Dysfunctional Federal Criminal Justice System

 Call me biased for having graduated from the tender care of the United States Bureau of Prisons, but the truth is you are not paying attention to what little the BOP and the US Department of Justice make public.

Nothing I read in What Can Federal Courts Do About Extreme, Outdated Sentences? shocked me, read like fiction, or in any way misrepresented the federal prison system as I knew it.

It’s well-known that federal mandatory minimums result in disproportionate and inflexible prison sentences. These penalties are especially notorious in drug cases, where they’ve contributed significantly to racial disparities in prison. What may be surprising, though, is that many of these sentences continue even after the underlying laws are repealed.

When Congress changes the penalty for a given crime, it doesn’t automatically benefit people already serving time in prison for that offense. Congress must specifically make the change retroactive — which some lawmakers hesitate to do. The result is that hundreds, maybe even thousands of people are in federal prison today serving severe sentences that Congress no longer believes are fair or effective.

A 2022 Supreme Court decision — Concepcion v. United States — raised hope for expanded relief for those still in prison under now-repudiated federal penalties. Instead, there remains a deep disagreement among federal courts over how, if at all, to weigh nonretroactive changes to federal penalties when revisiting a prison sentence. The full contours of the decision’s impact will become clearer with time, but ultimately, correcting unjust and now disavowed sentencing laws will likely require a more comprehensive approach.

I will quibble that federal judges have the backbone to end the very sentences which they can use to justify promotion to the appellate courts. Then, too, there are the judges who started out as prosecutors and think of them still in those positions but wearing black robes.

The article offers two solutions:

First, Congress should put an end to the practice of passing sentencing reforms without making them retroactive. Changes to the federal sentencing law in the last 15 years, whether enacted by Congress or promulgated by the Sentencing Commission, have often been framed as necessary course corrections to ameliorate unduly harsh sentencing structures. There is no moral or practical reason people currently in prison should be exempt from that logic.

Second, the Sentencing Commission recently sought public comment on a new, proposed policy statement governing compassionate release. The proposal included several alternatives for potentially allowing judges to consider a broad range of factors — including recent, nonretroactive changes in sentencing law — when determining whether a person has demonstrated “extraordinary and compelling reasons” for a sentence reduction. Advocates and policymakers should push for the adoption of language that maximizes judicial discretion.

Here, too, my cynicism may intrude. I believe the American people have been terrorized for so long about the war on crime, some even believed Trump's claim of carnage in our cities, they would rather people remain incarcerated regardless of how unjust the sentence has become. 

Your tax dollars at work.

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