, such as the alleviation of severe overcrowding.107 All three varieties of sentence
credit have been the subject of recent legislative expansions.108
Historically, good time credit has been awarded liberally in the states where it is
98. Id. at 4 (referencing Mississippi‟s “past low parole grant rate” of twenty-six to thirty-two percent).
99. MISS. CODE § 47-7-3 (2001).
100. JFA INST. & MISS. DEP‟T OF CORR., supra note , at 2.
101. MISS. CODE § 47-7-3 (2008).
102. JFA INST. & MISS. DEP‟T OF CORR., supra note , at 5.
103. Lawrence Messina, Alternatives to Building Prisons Advised, CHARLESTON GAZETTE, Jan. 28, 2010, at 1C.
104. See S. Res. 2210, 2009 Leg., 186th Sess. (Mass. 2009) (providing that eligible drug offenders “serving a
mandatory minimum sentence ... shall be eligible for parole after serving two-thirds of the minimum term of the
sentence if the sentence is to a state prison or after serving one-half of the minimum term of the sentence if the
sentence is to a house of correction”). The bill has garnered the support of the Massachusetts State Bar Association,
as well as the support of advocacy groups. See Memorandum on Senate Bill No. 2210, Massachusetts Bar
Asssociation (Nov. 18, 2009), available at (supporting the bill); Editorial, Allow Parole for Drug Offenders, BOSTON GLOBE, Jan. 1, 2010, at 14
(supporting the bill). As of this writing, the bill awaits further action in the State House of Representatives.
105. Jacobs, supra note , at 224-25.
106. Id. at 221-22.
107. See id.
108. See generally Jennifer Steinhauer, To Trim Costs, States Relax Hard Line on Prisons, N.Y. TIMES, Mar. 25,
2009, at A1 (describing cost-saving prison reforms, including expansion of sentence credit in Kentucky and


authorized, making its loss more a punishment than its application a reward.109 In some
jurisdictions, the amount of credit available varies based on an offender‟s crime of conviction or
length of sentence. In New Mexico, for example, violent offenders receive no more than four
days‟ credit for every thirty days served, while most other prisoners receive day-for-day credit on
their sentences.110 In other states, the amount of available credit varies based upon an offender‟s
institutional security classification.111
Changing the amount of good time available to inmates is an easy way to save money
quickly, since even small changes in the amount of credit available have tremendous financial
consequences when distributed across an entire custodial population. Consequently, in recent
years, Washington, Louisiana, and Delaware have all increased the amount of good time
available to persons in custody.112
Even for states that abolished good time during the determinate sentencing era, the costsavings associated with the mechanism have made it increasingly appealing. After repealing
good time provisions as part of the state‟s move to determinate sentencing in 1999, last summer
Wisconsin re-introduced good time credit, albeit under a new name: “positive adjustment time,”
which is now available to designated offenders who comply with institutional expectations.113 In
Michigan, the governor is currently backing legislation that would make good time credit
available to inmates for the first time in more than twenty years.114
In addition to awarding credit for pure institutional compliance, many states also
authorize prison officials to award sentence credit for time spent in vocational, educational, and
therapeutic programs. Rehabilitative programs have begun to once again gain credibility among
penologists as a way to reduce recidivism,115 and an increasing number of states have been
willing to reward voluntary program participation with sentence reduction. Today, at least thirtyone states authorize some form of earned release credit.116 Nevada, Kansas, Pennsylvania,
109. Demleitner, supra note , at 783.
110. Id. at 789. See also MD. CODE ANN., CORR. SERVS. § 3-704(b) (West 2002) (decreasing credit accrual
opportunities for more serious felons). But see OR. REV. STAT. § 169.110 (2010) (awarding credit in increasing
proportion to sentence length).
111. See, e.g., IND. CODE § 35-50-6-3 (2010); TEX. GOV‟T CODE ANN. § 498.003 (Vernon 2009); VA. CODE ANN. §
53.1-199 (2009).
112. See DEL. CODE ANN. tit. 11, § 4381 (2010) (increasing maximum monthly amount of good time for prisoners
who have served more than one year in prison); LA. REV. STAT. ANN. § 15:571.3(B)(3) (2008) (increasing the
maximum number of good time days per calendar month to thirty-five); WASH. REV. CODE § 9.94A.728(1)(b)
(2010) (increasing maximum good time credit to 50 percent of an eligible offender‟s total sentence length).
113. WIS. STAT. § 302.113(2)(b) (2009) (providing that misdemeanants and minor nonviolent felony offenders “may
earn one day of positive adjustment time for every 2 days served that he or she does not violate any regulation of the
prison or does not refuse or neglect to perform required or assigned duties”).
114. Freeing Up Cash By Freeing Prisoners, DETROIT FREE PRESS, Feb. 16, 2010, at A1 (describing plan to apply
good time credit retroactively, making 5,600 state prisoners “eligible for release within six months”).
115. In recent years, a growing body of research has debunked the idea that “nothing works” when it comes to
criminal rehabilitation. The question, researchers emphasize, is “what works?” By engaging in sophisticated
program evaluations and replicating only those with successful outcomes, they argue that successful rehabilitative
programming can be developed both in prison and in the community. See, e.g., Francis T. Cullen, Rehabilitation and
Treatment Programs, in CRIME: PUBLIC POLICIES FOR CRIME CONTROL 253, 255 (James Q. Wilson & Joan Petersilia
eds., 2002).


Colorado, and Mississippi have all recently expanded their earned release statutes, increasing the
amount of credit available to inmates who successfully complete designated programs and
expanding the number of qualifying programs.117 Other states have expanded the classes of
credit-eligible prisoners118 and removed limits on the amount of credit prisoners may
Finally, a number of states authorize a form of “meritorious good time credit.”120 Under
these extraordinary sentence credit provisions, prison officials are accorded tremendous
discretion to reduce inmates‟ sentences for reasons that in practice range from heroic service to
relief from overcrowding.121 Of all forms of sentence credit, meritorious good time provides
prison officials with the most unguided discretion and therefore is most subject to abuse.122
3. Infirmity-Based Release
As higher numbers of prisoners serve increasingly long sentences, the number who suffer
from terminal conditions and chronic, degenerative illnesses is also increasing.123 So too are the
number of geriatric inmates, many of whom require extra physical assistance.124 Because
imprisonment prevents prisoners from seeking medical care on their own, the state is
constitutionally obliged to provide appropriate health care, including medication, doctor‟s visits,
medical tests and procedures, durable medical equipment, physical therapy, and other forms of
medical intervention.125 In addition, when prisoners‟ care cannot be met in an institutional
setting, prisons are responsible for securing appropriate community-based treatment and for
providing necessary security on site. As health care costs rise at unprecedented rates, caring for
ill and elderly inmates has imposed increasing financial burdens on the states.126
In response to these concerns and in recognition of the fact that elderly and seriously ill
inmates often pose less of a threat to public safety than their younger, healthier counterparts,
117. Id. at 3-4.
118. Id. at 2.
119. Id. at 4.
120. See, e.g., CONN. GEN. STAT. § 18-98b (1992) (authorizing up to 120 days credit “as an outstandingly
meritorious performance award ... for exceptional personal achievement, accomplishment and other outstandingly
meritorious performance”); KY. REV. STAT. ANN. § 197.045(3) (West 2006) (allowing credit of up to five days per
month, “at the discretion of the commissioner ... for performing exceptionally meritorious service or performing
duties of outstanding importance in connection with institutional operations and programs”); NEV. REV. STAT. §
209.4465(5) (2009) (permitting up to ninety days credit annually for any offender “who engages in exceptional
meritorious service”).
121. See Jacobs, supra note , at 221-22, 267-68.
122. See infra notes 138-42 and accompanying text (discussing Illinois‟s “MGT push” scandal).
123. Timothy P. Flanigan et al., HIV and Infectious Disease Care in Jails and Prisons: Breaking Down the Walls
with the Help of Academic Medicine, 120 TRANSACTIONS AM. CLINICAL CLIMATOLOGICAL ASS‟N 73, 73 (2009)
(observing that prisoners are five times more likely to have HIV and seventeen to twenty-eight times more likely to
suffer from hepatitis C than the general population).
GERIATRIC RELEASE, 4 (2010), available at (reporting that from 1999-2007 the number of people age 55 or
older in state and federal prisons grew 76.9 percent while the number of persons ages 45-54 grew 67.5 percent); see
also ABNER, supra note , at 9 (“Elderly inmates represent the fastest growing segment of federal and state prisons”).
125. See Estelle v. Gamble, 429 U.S. 97, 103 (1976).
126. CHIU, supra note , at 5, 9-10; Mike Mitka, Aging Prisoners Stressing Health Care System, 292 JAMA 423,
423-24 (2004).


over the past decade an increasing number of jurisdictions has authorized parole for the elderly,
the infirm, and the seriously ill.127 In jurisdictions that have retained discretionary parole, these
inmates may be released on a case-by-case basis, either as part of a traditional parole plan or
under special provisions governing parole for inmates with serious medical conditions.128 The
appeal of medical parole, or “compassionate release,” as it is often called, has caused even some
nonparoling jurisdictions to develop special procedures authorizing limited early release for
seriously ill prisoners serving determinate sentences.129 Most jurisdictions that authorize medical
parole make release contingent upon a showing that the inmate suffers from a “debilitating,
incapacitating, or incurable medical condition” and that he poses no risk to public safety.130
Some also include geriatric release provisions that allow older inmates to secure early release,
often upon showing that they suffer from medical problems of lesser magnitude.131 A few release
provisions make cost an explicit consideration, with release contingent on a showing that
providing a prisoner with necessary treatment is excessively costly.132
Because the cost of providing medical care for seriously ill prisoners far exceeds the cost
of housing healthier prisoners,133 infirmity-based release provisions promise to deliver
substantial cost savings even if utilized on a lesser scale than other, more generally applicable
early release provisions. This is true even in the case of indigent inmates, whose health care costs
in the community will still be paid for with government dollars.134
127. As of 2008, at least thirty-six states authorized some form of early release for dying or seriously ill prisoners.
Marty Roney, 36 States Offer Release to Ill or Dying Inmates, USA TODAY, Aug. 14, 2008, at 4A.
128. See, e.g., ALASKA STAT. § 33.16.085 (2005) (authorizing special medical parole for certain prisoners who
develop severe medical or cognitive disabilities during their period of incarceration); D.C. CODE § 24-464 to -465
(2001) (authorizing medical or geriatric parole for parole-eligible prisoners who develop permanent disabilities or
terminal illnesses, or who are over sixty-five years of age and chronically ill); MONT. CODE ANN. § 46-23-210
(2009) (permitting designated inmates with terminal conditions or those requiring extensive medical attention to be
released on parole).
129. See, e.g., D.C. CODE § 24-468 (2009) (providing for medical sentence reduction for nonparole eligible inmates
who develop permanent disabilities or terminal illnesses while incarcerated).
130. See, e.g., N.H. REV. STAT. ANN. § 651-A:10-a(I) (2004); WYO. STAT. ANN. § 7-13-424 (2008).
131. See D.C. CODE § 24-468 (2009) (geriatric sentence reduction for nonparole eligible over sixty-five years of age
with chronic illness). See also VA. CODE ANN. § 53.1-40.01 (2009) (permitting felony offenders to petition for
conditional release upon reaching the age of sixty if the inmate has served at least ten years of his sentence or upon
reaching the age of sixty-five if the inmate has served at least five years of his sentence).
132. N.H. REV. STAT. ANN. § 651-A:10-a(I)(b) (2004) (medical parole available only if “[t]he cost of medical care,
treatment, and resources for the inmate is determined to be excessive”). Corrections officials in New Hampshire
have touted the cost savings provided by the new medical parole provision. In a press release celebrating the first
use of the new statute, Robert J. MacLeod, Administrative Director of the Department of Corrections Medical and
Forensic Services, announced that the parole of inmate Brenda Hewitt would “save the state of New Hampshire a
projected $40,000 in treatment costs,” all of which would be paid by Hewitt‟s private health insurance. Press
Release, New Hampshire Department of Corrections, First State Prison Inmate Paroled Under New Medical Parole
Law (Aug. 24, 2004), available at See also WASH. REV. CODE §
9.94A.728(4)(a) (allowing secretary of corrections to authorize extraordinary medical placement when, among other
things, “[g]ranting the extraordinary medical placement will result in a cost savings to the state”).
133. See, e.g., Lisa Aleman-Padilla, Chowchilla Inmate With Cancer Is Freed: “Compassionate Release” Called a
Way To Cut Costs, FRESNO BEE, Apr. 16, 2003, at B1 (describing a 1995 case in which the California Department of
Corrections spent almost $900,000 to care for and guard a comatose inmate during the last six months of his life).
134. The indigent elderly and disabled ordinarily receive health care through Medicaid programs, which are funded
jointly by the federal government and the states. Prison inmates, however, are not Medicaid-eligible, and therefore
states pay the full cost for medical care for incarcerated persons. See 42 U.S.C. § 1396d (a)(28)(A) (barring


