Indeterminate Sentencing – Aff

and Neg
AFF
 1AC – Plan
The United States federal government should enact substantial
criminal justice reform by mandating a return to indeterminate
sentencing and federal parole.
 1AC – Sentencing
Contention One is Sentencing –
The Federal Sentencing Guidelines have been a complete failure.
Since their inception, disparities in sentencing related to geography,
race, ethnicity, and gender have increased
Albert W. Alschuler, October 2005, [Julius Kreeger Professor of Law and Criminology,
University of Chicago., "The Normative And Empirical Failure Of The Federal Guidelines",
Stanford Law Review https://www.jstor.org/stable/40040253 //DMcD]
Introduction

When viewed from any coherent normative perspective, the Federal Sentencing Guidelines
have failed to reduce disparity and probably have increased it. Even on paper, these
Guidelines often fail to treat like offenders alike , and the Guidelines are worse in practice
than on paper. The luck of the judicial draw appears to determine the sentences offenders serve as much
as or more than it did before the Guidelines ; the region of the country in which an offender is sentenced
now makes a greater difference than it did before the Guidelines ; and racial and gender
disparities have increased. Part I of this Article emphasizes that sentencing disparity is a partly [*86] normative rather
than an entirely empirical concept. It shows how the U.S. Sentencing Commission's initial evaluation of the
Guidelines neglected this fact, proclaiming the Guidelines a success simply because judges in the post-Guidelines period
came closer to following them than judges did before there were guidelines to apply. Part II considers the disparities created by the
the
Guidelines. Guidelines principles that appear plausible in some situations may prove nonsensical in others. Moreover,
penalties set by the Sentencing Commission frequently fail to follow a coherent pattern . Part III
focuses on the kinds of disparities the Guidelines were designed to prevent - those resulting from the identity of the sentencing
judge, the region of the country in which an offender is sentenced, and the offender's race, ethnicity, or gender. It examines the
empirical evidence bearing on these questions, particularly that generated by the Sentencing Commission and its staff. As the
Commission's studies show, geographic disparity, the unequal treatment of racial and ethnic groups, and
disparities between the sentences of women and men have increased in the Guidelines
era. The Commission maintains that the amount of disparity attributable to the identity of the sentencing judge has declined, but
this claim is unconvincing. Although the [*87] Commission's figures show a small reduction of judge-created disparity in the
sentences initially imposed, they indicate no reduction of disparity in the sentences offenders ultimately serve. Prior to the
Guidelines, the United States Parole Commission, an agency with guidelines of its own, determined the release dates of prisoners
sentenced by judges throughout America. If this Commission succeeded in reducing interjudge disparity even moderately, it almost
certainly achieved greater success than that now claimed for the Federal Sentencing Guidelines. The Guidelines appear to
have failed at every job they were designed to do. Although the Guidelines' failure can be seen in the
Commission's statistics, these statistics do no more than skim the surface of the inequalities the
Guidelines permit and encourage. Judge-created disparities, for example, are less likely to appear as visible departures
from the Guidelines or as differing sentences within authorized Guidelines ranges than as differing applications of Guidelines
provisions. Researchers do not treat judicial disagreement about the factual and legal questions and the issues of characterization
that arise in Guidelines application as "sentencing disparity." Moreover, the
Guidelines have vastly increased the
sentencing power of prosecutors while reducing the ability of judges to check this power . The final
Part of this Article focuses on sentencing disparities that statistical analysis is unlikely to detect or measure - disparities "under the
radar" produced by judges, defense attorneys, probation officers, law enforcement officers, and prosecutors.
U.S. v Booker ruled that the Federal Sentencing Guidelines were
unconstitutional. However, the Federal Sentencing Guidelines are
effectively binding and implicate vagueness because in over 80% of
cases, judges still impose sentences within these Guidelines. Even
when judges depart from the Guidelines, they use the sentencing
range as the starting point to justify deviation
Veronica Saltzman, Summer 2018, [ J.D. Candidate at Harvard Law School, " Note:
REDEFINING VIOLENCE IN THE FEDERAL SENTENCING GUIDELINES, 55 Harv. J. on
Legis. 525", No Publication, https://advance-lexis-com.proxy.lib.umich.edu/document/?
pdmfid=1516831&crid=06383c78-335e-451f-9a6d-47abaf26def9&pddocfullpath=%2Fshared
%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A5SST-NM80-00CW-22FH-
00000-
00&pdcontentcomponentid=143841&pdteaserkey=sr1&pditab=allpods&ecomp=kb63k&earg=sr
1&prid=6aef769a-bf15-44ac-aab9-8ab14f3e24bc //Weese]
The Federal Sentencing Guidelines are Effectively Binding The majority in Beckles
held that a federal system of discretionary sentencing is not amenable to vagueness challenges ,
reasoning that since discretion itself is not unconstitutionally vague, "the present system of guided
discretion" cannot be vague. Justice Thomas also stated that the Guidelines failed to implicate the "twin concerns" of
vagueness doctrine: "providing notice and preventing arbitrary enforcement." He noted that the statutory range provided notice, and
that the Guidelines do not allow judges to arbitrarily "prohibit behavior or … prescribe the sentencing ranges available." Thus, the
usual due process concerns present in "statutes fixing sentences" were absent from the Guidelines. Yet
there is good reason
to believe that the Federal Sentencing Guidelines are, at best, extremely influential
on sentencing and, at worst, effectively binding. As a result, the Guidelines should be held to the same
standard of clarity as any other binding rule. The Supreme Court has recognized on multiple occasions that the
Federal Guidelines constitute "not only the starting point for most federal sentencing proceedings
but also the lodestar." District courts begin the sentencing process by calculating the applicable
Guidelines range; the Guidelines thus produce an initial anchoring point for
sentencing. Indeed, federal judges impose sentences within the Guidelines --or below, at the
Government's request--in over 80% of cases. Even where a judge departs from the Guidelines , "'if the
judge uses the sentencing range as the beginning point to explain the decision to deviate [*533]
from it, then the Guidelines are in a real sense the basis for the sentence.'" The appeals process also illustrates the binding nature of
the Guidelines. A
judge who miscalculates the Guidelines range "commits reversible procedural
error," while a judge who levies a sentence within the Guidelines range is afforded a
presumption that the sentence was reasonable . For the defendant in Beckles, the Guidelines exerted a tremendous
impact on his final sentence. The district court would have sentenced the defendant to "between 33 and 98 fewer months in prison"
without the sentencing enhancements from the career offender Guideline. As Justice Sotomayor reasoned, "it was the Guidelines,
not just the statute, that 'fixed' Beckles' 'sentence' in every meaningful way." Rules with such weight must avoid unconstitutional
vagueness by providing adequate notice to defendants and avoiding arbitrary enforcement. B. Even if the Guidelines are "Merely
Advisory," They Implicate Vagueness Concerns Before Beckles, two circuit courts declared that advisory Guidelines could
not implicate vagueness concerns under the Due Process Clause. The courts made the following three arguments. First, advisory
Guidelines cannot be any more arbitrary than "unfettered discretion." Second, defendants cannot expect notice from the Guidelines
because the Guidelines do not require judges to impose any particular sentence. Third, a system uniquely defined by discretion
cannot implicate vagueness concerns because vagueness challenges would "upend [the] sentencing regime." Yet each argument fails
to acknowledge that confusing (albeit advisory) Guidelines
may [*534] be more harmful to due process
than the absence of Guidelines altogether. In her Beckles concurrence, Justice Sotomayor described the
distinction between "unfettered" discretion and discretion governed by vague and ambiguous guidelines. She noted that when a
judge sentences a defendant under a "purely discretionary regime," the judge does not use arbitrary factors but instead conducts a
"fact-and context-sensitive determination." In contrast ,
a judge sentencing a defendant using vague advisory
guidelines relies on confusing and "shapeless" rules that are "impossible [for the defendant] to
understand." Reliance on "an impenetrable rule" as the anchor for sentencing violates the implicit premise of due
process: "that the law must be one that carries an understandable meaning with legal standards
that courts must enforce." Vague and "shapeless" rules lead to arbitrary enforcement by judges
and lack of notice to defendants.

Scenario 1 – Prosecutorial Discretion

Independently, the Sentencing Guidelines triggered the shift to
determinate sentencing.
Paratore et. al. ’14 [JASON M. PARATORE and JOURDAN E. BOWMAN; Experts in
indeterminate sentencing guidelines and criminology, writing for the Encyclopedia of
Criminology and Criminal Justice, an international, comprehensive reference tool for the field of
Criminology and Criminal Justice that is both cutting edge as well as of very high scientific
quality and prestige; 1-22-2014; Volumes 1-5; The Encyclopedia of Criminology and Criminal
Justice,; https://onlinelibrary.wiley.com/doi/abs/10.1002/9781118517383.wbeccj167; Accessed
6-26-2020; RG-Camp]
In an effort to eliminate disparity in sentencing, commissions were established to develop
guidelines to assist judges with sentencing. The United States Sentencing Commission (USSC) was created
by the 1984 Sentencing Reform Act (SRA) and is responsible for overseeing and evaluating federal-court
sentencing procedures. The Commission is responsible for the creation of the Federal Sentencing Guidelines, which replaced
indeterminate sentencing. Unlike some commissions that were created by Congress, the USSC began as a permanent, seven-member
committee, whose members are appointed by the President and approved by Congress. Further, each member serves a six-year term.
Passage of the SRA essentially eliminated indeterminate sentencing in the federal judiciary. It has been suggested that the basis for
SRA was the belief by some that politics and ideology influenced federal trial-court judges’ sentencing decisions in criminal cases.
Interestingly, no more than four members with the same political party affiliation can serve on the Commission at any one time
(Bibas, Schanzenbach, and Tiller 2009). The
mandate of the sentencing commission was to establish
sentencing guidelines for federal offenses. As a result, sentences of federal district
court judges are currently guided by determinate sentences prescribed in the Federal
Sentencing Guidelines (Thompson 2006).

Determinate sentencing shifts control to the prosecutors which

functionally causes more discriminatory or arbitrary exercises
of discretion
Ely Aharonson, 2013, [Assistant Professor, University of Haifa, "Determinate Sentencing
And American Exceptionalism: The Underpinnings And Effects Of Cross-National Differences
In The Regulation Of Sentencing Discretion", Law And Contemporary Problems
https://scholarship.law.duke.edu/lcp/vol76/iss1/8/ //DMcD]
In the United States, it has been repeatedly shown that mandatory penalty laws did not eliminate the role of
discretion in shaping sentencing outcomes. Instead, they shifted the control over the outcomes of
the sentencing process from the judges to the prosecutors. In a system in which ninety-five percent
of criminal trials are concluded by a guilty plea, one of the major effects of determinate
sentencing laws is in how they affect the dynamics of charge [*169] bargaining and fact
bargaining between prosecutors and defense attorneys . In this respect, it is clear that the spread of
mandatory sentences has substantially increased the leverage of prosecutors in plea-bargaining
negotiations, as these negotiations are now conducted in the shadow of more predictable and more severe penalties. Moreover,
determinate sentencing laws have weakened the ability of judges to mitigate the
consequences to the defendant of prosecutorial decisions that seem to be suspicious of
discriminatory or arbitrary exercises of discretion. However, when transplanted in the different
institutional settings that prevail in European legal systems, mandatory penalties will not necessarily produce similar effects.
Although many continental systems have recently moved in the direction of allowing the prosecutor and the defendant to reach an
agreement over the charges (and, in some jurisdictions, over the sentence to which they will appeal), judges in continental systems
are much less constrained by such agreements, and they continue to have independent responsibility to determine the defendant's
guilt as well as his sentence. Even in England and Wales, where defendants can bargain with prosecutors over the charges but not
over the penalties, the impact of mandatory penalties on the dynamics of plea bargaining also seems less consequential than in the
United States. In part IV of this article, I will analyze the institutional determinants that shape the patterns of divergence and
convergence with respect to the effects of mandatory penalty laws in different jurisdictions.

Prosecutorial discretion is the root cause of racial disparities in

the post-arrest justice process
Sonja B. Starr and M. Marit Rehavi, October 2013, [Sonja B. Starr is a Professor at the
University of Michigan Law School. M. Marit Rehavi is an Assistant Professor of Economics at
the University of British Columbia and a Fellow of the Canadian Institute for Advanced
Research., "Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and
the Effects of Booker", Yale Law Journal https://www.yalelawjournal.org/article/mandatory-
sentencing-and-racial-disparity-assessing-the-role-of-prosecutors-and-the-effects-of-
booker //DMcD]
CONCLUSION
Determining the causes of racial disparities in criminal justice is not easy. We believe our approach improves
substantially on existing research, but we do not offer definitive answers and doubt that anyone will soon. So what are
policymakers to do? We do not seek to answer that question completely. Even if we had crystalline empirical answers, criminal
justice policy does not turn on demographic disparity alone—many competing objectives must be considered. That said, our results
have implications for these dilemmas, and we fear that the contrary results of existing research may be distorted to support
counterproductive “solutions” to racial disparities. We close with some brief thoughts on these points. First, despite our concerns
about the methods of the Sentencing Commission and others, we agree that the high rate of incarceration of black men is a serious
social problem and that examining the possible contribution of disparities in the criminal justice system is important. Our research
suggests that, in the federal system, disparities in the post-arrest justice process contribute to this
problem. After controlling for the arrest offense, criminal history, and other prior characteristics, sentences for black
male arrestees diverge substantially from those of white male arrestees (by around 10% on average).
While this disparity does not seem to be growing, it is persistent. Second, the procedural source of this disparity
matters, and it is thus a mistake to focus on judicial sentencing alone . Our research suggests that
racial disparities in recent years have been largely driven by the cases in which judges have the
least sentencing discretion: those with mandatory minimums. Our assessment of Booker is more tentative, but
we find no evidence that it increased racial disparity. The Sentencing Commission’s contrary conclusion is based
on deeply flawed methods. For these reasons, we are particularly concerned about proposals to respond to
sentencing disparities by restoring tighter constraints on sentencing , especially those that entail expanding
mandatory minimums.201 Our results suggest that this would not reduce disparities in the justice process .
Quite the contrary: we find that prosecutors file mandatory minimums twice as often against
black men as against comparable white men. Moreover, for those concerned about mass incarceration of black men,
expanding mandatory minimums would be counterproductive. Even setting aside racial disparities internal to the criminal justice
system, sentencing
law changes that increase severity have a particularly adverse impact on black
men, who are disproportionately involved in the system in the first place . Making sentencing law more
rigid would likely exacerbate this problem even if it led to more equitable administration of the law—and our results suggest that it
would likely lead to less equitable administration. Third, we do not advocate attempting to reduce disparity by taking discretion
away from prosecutors. Eliminating prosecutorial discretion is probably impossible. The Department of Justice has certainly tried.
The disparities we found persisted despite the Ashcroft Memo ordering prosecutors to charge and pursue the “most serious, readily
provable offense,” as well as DOJ bans on fact-bargaining.202 Taken at their word, these policies would have stripped almost all
discretion from line prosecutors. But such policies are very difficult to enforce, because line prosecutors inevitably must subjectively
evaluate the available evidence.203 And even if constraining prosecutorial discretion did succeed, one might see another “hydraulic”
effect. If prosecutors had to pursue every case law enforcement brought them to the fullest, their current power over case outcomes
might shift another step back—to law enforcement, where it might be even harder to monitor. Prosecutors’ decision-making is
notoriously difficult to observe—unlike judges, they do not publish written reasoning. But law enforcement is even more of a “black
box.” Even if all discretion could somehow be removed from the justice system, we doubt this would create a justice system anybody
would want. Flexibility allows appropriate tailoring of both charges and sentences to the circumstances of individual cases, so as to
avoid unduly harsh punishments when they are not justified. Efforts
to eliminate unwarranted disparities are
important, but they should not come at the cost of unwarranted uniformity . Instead, rather than looking
for ways to curtail prosecutorial discretion, legislators could consider curtailing prosecutorial power by dialing back existing
mandatory minimums. If
sentencing laws were less rigid, it would be less necessary for decision-
makers to find ad hoc means of mitigating their impact. The Fair Sentencing Act of 2010, which reduced crack
sentences, showed that it is politically possible to reform excessive sentencing laws, and that empirical evidence of racial disparities
can help to bring such changes about.204 One potential next focus could be the severe gun enhancements in 18 U.S.C. § 924(c).
These laws hit black men particularly hard because, as our data show, they are more frequently arrested for gun crimes and because
of large apparent disparities in prosecutors’ exercise of charging discretion. Certainly, policymakers must weigh this problem against
concerns about gun violence. Notwithstanding these serious concerns, we wonder whether the mandatory minimums in the statute
are truly always necessary, such that judicial discretion should be precluded. For instance, is a five-year add-on sentence really
necessary in every case in which a firearm has merely been carried—let alone a mandatory extra twenty-five years for a second gun
and yet another twenty-five for a third?205 Prosecutors would likely feel less need to “swallow a gun” if the gun did not
automatically trigger a massive additional penalty. Finally, while our approach is far more comprehensive than that of prior
sentencing studies, there is enormous room for further exploration. For instance, we plan to explore further the possible role of
sentencing fact-finding in producing racial disparities. More research is also necessary to see whether patterns like those we found
are also present in state courts. More generally, we do not claim to have proven purposeful discrimination by prosecutors or anyone
else—it would be impossible to do so with administrative data like ours. Other kinds of studies may be necessary to dig deeper into
causal theories for racial disparities: perhaps experimental studies in which race is randomly assigned to otherwise identical
prosecutor files, or qualitative studies involving reviews of case files and interviews.206 DOJ itself is well positioned to carry out
such work. One easy step would be for DOJ to keep statistics on mandatory minimum charging decisions by race when it tracks
prosecutors’ performance. Doing so would not only facilitate research but could also help prosecutors who do not want to contribute
to disparities but might not be conscious of them. The government itself should take the elimination of disparities in criminal justice
as seriously as other civil rights enforcement matters, and it should think creatively about solutions and strategies for answering the
empirical questions that remain.

