Were we to enter the hidden world of punishment, we should be startled by what we see. Consider its remarkable scale. The nationwide inmate population today is about 2.1 million people. In California, even as we meet, this State alone keeps over 160,000 persons behind bars. In countries such as England, Italy, France and Germany, the incarceration rate is about 1 in 1,000 persons. In the United States it is about 1 in 143.It is no secret why this has happened. Since about the mid-1970s, Congress and the state legislatures have routinely stiffened the criminal codes, mandating generally longer sentences and reduced opportunities for parole. (The federal system abolished parole entirely, meaning that an unreasonably harsh sentence can almost never be corrected afterwards.) The trend is less pronounced at the state level, because states usually need to raise taxes to build new prisons. Indeed, as states face decreasing tax revenues in light of sluggish or negative job growth, many are enacting shorter sentences as a way of reducing correctional budgets.
We must confront another reality. Nationwide, more than 40% of the prison population consists of African-American inmates. About 10% of African-American men in their mid-to-late 20s are behind bars. In some cities more than 50% of young African-American men are under the supervision of the criminal justice system.
While economic costs, defined in simple dollar terms, are secondary to human costs, they do illustrate the scale of the criminal justice system. The cost of housing, feeding and caring for the inmate population in the United States is over 40 billion dollars per year. In the State of California alone, the cost of maintaining each inmate in the correctional system is about $26,000 per year. And despite the high expenditures in prison, there remain urgent, unmet needs in the prison system.
The federal government faces no such constraints. Its capacity to rack up deficits is essentially limitless, and the Justice Department budget — staggering though it is — pales to other budget-busters like defense and entitlements. It’s therefore not surprising that, where the same crime can be prosecuted at either federal or state level, the federal sentence is nearly always higher. It is usually a lot higher. Justice Kennedy again:
Consider this case: A young man with no previous serious offense is stopped on the George Washington Memorial Parkway near Washington D. C. by United States Park Police. He is stopped for not wearing a seatbelt. A search of the car follows and leads to the discovery of just over 5 grams of crack cocaine in the trunk. The young man is indicted in federal court. He faces a mandatory minimum sentence of five years. If he had taken an exit and left the federal road, his sentence likely would have been measured in terms of months, not years.It is difficult to fathom the public policy benefit of locking up a kid for five years, with no possibility of parole, when his offense is one he has inflicted upon himself. Mind you, I’m not suggesting that the kid deserves any awards for screwing up his life with drugs, but screwing up his life with prison is not any improvement. Justice Kennedy continues:
United States Marshals can recount the experience of leading a young man away from his family to begin serving his term. His mother says, “How long will my boy be gone?” They say “Ten years” or “15 years.” Ladies and gentlemen, I submit to you that a 20-year-old does not know how long ten or fifteen years is. One day in prison is longer than almost any day you and I have had to endure. Alexander Solzhenitsyn describes just one day in prison in the literary classic “One Day in the Life of Ivan Denisovich.” Ivan Denisovich had a ten-year sentence. At one point he multiplies the long days in these long years by ten. Here is his final reflection: “The end of an unclouded day. Almost a happy one. Just one of the three thousand six hundred and fifty-three days of his sentence, from bell to bell. The extra three were for leap years.”Justice Kennedy’s point is that, while drugs may indeed ruin lives, ten or fifteen-year sentences imposed upon twenty-year-olds accomplish much the same thing—at government expense. Somebody locked up for that long has virtually no chance of ever becoming a productive member of society, once the most productive years of his early adulthood are taken away.
Under the federal mandatory minimum statutes a sentence can be mitigated by a prosecutorial decision not to charge certain counts. There is debate about this, but in my view a transfer of sentencing discretion from a judge to an Assistant U. S. Attorney, often not much older than the defendant, is misguided. Often these attorneys try in good faith to be fair in the exercise of discretion. The policy, nonetheless, gives the decision to an assistant prosecutor not trained in the exercise of discretion and takes discretion from the trial judge. The trial judge is the one actor in the system most experienced with exercising discretion in a transparent, open, and reasoned way. Most of the sentencing discretion should be with the judge, not the prosecutors.