Yet despite these potential cost savings, for a number of reasons, compassionate release
is sparingly utilized. Delays in bureaucratic review make compassionate release inaccessible to
many terminally ill prisoners who often die before completing the application process.135
Another serious impediment to release is the inability of many prisoners to develop safe and
appropriate release plans. Prison administrators and parole boards are appropriately wary of
“kicking to the curb” seriously ill inmates who may be unable to access necessary medical and
personal care without assistance.136 As a result of these practical limitations, the use of
compassionate release has thus far been limited despite the recent proliferation of authorizing
B. Preliminary Results
It is too early to say with any certainty whether the new legislation discussed above will
succeed in lowering inmate populations and reducing state correctional expenditures.
Preliminary feedback has been limited and is more anecdotal than empirical.137 Even assuming,
however, that these popular early release mechanisms are capable of reducing costs in the short
run to the degree state officials anticipate, their long-term sustainability can be fairly questioned.
With rare exception, the early release mechanisms discussed above share a common
feature: they are controlled by departments of corrections or parole boards. Allowing executive
officials to administer early release provides several obvious benefits. Prison officials are
uniquely aware of institutional capacity constraints and are therefore well-positioned to award
sentence credit or grant early release in ways that are targeted to the needs of the institution.
Consequently, insofar as new laws are designed to provide relief to prisons in the form of cost
savings and extra bed space, allowing executive agencies to control release decisions makes
History demonstrates, however, that executive release decisions are subject to numerous
criticisms. Their sensitivity to institutional concerns often comes at the expense of community
worries about public safety and the legitimacy of sentencing decisions. Exacerbating lack of
public trust is the absence of transparency in parole board and prison administrative decisions.
As detailed above, these structural deficits strongly contributed to the abolition of parole and

Medicaid payments on behalf of inmates of public institutions); 42 C.F.R. § 435.1009 (same).
135. See Cara Buckley, Law Has Little Impact on Compassionate Release for Ailing Inmates, N.Y. TIMES, Jan. 30,
2010, at A17 (reporting that since 2005, “at least 16 New York inmates have died while waiting for the parole board
to decide their fate”).
136. Placing qualified prisoners in community-based nursing homes is no easy task. As Dr. Lester Wright, chief
medical officer for the New York State Department of Correctional Services has explained, “We‟re ... competing for
beds. Some people think my patients aren‟t as valuable as other people in society.” Id.
137. See JFA INST. & MISS. DEP‟T OF CORR., supra note , at 5 (reporting that Mississippi‟s parole reforms have
stabilized growth in what was previously a rapidly expanding prison population); LAWRENCE, supra note , at 5
(Washington State officials estimate that expansion of earned time has saved the state approximately $5500 per
prisoner in prison costs based on a sixty-three-day reduction in sentence).
138. It should be remembered, however, that authorizing executive officials to release inmates early does not
guarantee that they will do so. In fact, in several states that have authorized expanded early release, projected cost
savings have been exaggerated because authorized officials have failed to fully utilize their enhanced discretion.).
See, e.g., CHIU, supra note , at 6, 8 (describing the failure of authorities to utilize their authority under geriatric
release provisions).


other forms of early release in the 1980s and 1990s.139
In the current move away from wholly determinate sentencing and toward limited early
release, states have paid little attention to avoiding the mistakes of the past. There is good reason
to believe, however, that the concerns that led to the repeal of early release legislation in earlier
decades have not dissipated over time. In fact, there are already some indications that the public
may not be eager to embrace the newest rounds of early release legislation.
For example, in December 2002, in response to cost concerns, Kentucky Governor Paul
Patton ordered the early release of 833 minor felony offenders who were nearing release.140 Only
one month later, however, the program was suspended after four newly released offenders
committed several violent crimes.141 Despite the state‟s crushing budget shortfall, Kentucky
lawmakers responded by calling for a swift end to early release—a move that suggests public
safety concerns can quickly overcome support for cost-saving early release measures.142
More recently, Illinois has experienced one crisis after another relating to its early release
and meritorious good time programs. In late 2009, the Associated Press reported on a “secret
program” being implemented by the Illinois Department of Corrections that allowed inmates to
receive large amounts of meritorious good time credit immediately upon entering the prison
system.143 The practice, known as “meritorious good time push” (or MGT push) was responsible
for the early release of more than 1700 inmates convicted of minor felony offenses, such as
battery and drunken driving.144 Many of these inmates were required to serve mere weeks of
their sentences before being awarded sufficient credit to gain release—a divergence from the
traditional state practice of awarding meritorious good time only to prisoners who had served at
least sixty days of their prison sentences.145 Designed to save the state $5 million a year, the
practice quickly backfired. Within several months‟ time, nine releases had been charged with
new crimes, seventeen had been returned to prison on allegations of new violent criminal
activity, and thirty-one had been taken into custody on allegations on nonviolent rule violations.
.146 Public outrage was swift and vocal, and led to suspension of the program in December and
139. See supra notes 37-41 and accompanying text.
140. V. Dion Haynes & Vincent J. Schodolski, Strapped States Turn to Prisons: Early Releases Among Saving
Options, CHI. TRIB., May 5, 2003, at A8; Public Outrage Halts Release of Prisoners, CHI. TRIB., Feb. 2, 2003, at
141. Id.
142. See Release of Inmates to Stop; Lawmakers Must Find Funds, CINCINNATI POST, Feb. 1, 2003, at K1 (noting
that although “[t]he release of 883 inmates has been roundly criticized by legislators, law enforcement and a number
of gubernatorial candidates.... [f]ew of them have offered realistic alternatives for finding the money to pay to house
the inmates.”).
143. John O‟Connor, Illinois Ends Secret Prison-Release Plan, SEATTLE TIMES, Dec. 15, 2009, at A15; Press
Release, Gov. Quinn Signs Public Safety Initiative Law (Jan. 15, 2010), available at, (describing new law
requiring “prisoners in state custody to serve at least 60 days of their sentences before being eligible for meritorious
good conduct credit”).
144. Monique Garcia, Quinn Admits Prison Error, CHI. TRIB., Dec. 31, 2009, at A5.
145. John O‟Connor, Questions Remain About Inmate Release, ASSOCIATED PRESS, Jan. 2, 2010, available at (noting that the “MGT Push” involved “a
decision to abandon the Corrections Department‟s previous policy of requiring all inmates to serve at least 61 days
before they could be considered for release”).
146. See John O‟Connor, Scores Back in Prison After Ill. Parole Crackdown, ASSOCIATED PRESS, Jan. 13, 2010,
available at Following an intense enforcement effort by parole


new legislation shortly thereafter restricting prison officials‟ ability to award meritorious good
time credit.147
The fallout from Illinois‟s meritorious good time scandal spilled over into the state‟s new
early release program, which placed inmates nearing their release dates in the community under
parole-like supervision.148 First implemented in November 2009, that program was suspended
“pending a review of all early release programs” in the wake of the MGT push scandal. 149
The use of expanded good time and earned release credit in other states is subject to
many of the same criticisms that have driven opposition to meritorious good time in Illinois. In
Michigan, for example, where Governor Jennifer Granholm is seeking to re-introduce good time
legislation, former prosecutor and current Oakland County Executive L. Brooks Patterson is
leading the effort to block newly proposed good time legislation. The issue is not new to him:
Patterson successfully led the charge to abolish good time credit in 1978.150 Now, as then, he and
others have objected to the practice on the ground that it allows criminals to revictimize the
communities in which they were sentenced.151 Whether the new measure will pass remains to be
seen, but this much is clear: proponents of the proposed legislation have done little to assuage the
long-standing worries that led to the repeal of good time only a generation ago.152
As these examples indicate, thus far new efforts to provide for early release are controlled
by executive officials who for the most part continue to operate in a way that prizes large scale
administrative efficiencies over visible, individually justified release decisions. However, unless
early release practices begin to account for public concerns over the lack of accountability and
transparent decision making that led to the repeal of earlier forms of back-end release, it is likely
that the newest generation of early release legislation will be short-lived.153
Although the vast majority of early release mechanisms are implemented by parole
officials in January 2010, 130 more releasees were apprehended and charged with violating the rules of their
supervised release. Ibid.
147. O‟Connor, Illinois Ends, supra note ; Press Release, supra note .
148. Cheryl Corley, States Release Inmates Early To Cut Prison Costs, NAT‟L PUB. RADIO, Dec. 13, 2009, (last visited July 10, 2010) (describing the early
release program and interviewing one of the program‟s first releasees).
149. Monique Garcia, 2nd Early Release Program Suspended, CHI. TRIB., Jan. 6, 2010, at 8 (reporting suspension of
early prison release program designed for nearly 1000 nonviolent offenders).
150. Patterson: Good Time a Bad Idea, DETROIT FREE PRESS, Feb. 16, 2010, at A2.
151. Id.
152. Outside Michigan, the practice of awarding good time credit has not been as widely criticized as has parole
release, perhaps because the link between sentence credit and actual release is more attenuated. Nevertheless, good
time and earned release are subject to many of the same criticisms insofar as the application of sentence credit turns
on the unaccountable discretion of prison officials. “If anything, good time is conceptually less well grounded than
parole and less susceptible to outside scrutiny. It is also subject to more abuse because prison officials cannot help
but be tempted to use good time to reinforce their institutional authority and interests, as they define them.” Jacobs,
supra note , at 270.
153. See Monica Davey, Safety Is Issue as Budget Cuts Free Prisoners, N.Y. TIMES, Mar. 4, 2010, at A1 (describing
recent problems with public tolerance of new early release legislation in Illinois, Oregon, and Colorado). It is worth
noting that infirmity-based release mechanisms are less subject to backlash than are sentence credit provisions or
parole because the persons granted compassionate release are ordinarily too ill to pose any risk to public safety and
few will live long enough to garner much attention.


boards and prison administrators, not all are. Judicial sentence modification is an early release
mechanism that permits sentencing courts to reduce inmates‟ lawfully imposed terms of
imprisonment when specified criteria have been met. Unlike a parole decision or the application
of sentence credit, a judge‟s decision to modify a sentence is ordinarily made in open court and
on the record in the jurisdiction in which the offender was originally sentenced.
While judicial sentence modification is a practice with deep historic roots, it does not
exist in many jurisdictions and is authorized narrowly in most others. Where the mechanism does
exist, it tends to take one of two forms. In a few jurisdictions, the power to modify a sentence is
believed to arise from the sentencing court‟s inherent power over its own sentence. Although
states that permit sentence modification under this model embrace an expansive concept of the
sentencing court‟s jurisdictional authority, all have imposed strict common law limits on courts‟
ability to exercise that power when altering legally imposed sentences.154 A more common,
though still rare, approach permits judicial sentence modification when the legislature has
authorized the practice by statute. This modern variation on common law sentence modification
allows legislatures to define the circumstances under which judges may modify sentences that
have already commenced. Although a number of states and the federal government have enacted
such provisions, most statutes provide only a brief window during which legal sentences may be
altered, thereby limiting their utility as a means of providing for early release.155
Despite the limited authorization of judicial sentence modification in modern practice, in
the jurisdictions where courts possess authority to reexamine sentences, there are indications that
they exercise that power with some regularity. This Part reviews the history and modern practice
of judicial sentence modification in some detail before examining the potential strengths and
limitations of the mechanism as it is, and might be, employed.
A. Historical Roots
In its earliest form, sentence modification can be traced back to English common law. In
the days when trial courts did not hold session year-round but instead divided their work into
terms, as many courts of last resort do to this day, the rule was simple: when a court imposed
sentence, or entered any other judicial order, for that matter, it retained unlimited power to
change the disposition throughout the term in which the order was entered.156 So long as the term
remained in session, the defendant‟s sentence could be altered.157 Once the term expired,
154. See infra Part III.A.
155. See infra Part III.B.2.
156. In 1861, the Massachusetts Supreme Court observed, “It seems to have been recognized as one of the earliest
doctrines of the common law, that the record of a court may be changed or amended at any time during the same
term of the court in which a judgment is rendered.” Commonwealth v. Weymouth, 84 Mass. (2 Allen) 144, 145
(1861). The Court went on to quote Lord Coke for the proposition that
during the term wherein any judicial act is done, the record remaineth in the breast of the judges of
the court, and in their remembrance, and therefore the roll is alterable during that term, as the
judges shall direct; but when that term is past, then the record is in the roll, and admitteth of no
alteration, averment or proof to the contrary.
157. See Dist. Attorney for the N. Dist. v. Superior Court, 172 N.E.2d 245, 247-49 (Mass. 1961) (summarizing the
common law cases on this topic); Inter Inhabitants of St. Andrew‟s Holborn & St. Clement Danes, 2 Salk. 606, 607
(1704) (“The Court at the Old Bailey have altered and set aside their judgments ten times at the same sessions....
[T]he sessions as well as the term is but one day in law.”).