Racial disparities in sentencing delegitimizes the Criminal Justice

System in the eyes of minority communities – feeding a vicious cycle
of distrust and crime
Rocque 11. Michael Rocque received his PhD from Northeastern University’s School of
Criminology and Criminal Justice, and is an Associate Professor of Sociology at Bates College, 7-
25-2011, "Racial Disparities in the Criminal Justice System and Perceptions of Legitimacy: A
Theoretical Linkage," SAGE Journals,
https://journals.sagepub.com/doi/abs/10.1177/2153368711409758 - AM
Legitimacy, the Law and Race

The study of legitimacy has a long history in the social sciences (see e.g., Weber’s [1918/1968] study of the legitimacy of power). With respect to the law,
researchers have examined how the public views the CJS in terms of fairness, justness, or
legitimacy. A useful definition of legitimacy is provided by Zelditch (2001), who argues that ‘‘something is legitimate if it is in
accord with the norms, values, beliefs, practices and procedures of a group’’ (p. 33). With respect to the law,
Tyler and Fagan suggest that ‘‘legitimacy is a feeling of obligation to obey the law and to defer to the
decisions made by legal authorities’’ (2008, p. 235). Indirectly, research has studied the perceptual legitimacy of the CJS by asking
about how people feel about specific actors in the system. Foremost among these studies are examinations of attitudes toward the police. For example,
some studies have asked citizens to report their perceptions of how well police are doing their jobs, how much citizens ‘‘like’’ the police, and how
satisfied people are with the police (Bridenball & Jesilow, 2008; Decker, 1981; Frank et al., 1996; 2000; Frank, Smith & Novak, 2005; Portune, 1972;
Rosenbaum et al., 2005; Tuch & Weitzer, 1997). Other studies have examined attitudes toward the courts, particularly the Supreme Court (see
Caldeira & Gibson, 1992; Flanagan & Longmire, 1997). Finally, some have examined legitimacy of the CJS at the macro
level (see LaFree, 1998; 1999). In general, with respect to the law, studies have shown that most people view the CJS as
legitimate (see Boynton, Patterson & Hedlund, 1968; Schuck, Rosenbaum, & Hawkins, 2008; Tyler, 1990). Certain criminological
theories either implicitly or explicitly link legitimacy to criminal/deviant behavior , but most early
theories did not focus on this concept. For example, some scholars suggested that those who turn to crime find the system to be ‘‘unjust’’ and that this
process is class related (see Cloward & Ohlin, 1960; Cohen, 1955). Cohen (1955, p. 132) explained how legitimacy may be related to
crime: ‘‘for the child who temporizes with middle-class morality, overt aggression and even the conscious recognition of his own hostile impulses
are inhibited, for he acknowledges the legitimacy of the rules in terms of which he is stigmatized. For the child who breaks clean with middle-class
morality, there are no moral inhibitions on the free expression of aggression’’ (emphasis added). Hirschi (1969) included as a causal factor in his theory
of delinquency the notion of ‘‘belief.’’ His
theory implied that delinquency is more likely among those who
reject the moral validity of the law. Research examining the relationship between legitimacy of the law and criminal behavior
became more prominent in the late 20th century. One of the first scholars to systematically study the effect of perceptions of legitimacy on behavior was
Tom Tyler (1990). Tyler argued from a psychological perspective that sanctions and agents who are viewed
as fair or just are more likely to elicit compliance on the part of the public. Tyler and Fagan (2008) link
legitimacy and compliance by suggesting that ‘‘[t]o the degree that people are motivated by legitimacy, people
cooperate because they feel it is the right thing to do, not because of material gains or loses (sic)’’ (p. 240).
Empirical research has supported this claim. In a large community survey in Chicago, Tyler (1990) found
impressive support for his predictions, persuasively showing that legitimacy toward the law is a major factor in
why people choose to commit crimes. Tyler’s work (among others) has continued to show how legitimacy is
linked to compliance and cooperation with authorities (Fagan, 2008; Tyler, 1997, 2003, 2005; Tyler & Fagan, 2008;
Tyler & Huo, 2002; see also Kane, 2005; Taxman et al., 2005). Similarly, research has found that those who felt they were discriminated against by the
police are more likely to report committing criminal acts (Eitle, 2002; see also Unnever, Cullen, Mathers, McClure, & Allison, 2009). Other research
has found that sanctions that are perceived as unfair are associated with increased
offending (Paternoster & Piquero, 1995; Paternoster & Simpson, 1996). This supports Sherman’s (1993) idea that sanctions are
more likely to provoke defiance (hence, criminal behavior) than encourage compliance if they
are implemented in an unfair manner. Finally, LaFree (1998) has shown that when the government and
law enforcement agencies suffer from a withdrawal of legitimacy , crime rates increase. Thus, the
theoretical and empirical literature overwhelmingly suggests that legitimacy is an
important factor in deviance and/or criminal behavior. Racial Differences in Perceived Legitimacy of the
CJS While many studies have demonstrated that overall, the majority of Americans view the police as legitimate (Eschholz et al., 2002; Tyler, 1990; but
see Fagan, 2008), 300 Race and Justice 1(3) certain research has uncovered variations in perceptions of legitimacy .
Tyler and Fagan (2008) suggest that lack of trust is more likely to be found in studies of the courts than the police.
In addition, research has found group differences in attitudes toward the CJS (see Schuck et al., 2008; Walker et
al., 2000). For example, a longstanding finding is that Blacks and other minority groups tend to be less
satisfied with components of the CJS, especially the police, than Whites (Jacob, 1971; Rosenbaum et al., 2005). This
finding is consistent across different areas/cities. Webb & Marshall (1995) argue that race is one of the most important
predictors of confidence in the police (see also Garcia & Cao, 2005; Hagan & Albonetti, 1982; Tyler & Fagan, 2008). In other words, research shows
that Blacks view the police as less legitimate than Whites—a finding that has profound implications for possible racial differences in deviant behavior.
Ethnographic work has shown that in the inner city, Blacks
often feel that the police and courts do not
represent them (see Anderson, 1999; Venkatesh, 2008). For the most part, both Blacks and Whites seem to be aware of disadvantages
associated with minority neighborhoods and ‘‘white flight’’ from minority areas has further depleted resources available to Blacks (see Emerson, Chai,
& Yancey, 2001; Harris, 2001; Krysan & Farley, 2002). Lack of resources or the
perception that the CJS better serves
Whites may lead to a withdrawal of legitimacy toward the law for some groups
(Anderson, 1999). Thus from this view, racial differences in perceptions of legitimacy may be tied more to ‘‘types of places’’ rather than ‘‘types of
people’’ (see also Cao, Frank, & Cullen, 1996; Dai & Johnson, 2009; Frank et al., 1996; Hunt, Wise, Jipguep, Cozier, & Rosenberg, 2007; Sampson &
Bartusch, 1998; Weitzer, 1999; Wu Sun, & Triplett, 1999). For example, Sampson and Bartusch found that meso-level factors (e.g., structural
disadvantage) explained racial differences in ‘‘dissatisfaction with the police.’’ This might be related to differential treatment by the police in certain
Many scholars have
areas (e.g., the inner city) and could help explain why Blacks have lower perceptions of legitimacy toward the CJS.
attributed racial disparities in legitimacy toward the law to differences in experiences (Eschholz et al.,
2002). According to Eschholz et al. (2002), personal experiences with the police tend to improve perceptions of legitimacy among Whites while having
the opposite effects for Blacks. Weitzer and Tuch (2005), analyzing a national survey, found that nearly half of Blacks report having experienced some
form of unfair treatment by the police (cited in Stewart, Baumer, Brunson, & Simons, 2009). Stewart et al. (2009) found that Blacks are more likely to
perceive racial discrimination by the police in White neighborhoods in which minority populations are growing. As mentioned above, several
studies have shown that Blacks perceive differential treatment on the part of the CJS (Browning et al.,
1994; Eschholz et al., 2002; Frank et al., 1996; Russell-Brown, 2009; Walker et al., 2000; Weitzer & Tuch, 2002). In a related vein, Browning and
colleagues found that Blacks were more likely to perceive being ‘‘hassled’’ by the police than Whites. Other studies, however, have found that
independent of experiences or contact with the CJS, minorities hold more negative views of the
system than Whites (Eschholz Rocque 301 et al., 2002). Certain research has also shown that Blacks interpret the same event (e.g., a high-
profile case) more unfairly than Whites (Eschholz et al., 2002; Wortley, Hagan, & Macmillan, 1997). Regardless of the reason, the research literature is
consistent that racial disparities across time and place exist with respect to feelings of legitimacy toward the CJS. The Connection Between Racial
Disparities in Criminal Justice Contact and Racial Disparities in Legitimacy The research reviewed above suggests p otential
connections
between racial disparities in criminal justice contact and racial disparities in feelings of
legitimacy toward the law. For example, research has indicated that minorities may be unfairly
targeted by the police (Cole, 1999; Smith & Visher, 1991) or receive sentences that are unduly harsh (Britt, 2000;
Johnson, 2003). These types of unwarranted disparities may, in part, lead to feelings of
illegitimacy toward the law on the part of minorities . In addition, legitimacy may be an
important link between racial disparities in criminal justice contact and racial
differences in behavior. To the extent that there are ‘‘behavioral’’ differences between racial groups that contribute to racial
disparities in criminal justice contact (see D’Alessio & Stolzenberg, 2003; Sampson & Lauritsen, 1997), part of the driving force for these differences
may be explained by legitimacy. For example,
lower levels of legitimacy, as discussed above, is associated with a
lack of compliance with the law.

Shifting to indeterminate sentencing with parole solves – It solves

racial disparity and creates rehabilitation efforts
Evangeline A. Zimmerman, 2010, [University of Michigan Law School, J.D. 2009; Yale
University, B.A. 2004, "The Federal Sentencing Guidelines: A Misplaced Trust In Mechanical
Justice", University Of Michigan Journal Of Law Reform
https://repository.law.umich.edu/mjlr/vol43/iss3/8/ //DMcD]
IV. Reform: A Return to the Old, While Keeping the New The following discussion should be prefaced by the caveat that this Note's
proposal is hypothetical in nature. Even strident opponents of the FSG have come to acknowledge that the system, even if advisory,
is here to stay. This Note does not argue that the Guidelines will disappear and indeterminate sentencing and federal parole boards
will return. Instead, it suggests that in holding with the values espoused by Congress in passing the SRA - fairness, equality and
justice - indeterminate sentencing coupled with parole boards and release guidelines would be a
better mechanism for enforcing those goals. First, the SRA focused too much on sentencing
and too little on release. This may, at first glance, seem like the same issue. However, there is an important distinction
between the two. The FSG strictly proscribed the range of sentences that could be handed down , but
allowed for factual findings by judges that could enhance the defendant's prison term . In practice,
this meant the FSG only gave judges the ability to look backwards at the facts of the crime and
determine the desert of the defendant charged. The individual's sentence was determined entirely by his prior
criminal record and the crimes of which he had been convicted. Questions regarding deterrence, rehabilitation, and
so on, could not properly be considered. [*868] In contrast, a system that employs indeterminate
sentencing and parole boards can make forward-looking evaluations that aim to
decrease criminal activity generally and prevent recidivism. In this structure, judges have more
flexibility. Not only could they issue sentences that take into account mitigating factors, they could also continue
sentencing in the traditional manner by giving a defendant a range of time to serve for the crime
committed. Either way, the parole boards would provide a forward-looking backstop to accompany
that sentence. Parole boards work closely with prisoners and are in a strong position to
evaluate whether the goals of sentencing have been met. If rehabilitation is the most important goal,
progress could be factored into the release calculations. If retribution was more important, the severity of the crime could be more
clearly considered. Creating nationwide release guidelines would provide transparency and give our sentencing system purpose.
Prisoners would be notified of the parole guidelines when they were sentenced , allowing them to
know how long they could reasonably expect to stay in prison . It would also give the prisoners a
clear sense of what our system expects from them for their incarceration to end . These guidelines could
be created by an independent committee of representatives from various groups within the penological system, including judges,
wardens, probationary officers, police and parole board members. These are the individuals who regularly deal with those
committing crimes and best understand what works. These guidelines would be propelled by a clear ideological purpose to be
determined by the committee and reexamined at set intervals, keeping in mind that the rationale for sentencing might vary
depending on the nature and severity of the crime. In addition to these factors, the central critiques of the indeterminate sentencing
policy in the 1970s have been addressed. Appellate review of sentences continues to be available and judges are still required to
disclose the reasons for the sentence they have prescribed. Furthermore, limited research has shown that release
dates issued by parole boards are more free from racial bias than other facets of the
system. In 2000, the Utah Judicial Council's Task Force on Racial and Ethnic Fairness in the Legal System ("Task Force")
conducted a comprehensive study of all stages in the State's criminal and juvenile justice system. When examining
[*869] the state parole board and its release dates, the Task Force found no significant difference between the
length of prison stay between minorities and whites. This was the only area where the Task Force
found whites and minorities being treated equally. Professor Russel K. Van Vleet, the Co-Director of the
Utah Criminal Justice Center at the University of Utah and one of the leading researchers who conducted the study, noted the
finding was "astonishing." He recalled that the researchers had focused on the finding during the Task Force meetings because it was
one of the few examples of equitable treatment they had found. Second, the Sentencing Commission and the FSG
used a top-down approach to reform the criminal justice system. Sentences were prescribed at the most removed level, divorced
almost entirely from the individual being punished. It is worth noting that this system failed to decrease crime rates and
dramatically increased the prison population in the United States. By shifting the focus from sentencing to release and from judges
to parole boards, administrators of the criminal justice system can realign themselves with a more bottom-up approach, which
provides more attention to the individual. Parole
boards are best suited to evaluate the prisoner's progress
and judges can return to considering mitigating factors. Michael Tonry notes that one of the lessons from the
past thirty years of sentencing policy is that restorative justice programs, which use a very individualized approach by focusing on
meeting the victim's needs, are favored over regular criminal sanctions by victims as well as defendants. Further, these programs
have been shown to decrease the chances of recidivism. The current methods are not working .
Political interests and a lack of purpose have clouded the sentencing system for too long. It is time for change. [*870] Conclusion
The FederalSentencing Guidelines have damaged the adversarial system, dehumanized sentencing, and
filled prisons to the breaking point. The Supreme
Court made very important progress when it made these
Guidelines advisory. However, this is not enough. Judges may be reticent to stray from the forms they have been
forced to use for the past twenty years, and using the sentencing matrix is, if nothing else, easier than making tough calls in hard
cases. Nevertheless, justice and practicality require something new. Reviving
indeterminate sentencing and parole
boards would realign the balance of power in the criminal justice system . Zealous advocates would not
have the ability to determine jail time pre-trial, and discretion in sentencing would be returned to third-party neutrals where it
belongs. But more importantly, release
guidelines - even in theory - would encourage prison wardens, judges
and others to begin to think carefully about the purpose of sentencing in the criminal justice
system. Complete agreement may never be reached on this issue, but promoting discussion is an important start.

Furthermore, prosecutorial discretion is used to force plea bargains

which perpetuate an endless cycle of unjust sentencing
Andrew Birrell et al, 2018, Birrell-Mr. Birrell is an accomplished and seasoned appellate
lawyer. He has argued before the United States Supreme Court in Washington, D.C., the federal
appeals court, and has won reversals of convictions and orders for new trials in the Minnesota
Court of Appeals and Supreme Court. Ramon de la Cabada, and Martín A. Sabelli; and Members
John Cline, James Felman, Daniella Gordon, JaneAnne Murray, David Patton, Marjorie Peerce,
Barry J. Pollack, and Todd Pugh, all seasoned criminal defense attorneys with the NACDL,
National Association of Criminal Defense Lawyers,
https://www.nacdl.org/getattachment/95b7f0f5-90df-4f9f-9115-520b3f58036a/the-trial-
penalty-the-sixth-amendment-right-to-trial-on-the-verge-of-extinction-and-how-to-save-it.pdf,
6-25-2020/Khan
enormous discretion that prosecutors wield to pressure defendants to plead guilty through
The

traditional mechanisms like charge and fact bargaining is even greater in light of the Sentencing Guidelines . Although the
Guidelines were adopted as a means of addressing unwarranted disparity in sentencing, they have been largely ineffectual in meeting that goal.95 The Supreme Court has made clear that individual judges are best
suited to weigh disparities on a case-by-case basis.96 But the pipe dream of administering “uniform” justice has held sway,
reinforcing the influence of the Guidelines which rely on mathematical calculations at the
expense of fairness in individual cases. As judges, scholars, and even former prosecutors have
observed, overemphasis on the amount of loss often leads to sentences that are disproportionate
to the seriousness of the offense.115 Indeed, although several federal judges are quite outspoken about their disagreement with the Guidelines —
referring to them as arbitrary and having been “drawn from nowher e”97 — many, many more remain

reluctant to deviate from them. One federal judge recently admitted that she would not have
imposed a 360-month sentence, but she felt compelled to do so because the Guidelines called for
that sentence.98 In fact, because judges are still required to begin their sentencing analysis by
calculating the Guidelines range, there may be a psychological predisposition to sentence within
that range.99 It is also possible that the Guidelines have maintained their pervasive force because they represent
the path of least resistance. Within-Guidelines sentences are virtually immune from review on appeal, so judges who do not like to be
overturned can ensure a good record by sticking to the Guidelines .100 Others may cling to the
Guidelines because they are used to them. Most of the federal judiciary is made up of judges who began their tenure under a system in which the Guidelines were
mandatory, and they may find it difficult to divorce themselves from such a familiar crutch. But whatever their reasons or motivations for doing so, the fact remains that many

judges continue to adhere to the Guidelines, preventing any truly meaningful check on federal
prosecutors who can use the increasingly harsh Guidelines sentences to coerce defendants to
plead guilty. Economic Crimes As an Example of the Guidelines’ Overreach One of the most flagrant examples of how the
Guidelines call for the imposition of excessive sentences is Section 2B1.1, the Guideline that applies to economic crimes.
Section 2B1.1 has long been criticized for resulting in sentences that are grossly disproportionate to a defendant’s

actual culpability. Judges have referred to sentences under this Guideline as “patently absurd on their
face,”101 “a black stain on common sense,”102 and, “fundamentally flawed.”103 Because
defendants’ sentences are so inflated under the Guidelines, prosecutors have enormous leverage
in economic crime cases to force guilty pleas .104 Increased Penalties for Indeterminate Loss Amounts Although it is commonly referred to as the “fraud
guideline,” Section 2B1.1 covers a vast array of offenses and offenders, more than any other guideline. It determines the sentences for more than 300 federal criminal statutes and applies to offenses ranging from

Individuals sentenced under this provision of the

illegally downloading digital music to massive fraudulent investment schemes.105

Guidelines made up 12.2% of all defendants sentenced in federal courts .106 Despite the breadth of criminal conduct covered,
sentences under Section 2B1.1 are principally driven by a single factor: the amount of loss that
actually resulted, or was intended to result, from the offense.107 This factor has become
increasingly significant in enhancing sentences for economic crimes .108 The amount of loss is factored into a defendant’s total
offense level, which is one of the two variables for determining an ultimate sentencing range. When the Guidelines were first adopted, the amount of loss could result in, at most, a 13-level enhancement to a

the loss table was adjusted to add more categories of loss with higher and higher enhancements.109 Under the current Guidelines, the
defendant’s total offense level. Over the intervening years,

means that where a defendant’s sentence falls in a range

amount of loss can result in an enhancement of as much as 30 levels.110 This

between 0-6 months and 15-20 years will be determined by a single factor. In cases where losses
are particularly difficult to calculate, prosecutors have even greater leverage to force pleas .123 This
consistent, upward ratcheting of the loss table is out of sync with the Commission’s initial purpose for economic crimes. Originally, the Commission sought to provide a short but definite period of confinement in
cases that had traditionally resulted in sentences of probation.111 Over the years, however, the amount of loss enhancements were inflated, not as the result of any empirical analysis suggesting sentences were too
low, but rather, in response to directives from Congress who were facing political pressure in the wake of major financial crises.112 The framers of the Guidelines settled on loss as the driving factor for economic
crimes because they believed it to be a reasonable approximation of the seriousness of an offense, and it was common to all covered offenses.113 But, while the amount of loss may have been an effective means of
selecting a sentence somewhere between probation and a few years imprisonment, as the upper range of sentences has risen, it has become far harder to justify basing sentences so heavily on this single factor.114

overemphasis on the amount of loss often leads to sentences that

As judges, scholars, and even former prosecutors have observed,

are disproportionate to the seriousness of the offense.115 Defendants are plugged into specific slots
along the broad spectrum of the loss table without any consideration for other factors that are
arguably more significant when measuring a defendant’s relative culpability, for instance, the
scope and duration of the offense, how much the defendant gained from it, or the defendant’s
motivation.116 In addition, individual defendants are frequently held accountable for all losses caused by
participants in the same scheme, even if the defendant was not involved in [their] co-
defendants’ conduct, did not intend for the losses to occur, and did not personally profit from them.117 A defendant’s subjective intent with respect to loss will only be considered
under the Guidelines if he or she intended more loss than what actually occurred, meaning intended loss can only increase a
defendant’s sentence, not lower it.118 What’s more, in the situation of an unsuccessful fraud — where no loss
occurs — intended losses can still increase a defendant’s sentence even if the fraudulent scheme is so outlandish that it never could
 e federal district judge imposed a 20-year sentence on defendants who
have succeeded in the first place. For instance, on

used AOL email accounts to impersonate Buryatian nationals and Yamasee tribesmen seeking a
five billion dollar loan to rebuild a pipeline across Siberia .119 Unsurprisingly, the only person who was “defrauded” by the scheme was a
government informant. Even though the defendants had no chance of succeeding in the scheme and no loss could possibly have occurred, t he judge imposed a 20-year

sentence largely based on an intended loss of $3 billion . The Second Circuit reversed, finding that no legitimate investor would have fallen prey to
such an outlandish scheme. The concurring judge noted that “[e]ven if it were perfect, the loss guideline would prove valueless in this case, because the conduct underlying these convictions is more farcical than
dangerous.”120 Despite cases like this, the Guidelines permit sentencing judges to rely entirely on intended loss. Even when actual loss has occurred, loss calculations need not be precise or certain. The sentencing

the significantly lower

judge is only required to make a “reasonable estimation” of loss.121 Nor is the prosecution required to prove losses beyond a reasonable doubt;

preponderance of the evidence standard applies at sentencing.122 In other words, a defendant considering whether to exercise [their]right
to trial knows that, even if he decides to put the prosecution to its proof and is acquitted of certain charged conduct, he may still face an enhancement for that conduct at sentencing. In cases where losses are
particularly difficult to calculate, prosecutors have even greater leverage to force pleas.123 They may even use novel theories for calculating losses during plea negotiations to overstate the severity of a defendant’s
likely sentence.124 Lower-level members of a fraudulent scheme are more susceptible to these threats because they rarely know the full extent of the loss. Unless contrary information is presented at sentencing, a
sentencing judge is permitted to rely solely on the loss amount that the parties stipulate to in a plea agreement.125 Thus, few defendants will risk going to trial if they can secure the prosecution’s agreement to a

low loss amount by pleading guilty. In addition to these tactics,the government may also engage in sentencing entrapment . In such cases, the
government uses an undercover agent to investigate criminal conduct but then exacerbates the magnitude of the defendant’s conduct to boost the Guidelines calculation and create a sentence that will be high

enough to coerce a guilty plea. The government may do this by prolonging its investigation even after it has
sufficient evidence to obtain an indictment. This practice is entirely permissible in many federal Circuits because judges are unwilling to invade the government’s
discretion to investigate crimes.126 In other cases involving crimes like those subject to Section 2B1.1 — where sentences

depend so heavily on quantities involved in the crime — the government may also instruct its
agents to deliberately increase those quantities to in turn increase the applicable Guidelines
ranges that will apply. Overlapping Enhancements Double-Count the Same Conduct On top of the
enhancement for amount of loss, Section 2B1.1 contains 29 specific offense characteristics (“SOCs”) that call for

additional enhancements to a defendant’s total offense level .127 At first glance, the SOCs could be viewed as an attempt to more accurately
distinguish between the seriousness of different types of economic crimes. But the SOCs almost always aggravate sentences rather than reduce them. So more offense levels are piled on to sentences that are
already bloated and out of proportion with culpability because of the onerous loss enhancement. The SOCs are thus serving no distinct purpose other than to give prosecutors more leverage to threaten higher
sentences.128 Additionally, many of the SOCs involve factors that are already taken into account in the loss calculation itself. Frank Bowman — one of the drafters of the modern version of the fraud Guideline (and
now an outspoken critic of it)129 — has explained that the loss calculation was originally intended to serve as a proxy for multiple factors relevant to the seriousness of an offense.130 Over time, however, the

