Sentencing guidelines

  • July 14, 2015
    Guest Post

    by Nkechi Taifa, Senior Policy Analyst, Open Society Foundations, Washington Office

    *This post originally appeared on Open Society Voices

    President Obama changed 46 lives on Monday, commuting the prison terms of individuals who had been locked away serving long sentences for low-level, nonviolent offenses. “These men and women were not hardened criminals. But the overwhelming majority of them had been sentenced to at least 20 years—14 of them had been sentenced to life—for nonviolent drug offenses,” the president said in making the announcement. “Their punishments didn’t fit the crime. And if they’d been sentenced under today’s laws, nearly all of them would have already served their time.”

    I enthusiastically applaud the president’s announcement, as I did with his two prior batches of releases. For more than 20 years now, I have been pushing, along with many other champions of criminal justice change, for reform of the egregiously lengthy sentences for crack cocaine offenses—sentences which were unjust, inconsistently applied, and racially discriminatory.

    I was aware of the use of the executive clemency power to close painful chapters in history, which presidents of both parties have courageously used. John F. Kennedy quietly issued commutations to people given mandatory minimum sentences under the 1956 Narcotics Control Act, widely seen as unnecessarily harsh during his administration. Gerald Ford used his authority to create an executive clemency board to oversee the petitions of 21,000 people convicted of draft-related offenses during the Vietnam War, 90 percent of which were granted.

    President Obama’s commutations this week allow dozens more worthy candidates, many of whom thought they would never again see the light of day, the opportunity to have a second chance. This is phenomenal. But we as a country need to go further, and release the broadest spectrum of prisoners possible without compromising public safety.

  • May 14, 2015
    Guest Post

    by Nicole Fortier, counsel, Brennan Center for Justice

    It’s well known today that the United States is the biggest incarcerator in the world. With five percent of the world’s population, we house nearly a quarter of its prisoners. That’s over two million Americans behind bars. The number of people we imprison has increased over 400 percent since 1980. But in that time the federal prison population grew over 700 percent. Today, it has 208,609 inmates housed within its walls – more than any individual state.  The country now spends $80 billion per year on state and federal corrections.

    This dramatic growth was no accident. It was the direct result of laws passed in the 1980s and 1990s by policymakers hoping to combat rising crime rates. Their solution: over-criminalize and over-punish behavior – particularly at the national level. They expanded federal criminal laws, increased penalties, removed sentencing discretion from judges, and encouraged states to do the same.

    It’s clear that together, these laws cast too wide of a net. But it is important to dig further to understand whom they caught in that net. Exploring the demographics of those in federal prison can help us understand the real consequences of these policy decisions.

  • April 16, 2015
    Guest Post

    by Jed S. Rakoff, U.S. District Judge for the Southern District of New York; Adjunct Professor, Columbia Law School

    *The following is a speech given by the author at the Harvard Law School Conference on Lawyers as Professionals and Citizens on April 10, 2015.

    I have read with great interest the brilliant essay on Lawyers as Professionals and Citizens by Ben Heineman, Bill Lee, and David Wilkins that is the subject of the conference, and I want to build my little talk around the fourth ethical responsibility they enunciate in that essay, namely, the responsibility of lawyers to help create a safe, fair, and just society even when legal issues, in the narrow sense, are not directly at stake.  I want to discuss that responsibility – which I will refer to here simply as the “Fourth Principle” – as it applies to lawyers and as it applies to judges; and while I recognize that the essay that is the subject of this conference focuses particularly on corporate and economic issues, I want to address this Fourth Principle in terms of other issues, such as war and such as imprisonment.

    I was introduced to this Fourth Principle, in effect, as a very junior associate at the New York City firm now known as Debevoise & Plimpton.  When I arrived at the firm in 1970, the leader of the firm, Francis T.P. Plimpton, was just completing his two year stint as President of the New York City Bar Association, then known as the Association of the Bar of the City of New York.  Although that organization was founded in 1870 for the specific purpose of seeking the removal of corrupt judges beholden to the man called “Boss” Tweed, by the middle of the twentieth century the Association had become a somewhat stuffy “Establishment” enclave, widely perceived (though perhaps unfairly) as subservient to the narrow interests of big-firm corporate lawyers.  On paper, Plimpton was more of the same.  Educated at Exeter, Amherst, and Harvard Law School, Plimpton could literally trace his Massachusetts forebears back to 1630.  And his chief fame as a lawyer consisted of being a highly skilled draftsman of corporate debentures – whatever the heck that is.