however, the court lost jurisdiction over the sentence and could no longer modify any of its
lawfully imposed provisions for any reason.158
Over time, some jurisdictions abandoned the practice of holding terms at the trial court
level.159 In jurisdictions where the practice of holding terms persisted, many courts began to
modify the strict time limits traditionally associated with the common law rule, allowing trial
courts to rule on timely filed motions for sentence modification even after the term had come to
an end.160 In some cases, courts held these timely filed motions indefinitely, delaying
modification until years after a defendant had begun serving his sentence. This practice, which
was known colloquially as “bench parole,” was criticized by prison officials and others who
believed it constituted a judicial interference with the release power of executively controlled
parole boards.161
In 1946, the federal government enacted the first version of Federal Rule of Criminal
Procedure 35(b), a statute that would later become the model for many state sentence
modification provisions. In its original form, the rule provided that a court could reduce a
sentence for any reason within sixty days of its imposition, either on motion by the defense or
sua sponte.162 After sixty days, the court lost jurisdiction over the sentence entirely and could no
longer change its length or conditions, regardless of whether the court‟s term had ended.163 At
the time the law was enacted, legislators and prison officials alike expressed support for the
provision, contending that it would “limit the time within which a court could exercise control
over its judgments, reduce the potential for court infringement on Parole Commission authority
over release determinations, and eliminate the overloading of court dockets with superfluous
158. Fine v. Commonwealth, 44 N.E.2d 659, 662 (Mass. 1942). When a sentence was unlawful, different rules
applied. Then, as now, nearly all jurisdictions permitted modification at any time to correct an illegal sentence.
Steven Grossman & Stephen Shapiro, Judicial Modification of Sentences in Maryland, 33 U. BALT. L. REV. 1, 10
159. Although the practice of holding terms at the trial court level has mostly vanished in modern times, a few
Southern states retain the practice and consequently adhere to the common law rule or variations thereof. See, e.g.,
White v. State, 22 So. 3d 378, 381 (Miss. Ct. App. 2009) (upholding a judge‟s exercise of her “„inherent authority‟
to alter a sentence until the regular term of court expires”); Hall v. State, 662 S.E.2d 753, 755 (Ga. Ct. App. 2008)
(“A sentencing court has power to modify a valid sentence only during the term of court in which it was imposed or
for up to one year [or 120 days after affirmance following appeal] under OCGA § 17-10-1(f).”).
160. This practice appears to have grown out of worries that the common law rule gave unfair advantage to
defendants sentenced at the beginning of a court‟s term, who had much longer to file their motions and receive
favorable rulings from the court than did defendants sentenced at the term‟s end. See B. Carole Hoffman, Note,
Rule 35(b) of the Federal Rules of Criminal Procedure: Balancing the Interests Underlying Sentence Reduction, 52
FORDHAM L. REV. 283, 289-90 (1983).
161. In 1946, the director of the Federal Bureau of Prisons publicly announced his support for limiting the amount of
time in which courts could alter imposed sentences, explaining that rules enforcing such limits
protect[ ] the judge from continual importunities while the man is in the institution. There is a rule
to the effect that if the counsel for the defendant files a petition for a reduction of sentence and that
petition is not acted upon, the judge can act on it any time, regardless of the expiration of the term
of court, and that has resulted in a good deal of importunities to the judge. It amounts sometimes
to a sort of bench parole, whereby the judge retains the authority to reduce the sentence after the
man has been committed.
Id. at 285 n.8 (citing remarks of James Bennett in proceedings on the enactment of FED. R. CRIM. P. 35(b) held at the
New York University School of Law).
162. FED. R. CRIM. P. 35(b) (1946).
163. Hoffman, supra note , at 291.


Rule 35(b) motions.”164 Later, the statute was revised to expand the time for filing motions for
sentence reduction from 60 to 120 days and to clarify that courts were required to rule on
motions “within a reasonable time” after their filing.165
Beginning shortly after Rule 35(b)‟s original enactment, state courts around the country
started to adopt versions of Rule 35. Like the original federal rule, these state analog statutes
provided short time limits within which sentences could be reduced.166 Even after the federal
system abandoned the original Rule 35(b) as part of its move to determinate sentencing in the
1980s, most states retained their analog statutes. As a result, most state courts are authorized to
exercise jurisdiction to modify lawfully imposed sentences for a brief period ranging from thirty
days to one year after a sentence is lawfully imposed.167
B. Modern Use
Within the states that utilize Rule 35(b) analog statutes, data on the number of motions
filed and granted is extremely difficult to obtain.168 There is no evidence that such motions are
granted with any regularity, and it is easy to hypothesize why motions filed under Rule 35
analogs would rarely be successful. Given the brief amount of time between the original
sentencing and the expiration of the trial court‟s jurisdiction to modify under these statutes, it is
difficult to imagine circumstances in which relevant facts or circumstances would change in a
way that would justify a principled alteration in the original sentence. In fact, the reasons for
modifying a sentence so quickly would seem largely illegitimate. One possible use would be the
mitigation of a sentence in response to public pressure from supporters of powerful or popular
defendants. Another might be the covert correction of a too-harsh punishment imposed in
response to pressure from victims or media at the time of the original sentencing. Neither
practice should be tolerable: one because it permits injustice after the fact of sentencing, and the
other because it encourages injustice in the original sentencing decision. In any event, because
decisions granting modification under these analog statutes are not widely reported, legal
scholars have traditionally overlooked provisions authorizing judicial sentence modification as a
164. Id.
165. FED. R. CRIM. P. 35(b) (1966) (increasing the time within which the court may act from 60 to 120 days); FED.
R. CRIM. P. 35(b) (1983) (making clear that so long as a defendant‟s motion is filed within 120 days, the court may
rule on it within a reasonable time thereafter). The rule remained substantially unchanged until changes prompted by
the Sentencing Reform Act of 1984 led to substantial revisions in the statute, making sentence reduction solely a
means of rewarding defendants for offering the United States substantial assistance in criminal prosecutions. See
FED. R. CRIM. P. 35(b) (1991).
166. According to a 2003 survey, five states impose a time limit of 30 to 75 days on motions for sentence
modification, five others impose a 90-day limit, ten states impose a 120-day limit, and eight states permit
modification for a period between 180 days and 1 year. See Grossman & Shapiro, supra note , at 11 nn.78-81
(surveying state statutes).
167. Id. at 11. These time limits are consistent with the American Bar Association‟s Criminal Justice Standards,
which advocate providing trial courts with the opportunity to reduce sentences “for a specific restricted time” after
sentence is imposed “to rectify those judgments that it realizes were excessive” or to respond to “new factual
information ... that alters materially the information base on which sentence was imposed.” ABA: SENTENCING,
supra note , at 18-7.1.
168. Because sentence modification under Rule 35(b) analogs is wholly discretionary, rulings on such motions are
rarely appealable and therefore leave no record in appellate case law. Throughout the country, local counties and
parishes maintain their own records of trial court level proceedings. Most do not track either filings or outcomes
related to motions for sentence modification.


matter of any consequence.
Although it is true that early versions of Federal Rule of Criminal Procedure 35(b) and its
later state analogs represent the most traditional form of judicial sentence modification, they are
not the only form of the mechanism. While judicial sentence modification remains a fairly
unusual phenomenon, courts and legislatures across the country have found ways to permit
courts to retain jurisdiction over their sentences beyond the strict time limits provided by
traditional Rule 35(b) statutes. The jurisdictions profiled below have widely varying sentencing
policies, statutory authority, and common law traditions, yet each has chosen to use a form of
judicial sentence modification as one means of providing for early release.
1. The Rule 35 Motion Extended: Modification in Maryland
The State of Maryland is in many ways traditional, conferring jurisdiction on trial courts
to modify sentences through its own Rule 35(b) analog, Maryland Rule of Court 4-345. As
amended in 2005, the rule provides that
[u]pon a motion filed within 90 days after imposition of a sentence ... the court
has revisory power over the sentence except that it may not revise the sentence
after the expiration of five years from the date the sentence originally was
imposed on the defendant and it may not increase the sentence.169
The rule further specifies that a court may modify a sentence “only on the record in open court,
after hearing from the defendant, the State, and from each victim or victim‟s representative who
requests an opportunity to be heard.”170 The rule leaves the grounds for modification wholly to
the trial court‟s discretion.
Like most Rule 35 analog statutes, the Maryland rule limits the power of the court to
modify an imposed sentence unless the defendant files a motion within a limited time period—in
this case, ninety days.171 However, as the rule itself suggests, Maryland explicitly condones the
practice of “bench parole” by permitting judges to hold timely filed motions in abeyance for up
to five years.172 Commentators have observed that Maryland‟s willingness to allow judges to act
on sentence modification motions “years after [they are] filed based on facts that were not in
existence—or perhaps even contemplated—at the time of the motion, makes the Maryland
procedure unique” in the modern era.173 Equally unique is the broad discretionary authority
enjoyed by Maryland judges who can, and often do, modify sentences for a wide range of
Unlike most states, in which judicial sentence modification is a little known obscurity of
sentencing law even to those within the criminal justice system, in Maryland the practice of

169. MD. CT. R. 4-345(e)(1) (2005).
170. MD. CT. R. 4-345(f).
171. MD. CT. R. 4-345(e)(1).
172. Id.; see also Grossman & Shapiro, supra note , at 5.
173. Grossman & Shapiro, supra note , at 9.
174. In Grossman & Shapiro‟s 2003 survey, state trial judges reported modifying sentences for the following
reasons: the offender‟s participation in alcohol and drug treatment or educational programs; payment of restitution;
completion of probation; exemplary institutional conduct; cooperation with law enforcement; performance of
community service; successful rehabilitation; or illness or age. Id. at 39-40. Several judges also indicated that they
had modified sentences to ameliorate the impact of changing parole guidelines. Id. at 40.


judicial sentence modification has been a topic of ongoing public evaluation.175 Politicians,
judges, district attorneys, and victims‟ advocates have publicly debated its merits and drawbacks,
and its continued existence has been the result of hard-won political battles.176 Several years ago,
as a result of political compromise between those who favor more certain punishment and those
who support the expansive use of judicial sentence modification, the state amended Rule 4-345,
for the first time placing a limit on the time in which judges may rule on motions for sentence
modification.177 That limit was not expected to have any significant practical effect on sentence
modification, however, since a survey of state judges demonstrated that the vast majority of
modifications were made within five years of the original sentencing hearing.178
Since the amendment took effect in 2004, Maryland trial judges have continued to
exercise broad discretion to modify sentences. Although counties are not required to track
“motions for sentence reconsideration,” as they are colloquially known, the Maryland Sentencing
Commission does collect data on cases in which judges reduce the sentences of violent felons. 179
Given the fact that Section 4-345 only permits modifications within a five-year window, violent
felons seem unlikely candidates for relief since their sentences are generally lengthy, their crimes
serious, and their odds of rapid “rehabilitation” often dim.180 It is therefore surprising that
Commission data reveals that Maryland judges granted reconsideration on more than 200
sentences involving 110 prisoners between 2005 and 2009.181 Although this limited data fails to
reveal the degree of sentence reduction or the reasons for modification, it does demonstrate that
prisoners serving sentences for crimes as serious as first-degree murder, first-degree rape, child
175. Id. at 37.
176. Id. at 1-2.
177. Compare MD. CT. R. 4-345(e)(1) (2004) (placing a five-year limit on decision) with MD. CT. R. 4-345(b) (2003)
(placing no time limits on decision). See also David P. Kennedy, The End of Finality, 37 MD. B.J. 24, 26 (2004)
(asserting that the new time limit would “serve the interest of finality” in sentencing).
178. Grossman & Shapiro, supra note , at 43 (reporting survey indicating “that a clear majority of the motions for
sentence modification that are granted occur within one year of the time that the motion is filed. An overwhelming
majority of those granted occur within the first five years after the motion is filed.”).
179. MARYLAND STATE COMMISSION ON CRIMINAL SENTENCING POLICY, ANNUAL REPORT 39 (2009), available at (discussing state law that requires judges to submit worksheets to
the commission for rulings on motions for sentence modification related to defendants convicted of crimes of
violence and indicating the commission‟s belief that these modifications have been historically underreported).
180. Of course, a judge granting a motion for sentence modification need not authorize the prisoner‟s immediate
release. As outlined above, under Maryland law a judge could reduce a twenty year sentence to a sentence of ten
years, for example, if within the first five years following sentencing, the prisoner demonstrated that such a
reduction in sentence was deserved.
181. Although Maryland judges are required to report only modifications involving violent felons, the Commission
report includes all judicial sentence “reconsiderations” for which a worksheet was submitted. While the vast
majority of these cases do involve violent felonies, in each year a limited number of the reported modifications
involve crimes that are not obviously crimes of violence. In the interest of accurate reporting, the figures reported
above are those reported by the Commission. Interested readers may wish to examine the Commission‟s reports to
see in greater detail the breakdown of offenses for which modifications were granted and reported. See id. at 40;
REPORT 29 (2007), available at; MD. STATE COMM‟N ON
REPORT 21 (2005), available at