Commission added more and more SOCs to the Guideline but failed simultaneously to decrease the enhancements under the loss table.131 So
factors that were already incorporated into a defendant’s sentence through the loss
enhancement are now frequently double-counted.132 By way of example, the Guidelines stack additional offense levels on top of the loss enhancement
when the offense involves a certain number of victims.133 But higher loss crimes are already much more likely to include a large number of victims because they involve high losses.134 The same could be said for
the “sophisticated means” enhancement, which adds two levels where the defendant “intentionally engaged in or caused [] conduct constituting sophisticated means.”135 As losses are higher, it becomes far more
likely that the defendant will have needed to use “sophisticated means” to achieve them.136 The definition of “sophisticated means” does not provide much guidance on when the enhancement should apply:
“especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.”137 The application notes provide only two specific examples, one of which is now included in
the text of the Guideline itself.138 This makes it ripe for use by the prosecution as leverage during plea negotiations.139 The SOCs can also overlap with each other and other Guideline provisions. For example,
Section 3B1.3 calls for a 2-level increase to the offense level if the defendant used a special skill.140 “Special skill” is not defined, so in many cases, both the sophisticated means SOC and the special skill SOC could
apply to the very same conduct. The Commission has generally acknowledged this phenomenon of “factor creep,” explaining that “as more and more adjustments are added to the sentencing rules, it is increasingly
difficult to ensure that the interactions among them, and their cumulative effect, properly track offense seriousness.”141 However, because the Guidelines do not counsel against applying multiple SOCs even when
they overlap, prosecutors can rely on them to threaten higher sentences if defendants refuse to plead guilty.142 Because the Guidelines are untethered from determinations of actual culpability, prosecutors have
the power to threaten sentences for economic offenders that are generally reserved for the most heinous of violent criminals. A most egregious instance of double-counting occurs in securities fraud cases involving
public companies. A small impact on a large public company can easily result in losses exceeding $20 million, and securities fraud will involve a large number of victims by its very nature.143 So even before
considering any SOCs, defendants in these cases are almost always facing offense levels in the high-20s.144 But because so many SOCs potentially apply in these cases, sentences can easily reach life imprisonment,

under the current Guideline, an officer or director of a public

even where the loss amount is relatively low.145 For instance,

company convicted of securities fraud could receive: Base offense level, §2B1.1(a)(1) 7 More than $3.5 million loss, §2B1.1(b)(1) +18 Substantial
financial hardship to 25 or more victims, §2B1.1(b)(2) +6 Sophisticated means, §2B1.1(b)(10) +2 More than $1 million in gross receipts, §2B1.1(b)(16) +2 Violation of securities laws by officer of public company,

§2B1.1(b)(19)(A) +4 Aggravating role in offense, §3B1.1(a)146 +4 TOTAL OFFENSE LEVEL: 43 ( life ) As the above calculation illustrates, Section 2B1.1 can result in harsher sentences than those typically
imposed in cases of murder, kidnapping, and sexual abuse.147 Even if one were to argue that a multi-decade sentence is truly appropriate in a particular case, the Guidelines are so onerous that the sentencing
judge may be required to depart downward from the Guidelines range to reach that sentence.148 Because the Guidelines are untethered from determinations of actual culpability, prosecutors have the power to
threaten sentences for economic offenders that are generally reserved for the most heinous of violent criminals.149 Although they may be lenient when a defendant agrees to plead guilty, they exhibit no restraint
in seeking the highest sentence possible when defendants dare to exercise their right to trial.150 The Commission’s 2015 Amendments: A Tepid Attempt at Reform In a series of well-publicized cases following
Booker, a few federal judges flexed their newly-acquired discretion and spoke out against the absurdly lengthy sentences produced by the fraud Guideline. In 2006, Judge Rakoff of the Southern District of New
York rejected a Guidelines sentence of life imprisonment for a first-time non-violent offender accused of securities fraud and instead imposed a sentence of 42 months.151 In explanation, he noted “the utter
travesty of justice that sometimes results from the guidelines’ fetish with abstract arithmetic, as well as the harm that guideline calculations can visit on human beings if not cabined by common sense.”152 In 2012,
the Commission announced that it was beginning a multi-year effort to study sentences for economic crimes and that it intended to make reform to Section 2B1.1 a priority.153 Those efforts culminated in a series
of amendments to Section 2B1.1 that took effect in November 2015. The loss table was tweaked to account for inflation, the victims table was amended to focus less on quantity and more on victim impact, and the
definition of intended loss was rewritten to clarify that it is a subjective standard.154 Although these changes were welcome, most commentators agree that the Commission’s reforms did not go far enough, and
many predict that the amendments will have little real-world significance.155 By way of example, the Commission revised the victims table so that higher-level enhancements are applied only if the relevant offense
conduct caused “substantial financial hardship.”156 But, as one commentator has pointed out, focusing on victim impact will still favor prosecutors since most of the evidence will likely be in the form of hearsay,
and defendants will have no access Bradley Stinn, Friedman’s Jewelers, and the Trial Penalty As CEO of Friedman’s Jewelers, Bradley Stinn had led [their]company from a failing regional business with $40
million in debt to a thriving, national chain with over 700 stores throughout the country. Stinn was one of Friedman’s largest shareholders and was unswervingly devoted to its success during [their]eleven years
with the company. Unbeknownst to Stinn, Friedman’s CFO, Vic Suglia, and its controller, John Mauro, had been aiding one of Friedman’s vendors in a fraudulent loan scheme. When the SEC and DOJ began
investigating Friedman’s involvement in the scheme, they also uncovered questionable accounting practices that had allowed Friedman’s to overstate its earnings. The government brought criminal charges against
Suglia and Mauro related to the loan fraud and five accounting violations. Both admitted the charges and pled guilty. Although the government agreed that Stinn knew nothing of the loan fraud, it indicted him for
securities fraud because Suglia and Mauro’s accounting manipulations had allegedly resulted in misleading statements in Friedman’s public filings. The government offered Stinn a 5-year maximum sentence if he
pled guilty, but Stinn did not take the deal because he’d had no personal involvement in preparing the financial statements and said he would not be able to truthfully admit that he knew they were false. Suglia and
Mauro both testified against him at trial, and Stinn was convicted. Members of the jury explained after the trial that they had convicted Stinn because they believed he knew about one of the alleged accounting
violations and should have disclosed it. But they explained that they understood Stinn’s role in the offense to be minimal. The presentence report ignored this evidence and based its analysis on the facts alleged in
the indictment, even though members of the jury had admitted to having rejected most of those allegations. The presentence report calculated $100 million in losses and applied a host of specific offense
characteristics to reach an offense level of 48. The recommended sentence was 70 years. As a first-time offender who had already suffered significant losses from [their]own large investment in Friedman’s — and
who faced a restitution penalty on top of that — Stinn argued for leniency. Former colleagues, one of the jurors, and even a long-time Friedman’s investor who had lost money in the fraud wrote in support of
Stinn’s request. But the prosecution vehemently defended the Guidelines calculation and urged the court to impose a lengthy sentence. The judge ultimately sentenced Stinn to 12 years in prison. Suglia and Mauro
— who had actually manipulated Friedman’s accounting records and participated in the separate fraudulent loan scheme — were sentenced after Stinn. In stark contrast, the prosecution recommended no jail time,
and they were sentenced to probation. to that information before sentencing and no meaningful way to challenge it.157 Another commentator explained that virtually all high-loss defendants will still get at least
the 2-level enhancement for 10 or more victims, and many will still get a 4 to 6-level enhancements because it is likely that at least a few of their victims suffered substantial financial hardship.158 Ultimately, loss
continues to overwhelm other sentencing considerations, and the amendments did nothing to address the increasing number of overlapping SOC enhancements.159 The full impact of the Guidelines — absent
negotiated reductions — can only truly be tested if defendants go to trial. Thus, fewer trials masks the need for reform, keeping onerous Guidelines in place, which perpetuates prosecutors’ leverage to force pleas,
in turn decreasing the number of trials, and the cycle endlessly repeats. In rejecting more sweeping change, the Commission maintained that the fraud Guideline was not fundamentally “broken,” as some had
argued.160 But it reached that conclusion based on sentencing data that was overwhelmingly the result of plea bargaining. In other words, the Commission failed to consider how the Guidelines operate in the
abstract, absent the prosecution’s willingness to bargain away otherwise applicable enhancements.161 Because of that, the fraud Guideline remains a daunting tool in the hands of prosecutors. The Department of
Justice and U.S. Attorney’s Office, for their part, opposed many of the changes the Commission did make to Section 2B1.1, revealing a deep-seated unwillingness to relinquish the power to coerce pleas.162 While
they admitted that the fraud Guideline was imprecise, they simultaneously maintained their position that sentences for economic crimes were not harsh enough. For instance, in 2011, then U.S. Attorney for the
Southern District of New York Preet Bharara acknowledged that the Guidelines do not offer “meaningful guidance for differentiating among financial criminals and accurately gauging their relative culpability,”
but as a solution he proposed two new aggravating SOCs for insider trading offenses and a floor for mortgage fraud cases that would set a default loss amount even in cases where the victim banks did not actually
suffer any loss.163 In recent years, the Department of Justice has pushed for more and more SOC enhancements with the specific purpose of further increasing sentences for economic offenders.164 The result of
efforts to amend Section 2B1.1 reveals a flaw in the Commission’s procedures for internal reform. Although the Commission collects a vast amount of data each year on the application of the Guidelines and

The full impact of the

conducts an annual process to amend them, those efforts rarely, if ever, look at how the Guidelines can be manipulated by prosecutors to force guilty pleas.

Guidelines — absent negotiated reductions — can only truly be tested if defendants

go to trial. Thus, fewer trials masks the need for reform, keeping onerous Guidelines
in place, which perpetuates prosecutors’ leverage to force pleas, in turn decreasing
the number of trials, and the cycle endlessly repeats.

Justice has no value if the truth is sacrificed for expediency

Strutin 2014, Ken Strutin (Director of Legal Information Services, New York State Defenders
Association. J.D., Temple University School of Law, 1984; M.L.S., St. John‘s University, 1994;
B.A., summa cum laude, St. John‘s University, 1981), “Truth, Justice, and the American Style
Plea Bargain,” Albany La Review, 2013/2014,
http://www.albanylawreview.org/Articles/Vol77_3/77.3.0825%20Strutin.pdf

Indeed, the paths of the plea offer and trial are complicated by the interaction of human and legal factors.32The
defendant, who
possesses direct evidence, might be factually innocent , factually guilty or incompetent to self-assess, e.g.,
suffering from a mental disease or defect, amnesia or drug or alcohol addiction, or simply
unapprehending of the significance of the event in the legal scheme. Every defendant shares the fear
of a wrongful conviction, whether they are in fact innocent or guilty, still both are entitled to
fundamental fairness. And without fairness, the strength of the prosecution‘s case and the availability
of excuses or justifications cannot be evaluated . Thus, the choice to plead guilty and waive the right to trial
might be of convenience, necessity, or inevitability. Indeed, the plea itself might be a legal fiction
made compulsory by legal realities .33 Plea bargains are essentially built-in leniency , the reward for judicial economy
and the minimization of risk for the accused. While trials have been called to task for their approach to factual analysis and the accuracy of
convictions, the
plea forestalls all criticism because the accused is allocuting or confessing voluntarily and the facts are
stipulated and re- scripted. So the question must be asked: Wherein
does justice lie when legal truth is
sacrificed to legal expediency?

Justice is the most vital aspect of human existence

Choplin ’18 [Lauren; the NhRP's Communications Director. She received an M.A. in English
from Rutgers University in 2014, an M.F.A. in Creative Writing from the University of Alabama
in 2010, and a B.A. in English with a minor in International Relations from the University of
Southern California in 2004.; 7-5-2018; “Upholding Fundamental Values and Principles of
Justice”; https://www.nonhumanrights.org/blog/values-principles-justice/; Accessed 7-7-2020;
RG-Camp]
“Injustice anywhere is a threat to justice everywhere.”– Martin Luther King, Jr., Letter
from a Birmingham Jail (1963)

As with human rights, nonhuman rights are based on fundamental values and principles of justice such
as liberty, autonomy, equality, and fairness. Rights protect against wrongs that we as a
society have deemed intolerable, such as detaining individuals against their will without
sufficient cause or subjecting them to mental or physical torture. All of human history, up to and including the
present moment, shows that the only way to truly protect human beings’ fundamental
interests is to recognize their rights. It’s no different for nonhuman animals.
Whether we’re talking about vulnerable human beings or nonhuman animals like our chimpanzee and elephant clients, le gally
enforceable rights are critical to helping individuals protect and , if necessary, regain their liberty
and dignity—especially in circumstances where they might otherwise be powerless to confront
the people or institutions responsible for depriving them of these vital aspects of existence.

As we at the NhRP take stock of the first half of 2018 and look forward to the months ahead, the
importance of upholding
fundamental values and principles of justice —for the sake of all beings—is very much on our
minds, as it might be yours, too.

Indeterminate sentencing would collapse plea bargaining –

history proves the causal relationship
George Fisher, March 2k, [Law Professor at Stanford University. "Plea Bargaining's
Triumph", Yale Law Journal https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=7943&context=ylj //DMcD]
B. The Consequences of Plea Bargaining's Power Plea bargaining has used its enormous power, gained by promoting the interests of power, to help or hinder those procedural institutions that help or hinder plea
bargaining. Here I return to the image of plea bargaining as a courtier. Though plea bargaining has no power of its own, the judges and prosecutors who dictate what goes on in our criminal courtrooms do have
power - and they have strong interests in seeing plea bargaining thrive. I do not suggest that they act in concert or even that they always know the consequences of their actions, but only that they try to make plea
bargains happen. And in so doing, they raise up those procedural institutions that help plea bargaining thrive and beat down those that threaten it. I argued in Part III that the steady and vigorous growth of
probation was one consequence of this derivative power of plea bargaining. Probation stands as an especially clear case of the symbiosis that can develop between plea bargaining and a friendly procedural
innovation: Because prosecutors who sought a new method of plea bargaining made use of the same procedural device that later took the name of probation, plea bargaining helped invent probation. In the case of
the two procedural innovations that I take up now - indeterminate sentencing and public defenders - the formative influence of plea bargaining has been less direct. One can assign various causes for the failure of
the indeterminate sentence, which arose with apparent promise at the close of the nineteenth century. But a good deal of the evidence surrounding its demise traces to plea bargaining's door, and the supporters of

That is, those judges and prosecutors who found benefits in

plea bargaining indeed had a motive to wish the downfall of the indeterminate sentence.

plea bargaining had reason to shun the indeterminate sentence and to limit its growth. There are also various
ways to explain the introduction and success of organizations for the defense of the poor. Still, the evidence seems clear that public
defenders emerged at least in part because they promised to ease the course of plea bargains. We therefore must examine the
possibility that they have thrived in part because they fulfilled that promise. 1. The Indeterminate Sentence When examining the
interplay between the indeterminate-sentencing movement and the plea-bargaining system, we have to separate the
principles of the indeterminate sentence from its reality . Its principles, as I [*1045] argued in Part V, perhaps
actually aided plea bargaining. By suggesting that punishment should look forward and not backward, advocates of the
indeterminate sentence relieved judges of the strict obligation to learn all they could about the defendant's past crime before
imposing sentence - an obligation that they once had met by hearing evidence at trial. Moreover, the belief that, because judges
could not predict when a convict would be reformed, prison and parole authorities should decide the actual release date meant that
judges did not have to struggle to get the defendant's sentence exactly right. If the rough-and-tumble of the bargaining process
The reality of
produced a sentence that was other than ideal, prison and parole authorities could tailor it to fit more suitably.
the indeterminate sentence, however, if ever enacted according to the highest ideals of its advocates, would
have shrunk plea bargaining to insignificance . The purest adherents of the indeterminate sentence
thought that its indeterminacy should be complete . Once the judge sentenced the defendant to
incarceration, prison and parole authorities would release him when he had "reformed ," neither
earlier nor later, with no constraint imposed either by judge or by statute . Even in such a system, some amount
of plea bargaining might have persisted as defendants offered to plead guilty to secure probation rather than indeterminate
incarceration. But those
defendants whose crimes demanded that they serve time would have had no
incentive to plead, because both judges and prosecutors would have lacked the power
to promise a shorter term. It is probably significant, then, that no state ever enacted a
true indeterminate sentence. At the very least, "indeterminate" sentencing laws imposed a statutory maximum on
the length of incarceration, so that even an unreformed inmate at some point had to go free. The Massachusetts indeterminate-
sentencing law of 1886, the nation's second, provided that [*1046] inmates convicted of certain less serious crimes must go free
within two years and all others within five years unless the sentencing judge specified a longer term. Even such imperfect
indeterminate-sentencing provisions could have hobbled plea bargaining because they took a great deal of the power to dictate the
length of sentence from judges' hands. But another, more substantial departure from complete indeterminate sentencing left largely
intact judges' power to promise shorter sentences to defendants who pled guilty: Those states that enacted
indeterminate sentencing (of the imperfect sort just mentioned) simply made it an additional sentencing
option. Some states explicitly gave judges the choice to impose an indeterminate sentence or not, as they pleased. Others required
sentences to certain institutions to be indeterminate, but imposed no such requirement on sentences to other institutions. The 1886
Massachusetts law, for example, provided in seemingly mandatory terms that "when a convict is sentenced to the Massachusetts
reformatory, the court or trial justice imposing the sentence shall not fix or limit the duration thereof." But the law by no means
required judges to send convicts to the reformatory instead of the state prison or county house of correction or any one of several
other possible places of confinement. In 1890, in an editorial titled "Indefinite Commitments," the Boston Evening Transcript
complained that "some change in the right direction was made by the legislature of four years ago, but the law has not accomplished
what was hoped. It is said that the reform has not been carried out by the judges to the full extent which it was expected...." The
paper was right to claim that judges did not often make use of the indeterminate sentence . The records of the Middlesex
Superior Court show that in 1890, judges chose the reformatory for barely ten percent of convicts who served time - a figure that rose to twenty-two percent in 1896 before falling back to eighteen percent in 1900
and only twelve percent in 1910. These numbers [*1047] are perhaps especially low given that the state reformatory was conveniently nearby - in Concord, at the heart of Middlesex County. Although rarely used,
the Massachusetts reformatory perhaps in its small way proved useful to the plea-bargaining regime. In his 1906 commentary on the operations of the criminal justice system in Manhattan, Arthur Train
recognized the complicated relationship between New York's reformatory at Elmira, on which the Concord reformatory was modeled, and the plea-bargaining system. On the one hand, Train wrote, because "the
Elmira sentence is indeterminate, the defendant has nothing to gain by pleading." On the other, court officers who wanted to encourage guilty pleas sometimes told defendants of the "joys of Elmira." Despite the
uncertain length of a sentence to Elmira, therefore, some defendants perhaps preferred that option because they feared worse conditions elsewhere. Other defendants may have had geographical preferences - the
reformatory at Elmira (or Concord) might have been closer to family and friends than the state prison at Auburn (or Charlestown). In any event, as long as judges had no obligation to send convicts to Elmira or
Concord, then by adding this option to the mix, the legislature simply added one more axis along which judge, prosecutor, and defendant could cut a deal. In fact, although Middlesex judges exercised the Concord
option only rarely, the great majority of defendants who received a reformatory sentence had pled guilty. Only thirteen percent of those who went to the reformatory in 1890 had gone to trial and lost - a figure that
rose to thirty-one percent in 1896, but then shrank to eight percent in 1900 and a mere five percent in 1910. The corresponding figures for other institutions were almost always between two and five times as great.
From Train's description of Elmira and this evidence of sentencing practices in Middlesex, we may conclude three things: First, because indeterminate sentences generally did not appeal to defendants, judges and
prosecutors rarely found the reformatory option helpful in the plea-bargaining process, and the great majority of convicts served their time elsewhere. Second, when defendants did happen to prefer a sentence to
the [*1048] reformatory over one to another institution, judges were pleased to accommodate them in the interests of gaining a plea. And third, when defendants instead refused to plead guilty, insisted on their
trial right, and lost, judges rarely sent them to the reformatory. That is, judges generally did not delegate the measure of punishment to the authorities who controlled release from the reformatory, for those
authorities might not sufficiently tax the defendant for having burdened the court with a trial. Instead, judges usually punished defendants who lost after trial by imposing a more definite sentence: They sent them
for a specified term to another institution. With the reformatory enjoying but small popularity among Massachusetts judges, the legislature tried to advance the ideal of the indeterminate sentence in other ways -
first by instituting parole for state prisoners in 1894 and then by requiring judges to specify minimum and maximum terms to the state prison in 1895. The 1894 law made state prisoners eligible for release on

