Contemporary Trends in Sentencing Policy
Several recent Supreme Court decisions have impacted the structure and function of both the federal sentencing guidelines mandatory minimum sentencing laws. In Apprendi v. New Jersey of 2000, the Court ruled that the constitutional right to trial by jury prohibited judges from increasing sentences “based on facts other than those decided by jury beyond a reasonable doubt” (
http://www.law.cornell.edu/supct/html/99-478.ZO.html). Elizabeth Olson (2002) explains the decision further, stating that legislatures have enacted a series of statutes which take authority away from juries to determine certain elements of a crime “beyond a reasonable doubt” and instead give that power to judges who may use a lower standard of proof (“preponderance of the evidence”) in determining sentencing factors (p. 812). Olson writes:
Apprendi is the most definitive statement in a quarter-century of Supreme Court decisions assessing the limits on a legislature's authority to define criminal offenses in ways that circumvent the constitutional protections guaranteed to criminal defendants (P. 812). Indeed, Justice John Stevens, writing for the majority, established the rule prescribing the manner in which legislatures could enact laws effecting sentencing: “It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt” (
http://www.law.cornell.edu/supct/html/99-478.ZO.html). Olson argues that the same criteria established to limit judges’ ability to increase sentences due to facts not presented to jury for proof beyond a reasonable doubt, should apply to mandatory minimum sentencing laws which automatically prescribe sentences higher than the statutory norm (Olson, 2002).
In United States v. Booker, 2005, the Court established that federal sentencing guidelines be viewed as advisory only, rather than compulsory for judges. (
http://www.law.cornell.edu/ supct/html/04-104.ZS.html). Nekima Levy-Pounds (2007) writes, “The Court's ruling, in effect, challenged Congress to overhaul the federal sentencing guidelines and to restore judicial discretion to sentencing determinations” (p. 285). Prior to the ruling, federal appeals courts did not have the power to review sentences that were outside the range of the federal guidelines, and district judges were required to give sentences within the guideline range regardless of special circumstances (United States Sentencing Commission, 2006). The ruling was, in part, based on the previous Apprendi v. New Jersey decision (
http://www.dorsey.com/64/Resources /Detail.aspx?pub=291).
In 2007’s Rita v. United States, the Supreme Court provided clarification on how the federal court of appeals should function in light of its United States v. Booker decision. In an 8-1 decision, the Court granted sentencing judges more flexibility in determining an appropriate sentence, by affirming that they are not bound by an appellate court’s application of the “presumption of reasonableness” which assumes that sentences that fall within federal sentencing guidelines are automatically fair (
http://www.famm.org/ExploreSentencing /InTheCourts/LegalNews/Ritadecision62107.aspx).
Also in late 2007, the Supreme Court issued a very important ruling in the debate over the 100:1 crack to power cocaine ratio. FAMM writes, “In a 7-2 ruling in Kimbrough v. United States, the United State Supreme Court decided that judges may consider the unfairness of the 100-to-1 ratio between crack cocaine and powder cocaine sentences and may impose a sentence below the crack guideline in cases where the guideline sentence is too severe” (
http://www.famm .org/PressRoom/PressReleases/SupremeCourtaffirmsdiscretionincrackcases.aspx). While the inequitable mandatory minimum sentencing remains the law, the ruling is another step in the direction of greater judicial discretion to consider the context of a case and fairly apply sentences accordingly.
Recent changes outside of the Courts also affect sentencing guidelines. On November 1, 2007, the United States Sentencing Commission reduced the sentencing guidelines for crack cocaine offenses. The Sentencing Commission has recommended changes to the 100:1 ratio between crack and power cocaine sentencing guidelines four times previously, but Congress declined to take legislative action as a remedy (Marks, 2007).