sexual assault, and first-degree assault have successfully obtained sentence modifications.182
While these statistics do not provide any concrete sense of how prevalent or widespread the
practice of sentence modification is in cases involving less serious offenses, they suggest that
Maryland judges may be utilizing the mechanism with some regularity in such cases. 183 As of
this writing, no further effort has been made to circumscribe judges‟ authority to modify
sentences under Section 4-345, and by all appearances, the continued use of judicial sentence
modification in Maryland remains secure.
2. Inherent Jurisdiction: The Wisconsin Approach
In sharp contrast to Maryland and other states that premise ongoing trial court jurisdiction
on state statutory authority, Wisconsin is one of the very few states that recognizes sentencing
courts‟ inherent power to change and modify their own legally imposed sentences, even after
those sentences have commenced.184 Although Wisconsin statutes provide that defendants must
move for sentence modification within ninety days of sentencing when contending that their
sentences are “unduly harsh,” Wisconsin courts have held that their statutory time limits govern
only the defendant‟s right to be heard by the court—not the court‟s discretionary power to hear
the defendant‟s claims and to modify the sentence.185 In Wisconsin, therefore, a defendant may
move for sentence modification at any time following the commencement of his sentence. When
the defendant‟s motion is filed within the ninety-day time limit prescribed by statute, the court is
obliged to entertain the motion. After those ninety days have passed, it is within the trial court‟s
discretion to deny or hear the motion for modification.186
In Wisconsin, motions for sentence modification can be made on two grounds: (1) that
the sentence is unduly harsh or (2) that the emergence of a “new factor” justifies modification of
the original sentence.187 Modifications based on an alleged “new factor” must conform to strict
common law rules governing what may and may not, as a matter of law, be considered a new
factor.188 If a new factor can be shown to exist, it then falls within the discretion of the trial court
REPORT 33 (2008), available at
183. See also Grossman & Shapiro, supra note , at 3 (concluding, based on the authors‟ 2003 survey of Maryland
judges, “that the overwhelming majority of cases in which the practice is used are for nonviolent drug and theft
184. See Hayes v. State, 175 N.W.2d 625, 628 (Wis. 1970), overruled on other grounds, State v. Taylor, 210
N.W.2d 873 (Wis. 1973). Nevada is also included in this minority group of states. The Nevada Supreme Court has
held that district courts possess inherent authority to modify a sentence in the limited context of a sentence “based
on a materially untrue assumption or mistake of fact that has worked to the extreme detriment of the defendant,”
such as when a mistaken sentence “„is the result of the sentencing judge‟s misapprehension of a defendant‟s
criminal record.‟” Edwards v. State, 918 P.2d 321, 324 (Nev. 1996) (citing State v. Dist. Court, 677 P.2d 1044,
1048 (Nev. 1984)).
185. State v. Noll, 653 N.W.2d 895, 897-98 (Wis. Ct. App. 2002) (citing WIS. STAT. § 973.19(1)(a) (1998)).
186. State v. Wuensch, 230 N.W.2d 665, 672 (Wis. 1975).
187. WIS. STAT. § 973.19 (2008); Noll, 653 N.W.2d at 897-98.
188. In order to have an imposed sentence modified under Wisconsin law, a defendant must show by clear and
convincing evidence that a new fact or set of facts exist that constitute a “new factor.” State v. Franklin, 434 N.W.2d
609, 611 (Wis. 1989). In order to qualify as a new factor, the fact or set of facts must (1) be considered “highly
relevant” to the sentence imposed, (2) be unknown to the judge “at the time of [the] original sentencing,” and (3)
either not have been in existence at the time of sentencing or have been “unknowingly overlooked by all of the
parties.” Rosado v. State, 234 N.W.2d 69, 73 (Wis. 1975). Whether a new factor exists is a matter of law, which an


to grant or deny modification of the sentence.189 Often the dispositive question is based on
whether the new factor “frustrates the purpose of the original sentence.”190 The trial court‟s
decision to modify is subject to review for abuse only.191
Over time, Wisconsin courts have identified specific categories of fact that may or may
not constitute new factors. Facts that do not qualify include institutional compliance, the
completion of rehabilitative programming, sentencing disparities between codefendants, and
changes in maximum criminal penalties and classification of crime severity. 192 As a result of
these restrictions, the court‟s ability to modify a sentence is more restricted in Wisconsin than
Maryland, even though the court‟s jurisdictional authority is inherent and continuing. Facts that
have justified sentence modification include the correction of “inaccurate or incomplete
information” relevant to the sentence imposed, judicial misunderstanding of relevant law or the
collateral consequences of an imposed sentence, and a defendant‟s postconviction cooperation
with law enforcement.193
Notably, Wisconsin appellate courts have long used “new factor” law as a conscious tool
to regulate the separation of executive and judicial power. When the state employed an
indeterminate sentencing system that permitted parole consideration for most prisoners, the
courts excluded from consideration as “new factors” rehabilitative facts considered by the parole
board.194 After the state adopted truth-in-sentencing in 1999, the courts continued to restrict trial
courts‟ power to consider such facts on the ground that doing so “would turn circuit courts into
parole boards, a result that would change the role of the circuit courts and be inconsistent with
the legislature‟s intent” in enacting truth-in-sentencing legislation.195 Although “new factor” law
constrains the exercise of Wisconsin judges‟ “inherent power” in ways that prevent sentence
modification from serving as a tool for early release in many cases, it may well be that the
courts‟ sensitivity to legislative and executive sensibilities explains the long-standing political
appellate court determines de novo. State v. Hegwood, 335 N.W.2d 399, 401 (Wis. 1983).
189. Hegwood, 335 N.W.2d at 401.
190. State v. Michels, 441 N.W.2d 278, 280 (Wis. Ct. App. 1989).
191. Franklin, 434 N.W.2d at 611.
192. See, e.g., State v. Krueger, 351 N.W.2d 738, 741-42 (Wis. Ct. App. 1984) (holding that post-sentencing factors
relating to rehabilitation, including “remorse, repentance, cooperativeness and positive change,” do not constitute
new factors for modification purposes); State v. Champion, 654 N.W.2d 242, 243-44, 248 (Wis. Ct. App. 2002)
(holding that participation in rehabilitative programming is not a new factor); State v. Toliver, 523 N.W.2d 113, 119
(Wis. Ct. App. 1994) (disparity in sentencing between codefendants not a new factor); Hegwood, 335 N.W.2d at 402
(holding that a reduction in the maximum penalty for an offense does not constitute a new factor); State v. Torres,
670 N.W.2d 400, 403 (Wis. Ct. App. 2003) (holding that a reclassification of a criminal offense that “would result in
a shorter sentence if the defendant were convicted under the new classification” did not qualify as a new factor).
193. Meredith Ross, Sentence Modification and Early Release for TIS Inmates, 13 WIS. DEFENDER 1, 3 (2005),
available at; State v. Doe, 697
N.W.2d 101, 105-06 (Wis. Ct. App. 2005) (post-sentencing cooperation with law enforcement may qualify as a new
194. See, e.g., State v. Ambrose, 510 N.W.2d 758, 761 (Wis. Ct. App. 1993) (explaining that “post-sentencing
conduct is a factor that relates to parole and is properly within the consideration of the Department of Health and
Social Services” (citing State ex rel. Warren v. County Court, 197 N.W.2d 1, 4-5 (Wis. 1972)); see also Katherine
R. Kruse & Kim E. Patterson, Comment, Wisconsin Sentence Modification: A View from the Trial Court, 1989 WIS.
L. REV. 441, 444, 455-56 (1989) (observing that in sentence modification motions brought by law school clinic from
1978-1987, a policy of noninterference with matter considered by the parole board “seemed to predominate”).
195. State v. Crochiere, 681 N.W.2d 524, 532 n.13 (Wis. 2004).


tolerance for the broad sentencing jurisdiction claimed by Wisconsin courts.
Neither filings nor grants of motions for judicial sentence modification are tracked in
Wisconsin at either the state or county level; therefore, it is impossible to tell with any certainty
the extent to which such motions succeed. Although now dated, a study conducted in 1989 by
students working in the University of Wisconsin Law School Frank J. Remington Center‟s Legal
Assistance to Institutionalized Persons program examined the outcomes of more than 100
motions for sentence modification filed by the clinic on behalf of Wisconsin prisoners.196 The
review examined facts that correlated with reductions of sentences and described almost twenty
cases in which motions for modification alleging new factors were granted, on grounds ranging
from family needs to illness to cooperation with law enforcement authorities.197 A recent survey
of supervising attorneys working in the same clinic suggests that Wisconsin judges may be even
more willing to grant appropriate motions now than they were twenty years ago: the clinic
director estimates that during the past three years, judges granted approximately half of all
motions for sentence modification filed by the clinic.198 That these motions were filed by a law
school clinic with stringent screening standards, rather than by pro se litigants, may explain the
relatively high grant rate; however, insofar as the study remains descriptive of Wisconsin
practice, it suggests Wisconsin judges continue to exercise their power to modify sentences
within the confines of “new factor” law.
3. Shared Decision Making: The Federal Model
Within the federal code, several statutes authorize judges to modify lawfully imposed
sentences under certain conditions.199 One of these, 18 U.S.C. § 3582(c)(1)(A)(i), is an obscure
provision that permits judicial modification of federal sentences for “extraordinary and
compelling reasons.”200 Although the law places release decisions in the hands of sentencing
196. Kruse & Patterson, supra note , at 441, 444 & n.9.
197. Id. at 444-45, 457-59.
198. Telephone Interview with Meredith Ross, Clinical Dir. of the Univ. of Wis. Frank J. Remington Ctr. (Mar. 9,
199. See, e.g., 18 U.S.C. § 3582(c)(2) (2006) (authorizing modification of a sentence “to a term of imprisonment
based on a sentencing range that has subsequently been lowered by the Sentencing Commission”); FED. R. CRIM. P.
35(b) (permitting court to reduce sentence if the defendant has provided substantial assistance to the government).
200. Previously codified at 18 U.S.C. § 4205(g), this statute provides that although a court may not ordinarily
modify a term of imprisonment,
(A) the court, upon motion of the Director of the Bureau of Prisons, may reduce the term of
imprisonment (and may impose a term of probation or supervised release with or without
conditions that does not exceed the unserved portion of the original term of imprisonment), after
considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds
(i) extraordinary and compelling reasons warrant such a reduction.
18 U.S.C. § 3582 (c)(1)(A). A court may also reduce a sentence under § 3582(c)(1)(A) if
(ii) the defendant is at least 70 years of age [or] has served at least 30 years in
prison ... for the [crime] for which the defendant is currently imprisoned, and a
determination has been made by the Director of the Bureau of Prisons that the
defendant is not a danger to the safety of any other person or the community ...
and that such a reduction is consistent with applicable policy statements issued
by the Sentencing Commission.
18 U.S.C. § 3582(c)(1)(A)(ii). Finally, a court may modify an imposed term of imprisonment as provided by Rule


courts, it puts a powerful constraint on the court‟s ability to exercise its discretion. Before a court
may reduce a sentence under § 3582(c)(1)(A), the Bureau of Prisons must file a motion
requesting sentence reduction and attesting to the extraordinary and compelling circumstances
that justify the change in sentence.201 A defendant may not initiate the motion himself, nor can a
court reduce a sentence sua sponte.202 Under this model, judicial sentence modification is the
final step in a multibranch decision-making process that begins in the prison and ends in the
Traditionally, the Bureau of Prisons has exercised its authority to file motions under §
3582(c)(1)(A) only in rare instances involving inmates with less than one year to live.204
Prompted in large part by pressure from advocacy groups that asserted the Bureau was abusing
its discretion by interpreting the statute too narrowly,205 in 2007 the United States Sentencing
Commission amended its guideline on the use of § 3582(c)(1)(A).206 The amendment clarified
the Sentencing Commission‟s understanding that “extraordinary and compelling reasons exist”
not only in cases involving terminally ill patients, but also when a defendant “suffer[s] from a
permanent physical or medical condition, or is experiencing deteriorating physical or mental
health because of the aging process, that substantially diminishes [his] ability ... to provide selfcare within the environment of a correctional facility and for which conventional treatment
promises no substantial improvement.”207 The Commission also explained that extraordinary and
compelling reasons exist when “the defendant‟s only family member capable of caring for the
defendant‟s minor child or minor children” dies or becomes incapacitated.208 The Commission
made clear that these examples were not exhaustive, and that extraordinary and compelling
reasons other than those delineated might warrant the filing of a motion for sentence
35 of the Federal Rules of Criminal Procedure or when appropriate following a retroactive change in the Sentencing
Guidelines range. 18 U.S.C. § 3582(c)(1)(B) & (c)(1)(B)(2).
201. 18 U.S.C. § 3582(c)(1)(A) (when prisoner meets specified conditions, “the court, upon motion of the Director
of the Bureau of Prisons, may reduce the term of imprisonment”) (emphasis added).
202. See id.
203. Between those two places, the request must surmount numerous hurdles. Under federal regulations, as outlined
in Bureau of Prisons Program Statement 5050.46, requests for so-called “compassionate release” must be submitted
to the warden of the institution where the prisoner is confined, either by the prisoner himself or by a third party.
William W. Berry III, Extraordinary and Compelling: A Reexamination of the Justifications for Compassionate
Release, 68 MD. L. REV. 850, 862-64 (2009) (citing 28 C.F.R. § 571.61(a) (2008)). If, after investigating the request,
the warden supports the application, he may refer it to the Regional Director of the Bureau of Prisons, who may then
in turn refer it to the General Counsel of the Bureau of Prisons. Id. at 864. From the General Counsel‟s Office, the
application travels to the Medical Director or Assistant Director of the Correctional Programs Division, and then to
the Bureau of Prisons Director himself for a final decision. Id. at 864-65; 28 C.F.R. § 571.62 (2008). If the Director
offers his approval, the U.S. Attorney‟s Office is then contacted and asked to file a motion for sentence modification
in district court. 28 C.F.R. § 571.62 (2008).
204. Berry, supra note , at 852-53, 866.
205. See Testimony of Margaret Colgate Love on Behalf of the American Bar Association Before the United States
Sentencing Commission on Proposed Guidelines Amendment on Reduction of Term of Imprisonment Based on
Bureau of Prisons Motion under 18 U.S.C. § 3582(c)(1)(A)(i), at 8-10 (Mar. 15, 2006), available at
206. U.S. SENTENCING GUIDELINES MANUAL § 1B1.13 cmt. (2007).
207. Id.
208. Id.
209. See id.