Advocates of the true indeterminate sentence dismissed

parole at the discretion of a parole board after serving two-thirds of their term.

parole regimes as poor imitations because they merely permitted a limited reduction of an
otherwise fixed sentence. Yet of all regimes that approached true indeterminacy, parole surely was the most significant: By
1900, twenty states had adopted some form of parole, but only eleven had put in place a more nearly indeterminate sentence along
the lines of the Concord/Elmira model. With the 1895 law, the Massachusetts legislature tried to advance the simple parole system
one step closer to true indeterminacy. The law provided that "the court imposing the sentence [to state prison] shall not fix the term
of imprisonment, but shall establish a maximum and minimum term for which said convict may be held in said prison." It then
provided that the convict would be eligible for parole at any time after completing the minimum term. Again, the law
by no
means achieved true indeterminacy: Not only did the judge dictate both a floor and a ceiling for
every sentence, but the maximum terms defined by statute still constrained the judge's discretion . But
again, laws following this model spread across the nation , taking hold in twenty-three states by 1925. [*1049]
Even the limited indeterminacy introduced by these two laws might have inhibited plea
bargaining's progress to the extent that they lessened the judge's power to promise defendants a particular sentence. As
it was, however, the laws lost much in the translation from theory to practice and soon proved to be no more an obstacle to plea
bargaining than was the reformatory at Concord. As with the reformatory, Middlesex judges made little use of these
new indeterminate sentences. Although the state prison was the destination for nineteen percent of incarcerated convicts in 1890, before the laws took effect, that figure fell to
ten percent in 1896 and eight percent in 1900 before recovering somewhat to eleven percent by 1910. In their reluctance to impose minimum and maximum terms to the state prison, Massachusetts judges
followed New York judges, who reportedly spurned a similar sentencing option enacted in that state in 1889. When Middlesex judges did impose state-prison sentences under the new parole regime, they very
rarely did so in connection with plea bargains. In 1890, before enactment of the new laws, fifty-six percent of state-prison sentences followed guilty pleas. In 1896, with the laws in place, only fourteen percent did
so. These figures go some distance toward explaining the odd retreat in the overall rate of guilty pleas that I found in 1896. Yet by 1900, the rate of guilty pleas not only had recovered, but had advanced a good
distance. Eighty-one percent of state-prison sentences that year followed guilty pleas. Something must have changed. The change appears in the statute book. In 1898, three years after the legislature had required
judges to specify minimum and maximum terms to the state prison, it amended the parole law to provide that state-prison inmates "shall be entitled to release from said prison upon the expiration of the minimum
term" if they have observed all prison rules and were not punished for prison misconduct. For any state-prison inmate who behaved behind bars, the judge's sentence now dictated the exact date of release.
Notwithstanding the claimed indeterminacy of sentences to the Massachusetts state prison, parties engaged in plea negotiations therefore could predict the date of release with near certainty. My search has

With all the indeterminacy

uncovered no evidence of the legislature's motives in changing the law, but the results of the change were both predictable and immediate:

boiled out of the state-prison sentencing scheme, plea bargaining returned and
advanced apace. [*1050] Evidence from many other states reveals a similar aversion to any parole scheme that approached
true indeterminacy. Like Massachusetts, New Hampshire required automatic release at the end of the minimum term for prisoners
who had not misbehaved behind bars. Pennsylvania's parole statute did not directly require release at the end of the minimum term,
but by commanding the relevant authorities to explain any decision not to release "in writing...in detail," the law probably achieved
the same result. In other states, even absent such statutory commands, decisions of parole boards became very easy to predict. In
New York in 1906, Arthur Train reported that a convict sent to Elmira to serve a supposedly indeterminate sentence "will be released
in fourteen months if his conduct appears to warrant it" - a figure he repeated a few pages later. The Prison Association of New York
claimed in 1916 that more than ninety percent of parolees in that state won parole either immediately upon completing their
minimum term or within one month afterward. Next door in New Jersey, a report of the following year put the point more directly:
In actual practice parole is granted as a matter of course at the expiration of the minimum term, except in those cases in which the
applicant has had his minimum term extended as a penalty for misconduct in prison… Thus, in
all the state institutions[]
is the aim of the indeterminate sentence defeated by the policy of the paroling authority . In 1937,
the Harvard Law Review complained in general terms that "the correctional benefits which should result
from imprisonment under an indeterminate sentence have often been lost by the mechanical
application of parole." And a modern scholar has concluded that "release at the earliest possible date was [in these early
years] a right rather than a privilege." The significance of such predictability is clear: "Indeterminate" sentences would have posed
no great obstacle to plea bargaining if negotiating parties could say with confidence when such sentences would [*1051] end. In fact,
in an odd way, a
parole system that embraced automatic release dates might have been the best of all
possible worlds for plea bargaining: Such a scheme permitted the parties to agree upon a sentence that sounded long
enough to satisfy the public's desire for harsh punishment, but in reality was short enough to entice the defendant to plead. Still, it is
not clear why parole boards should so quickly have abandoned the principles of parole and adopted a practice of nearly automatic
release dates. Sheer overwork must have played a part: A New York review committee found that during a twelve-month period in
1917 and 1918, the state's parole board met forty times to consider 1411 parole applications - or about thirty-five applications per day.
At a quarter-hour per case, the board could hardly make an intelligent individualized judgment about each prisoner's fitness for
parole. Parole boards in Massachusetts and Illinois and probably many other places faced similarly overwhelming dockets. Perhaps
such boards felt that the only fair [*1052] alternative in the circumstances was to adopt a rigidly defined early release date. Or
perhaps prison overcrowding demanded release at the earliest eligibility date. In either case, we see at work the same impulse
toward efficiency that helped power the plea-bargaining system. Judges did not depend entirely on early release dates and the
cooperation of parole boards to maintain the determinacy of supposedly indeterminate sentences. In Massachusetts, after the 1898
law change ensured release at the end of the minimum term for prisoners who did not misbehave in prison, judges attempted to
keep control of the release dates even of those inmates who broke prison rules and had to serve out their maximum terms. In 1900,
the average state-prison sentence in Middlesex County called for a minimum term of four years and a maximum term of 5.2 years.
The judges therefore rejected the advice of Warren Spalding, an advocate of the indeterminate sentence and a former secretary to
the state board of prison commissioners, who wrote in 1895 that to accomplish the goals of the indeterminate sentence, judges
should leave a margin of at least three years between the minimum and maximum terms of short state-prison sentences and a
margin of at least five years in longer sentences. By compressing the gap between minimums and maximums , judges
deprived
the parole board of almost all discretion in setting release dates . In 1910, Middlesex judges approached
closer to Spalding's target and imposed an average state-prison sentence of 5.8 to 8.2 years. Still, commentators in Massachusetts
and elsewhere continued to press demands that judges not squeeze all the indeterminacy out of minimum/maximum sentencing
schemes. As the Harvard Law Review wrote in 1937, "The history of indeterminate sentence legislation is not without attempts by
judges to [*1053] defeat the purpose of these acts by fixing the minimum term at slightly less than the maximum." Several states in
fact legislated specifically against this judicial avoidance tactic. It is of course possible that judges resisted the indeterminacy of the
new sentencing schemes merely because they resented the legislature's invasion of their sentencing power. Plea bargaining perhaps
benefited, therefore, from the fortuity that judges' pride happened to prefer a more definite sentencing structure. And for that
matter, it is possible that the nation's parole boards regularly released inmates at their earliest eligibility date only because it was
efficient to do so and not because such predictable practices facilitated plea bargaining. It is possible, in other words, that the link
between plea bargaining and the downfall of the indeterminate sentence is causal only in the sense that both served the interests of
judges and both served the interests of efficiency. Other evidence, however, suggests
a more direct and purposive
connection between plea bargaining and the receding ideal of the indeterminate sentence . We begin to
see a glimmer of such a causal link in a report on the Massachusetts parole board written by Professor Sam Warner of the Oregon Law School in the early 1920s. Warner focused on parole from the Massachusetts
reformatory. As we have seen, sentences to the reformatory came rather close to true indeterminate sentences. Judges imposed no minimum or maximum term, and hence no law required release upon expiration
of the minimum term. Warner found that in the exercise of its very broad discretion to set the date of release, the parole board gave a clear if modest preference to those convicts who had pled guilty rather than go
to trial. Although about eighty percent of those granted parole had pled [*1054] guilty, only sixty-seven percent of those not granted parole had done so. These numbers suggest that one reward for pleading guilty
may have been a readier release on parole. A far stronger causal link between plea bargaining and early release on parole emerges from a 1928 report on the Illinois parole system written by Dean Albert J. Harno
of the University of Illinois Law School. Harno and fellow members of a review committee "found that occasionally serious problems arise between the [Parole] Board and the state's attorney and even the trial
judge over representations made to a prisoner when his plea of guilty is secured." Harno condemned the practice of making "a promise to the [defendant] or [giving] an intimation to him that if he pleads guilty he
will be released, or is likely to be released, after a specified period of confinement." Harno quoted one prosecutor who frankly wrote the superintendent of the state's reformatory in reference to three young
inmates: Prior to sentence Judge...and I agreed that on a plea of guilty we would recommend parole on the minimum time, providing, of course, that the boys, or any one or more of them, had conducted
themselves in a manner to warrant parole. Other letters to the parole board followed - from the judge, defense counsel, police chief, and (again) the prosecutor - all relating or suggesting the same deal. One
defense lawyer noted that the judge and prosecutor "advised me they had never known of any case wherein the Parole Board had disregarded a joint recommendation from the State's Attorney and the Presiding
Judge." He added that "the State of Illinois will do these boys a great injustice if they do not admit them to parole now." Another lawyer on the same case wrote that "the State should in good faith try to carry out
that to which the State's Attorney and the Trial Judge pledged them in so far as they had the power to pledge them." Although Harno's study did not extend beyond Illinois, and although I have found no clear

"parole bargaining" in Massachusetts or other states, I suspect nonetheless that the practice was
evidence of

widespread. After all, by the time of [*1055] Harno's report, guilty-plea rates in the vast majority of American cities exceeded
seventy percent and almost every state had a parole law. There is one last piece of evidence - this one of a more modern
vintage - that suggests that the indeterminate sentence's demise may have proceeded directly from
judges' and prosecutors' determination to persevere in plea bargaining . Around the turn of the twentieth century, at least six
states, including California, adopted parole laws that approached close enough to a true indeterminate-sentencing scheme to raise a genuine challenge to the vitality of plea bargaining. In a certain range of cases,
these statutes deprived the judge of all power to measure the term of confinement to state prison. Instead, when a judge sent a convict to state prison, the parole board unilaterally set the date of release,
constrained only by the minimum and maximum terms imposed by law. Such a regime raised obvious obstacles to any plea-bargaining scheme: Not only did it leave judges powerless to promise a particular
release date to defendants who pled guilty, but it also disabled them from imposing a certain and harsher penalty on defendants who risked trial and lost. That is, even to the extent that judges or prosecutors could
have persuaded parole authorities to release convicts who pled guilty at their earliest eligibility dates - an action that might have suited the boards' interests in avoiding prison overcrowding or in developing an
easy rule of thumb for the treatment of most prisoners - it might have been far more difficult to persuade those same boards to penalize those convicts who did not plead guilty by keeping them beyond their first
release dates. In contrast, under a typical parole system, judges could punish recalcitrant defendants who burdened the court with a trial by imposing harsh minimum terms that, even when reduced by the amount
the parole law permitted, still penalized defendants for their poor choices. Despite these obstacles, California judges, prosecutors, and defense lawyers adapted their plea-bargaining tactics to this regime too - and
in ways that once again frustrated the goals of the indeterminate sentence. Lynn Mather's study of the operations of the Los Angeles County courts in the early 1970s shows that by that time, only six percent of
accused felons ultimately convicted of a crime ever went to state prison. Instead, the vast majority of convicts originally charged with felonies secured a mere misdemeanor conviction and either received probation
or served time in a [*1056] lesser institution, or both. The most important axis along which plea bargaining took place became the distinction between a state-prison term and no state-prison term. Mather reports
that when the charged offense called for mandatory state-prison time, plea bargaining often took the form of prosecutorial charge bargaining, for without a prosecutor's motion, the judge could not reduce the
charge to one that permitted a lesser penalty. But when the judge had the discretion to choose between imposing and not imposing state-prison time, plea bargaining tended to take place directly between the judge
and defense counsel by a process known as "chamberizing": The judge and lawyers would meet in the judge's chambers, where the judge could spell out or hint at the sentence she would impose should the
defendant plead guilty. Albert Alschuler reports another means of evading the California parole authorities' power to dictate the length of sentence. In the 1960s, when Alschuler observed court business in San
Francisco, defendants often pled guilty and were then sentenced to an indeterminate term in state prison. Instead of putting that sentence into effect, however, the judge would suspend it and impose probation
during the term of suspension. Then, as a condition of probation, the judge would impose a county-jail term. By judicial sleight of hand, a seemingly illegal jail term took the place of a seemingly mandatory state-
prison term - and all in accord with the law. Thanks to such ingenious devices, by the time California officially abandoned its experiment with the indeterminate sentence in 1976, there was very little
indeterminacy left. This brief sketch of the indeterminate sentence's slide from prominence suggests that several different causal strands may have tied plea bargaining's continued rise to the indeterminate
sentence's demise. Judges, prosecutors, and defense lawyers, first of all, may have evaded the indeterminacy imposed by the new laws by bargaining for definite sentences at certain institutions rather than
indefinite sentences at others. Second, some state legislatures acted to require or encourage release on parole at the earliest opportunity and thus restored the predictability that plea bargaining needed to thrive.
Third, judges may have erased the [*1057] indeterminacy from minimum and maximum sentences by setting the minimum term close to the maximum and thereby contriving predictable sentences that could lure
defendants into pleading guilty. Fourth, parole officials may have rewarded those convicts who pled guilty with earlier release dates and hence may have created a direct incentive for defendants to strike plea
bargains. Fifth, some judges and prosecutors appealed to parole authorities to stand by promises made in the course of plea negotiations that the defendant would walk free on a certain date. Finally, a single cause
- overcrowding in the criminal justice system - may have promoted both the efficiency of plea bargaining and the nearly automatic decisions of some parole boards to release convicts at their earliest eligibility date,
 This multiplicity of mechanisms, each supported by
a practice that in turn facilitated plea bargaining by making release dates more predictable.

evidence from separate sources, makes it highly unlikely that the historical correlation between
plea bargaining's rise and the indeterminate sentence's fall was simple coincidence . By various
devices, those forces that impelled plea bargaining's progress also compelled that the
indeterminate sentence make way.

Scenario 2 – Mass Incarceration

Determinate sentencing fails and leads to massive prison growth
Alexandria K. Castaldo, 2017, [Castaldo is an associate attorney at Phillips and Angley since
2017. "Federal Sentencing Reform: Will Changing The Sentencing Discretion Regarding The
Armed Career Criminal Act Violate Due Process?", Suffolk University Law Review
https://heinonline.org/HOL/LandingPage?
handle=hein.journals/sufflr50&div=17&id=&page= //DMcD]
III. Analysis A. Historic Sentencing Reforms Did Not Violate Due Process The Constitution explicitly provides Congress the
authority to punish any wrongs or offenses committed against established laws. It was not until Ex parte United States that the
Supreme Court recognized the judiciary's authority to impose sentences against individuals who violated criminal laws. This
authority broadened over time when sentencing judges began to consider rehabilitation as a way for offenders to re-enter society in a
reasonable, productive manner. Sentencing judges had to work within the confines of the statutory timeframes established by
Congress, but the discretion to decide the appropriate sentence for each offender was left to the judge's knowledge and experience.
Sentencing judges' broad authority came under attack in the 1980s because gross inconsistencies resulted from each judge providing
his or her own discretion when sentencing individual offenders. Hostility toward the sentencing system grew so strong that Congress
established a new sentencing [*290] framework in the 1980s. Courts did not consider the new structure a violation of an offender's
due process rights because the need for reform was essential and constitutionally permissible. According to the Fifth Amendment's
Due Process Clause, any individual who commits a crime must be provided notice of the type of punishment said offense entails;
failure to provide such notice deprives the individual of his or her fundamental right. With three major sentencing reforms
throughout American history - and the current uncertainty surrounding the sentencing of career offenders - now
is the time
for Congress to consider reforming the sentencing structure to focus on rehabilitating
offenders. B. Refocusing Sentencing Structure to Rehabilitation Methods Since the SRA became
effective, the United States's prison population has grown exponentially as a result of the
focus on punishing offenders with harsher sentences. Despite the SRA's primary aim to reduce
recidivism, the significant increase in the prison population suggests these reforms
have been unsuccessful. The Supreme Court began the sentencing reform process [*291] when it declared the residual
clause of the ACCA unconstitutionally vague. In voiding the clause, the Court noted the lack of uniformity among sentencing judges
in defining the single hypothetical crime that could encompass all levels of risk that amount to a violent felony. The Court's specific
wording in Johnson leads one to believe that not only is the residual clause unconstitutional, but there may be serious suspicions
about upholding the categorical analytical approach in the future. Moreover, it may be time for the Supreme Court to reanalyze the
modified categorical approach as being the most beneficial method of helping sentencing judges determine punishments that are
appropriate for each offender. C. Developing Cognitive Behavior Therapy for Career Offenders in Connection with a Modified
Categorical Approach The ACCA's primary goal is to reduce the rate of recidivism by preventing violent criminals from returning to
society; the best way to ensure this result is for Congress to adopt a CBT that targets these individuals' criminal behaviors. A
sentencing judge, applying a modified categorical approach, [*292] should have access to court documents that detail the offense
and, if a court finds the career offender has a propensity to commit violent felonies, then judges should recommend CBT in
connection with a prison sentence. Research demonstrates that CBT effectively reduces recidivism rates in serious adult offenders,
and Congress should be mindful of such research when establishing sentencing reform in the future. Researchers observed that the
most successful results of CBT are among high-risk offenders who are part of extensive programs geared towards monitoring
behavioral tendencies of serious offenders. Following tradition, Congress should establish a new sentencing framework that applies
a modified categorical approach to the conduct of individual offenders to allow sentencing judges the opportunity to consider each
offender in his or her individual capacity. Not only would the modified approach treat offenders as human beings, but it would allow
sentencing judges to understand the totality of the circumstances and decide the best form of punishment to benefit each offender.
The harsh punishments within the United States's [*293] sentencing structure have been ineffective, and now is the time for
sentencing to refocus on rehabilitative frameworks that lead to fewer offenders serving unnecessarily long prison sentences. Ideally,
with close monitoring systems and a resourceful CBT plan, recidivism rates will decrease, ultimately resulting in far fewer
individuals facing and serving enhanced ACCA sentences. IV. Conclusion Has the American criminal sentencing structure finally
reached the disastrous point where both parties in Congress will work together to ensure a more efficient and successful method of
analyzing offenders? Researchers
and scholars agree that determinate sentencing has failed, and it
is time
for a reform that is directed toward helping offenders instead of punishing them for
wrongs committed. Although the ACCA was established within the SRA to combat the recidivism rates of the most serious
offenders, the legislature needs to admit defeat and pursue sentencing reforms seriously. The Sentencing Reform and Corrections
Act is a step in the right direction because it will enable sentencing judges to minimize the effects of mandatory minimum
sentencing, which have directly resulted in mass incarceration in the American penal institution. More needs to be done for
offenders sentenced under the ACCA and other high-risk offenders because these individuals are the ones who are negatively
impacting society and the overall prison population. American
society will never be completely rid of criminal
offenses, but directly targeting these destructive behaviors in career criminals may have a
positive impact on helping reduce recidivism rates in the future. Research has proven that CBT can be
effective in high-risk offenders, and now is the time for the legislature to reform the sentencing structure once again. CBT is
supported by intensive research favoring the replacement of the present system with one that reduces mandatory minimum
sentencing and seeks to help career offenders instead of banishing them into prisons throughout the country.

