« Notable capital habeas echo from Firth Circuit after complaint about Judge Jones | Main | Not surprisingly, early buzz about a possible plea for Cleveland kidnapper Ariel Castro »

June 12, 2013

"What the Sentencing Commission Ought to Be Doing: Reducing Mass Incarceration"

The title of this post is the title of this notable new article by Judge Lynn Adelman available via SSRN.  With three new members of the US Sentencing Commission, the piece is especially timely, and here is the abstract:

The United States presently incarcerates about 2.3 million people.  We imprison people at a higher rate than any other country and now house more than a quarter of the world’s prisoners.  Incarcerating so many people raises important moral issues because the burden of incarceration is borne largely by minorities from impoverished inner city communities. Further, those incarcerated suffer detriments that go far beyond the legislated criminal penalty and doom many offenders to a continuing cycle of re-incarceration. Over-incarceration is also very costly.

The federal government contributes significantly to this problem.  Every week it locks up a record number of people, presently about 216,000.  While some states have recently reduced their prison populations, the federal prison population continues to increase.  The principal reason for this is federal sentencing law. Since Congress enacted the Sentencing Reform Act (“SRA”) creating the Sentencing Commission and directing it to establish sentencing guidelines, the average federal sentence has more than doubled.  Federal prisons are now at 138% of capacity and consume an ever-increasing share of the federal criminal justice budget.

There are only two ways that we can reduce the prison population: by sending fewer people to prison and imprisoning people for shorter lengths of time.  Many observers believe that the sentences called for by the federal sentencing guidelines, which were mandatory until 2005 when the Supreme Court decided United States v. Booker and made them advisory, are too severe and could be significantly reduced without endangering public safety.  The Commission, however, has shown no interest in making guideline sentences less harsh. Rather, its principal concern is that since Booker judges are imposing too many below guideline sentences and thereby creating disparity.  Thus, it recently asked Congress to require sentencing judges to give additional weight to the guidelines and provide additional justification for sentences varying substantially from the guidelines, and to require appellate courts to presume the reasonableness of guideline sentences and to strictly scrutinize sentences based on policy disagreements with the guidelines.  These restrictions would, of course, increase the federal prison population.

My essay argues that it serves no useful purpose for the Commission to continue to make its top priority curtailing judicial discretion in the name of reducing disparity.  I contend not only that the system created by the SRA and the guidelines failed but that any system principally designed to reduce disparity will fail.  I argue that, instead of attempting to curtail judicial discretion, the Commission should focus on the problem of over-incarceration.  The Commission is statutorily authorized and institutionally well-positioned to address this problem and, by doing so, it could have a positive impact on the entire American criminal justice system.  I propose that the Commission take such actions as modifying the guidelines to expand the use of probation, reducing the severity of numerous guidelines, developing a release program for elderly prisoners, lobbying Congress regarding mandatory minimum sentences, calling public attention to over-incarceration and others.  I also contend that if the Commission is intent upon reducing disparity, the best way to do so is by making the guidelines less severe and thus making it more likely that judges will follow them.

Some recent related posts:

June 12, 2013 at 09:49 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e201910343074f970c

Listed below are links to weblogs that reference "What the Sentencing Commission Ought to Be Doing: Reducing Mass Incarceration":

Comments

Judge Adelman is correct. He echoes Justice Kennedy's observation that “our punishments [are] too severe; [and] our sentences too long... the sentencing guidelines are responsible in part for the increased terms....[and they] should be revised downward.” August 9, 2003 Speech ABA Annual Meeting, http://www.abanews.org/kencomm/amkspeech03.html; see United States v. Bannister, 786 F.Supp.2d 617 (E.D.N.Y.,2011) (“ One of our most thoughtful jurists reminds us, “[o]ur resources are misspent, our punishments too severe, our sentences too long.” ).

The opinon of Judge Adelman and Justice Kennedy's is supported by many scholars and jurists. See e.g., Frank O. Bowman, III, “The Failure of the Federal Sentencing Guidelines: A Structural Analysis” 105 Columbia. L. Rev. 1315 (May, 2005) (“At or near the root of virtually every serious criticism of the guidelines is the concern that they are too harsh, that federal law requires imposition of prison sentences too often and for terms that are too long”).