These recent developments suggest the possibility of an expanding role for judicial
sentence modification in the federal system. Since the passage of the 2007 amendments,
however, the Bureau appears to have steadfastly adhered to its prior use of the federal statute: it
appears not to have sponsored any motions for sentence modification involving nonterminally ill
inmates.210 Even in cases involving seriously ill inmates, the Bureau has exercised its power
sparingly. Of the cases that reached the Bureau‟s Central Office between 2000 and 2009,
approximately thirty-five petitions each year were filed; an average of seven each year were
denied and an average of five were never acted upon because the eligible inmate died while
awaiting a decision from the Bureau.211
The Bureau‟s ability to effectively bar the courtroom door to the relief potentially
afforded by § 3582(c)(1)(A) demonstrates the potential limits of the shared decision-making
model. Although it would be highly desirable to achieve agreement among all three branches of
government on the circumstances that justify judicial sentence modification, in practice shared
decision-making provisions run the risk of allowing the executive branch to unilaterally block all
access to the court. When executive branch officials are unwilling to exercise their discretionary
power in accordance with the intent of the legislature, as Bureau of Prison officials appear to be
doing with respect to § 3582(c)(1)(A), courts remain helpless to address the circumstances in
which the legislature intended their judicial power to be exercised.212
4. A New Approach: The Draft Model Penal Code‟s “Second Look”
In addition to the working models of judicial sentence modification offered by
jurisdictions such as Maryland and Wisconsin, and by 18 U.S.C. § 3582(c)(1)(A), another, more
innovative, model may be forthcoming. The most recent discussion draft of the revised Model
Penal Code: Sentencing, presented to the American Law Institute in May 2010, contains two
judicial “second look” provisions that would authorize courts to reduce legally imposed
sentences.213 The first provision closely tracks the federal statute, by authorizing sentence
reduction at any time based on age, infirmity, or extraordinary and compelling circumstances,
upon recommendation of a gatekeeping correctional authority.214
The second, and more novel, provision is proposed Section 305.6, which would allow a
judicial decisionmaker or judicial panel to reduce the sentences of prisoners who have served
210. Stephen R. Sady & Lynn Deffebach, Second Look Resentencing Under 18 U.S.C. § 3582(c) as an Example of
Bureau of Prisons Policies That Result in Overincarceration, 21 FED. SENT‟G REP. 167, 168 (2009).
211. Statistics provided by Judi Garrett, Bureau of Prisons Deputy Assistant Director for Policy, and compiled by
Margaret Colgate Love (August 2009) (on file with author).
212. Of course, while the Bureau of Prison‟s refusal to exercise its full authority to file petitions under §
3582(c)(1)(A) provides a cautionary lesson, it is possible that state correctional authorities would be willing to
exercise gatekeeping authority more robustly than their federal counterparts. That assumption underlies the
proposed inclusion of a gatekeeping clause in a new Model Penal Code provision currently under consideration by
the American Law Institute. See infra Part III.B.4.; MODEL PENAL CODE: SENTENCING § 305.7 note (Discussion
Draft No. 3 Mar. 29, 2010) [hereinafter MPC: SENTENCING] (explaining “the MPCS provision assumes that
departments of corrections in the states will exercise their authority more frequently than their federal counterpart.
State correctional agencies experience budgetary pressures unknown in the federal system, have more diverse
offender populations, and should be more willing to advocate for the release of inmates whose continued
confinement serves no demonstrable purpose.”)
213. MPC: SENTENCING§ 305.6-.7.
214. Id. § 305.7(1).


fifteen or more years of any sentence of imprisonmentwhen, “in light of current circumstances,
the purposes of sentencing ... would best be served by ... a modified sentence.”215 In other words,
rather than restricting use of this provision to a short window following sentencing using the old
Rule 35(b) model, the Model Penal Code prohibits use of the provision until fifteen years after
sentencing.216 This restriction suggests that proposed Section 305.6 is designed to be used in
cases involving serious crimes that have drawn lengthy terms of confinement as a way of
allowing the court to reassess the continued propriety of extended confinement.217 Commenting
on an earlier (but, in this respect, substantially similar) draft of proposed section 305.6, Professor
Richard Frase has explained that justifications for reducing a sentence under the draft provision
might range from success in treatment programs to advances in technology that might permit an
offender‟s safe return to the community.218 The proposed provision would also grant the judicial
decisionmaker discretion to appoint counsel for indigent applicants and require that notice be
provided to the prosecuting authority and to the victims of the offenses for which the offender is
incarcerated.219 Decisionmakers would be required to maintain an “adequate record of
proceedings,” along with “a statement of reasons” for all modification decisions.220 Finally,
applicants would have access to discretionary court review, although it is not clear what standard
of review would apply on appeal.221 .
Given the degree to which proposed Section 305.6, which the Institute designates a
“principle of legislation” rather than a model statute,222 fails to take a position on fundamental
matters such as the importance of a public hearing prior to modification, it would be
overreaching to call it a new model for judicial sentence modification. Along with proposed
Section 305.7, it marks the first time the Model Penal Code has recognized the legitimacy of
“second look” provisions that provide an opportunity to reassess the propriety of continued
imprisonment. Although it is not clear whether this provision will be adopted in the final revision
of the Model Penal Code as it is currently drafted, its mere inclusion demonstrates a new
openness to judicial involvement in early release decision making. The Model Penal Code‟s
inclusion of proposed Sections 305.6 and 305.7, if ultimately adopted by the American Law
Institute, may prove influential in prompting jurisdictions to pass new legislation authorizing the
215. Id. § 305.6(4). By inviting reconsideration of the purposes of sentencing, proposed Section 305.6 appears to
authorize de novo review of all sentences longer than fifteen years.
216. Id. § 305.6(1).
217. Id. § 305.6 note (“Subsection (1) creates a new „second-look‟ process of sentence modification that will be
available only to that small percentage of prisoners who have served exceedingly long terms.... On policy grounds,
the creation of a „second look‟ sentence-modification mechanism is imperative when a legal system deprives
offenders of their liberty for a substantial portion of their adult lives. The provision reflects a profound sense of
humility that ought to operate when heavy criminal punishments are imposed that will reach nearly a generation into
the future.”).
218. Richard S. Frase, Second Look Provisions in the Proposed Model Penal Code Revisions, 21 FED. SENT‟G REP.
194, 197 (2009).
219 MPC: SENTENCING, supra note , § 305.6(3),(6).
220. Id. § 305.6(7).,
221. Id. § 305.6(8).
222. Id. § 305.6 note (“The Institute does not recommend a specific legislative mechanism for carrying out the
sentence modification authority recommended in this provision, nor is the provision drafted in the form of model
legislation. Instead, the language below sets out principles that a legislature should effectuate through enactment of
such a provision. Many institutional, legal, and procedural elements of the sentence modification machinery are left
to experimentation in different jurisdictions.”).


practice of judicial sentence modification.223
C. The Advantages of Judicial Sentence Modification
As the models described above demonstrate, jurisdictions wishing to provide a judicial
forum for sentence modification may do so in a variety of ways. New legislation might differ
among jurisdictions with respect to the offenders eligible for modification, the minimum or
maximum time in which a motion must be entertained, the circumstances that might justify
modification, and the degree to which the opinions of interested parties or correctional
authorities might factor into the decision to grant modification. Beyond those basic differences,
states might make different choices regarding whether to provide counsel (an unlikely but
possible choice) and whether to permit appellate review of modification decisions. However the
authorizing legislation is structured, certain fundamental features distinguish it from more
traditional methods of early release. When discussing judicial sentence modification, this Article
defines the mechanism by the following key characteristics: (1) the petitioner is required to seek
modification in the original sentencing court; (2) interested parties are given notice and
opportunity to be heard prior to any decision to modify; (3) before modification is granted, the
court holds a public hearing in open court; and (4) the judge is required to provide a reasoned,
on-the-record explanation for any decision to modify.
The possible advantages of judicial sentence modification are many. First, unlike the
application of sentence credit or the decision to parole, judicial sentence modification decisions
are transparent, occurring in open court and accompanied by an on-the-record explanation.
Moreover, because the mechanism invites the original sentencing court to consider whether an
offender may be safely returned to the community at a time earlier than originally anticipated,
judicial sentence modification has the potential to enhance both offender accountability (by
requiring the offender to justify his early release to the court and community that sentenced him)
and judicial accountability (by checking the judge‟s original assessment of the proper sentence
against the reality of the post-sentencing experience). Transparency and accountability are
characteristics that respond directly to the concerns that led to the abolition of parole and other
forms of early release in the 1980s and 1990s; therefore, to the degree they can be fully realized
through the mechanism of judicial sentence modification, these advantages suggest the
mechanism is worthy of greater consideration.
1. Transparency
One of the distinguishing features of judicial sentence modification is the transparency
that accompanies a judge‟s decision to reduce a sentence. Although no jurisdiction that currently
utilizes judicial sentence modification requires a hearing on every motion filed, when a court
determines that a motion may have merit, ordinarily a hearing will be scheduled.224 Under most
223. Cf. Gerard E. Lynch, Towards a Model Penal Code, Second (Federal?): The Challenge of the Special Part, 2
BUFF. CRIM. L. REV. 297, 297 (1998) (commenting on the persuasive force of the original Model Penal Code and
noting that “[i]n the first two decades after its completion in 1962, more than two-thirds of the states undertook to
enact new codifications of their criminal law, and virtually all of those used the Model Penal Code as a starting
point” (citing Herbert Wechsler, Foreword to MODEL PENAL CODE AND COMMENTARIES xi (1985))).
224. See, e.g., MD. CT. R. 4-345(f) (2010) (“The court may modify ... a sentence only on the record in open court,
after hearing from the defendant, the State, and from each victim or victim‟s representative who requests an
opportunity to be heard. The defendant may waive the right to be present at the hearing.... If the court grants the


state laws, such hearings must be preceded by notice to the district attorney and to any victims
who have requested notification of post-sentencing proceedings.225 These parties are then given
opportunity to voice their support for, or objection to, the motion for modification either in
writing or in person at the hearing.226
It is easy to imagine cases in which a hearing will be merely perfunctory, such as when a
request for modification of a victimless crime is unopposed by the local prosecutor. Other cases
may involve more extended proceedings, with competing testimony from lay witnesses or even
experts. Regardless how simple or complex the hearing may be, its salient feature is its visibility.
Unlike parole hearings, which are held within prison walls and are ordinarily closed to the
public,227 sentence modification hearings occur in open court, providing not only interested
parties but any interested person with an opportunity to witness the decision-making process.
While there is no reason to believe that the public will necessarily avail itself of the opportunity
to participate in sentence modification hearings, the openness with which proceedings are
conducted provides a powerful contrast to the oft-criticized inaccessibility of traditional backend release decisions.
Equally important to the transparency of judicial sentence modification is the requirement
that judges explain any decision to modify. Requiring judges to give an explanation of the
decision to modify provides the parties and the public with a measure of confidence that the
decision is a deliberative one that rests on legitimate considerations. Scholarship in the area of
procedural justice teaches that individuals‟ perceptions of the legitimacy of government action
are influenced more by the fairness of the procedures used by decision makers than by the
outcome reached in any given case.228 This line of research demonstrates that when individuals
encountering the criminal justice system—or any system, for that matter—feel “heard” and
perceive institutional decision makers as unbiased, trustworthy, and respectful, their perceptions
of the legitimacy of the system tend to increase.229 By analogy, interested parties witnessing a
judge‟s transparent, reasoned decision to reduce a sentence may actually increase their respect
for the court‟s legitimacy. Such a result has no analog among the prison-based forms of early
release currently in vogue.

motion, the court ordinarily shall prepare and file or dictate into the record a statement setting forth the reasons on
which the ruling is based.”).
225. See, e.g., ALASKA STAT. § 12.55.088(e), (g) (2010) (requiring notice to the victim and directing the court to
“consider the victim‟s comments ... when relevant, and any response by the prosecuting attorney and the person
filing the motion”); MD. CT. R. 4-345(e)(2) (2010) (requiring the state to notify victims of sentence reduction
hearings); see also ABA: SENTENCING, supra note , at 18-7.1(b) (requiring notice to the parties prior to sentence
226. See supra notes -17.
227. There are a handful of states that permit members of the public to attend parole hearings assuming they meet
security regulations for entering the prison. See, e.g., Open Parole Hearings Act, TENN. CODE ANN. § 40-28-501 to 505 (West 2010).
also Michael M. O‟Hear, Explaining Sentences, 36 FLA. ST. U. L. REV. 459, 461, 478-79 (2009) (drawing on Tyler‟s
work to explain that offenders‟ respect for the law can be enhanced by requiring judges to give reasons for the
sentences they impose).
229. Steven L. Blader & Tom R. Tyler, A Four-Component Model of Procedural Justice: Defining the Meaning of a
“Fair” Process, 29 PERSONALITY & SOC. PSYCH. BULL. 747, 747-48 (2003).


