guideThe story of our criminal justice system in the past four decades is marked by public fear, political opportunism, and the failure of tough mandatory sentencing policies.

Forty-five years ago, the United States prison population was only a fraction of what it is today. According to a report by JURIST, a respected legal research entity supported by the University of Pittsburgh School of Law, the U.S. prison population has increased eight-fold since 1970.   JURIST cites a  report issued by JFA Institute, a Washington criminal justice research group, which states that in 1970 we had fewer than 200,000 people in prison. By 2006, there were approximately 1.6 million state and federal prisoners. Factor in the roughly 750,000 people imprisoned in local and county jails, and the total figure rises to approximately 2.3 million. Contrast this with China, which imprisons a vastly lower proportion of its citizens. Out of a total population of more than 1.3 billion people, China has just 1.5 million locked up. With 737 people incarcerated per 100,000 persons, the U.S. also leads the world in rate of incarceration, well ahead of Russia which has the next highest rate of 581 per 100,000.  The incarceration rate in all other western democracies is far smaller.

Although the racial and ethnic makeup of our jail and prison population has remained relatively steady (proportionately far higher for non-whites than for whites), the number of women in the system has increased a staggering 757 percent from 1997-2004. It seems surprising that American women in this time period should have suddenly become so criminally inclined.

In any case, one wonders whether this prison boom has succeeded in decreasing crime? JURIST states that, “zealous prosecution and tough sentencing guidelines have done little to curb crime. In fact, most scientific evidence suggests that there is little correlation between fluctuations in crime rate and the rate of incarceration.” So we have a huge increase in our prison population (especially when it comes to women), little empirical evidence that the overall crime rate has decreased, and a huge strain on state and federal budgets. The cost of all this incarceration has has been astronomical.

Given these startling facts, one can only ask: What happened? Why the sharp increase in the number of Americans incarcerated? Were that many more crimes really being committed?

The primary contributing factor has more to do with politics than it does with effectuating fair and appropriate criminal justice. Following the tempestuous decade of the Sixties, in the 1970s and 1980s many politicians from both parties found that running for office on a “get tough on crime” platform was often a sure strategy for success. Voters, fed a steady diet of fear from various public spokespersons and media outlets, were tired of perceived chaos and lawlessness on the streets. So we saw a distinct hard right turn on “law and order” issues. The “War on Drugs” began in earnest. Violent and non-violent crimes alike were pursued with vigilance. In the penal system, the rehabilitation model which had prevailed for decades was cast aside and replaced with a theory of “just desserts” and retribution.

In BENCH & BAR OF MINNESOTA, an Official Publication of the Minnesota State Bar Association, Douglas A. Kelley writes:

For most of our country’s history, the primary role in sentencing was vested in the district court. Congress provided maximum terms of incarceration but allowed federal judges unbounded discretion to sentence offenders from probation, no time at all, to the statutory limit. Recognizing that the typical defendant would serve one-third of the sentence, the judge — with input from prosecutor, the defense, and the probation officer — would fashion the sentence to fit the individual and the crime. Judges were not required to give reasons for their sentences, and so long as they stayed within the statutory maximums, their sentences were not subject to appeal.

By the 1970s, the system came under widespread criticism for disparities in sentencing nationwide. Ironically, it was a federal judge, Judge Marvin Frankel, who lambasted the system as “arbitrary and discriminatory” and proposed a commission on sentencing. Senator Edward M. Kennedy (D-Mass.) was one of the original proponents in Congress of the idea. He joined with Senator Strom Thurmond (R-N.C.) to pass The Sentencing Reform Act of 1984, which established the U.S. Sentencing Commission and charged it with promulgating Sentencing Guidelines.

Senator Kennedy thought that the old regime was unfair to African Americans and other minorities, while Senator Thurmond believed that parole boards in general were paroling prisoners far too early. Both of them may have had a valid point. In the end, however, the cure turned out to be considerably worse than the disease. The road to hell is indeed sometimes paved with the best intentions — especially when politics is involved.

After a tremendous amount of empirical research on the part of the newly formed Sentencing Commission, the Sentencing Guidelines were promulgated, one of its avowed goals being “the need to avoid unwanted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”

In short, the new goal in jurisprudence was uniform sentencing, regardless of differences in specific cases. Following the new mandatory Sentencing Guidelines meant zero flexibility from one case to another. U.S. District Court judges lost virtually all of their former discretion in determining sentences according to each defendant’s unique set of circumstances. To make matters worse, the vindictiveness and retributive obsession of the new “get tough on crime” prerogative shifted into overdrive. Fairness and uniformity did not mean more sensible sentences. Rather, sentences became more draconian. “Three strikes” laws were adopted in certain states, including  California. Within a few years, sentences had risen sharply enough to raise red flags throughout the criminal justice system.

