Debevoise’s Holloway Project and “Second Looks”

The president’s power to grant clemency is but one feature of a sentence-correction ecosystem. But the abolition of federal parole in the 1980s left the clemency power as the only way to correct lawfully imposed sentences for the simple reason that they are too damn long. This article is about another way to correct sentences for that simple reason, one that has been right there all along but was moribund for decades, and about a 2018 statute and a Debevoise & Plimpton pro bono project that breathed life into it. And it is a critical Article III complement to the Article II clemency power. For the past five years, the Holloway Project at Debevoise has advocated for federal prisoners, overwhelmingly men of color, who were given bone-crushing sentences pursuant to the cruelest mandatory sentencing law the federal system had to offer. The typical Holloway Project client is a middle-aged man who was sentenced decades ago for robbery sprees in which a firearm was used but no one was hurt and little was stolen. In almost all of their cases, the indefensible sentences—often as not the equivalent of life without parole—had nothing to do with their culpability and everything to do with their refusals to cooperate and/or plead guilty. This article describes the Holloway Project and how it has used what has become known colloquially as the “compassionate release” statute, 18 U.S.C. § 3582(c)(1)(A), and 2018’s First Step Act to persuade federal judges to undertake holistic, compassionate reevaluations of the men these incarcerated individuals have become after all their years in prison, and inject some humanity and justice into a sentencing regime that is still in desperate need of both.

Incarceration Trajectories of Women Who Are Mothers: A Nationally Representative Study of State and Federal Prisoners

Despite growing research on women’s offending trajectories, knowledge on the imprisonment experiences of women who are mothers is limited. This study used a nationally representative dataset of state and federal prisoners to identify and characterize subgroups of mothers based on incarceration histories. Group-based trajectory modeling identified four groups with distinct incarceration trajectories: stable escalating group, moderate declining group, adolescence-peak group, and young-adulthood-peak group. Bivariate analyses then suggested that different incarceration trajectories were associated with adverse life experiences (i.e., foster care placement, sexual abuse experience) and confinement experiences (i.e., number of episodes of prison confinement). Discussed are the future research directions and implications for criminal justice policies and interventions targeting imprisoned mothers.

Pandemic Compassionate Release and the Case for Improving Judicial Discretion over Early Release Decisions

After decades of Bureau of Prisons’ maladministration of the sentence reduction authority authorized by 18 U.S.C. § 3582, Congress passed the First STEP Act of 2018 with the intention of expanding the use and transparency of compassionate release. Although the COVID-19 pandemic was not among the considerations when the First Step Act became law, it contains several important modifications that may protect thousands of federal prisoners from severe sickness and premature death while in custody. First, its procedural modification allowing federal prisoners to circumvent the often-artificial strictures of the Bureau of Prisons allows for a timely and proactive release decision from the sentencing court before a vulnerable individual is stricken with the deadly virus. Second, district courts are now permitted to grant release decisions to deserving individuals who were previously blocked from petitioning their sentencing court by the Bureau of Prisons. Importantly, courts are empowered to find grounds for release beyond those specifically enumerated in the now-outdated Sentencing Commission policy statement that formerly restricted compassionate release decisions. After observing the potential of the new compassionate release process as modified by the First Step Act, Congress should avoid concurrent systems of release and judicial discretion over early release should be expanded by statute or via an updated Sentencing Commission policy statement.

Second Looks at Sentences under the First Step Act

Under the First Step Act of 2018, federal prisoners may now petition courts directly for reduction of their sentences, and judges may grant such requests if “extraordinary and compelling reasons” support reduction. Judges are also in the process of imposing reduced sentences in thousands of cases where the First Step Act has retroactively reduced statutory penalties. Not only does the First Step Act offer prisoners new opportunities for sentence reduction, but the law also may change how federal judges understand the impact of their sentencing decisions. Before now, in federal cases, judges rarely had the chance to take a second look at the prison sentences they (or their colleagues) imposed. Encounters between judges and the people they sentenced typically occurred only if a person violated the terms of supervised release after leaving prison. Now, judges can reassess sentence length while someone is still in prison and evaluate whether a reduction in the sentence is warranted. This newfound power allows judges to see their sentencing decisions in a new light and may influence how they conceive of the prison time they impose in future cases.

Assisted dying for prison populations: Lessons from and for abroad

Canadian federal legislation setting out the framework for medical assistance in dying (MAiD) in Canada came into effect in June 2016. Because of section 86(1) of the Corrections and Conditional Release Act, as soon as MAiD became available in the community, it also needed to be made available to federal prisoners. There are some good reasons to be concerned about MAiD in the Canadian corrections system based on logistical, legal, and moral considerations. Fortunately, Canada is not the first country to decriminalize assisted dying and so Canadian policies and practices can be compared to others and take some lessons from their experiences. Thus, by reviewing the legal status of assisted dying in prisons internationally, the regulation of assisted dying, demand for assisted dying from prisoners, and the process for prisoners accessing assisted dying, this article offers a comparative overview of assisted dying for prisoners around the world in an effort to inform Canadian and other jurisdictions’ law, policy, and practice.

Yankee Plague

During the winter of 1864, more than 3,000 Federal prisoners of war escaped from Confederate prison camps into South Carolina and North Carolina, often with the aid of local slaves. Their flight created, in the words of contemporary observers, a "Yankee plague," heralding a grim end to the Confederate cause. In this fascinating look at Union soldiers' flight for freedom in the last months of the Civil War, Lorien Foote reveals new connections between the collapse of the Confederate prison system, the large-scale escape of Union soldiers, and the full unraveling of the Confederate States of America. By this point in the war, the Confederacy was reeling from prison overpopulation, a crumbling military, violence from internal enemies, and slavery’s breakdown. The fugitive Federals moving across the countryside in mass numbers, Foote argues, accelerated the collapse as slaves and deserters decided the presence of these men presented an opportune moment for escalated resistance. Blending rich analysis with an engaging narrative, Foote uses these ragged Union escapees as a lens with which to assess the dying Confederate States, providing a new window into the South’s ultimate defeat.