2. Public Accountability
Beyond transparency, judicial sentence modification has an additional advantage that
traditional mechanisms for early release lack: if well-implemented, it has the potential to enhance
accountability for both the offender and the sentencing court.
Placing the release decision in the jurisdiction where the offender‟s crime occurred not
only allows interested parties and community members access to the proceedings; it also invites
the offender to revisit in a concrete way his offense and the community in which he committed it.
Although there will inevitably be some cases in which judges will be willing to reduce short
prison sentences based solely on an assessment that the original sentence was unduly harsh, it is
probable that in the vast majority of cases, the judge will require the offender to justify a
modification of sentence. In such cases, an offender seeking early release must be prepared to do
more than show that he meets any statutory prerequisites for release. He must also convince the
court that he can return home safely in less time than originally deemed appropriate. To do so, he
will have to confront practical questions about where he will live and how he will occupy
himself following release, as well as more difficult questions about whether he has been
punished sufficiently for his crime, and why the community should feel confident that, if
released, he will be unlikely to return to prison soon thereafter. Preparing plausible answers to
these questions requires a level of engagement from the offender that enhances his accountability
to the community by requiring him to proactively develop a plausible plan for his safe return
The potential for offender accountability is an important feature of judicial sentence
modification, but even that advantage is minor compared to the mechanism‟s potential for
enhancing judicial accountability. While most forms of early release allow paroling authorities
with no connection to the community to make release decisions, motions for judicial sentence
modification return the prisoner to the court that confined him, thereby connecting the release
decision to the original decision to imprison. Judges reviewing potentially meritorious motions
for modification will be forced to confront the reasons for the original sentencing decision: not
only the offense itself, but also the purposes identified for the punishment imposed. Periodically,
the court may discover that the assumptions underlying its rationale were faulty.
Imagine that a sentencing judge believes an offender is an incorrigible drug addict who
can only be prevented from abusing drugs by being incapacitated in a custodial setting. While in
prison, it is discovered that the defendant is not addicted to drugs at all; rather, he suffers from a
mental illness and, when treated with proper medication, he functions normally. Or perhaps the
court rightly believes the offender is a drug addict and imposes a substantial sentence believing it
will provide the defendant with time to receive intensive drug treatment in prison. In reality,
230. Although many offenders prepare parole release plans in advance of their parole hearings, such plans often lack
specificity of the sort local judges may require. An offender‟s promise to secure treatment through a local charity
may be well-received by a statewide parole board but vigorously challenged by a local judge who knows the
services the agency provides are not those the offender needs. Situating the release decision at the community level
is likely to demand the offender to make his case with a greater level of specificity. Ideally, of course, the offender
would not be forced to devise such a plan unaided but would be able to secure assistance from social workers or
reentry coordinators trained to work with inmates on issues of release planning. Such assistance is becoming
increasingly common as federal funds are made available to assist in the development and implementation of reentry
planning programs. See generally Second Chance Act of 2007, Pub. L. No. 110-199 § 3(a)(5)-(6), 122 Stat. 657, 658
(2008) (authorizing transitional services for prisoners re-entering the community).


however, the treatment slots have been cut in the wake of budget shortfalls and only those
prisoners nearing their release date are being admitted to the drug treatment program. In either
case, a court ruling on a motion for sentence modification will be confronted with a discrepancy
between the assumptions on which its sentence was based and the reality that followed. By
inviting the sentencing court to revisit the original sentencing decision in light of post-sentencing
realities, judicial sentence modification provides the sentencing court with the opportunity to
reassess, in light of more accurate information, whether the original sentencing decision was just
and whether it entailed a prudent allocation of costly correctional resources.
Of equal if not greater importance, the accountability fostered by judicial reconsideration
of sentences has great potential to spill over into front-end sentencing decisions. Ordinarily, the
criminal justice system provides no feedback loop informing judges of what happens to
defendants after sentencing. With limited exception, the pronouncement of sentence is the
judge‟s last word on the matter; regardless what follows, there is no mechanism that later
disabuses her of any misconceptions she may have with respect to a particular offender or to the
operation of the prison system more generally. Judicial sentence modification therefore could
provide a valuable way for judges to hear “the rest of the story.” Information thus gained might
well affect not only early decisions, but front-end sentencing decisions, too. Over time, these
front-end effects could be significant, particularly for judges who find they have overestimated
the amount of confinement necessary to accomplish the purposes for which a sentence was
imposed. Because judicial sentence modification holds the potential to change durations of
confinement for both those already sentenced and those whose sentences have yet to be imposed,
it is a mechanism that legislatures wishing to expand early release options ought to consider
3. Sustainability
While more popular early release mechanisms such as good time credit and earned
release are capable of providing immediate, large-scale relief to overcrowded prison systems,
phenomena such as Illinois‟s recent failed experiment with early release suggest that
mechanisms that lack accountability are unlikely to maintain public support over time.232 It
would be naïve, of course, to suggest that judicial sentence modification is a panacea, capable of
solving the problem of mass incarceration and impervious to public backlash. As a matter of
political reality, all mechanisms for early release are vulnerable to repeal any time a releasee
commits a new crime.233
Nevertheless, judicial sentence modification may have an advantage over other
mechanisms in this regard. Because executively controlled release decisions provide no formal
opportunity for public objection before a release decision is made, public outcry may be greater
when the decision has unhappy consequences. Judicial sentence modification, on the other hand,
231. As Todd Clear and James Austin have emphasized, “[T]he total number of prisoners behind bars is purely and
simply a result of two factors: the number of people put there and how long they stay.” Todd R. Clear & James
Austin, Reducing Mass Incarceration: Implications of the Iron Law of Prison Populations, 3 HARV. L. & POL‟Y
REV. 307, 308 (2009). Only by affecting one or both of these factors can the prison population be reduced. If the
practice of judicial sentence modification were to alter judges‟ front-end sentencing decisions, then the mechanism
could have direct (on the back end) and indirect (on the front end) effects on the length of confinement.
232. See supra notes -44 and accompanying text.
233. See id.


provides the public with an opportunity to resist release before modification is granted.234 For
that reason, it is possible that judges (particularly those who are elected) may be hesitant to
release large numbers of persons from custody early, especially in the absence of clear guidance
regarding the circumstances the legislature believes would justify early release. For states eager
to save large sums of money by lowering prison populations quickly, that may not be welcome
Yet the very factors that prevent judicial sentence modification from providing largescale, rapid release are the same factors that suggest it may have more long-term sustainability
than more popular early release mechanisms . Judges may hesitate to release offenders whose
crimes justified imprisonment in the first instance, but when they do, they are likely to do so
after thoughtful deliberation, having weighed the individual characteristics of the offender and
the nature of the crime for which he has been imprisoned, as well as having given due
consideration to the likely effect of release on public safety. Such decisions, particularly when
made on the record in open court, may well possess a legitimacy that executively controlled
mechanisms for early release lack.
These differences may explain why states that have traditionally utilized sentence
modification have done so consistently, even during the height of determinate sentencing when
back-end forms of release were considered most suspect. Wisconsin is a good example: although
it abolished parole and good time in 1999, it never abandoned the practice of sentence
modification or imposed any legislative restrictions on its use. To the contrary, so positive was
the state‟s experience of judicial sentence modification that it has continued to experiment with
legislative mechanisms that expand judicial sentence modification for prisoners meeting
established criteria.235 For states committed to using early release as a tool for reducing prison
populations over the long run, judicial sentence modification is, at the very least, a promising
mechanism worthy of greater consideration.
D. Potential Limitations of Judicial Sentence Modification
As the discussion above illustrates, the judicial character of the sentence modification
mechanism distinguishes it from other forms of early release. That feature makes sentence
modification in many ways more akin to resentencing than to parole, and gives rise to unique
legal, practical, and structural considerations that merit further discussion.
1. Constitutional Constraints
The first question that must be answered is whether the mechanism is legal. Although
neither federal nor state courts have held that constitutional considerations bar all forms of
sentence modification, the practice does have important constitutional implications with which
jurisdictions have been forced to grapple. First is the effect of the Fifth Amendment‟s guarantee
against double jeopardy on the sentencing options available to modifying courts. Second is
whether and how the separation of powers doctrine, particularly as enshrined in state
234. Availing the public of a forum in which to voice opposition before an offender‟s sentence is modified may not
shield decision makers from later criticism should the released person commit new crimes. That is true even when
no one voiced serious objections to modification at the time the decision was made. Such a fact would, however,
provide a decision maker with a respectable response to any such criticism.
235. See WIS. STAT. § 973.195 (2008).


constitutional law, affects the manner in which release authority is allocated between the judicial
and executive branches.
a. Double Jeopardy
The Fifth Amendment to the United States Constitution guarantees that no person shall
“be subject for the same offence to be twice put in jeopardy of life or limb.”236 This clause has
been held to guard not only against retrial for an acquitted offense, but also to “protect[ ] against
multiple punishments for the same offense.”237 Although the Supreme Court has not had
occasion to confront the double jeopardy implications of sentence modification directly, the
Court has noted with seeming approval the common law practice of permitting modifications of
any sort (that is, higher or lower) during the original term of court, prior to the commencement of
sentence.238 These modifications were not governed by protections similar to those attending the
right to be free from retrial following acquittal.
The Supreme Court has not directly held that the Double Jeopardy Clause itself would
bar an increase in the imposition of a legal sentence that has already commenced; however, it has
suggested as much in dicta.239 In United States v. Benz, the Court cited a line of authority
suggesting that a court loses power to increase a sentence once service has commenced even
during the same term of court, and explained that the rule “is not based upon the ground that the
court has lost control of the judgment in the latter case, but upon the ground that to increase the
penalty is to subject the defendant to double punishment for the same offense” in violation of the
Double Jeopardy Clause.240 Therefore, although “[t]he Double Jeopardy Clause does not provide
the defendant with the right to know at any specific moment in time what the exact limit of his
punishment will turn out to be,”241 at the same time, most jurisdictions agree that once a legal
sentence has commenced, increasing it would be improper.242 What constitutes the
commencement of the sentence varies widely, however, ranging from oral pronouncement of
sentence by the court to arrival at the prison where a custodial sentence will be served.243 In a
few states, increases in sentence are permitted so long as they occur with “reasonable
promptness”—usually interpreted to mean a time period within hours of the original sentence
236. U.S. CONST. amend. V.
237. North Carolina v. Pearce, 395 U.S. 711, 717 (1969).
238. In United States v. DiFrancesco, 449 U.S. 117, 133-34 (1980), the Court was asked to decide whether a new
federal statute permitting the government to appeal a defendant‟s sentence violated the Double Jeopardy Clause by
permitting an appellate court to vacate the defendant‟s original sentence and remand for imposition of a harsher
sentence. In holding that “[t]he double jeopardy considerations that bar reprosecution after an acquittal do not
prohibit review of a sentence,” the court relied heavily on the common law, which permitted trial courts to increase
as well as decrease sentences during the same term of court. Id. at 133-34, 136 (citing Ex parte Lange, 85 U.S. (18
Wall.) 163, 167 (1873); 3 EDWARD COKE, INSTITUTES § 438 (13th ed. 1789)). Indeed, the Court went so far as to
note that the common law “accounts for the established practice in the federal courts that the sentencing judge may
recall the defendant and increase his sentence, at least (and we venture no comment as to this limitation) so long as
he has not yet begun to serve that sentence.” Id. at 134.
239. United States v. Benz, 282 U.S. 304, 306-07 (1931).
240. See id.
241. DiFrancesco, 449 U.S. at 137.
242. Lee R. Russ, Annotation, Power of State Court, During Same Term, To Increase Severity of Lawful Sentence—
Modern Status, 26 A.L.R. 4th 905, § 3 (1983).
243. Id. at §§ 7-8.


