Criminal sentencing is a flawed process. The question is what to do about it. This is a difficult question, especially when there is no consensus across the nation’s sentencing landscape, either at the federal or state level, about the real purpose of sentencing—punishment or rehabilitation. In effect, “lock ‘em up and throw away the key” or train them for successful reentry into the community.


A December 9, 2016 New York Times article, written Timothy Williams, discusses the reality that significant reduction of the nation’s prison system will necessarily require releasing violent offenders who have “done their time” and no longer pose a threat to society.  Thus, the “riddle of prison sentencing” is revealed.


Inequities in Criminal Sentencing


Why does a defendant in one state receive a 10-year sentence for stealing a goat while a defendant in another state receives a 5-year sentence for a violent carjacking?


That’s the riddle—the system’s inability to either remove or control the racial bias or personal/political agendas harbored by some criminal court judges that lead to shockingly disparate sentencing which undermines the integrity of the nation’s sentencing process.


The Times article pointed to the following reasons why the sentencing riddles even exists:


“Sentencing laws approved by Congress and state legislators – which are often the basis for long prison terms – have been a target of critics, who say that the measures have been a primary driver of mass incarceration. The laws are a hodgepodge: Judges in some states are mandated to abide by guidelines with little leeway, but elsewhere are permitted to virtually ignore them. Sentences can vary significantly from case to case depending on circumstances, including how violent a crime was or whether a firearm was used. The result is that a crime in one state is often punished far differently for the same crime in another.”


Hodgepodge of Criminal Laws Contribute to Mass Incarceration


For example, a federal judge in fashioning a criminal sentence must pay deference to the seven sentencing factors spelled out in 18 U.S.C. § 3353a and must consider (even though the U.S. Sentencing Guidelines are advisory and not mandatory) the sentence recommendation contained in a Presentence Investigation Report prepared by the U.S. Probation Department in accordance with those Guidelines.


A Texas judge, on the other hand, has a specific, often very wide, sentencing range for imposing a criminal sentence dependent upon the degree of the felony. There are five categories of criminal offenses in Texas: state jail felony, third degree felony, second degree felony, first degree felony, and capital felony. Each category has a mandatory minimum to a maximum sentencing range from which the judge may fashion a sentence depending upon the circumstances of each given offense.


The Texas sentencing scheme leads to significant disparity in sentencing. For example, there are geographic disparities—judges in rural errors imposing harsher sentence than their counterpart in larger urban areas because they have a more politicized view of law-and-order.


Federal sentencing suffers from the equally troublesome feature of preventing judges from adequately considering unique characteristics that beg for leniency for certain offenses and certain offenders.


Strict Guidelines and No Rehabilitation


In 1984, the U.S. Congress decided to embrace the spreading popular notion of “truth in sentencing” (TIS) with the Sentencing Reform Act (SRA). TIS require that an offender must serve the majority of his or her sentence before reaching release eligibility.  The State of Washington actually passed the first TIS legislation earlier in 1984. Congress followed suit with the SRA which effectively abolished parole eligibility, mandated that strict Sentencing Guidelines be established, and that the concept of rehabilitation be removed from the federal sentencing scheme.


Increased Federal Funds for Increased Prison Time Served


In 1994, through the Violent Crime Control and Law Enforcement Act, Congress established the Violent Offense Incarceration and Truth In sentencing Program which authorized funding for additional state prisons and jails to accommodate the inevitable increase in prison/jail populations generated by TIS legislation.


Over the next four years, some 27 states and the District of Columbia satisfied the TIS criteria for receiving federal funding. The nation’s prison system effectively became a “prison industrial complex.”


Before the advent of TIS, the Bureau of Justice Statistics reported that an offender served on average 44 percent of his/her sentence before being released. TIS laws require the offender to serve at least 85 percent of his/her sentence before being released. Some states, like Louisiana, require that the offender serve the remaining 15 percent of his/her sentence on what is known as “goodtime/parole supervision.”


