The badly overcrowded San Quentin Prison in California.
Federal Judge Michael A. Ponsor, celebrating the fact that the U.S. Senate Judiciary Committee has reported out the “Smarter Sentencing Act,” laments all the years that he was forced to put away prisoners for long terms that they are still serving, even though in recent years Congress and the courts have thought better of those mandatory minimum sentences:
In 1984, at the start of my career, 188 people were imprisoned for every 100,000 inhabitants of the United States. Other Western industrialized countries had roughly equal numbers. By 2010 that figure had skyrocketed to 497 people imprisoned in the U.S. for every 100,000 inhabitants. Today, we imprison more of our people than any other country in the world.
How did “the land of the free and the home of the brave” become the world’s biggest prison ward? The U.S. now houses 5% of the world’s population and 25% of its prisoners. Either our fellow Americans are far more dangerous than the citizens of any other country, or something is seriously out of whack in the criminal-justice system.
The capricious evolution of federal sentencing law makes the moral implications of this mass incarceration especially appalling. In 1987, all federal sentencing became subject to sentencing guidelines designed to smooth out disparities among sentences of different judges. This move was not in itself a bad thing; sentences for similarly situated offenders obviously ought to be roughly the same. The problem was that the appellate courts interpreted these guidelines so rigidly that judges like me were often forced to ignore individual circumstances and hit defendants with excessive—sometimes grossly excessive—sentences….
Now, his sleep is haunted by all of those people who are still imprisoned, and he can do nothing to free them from the unjust sentences to which he condemned them.
I’ve said it before — I see little point in locking up people who have not demonstrated that they pose a physical danger. Unless, of course, they have repeatedly refused to cooperate with more sensible punishments — restrictive paroles, payment of restitution, community service and the like.
Had I been forced for decades to impose the sentences this judge has, I’d likely be sleepless, too.
I recommend you read the whole piece, in The Wall Street Journal today.
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It is a variant of “win with anyone; lose with Cravath” a maxim about why corporate types hire the top law firms: if you make a mistake with the “best” you are covered. If you lock up people for a long long time, they don’t become Willie Hortons. The taxpayers foot the bill and the families of the imprisoned and their communities suffer, but what’s a little collateral damage?
Start by pardoning anyone whose “crime” is ingesting a substance or making the decision to trade sex for money.
Prison should be for people who commit acts of violence or sexual assault, use a weapon in the act of robbing some person or entity, or who commit fraud and embezzlement of a scale that cannot be repaid by restitution.
Things don’t have to be legal for us not to imprison people for doing them. There are other penalties that make a lot more sense…
Ponsor’s WSJ opinion piece was published the day after Attorney General Holder called for repeal of laws prohibiting millions of felons from voting, Was it mere coincidence that two lawyers wish to mitigate unnecessary harm? While too many non-violent felons are incarcerated, too many violent recidivists are obviously not being confined long enough.
Recidivists, coincidentally, provide job security for members of the bar (judges, prosecutors, and trial lawyers) some of whom then prolaim a need for more judges to handle ensuing court backlogs.
Seems to me longer sentences for recidivists are appropriate for taxpayers who actually foot the costs of public defenders, trials, and plea bargains.
Posner weeps for those he has sentenced in a state that legalizes abortions with neither any ‘waiting period’ requirements nor “trigger laws”. When trial lawyers figure out how to make a buck by requiring capital appeals for these innocent discards (who are permanently disenfranchised), perhaps a more credible case can be made for violent recidivists, as well.
Being a civil litigator, I don’t interact with the criminal justice system at all. However, I can see how taking away a trial judge’s discretion (with mandatory sentencing) can result in some unjust criminal sentences. The whole point of having judges is to apply the rule of law with common sense. Law isn’t a mathematical equation.
On a related note, I’ve found it interesting that with the Colorado’s legalization of marijuana, I’ve not read one piece characterizing Colorado’s law as a “nullification” of federal law, which is clearly seems to be. Maybe that term is reserved for when folks in the South try to do something contrary to federal law.
An excellent observation, Bryan C.!
Usually, it is because the contradiction is with common sense…
There is a not a little to challenge about federal law in general in some areas, like I’m not sure about the state marijuana flaunts, but the way the South does it is unique, to say the least. That’s not really a compliment to the more retrograde of Southern impulses.