The Philadelphia DAs office has taken on the ambitious task of examining cases where the conviction might be sound but the punishment doesn’t fit the crime, reported the Marshall Project. That would mean poking into the sentences sought by a previous generation of prosecutors whose reflexive stance, for decades, was often to seek maximum charges carrying hefty terms behind bars. “It might open the floodgates to reviewing thousands of sentences,” said Steven A. Drizin, a law professor at Northwestern University and an expert on wrongful convictions who said he supports sentence reviews.
Despite the daunting undertaking, the idea is gaining traction. In Philadelphia, where former civil-rights attorney and public defender Larry Krasner was recently sworn in as district attorney, staffers are making plans for a sentence review program, likely the first of its kind in the country. Nationally, nearly two dozen newly elected prosecutors are working with an advocacy organization called Fair and Just Prosecution to implement their own sentencing-review procedures in the coming year, said Miriam Krinsky, the group’s executive director and a former longtime federal prosecutor.
Such a massive undertaking is, like many of the ambitions of this new breed of prosecutors, far easier said than done.
Normally, courts allow a prosecutor to seek re-sentencing only in limited circumstances, such as when new evidence arises or when legislators pass a new sentencing law that needs to be applied retroactively. For example, Maryland in 2016 revised its mandatory minimum sentences, with a clause allowing judges to use those changes to reduce the time that then-current prisoners were serving.
Sometimes, a prisoner can be rewarded with a reduced sentence for cooperating in a police investigation. The compassionate release process also lets corrections agencies and courts reduce sentences retroactively, usually when the prisoner is gravely ill.
But there is no mechanism in many states for requesting a new sentence for a current inmate simply because a newly elected prosecutor says it’s in the best interest of justice.
Kevin S. Burke, a Minnesota state judge who was the president of the American Judges Association, said many of his colleagues on the bench would love to revisit old cases in which their discretion was fettered by mandatory minimum sentence requirements. But they would still need to have a clear reason, grounded in law, for reopening a closed prosecution.
“You have to actually find an error,” he said.
In Philadelphia, Patricia Cummings, head of the conviction integrity unit, already has a workaround in mind. She said a group within the DA's office focused on sentencing—which she would likely direct but that still needs staff and funding—could start by looking into first- or second-degree murder cases the office prosecuted in the past.
In Pennsylvania, a conviction on those charges automatically ends in a sentence of life in prison without parole. More than 5,000 of the state’s prisoners are currently serving these sentences, the second-highest number in the nation, and about half are from Philadelphia.
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