Notably, there appear to be no reported cases of any court increasing a sentence
following a motion for modification, and for good reason: judicial sentence modification has
traditionally been used solely as a means of reducing the term of a custodial sentence.245
Although that fact substantially diminishes the risk of double jeopardy violations, it does not
wholly eliminate them. As one commentator has observed, double jeopardy concerns might arise
in the context of sentence modification if a term of imprisonment were modified to a term of
release with extensive conditions or, even more plausibly, if the terms of a conditional release
sentence were changed in a way that appeared more onerous.246 To avoid such problems,
legislators would do well to specify that sentence modification be used only to reduce sentence
length in the context of custody or to reduce the severity of conditional supervision, absent
consent from the defendant to the imposition of more onerous requirements.247
b. Separation of Powers
A second constitutional consideration implicated by the practice of judicial sentence
modification is the doctrine of separation of powers. Traditionally, in both the state and federal
systems, the judiciary has been responsible for imposing sentences while executive branch
agencies have solely responsibility for implementing the sentences once imposed. Early
challengers to the practice of sentence modification therefore contended that allowing the court
to modify an already-imposed sentence impermissibly intruded on the executive powers of
pardon and commutation, which determined the manner and degree to which a sentence would or
would not be implemented.248
In 1931, the Supreme Court addressed that argument in United States v. Benz.249 In that

244. Id. at § 4.
245. See, e.g., ABA: SENTENCING, 18-17.1(a) (“The rules should restrict the time for reduction in severity of a
sentence to a specified period after imposition of a sentence.”) (emphasis added); id. 18-17.2(b) (“The rules should
provide that any modification of the requirements or conditions of a sentence under this authority may not increase
the overall severity of an offender‟s sentence.”).
246. Frase, supra note , at 199 (suggesting that, if the “old and new sentence are not directly commensurate,” to
avoid double jeopardy problems it would be “necessary to devise equivalency scales covering different sentence
247. Of course, as students of penology have long noted, calculating the punitive weight of noncustodial penalties is
extraordinarily difficult for many reasons, including subjective differences in the manner they are imposed by
authorities and experienced by defendants. See NORVAL MORRIS & MICHAEL TONRY, BETWEEN PRISON AND
such scales in the original sentencing context).
248. United States v. Benz, 282 U.S. 304, 305 (1931).
249. Id. Today such an argument seems purely legalistic given the pinched way in which the President and most
state governors exercise their commutation powers. See Margaret Colgate Love, The Twilight of the Pardon Power,
100 J. CRIM. L. & CRIMINOLOGY __ (forthcoming 2010), available at (cataloging decline in the use of executive clemency).
However, the clemency powers of the President were exercised with regularity until 1980. Id., at 27. In the states,
the clemency powers were similarly exercised among the states throughout the early years of the twentieth century,
after which they were gradually replaced by use of executively-controlled parole. Id., at 21 n.59. Consequently, at
the time Benz was decided, concern that the judicial and executive powers might conflict had more grounding in
practice than it would today.


case, a defendant was sentenced to ten months‟ incarceration in federal court.250 After his
sentence commenced, but before the court‟s term had ended, the defendant moved for sentence
modification.251 The district court granted the motion, reducing the sentence to six months‟
imprisonment. On appeal, the government argued that the court‟s reduction of a valid sentence
after it had been partly served was an invasion of the executive‟s power under Article II, Section
2, Clause 1, of the United States Constitution.252 The Court rejected that challenge, however, and
The judicial power and the executive power over sentences are readily
distinguishable. To render judgment is a judicial function. To carry the judgment
into effect is an executive function. To cut short a sentence by an act of clemency
is an exercise of executive power which abridges the enforcement of the
judgment, but does not alter it qua judgment. To reduce a sentence by amendment
alters the terms of the judgment itself and is a judicial act as much as the
imposition of the sentence in the first instance.253
State courts ruling on challenges to Rule 35 analog statutes have ordinarily rejected
separation of powers claims on similar grounds.254 In at least one case, however, a state court
found a separation of powers violation when a trial court held in abeyance a motion for sentence
modification, failing to rule on it within a reasonable amount of time following the prescribed
120-day limit.255
Often, the invocation of the phrase “separation of powers” in the context of state sentence
modification has been less about constitutional law than about good public policy.256 In some
jurisdictions, like Maryland, sentence modification by the trial court can arguably impinge on the
executive branch power to implement the sentence by undermining the decision of the paroling
authority.257 This argument has influenced the development of the common law surrounding
sentence modification in Wisconsin, where courts have self-imposed limits on their ability to
consider factors that would ordinarily fall within the purview of the parole board. In modern
sentencing practice, the shift of power between the judiciary and the executive has been fluid
with respect to sentencing. Indeterminate sentencing with its emphasis on parole boards gave
way to determinate sentencing with its emphasis on judicially imposed durations of confinement.
It is not surprising that new efforts to expand early release might permit a mixture of executively
250. Benz, 282 U.S. at 306.
251. Id.
252. Id.
253. Id. at 311.
254. See, e.g., People v. Smith, 536 P.2d 820, 822 (Colo. 1975) (holding that the 1970 version of Colorado Rule of
Criminal Procedure 35(a) did not violate separation of powers doctrine or executive power of commutation).
255. State v. Chapman, 825 P.2d 74, 78-79 (Idaho 1992) (refusing to sanction a judicial “invasion of the executive
authority held by the Commission of Pardons and Parole” and holding that a trial court‟s failure to timely rule on a
validly filed Rule 35 motion divested the court of jurisdiction ); see also Brandt v. State, 796 P.2d 1023, 1025 (Idaho
1990) (holding that an attempt by the judiciary to use Idaho Criminal Rule 35 outside the statute‟s 120-day
jurisdictional limit “would clearly violate the separation of powers, Idaho Constitution art. 2, by allowing the
judiciary to encroach upon the pardoning and paroling authority of the executive branch, Idaho Constitution art. 4, §
7, and the power of the legislature to establish suitable punishment”).
256. See, e.g., Grossman & Shapiro, supra note , at 27-36.
257. See supra note (observing that some Maryland sentencing judges have admitted to modifying sentences in
response to the parole board‟s unwillingness to grant release).


controlled release and judicially controlled sentence modification. Viewed in historical context,
the potential coexistence of judicial sentence modification and executive controlled release
mechanisms appears more a legitimate legislative policy decision than an unconstitutional
usurpation of executive power by the judiciary. Not surprisingly then, Benz and the state cases
that followed it have largely established that sentence modification does not violate the
separation of powers doctrine per se.
A distinct separation of powers challenge has arisen, however, with respect to newly
enacted, shared decision-making legislation. In State v. Stenklyft, a litigant challenged a new
Wisconsin statute that gave district attorneys veto power over petitions for discretionary sentence
reduction filed by qualifying state prisoners.258 Under the terms of the statute, certain felony
offenders could seek sentence reduction after serving a designated portion of their custodial
sentences.259 Before a judge could grant relief, however, the prosecuting attorney was entitled to
notification.260 If the prosecutor objected to the petition, the judge was obliged to deny the
petition outright; if not, the judge retained discretion to either deny the motion or reduce the
prisoner‟s sentence, if doing so was in the public interest.261 While acknowledging that
“[s]entencing a defendant is an area of shared responsibility” among the branches of government,
the Wisconsin Supreme Court emphasized that “the power to decide an individual case is an
exclusive core judicial power, and any invasion of the exclusive core constitutional powers of the
judiciary violates the doctrine of separation of powers under our state constitution.”262 Because
the statute permitted a party to the original criminal action to dictate the outcome of a sentence
reduction case, the court held that the district attorney veto provision of the statute was
unconstitutional.263 Although the case law exploring the constitutionality of shared decisionmaking provisions is sparse, Stenklyft suggests that courts addressing constitutional challenges
258. 697 N.W.2d 769, 773-75 (Wis. 2005).
259. The statute provided that any of the following grounds could justify a reduction in sentence:
1. The inmate‟s conduct, efforts at and progress in rehabilitation, or participation and progress in
education, treatment, or other correctional programs since he or she was sentenced.
3. A change in law or procedure related to sentencing or revocation of extended supervision
effective after the inmate was sentenced that would have resulted in a shorter term of confinement
in prison or, if the inmate was returned to prison upon revocation of extended supervision, a
shorter period of confinement in prison upon revocation, if the change had been applicable when
the inmate was sentenced.
4. The inmate is subject to a sentence of confinement in another state or the inmate is in the United
States illegally and may be deported.
5. Sentence adjustment is otherwise in the interests of justice.
Id. § 973.195(1r)(b).
260. Specifically, the statute provided that the sentencing court could deny the petition upon receipt or hold it for
further consideration. If the court held the petition, it was required to notify the district attorney, and in some
instances the victim. Id. § 973.195(1r)(c)-(d).
261. The statute plainly provided: “If the district attorney objects to adjustment of the inmate‟s sentence within 45
days of receiving notification ... the court shall deny the inmate‟s petition.” Id. § 973.195(1r)(c). If, however, the
court received no objection to sentence adjustment from the district attorney and the court determined that sentence
adjustment was in the public interest, the court was permitted to reduce the inmate‟s sentence provided a written
explanation was given. Id. § 973.195(f).
262. Stenklyft, 697 N.W.2d at 794, 796. But see Beanblossom v. State, 637 N.E.2d 1345, 1348 (Ind. Ct. App. 1994)
(reaching the opposite conclusion with respect to a similar state statute).
263. Stenklyft, 697 N.W.2d at 797-98.


may be unwilling to cede too much gatekeeping power to executive actors, be they prosecutors
or even, perhaps, prison officials.
2. Practical Questions
Beyond constitutional considerations lie practical questions regarding the administrability
of judicial sentence modification. First is a question of administrative capacity: Will courts be
overwhelmed by the process of adjudicating motions for judicial sentence modification? Second
is a question of utility: Will judges use the mechanism if given the opportunity? Third is a
question of scale: Are sentence modification decisions likely to respond adequately to the cost
concerns that have motivated states‟ newfound willingness to provide for early release?
American courts are busy places and judges often struggle to keep pace with their
expanding dockets. We therefore need to question whether courts have the administrative
capacity to reconsider large numbers of already-imposed sentences. While it is true that any new
legislation authorizing judicial sentence modification would likely lead to a temporary surge in
filings, it seems unlikely that such motions would clog dockets or otherwise impede the orderly
administration of justice in the trial courts. Why not? First, experience demonstrates that courts
routinely receive and review correspondence from prisoners seeking relief in various forms,
whether authorized by law or not; thus, it is possible that the passage of laws would simply give
new captions (and possible merit) to requests already being processed by the courts. Moreover,
jurisdictions such as Wisconsin and Maryland that currently utilize sentence modification appear
to do so efficiently and without detriment to the court‟s ability to manage other demands on its
Yet even if new legislation were to lead to a substantial increase in motions for sentence
reduction, so long as courts remained free to deny motions without hearing, it is unlikely that the
number of filings would present any serious threat to courts‟ administrative resources. Over the
past twenty years, increases in pro se litigation have forced courts to develop administrative
procedures for efficiently handling motions filed by unrepresented litigants in all areas of law.264
It is therefore likely that courts would be able to easily adapt current administrative processing
procedures to handle motions for sentence modification. Court staff might screen motions from
litigants who do not qualify for sentence modification, either because they did not file their
motions on time, they do not fall within the class of litigants authorized to file for sentence
reduction, or they have not alleged a proper ground for relief.265 Even when a prisoner has met
264. Federal and state courts have developed a variety of procedures that can assist them in sifting potentially
meritorious cases from meritless ones. Examples of such procedures include the use of designated forms that allow
screeners to quickly identify relevant information to the employment of specialized pro se or writ clerks to screen
initial filings. See, e.g.,
AMERICAN JUDICATURE SOCIETY, REVISED PRO SE POLICY RECOMMENDATIONS 6 (2002), (encouraging courts to “develop simplified court forms that are
understandable to and easily utilized by the self-represented. This will not only serve to enhance the efficiency of the
litigation process by saving time for court staff, litigants and judges, but also will enhance the fairness of legal
LITIGATION 12 (1996) (discussing screening of prisoner civil rights complaints by designated pro se law clerks in
federal district courts).
265. The process of screening pro se litigation is a common one, sometimes required by statute, see 28 U.S.C. §
1915A (2006) (requiring pre-service screening of all in forma pauperis civil suits filed by prisoners to ensure
litigants have stated a claim on which relief may be granted), and sometimes voluntarily undertaken. Administrative