Mass incarceration stretches the prison system’s resources too thin

exacerbating inhumane and degrading conditions. Every year spent in
prison decreases a prisoner’s life expectancy
Robert Wood Johnson Foundation, 18. 12-1-2018, "Mass Incarceration Threatens
Health Equity in America," Robert Wood Johnson Foundation,
https://www.rwjf.org/en/library/research/2019/01/mass-incarceration-threatens-health-
equity-in-america.html - AM
Mass Incarceration Harms The Health of Inmates, Families, Communities, and the Nation

Substantial evidence links incarceration with poor health outcomes. In the United States, incarceration
not only punishes through confinement, but is also associated with a range of adverse health
effects that last far beyond the period of confinement. Longitudinal studies have documented
strong, pervasive links between incarceration and multiple adverse health indicators across the
lifespan, even after considering health before incarceration. Compared with individuals who have never been incarcerated, current and
former inmates have significantly higher rates of communicable diseases (including sexually
transmitted infections, HIV, hepatitis C, and tuberculosis); chronic health conditions (such as hypertension, diabetes, arthritis,
and asthma); and psychiatric and substance use disorders. 20 Most adult inmates are released
from correctional facilities with more chronic medical problems than they had before admission.
13 According to the U.S. Department of Justice, one-third of illness-related deaths in state prisons from 2001 to 2004 (the latest years for which this
statistic was reported) resulted from conditions not present at the time of admission.22 The five leading causes of death in state prisons during these
years were heart disease, cancer, liver disease, AIDS, and suicide.22 Juvenile incarceration also predicts a range of adverse health outcomes in
adulthood, including worse general health; suicidal thoughts, intentions, and behavior; substance abuse; greater physical and psychological limitations;
and premature death.23-27 Examining mortality among New York state adult parolees over a 10-year period, a
2015 study found
that each year spent in prison corresponded with a two-year reduction in life
expectancy. 28 In the two weeks following release from prison, the mortality rate of former
inmates is approximately 13 times higher than that of the general population , primarily due to drug
overdose.29 Rates of suicide among those who are incarcerated are 60 percent higher than rates in the national population.30 Although incarceration
has repeatedly been correlated with poor health outcomes, researchers face the challenge of distinguishing the effects of incarceration from the effects
of cumulative health-damaging life experiences before incarceration. Adult and juvenile offenders—who are largely from marginalized communities
that suffer high rates of disease and premature death3 —enter correctional facilities with multiple health problems.31,32 Few studies, moreover, have
examined the direct health effects of the experience of incarceration itself and of conditions in different types of facilities (public prison, private prison,
jail, or juvenile facilities). Despite these limitations, current
scientific evidence documents profoundly harmful
effects of both juvenile and adult incarceration on the health of inmates throughout their
lives.21,32 Prison and jail conditions directly compromise inmate health in many ways. How can the
links between incarceration and poor health be explained, independent of the health damage that inmates are likely to have experienced before being
incarcerated? U.S.
prisons, jails, and juvenile correctional facilities are unhealthy environments,
where inmates are exposed to a wide range of conditions that are detrimental to physical and
mental health.33,34 When inmates are released, their health can be further compromised by societal stigmatization and denial of
opportunities for gainful employment, stable housing, education, and other conditions that promote good health.23 Because prisoners are more likely
than never-incarcerated individuals to have experienced unhealthful living conditions prior to confinement, incarceration could, at least in theory,
improve health for those confined. For example, correctional facilities can provide respite from toxic home and neighborhood environments, regular
and healthy meals, reduced access to drugs and alcohol, and increased access to medical care and treatment for substance dependence.3,21
Correctional facilities are the only places in the United States where health care is constitutionally mandated, thus presenting a unique opportunity for
individuals to receive medical care that they might not receive otherwise. Quality of care varies considerably across facilities, however, and
often fails—sometimes dramatically—to meet community standards of care.33,35 The increase in
the size of the incarcerated population has resulted in a scarcity of medical staff
and resources; substance abuse treatment in particular has consistently failed to meet demand.33 In at least 35
states, inmates in state or county correctional facilities must make copayments —some as high as $10036—to access medical
treatment. This can be a major deterrent to seeking care for inmates who typically earn $0–$4.90
per hour if they are actually able to secure employment while incarcerated.37 In a 2017 survey of inmates across 83 prisons in 21 states, 63 percent
of prisoners reported being denied needed health care and nearly 40 percent reported having to wait weeks or months to receive needed care.38 For
female prisoners, poor access to feminine hygiene products and pregnancy-related care can be
significant threats to health equity, as can lack of staff who are trained to provide women-specific trauma treatment.39 Correctional
environments are often so inherently unhealthy that even the most well-intended efforts to provide adequate health care are ineffective.33
Factors contributing to unhealthy conditions include substandard meals; overcrowding;
violence and sexual assault; and solitary confinement. Within prisons, jails, and juvenile correctional facilities , living conditions are
often inhumane and degrading. Prison meals often are unsanitary and nutritionally inadequate,33 putting inmates at greater
risk of food-borne illness,40 unhealthy weight gain, and chronic diseases such as hypertension Male and female prisoners are 18 and 27 times more
likely to experience physical assault than males and females in the general population.47 and heart disease. 41
Many U.S. prisoners
report having been denied meals or given too little food, being served food in containers labeled
“not for human consumption,” and/or being served moldy, spoiled, or insect-infested foods .38
High incarceration rates make overcrowding a pervasive problem that can affect
every aspect of an inmate’s life, greatly amplifying the stresses of confinement. 33 In
2016, the Federal Bureau of Prisons reported operating federal prisons at 114 percent of capacity overall.1 That same year, 14 state prison systems and
17 percent of U.S. jails were operating at or over capacity.1,2 Twenty percent of juvenile facilities were operating at or over capacity in 2014.42 Many
inmates are double- or triple-bunked in cells originally intended for one or in rooms designed to be common spaces. Overcrowding
jeopardizes cleanliness and standards of hygiene, often compromising air quality
and sanitation levels. The growing number of inmates has corresponded with
longer waiting lists for educational, vocational, and drug abuse treatment
programs and reduced recreational and work opportunities, contributing to
greater inmate idleness and subsequent tension and violence .43 Violence and sexual
assault are pervasive features of incarceration. In 2011 and 2012, 4 percent of all prison inmates and 3.2 percent of all jail
inmates (totaling approximately 80,600 inmates nationwide) reported experiencing sexual victimization by either another inmate, staff, or both during
the prior year.44 Nearly 10 percent of youth in state juvenile correctional facilities in 2012 reported being sexually assaulted in the facility.34 Female
inmates and inmates with mental disorders are at particularly high risk of sexual assault.45 Although there are no nationwide surveys measuring rates
of physical violence in correctional facilities, research suggests it is common. 46
Examining the prevalence of inmate-on-
inmate and staff-on-inmate physical victimization in 14 adult prisons over a six-month period,
one study found that male and female prisoners are 18 and 27 times more likely to experience
physical assault than males and females in the general population. 47 In a nationally representative survey of
incarcerated youth, 43 percent of children in juvenile correctional facilities or camp programs “said
they were somewhat or very afraid of being physically attacked, while 45 percent reported that
staff use force when they don’t need to.”34 Both violence and sexual assault are likely to be underreported. Fear of retaliation by
other inmates and/or staff often discourages inmates from reporting instances of sexual and physical victimization to authorities.46 By one estimate,
only 8 percent of all prisoners who experience sexual assault report their victimization.48 Solitary confinement also presents a threat to inmate health.
With overcrowding, correctional facilities have become increasingly reliant on
solitary confinement as a form of inmate control and punishment. Solitary confinement refers to
imprisonment in an isolated cell, often for 23 hours a day, with varying restrictions on exercise, showers, reading materials, food and toiletry purchases,
solitary
visitation, interpersonal contact, and participation in educational and vocational activities offered to inmates.49 Sometimes,
confinement is not a part of the sentencing of an offender sanctioned by a judge, but is applied
as an administrative measure by prison officials in response to inmate infractions.50 In Illinois, 85 percent of inmates who had been
 Inmates often
held in solitary confinement over a one-year period had been sent there for minor infractions such as using abusive language.51
are placed in solitary confinement for months or even years, with many county jurisdictions allowing prisoners to be
confined in isolation indefinitely.50 Decades of research on solitary confinement have consistently
documented its adverse psychological effects, including anxiety, insomnia, paranoia,
hallucinations, cognitive dysfunction, aggression, loss of impulse and emotional control, self-
harm, and suicide.52 While no federal reporting system tracks how many inmates are isolated at a given time, one study estimated that, in
the fall of 2014, between 80,000 and 100,000 prisoners were being held in isolation, not including persons confined in jails, juvenile facilities, or
military and immigration detention centers.49 Reports on individual facilities also reveal egregious overuse of juvenile solitary confinement, often
without constitutionally-mandated due process protections.34 In the Rikers Island correctional facility in New York City, for example, three-fourths of
the
the 140 adolescents held in solitary confinement in July 2013 were mentally ill.53 Along with extremely high rates of incarceration,
overuse and lack of regulation of solitary confinement makes the U.S. incarceration system
particularly brutal and inhumane by international standards. 50 The United Nations Human Rights
Committee, the Committee Against Torture, and the United Nations Special Rapporteur on Torture all have condemned solitary confinement practices
in the United States, stating that “they may amount to cruel, inhumane or degrading treatment in violation of international human rights law.”54 The
health consequences of incarceration persist long after release. The most serious health consequences of incarceration may not manifest until after
release. Individuals treated for chronic health conditions while incarcerated often face obstacles to accessing care after leaving the justice system. Many
are released without medications or scheduled follow-up appointments in the community, and many suffer from mental health or substance abuse
problems that can prevent them from keeping up with treatment.13 Only 19 percent of correctional facilities provide HIV-infected inmates with CDC-
recommended discharge services, which include making an appointment with a community health provider, assisting with enrollment in Medicaid or
the AIDS Drug Assistance Program, and providing a copy of the medical record and a supply of HIV medications.56 During the first two weeks after
release, former prisoners experience exceptionally high mortality rates, particularly from drug overdose, cardiovascular disease, homicide, and
suicide.57,58 The stigma associated with having a criminal record can permanently diminish a person’s employment and housing opportunities. Only
55 percent of former prisoners have any earnings during the first year after release, and those who find employment often are relegated to low-wage
jobs with poor benefits and no health insurance.11 Precarious employment or low income hinders an individual’s ability to afford rent, health
insurance, medical care, healthy food, and basic utilities such as heat and electricity—all of which can adversely affect health. Individuals facing housing
instability or outright homelessness are at increased risk of adverse health consequences including illnesses due to, or aggravated by, exposure to
inclement weather and/or violence. Exposures to health-harming conditions are further exacerbated in many states where former inmates are denied
educational loans, government-subsidized housing, food stamps, and other social services.13,23 For juveniles, even short periods of incarceration can
have severe long-term consequences. Youths who have experienced confinement are less likely to return to school in the future; many who do resume
their schooling are classified as having a disability due to a behavioral or social disorder, which reduces the likelihood that they will graduate.59
Holding other variables constant, being arrested between ages 13 and 15 lowers a person’s chances of enrolling in college by 35 percent and increases
his or her chances of being on welfare at ages 18 to 20 by 14 percent.60 The limits and barriers faced by individuals following incarceration can create
cycles of offending and reoffending, in which former inmates too often become career offenders with limited opportunities outside of crime. In three
national studies examining recidivism during the 1980s to 2000s, nearly twothirds of ex-prisoners were rearrested within three years after release.61
Among youth who have been released from detention centers, approximately 70 to 80 percent are rearrested within two or three years.62 12 |
A household
Copyright 2019 Robert Wood Johnson Foundation Mass incarceration harms the health of families, communities, and the nation.
member’s incarceration can have drastic consequences for a family’s health and well-being. The
majority of incarcerated parents were their households’ primary earners prior to sentencing but are unable to provide economic support to their
children and partners while serving time in prison or jail.12 Incarceration of a family member thus reduces a
household’s economic resources while at the same time increasing household expenses due , for
example, to legal fees and the costs of phone calls and visits to correctional facilities.63 As a result, families with an incarcerated
family member are significantly more likely to live in poverty64 and experience homelessness65
than other families, diminishing their chances for economic mobility and good health. Additionally, among women the stress of having an
incarcerated partner is associated with a higher risk of mental disorders and physical health problems.63,66 The high incarceration-related likelihood
of relationship dissolution or divorce can further increase the risks of family instability and child neglect.63,66 The relationship between a parent and
child can suffer significantly as a result of parental incarceration. The loss of care, companionship, nurturance, and stability can create chronic stress
for the child.i A rich body of longitudinal and other studies has documented numerous adverse effects of parental incarceration on children,
independent of many other factors known to influence outcomes. For example, paternal incarceration is associated with significant increases in
aggressive behaviors and attention deficits in early childhood.67 Having an incarcerated father predicts poorer educational outcomes and lower
likelihood of college enrollment, while research on the effect of maternal incarceration on children’s educational outcomes is inconclusive.12,68 When
mothers are incarcerated, children often are placed in the foster-care system,69 creating significant disruption that may adversely affect children’s
development and lifelong health.70 Parental incarceration in childhood increases children’s risk of drug abuse, criminality, and delinquency as they
mature68 and predicts a wide range of health problems—including poor self-rated health, HIV/AIDS, asthma, high cholesterol, migraines, depression,
PTSD, and anxiety—during young adulthood.71 Children of incarcerated parents are also far more likely than other children to be incarcerated
themselves as juveniles and later in life.72 Not only are families affected, but whole communities can
suffer when rates of incarceration are high. For example, the perpetual cycling of people with
high rates of communicable diseases between correctional facilities and the community poses
significant public health risks. The justice system’s failure to ensure continuity of medical care for released inmates encourages
the spread of HIV, hepatitis C, tuberculosis, and other infectious diseases.13 The removal of high numbers of men in their 20s,
30s, and 40s can cripple (weaken) economic mobility in neighborhoods already fraught with
concentrated poverty.73 Taking into account individual- and other neighborhood-level risk factors, neighborhoods with high
incarceration rates have been shown to have higher than predicted rates of psychiatric disorders ;
the association between neighborhood levels of incarceration and mental illness have been observed both for individuals who have been incarcerated
and for those who have not.74

The connection is linear – more prisoners lead to worse conditions

that fatally threaten the mental health of the incarcerated
Sorrell 19. Robert Sorrell covers the police beat throughout Southwest Virginia and
Northeast Tennessee. Sorrell has won several awards from the Tennessee Press Association, the
Tennessee Associated Press Managing Editors, and is also the recipient of the Al Neuhart Free
Spirit Award from the Freedom Forum. Sorrell is the author of three books: "Images of America:
Roan Mountain," "Images of America: Historic Homes in Northeast Tennessee," and more. 10-
8-2019, "Experts: Overcrowded jails affect inmate, staff mental health," Herald Courier,
https://www.heraldcourier.com/news/experts-overcrowded-jails-affect-inmate-staff-mental-
health/article_ed52ee89-4bf6-5bec-8125-0fe11052fbe3.html - AM
Overcrowded jails across the American landscape have adverse effects on prisoners that could
even be fatal, psychology experts say. “Crowded conditions heighten the level of cognitive strain that
prisoners experience by introducing social complexity, turnover, and interpersonal instability
into an already dangerous prison world in which interpersonal mistakes or errors in social
judgments can be fatal,” Craig Haney wrote in “The Wages of Prison Overcrowding: Harmful Psychological Consequences and
Dysfunctional Correctional Reactions.” Dr. Kelly E. Moore, a licensed clinical psychologist and assistant professor at East Tennessee State University,
said jail overcrowding is a common issue in many states. Moore operates the ETSU Department of Psychology’s Crime, Addiction, Re-Entry (CARE)
Lab, which studies the high rates of untreated mental health and substance use problems among people in the criminal justice system. The professor
said she hasn’t personally researched the subject of overcrowded jails and psychology of inmates, but she’s seen it through her work. “From my
personal experience working with jails, those that
are overcrowded typically have issues with being
able to offer programs and treatment services to inmates,” Moore said. “The waitlists for
programs are so long that people get released before they are ever able to attend the program.”
Basically, Moore said the more inmates in jail, the fewer who receive the already limited
resources offered. Over the years, research suggests that overcrowding has a negative impact on
inmate stress levels as well as their behavior, including disciplinary infractions and violence against other inmates or staff,
Moore said. “Overcrowding, in turn, exacerbates the chronic pains of imprisonment,”
Haney wrote. Overcrowding can elevate a prisoner’s blood pressure and lead to a greater number of
illness complaints, Haney said. “Not surprisingly, exposure to ‘long-term, intense, inescapable crowding’ of
the sort that now characterizes many prisons results in high levels of stress that ‘can lead to
physical and psychological impairment,’” Haney wrote. In addition, he said overcrowding has been
associated with higher rates of disciplinary issues. For example, one study concluded that in prisons “where crowded
conditions are chronic rather than temporary ... there is a clear association between restrictions on personal space and the occurrence of disciplinary
violations.” In an overcrowded facility, prisoners also are affected by the sheer number of social
interactions they have that involve “high levels of uncertainty, goal interference, and cognitive
load,” Haney said. Negative Effects Back in the 1970s and 1980s, when prison populations increased in the
United States, Haney said several studies were done on overcrowding and the psychology of inmates. “Although some of the
studies are dated, nothing has changed to alter their troubling implications,” Haney said. The Stanford University professor said the
psychological toll of living in a closed environment that houses too many people
can be substantial. Overcrowded jails can also affect staff, Bristol Virginia Sheriff David Maples said. “It increases
the workload,” said Maples, noting that staff must handle an increase in travel to court, medical visits and other jail activities. “It increases everything
we have to do.” Corrections work is already considered a stressful job. The sheriff said he’s never heard of a corrections officer leaving the job because of
overcrowding. “Working in a jail is not easy,” Maples said. Often, employees leave to work at a local police department for better pay and benefits, the
sheriff said. Sometimes, Maples said people also leave to go to other jails, including many that are also overcrowded. The U.S. Government
the growth
Accountability Office studied overcrowding in the Bureau of Prisons (BOP) system in 2012. “According to BOP and our observations,
of the federal inmate population and related crowding have negatively affected inmates housed
in BOP institutions, institutional staff, and the infrastructure of BOP facilities, and have contributed to inmate
misconduct, which affects staff and inmate security and safety,” the report states. Maples noted that safety and security is a concern for all jails,
not just those that are overcrowded.