Eric Holder has recently emphasized the same point. In a speech on April 5, 2013 delivered at the 15th Annual National Action Network Convention, he stated that “[t]oo many people go to too many prisons for far too long for no good law enforcement reason.” found at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130404.html. He observed that sentences that are too long “breed disrespect for the system, and are ultimately counterproductive.” Id.

It is no secret that sentences in America are longer than in many other countries. Professor Michael Tonry has stated that “contemporary policies concerning crime and punishment are the harshest in American history and of any Western country.” Michael Tonry, The Handbook of Crime And Punishment (Oxford Press 1998) paperback ed. at page 3. See Bannister, 786 F.Supp.2d 617 (E.D.N.Y. 2011) (“For the same crimes, American prisoners receive sentences twice as long as English prisoners, three times as long as Canadian prisoners, four times as long as Dutch prisoners, five to 10 times as long as French prisoners, and five times as long as Swedish prisoners.”).

I strongly support Judge Adelman's proposal that "the [Sentencing] Commission take such actions as modifying the guidelines to expand the use of probation, reducing the severity of numerous guidelines, developing a release program for elderly prisoners, lobbying Congress regarding mandatory minimum sentences, calling public attention to over-incarceration and others." I also joinin his observation "that if the Commission is intent upon reducing disparity, the best way to do so is by making the guidelines less severe and thus making it more likely that judges will follow them. "

Posted by: Michael R. Levine | Jun 12, 2013 1:11:01 PM

Mr. Levine might do well to research the logical fallacy of the appeal to authority.

Posted by: Anon | Jun 12, 2013 2:54:46 PM

Anon, as a lawyer, Mr. Levine is trained to appeal to authority. But he could strengthen his point by also appealing to common sense: our sentences are too damn long and, in many instances, draconian.

Posted by: onlooker14 | Jun 12, 2013 3:46:34 PM

Anon, you say that Mr. Levine has committed a logical fallacy of appealing to authority. But he also cites Bannister, 786 F.Supp.2d 617 for the empirical proposition that for the same crimes, American prisoners receive sentences twice as long as English prisoners, three times as long as Canadian prisoners, four times as long as Dutch prisoners, five to 10 times as long as French prisoners, and five times as long as Swedish prisoners.” This is an appeal to experience, not authority. Do you dispute this empirical statement? If so, please give your citations. (But please, do not appeal to authority).

Posted by: Dave from Texas | Jun 12, 2013 3:50:30 PM

Anon, Whatever they appeal to, Adelman and Levine are right. In 2003 the Sentencing Commission issued a report finding that “73.7% of district judges and 82.7% of circuit judges said that federal drug-trafficking sentences are inappropriately severe. U.S. SENTENCING COMM’N, SURVEY OF ARTICLE III JUDGES ON THE FEDERAL SENTENCING GUIDELINES exhbs.II-4, III-4 (2003) ; http://www.ussc.gov/judsurv/jsfull.pdf --many of these judges were more conservative than me (and that's damn conservative). Is that an appeal to authority? So what.

We don't need to spend more tax money on warehousing these folks if there are better ways.

Posted by: Tough Conservative | Jun 12, 2013 3:58:33 PM

Anon, you write that "Mr. Levine might do well to research the logical fallacy of the appeal to authority." But he has ample empirical support. In U.S. v. Jaber, 362 F.Supp.2d 365 (D. Mass. 2005), the court found that that in formulating the sentencing guidelines "the Commission simply took the average national sentences for a given offense, and then increased them, without explanation, much less scientific studies.” If the judge's finding is correct , the finding is strong empirical support for Adelman and Levine's position that the sentences prescribed by the guidelines are too long.

Posted by: anon3 | Jun 12, 2013 4:05:49 PM

Judge Adelman and Mr.Levine make persuasive arguments to reduce the length federal sentences.

Posted by: not a lawyer | Jun 12, 2013 5:13:31 PM

Not only should a reduction in range for certain criminal prosecutions be considered and recommended, total abolishment of the Sex Offender Registration laws as they are currently written are AN ABSOLUTE MUST! Never has so much costly BS been imposed on so many by representatives who are guilty of adultery, which is more criminal than many offenses which will put you on the registry. Still, it makes "lawmakers" FEEL justified about themselves.

If these laws are "civil" in nature, irrationality is king.

Posted by: albeed | Jun 12, 2013 6:15:52 PM

Judge Adelman writes: "The United States presently incarcerates about 2.3 million people. We imprison people at a higher rate than any other country and now house more than a quarter of the world’s prisoners." Shame on us! Shorten the sentences.

