Ceilings, Not Floors, in Sentencing

An article by Eric Tirschwell published in the New York Law Journal outlines the fears of criminal justice reformers as we move into the Trump/Sessions regime. Tirschwell, a former federal prosecutor who served for seven years, including a stint as chair on the United States Sentencing Commission’s Practitioner’s Advisory Group, champions the Sentencing Commission as a steady hand in the push towards reform. He argues that the Sentencing Commission has over the past 30 years provided greater consistency than Congress in outlining proportional and fair parameters for punishment.

Tirschwell points to two amendments to sentencing guidelines proposed by the Sentencing Commission last month as evidence of this continuing legacy of leading steady reform. The first, the “First Offenders/Alternatives to Incarceration” proposal, would outline an expanded number of non-incarceratory sentences for certain non-violent federal crimes. The other, more modestly, would exclude juvenile sentences from adding to a defendant’s “criminal history score”. While both applaudable, these two proposals underline the key flaw in the centrist criminal justice movement: Inherent within Congressional bills and state or national bureaucracies is a belief that some “lighter” acts deserve enhanced leniency, while others’ crimes are too dark to merit a systematic reduction of punishments.

The view of the Sentencing Commission or other, more overtly political “liberal” forces as a force for progressive change has been challenged by many. Naomi Murakawa cites Sen. Ted Kennedy’s remorse for having championed sentencing guidelines during the 1970s and 80s contrasted against his lack of action to remedy perceived missteps as one of many shining examples of the Democratic party’s complicity in mass incarceration’s growth. Her critique extends chronologically in both directions. From Truman to Clinton, Democrats expanded the scope of the federal corrections system. Desires to protect all and stem police brutality were perverted through legislative and executive processes to extend the tentacles of national and state enforcement agents. Therefore, while the most egregious smoking guns of racial inequity within the criminal justice system can be attributed to Republicans, a large percentage of the growth of United States punishment systems since World War II, inherently skewed to punish unequally the most marginalized of society, can be attributed to the liberals.

So what to do with this knowledge? Speeding up efforts to remove mandatory minimum sentences seems a start. Judicial discretion can be a dangerous tool, rife for the manifestation of passive and active biases. But if correctly harnessed, reinstalling the judiciary with power could begin to level out many of the racial inequities manifest in all levels of the carceral state, from policing to booking to bail to trial to sentencing.

Imagine a system in which maximum sentences, less severe in length than current punishments, were prescribed by law. Minimum sentences would remain intentionally undefined, allowing judges to weigh mitigating circumstances in all sentencing procedures. As it stands now, most defendants plead out long before reaching trial, motivated by fear of the draconian mandatory minimums that they could face if found guilty. This is especially true for poor individuals of color. Given the opportunity to defend themselves in court and the possibility that the judge(s) in their case, even after a guilty verdict, may be sympathetic to difficult life circumstances, such defendants would undoubtedly take their cases to court with an increased frequency. In turn, this would force prosecutors to more carefully consider which cases they took to trial. Instead of using scare tactics to force over 94% of defendants into accepting plea bargains, prosecutors would instead have to prioritize which cases they pursued to their ends. Undoubtedly, plea deals would decrease. The judiciary could reclaim its role as a prescriber of justice in well-considered doses instead of acting as technocrats forced to assign harsh, pre-prescribed sentences to all pled or found guilty.

Sure, the occasional outlandish under-sentencing of a privileged defendant would continue to grab headlines. And sinister abuses of judicial power would continue in places like Alabama (or any of the other 30 states that currently have no black justices serving on their court of last resort).  But I am confident that in the vast majority of cases, more sensible temperaments would prevail.

For as we continue to see in the centrist reformers’ conscious a separation of forgivable, non-violent crimes from those acts perceived as more sinister, there must be pushback. While this must come in various forms, empowering the judiciary to find nuance in sentencing is one bold step that could be taken. Ceilings for punishment, lowered from their current absurdities, would guard against the most outlandish impulses while also collectively challenging all levels of the criminal justice system to unearth compassion for those already downtrodden by our society.