all relevant criteria, because sentence modification is a discretionary remedy, a judge would be
permitted to deny hearing when the facts alleged to be true are insufficient to convince her that a
reduction in sentence is warranted. Having thus screened out meritless and nonpersuasive
motions, a much smaller and more manageable universe of cases would be left for full hearing
and possible sentence modification.
The next question, then, is whether judges will want to hold hearings and modify
sentences. Mechanisms for early release are only meaningful to the extent that they are utilized,
and it is fair to ask whether judges would want to revisit sentencing decisions that may have been
difficult to render in the first instance. Although the lack of empirical data on judges‟ use of
sentence modification prevents more than educated speculation on this point, the limited
information available suggests that the power to modify is one many judges do exercise when
authorized to do so. Professors Grossman and Shapiro‟s 2003 study of the use of sentence
modification in Maryland reports that the practice was strongly favored by state judges,
prompting a unanimous vote in 2002 by the Maryland Conference of Circuit Judges to oppose
legislation designed to limit judges‟ power to modify sentences.266 Moreover, the fact that
Maryland judges modified the sentences of more than one hundred violent felons between 2005
and 2009 suggests they may be modifying sentences with some frequency in cases involving less
serious offenses.267 In Wisconsin, informal examinations of sentence modification suggest that
despite stringent common law restrictions, judges remain willing to modify sentences in at least
some cases.268 And while federal judges are rarely given the opportunity to rule on motions for
sentence modification pursuant to 18 U.S.C. § 3582(c)(1)(A) as a result of the Bureau of
Prisons‟s filing practices, between 2000 and 2008, judges granted 100 percent percent of the
motions that were not rendered moot prior to disposition.269 These actions are consistent with the
inference that, if authorized, the power to modify sentences is one the judiciary would be willing
to exercise in at least some cases.
Yet even if judges are authorized to modify sentences and are amenable to doing so in
some situations, the question remains whether judicial sentence modification is a mechanism
well-suited to deliver the cost savings states hope to obtain from early release legislation. Unlike
sentence credit, judicial sentence modification cannot provide sentence reduction en masse
through pure administrative action—however structured, judicial modification will always
require individualized consideration of each application for relief. That does not mean, though,
that the mechanism cannot serve as an important ameliorative device. Parole also requires
individualized release determinations preceded by hearings, and as discussed above, many recent
budget-conscious reforms have focused on expanding parole eligibility on the assumption that
doing so will have measurable effects on correctional expenditures. Insofar as the mechanisms of
parole and sentence modification both require individualized assessments of offenders, sentence
modification has equal potential for providing relief in the form of early release. Both
mechanisms require individualized release determinations and both rely on the willingness of
screening can streamline the judicial process, allowing judges to quickly assess whether a litigant meets statutory
prerequisites for relief.
266. See Grossman & Shapiro, supra note , at 28 & n.208. Recall, too,.
267. See supra note .
268. See supra note and accompanying text.
269. Need FOIA data here. [Assertion based on reliable sources.]


decision makers to exercise their power to release offenders from prison to the community.270
Therefore, setting aside the many unique benefits of the mechanism discussed above, the
judicially based mechanism has as much capacity to save states‟ money as more popular, prisoncontrolled methods of back-end release.
3. Additional Considerations
Apart from potential practical obstacles to the widespread use of judicial sentence
modification are questions about the mechanism‟s theoretical soundness. First and most pressing
among these is the question of whether judges are the best-positioned officials to render early
release decisions. The idea of sentencer as sentence modifier creates an appealing conceptual
symmetry; however, there are arguments to be made against allowing judges to control release
In an ideal case, an offender seeking sentence modification would return to the judge who
sentenced him. That judge would be armed with reliable information about the offender, his
crime, the local community from which he came and to which he would be returning, the kind of
programs the offender had completed in anticipation of release and what, if anything, he had
gained from them, along with a concrete plan for the offender‟s post-release living arrangements,
employment, treatment, and community supervision. With that information in hand, the judge
would then make a nuanced assessment of whether the offender might be able to return to the
community earlier than provided by the original sentence without unduly diminishing the
punishment appropriate for the crime or unreasonably compromising public safety.
In reality, given the volume of criminal cases processed by state courts, it is unlikely that
most judges will remember any but the most notorious criminal offenders. Ironically, those are
the offenders who would be least likely to qualify for early release due to the severity of their
crimes. It is the low-level thieves, minor drug dealers, and drunk drivers who are most likely to
be eligible for sentence modification271; they are also likely to be the least memorable.
Compounding questions about the judge‟s personal knowledge of any given prisoner is the fact
that oftentimes the judge who imposed the sentence will be unavailable to review an offender‟s
request for sentence modification. The original judge may have changed jobs, retired, or moved
on to a different rotation in the court system. In such cases, although the original “court” will
hear the prisoner‟s petition, the sentencing judge, with her potentially unique knowledge of the
offender and his crime, will not.
Personal knowledge of the offender and his offense is not the only information judges
may lack. Insofar as judicial sentence modification is conceived as a direct descendant of
270. Of course, it may be that the accountability that attaches to making a release decision in open court might lead
judges to hesitate before granting prisoners any substantial reduction in sentence. Such hesitation might stem from
any number of factors, including whether judicial sentence modification has an established tradition within the
jurisdiction, whether judicial officials are elected or appointed, and the degree to which judicial release decisions are
guided by statute. It is important to remember, however, that judicial officials are not the only decision makers
subject to political constraints. Parole boards, as arms of the executive, are subject to many similar pressures that
limit their willingness to provide for early release to the degree legislatures may desire. See SIMON, supra note , at
160 (reporting that the parole rate for eligible California prisoners dropped to 5 percent from 1983-1991, to 1
percent from 1991-1999, and then to almost zero through 2002); Reitz, supra note , at 227 (noting “the susceptibility
of parole boards to political influence and a natural institutional drift toward severity in practice”).
271. Cf. supra note .


traditional parole release under the rehabilitative model, there are good reasons to question
reliance on judges as decision makers.272 Not only may a judge‟s historical memory of any given
offender and crime be fuzzy to nonexistent, but the judge‟s knowledge of the offender‟s postsentencing conduct, program participation, and overall “institutional rehabilitation” is likely to
be poorly developed and based on limited information provided by the offender himself.
Moreover, any documentation of institutional conduct that courts do receive will likely be of
limited utility since, unlike parole boards, many judges do not possess any specialized
knowledge of the difference between various correctional treatment programs or understand the
seriousness or insignificance of different types of disciplinary infractions. Consequently, if
release decisions are to be based upon post-sentencing institutional factors alone, there is
something to be said for leaving release decisions in the hands of correctional officials.
But although release decisions must account for certain basic facts about post-sentencing
conduct—for example, whether the offender committed further crimes while incarcerated—it
remains true that institutional facts are imperfect predictors of successful reentry.273 Local
considerations such as the availability of community-based treatment options, the existence of
informal social controls, and the perspective of crime victims may, depending on the particular
case, be at least as relevant to the release decision as the number of institutional programs in
which an offender has participated. With respect to these considerations, the judge may be far
better informed than the statewide parole board, and her decisions may therefore be more attuned
to public safety considerations. Support for that proposition draws strength from the growing
popularity of reentry courts, which position judges as community problem solvers.274 In these
specialized courts, judges manage offenders immediately following incarceration, setting
conditions with which offenders must comply and monitoring compliance through frequent court
hearings, augmented by out-of-court community-based treatment programming.275 The growing
popularity of these judicially administered programs suggests not only that judges may be
capable of assessing whether and under what conditions offenders may be safely returned to their
communities, but also that there is a degree of public tolerance for the judiciary‟s ability to do so.
Moreover, to the degree that the early release decision invites reexamination of the
normative question of whether the offender has been sufficiently punished for his offense,
courts—not parole boards—have traditionally been arbiters of justice with respect to the outer
limits, at least, of the quantum of punishment merited in any given case.276 It is courts that are
272. Commenting on the fact that the parole boards did not seek judicial input before rendering their release
decisions, Judge Frankel once observed that “the idea of consulting the sentencing judge [in such an instance] is
essentially nonsense anyhow.” Frankel, supra note , at 16 n.54. Frankel explained: “The judge has had no
opportunity for the kind of observation that is supposedly for the Parole Board. He knows nothing of the postsentencing history. He is likely, in a word, to have nothing to contribute.” Id.
(2001) (suggesting that desistance from crime derives from offenders‟ internal narratives); John H. Laub & Robert J.
Sampson, Understanding Desistance from Crime, 28 CRIME & JUSTICE, 1, 25 (2001) (connecting desistance to
employment and marriage, both factors that are limited by institutional confinement).
274. See Shadd Maruna & Thomas P. LeBel, Welcome Home? Examining the “Reentry Court” Concept from a
Strengths-Based Perspective, 4 W. CRIMINOLOGY REV. 91, 91-92 (2003); Eric J. Miller, The Therapeutic Effects of
Managerial Reentry Courts, 20 FED. SENT‟G REP. 127, 127-28 (2007).
275. Id. at 92.
276. Grossman & Shapiro, supra note , at 32 (asserting that judges are better-positioned than parole boards to
understand the nature and seriousness of an offender‟s crime, the offender‟s degree of personal culpability, and the


thought to possess the moral authority to “pass judgment,” and it is for that reason that the
sentencing has traditionally been imposed by the court. Insofar as other forms of early release
invite prison administrators and parole boards to second guess the amount of punishment
imposed by the judge, we may worry that their decisions will be driven by administrative
concerns at the expense of offender accountability. Judges, therefore, possess some significant
institutional advantages when it comes to deciding whether an offender should be given early
That leaves one more important question: Will allowing judges to make release decisions
unfairly exacerbate disparities already present in the criminal justice system, thereby making the
practice intolerably unjust regardless of its potential expediency? Some have argued that the
parole board‟s distance from local communities is actually one of its strengths, since unlike the
local judge, the statewide parole board sees the “big picture” and can time release decisions in
individual cases to correct for inequitable sentencing disparities.277 Setting aside the question of
whether parole boards are well-positioned to decide what is inequitable, it is true that judicial
release decisions have the potential to exacerbate preexisting disparities. This is true for several
reasons. First, some judges will inevitably be more willing to reconsider sentences than will
others, a difference that means some judges may deny all motions for sentence modification out
of hand, while others hold hearings and grant relief in a substantial number of cases.278 Second,
even among judges who are open to exercising their discretionary power, worries about public
safety may limit their willingness to reduce sentences for offenders in need of services in
communities lacking the formal and informal resources that would permit safe return to the
community. Such considerations suggest that offenders returning to disadvantaged communities
might be less likely to secure early release than offenders returning to communities better able to
meet their needs for supervision or community-based programming.
The fact that a release decision might turn on factors beyond the offender‟s desert and
outside his control is troubling; however, it is important to distinguish between disparate effects
that may flow from discretionary decisions and the disparate application of law itself. All can
agree that it would be improper to apply different legal standards to different offenders in
making release decisions. That is different, however, from recognizing that the application of
identical standards—for example, whether the offender can be safely released to the community
at this time given the available resources—may yield different answers in different cases.279
effect of the crime on the victim and the community).
277. As Professor Albert Alschuler has put it,
[t]he back-end agency is a jurisdiction-wide agency so it is in a much better position to eliminate
disparities than sending it back to the sentencing judge. [Professor Richard] Frase says sentencing
is a judicial function, but it has never been an exclusively judicial function. The back end is better
able to take account of institutional needs.
Margaret Colgate Love, Sentence Reduction Mechanisms in a Determinate Sentencing System: Report of the Second
Look Roundtable, 21 FED. SENT‟G REP. 211, 221 (2009) (quoting Professor Alschuler‟s statements at the American
Bar Association Commission on Effective Criminal Sanctions Second Look Roundtable).
278. The data collected by the Maryland Sentencing Commission are consistent with this observation. The
Commission‟s annual reports from 2005-2009 show that judges in the Third Circuit (comprised of Baltimore and
Harford counties) reported no sentence modifications, while judges in the equally urban Seventh Circuit (Prince
George‟s, St. Mary‟s, Calvert, and Charles counties) modified sentences in 155 reported cases, making that district
responsible for 75 percent of reported sentence modifications during the relevant five-year period. See supra note .
279. Parole decisions themselves may, of course, be subject to the same critique.


Those who prefer harsh treatment for all prisoners to potential relief for some may conclude that
judicial sentence modification will not pay its way. But insofar as too many prison sentences are
exacting too much both fiscally and socially, a minor amount of increased disparity may
ultimately be more tolerable than maintaining the status quo. Judicial sentence modification
offers willing judges a way to reduce sentences that appear unnecessarily punitive in a way that
is open to public scrutiny. For that reason, despite its limitations, the mechanism has potential to
bring greater legitimacy to the early release decision.
As states continue to struggle with the costs of mass incarceration in this time of financial
crisis, they are likely to discover that the public‟s willingness to reduce prison populations is
highly conditional. Early release mechanisms that enhance the legitimacy of the criminal justice
system are therefore to be preferred over those that may be perceived as unaccountable or
Whatever form judicial sentence modification may take—whether time-limited or openended, permitted only for “extraordinary” reasons or for more mundane ones—it has the
potential to transparently display the work of the criminal justice system and enhance judicial
and offender accountability in ways that other, more common forms of early release cannot. For
that reason, states seeking to cut correctional costs through the use of early release would do well
to give serious consideration to making use of the mechanism‟s untapped potential. Given its
unique attributes, judicial sentence modification promises to be the most legitimate, and hence
the most sustainable, early release mechanism available today.




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