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November 6, 2015

"How Federal Judges Contribute to Mass Incarceration and What They Can Do About It"

The title of this post is the title of this notable new article by US District Judge Lynn Adelman and his clerk Jon Deitrich now available via SSRN. Here is the abstract:

Talk of reforming federal sentencing law by eliminating some mandatory minimum sentences is much in the air. The fact is, however, that many federal offenders are unnecessarily imprisoned in cases where there is no mandatory minimum.

This article attempts to expand the conversation about excessive imprisonment by discussing first how the federal sentencing guidelines place far too much emphasis on prison and far too little on sentences served in the community. Next, we discuss federal judges' excessive attachment to the guidelines despite their deep flaws and even after the Supreme Court has made clear that judges are free to reject them. Finally, we propose an approach to federal sentencing that is much less deferential to the guidelines and places much more emphasis on 18 U.S. § 3553(a), the parsimony statute, which requires judges to impose the least punitive sentence necessary to achieve the goals of sentencing.

November 6, 2015 at 10:44 AM | Permalink



Posted by: erstAFPD | Nov 6, 2015 10:56:48 AM

I think that we need to discuss and preach the parsimony statute.

We also need to examine how federal judges are selected. They are the "chosen few" but they are not the best or the brightest.

How about this one. How many of the nine Justices on the U.S. Supreme Court ever represented a criminal defendant in any case and then how many ever tried a criminal case on behalf of a defendant before a jury? I say none. What do you people know on this topic?

Posted by: Jack Mehoff | Nov 6, 2015 11:44:38 AM

Of the nine Justices, how many ever tried a jury case at all on behalf of a party (not as a trial judge)?

We Americans are not so smart to select all these goody two shoes from Harvard and Yale who clerked for some judge and did some janitorial work for some attorney general's office.

Posted by: Jack Mehoff | Nov 6, 2015 11:46:33 AM

"They are the "chosen few" but they are not the best or the brightest." See, e.g., Ronnie Lott. Flagged the Missouri bar, now federal judge.

Posted by: federalist | Nov 6, 2015 1:20:55 PM

Er, Ronnie White.

Posted by: federalist | Nov 6, 2015 1:21:40 PM

Of course, it was this type judicial discretion that led to the mandatory Guidelines in the first place. Sounds to me like some people need to re-read (or read) Judge Frankel's book "Criminal Sentences: Law Without Order." In our new era of advisory Guidelines, we once again have a large disparity between judges in terms of sentences imposed. So, the critical fact in the length of sentence is the judge who draws the case. That's wrong. If I were a betting man, I would bet on a return to some sort of mandatory guidelines in 10 years. In the meantime, we will let the judges run amok.

Posted by: Discretion | Nov 6, 2015 11:18:59 PM

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