Posted by: Law Clerk | Jun 12, 2013 6:50:52 PM

Headline 1: "Dog Bites Man."

Headline 2: "Ideological Judge Wants More Power for Himself."

Posted by: Bill Otis | Jun 12, 2013 11:39:24 PM

« sigh »

Docile Jim Brady . MBA*

*Master of Beautiful Anonymity

Posted by: Just Plain Jim | Jun 13, 2013 7:14:14 AM

Bill Otis writes ""Ideological Judge Wants More Power for Himself."

Better that than prosecutors arrogating more power to themselves.

Posted by: former prosecutor | Jun 13, 2013 9:49:19 AM

Headline #3: Bill Otis doesn't like the left, launches ad hominem attack on person's ideology rather than address issues.

Headline #4: World Yawns and Asks: What else is new?

Posted by: Matt | Jun 13, 2013 11:49:23 AM

Another reason to shorten sentences is the devastating effect prolonged incarceration has on innocent children. Just picked up the following article from the Huffington Post on what Sesame Street is now doing for kids who have a parent incarcerated:

"Sesame Street is no stranger to controversy. From divorce to AIDS to Bert and Ernie's sexual ambiguity, the show has famously pushed the limits on what preschoolers should know.

Sesame Street's latest hot topic -- incarceration -- debuted this week as an educational kit titled “Little Children, Big Challenges: Incarceration." The package, which consists of stories, tips and activities for caregivers and kids, is designed to act as “an educational outreach initiative for families with children (ages 3 – 8) who are coping with a parent’s incarceration,” the Sesame Workshop website explains.

As The Atlantic's J.K. Trotter notes, the package has so far elicited pretty polarized reactions:

CBS News, which unveiled the effort, praise the attempt to confront the very real issue of children with loved ones in jail: "Sesame Street, in its simple, familiar way, is trying to break [incarceration] down, using imaginary characters to explore — and explain — what was once unimaginable, but now more and more common." (Indeed, the U.S. incarceration rate is the world's highest.) The libertarian magazine Reason, however, saw things a bit differently: "Congratulations, America, on making it almost normal to have a parent in prison or jail.

According to a 2010 study The Pew Charitable Trusts , nearly 2.7 million children are growing up with a parent who is in prison. It's an epidemic that has largely plagued minority communities, though a report earlier this year revealed a reverse in that longstanding trend.

Incarceration rates for black Americans dropped sharply from 2000 to 2009, especially for women, while the rate of imprisonment for whites and Hispanics rose over the same decade, the report, released in February by prison research and advocacy group The Sentencing Project, noted.

No single factor could explain the shifting figures, Marc Mauer, the executive director of the Sentencing Project told The New York Times, but changes in drug laws and sentencing for drug offenses probably played a large role. Other possible contributors included decreasing arrest rates for blacks, the rising number of whites and Hispanics serving mandatory sentences for methamphetamine abuse, and socioeconomic shifts that have disproportionately affected white women, he added.

What can be explained is what exactly incarceration means and the feelings a young child may have after a parent's gone off to jail, says University of Wisconsin psychologist Julie Poehlmann.

“Half of families say nothing. Another third say the parent is in the hospital or something like that. They don’t know how to talk about it,” Poehlmann said in a release explaining her work as an advisor on Sesame Street's incarceration tool kit. “The more our society can recognize the need to talk about this issue, the less stigmatized these kids will be.”

Posted by: Michael R. Levine | Jun 13, 2013 6:13:25 PM

Matt --

"Bill Otis doesn't like the left..."

Gosh, I apologize. I should know by now that it's required to like the left.

"...launches ad hominem attack on person's ideology rather than address issues."

Ummm, "ad hominem attack on person's ideology" is an oxymoron. Since the attack is on the ideology, it's not on the person.

"What else is new?"

It would be new if you had the guts to give your name, as Michael R. Levine does every single time, but some things are too much to expect.

Posted by: Bill Otis | Jun 13, 2013 7:03:23 PM

The abstract posted in the article is so well written that I am envious. These are my thoughts too. We need to figure out a way to curb Congress and its incessant quest to criminalize every aspect of behavior. They leave nothing to the states. They want to tell the judiciary how to do its job.