Indeterminate sentencing and parole resolve the issue of mass

incarceration
Paratore et. al. ’14 [JASON M. PARATORE and JOURDAN E. BOWMAN; Experts in
indeterminate sentencing guidelines and criminology, writing for the Encyclopedia of
Criminology and Criminal Justice, an international, comprehensive reference tool for the field of
Criminology and Criminal Justice that is both cutting edge as well as of very high scientific
quality and prestige; 1-22-2014; Volumes 1-5; The Encyclopedia of Criminology and Criminal
Justice,; https://onlinelibrary.wiley.com/doi/abs/10.1002/9781118517383.wbeccj167; Accessed
6-26-2020; RG-Camp]
In the last several decades, most provisions for indeterminate sentencing have been replaced with
statutes or guidelines that require determinate sentences in the federal and state criminal justice systems.
Interestingly, determinate sentencing is experiencing considerable criticism. A major
criticism is its significant contribution to overcrowding in US prisons . Because
determinate sentences do not allow for early release of offenders , they remain in prison longer compared to
inmates serving indeterminate sentences, who tend to serve less of their sentences in prison. Most of the time, offenders with
indeterminate sentences serve small portions of their sentences in prison with the largest
portions being served in communities under the supervision of parole officers (Casper 1984). As a result,
indeterminate sentencing helps to decrease the number of offenders in prison , an important
service considering the current state of overcrowding in prisons. Because of overcrowding in prisons, indeterminate sentencing has
experienced a rebirth as many jurisdictions have reinstated the use of indeterminate sentences.

There are instances when indeterminate sentencing can result in small increases in prison populations. For example, revocation of
parole, occurring when offenders violate conditions of parole, results in some offenders being returned to prison. Even so, parole
solution to
violators account for an insignificant number of people in prison. Thus some experts suggest that one
overcrowding in prison is the release of prisoners before the end of their sentences and this is best
affected through indeterminate sentences and parole (Casper 1984).

Indeterminate sentencing continues to be widely debated. Proponents of this type of sentencing stress the idea that
indeterminate sentencing leads to less recidivism due to more individually focused
rehabilitation during the period an inmate is incarcerated. Indeterminate sentencing is also proposed as a
solution to persistent overcrowding in prison as it allows for the early release of inmates
who have met the minimum prison-time requirement in sentences and demonstrate evidence of
rehabilitation. To improve the likelihood of successful parole, many parolees are paroled to halfway houses, such
as community rehabilitation centers, where they are provided a more structured reentry to society. Indeterminate
sentences, no matter what type, were created for the same goal, individualized sentences. It is generally
assumed that treatment needs of each person differ ; thus, judges have discretion with indeterminate sentencing to
tailor sentences to meet the needs of each offender. Further, agents of parole have authority to evaluate offenders’ progress toward
rehabilitation, grant early release on parole, and provide continued treatment and supervision for offenders serving the remainder of
indeterminate sentences in the community (Pennel 2010).

Finally, indeterminate sentencing is best to solve issues perpetuated

by the guidelines
Evangeline A. Zimmerman, 2010, [University of Michigan Law School, J.D. 2009; Yale
University, B.A. 2004, "The Federal Sentencing Guidelines: A Misplaced Trust In Mechanical
Justice", University Of Michigan Journal Of Law Reform
https://repository.law.umich.edu/mjlr/vol43/iss3/8/ //DMcD]
Introduction
With discretion comes dissent. One of the more divisive topics in modern legal scholarship stems from questioning and analyzing
this very issue in the context of the judiciary. Criticism of judicial discretion has led, in part, to the promulgation of legislation like
the Sentencing Reform Act of 1984 ("SRA"), which, in turn, allowed for the creation of the Federal Sentencing Guidelines
("FSG" or "Guidelines"). This Note argues, however, that the FSG failed not only because they ran afoul of the Sixth Amendment,
but also because they were unable to solve a number of the discretion-based criticisms that
spurred their passage. Instead of [*842] increasing transparency in the sentencing process, as
intended, the FSG blindly shunted more power to prosecutors and overlooked the importance of
designated neutrals, like judges or juries, making sentencing decisions. This Note further argues that one
method for solving these problems is a return to indeterminate sentencing coupled with the
imposition of guidelines on parole boards, instead of tighter restrictions on the judiciary. Part I of this Note addresses the SRA and
the reasons behind the passage of the Guidelines. Part II contextualizes this legislation through a brief outline of the legal
scholarship evaluating judicial discretion. It then sets out and evaluates the respective roles of the judiciary and
advocates in an adversarial system. Part III analyzes the problems with the Guidelines, and touches on
the difficulties with the Supreme Court decisions declawing them. Part IV suggests an alternative solution to the
discretion-related criticism that spawned the FSG, and argues that indeterminate sentencing
coupled with parole board guidelines properly realigns the balance of power between the
executive and judicial branches while also allowing for transparency .
 1AC – Framing
Contention Two is Framing –

Extreme sentencing guidelines creates an unfair criminal justice

system that invites tyranny through coercion by prosecutors
Jed Rakoff, 11-20-14, Senior United States District Judge of the United States District Court
for the Southern District of New York, National Association of Criminal Defense Lawyers,
https://www.nacdl.org/getattachment/8e5437e4-79b2-4535-b26c-9fa266de7de8/why-in, 6-25-
2020/Khan
All this changed in the 1970s and 1980s, and once again it was in reaction to rising crime rates. While the 1950s were a period of relatively low crime rates in the US, rates began
to rise substantially in the 1960s, and by 1980 or so, serious crime in the US, much of it drugrelated, was occurring at a frequency not seen for many decades. As a result, state

and federal legislatures hugely increased the penalties for criminal violations . In New York, for example, the socalled
“Rockefeller Laws,” enacted in 1973, dictated a mandatory minimum sentence of fifteen years’ imprisonment for selling just two ounces (or possessing four ounces) of heroin,
cocaine, or marijuana. In addition, in response to what was perceived as a tendency of too many judges to impose too lenient sentences, the new, enhanced sentences were

frequently made mandatory and, in those thirtyseven states where judges were elected, many “soft” judges were defeated and “tough on crime” judges elected in their place. At
the federal level, Congress imposed mandatory minimum sentences for narcotics offenses, gun offenses, child
pornography offenses, and much else besides. Sometimes, moreover, these mandatory sentences were required to be imposed consecutively. For example, federal law prescribes
a mandatory minimum of ten years’ imprisonment, and a maximum of life imprisonment, for participating in a conspiracy that distributes five kilograms or more of cocaine. But
if the use of a weapon is involved in the conspiracy, the defendant, even if she had a lowlevel role in the conspiracy, must be sentenced to a mandatory minimum of fifteen years’
imprisonment, i.e., ten years on the drug count and five years on the weapons count. And if two weapons are involved, the mandatory minimum rises to forty years, i.e., ten years
on the drug count, five years on the first weapons count, and twentyfive years on the second weapons count—all of these sentences being mandatory, with the judge having no

Congress in 1984 introduced—with bipartisan support—a regime of

power to reduce them. In addition to mandatory minimums,

mandatory sentencing guidelines designed to avoid “irrational” sentencing disparities . Since these
guidelines were not as draconian as the mandatory minimum sentences, and since they left judges with some limited discretion, it was not perceived at first how, perhaps even
more than mandatory minimums, such a guidelines regime (which was enacted in many states as well) transferred power over sentencing away from judges and into the hands

these guidelines, along with mandatory minimums,

of prosecutors. One thing that did become quickly apparent, however, was that

were causing the virtual extinction of jury trials in federal criminal cases . Thus, whereas in 1980, 19 percent of all
federal defendants went to trial, by 2000 the number had decreased to less than 6 percent and by 2010 to less than 3 percent, where it has remained ever since. The reason for

the guidelines, like the mandatory minimums, provide prosecutors with weapons to
this is that

bludgeon defendants into effectively coerced plea bargains . In the majority of criminal cases, a defense lawyer only
meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to

the prosecutor. If, as is very often the case (despite the constitutional prohibition of “excessive bail”), bail is set so high that the client is detained, the defense lawyer
has only modest opportunities, within the limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts.

The prosecutor, by contrast, will typically have a full police report, complete with witness interviews
and other evidence, shortly followed by grand jury testimony, forensic test reports, and follow up
investigations. While much of this may be onesided and inaccurate—the National Academy of Science’s recently released report on the unreliability of eyewitness
identification well illustrates the danger—it not only gives the prosecutor a huge advantage over the defense counsel but also makes the prosecutor confident, maybe

the informationdeprived defense lawyer, typically within a

overconfident, of the strength of his case. Against this background,

few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless
the case can be promptly resolved by a plea bargain, [they] intend to charge the defendant with
the most severe offenses he can prove. Indeed, until late last year, federal prosecutors were under orders from a series of attorney generals to
charge the defendant with the most serious charges that could be proved—unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant
wants to plead guilty, the prosecutor will offer him a considerably reduced charge—but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources).
Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higherlevel offense than the one offered at the outset of the
case. In this typical situation, the prosecutor has all the advantages. He knows a lot about the case (and, as noted, probably feels more confident about it than he should, since he
has only heard from one side), whereas the defense lawyer knows very little. Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the
law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor and the defense lawyer know that the grand jury, which typically will
hear from one side only, is highly likely to approve any charge the prosecutor recommends. But what really puts the prosecutor in the driver’s seat is the fact that he—

because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still
widely followed by most judges), and simply [their] ability to shape whatever charges are brought—can

effectively dictate the sentence by how [they] publicly describes the offense. For example, the prosecutor can agree
with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin,
which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of
which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a tenyear mandatory minimum and a guidelines range of twenty years or
more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision. The defense lawyer understands
this fully, and so she recognizes that the best outcome for her client is likely to be an early plea bargain, while the prosecutor is still willing to accept a plea to a relatively low level
offense. Indeed, in 2012, the average sentence for federal narcotics defendants who entered into any kind of plea bargain was five years and four months, while the average
sentence for defendants who went to trial was sixteen years. Although under pressure to agree to the first plea bargain offered, prudent defense counsel will try to convince the
prosecutor to give her some time to explore legal and factual defenses; but the prosecutor, often overworked and understaffed, may not agree. Defense counsel, moreover, is in
no position to abruptly refuse the prosecutor’s proposal, since, under recent Supreme Court decisions, she will face a claim of “ineffective assistance of counsel” if, without
consulting her client, she summarily rejects a plea bargain simply as a negotiating ploy. Defense counsel also recognizes that, even if she thinks the plea bargain being offered is
unfair compared to those offered by other, similarly situated prosecutors, she has little or no recourse. An appeal to the prosecutor’s superior will rarely succeed, since the
superiors feel the need to support their troops and since, once again, the prosecutor can shape the facts so as to make his superior find his proposed plea acceptable. And

there is no way defense counsel can appeal to a neutral third party , the judge, since in all but a few jurisdictions, the
judiciary is precluded from participating in plea bargain negotiations . In a word, she and her client are stuck. Though
there are many variations on this theme, they all prove the same basic point: the prosecutor has all the power . The Supreme Court’s
suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: it is much more like a “contract of adhesion”
in which one party can effectively force its will on the other party. As for the suggestion from some academics that this is the equivalent of a regulatory process, that too is a
myth: for, quite aside from the imbalance of power, there are no written regulations controlling the prosecutor’s exercise of his charging power and no established or meaningful
process for appealing his exercise of that power. The result is that, of the 2.2 million Americans now in prison—an appalling number in its own right— well over two million are
there as a result of plea bargains dictated by the government’s prosecutors, who effectively dictate the sentences as well. A cynic might ask: What’s wrong with that? After all,
crime rates have declined over the past twenty years to levels not seen since the early 1960s, and it is difficult to escape the conclusion that our criminal justice system, by giving
prosecutors the power to force criminals to accept significant jail terms, has played a major part in this reduction. Most Americans feel a lot safer today than they did just a few
decades ago, and that feeling has contributed substantially to their enjoyment of life. Why should we cavil at the empowering of prosecutors that has brought us this result? The

answer may be found in Jefferson’s perception that a criminal justice system that is secret and government
dictated ultimately invites abuse and even tyranny. Specifically, I would suggest that the current system of prosecutor-
determined plea bargaining invites the following objections. First, it is one sided. Our criminal justice system is premised on

the notion that, before we deprive a person of his liberty, he will have his “day in court,” i.e., he
will be able to put the government to its proof and present his own facts and arguments,
following which a jury of his peers will determine whether or not he is guilty of a crime and a
neutral judge will, if he is found guilty, determine his sentence. As noted, numerous guarantees
of this fairminded approach are embodied in our Constitution, and were put there because of the
Founding Fathers’ experience with the rigged British system of colonial justice. Is not the plea
bargain system we have now substituted for our constitutional ideal similarly rigged? Second,
and closely related, the system of plea bargains dictated by prosecutors is the product of largely
secret negotiations behind closed doors in the prosecutor’s office, and is subject to almost no
review, either internally or by the courts. Such a secretive system inevitably invites arbitrary
results. Indeed, there is a great irony in the fact that legislative measures that were designed to
rectify the perceived evils of disparity and arbitrariness in sentencing have empowered
prosecutors to preside over a pleabargaining system that is so secretive and without rules that
we do not even know whether or not it operates in an arbitrary manner. Third, and possibly the
gravest objection of all, the prosecutordictated plea bargain system, by creating such inordinate
pressures to enter into plea bargains, appears to have led a significant number of defendants to
plead guilty to crimes they never actually committed. For example, of the approximately three
hundred people that the Innocence Project and its affiliated lawyers have proven were
wrongfully convicted of crimes of rape or murder that they did not in fact commit, at least thirty,
or about 10 percent, pleaded guilty to those crimes. Presumably they did so because, even
though they were innocent, they faced the likelihood of being convicted of capital offenses and
sought to avoid the death penalty, even at the price of life imprisonment. But other publicized
cases, arising with disturbing frequency, suggest that this self protective psychology operates in
noncapital cases as well, and recent studies suggest that this is a widespread problem. For
example, the National Registry of Exonerations (a joint project of Michigan Law School and
Northwestern Law School) records that of 1,428 legally acknowledged exonerations that have
occurred since 1989 involving the full range of felony charges, 151 (or, again, about 10 percent)
involved false guilty pleas. It is not difficult to perceive why this should be so. After all, the typical person accused of a crime combines a troubled past with
limited resources: he thus recognizes that, even if he is innocent, his chances of mounting an effective defense at trial may be modest at best. If his lawyer can obtain a plea
bargain that will reduce his likely time in prison, he may find it “rational” to take the plea. Every criminal defense lawyer (and I was both a federal prosecutor and a criminal
defense lawyer before going on the bench) has had the experience of a client who first tells his lawyer he is innocent and then, when confronted with a preview of the
government’s proof, says he is guilty. Usually, he is in fact guilty and was previously lying to his lawyer (despite the protections of the attorney–client privilege, which many
defendants, suspicious even of their courtappointed lawyers, do not appreciate). But sometimes the situation is reversed, and the client now lies to his lawyer by saying he is
guilty when in fact he is not, because he has decided to “take the fall.” In theory, this charade should be exposed at the time the defendant enters his plea, since the judge is
supposed to question the defendant about the facts underlying his confession of guilt. But in practice, most judges, happy for their own reasons to avoid a timeconsuming trial,
will barely question the defendant beyond the bare bones of his assertion of guilt, relying instead on the prosecutor’s statement (untested by any crossexamination) of what the
underlying facts are. Indeed, in situations in which the prosecutor and defense counsel themselves recognize that the guilty plea is somewhat artificial, they will have jointly
arrived at a written statement of guilt for the defendant to read that cleverly covers all the bases without providing much detail. The Supreme Court, for its part, has gone so far
(with the Alford plea of 1970) as to allow a defendant to enter a guilty plea while factually maintaining his innocence. While, moreover, a defendant’s decision to plead guilty to a
crime he did not commit may represent a “rational,” if cynical, costbenefit analysis of his situation, in fact there is some evidence that the pressure of the situation may cause an
innocent defendant to make a lessthanrational appraisal of his chances for acquittal and thus decide to plead guilty when he not only is actually innocent but also could be
proven so. Research indicates that young, unintelligent, or riskaverse defendants will often provide false confessions just because they cannot “take the heat” of an interrogation.
Although research into false guilty pleas is far less developed, it may be hypothesized that similar pressures, less immediate but more prolonged, may be in effect when a
defendant is told, often by his own lawyer, that there is a strong case against him, that his likelihood of acquittal is low, and that he faces a mandatory minimum of five or ten
years in prison if convicted and a guidelines range of considerably more—but that, if he acts swiftly, he can get a plea bargain to a lesser offense that will reduce his prison time
by many years. How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the
overall rate for convicted felons as a whole is between 2 percent and 8 percent. The size of that range suggests the imperfection of the data; but let us suppose that it is even
lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an

What can we do about it? If there

estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit.

we could eliminate mandatory minimums, eliminate sentencing

were the political will to do so,

guidelines, and dramatically reduce the severity of our sentencing regimes in

general. But even during the second Obama administration, the very modest steps taken by Attorney General Eric Holder to moderate sentences have been met by stiff
opposition, some from within his own department. For example, the attorney general’s public support for a bipartisan bill that would reduce mandatory minimums for certain
narcotics offenses prompted the National Association of Assistant US Attorneys to send an “open letter” of opposition, while a similar letter denouncing the bill was signed by
two former attorney generals, three former chiefs of the Drug Enforcement Administration, and eighteen former US attorneys.

Even one innocent person being coerced into pleading guilty cannot
be upheld
Andrew Birrell et al, 2018, Birrell-Mr. Birrell is an accomplished and seasoned appellate
lawyer. He has argued before the United States Supreme Court in Washington, D.C., the federal
appeals court, and has won reversals of convictions and orders for new trials in the Minnesota
Court of Appeals and Supreme Court. Ramon de la Cabada, and Martín A. Sabelli; and Members
John Cline, James Felman, Daniella Gordon, JaneAnne Murray, David Patton, Marjorie Peerce,
Barry J. Pollack, and Todd Pugh, all seasoned criminal defense attorneys with the NACDL,
National Association of Criminal Defense Lawyers,
https://www.nacdl.org/getattachment/95b7f0f5-90df-4f9f-9115-520b3f58036a/the-trial-
penalty-the-sixth-amendment-right-to-trial-on-the-verge-of-extinction-and-how-to-save-it.pdf,
6-25-2020/Khan
In closing, it
is important to reiterate what is at stake if the trial penalty continues to hold sway over
defendants’ free exercise of their Constitutional rights. A system that coerces even one
innocent person to plead guilty should not be condoned . Nor should the rights of the
accused to hold the government to its burden of proof be impeded by fear of severe retribution.
Unless the freedom of choice to exercise the right to a jury trial is fully restored, a great
hypocrisy will endure — one that espouses lofty principles of criminal justice but insists that the
system for administering criminal justice cannot afford to honor those principles except in an
insignificant percentage of cases. NACDL readily acknowledges the difficulty of fashioning a sentencing system that allows for
individualized sentences tempered by concerns for national parity, and then administering that system in a just and efficient way. This study should not
be viewed as a disparagement of the federal prosecutorial bar, the federal judiciary, or the Sentencing Commission as a whole. However, as an
the current
organization dedicated to promoting civil rights and liberties that are fundamental to democracy, NACDL is gravely concerned that
system unfairly infringes on one of the most precious Constitutional rights. As the years go on, fewer
and fewer defendants are choosing to take advantage of the right to a trial. When the risks of
exercising this crucial human right are too great for all but 3% of federal criminal defendants,
the system is in need of repair. 