Similarly, a federal judge is authorized to impose an additional period of “supervised release” on offender requiring that he/she remain under a probation-like supervision for a specific number of years to a lifetime of supervision.


Explosion in Incarceration Rate, Up 500%


The inevitable fallout of the TIS laws was an explosion of nation’s incarceration rate—an increase of 500 percent that now has 2.2 million people locked up in federal and state prisons and jails. The U.S. now has the highest incarceration rate in the world. Funding this incarceration rate has taken a deepening toll on both federal and state budgets to the point that states are now spending more money on inmates than college students.


Cost Spur Sentencing Reform


Since 2007, more than 28 states, including Texas, have embraced what is now commonly known in our justice system as “justice reinvestment.” An October 2015 Georgetown Public Policy Review article described this reform movement as:


“Simply put, this justice reinvestment movement applies the principals of cost-efficiency and evidenced-based programing to sentencing and corrections policy. It is an effort by states to introduce multiple and significant, if not always comprehensive, reforms to their criminal justice systems based upon evidence of what works in decreasing incarceration rates, containing costs, and reducing recidivism. Many states formed commissions and task forces to review their current criminal justice systems and make recommendation to stop or reverse the long-term trending growth in corrections expenditures, while reducing recidivism and maintaining public safety. Already, several states netted savings in millions with hundreds of millions more projected over the next five to 10 years. Several closed prison for the first time in decades. Though the available date and research to date are not yet conclusive, the tide of justice reinvestment is bringing much needed optimism to a long troubled policy area.”


That “optimism” has already begun to wane in rural America where communities believe hordes of violent or otherwise threatening offenders are being released to ply their criminal trade in their neighborhoods. These beliefs are premised on the notion that over the past 40 years while the incarceration rate increased, the rate of crime dramatically decreased. Their conclusion: long-term incarceration reduces the crime rate.


Report Finds Reduced Incarceration Rates and Reduced Crime Rates


This conclusion is not supported by the evidence. A recent report released by the Brennan Center for Justice found that while the 27 states, including New York and New Jersey, reduced their incarceration rates between 1999 and 2012, they simultaneously reduced their crimes rates faster than the national rate. There is simply no credible, empirical evidence which shows that TIS laws are responsible for the corresponding crime decrease in the country.


Report Calls for 25% Reduction in Sentencing


This prompted the Brennan Center called for a 25 percent reduction in sentencing in the seven major crimes that, as the Times reported, “make up most of the prison population: aggravated assault, murder, nonviolent weapons offense, robbery, serious burglary, serious drug trafficking and sexual abuse.”


The American Civil Liberties Union has called for a 50 percent reduction of the nation’s prison population by 2020. President Barack Obama, Families Against Mandatory Minimums, and the U.S. Sentencing Project have all lobbied for reduced sentencing for non-violent offenders. These calls will likely fall on deaf ears of the incoming Donald Trump administration. His Attorney General pick and his top advisers all believe that communities are made safer through tough sentencing and long-term incarceration policies brought about by military-style policing and overzealous prosecution.


Sentencing Reform Doubtful Under Trump Administration


We have repeatedly called for sentencing reform, but uncertainty about the Trump administration’s policy dealing with incarceration and sentencing does not offer much hope that these reforms will ever be implemented. The stock in private prisons went off the charts the day after Trump was elected and fanatical law-and-order officials like Milwaukee Sheriff David Clarke are salivating over the prospect of more federal funding to further militarize their departments.


Criminal defense attorneys, especially at the federal level, now face an impending modern day “Dark Age” in courtrooms across the country. We know that our brethren in the criminal defense bar are girding up to take on the incoming prosecutorial bullies in a Jeff Sessions Justice Department: we will not flinch a muscle, give an inch of ground, or blink in a stare down with the new U.S. Attorney and his notions to “pursue justice.”