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November 15, 2011

AAG Breuer talking up federal sentencing at lawyer summit

Via the DOJ press room, I just saw this posting of remarks by a senior Justice Department official concerning sentencing issues. The posting is titled "Assistant Attorney General Lanny A. Breuer Speaks at the American Lawyer/National Law Journal Summit," and here are some choice excerpts:

Today, there are approximately 218,000 inmates in the federal prison system in the United States, on top of the approximately two million inmates in state prisons and jails.  Given how significant our prison population is, the policy surrounding prison sentences, and our prison system more generally, is tremendously important for each of us.   Whether you practice civil litigation or criminal law, or even if you are not involved in law at all, the way criminal defendants are sentenced, and what happens to them when they are in prison, matters.

Today, our sentencing and corrections policy faces serious challenges.

The first challenge is the degree to which disparities in federal sentencing have increased in recent years.  More than 25 years ago, Congress passed the Sentencing Reform Act of 1984, creating a set of federal sentencing guidelines that prescribed specific sentencing ranges for particular crimes, depending upon the defendant’s criminal history and other factors.  In 2005, however, the U.S. Supreme Court decided in the case of Booker versus United States that federal judges were not bound to follow those guidelines.  Not surprisingly, since the Booker decision, judges have increasingly been sentencing defendants to prison sentences outside the ranges prescribed by the guidelines....

The data show that the district in which a person is sentenced can have a huge impact on how much time he or she spends in prison.  For example, in fiscal year 2010, in the Southern and Western Districts of Texas, judges sentenced defendants to prison terms within the ranges prescribed by the guidelines approximately 71.5 percent of time. At the same time, in the Southern District of New York, judges sentenced defendants to prison terms within guidelines ranges just 32.6 percent of the time.  In short, many prosecutors, defense lawyers, and judges agree that more and more, the length of a defendant’s sentence depends primarily on the identity of the judge assigned to the case, and the district in which he or she is in.

Of course, disparity in sentencing is not necessarily an indication that sentencing policy is broken. Indeed, as Attorney General Holder has said, “ we must . . . be prepared to accept the fact that not every disparity [in sentencing] is an unwelcome one.”

Nevertheless, there is evidence that unwarranted sentencing disparities have been increasing in recent years.  In a report released last year, the U.S. Sentencing Commission found that certain demographic factors -- including race and ethnicity -- were “associated with sentence length to a statistically significant extent” in the post-Booker era....

The second, related, challenge in sentencing and corrections policy I want to discuss with you relates to the effect of today’s budget environment on our prison system and, consequently, on public safety.

As I mentioned, at present there are approximately 218,000 federal prisoners. That represents an increase of approximately 8,000 prisoners over last year, which is consistent with the general trend.  As a result of increasing federal prison populations, prison spending has naturally also been increasing.  Given today’s economic realities, however, federal funds available for law enforcement are decreasing, and are likely to continue doing so for the foreseeable future.  Consequently, maintaining the expanding federal prison population will necessarily consume larger shares of available funds in the years ahead....

The challenges in sentencing and corrections policy that I have been discussing today have, happily, been accompanied by consistently decreasing crime rates. Over the past 20 years, violent crime and property crime have decreased substantially, and this trend has continued in recent years as well.  According to statistics compiled by the FBI, violent crime decreased 5.3 percent nationwide in 2009, and an additional 6 percent in 2010. These decreases are the remarkable achievement of federal, state, and local law enforcement. They are also attributable, at least in part, to strong sentencing policy.

One important way in which the Justice Department has been working to reduce crime -- and must continue to -- is by assisting prisoners with their transitions back into society, through substance abuse treatment, employment and housing assistance, mentoring programs, and in other ways as well.  These efforts are necessary to give released prisoners an opportunity to turn their lives around and, more importantly, to steer them away from committing more crime.

Last year, the Justice Department awarded close to $100 million under the Second Chance Act to support reentry programs; the Department has announced that it will award $83 million dollars in Second Chance Act grants this year.  Our preliminary assessment is that these programs are succeeding.  As Attorney General Holder said when he convened the second meeting of the federal inter-agency Reentry Council with several other members of the Cabinet two months ago, “We must use every tool at our disposal to tear down the unnecessary barriers to economic opportunities and independence so that formerly incarcerated individuals can serve as productive members of their communities.”

I am disappointed (but not all that surprised) that this speech makes mention of the US Sentencing Commission questioned and questionable study from last year suggesting racial disparities have increased since Booker due to the execise of judicial discretion, but makes no mention of the USSC's more recent study noting the racial skew in the application of statutory mandatory minimum sentencing provisions which are primary impacted by the exercise of prosecutorial discretion.  

Under leadership by different Administrations and diverse Attorneys General, the Justice Department is consistently quick to highlight and lament sentencing disparities they claim are the result of (legally regulated and reviewed) exercises of judicial discretion and consistently mute concerning sentencing disparities that clearly result from the claim are the result of (unregulated and unreviewed) prosecutorial discretion.

November 15, 2011 at 11:48 AM | Permalink


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That is the world of the lawyer, a land of fiction.

1) There is no real race in the US. There are no real black people, except for recent immigrants from the Caribbean or Africa. Those immigrants are very dark, but doing better than white people in Census data. What remains are half white trash pseudo-blacks, really American South Americans, not African Americans. Send some of these turkeys to Africa, they would be beaten with sticks every day for their attitudes and buffoonery.

2) In 95% of cases the adjudicated charge is fictional from a plea bargain. So the crime has no reality. It is unrelated to the actual crime of arrest. it is unrelated to the hundreds of other serious crimes committed by the vicious predator fully protected by the lawyer.

3) Those prisoners come from a meat grinder environment, and have superior survival and social skills than the judges on the bench. They do not need rehab, they are already superior in their functioning.

The cause for crime is that it is profitable, feels good, and is fun. The lawyer is too stupid, on purpose, to figure that out. This is not mere stupidity, but bad faith, to generate government make work jobs, especially for lawyers.

Posted by: Supremacy Claus | Nov 16, 2011 5:44:38 AM

I don't remember the research, but sentencing begins long before the defendant stands before the judge. Is the crime reported - does law enforcement investigate - does law enforcement arrest - is the suspect charged? Now the greatest variable and the one most related to the sentence - What does the prosecutor charge, and how are the charges used for the plea, or regretably the trial.

When the judge has his day a large percent of the sentence is already settled. There is very little discussion of influences in sentencing beyond the judge and it is doubtful that the department of justice would like to address the role of the prosecutor.

Posted by: beth | Nov 16, 2011 11:51:50 AM

Supremacy Clause,
Is it possible for you to stick the the subject at hand without the racist remarks or the nonsense you often rave about...? My goodness!
If you have nothing good to say then say nothing at all....

Posted by: FED UP | Nov 16, 2011 1:48:49 PM

I wish Prof B. would find it appropriate to block sexist/racist trolls from his blog.

Posted by: fed up 2 | Nov 16, 2011 3:05:11 PM

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