What the Sentencing Commission Ought to Be Doing Reducing Mass Incarceration

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.