Professor James Whitman considers some of these matters in his recent book Harsh Justice. He argues that one explanation for severe sentences is the coalescence of two views coming from different parts of the political spectrum. One view warns against being soft on crime; the other urges a rigid, egalitarian approach to sentence uniformity. Both views agree on severe sentences, and both agree on mandatory minimum sentences. Whatever the explanation, it is my hope that after those with experience and expertise in the criminal justice system study the matter, this Association will say to the Congress of the United States: “Please do not say in cases like these the offender must serve five or ten years. Please do not use our courts but then say the judge is incapable of judging. Please, Senators and Representatives, repeal federal mandatory minimums.”
One could write all day about the inequities in the federal system. The ABA report that Justice Kennedy’s speech spawned elaborates:
Aside from the fact that mandatory minimums are inconsistent with the notion that sentences should consider all of the relevant circumstances of an offense and offender, they tend to shift sentencing discretion away from courts to prosecutors. Prosecutors do not charge all defendants who are eligible for mandatory minimum sentences with crimes triggering those sentences. If the prosecutor charges a crime carrying a mandatory minimum sentence, the judge has no discretion in most jurisdictions to impose a lower sentence. If the prosecutor chooses not to charge a crime carrying a mandatory minimum sentence, the normal sentencing rules apply. Although prosecutors have discretion throughout the criminal justice system not to charge offenses that could be charged and thereby to affect sentences, their discretion is pronounced in the case of mandatory minimums because of the inability of judges to depart downward.The report continues:
Federal drug sentences also illustrate some of the possible effects of mandatory minimums on racial disparity. When compared either to state sentences or to other federal sentences, federal drug sentences are emphatically longer. For example, in 2000, the average imposed felony drug trafficking sentence in state courts was 35 months, while the average imposed federal drug trafficking sentence was 75 months. In 2001, the average federal drug trafficking sentence was 72.7 months, the average federal manslaughter sentence was 34.3 months, the average assault sentence as 37.7 months, and the average sexual abuse sentence was 65.2 months.There aren’t many ways to escape a mandatory minimum, but one of them is to provide “substantial assistance in the investigation or prosecution of another person who has committed an offense.” There are many problems in the administration of this superficially wise provision of the law. Only the government can petition the sentencing judge for a “substantial assistance” departure, and jurisdictions vary widely in the kind of assistance they’ll accept as “substantial.” Moreover, as many have noted, this provision is biased in favor of an offender who’s part of a conspiracy, and who’s sufficiently entangled in that conspiracy to implicate many others. Individual offenders and low-level conspirators — those who would seem to have offended least — typically have no substantial assistance to provide, and therefore cannot escape mandatory minimums.
These lengthy sentences largely result from the impact of the Anti-Drug Abuse Act of 1986 (ADAA). The ADAA created a system of quantity-based mandatory minimum sentences for federal drug offenses that increased sentences for drug offenses beyond the prevailing norms for all offenders. Its differential treatment of crack and powder cocaine has resulted in greatly increased sentences for African-American drug offenders.
The Act set forth different quantity-based mandatory minimum sentences for crack and powder cocaine, with crack cocaine disfavored by a 100-to-1 ratio when compared to powder cocaine. Thus, it takes 100 times the amount of powder cocaine to trigger the same five-year and ten-year mandatory minimum sentences as for crack cocaine. The Act does three other things: (1) It triggers the mandatory minimums for very small quantities of crack — five grams for a mandatory five-year sentence and 500 generates a ten-year term. (2) It makes crack one of only two drugs for which possession is a felony. (3) It prescribes crack as the only drug that triggers a mandatory minimum sentence for mere possession.
The overwhelming majority of crack defendants are African-American, while the overwhelming majority of powder cocaine defendants are white or Hispanic. In 1992, 91.4% of crack offenders were African-American, and in 2000 84.7% were African-American.
When a conservative like Justice Kennedy says it’s time to reform federal sentencing laws, he deserves to be taken seriously. There’s as yet no evidence that a majority of congress is prepared to agree with him.