Why Do Federal Judges Send Criminals To Prison?
Sept. 9, 2015 (Mimesis Law) — I don’t know the answer to the titular question. I will try to briefly explain why this is a huge problem and why true sentencing reform needs to answer the question.
I have sent thousands of people to prison over the last 23 years. Between 2007 and 2014—just seven years—I sentenced 1,619 offenders. Almost all (roughly 92%) of them landed in a cage maintained by the behemoth that is otherwise known as your friendly Federal Bureau of Prisons.
I had my reasons. That’s for damn sure.
But now, federal sentencing reform is all the rage. That’s OK by me. My personal view (while sipping cheap white wine on the patio) is this: We have too many people in federal prisons, and we impose sentences that are frequently too long.
Yet when I put on my really cool robe and the clerk says “all rise,” I typically sentence more harshly than the national average of my colleagues. As an example, during the last two fiscal years, for drug trafficking my mean sentence was 113 months and my median sentence was 100 months.* Nationally, and for the same period of time and class of crime, the mean sentence was 70 months and the median sentence was 54 months. For all crimes during the last two fiscal years my mean sentence was 70 months and my median sentence was 51 months. Nationally, the mean was 44 months and the median was 24 months.
I comfort myself with the contradiction between my personal views and my sentencing practices by using magical thinking. I rationalize that I am doing what Congress wants me to do. But in my saner (and more honest) moments I admit that I have no clue whether I am right or wrong about my supposition. And that, dear reader, is strictly the fault of Congress.
Here’s the deal, at the federal level the goals of sentencing are hodgepodge of conflicting and contradictory philosophies. For example, the Sentencing Commission has written:
A philosophical problem arose when the Commission attempted to reconcile the differing perceptions of the purposes of criminal punishment. Most observers of the criminal law agree that the ultimate aim of the law itself and of punishment in particular, is the control of crime. Beyond this point, however, the consensus seems to break down. Some argue that appropriate punishment should be defined primarily on the basis of the principle of “just deserts.” Under this principle, punishment should be scaled to the offender’s culpability and the resulting harms. Others argue that punishment should be imposed primarily on the basis of practical “crime control” considerations. This theory calls for sentences that most effectively lessen the likelihood of future crime, either by deterring others or incapacitating the defendant.
2014 USSC Guidelines Manual, Ch. 1 Pt. A, at p. 4 (2014).
Now, consider what nonsense Congress tells sentencing judges to consider:
(a) Factors to be considered in imposing a sentence.–The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider–
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed–
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for–
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines–
(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and
(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);
(5) any pertinent policy statement–
(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and
(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
I assert that no judge can possibly understand how to sentence a person consistent with the will of Congress given this statute. It is too vague and too long and too contradictory. It is time to junk 18 U.S.C. § 3553(a).
I would draft a far simpler statutory directive. It might read like the following (with apologies to real bill drafters):
The court shall impose a sentence that effectively lessens the likelihood of future crime, either by deterring others or incapacitating the defendant. In so doing, the sentencing judge shall consider the pronouncements of the Sentencing Commission.
I would then enact a separate statute that directed the Commission to draft new Guidelines and policy statements that reflect this directive.
Now, to be fair, the statute could be written this way too:
The court shall impose a sentence that is scaled to the offender’s culpability and the resulting harms. In so doing, the sentencing judge shall consider the pronouncements of the Sentencing Commission.
As before, I would then I would then enact a separate statute that directed the Commission to draft new Guidelines and policy statements that reflect this directive.
Congress and the Sentencing Commission seem to believe that we can have it both ways. They believe that for most sentencing decisions the application of either philosophy—“just deserts vs. “crime control”—will result in the same or a similar sentence. I used to think that was true too. But nearly a quarter century of experience tells me now that is not true.
Let’s take a real life example. Assume we have a relatively low level black male street dealer, who is 24 years old, who is an addict, who carries a gun but has never used it, who has failed in a drug treatment program, who has been raised in a poor neighborhood by a single mother who was also addicted, who can barely read and write, and who has devoted his or her life from age 15 to the sale of drugs.
If we “reform” sentencing, a “just deserts” driven sentencing scheme is likely to “recycle” this offender through the prison system fairly rapidly. In contrast, a “crime control” reform-driven sentencing scheme is likely to incapacitate the offender for a much longer period of time.
While I would select the “crime control” model, I could also accept the “just deserts” model. All I want is for Congress to be clear. As it stands, no one knows why we federal trial judges send people to prison. Unless we get at the primary purpose of sentencing, reform is not likely to change much.** From where I sit, that is a bad thing.
*The District of Nebraska is only the federal district court that makes available to the public sentencing statistics prepared by the Sentencing Commission for each judge. For my sentencing statistics, see here (scroll down to “Judge Kopf’s Practices and Recusals” and “Sentencing Data”).
**No matter what, statutory minimum sentences for the vast majority of crimes should be eliminated.