    But once Plimpton became President of the New York City Bar Association, the real Francis Plimpton emerged: a man of principle and courage, who, more than any other single person, opened that Bar Association to racial and gender diversity, to concern with pro bono representation and public service, and to a focus on broad societal issues.  As Sheldon Oliensis, another prominent lawyer of that time, stated, “He [Plimpton] thought that there was no issue on which the Association could not be heard.”  In a period when much of the legal establishment was reacting negatively to what it perceived as the lawless excesses of the ‘60s, Plimpton not only embraced a very broad view of the role of the lawyer in society, but also saw that role as one of promoting change and progress.

  • March 27, 2015
    Guest Post

    by Nkechi Taifa, Senior Policy Analyst at Open Society Foundations

    I have spent over 25 years working on criminal justice reform issues and the recent Bipartisan Summit on Criminal Justice Reform, co-hosted by an unlikely alliance of Van Jones, Newt Gingrich, Donna Brazile and Pat Nolan, was absolutely colossal. Who would have imagined that a huge hotel ballroom would be packed as early as 8:00 a.m. with federal and local legislators, high administration officials, policy experts, criminologists, researchers, faith leaders, academicians, formerly incarcerated people and millennials – all from both sides of the aisle? The event was an ambitious undertaking – a full day jam-packed with featured presentations, panel workshops, video presentations, and luncheon keynote conversations, with U.S. Attorney General Eric Holder, Secretary of Labor Tom Perez, and Georgia Governor Nathan Deal all sharing their words of wisdom on criminal justice reform. Democratic Members of Congress spoke at the Summit in person, and Republican Members, along with President Barak Obama, made remarks via video. 

    As I sat in the audience, I reflected that criminal justice was no longer the lightening rod it was two decades ago, thanks to a more recent, huge paradigm shift.  Twenty years ago, Republicans and Democrats alike were horrible on criminal justice issues.  Candidate Bill Clinton left the campaign trail to oversee the execution of a mentally challenged man in Arkansas. Every year or so during the early 90s we fought against unwieldy omnibus crime bills, culminating in the “granddaddy” of all the crime bills – the Violent Crime Control and Safe Streets Act of 1994.  This bill expanded the federal death penalty to a level unprecedented in modern times, gutted habeas corpus reform, eviscerated the exclusionary rule, allowed for the prosecutions of 13-year olds as adults, and refused to address the crack/powder sentencing disparity, while implementing a slew of additional mandatory minimum sentences and offering monetary incentives to states to lock up more and more people for longer periods of time in exchange for loads of money to build more prisons. 

  • March 20, 2015
    Guest Post

    by Christopher R. Poulos, President, ACS University of Maine School of Law Student Chapter; Chair, Law Enforcement Assisted Diversion Program Subcommittee, City of Portland, Maine.

    The United States now has more incarcerated citizens both in raw numbers and per capita than any other nation on Earth.  Over two million people are currently incarcerated in the United States, up from around 200,000 as recently as 1975.  The vast majority of prisoners are economically disadvantaged and lack college degrees, and many did not graduate from high school.  The number of minorities incarcerated, particularly black males, is disproportionately larger than their percentage of the general population.  Liberals – and now conservatives, including the Koch brothers and Newt Gingrich – are finally calling attention to the long ignored issue of mass incarceration.  The current focus on this matter by both ends of the political spectrum makes this a ripe time for positive change.

    One way to immediately begin addressing the daunting issue of criminal justice reform generally – and mass incarceration specifically – is to divert eligible low-level offenders away from the criminal justice process entirely.  The program is called Law Enforcement Assisted Diversion (LEAD), and one of its many objectives is to transform and transcend the relationship between police and the residents they serve into something more positive and less adversarial.  The idea began in Seattle and has also taken root in Santa Fe.