FAMM states that crack cocaine sentences imposed after November 1, 2007 will be an average of 16 months shorter under these changes. This change was later made retroactive albeit with some critical limitations. First, FAMM reports that the Bureau of Prisons would file a motion with the judge requesting a sentence reduction under the new guidelines; however, the judge is under no obligation to grant the motion. Additionally, mandatory minimum laws remain in effect. Thus, if a person was sentenced under the 100:1 ratio to the mandatory minimum for crack cocaine, the revised sentencing guidelines would not change that (Families Against Mandatory Minimums, 2007).
The combined effect of Supreme Court decisions and changes to federal sentencing guidelines puts pressure on the United States Congress to address the subject of federal mandatory minimum sentencing laws, particularly with respect to the crack and powder cocaine disparities. Senator Jeff Sessions (Republican, Alabama) introduced the Drug Sentencing Policy Reform Act in 2007. According to the Drug Policy Alliance, “This bill would reduce the disparity between crack and powder cocaine sentences to 20:1. It would take 20 and 200 grams of crack to trigger 5 and 10 year mandatory minimum sentences, respectively” (
http://www.drugpolicy.org/library/factsheets/raceand thedr/crack_cocaine.cfm). The bill would also reduce the mandatory minimum sentence for a simple crack possession charge from five years to one year (
http://www.washington watch.com/bills/show/110_SN_1383.html). Currently, the bill remains in committee.
At the state level, numerous states have made significant changes to mandatory sentencing laws. Nicholas Turner and Daniel Wilhelm (2002) note that 15 states took action to lessen strict mandatory sentencing laws (p. 74). They list some examples which are worth quoting at length:
Connecticut, Indiana and North Dakota repealed mandatory minimum sentences relating to some nonviolent offenses. Mississippi pared back truth-in-sentencing requirements and joined Louisiana, Texas and Virginia in expanding the number of inmates eligible for early release and loosening release rates. Iowa granted judges greater discretion in sentencing certain felony offenders. Alabama and New Mexico eased habitual offender laws. Wisconsin passed a law allowing some successfully rehabilitated offenders to petition a court, with the prosecution's consent, to reduce their sentences (p. 74).
In light of these contemporary developments, the question becomes: are the politics of sentencing changing?
Turner and Wilhelm describe three factors that might suggest they are. First, violent and property crime rates have fallen dramatically. Turner and Wilhelm state that between 1993 and 2000, “violent crimes decreased by 44.1 percent … homicides by 61 percent
property crimes declined by 44.2 percent” (p. 75). According to the United States Department of Justice this trend has continued through 2005 (http://www. ojp.usdoj.gov/bjs/glance/tables/4meastab .htm). Falling crime rates provide political cover for elected officials to reassess sentencing laws and change them without fear of being labeled as soft on crime.
Second and likely connected to the previous observations, the public is less concerned about crime as a political issue. According to Turner and Wilhelm, “a 1994 Pew Research Center for the People and Press survey found that 29% of respondents thought that crime was the most important issue facing their communities. By 2001, only 12 percent gave the same answer” (p. 75). More importantly, public attitudes about sentencing itself are changing. A poll by Peter D. Hart Research Associates showed that in 1994, 42 percent of Americans favored harsher sentencing as the primary mechanism for combating crime. But by 2001, only 32 percent agreed, while 65 percent preferred to address root social causes underlying crime (Turner & Wilhelm, 2002).
Third, financial pressures associated with high incarceration rates affect both public opinion and the attitudes of elected officials. In October of 2007, Senator Jim Webb of Virginia prepared a briefing for a Joint Economic Committee hearing exploring the increase in the United States prison population. On the subject of the high economic cost of the American prison system, Webb wrote, “In 2006, states spent an estimated $2 billion on prison construction, three times the amount they were spending fifteen years earlier. The combined expenditures of local governments, state governments, and the federal government for law enforcement and corrections total over $200 billion annually” (http://webb.senate.gov/pdf/prisonfactsheet4.html). With many states experiencing budget shortfalls and a looming nationwide economic recession, the strain of an incarceration-first-and-only approach to crime is being called into question for very practical reasons.
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