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February 18, 2012

Highlights from DOJ testimony to US Sentencing Commission about federal sentencing concerns

I cannot even hope to summarize all the interesting stories emerging from the US Sentencing Commission hearing on Thursday concerning the operation and potential reform of the modern post-Booker federal sentencing system.  But, in addition to once again urging all federal sentencing fans to review all the written testimony from the hearing (linked via the official agenda here), I can also highlight some notable passages from this written testimony from the Justice Department.  Though the entire testimony ought to be reviewed closely, these passages especially caught my attention:

We are now on a funding trajectory that will result in more federal money spent on imprisonment and less on police, investigators, prosecutors, reentry, and crime prevention.  At the same time, state and local enforcement and corrections budgets are under severe strain.  Taken together, and given the scale of current federal imprisonment penalties, we do not think this trajectory is a good one for continued improvements in public safety.

Prisons are essential for public safety.  But maximizing public safety can be achieved without maximizing prison spending.  And in these budget times, maximizing public safety can only be achieved if we control prison spending.  A proper balance of outlays must be found that allows, on the one hand, for sufficient numbers of investigative agents, prosecutors and judicial personnel to investigate, apprehend, prosecute and adjudicate those who commit federal crimes, and on the other hand, a sentencing policy that achieves public safety correctional goals and justice for victims, the community, and the offender.

This is all relevant to federal sentencing, because the federal prison population remains on an upward path.  Given the budgetary environment, this path will lead to further imbalances in the deployment of justice resources....

One way to reduce prison expenditures is to reduce the total number of prisonyears that inmates serve in the Federal Bureau of Prisons.  To that end, the Department has proposed limited new prison credits for those offenders who behave well in prison and participate in evidence-based programs with proven records of reducing recidivism.  We believe this is one example of a responsible way to control prison spending while also reducing reoffending.... 

We believe mandatory minimums in certain areas are not only reasonable, but are an essential law enforcement tool to increase public safety and provide predictability, certainty and uniformity in sentencing.  At the same time, we recognize that when the severity of mandatory minimum penalties is set inappropriately, consistent application is often lost and just punishment may not be achieved.  The Commission’s report reached the same conclusion.

There are also interesting passages about post-Booker disparities and the role of offender circumstances at sentencing in this DOJ testimony.  And all of the themes in this testimony seem certain to play a role if (and when?) talk of significant sentencing reform (and even a big "Booker fix") moves forward in the US Sentencing Commission and/or in Congress.

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February 18, 2012 at 09:31 AM | Permalink


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Having been in DOJ in both career and appointed positions, and having served in administrations of both parties, I would just make two observations here.

First, take a look at the second paragraph Doug quotes. Its tacit premise is that federal criminal justice spending is a zero sum game or something very close to it -- if we're going to have enough agents, we have to trim prison spending and so forth.

That is very likely true in this administration, but it doesn't have to be true, not at all. In the gigantic federal budget, criminal justice spending is a pitance. In addition, this is not an administration that has any qualms about borrowing from the future to shovel lots of money to its constituents (i.e., those dependent on government). Obama's (fraudulent) budget is 1.33 trillion in the hole as submitted. Would anyone care, or even notice, if it were 1.38 trillion, and the added 50 billion went to BOTH more prison spending AND hiring more agents?

The question answers itself. Let's get real. This DOJ is chock full of people sympathetic to the defense view of things. Many of them, including the AG, wrote SCOTUS briefs in favor of the defense in the years just before they got appointed. When they leave, they're going right back to white shoe firms that will continue to churn out such amicus briefs as a matter of course (either that or they'll go to academia, which is overwhelmingly pro-defense).

The reason criminal justice spending is treated as a zero sum game is that the powers that be at Main Justice WANT to treat it that way. If it were Solyndra, does anyone think it would get the zero sum treatment?

In short, given the administration's well established penchant to borrow endlessly for things it actually cares about, the idea that prisons have to be cut to fund other areas is preposterous.

My second observation is that the "a-little-of-this-and-a-little-of-that" affect of the government's testimony, in which ideas and directions are hinted at but never really said out loud or made very specific, was produced by more than the usual penchant for governmentese. I suspect that it was brought about by a continuing struggle in the Department between conscientious career people, who would prefer to see the anti-crime gains of the last two decades not get entirely thrown away, and the political appointees, who couldn't be happier to throw them away but don't want their eagerness to do so to be too obvious.

