Lynn S. Adelman is a U.S. district judge for the Eastern District of Wisconsin.
Some of the Democratic presidential candidates have criticized the tough-on-crime legislation enacted during the 1980s and 1990s, arguing that it contributed to the mass incarceration that shames the country today. The candidates and other critics have focused on the 1994 crime bill, which provided incentives for states to build more prisons and impose longer sentences, and the 1986 Anti-Drug Abuse Act, which established harsh sentences for drug offenses, particularly those involving crack cocaine.
The criticism of these provisions is entirely justified. But not enough attention has been paid to another 1980s-era tough-on-crime law that is still very much with us, causing substantial unnecessary incarceration, particularly of African Americans and Hispanics: the 1984 Sentencing Reform Act.
Among its “reforms,” the law eliminated parole for federal offenders and created the U.S. Sentencing Commission that then promulgated the Federal Sentencing Guidelines. The act, the commission and the guidelines have been a disaster, and a debate by lawmakers about their status is long overdue. As a result of the sentencing guidelines, as well as sentencing practices in state courts, the United States is now an outlier not just among democracies but among all nations — including such highly punitive states as Russia and South Africa. Roughly 20 percent of all people imprisoned in the world are imprisoned in the United States (which has 4.27 percent of the world population). Though the rate dropped by 10 percent between 2007 and 2017, according to the Justice Department, it remains unconscionably high. The Sentencing Reform Act, and the commission and its guidelines, contributed substantially to this inexcusable state of affairs. Only one of the seven members of the original commission had any sentencing experience, and all of the commissioners in the 1990s seemed to regard the Justice Department and the most law-and-order members of Congress as their principal constituencies.
The commission established harsh sentencing guidelines and barred judges from putting defendants on probation except in rare instances. Over the next 20 years, the commission regularly amended the guidelines, making them even more severe.
The average federal sentence increased from 28 to 50 months afterward and, with the abolition of parole, the average time that a defendant served increased from 13 to 43 months, according to figures compiled by Kate Stith and Jose A. Cabranes in their 1998 book on federal sentencing guidelines, “Fear of Judging.” Between 1987 and 2019, the federal prison population increased from about 50,000 to 219,000 before dropping to about 180,000. In 2005, with the landmark decision in United States v. Booker, the Supreme Court struck down the mandatory feature of the guidelines, giving judges the opportunity to establish a less punitive sentencing regime. In subsequent decisions, the court made clear that judges had no obligation to follow the guidelines.
Unfortunately, district court judges have largely failed to take advantage of Booker to ameliorate the harshness of the federal sentencing system. After Booker, judges slightly reduced the length of sentences, from 47.9 months in fiscal 2003, to 44 months in 2018. Shockingly, the number of offenders receiving prison-only sentences actually increased, from 83.3 percent in fiscal 2003 to 87.8 percent in fiscal 2018. The sentencing commission could lead the way in pressing judges to take Booker to heart, given the commission’s considerable authority regarding federal sentencing policies, but it has provided little leadership. For too long, the commission has focused instead on trying to minimize inter-judge disparities in sentencing.
The commissioners might better understand the impact of its policies if they ventured outside Washington and held public hearings in urban and rural America about federal sentencing guidelines. Hearing firsthand about the devastating effect on families of the United States’ punitive approach, particularly in drug cases, might open some commissioners’ eyes.
Ideally, the commission would then undertake a top-to-bottom review of the guidelines, with an eye toward recommending as many noncustodial sentences as possible and reducing the length of prison sentences. Putting a dent in federal mass incarceration would set an example for state correctional systems.
In fairness, the commission in recent years has taken some important steps in the right direction. Particularly significant was its 2014 decision to reduce all drug guidelines by two levels and to make the policy retroactive, thereby reducing sentences for some 32,000 prisoners. Congress’s recently enacted First Step Act was another move in the right direction, addressing the disparity in punishment for offenses involving crack and powder cocaine. But more needs to be done to reset a system that has done untold harm over the past three decades. At a minimum, the Sentencing Reform Act should be substantially revised. Congress was foolish to have abolished parole and should overturn that decision. Prisoners should be offered all reasonable incentives to rehabilitate themselves. Taking action in this area would, of course, require political courage. But the public has become increasingly aware of the problems attendant to mass incarceration and seems ready for a frank discussion.