Posted by: Liberty1st | Jun 13, 2013 11:37:57 PM

Dave from Texas stated: "Anon, you say that Mr. Levine has committed a logical fallacy of appealing to authority. But he also cites Bannister, 786 F.Supp.2d 617 for the empirical proposition that for the same crimes, American prisoners receive sentences twice as long as English prisoners, three times as long as Canadian prisoners, four times as long as Dutch prisoners, five to 10 times as long as French prisoners, and five times as long as Swedish prisoners.” This is an appeal to experience, not authority."

You are half correct. Using that data is not an appeal to authority, it is an appeal to popularity which is just as bad as an appeal to authority.

Posted by: TarlsQtr1 | Jun 14, 2013 1:18:28 PM

What the Sentencing Commission should be doing is reducing crime.

From earlier comments.

SC, what is your basis for saying the purpose of the USSC is to lower crime rates?

Here is what the federal code says expressly on this front (via 28 USC 991(b)(1)):

The purposes of United States Sentencing Commission are to establish sentencing policies and practices for the Federal criminal justice system that—

(A) assure the meeting of the purposes of sentencing as set forth in section 3553 (a)(2) of title 18, United States Code;

(B) provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices; and

(C) reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process.


I suppose you could argue that a crime rate reduction mandate is implicit in the instructions of (A) and (C) above, but I think that would be a very strained reading of what Congress has expressly said to be the (many) purposes for the USSC.

Posted by: Doug B. | May 1, 2013 10:45:09 AM

Prof. Berman: You may have been a child in the 1970's and 1980's. Rampant criminality caused an outrage and calls for action. In the most successful achievement of the US lawyer profession of the 20th Century, the Congress passed, the "Comprehensive Crime Control Act of 1984." I am sincere in my admiration and congratulations to the profession for dropping the crime rate 40%. I am frustrated it has been scuttled after Booker.

The "Crime Control" Act was sponsored by Southern Democrat Strom Thurman. This is ironic. That Act was followed by an across the board drop in crime, including the murders of black males. So this racist cracker, segregationist, filibusterer, and distance educated lawyer (apprenticing to his lawyer father) saved more black people than anyone in history (over 50,000 not murdered in the past 25 years).

So the historical era of its enactment and the title of its parent legislation imply suppression is a goal.

Posted by: Supremacy Claus | May 1, 2013 7:22:14 PM

Also, one cannot expect, nor even desire SC-style loving candor in statute drafting.

The unsaid, but plain and evident message of the legislation: we cannot trust judges to protect us, and will take their sentencing discretion away. We will replace it by arithmetic formulas. (Admission: I have never correctly calculated a sentence in any test question or practice exercise. I wonder if you have. I do not know if that is a problem in appellate advocacy.)

Judges reacted with anger and hurt feelings from the very beginning.

Posted by: Supremacy Claus | May 1, 2013 7:31:32 PM

Posted by: Supremacy Claus | Jun 16, 2013 8:39:48 AM

Liberty1st --

"The abstract posted in the article is so well written that I am envious. These are my thoughts too. We need to figure out a way to curb Congress and its incessant quest to criminalize every aspect of behavior. They leave nothing to the states."

Wrongo. Just about everything is left to the states. The Dual Sovereignty Doctrine allows the states to make their own criminal law, which of course they do, and the huge majority of criminal prosecutions in this country are undertaken by the states, not the feds.

Posted by: Bill Otis | Jun 16, 2013 3:12:42 PM

Judge Adelman and others on this thread are not very good at math! Using the 216,000 federal inmates that Judge Adelman cites as a benchmark, this means that the federal government only incarcerates 9.4% of the US prison population (216,000/2.3 million). If the Sentencing Commission was able to reduce the federal prison population by 10%, then there would still be 2,278,400 people in prison...rounded off, it still equals 2.3 million!!! If the Sentencing Commission is able to reduce the federal population by 50%, then the US prison population would be 2,192,000 or 2.2 million people...not much of a drop. If the Sentencing Commission would totally eliminate imprisonment on the federal level, there would still be 2,084,000 people in prison, or 2.1 million.

So...Judge Adelman's concentration should be on what the states are doing, to reduce the prison population. One can make the argument that the states follow the feds, but that just isn't the case. This article is much ado about nothing if you look at the actual numbers

Posted by: Kelly | Jun 17, 2013 9:22:37 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB