The author focuses on the importance of criminal sentencing policy to prison overcrowding and advocates comprehensive sentencing reform that emphasizes selective incapacitation of dangerous offenders as a sensible approach to conserving scarce prison resources. The author is the chief sponsor of the Sentencing Reform Act of 1984, which was recently enacted as part of the Comprehensive Crime Control Act of 1984. The Sentencing Reform Act, which embodies the most comprehensive reform of criminal sentencing ever undertaken by Congress, establishes an independent United States Sentencing Commission to establish a uniform sentencing policy and mandatory sentencing guidelines to be used by federal judges. The act abolishes early release on parole, cautions the Sentencing Commission to develop guidelines that minimize prison overcrowding, and emphasizes use of incarceration for dangerous, violent repeat offenders. The use of uniform sentences and selective incapacitation provided for in the new law offers a constructive approach to the intractable problem of prison overcrowding.
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References
1.
1. See, for example, Norval Morris and Peter Greenwood, “Responses to: `Selective Incapacitation and the Efforts to Improve the Fairness of Existing Sentencing Practices',”Review of Law and Social Change, 12:67, 71 (1983-84).
2.
2. Between Oct. 1982 and Feb. 1983, Abt Associates Inc. interviewed state judges in 31 states about the impact of prison overcrowding on judicial sentencing practices. Nearly half of the judges reported that capacity of prison facilities is a factor in the sentencing decisions of felony court judges. One judge reported that justices in his state no longer impose prison terms for victimless crimes. Another judge reported that some judges in his state have set priorities in response to prison overcrowding and that they sentence to probation offenders deemed to be least dangerous. Peter Finn, “Judicial Responses to Prison Crowding,”Judicature, 67:318 (Feb. 1984).
3.
3. See, for example, statements of Scott Harshbarger, district attorney, Middlesex County, MA; Roberta Roper, founder, Stephanie Roper Committee, MD; Margaret Damast, MD; Mark Moseley, VA; Jill Reed, NM; and Jennifer Short, OR, in U.S., Congress, Senate, Committee on the Judiciary, Comprehensive Crime Control Act of 1984: Hearings on S. 829, 98th Cong., 1st sess., 1983 (not yet printed); Edward Rendell, “Curbing Crime: A Prosecutor's Viewpoint,” in Violent Crime in America (Washington, DC: National Policy Exchange, 1983), pp. 44, 46.
4.
4. Michael Sherman and Gordon Hawkins, Imprisonment in America (Chicago: University of Chicago Press, 1981), p. 12. Of the 521 state prisons in current use, 101 were built before 1925 and 226 were built before 1950. Of the 38 federal prisons in current use, half were constructed prior to 1950. U.S., Department of Justice, National Institute of Justice, “Prison Facility Characteristics, March 1978,”American Prisons and Jails (Washington, DC: DOJ, 1980), vol. 3.
5.
5. See discussion on p. 117 of the present article.
6.
6. U.S., Congress, Senate, Committee on the Judiciary, Report on S. 668, the Sentencing Reform Act of 1983, 98th Cong., 1st sess., 1983, S. Rept. 98-223, hereinafter called Report on S. 668.
7.
7. See, for example, minority views of Senator Mathias in Report on S. 668, p. 310; Stephen Schulhofer, Prosecutorial Discretion and Federal Sentencing Reform: A Report to the Federal Judicial Center (Washington, DC: Federal Judicial Center, 1979), pp. 53-72; testimony of John Cleary in U.S. Congress, Senate, Hearings on S. 1722 and S. 1723, 96th Cong., 1st sess., 1979, pt. 14, p. 10101.
8.
8. Palmigiano v. Garrahy, 443 F. Supp. 956 (D.R.I. 1977), cert. denied, 449 U.S. 839 (1980). As of Feb. 1983, the entire state systems of Alabama, Florida, Mississippi, Oklahoma, Tennessee, and Texas and all the male penal facilities in Michigan had also been declared unconstitutional. In addition, Arizona, Colorado, Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Missouri, Nevada, New Hampshire, New Mexico, Ohio, Oregon, Utah, Virginia, Washington, and Wyoming were under court order or consent decree to reduce overcrowding at one or more of their prison facilities. Report to the Nation on Crime and Justice (Washington, DC: Department of Justice, Bureau of Justice Statistics, 1983), p. 80.
9.
9. Phillip Shenon, “Many Manhattan Inmates Freed with Low Bail Skip Court Dates,”New York Times, 15 Dec. 1983.
10.