It’s your ethical obligation to end arbitrarily harsh punishment in

favor of rehabilitation – any other paradigm spills over to toxic
masculinity, war and, hatred.
David Min, 9-25-2019, [Student at Trinity. He writes a weekly column. "America's desire for
punishment", Chronicle https://www.dukechronicle.com/article/2019/09/social-justice-mass-
incarceration-americas-desire-for-punishment //DMcD]
The United States has an obsession with revenge and overly punitive punishment . Mass
incarceration is a prime example of this infatuation with vengeance as a virtue. Though statistics
have a tendency to anesthetize violence, I implore you to seriously grapple with these numbers: People of color make up
only 37% of the U.S. population but 67% of the prison population . Since 1980, there has been more
than a 500% increase in U.S. prison and jail populations There are more people behind bars today for drug
offenses than people in prison or jail for any crime in 1980 1 out of 3 Black boys born today can expect to go to
prison at some point in their life No amount of random error or changes in behavior or culture can come close to
explaining this phenomenon, not in the same way that the war on drugs, class warfare and a history of bondage do. This country
needs to address the domestic warfare waged on the accused. The prison-industrial complex and the criminal justice
system fuel the constant
production of mass suffering and politicians, including the establishment left, fail to
prioritize or even envision a society in which the American prison is not a site of exploitation .
Mass incarceration doesn’t affect arbitrary masses of flesh; rather it defines the lived experiences of particular
individuals who are forced to forever carry the weight of their imprisonment. This column doesn’t
provide enough space to fully address the issues and solutions (white supremacy, prison abolitionism, plea bargaining, CJS reform,
private prisons, etc.) that exist with regards to the prison-industrial complex, but there already exists an extremely robust body of
troubling and
literature on these topics. Instead, I bring up the topic of incarceration as a starting point to expose a
irrational obsession with revenge that securitizes thought in multiple facets of life because
this topic of our psychological compulsions towards revenge is extremely undercovered . For
instance, in the context of the prison system, it is well documented that our incarceration rates are
unconnected to the country’s crime rates and that overkill in the justice system is directly tied to higher
rates of recidivism. It’s obvious that a process of subjecting inmates to longer sentences, a lack of
mental health and substance abuse resources , poor living conditions riddled with infectious
diseases, and an employment system that cancels anyone with a criminal record is not an
effective solution to cyclical problems within the most battered communities. But despite these
seemingly objective and substantively warranted arguments, there still exists a pervasive fear of being “soft on crime” which paints
this idea of attempting to understand and rehabilitate convicts as yet another example of Hollywood, liberal elites being out of touch
with the “actual” reality of the situation. When taken at face value, this appears to be a classic example of the “rehabilitation versus
retribution” debate. What bothers me so strongly, however, is that strong
empirical evidence already points in
favor of rehabilitation as a better heuristic. It is apparent here that justice requires that we should
strive to abstract away from our impulse to avenge and violently respond to crimes in favor of
developing policies that enable ex-convicts to function in society and resolve the conditions that enable criminal behavior in the first
place; that’s hardly ever what we do. In fact, we still tolerate the idea of breaking down and
dehumanizing prisoners simply because we feel an emotional and affectual response in favor of
doing so. For instance, people commonly express that they desire to see prisoners languish and rot
in prison for the rest of their lives. People make crude, perverse jokes about prisoners being
raped and cheer gleefully at the idea of someone getting assaulted by other prisoners . It’s obvious
here that the metrics by which we evaluate a justice system are not based on its ability to treat
equitably or minimize future occurrences of crime; we instead equivocate justice with whether “it feels
right.” Punishment is no longer about a safer society or closure for the victim but an internal,
selfish desire to imagine violence against others . Our ethical obligation is to reject
those impulses. I know that it’s obviously easier to make these claims in the abstract but the goal of criminal
justice needs to be punishing fairly and intelligently. Moreover, it seems hypocritical to say the least that the
“pure rationalist” right-wingers—who aspire to be Ben Shapiro and Charlie Kirk types—can criticize the left for failing to delineate
“the truth” from our individual emotions and experiences but are okay with strongly leveraging feelings of vengeance and anger in
response to crimes. These feelings are ultimately motivated
by an obsession with authority and insecurity of
losing face; anything less than an overkill response communicates an emasculated and
desexualized sense of masculinity. They fuel a libidinal desire to inflict tremendous
pain upon the people that have hurt us and those we empathize with . The thought of satisfying
that desire for revenge within the human psyche is extremely enticing but ultimately
emotionally unfulfilling and detrimental when acted upon. I hope that we collectively think more about
whether we are letting revenge dominate our thought processes. For instance, the
desire for revenge will glamorize
the idea of obliterating a foreign enemy in response to the death of American lives , even if that
move may endanger a greater number of American lives. The desire to inflict retributive pain
explains both the disdain towards the “softness” of younger generations and the perspective that
crippling student loan debts help Millenials finally “toughen up.” The desire to place the blame
on survivors of sexual assault is fueled by a misogynist vengeance complex that criminalizes
going out, clothing choices, and actualized sexuality. Though unwanted pregnancies may
jeopardize the life of the mother and child, the anti-abortion camp wants them to experience the
consequences of “irresponsibility.” The bottom line is that most people are well aware that empirical
evidence and logical deductions on these topics strongly suggest that the responses fueled by
resentment are incorrect but then struggle to reconcile their subconscious impulses in favor of
objective, rational evidence. Americans have a deep love for this perverted idea that the
wounds they experienced at the hands of unfettered capitalism, racism, criminal
behavior, or simply bad luck can somehow be mended by replicating that pain onto
others.

Our method is good – experimentalism allows ways to break

down bias and question dominant structures like the prison
Jalila Jefferson-Bullock, 2016, [Jalila Jefferson-Bullock is an Associate Professor of
Law at Arizona Summit Law School. She received her A.B. from Harvard College in 1997, M.A.
in the Humanities from the University of Chicago in 1999, and J.D. from Harvard Law School in
2001., "How Much Punishment Is Enough?: Embracing Uncertainty In Modern Sentencing
Reform", Journal Of Law And Policy
https://brooklynworks.brooklaw.edu/jlp/vol24/iss2/2/ //DMcD]
B. Linking Experimentalist Literature and the Principle of Uncertainty
Experimentalism thrives in areas of increased flux where "rigid forms of regulation are ill-suited to
accomplish . . . designated tasks," and is often utilized in spaces where empirical and experiential
data is insufficient to provide accurate roadmaps . Instead of clinging to inflexible, ill-fitting
rules, experimentalist theory incorporates benchmarking of best practices , followed by appropriate
adjusting, and concluding with the adoption of sound, well-informed, workable rules. Scholars suggest
that experimentalism can provide solutions in a variety of areas characterized by "volatility and
diversity, with concomitant changing states of knowledge ," including education, administrative regulation,
community policing, environmental regulation, [*385] employment discrimination, and public law. Through periodic
review and responsive recalibration, experimentalism succeeds in creating a series of best
practices that can propel progression of uncertainty resolution . The principle of uncertainty borrows from
experimentalist theories by searching for solutions in situations with a high degree of ambiguity. In the area of federal
sentencing, the principle of uncertainty accepts what is yet unknown , recognizes that uncertainty,
and then relies on experimentalist theory to create best practices that will assist in resolving the
problem or completing the task, despite the uncertainty. By setting appropriate "benchmarks" and
processes for constant reevaluation, experimentalism can assist in creating sentencing order in an
otherwise disorderly situation. To achieve sentencing fairness and effectiveness, length of
incarceration must rely on indeterminate sentencing pedagogy's acknowledgement of
uncertainty, specifically by utilizing post-sentencing review. Experimentalist literature provides
a framework for devising a sentencing structure that is effective, stable, fair, and reviewable,
despite uncertainty. Rooted in experimentalism, the principle of uncertainty accepts the verity that
"what works" is constantly evolving as conditions naturally change . [*386] Experimentalist principles are
already being adopted in nonprofit and government settings to "redefine what counts as a means to a guiding end." Professors
Michael Dorf and Charles Sabor submit that government systems can be radically improved by "the combination of decentralization
and mutual monitoring intrinsic to democratic experimentalism." The experimentalist view that they espouse lies in older
pragmatist theories that emphasize and embrace doubt or uncertainty as necessary to improvement. Professors Dorf and Sabor
describe this concept as such: The pragmatists understood doubt as the recurrent yet always surprising breakdown of some of the
settled beliefs and expectations upon which we must depend for active investigation of the world, not as the expression of a global
skepticism about the very possibility of knowledge. Seen as localized breakdowns in our expectations, doubt spurs inquiry into
remedial action and reforms conceptions. To emphasize just how much doubt depends on surprise, and how little on a first principle
of skepticism, the pragmatists urged a simple test: Try to doubt a belief you hold deeply, and you will discover that you cannot. Thus,
pragmatism guides us in better coming to grips with a circumstance that we have come to anticipate: That experience will again and
again disrupt our habits and the understandings that rest on them. [*387] Following Dorf and Sabor's model, uncertainty or
doubt can assist in eradicating bias. This design principle can work well in reforming federal criminal
sentencing laws. In government settings, experimentalism, at its core, would call for "a new connection between the broad
pronouncements of the legislature and the courts, and applications of these pronouncements to particular situations." In
experimental settings, agencies pool resources, share information, adopt best practices from
each other, and are open to the possibility of correctable error. Practices are monitored
scrupulously at all levels, and are improved or even abandoned when proven unhelpful. This is
what true reform looks like. For Dorf and Sabor, experimentalist principles should be injected into our government
systems to improve government function. In their opinion, states and the federal government should pool information, employ
benchmarking, and create best practices to aggressively correct error. Successful engineering and benchmarking requires agencies to
share information across disciplines, both vertically and horizontally. In this way, power shifts "from 'rulers' to the 'people.'" This
experimentalist model can be extended to federal sentencing as well . C. Embracing Uncertainty in Current
Legislation Crafting a reformed sentencing model requires recognizing and embracing the
uncertainty inherent in determining punishment by borrowing from experimentalist theory . Each
aforementioned congressional bill requires gathering best practices from state and federal government entities, as well as continuous
review at each level of federal government to ensure that reforms are achieving their desired end. In creating new rehabilitative
prison programs, [*388] the Corrections Act requests that the Attorney General, Senate Committees, and other relevant federal
agencies certify proposed programs, gather best practices from community and industry partners, assess programs periodically, and
evaluate the successes and failures of specific prisoner participants. The Smarter Sentencing Act mandates that the Attorney General
submit reports to Congress outlining cost savings resulting from reforms, and concerning assessments of other efforts that will be
used prospectively to reduce crime. The Smarter Sentencing Act also requires tendering of general reports on criminal offenses.
Likewise, the Safe Justice Act includes strenuous, multiagency review of offender case plans, recidivism rates, and overall effects of
each proposed reform, including revoking mandatory minimum sentences, alternatives to incarceration, elimination of tough
punishment for technical probation violations, and implementation of rehabilitative programs. It requires review to occur between
the Attorney General, Bureau of Prisons, state and federal agencies, and other entities qualified to provide and/or assist in
developing quantitative and qualitative data. This type of multi-tiered,
continuous review, and fostering of best practices
present in each bill is lacking in our current system, but is
critical in creating a new, reformed model .
Embracing the principle of uncertainty demands an understanding and acknowledgment of
what is yet unknown, coupled with a willingness to learn what appropriate punishment should
be. It demands commencing punishment from a well-researched and thoroughly examined starting point, followed by information
sharing, benchmarking, and regular, stringent review. The type of information sharing, benchmarking, and consistent multi-tiered
review espoused in the Corrections Act, Smarter [*389] Sentencing Act, and Safe Justice Act fits well into the experimentalist model
that is critical to sentencing reform. Any
revised criminal sentencing structure must employ these same
types of review processes to evaluate reform effectiveness. Each proposal correctly identifies critical areas of
review. What is missing from these and other federal sentencing reform proposals, however, is a well-researched point of departure,
instead of accepting prison as default punishment. None
of the proposals offer a clear rationale for the
duration of incarceration and simply fail to answer the question: why incarceration ?
Case Extensions
 Background – Booker
Booker deemed that the guidelines were unconstitutional but
disputed whether it was justifiable
Saxena 05 [Surya Saxena is an Assistant U.S. Attorney at United States Attorneys' Offices,
“US v. Booker: Opening the Door to New Dialogue on Federal Sentencing”, 2005,
https://www.dorsey.com/newsresources/publications/2005/04/us-v-booker-opening-the-
door-to-new-dialogue-on2__]
Booker and its companion case U.S. v. Fanfan, arose on relatively common facts. The defendants
in both cases were convicted of drug offenses. Booker was convicted for possession with the
intent to distribute 92.5 grams of crack, while Fanfan was convicted for possession with intent to
distribute 500 grams of cocaine, along with conspiracy. Both defendants had their sentences
enhanced beyond the statutory maximum after their trial judges found by a preponderance of
the evidence that they possessed a greater quantity of drugs than was proven at their trials. The
cases presented two questions to the Court. The first was simply whether sentence enhancement
under the Guidelines was unconstitutional. The second was what should be done if such a
constitutional violation was found. Five Justices from both ideological ends of the Court—Scalia,
Thomas, Souter, Ginsburg, and Stevens—answered the first question affirmatively. In an
opinion by Justice Stevens, the Court relied heavily on Apprendi and Blakely to support its
holding that the Guidelines, as they were being applied, deprived convicted criminals of their
Sixth Amendment right to have every fact which increases a sentence beyond the statutory
maximum proven beyond a reasonable doubt to a jury. Although this aspect of the decision was
expected, the dissenters disputed whether it was justifiable. Four justices—Breyer, O’Conner,
Rehnquist, and Kennedy—dissented. Justice Breyer’s dissent argued that trial judges have
always been given discretion to determine the manner in which a criminal should be punished.
He explained that the Guidelines only give trial judges a framework within which to exercise this
discretion. However, without the Guidelines, judges need not tie their sentencing decisions to
any objective criteria. Sentences would be based solely on a judge’s personal assessment of a
criminal—even if that assessment was founded on racial, economic, or cultural prejudices.
Perhaps because she shared many of Justice Breyer’s concerns, Justice Ginsburg joined the four
dissenters to form a majority on the question of what the remedy should be applied to resolve
the conflict between the Sixth Amendment and the Guidelines. In another opinion by Justice
Breyer, this time for the Court, he explained that the statutory provision that made the
Guidelines mandatory, 18 U.S.C. ß3553(b)(1), must be severed and excised in light of the Court’s
constitutional holding. The Court also severed and excised 18 U.S.C. ß 3742(e) from the
Guidelines. That section mandated that courts of appeal review sentences made pursuant to the
Guidelines de novo for adherence to the Guidelines’ tenants. According to the opinion, the
severance of these sections rendered the Guidelines "effectively advisory," requiring judges to
consider them, but allowing departures whenever the judge deemed fit. On appeal, courts
should apply an "unreasonable[ness]" standard of review. The majority decided that this remedy
was a better choice then imposing a requirement of sentencing by jury (Justice Steven’s choice),
or invaliding the Guidelines completely.
Booker presented 2 issues – whether the guidelines are a violation of
the 6th amendment and whether they are unconstitutional.
Case Briefs ND [“United States v. Booker”, No Date,
https://www.casebriefs.com/blog/law/criminal-procedure/criminal-procedure-keyed-to-
weinreb/sentence/united-states-v-booker-2/]
Facts. Following sentencing guidelines, a federal district court judge enhanced Booker’s
sentence based on the facts the judge determined. Booker appealed the enhancement as in
violation of his Sixth Amendment rights. In another case, according to sentencing guidelines,
Fanfan could have been given an enhanced sentence, but the judge decided not to enhance, due
to Supreme Court case law tat rules the Sixth Amendment right to trial by jury requires judges to
use only the fact proved to a jury to increase a sentence beyond the standard range. In that case,
the government sought an appeal, and both cases were consolidated for decision.

Issue. This case presents a two pronged issue:

1) whether imposing an enhanced sentence under the U.S. Sentencing Guidelines, based on a
judicial determination violates the Sixth Amendent, and if it does
2) whether the Sentencing Guidelines are unconstitutional.
Held. The court held that where the sentencing guidelines allow judges to enhance sentences
using facts not reviewed by juries it is a violation of the Sixth Amendment right to trial by jury.
The guidelines were not altogether unconstitutional, but would be considered advisory as
opposed to mandatory.

Dissent. Justice Stevens dissented, noting that their decision repealed the Sentencing Reform
Act and took away the Congressional right to determine sentencing. Justice Scalia also
dissented, noting that by overturning the Sentencing Guidelines, the Court is effectively allowing
for a litany of different sentences, all for the same crime.

Discussion. While there are several opinions to this case, the outcome is simple: a judge cannot
use evidence, other than that which is presented to a jury, to enhance sentencing or a
defendant’s Sixth Amendment rights will be violated.
 Guidelines Followed Now
Guidelines are followed 75% of the time. We’ll insert this table.
United States Sentencing Commission 2019 [Official sentencing commission of
the United States. “Statistical Information Packet”
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-
statistics/state-district-circuit/2019/1c19.pdf //DMcD]

It's especially true for drug possession – Commission

recommendations are followed almost 90% of the time.
United States Sentencing Commission 2017 [Official sentencing commission of
the United States. “Statistical Information Packet”
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-
statistics/state-district-circuit/2017/1c17.pdf //DMcD]
Recent case laws push judges further into the guidelines –
discretion is evaporating.
Brendan Woods June 2019 [J.D., University of Virginia School of Law, 2019. “A Remedy but
Not a Cure, Reevaluating the Status of the Booker Remedial Holding” Virginia Law
Review https://virginialawreview.org/sites/virginialawreview.org/files/Woods_Book.pdf
//DMcD]
III. THE THREAT TO BOOKER’S SIXTH AMENDMENT DÉTENTE The preceding Parts put forward a theory of what makes a
Guidelines system discretionary for purposes of Booker compliance, and argued for interpreting the recent
Guidelines cases
as nudges towards in-Guidelines range sentences. This final Part argues that the trend identified in Part
II has the potential to undermine discretion as conceptualized in Part I. Our sentencing regime probably still is
“discretionary enough” to withstand a new Booker-style challenge, but there are several foreseeable paths that could bring it to
presumptive territory once again. A. The Guidelines’ Status as “Mildly Presumptive” Professor Frank Bowman has described the
Guidelines as “mildly presumptive,” in recognition of the Court’s “embrace of at least a mild rebuttable presumption of
the correctness of a within-range sentence.”219 That may be an accurate descriptor for a system that insists on discretion
with one hand, but that seeks to limit that discretion with the other hand— especially when data show that
the hand limiting discretion is winning. This status of mild presumption represents a knife’s edge that academics, litigants, and the
Court itself have long recognized. A little too far to one side, and the Guidelines’ purpose of reducing disparities and enforcing
uniformity is compromised; too far to the other, and the Guidelines become effectively mandatory, undermining the Booker holding
that has defined sentencing law for the past thirteen years. Just two
years after Booker, Justices Scalia and Souter
recognized in their separate opinions in Rita that the Court’s own Guidelines cases could add up to a
Sixth Amendment violation. Justice Scalia in a concurrence spoke in particular of substantive reasonableness review,
stating that “there will inevitably be some constitutional violations under a system of substantive reasonableness review, because
there will be some sentences that will be upheld as reasonable only because of the existence of judgefound facts.”220 Speaking more
generally in dissent, Justice Souter expressed concern that the Guidelines could become
practically mandatory, in violation of Booker’s Sixth Amendment holding: “[I]f sentencing judges attributed
substantial gravitational pull to the nowdiscretionary Guidelines, if they treated the Guidelines result as
persuasive or presumptively appropriate, the Booker remedy would in practical terms preserve
the very feature of the Guidelines that threatened to trivialize the jury right.”221 Justice Scalia rose
much the same concern in a later case, writing that “any thumb on the scales” for the Guidelines would violate the Sixth
Amendment.222 Litigants and academics have recognized this possibility as well. 223 The recent
cases discussed in Part
II act as nudges toward within Guidelines sentences, creating problems in light of the default
and bundle theories of discretion discussed in Part I.224 Themore the Guidelines are procedurally and
doctrinally prioritized over other sentencing methodologies , the more they begin to look like a
legal default (statistically, the Guidelines are already the de facto default, and it would not be
surprising if those numbers rose further as result of the recent case law ). These cases
also skew the bundle of discretion in our sentencing system, including by reducing judges’ sentencing
discretion and facilitating certain forms of appellate review.225 Nevertheless, these cases are probably not enough to constitute a
return to mandatory Guidelines for Booker purposes. Despite issuing opinions that have reduced sentencing
discretion, the Justices continue to insist that the Guidelines are fully advisory. Furthermore, the issues
the Court has considered have had a relatively small bore. Although the plain-error holdings were significant for their relevance to
appellate review, they can be interpreted to merely correct the lower court’s interpretation of the plain error standard, without much
sentencing-specific relevance. And, as important as procedural cases are for the ways they anchor the sentencing process around the
Guidelines range, we rely on judges to overcome that sort of unconscious priming. But these cases do reveal a trend,
and that trend has a set of specific motivations behind it.226 There are several ways that the Supreme Court or the
courts of appeals could build upon the reasoning and rhetoric of these cases to shape the doctrine in a way that would be truly
problematic for the cause of judicial discretion at sentencing. These include a renewed emphasis on substantive appellate review of
sentences; a recognition that the Guidelines are practically, if not formally, more binding than past systems; and a further
accumulation of certain procedural requirements. The next Section considers these potential developments.

