Abstract

Excerpted From: Joshua D. Weiss, Second Looks for Sentencing Equality, SMU Law Review 195 (Spring 2026) (253 Footnotes) (Full Document)

CONSIDER the case of Kepa Maumau. As a twenty-year-old, Mr. Maumau participated in three armed robberies. Federal prosecutors charged him with various robbery offenses, as well as three firearms enhancements under --one for each robbery. At the time, those three counts of carried a combined mandatory minimum sentence of fifty-five years’ imprisonment. Prosecutors offered Mr. Maumau a plea deal that would have dropped the firearms enhancements and left him with a ten-year prison sentence, but he rejected the offer, opting to go to trial. He was convicted and subsequently sentenced to the mandatory fifty-five-year prison term. After Mr. Maumau served about ten years in prison, Congress reduced the mandatory sentences contained in , but those amendments applied only prospectively. If he had been sentenced after those amendments were enacted, Mr. Maumau would have faced a mandatory minimum sentence of fifteen years, not the fifty-five years he was stuck serving.

Mr. Maumau brought a sentence-reduction motion to the same district court where he was originally sentenced, arguing that the court should reduce his sentence based on Congress’s changes to , along with several individualized factors: his young age at the time of the conviction, the disparity between his sentence and the shorter sentences his more culpable co-defendants received by pleading guilty, and his significant demonstrations of rehabilitation. The district court agreed that the “incredible” length of Mr. Maumau’s sentence and the disparity between his sentence and the one he would have received if he were sentenced today warranted a sentence reduction, when considered in combination with all of the other mitigating facts he presented. The district court therefore ordered his release from prison pursuant to the federal reduction in sentence (RIS) statute, commonly referred to as federal ““compassionate release,” which empowers a district court to reduce a previously imposed federal sentence if the court finds “extraordinary and compelling reasons.” The Court of Appeals for the Tenth Circuit affirmed the release order, agreeing that district courts can take nonretroactive changes to mandatory sentencing laws into account when determining whether someone is eligible for RIS relief.

Since Congress amended the RIS statute in 2018, thousands of federal prisoners serving disproportionately long sentences as a result of outdated mandatory sentencing laws or other past sentencing practices have sought similar relief. The appropriate scope of the RIS statute became the subject of significant controversy, exemplified by a circuit split over whether district courts can consider nonretroactive changes to mandatory sentencing laws as a basis for RIS relief. The Supreme Court will resolve the circuit split in the 2025-2026 term.

This Article analyzes the judicial controversy over RIS as a natural experiment that tests a persistent assumption about the effects of increasing judges’ “second look” authority. Courts, the United States Sentencing Commission (Sentencing Commission), and many scholars tend to assume that increasing judicial sentencing--or resentencing--discretion worsens racial and arbitrary disparities in sentencing outcomes. At first blush, this assumption aligns with common sense. RIS, for example, is a discretionary tool implemented unequally by different judges. Regardless of a person’s legal eligibility for relief, the ultimate decision to reduce a particular person’s prison sentence under the RIS law is left to a district court’s discretion. With this individualized discretionary power comes inevitable inequality across judicial actors: In courthouses across the country, there are vast discrepancies among different judges in their willingness to reduce the sentences of similarly situated prisoners.

It is not hard to consider these inequalities produced by RIS relief and construct an argument against this form of discretionary mercy. There is, after all, a deep unfairness to wide swings in sentencing outcomes, or resentencing outcomes, resulting only from the arbitrary factor of judicial assignments. For this reason, commentators who prioritize equality in sentencing have long argued against the expansion of discretionary mercy tools, such as judicial resentencing, clemency, and parole. Scholars who champion such laws have convincingly responded that even if discretionary second looks exacerbate sentencing inequalities, we should not shut off the levers of mercy available to some who deserve it just because it is not available to all, especially given the ongoing crisis of mass incarceration. Other scholars have discussed ways to minimize the disparities that result from judicial second looks, while still assuming that increasing judicial resentencing power will have net negative, or at best neutral, effects on the disparities that have long plagued U.S. sentencing outcomes. Few commentators have indicated that judicial second-look laws may actually work to remedy racial inequities in sentencing, and none have addressed the issue in depth.

This Article suggests that no tradeoff in equality is necessary to justify the expansion of judicial second-look authority. While increasing judicial resentencing discretion may worsen disparities caused by variation among judges, these judge-caused disparities do not present a complete picture. There is rich literature showing that a collection of other institutional actors-- Congress, defense lawyers, probation officers, and, especially, prosecutors-- cause sentencing disparities. To assess a given policy’s effect on sentencing disparities, the full range of institutional sources of disparities must be accounted for.