10. Eugene Doteschal, “Rate and Length of Imprisonment: How Does the United States Compare with the Netherlands, Denmark, and Sweden?”Crime & Delinquency, 21:2 (Jan. 1983).
11.
Of the total number, 32,000 are in federal institutions and 407,000 are in state institutions. In 1983, state prisons overall were filled to 109 percent caacity, with some state prisons operating at as much as 155 percent capacity. Prisoners in 1983, Bureau of Justice Statistics Bulletin (Washington, DC: Department of Justice, BJS, 1984).
12.
12. Alfred Blumstein, Jacqueline Cohen, and William Gooding, “The Influence of Capacity on Prison Population: A Critical Review of Some Recent Evidence,”Crime & Delinquency, 21:2 (Jan. 1983).
13.
13. U.S., Department of Justice, Federal Bureau of Investigation, Crime in the United States (Washington, DC: Government Printing Office, 1971-81), published annually.
14.
14. Philip Boffey, “Social Scientists Report U.S. Crime Has Leveled Off,”New York Times, 2 Feb. 1982.
15.
15. Report to the Nation on Crime and Justice, p. 72.
16.
16. Prisoners at Midyear 1982, Bureau of Justice Statistics Bulletin (Washington, DC: Department of Justice, BJS, 1982). For example, in Alabama, prison admissions rose by 25 percent in 1981, after mandatory sentencing laws, including a 30-year term for a third conviction for a property offense, were adopted in 1980. The Indiana sentencing reform law that passed in 1978 more than doubled prison sentences for burglars. Kevin Krajik and Stephen Gettinger, Overcrowded Time (Edna McConnell Clark Foundation, 1982), p. 8. The number of federal prisoners sentenced to more than one year in prison increased by 11 percent from 1982 to 1983. Prisoners in 1983.
17.
Comment , “Confronting the Conditions of Confinement: An Expanded Role for Courts in Prison Reform,”Harvard Criminal Review-Criminal Law and Legislation Review, vol. 12 (1977). As discussed in fn. 8 of the present article, most states are now under court order to reduce overcrowding in at least one of their correctional facilities.
18.
18. Report to the Nation on Crime and Justice, p. 93.
19.
19. Michael Serrill, “A Growing Crisis behind Bars,”Time, 5 Dec. 1983, p. 64.
20.
20. Michael Sherman and Gordon Hawkins, Imprisonment in America (Chicago: University of Chicago Press, 1981), p. 12.
21.
21. Krajik and Gettinger, Overcrowded Time, p. 22.
22.
22. Ibid., citing “Attitudes of the Public toward Prisons” (Princeton, NJ: Gallup Organization, Apr. 1982).
23.
23. Richard Madden, “Prison Crowding Inspires New Construction Ideas,”New York Times, 1 Oct. 1984.
24.
24. Ibid.
25.
25. Ibid.
26.
INSLAW, Inc. , Daniel Yankelovich, Florence Skelly, and Arthur White, Federal Sentencing: Toward a More Explicit Policy of Criminal Sanctions (Washington, DC: Department of Justice, Office for Improvement of Administration of Justice, 1981), pt. 3, pp. 16-18. In one extortion case in the Second Circuit study, for example, the range of sentences imposed by 50 different federal judges given an identical case file varied from 20 years of imprisonment and a $65,000 fine to 3 year of imprisonment and no fine.
27.
27. Finn, “Judicial Responses to Prison Crowding,” p. 323.
28.
28. See, for example, Norval Morris, The Future of Imprisonment (Chicago: University of Chicago Press, 1974), pp. 31-34.
29.
29. Report to the Nation on Crime and Justice, p. 72.
30.
30. Peter W. Greenwood with Allan Abrahamse, Selective Incapacitation (Santa Monica, CA: Rand, 1982), p. vii.
31.
31. 18 U.S.C. chs. 227, 229, 232.
32.
reprinted in U.S., Congress, Senate, Criminal Code Hearings, 95th Cong., 1st sess., 1977, pt. 1, pp. 129-514.
33.
33. See Attorney General's Task Force on Violent Crime: Final Report (Washington, DC: Department of Justice, 1981), pp. 56-57.
34.
34. 18 U.S.C. §3553(a)(2)(1984).
35.