It wasn’t until 2005 that the problem was finally addressed by the U.S. Supreme Court. In a landmark decision, United States v. Booker, 543 U.S. 220 (2005), the Court ruled that the Sentencing Guidelines were no longer mandatory. This effectively restored U.S. District Court judges’ long-lost discretion and gradually the sentencing process regained a measure of humanity. Beleaguered criminal defense lawyers all over country let out a collective sigh of relief, prosecutors gnashed their teeth, law and order politicians raved on television, and thinking judges stopped resigning in disgust.

Skilled defense teams here in Los Angeles and throughout the country are now often able to negotiate far more reasonable sentences for their clients than was the case under the formerly mandatory Sentencing Guidelines. Now, once again, certain crucial facts matter in court. It matters if you were raped and abused throughout your childhood, or were raised in abject poverty. It matters that you may have been a caring and productive member of society prior to falling into error and committing your crime. The Sentencing Guidelines, now advisory, are just one of seven sentencing factors, and although they must be considered in arriving at an appropriate sentence, they are far from controlling.

None of this, however, changes the fact that our 20-odd year misadventure with mandatory sentencing has transformed the United States into the world’s number one police state, if we measure by prison statistics. In the meantime, the harsh truth is that we didn’t make America an appreciably safer place to live. Rather, we made a costly political mistake. By taking an extremely rigid approach to law and order (cloaked in the guise of “fairness”), we adopted mandatory sentencing requirements that proved to be unrealistic, impractical, and unjust. In making this ill-fated turn, we lost track of a crucial element of our justice system, namely, the exercise of judicial discretion and flexibility regarding specific individuals charged with committing specific crimes. The failure was catastrophic. One can only hope that we are finally back on the right track.

Posted by Patrick H. Moore on March 19, 2013




6 Responses to A Failed Legacy: The Mandatory Sentencing Regime

  1. BJW Nashe says:

    I would assume that the huge increase in female incarceration was due to inner city drug crackdown. But I am speculating…

    I was unaware of the impact of the Sentencing Commission on the prison industrial complex. Obviously a disaster.

    Hopefully, more lenient marijuana laws will result in a drawdown of the War on Drugs. But I wonder. Big money and power politics come into play.

  2. Dennis Claxton says:

    Great summary of one of the most important issues in the U.S. that most hardly think about, until someone they know gets caught up in it. A couple quick comments. 1) A major reason this has happened is that we have let the criminal justice system become our unofficial solution for problems resulting from gutting what was already a thin social welfare net. The Los Angeles County jail system is the biggest de facto mental institution in the country. J, not to mention it comes in handy for taking care of many of the long-term unemployed. 2) That the Supreme Court finally addressed the problem with the guidelines is another indication of how congress and the executive continue to abdicate responsibility for tough decisions to a fetishized supreme court whose members are appointed for life.

  3. Dennis Claxton says:

    Great summary of one of the most important issues in the U.S. that hardly anyone thinks about until someone they know gets caught up in it. A couple quick comments: 1) A major reason we have so many locked up is that the criminal justice system has become our unofficial institution to take care of problems caused by the gutting of an already thin social welfare net. For example, the Los County jail system is the biggest de facto mental institution in the country. 2) That it was the Supreme Court that finally addressed (I won’t say solved) problems caused by the guidelines is another instance of congress and the executive abdicating responsibility for handling tough issues to a fetishized court whose members are appointed for life.

    • Patrick H. Moore says:

      This reminds me of those periodic stories in the media that describe an old indigent fellow with an extensive criminal record who purposely commits a crime so that he will be able to receive “three squares” a day and a place to sleep. Since “welfare” is a dirty word in the minds of much of our society, the subterfuge of providing “welfare” to the “have nots” by imprisoning them solves the problem, in a manner of speaking, without infuriating the “rugged individualists.”

      As far as the fact that reform of the Sentencing Guidelines could only be accomplished by resorting to the Supreme Court; this clearly demonstrates how serious the problem of mandatory and draconian sentences had become.

  4. SB says:

    The mandatory sentencing guidelines are one of the most overlooked facets of our justice system today and yet the consequences of having implemented these guidelines cannot be overstated. Undoubtedly, there was a wide disparity within sentencing before the introduction of the guidelines but once introduced, these guidelines represented an unwieldy force and a blow to the court of law. The relaxing of these guidelines has given some leeway for which to consider cases on an individual basis and any extenuating circumstances that may apply, but by now, the mass incarceration of a sizable population of the United States has already permanently altered the landscape of our judicial system.

  5. Patrick H. Moore says:

    Yes, your point is very well taken. The damage has been done and due to the monstrous length of many of the sentences that have already been handed out, hundreds of thousands of inmates will either die in prison or be very old when they get out. The fact that prison health care is generally substandard only adds to their problems.

    With respect to disparity prior to the implementation of the Sentencing Guidelines, it’s true, there was considerable disparity but it tended to be straightened out on the back end; i.e., the parole officers would typically release prisoners back into the community at a reasonable point in time.

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