This Article argues that accounting for the range of institutional sources of disparities, individualized sentence reductions can have an equalizing effect on sentencing outcomes. It puts forth this argument by surfacing an overlooked feature of courts’ use of RIS. Courts that have used RIS to reduce the sentences of people facing outdated mandatory sentences have remedied some of the most egregious and well-documented racial disparities in the federal sentencing system, although these courts generally have not acknowledged this effect of their grants of mercy. For example, before Congress finally revised the mandatory sentencing enhancement in 2018, the Sentencing Commission repeatedly warned that federal prosecutors were significantly more likely to charge Black defendants with the enhancement than they were white defendants who committed similar conduct. Thus, when courts used RIS to reduce multi-decade sentences resulting from ’s old mandatory provisions, they reduced racial disparities among people who all committed similar conduct before 2018, only some of whom were actually charged with, convicted of, and sentenced under . Understood against this backdrop of inequality in the application of these mandatory sentencing laws, courts reducing these outdated mandatory sentences were, on the whole, promoting sentencing equality, despite the unwillingness of some courts to use the remedy. That is, even though judges applied the remedy unequally, individualized sentence reductions had an equalizing effect on sentencing outcomes because they were exerting downward pressure on a pool of disproportionately long sentences.

The remainder of this Article fleshes out the argument that the scholarly and judicial discourse over judicial second looks has overlooked the ways in which increasing judges’ discretion to reduce previously imposed sentences can have equalizing effects on sentencing outcomes. Part I describes the history of the RIS statute. Part II describes the doctrinal contours of the circuit split over the breadth of the RIS statute, which the Supreme Court will resolve in the 2025-2026 term.

Part III begins developing the chief claim of this Article. To do so, it first takes a detour to glean two key lessons from the well-trodden history of the federal criminal legal system’s multi-decade experiment with a mandatory guidelines system. It draws two primary lessons from that history. First is that multiple institutional actors--judges, legislatures, and prosecutors--all cause sentencing disparities. Second is that the Judiciary and the Sentencing Commission tend to focus only on judge-caused disparities when considering changes to sentencing law and policy, and that this partial view has had detrimental effects on sentencing policy.

Part IV brings the Article back to RIS and argues that courts on both sides of the circuit split are repeating a now-familiar analytical error: In assessing the effects of increasing judicial discretion to reduce sentences, they are ignoring disparities caused by the Executive Branch. In making this argument, the Article combines a qualitative analysis of hundreds of district court RIS decisions with quantitative data produced by the Sentencing Commission. It concludes that once prosecutor-caused disparities are accounted for, individualized sentence reductions can have an equalizing effect on sentencing outcomes.

Finally, in Part V, the Article considers the doctrinal and policy implications of its analysis of RIS. From a doctrinal perspective, this analysis offers a potential path for district courts and the Sentencing Commission to continue to cure disparities with RIS, even if the Supreme Court were to decide that nonretroactive changes in the law cannot form the basis of such reductions. This Article’s analysis also provides broader lessons about the power--and limitations--of judicial second-look laws as levers of sentencing policy. The case of RIS shows that even if it is implemented unequally by different judges, an individualized and discretionary tool of judicial second looks can have important systemic effects: It can be a lever of both decarceration and equality in sentencing outcomes. That is, it is the rare sentencing tool that can achieve the “leveling down” of sentencing outcomes. Furthermore, courts applying the more muscular vision of RIS relief found a tool that achieved something scholars of federal sentencing policy have long sought: a means for courts to check the unbridled charging discretion of federal prosecutors. This is not to say that judicial second looks are a cure-all to the crisis of mass incarceration or the disparities that plague sentencing outcomes. But the case of RIS shows that while it is an imperfect mechanism, back-end judicial resentencing can function as one powerful tool in a broader, multi-institutional project of decarceral mercy.

[ . . . ]

The case of RIS bucks the decades-long discourse that has placed individualized mercy and sentencing equality in tension. RIS is a tool with which some federal district courts have managed to simultaneously achieve three results: they have checked the sentencing power of the political branches, reduced thousands of years of prison time, and remedied disparities--including racial disparities. Without acknowledging it, these courts quietly discovered an individualized sentencing tool that reduced incarceration while simultaneously promoting sentencing equality. This is not to say that judicial second looks can achieve enough scale to singlehandedly cure the crisis of mass incarceration or the disparities that plague sentencing outcomes. But the case of RIS shows that while it is an imperfect mechanism, judicial resentencing can function as one powerful tool in a broader, multi-institutional project of decarceral mercy.

Binder Clinical Teaching Fellow, UCLA School of Law.