35. 28 U.S.C. §991-995(1984). The Sentencing Commission is to be an independent agency in the judicial branch consisting of seven voting members, three of which must be active judges, appointed by the president. The commission is directed to draft guidelines for use by federal judges, taking into consideration all offender and offense characteristics that appear relevant to the specified purposes of sentencing. For each federal offense, the guidelines will be expected to specify a variety of appropriate sentencing ranges, depending on different combinations of offender and offense characteristics. The guidelines are subject to congressional review and modification. In a few areas—involving, for example, recidivists, organized-crime offenders, first offenders—the bill provides general legislative guidance to the commission as to the kind of sentence and degree of severity that would seem to be appropriate for inclusion in the guidelines. These provisions are intended to accord some direction to the commission without so circumscribing its consideration of occasional countervailing factors as to prove unduly rigid.
36.
36. 18 U.S.C. §3553(b); 18 U.S.C. §3742(1984). For each federal offense, the guidelines will specify a variety of appropriate sentencing ranges—encompassing imprisonment, fines, and probation—depending on the particular history and characteristics of the defendant in the case and the particular circumstances under which the offense is committed. Probation is cast by the bill as a penalty in itself, rather than as a deferred penalty. 18 U.S.C. §§3561-3566. The maximum fine levels under the bill are dramatically increased. 18 U.S.C. §§3571-3574. The bill makes a major change in sentences to imprisonment. It moves to a determinate system, abolishing early release on parole and providing, for the first time, that the sentence announced by the sentencing judge will be for almost all cases the sentence actually served by the defendant, except for a potential 15 percent credit for good time. 18 U.S.C. §§3581-3586 (1984). Terms of imprisonment ordinarily will not be subject to later adjustment. However, a defendant serving a term of imprisonment longer than six years will be entitled after six years to petition the sentencing judge for reexamination of the sentence. A defendant sentenced to an unusually long sentence that is above the applicable guideline will be able to obtain a second review after he or she has served the maximum time specified in the applicable guidelines. 18 U.S.C. §3582(c)(1984).
37.
37. 18 U.S.C. §3472(1984). The act contains an appellate process to review sentence propriety in questionable cases. By incorporating the appeal procedures into the general structure of the guideline sentencing system, the amendments assure that the extremes of sentencing that most deserve review may be called to the attention of an appellate court, without overburdening the court with a flood of challenges to sentences well within the bounds of what would generally be considered reasonable under all of the circumstances. The defendant is permitted to appeal a term of imprisonment, a restrictive condition of probation, or a fine if any of these fall above the range specified in the applicable guideline, and to appeal a restitution order or a notice order. Recognizing that sentence disparity reaches in two directions, the bill also permits the government, on behalf of the public, to seek review of a sentence that falls below the applicable guideline range in a case in which the attorney general approves the filing of such an appeal. In both situations, the question on appeal is whether the sentence imposed is, under the circumstance, “clearly unreasonable.”
38.
38. 18 U.S.C. §3624(a), (b)(1984).
39.
39. See discussion and notes, Report on S. 668, pp. 43-44.
40.
40. 28 U.S.C. §994 (g)(1984).
41.
41. Id.
42.
42. 28 U.S.C. §994 (h), (i)(1984).
43.
43. Id.
44.
44. Pub. L. 94-783, §25(a)(1)(B)(1984).
45.
45. Legislation creating the Minnesota Sentencing Guidelines Commission was enacted in 1978. Minn. Stat. §244, Laws, 1978.
46.
46. Minnesota Sentencing Guidelines Commission, Preliminary Report on the Development and Impact of the Minnesota Sentencing Guidelines (St. Paul: Minnesota Sentencing Guidelines Commission, 1982), p. 14.
47.
47. National Research Council Panel on Sentencing Research and Alfred Blumstein, eds., Research on Sentencing: The Search for Reform (Washington, DC: National Academy Press, 1983), p. 253.
48.
48. 28 U.S.C. §994 (m)(1984).
49.
49. See footntes 40-42 of the present article.
50.
50. Pub. L. 98-473, §25(a)(1)(B)(1984).
51.
51. Id.
52.
52. See discussion in Report on S. 668, pp. 60-61.
53.
53. National Research Council Panel on Sentencing Research and Blumstein, Research on Sentencing, pp. 133-135. For example, the prison population in California increased by 14 percent from 1982 to 1983. The legislative sentencing scheme in California has been cited by state authorities as a cause of the increased prison crowding. Prisoners in 1983.
54.
54. See fn. 52 in the present article.
55.
55. See discussion and notes, Report on S. 668, p. 62.
56.
56. See discussion and notes, Report on S. 668, p. 60.