Posted by: Bill Otis | Feb 18, 2012 2:07:52 PM

"Prisons are essential for public safety."

Thank you. Finally, a lawyer understands.

Posted by: Supremacy Claus | Feb 18, 2012 5:26:33 PM

Bill -- Take a look at what congressional appropriators have decided to spend on the DOJ budget over the last several years. It is has been a constant $27 billion. And the Republican appropriators in the House have voted for lower spending. The President's budget for FY 2013 also seeks $27 billion for DOJ, and I'm confident the House Republicans will appropriate less than that.

Federal public safety spending has been a zero sum game for the past few years and will be shrinking soon. Whether President Obama is reelcted or not, that is the reality. Under a President Santorum, public safety spending would shrink faster. This is not a political matter. So what would you do with a shrinking public safety spending pie?

Posted by: Realist | Feb 18, 2012 5:50:41 PM

I have been searching to find something on changing the sentencing to fit the crime. Child Porn, I know is controversial, but if you are charged with 1 count and 4 images and being a first offense you get 36 months in federal prison. I am a sister of a person this has happened to. The forensic psychologist said he was no danger to society or children. The Prosecutor didn't know why he was even there to be sentenced, the Judge did not know how long to sentence him. Since it was a first time offense, I believe he should have gotten mandatory 2-3 years probation, mandatory therapy, no internet or Satellite TV for life. All he is doing in prison is working 7-3 and that's it. No therapy of any kind. At least if he was out he would get therapy, and he would be working. I have to put in his prison account $50.00 a week so he can get commissary, because the food is not fit to eat. A lot of the food is expired. Please let me know what I can do to help change the sentencing laws for child porn and make it differentiate the charges for each person.

Thank you

Posted by: Janie Lane | Feb 18, 2012 6:02:18 PM

Adverse facts in sentencing must be proven beyond a reasonable doubt, so says Booker.

Small problem. In 95% of cases, the adjudicated, plea bargained charge is fictional. The lawyer has no problem with accepting fiction in serious tribunals. After all, the lawyer accepts supernatural doctrines after the cult indoctrination of law school.

So nothing the lawyer does to make sentencing more uniform and even across geography can ever overcome the fictitious nature of the charges. In the case of the guilty defendant, huge discounts are offered. In the case of the innocent defendant, you are punishing the wrong guy, who has accepted a plea bargain after the vicious game playing of the government prosecutor.

So, the goal is uniformity, but across fictions. These fictions include the false guilt of the innocent defendant.

What will never be considered by the criminal dependent lawyers involved in this ridiculous exercise is the lawyer is unfit to protect the public from crime, and should lose that job. How about replacing this incompetent with experts in public safety?

Posted by: Supremacy Claus | Feb 18, 2012 9:37:24 PM

Janie: The lawyer controls the government. They will listen to appease you, and to get you to leave quietly. There is nothing anyone can do to overcome the relentless campaign of the lawyer to generate make work jobs for lawyers. This is an exercise in rent seeking, and you are asking people to give up their salaries, their make work jobs. That will never happen without violence directed against these members of history's greatest criminal syndicate. A strong executive will have to round them up, try them fairly for one hour, and dispatch them to the next world.

Posted by: Supremacy Claus | Feb 18, 2012 9:41:33 PM


In testimony before the Sentencing Commission this past week, A DOJ spokesman justified the CP Guidelines by lying to the commission that 80% of those who view CP(note he did not say were prosecuted for because they are not one and the same) have or will molest a child. A lot of government and DOJ apologists ate this crap right up.

Insist on honest legislators, prosecutors and LE. They become fewer everyday.

And tell John Walsh and Ernie (I really don't do much good but pretend to and collect a lot of money) Allen to quietly disappear.

And never give up. I won't.

Posted by: albeed | Feb 18, 2012 10:32:43 PM

Nothing unusual there albeed the govt has been lieing though it's teeth about sex offences since the 2002 u.s supreme court decision that made their illegal persecution....legal.

Posted by: rodsmith | Feb 19, 2012 1:31:40 PM

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