Sentencing guidelines may be advisory but judges still largely adhere

to them
Van Meter 16. Matthew Van Meter is a writer based in New York. He is the author of a
forthcoming book about Jim Crow. 2-25-16, "One Judge Makes the Case for Judgment," The
Atlantic, https://www.theatlantic.com/politics/archive/2016/02/one-judge-makes-the-case-
for-judgment/463380/ - AM
But Coughenour pushed back in court. “Is there a sentence below the mandatory minimum that would be adequate?” he asked the prosecutor. “Your
Honor,” replied the prosecutor, “I am hamstrung here, in that my personal views are probably irrelevant.” “Not to me, they aren’t,” countered
Coughenour. He pressed the prosecutor in this vein for 10 minutes, before he got to the point. “Does it trouble you at all,” he asked, raising his voice,
“that sentencing decisions like this are made at a committee table back in Washington, D.C., without the benefit of a full trial and a pre-sentence report
and individualized consideration of the facts in a given case? Does that bother you at all?” In the end, Coughenour declared the 30-year minimum
sentence unconstitutional in this case, saying it violated the Eighth Amendment’s protection against “cruel and unusual punishment.” The federal
sentencing scheme changed again 11 years ago, though not enough for Coughenour. In
2005, the Supreme Court decided in
United States v. Booker that, so long as guidelines were considered mandatory, they were
unconstitutional. But, wrote Steven Breyer in the opinion that saved the system he helped create, the guidelines would stand
if they were ruled as purely advisory, a baseline from which judges could depart at will. This means judges must
still calculate the guidelines during sentencing, but they are allowed to sentence outside of them
—provided they give a good reason for the departure. “Booker did a lot in terms of making judges feel that they were authorized to depart more
frequently from the guidelines,” Coughenour allows. But he argues that the
original policy irreversibly changed the way
judges sentence: “Back before I came on the bench, the incarceration rate in the U.S. was around 120 per 100,000, and it
skyrocketed after the War on Drugs, to point where it’s in excess of 700 per 100,000 ,” says Coughenour, shaking his head. “That’s
the highest incarceration rate anywhere in the world, including South Africa under apartheid or the Soviet Union back
when it was the Soviet Union. Nobody has ever had an incarceration rate as high as ours is now.” Though mandatory minimums are still controversial,
judges who
overall most judges seem happy with the current system. Gertner, the Harvard professor who compared judges to surgeons, says that
started their careers after the late 1980s “have become inured to the guidelines … they have
come to think that the guidelines defined fairness.” Osler, the former Detroit prosecutor, agrees: “The whole
structure is still guidelines-focused … That baseline seems so objective. It’s a number, and there’s this
presumptive objectivity when you’re looking at something that says, ‘121 months.’ Because it’s so
specific, it has this veneer of science around it. Where, in reality, it’s pretty much just made up.”
Coughenour thinks some judges are over-reliant on guidelines and apply them without
thinking about the consequences. “[Guidelines] make sentencing easy,” he says. Too easy. And yet,
the data seem to show that judges are exercising discretion. As of last summer, according to the U.S.
Sentencing Commission, fewer than half (47 percent) of all sentences fell within the guidelines range.
About 51 percent of sentences fell below the guidelines. Just about 2 percent were above. And even these national averages conceal huge disparities
among regions. The Second Circuit (New York, Connecticut, and Vermont) follows the guidelines only 28 percent of the time. In the Fifth Circuit
(Louisiana, Texas, and Mississippi), however, 64 percent of sentences fall within the guidelines. What’s more, these numbers conceal more disparities
among districts. Within the Second Circuit, for instance, guideline compliance ranges from 54 percent in the Northern District of New York to less than
17 percent in the adjacent District of Vermont. Coughenour’s own Western District of Washington follows the guidelines 34 percent of the time, which
is higher than the Ninth Circuit’s 28 percent average. And even those variations conceal discrepancies among judges. Coughenour, for instance, says his
sentences are only about 20 percent compliant. Don’t these inconsistencies represent just what Coughenour wants? All
of these differences
would seem to imply that judges have broken free from the robotic guidelines regime. On the contrary,
Coughenour and every judge I spoke to—including those who disagree with Coughenour—largely chalk those
discrepancies up to prosecutors, not judges. Each U.S. Attorney’s Office has an endemic culture. A district
with low compliance could be one in which prosecutors routinely overcharge,
asking for heftier-than-necessary punishments. Conversely, a district with high compliance
could be one in which prosecutors generally ask for more lenient sentences or for sentences that
already fall within the guidelines. But it’s hard to know, since prosecutors’ decision-making processes are off the record and
unreviewable. And that is Coughenour’s point. For all the capriciousness of pre-reform sentencing, a judge’s
decisions were made in open court, and the judge owned them. Whether the punishment was just or not, the
words of each decision were forever available to the public. It was imperfect, but at least it was out in the open. The
public wants an ideal arbiter: just, wise, and knowing. But while questing for that mythical, paternal figure who will make all the right
decisions, it’s easy to become disillusioned with the inconsistency and fallibility of human beings. The sentencing guidelines were an idealistic gesture,
an expression of the belief that there is some objective measure of justice.

Departure from the guidelines is consistently limited

William W. Berry III, February 2008, [D. Phil Candidate at University of Oxford; JD at
Vanderbilt University; BA at University of Virginia , "ARTICLE: Discretion Without
Guidance:The Need to Give Meaning to § 3553 after Booker and its Progeny, 40 Conn. L. Rev.
631", No Publication, https://advance-lexis-com.proxy.lib.umich.edu/document/?
pdmfid=1516831&crid=20fb720d-7ea8-472a-940a-651754e866a9&pddocfullpath=%2Fshared
%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A4S1S-MJ60-00CV-T0K0-
00000-
00&pdcontentcomponentid=138398&pdteaserkey=sr0&pditab=allpods&ecomp=kb63k&earg=s
r0&prid=3b631fbd-14c8-40f2-8001-f23458a63d69 //Weese]
To date, there
has not been a within-guidelines sentence reversed as unreasonable . Thus, with the
ability to depart for virtually any reason (based on the broad text of § 3553) has come with a strong
presumption that doing so should only be done in unique situations. The upshot of the Booker
jurisprudence then is that the narrow permissible rationales for departing from the guidelines before Booker have been replaced by
an open-ended, "blank check" license to depart from the guidelines for any rational basis drawn from § 3553. Even after Gall,
significant departures must, however, articulate compelling facts or circumstances to avoid reversal
for abuse of discretion. Further, even after Kimbrough, the basis for departure should generally not be an assessment of
whether guideline provisions or policy statements as a matter of law are consistent with § 3553 or whether they provide an
appropriate baseline from which to depart for a given offense. As a result, the
increase in district court
sentencing discretion has resulted in very little change in the use of the guidelines ,
with the number of departures very similar to what occurred pre-Booker . Despite having greater ability to
depart, the federal judges seem as willing to sentence within the guidelines as prior to Booker and if anything, appear more wedded
to the guidelines as a strongly presumptive norm than before Booker, as the average sentence per offense has
increased since January 2005. [*666] B. Post-Booker Data The United States Sentencing Commission has published
summaries of post-Booker sentencing outcomes. For the fiscal year 2006 (October 1, 2005- September 30, 2006), federal
district courts departed from the Guideline range based on a non-Guideline reason (§ 3553 or
Booker) in approximately nine percent of cases, with eight percent being below Guideline range departures. The upward
Booker departures occurred predominately in immigration, fraud, firearms, and drug trafficking cases, with a large percentage of
pornography/prostitution cases receiving upward Booker departures as well. The downward Booker departures occurred primarily
in the same offenses: immigration, fraud, firearms, drug trafficking cases, and pornography/prostitution. A significantly higher than
average percentage of money laundering and tax cases received downward Booker departures. In the upward Booker departure
cases, judges had a median sentence increase of around forty-five percent, with the median sentence for such offenders being fifty
and sixty months and the median increase from the Guideline maximum being fourteen and fifteen months. In the downward
Booker departure cases, judges had a median sentence decrease of around thirty-five percent, with the median sentence for such
offenders being twenty-four months, with the median decrease in sentence being twelve and fifteen months. The upward Booker
departures relied on four § 3553(a) provisions: nature and circumstances of the offense/history of the defendant, just deserts,
deterrence and incapacitation, in that order. The downward [*667] Booker departures similarly relied upon the nature and
circumstances of the offense/history of the defendant as the primary rationale, followed by the § 3553(a)(2) factors of just deserts
and deterrence. From this data, it is evident that in almost ten
percent of the cases, the district courts have chosen
to depart from the Guidelines, and, as a result, have substituted their own discretion for that of the Sentencing
Commission. Further, the size of the departures have been significant, with a median of no less than thirty percent below the
Guideline minimum or forty percent above the Guideline maximum. As the most common justification for departing from the
Guideline range is the broad category of the nature and circumstances of the offense/history of the defendant and with rationales for
departures ranging broadly across the possible § 3553 factors, it is unlikely that there is any consistent principle guiding such
departures. These results highlight the need
for such a guiding principle in defining what goal is to be
achieved in sentencing an individual defendant.
 AT: Booker Solves – Not Enough
Even if they win a decrease post-Booker, it wasn’t enough to
challenge the fundamental assumptions at the basis of the
guidelines.
Paul J. Hofer, 2019, [Paul Jeffrey Hofer is policy analyst for the Sentencing Resource
Counsel of the Federal Public and Community Defenders, and adjunct associate professor in the
Department of Psychological and Brain Sciences, Johns Hopkins University., "Federal
Sentencing After Booker", Crime And Justice
https://www.journals.uchicago.edu/doi/abs/10.1086/701712?mobileUi=0&journalCode=cj
//DMcD]
Sentencing reform in the federal courts was sabotaged by Congress and compromised by the United
States Sentencing Commission before the [*138] guidelines took effect, and after 30 years no one has
been able to fix it. The Sentencing Reform Act of 1984 (the SRA) was a bold plan nearly 10 years in the making. It
created the commission as an independent expert agency in the judicial branch and charged it with developing
detailed presumptive guidelines based on research and consultation with key stakeholders. The guidelines were to
advance the purposes of sentencing and reduce unwarranted disparity. The commission was to "develop means of measuring the
degree to which sentencing, penal, and correctional practices are effective." To prevent discretion and any resulting disparities from
merely shifting from judges to prosecutors with the adoption of sentencing guidelines, the SRA tasked the commission with
developing standards for plea agreements, and judges were tasked with enforcing them. In
the SRA itself, however, were
signs that Congress would not avoid micromanaging the commission's work (Stith and Koh 1993). In
addition to broad principles and lofty goals, the act contained specific directives that limited the
commission's options, such as the so-called career offender provision (28 U.S.C. § 994(h); implemented at
USSG § 4B1.1), which mandated lengthy prison terms for defendants with two prior drug or violent crimes. Most important, in the
Anti--Drug Abuse Acts of 1986 and 1988, Congress expanded the system of statutory mandatory minimum sentences, which form a
parallel, and incompatible, system of coarse sentencing rules that override the guidelines whenever they conflict. By requiring
sentences of at least 5 or 10 years for any offense involving certain quantities of a "mixture or substance containing a detectable
amount" of a drug, the statutes
constrained the commission, distorted the guidelines, complicated
sentencing law, and shifted power away from the commission and judges and toward Congress
and prosecutors. [*139] In United States v. Booker, 543 U.S. 220 (2005), the US Supreme Court made a
fundamental change to the SRA to render the guidelines "effectively advisory" (p. 245). The decision
excised provisions of the act that limited departures from the guideline range to extraordinary circumstances, and provisions that
made the guidelines enforceable on appeal. This empowered judges to consider all relevant offense and
offender characteristics that might make a sentence within the range greater than necessary to satisfy the purposes of
sentencing, including factors that the commission had deemed "not ordinarily relevant." Especially as clarified in the later decision
of Kimbrough v. United States, 552 U.S. 85 (2007), judges were empowered to reject unsound guidelines, even in ordinary cases, if
the guidelines recommendation fails to properly reflect the purposes of sentencing and other considerations listed at 18 U.S.C. §
3553(a). These include the traditional purposes of punishment--just deserts, protection of the public through deterrence and
incapacitation of dangerous offenders, and rehabilitation and training of offenders. Sentences are to be "sufficient, but not greater
Rates of
than necessary" to achieve these purposes. In the years since Booker, guideline application has become less rigid.
sentences within the guideline range dropped by 10 percent immediately after the decision . They
continued to decline steadily for [*140] several years before reversing course and increasing slightly
starting in 2015. Just fewer than half of defendants were sentenced within the guidelines range in fiscal year 2017. Judges regularly
sentence below the guideline range for mitigating circumstances that were discouraged by the guidelines and appellate courts prior
to Booker. Guidelines applying to several crimes, such as certain drug and child pornography offenses, are widely
recognized to be excessive and are rejected by some judges in a large portion of cases. But rendering the
guidelines advisory could not address the biggest problems with federal sentencing . Booker did
not amend the policy substance of the guidelines . The SRA's promise of guidelines that reflect
best practices and empirical research remains unfulfilled . The commission's ability to amend the guidelines
remains constrained both politically and legally. Even guidelines that lack any rationale or supporting
evidence of effectiveness continue to exert a "gravitational pull ," with substantial numbers of
judges simply accepting that the guideline recommendation must have some sound basis . Some
appellate courts have actively discouraged sentencing judges from reviewing the soundness of
guidelines through evidentiary hearings and expert testimony. Sentencing judges for the most part have treated
Booker as a general loosening of the constraints of the previous departure standard, rather than
as a basis for reviewing the policies underlying the guidelines . They continue to search for unusual
circumstances about the case that might justify departure rather than critically examine
whether the guideline recommendation deserves deference in routine cases. The hope of
reformers and academics for a critical jurisprudence, akin to the administrative law review given to rule-making by other agencies,
has never emerged, despite unique circumstances of the sentencing guidelines that make it especially appropriate (Luby 1999; Miller
and Wright 1999). Most important, the
parallel system of mandatory minimum sentence statutes remains
in place, constraining both the commission and sentencing judges. These statutes, directly and indirectly, are
the most important [*141] source of excessive severity and unwarranted disparity today. By giving prosecutors power to threaten and
require severe punishments that are unreviewable by judges, these statutes enable prosecutors to pressure defendants to waive
important procedural rights meant to bolster the system's truth-seeking functions. The statutory
minimums constrain
judges from imposing sentences best able to achieve the purposes of sentencing . This essay begins with
a review of Booker and subsequent decisions that raised hope that the SRA's vision of sentencing reform might be given new life. The
second section presents data showing that, despite an immediate increase in imposition of sentences below the applicable guideline
range, use of imprisonment did not decrease after Booker. Amendment of the drug guidelines and statutes governing crack cocaine
sentencing reduced sentence severity more significantly than did the switch to advisory guidelines. Section III reviews reasons for
this inertia, including the continuing gravitational pull of the guidelines and the failure of judges to develop a critical jurisprudence
of the guidelines. The effects of the switch to advisory guidelines on various sources of unwarranted disparity are examined in
Section IV. The final section discusses continuing problems caused by mandatory minimum penalty statutes, which both create
unwarranted disparity and undermine the fairness of the federal sentencing process. In sum, the
switch to advisory
guidelines had less effect on sentence severity and on judicial scrutiny of the guidelines'
recommendations than the Supreme Court seemed to anticipate and reformers hoped . The
commission and appellate courts have worked to discourage critical scrutiny and rejection of
guidelines recommendations. Research suggests that inter-judge disparity has increased modestly following the decision.
But despite suggestions from the commission that increased judicial discretion has increased racial disparity, the research is
controversial and inconclusive. Moreover, judicial discretion is unlikely to be the greatest source of racial disparity in federal
sentencing today. The Booker
remedy of advisory guidelines has proven inadequate to address the
most serious problems plaguing federal sentencing , in particular, congressional micromanagement of
sentencing policy in the form of specific statutory directives and mandatory minimum penalties, many of which have unjustified
adverse impacts. For the SRA's vision of sentencing reform to be realized, Congress and the commission will need to act. But current
proposals for a return to more mandatory guidelines do not address the biggest problems with federal sentencing today.
 Guidelines Bad – Arbitrary
The sentencing guidelines are vague and lead to arbitrary and
inconsistent sentencing
Veronica Saltzman, Summer 2018, [ J.D. Candidate at Harvard Law School, " Note:
REDEFINING VIOLENCE IN THE FEDERAL SENTENCING GUIDELINES, 55 Harv. J. on
Legis. 525", No Publication, https://advance-lexis-com.proxy.lib.umich.edu/document/?
pdmfid=1516831&crid=06383c78-335e-451f-9a6d-47abaf26def9&pddocfullpath=%2Fshared
%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A5SST-NM80-00CW-22FH-
00000-
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1&prid=6aef769a-bf15-44ac-aab9-8ab14f3e24bc //Weese]
C. The Definition of "Crime of Violence" Remains Vague and Inconsistently Applied Even without the
residual clause, the definition of "crime of violence" remains vague and must be amended. Justice Thomas
appeared to admit this in Beckles when he wrote that "holding that the Guidelines are subject to vagueness challenges … would cast
serious doubt on their validity. Many of these other factors appear at least as unclear as § 4B1.2(a)'s residual clause." Indeed,
neither the "elements clause" nor the "enumerated clause" provides clarity for judges
determining whether a defendant has been convicted of the requisite predicate crimes to qualify
for career offender enhancements. First, some circuits split over whether particular crimes qualify
as a crime of violence within the meaning of the elements clause. For example, the Seventh Circuit held that
a defendant's prior conviction of domestic battery under Illinois law qualified as a crime of violence under the "elements" clause of
the career offender Guideline. The defendant argued that, because the relevant statute did not include physical force as an "express
element of the crime," it failed to qualify as a crime of violence. The court rejected [*535] this argument, stating that a domestic
battery statute necessarily (and therefore, implicitly) required proving physical force "because proving intentional causation of
bodily harm 'unambiguously requires proving physical force.'" The Eighth Circuit adopted the same view, holding that a defendant's
prior conviction of second-degree battery included violent force as an element "since it is impossible to cause bodily injury without
using force capable of producing that result." Yet the First Circuit rejected the view that the element of "causing physical injury"
implies the additional element of physical force. Thus, these circuits disagree over whether similar statutes constitute "crimes of
violence" under the elements clause. Another example of the circuit
splits (and general confusion) surrounding the
elements clause involves
the question of whether reckless use of force against another constitutes a
"crime of violence" under the elements clause. In Leocal v. Ashcroft, the Supreme Court declined to address
"whether a state or federal offense that requires proof of the reckless use of force against a person or property of another qualifies as
a crime of violence...." The Supreme Court still has not addressed this question . As a result, courts have split
over the issue. For example, the Fifth Circuit in United States v. Howell held that "the mental state of recklessness may qualify" as a
"crime of violence" under the elements clause of the Sentencing Guidelines. Similarly, the Eighth Circuit held that "reckless conduct
… constitutes a 'use' of force under the ACCA … ." The District Court for the District of Columbia explicitly disagreed with the Fifth
and Eighth Circuits, holding that "a state statute that requires the mere reckless application of force … does not meet the
requirements of the elements clause of the ACCA." Additionally, district courts within the First Circuit have split over [*536] the
issue, and the First Circuit has yet to resolve the split. These cases illustrate how different
circuits may arrive at
divergent conclusions over whether similar statutes qualify as crimes of violence under the "elements
clause," potentially leading to both over-and under-inclusion of certain conduct . The Sentencing Commission
could remedy these splits by listing specific statutes and specifying what behavior covered by these statutes constitutes a "crime of
violence." Along with splits related to the "elements clause," use of the " enumerated
clause" can also lead to
inconsistent and arbitrary results. The enumerated clause lists the following as crimes of violence: "murder, voluntary
manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of
a firearm … or explosive material … ." In
deciding whether a defendant's prior conviction constitutes a
predicate "crime of violence," the judge must determine whether the prior statute of conviction
has the basic elements of the modern day, "generic" understanding of the enumerated offense .
Indeed, certain statutes describing the enumerated crimes may include elements that do not fit the
"generic" offense. These "divisible" statutes list elements in the alternative (thus defining several crimes within one statute).
For example, a statute may describe burglary as "'the lawful [or] unlawful entry' of a premises with intent to steal." Because the
"generic" definition of burglary does not include lawful entry, the defendant has only committed the predicate enumerated crime if
her crime of conviction included unlawful entry. Similarly, certain "indivisible statutes"--statutes not containing alternative
elements--may still criminalize a "broad swath of conduct." For example, a statute stating that a "'person who enters' certain
locations 'with intent to commit grand or petit larceny or any felony is guilty of burglary'" is overbroad because it "does not require
the entry to have been unlawful in the way most burglary laws do." Both
divisible and overbroad indivisible
statutes [*537] present difficulties in determining which prior offense the defendant actually
committed. To address these difficulties, the Supreme Court provided a tool for judges parsing divisible
statutes. Yet it did not provide one for overbroad indivisible statutes . When examining a prior conviction
under a divisible statute, the Court instructs judges to use the "modified categorical approach. " Under this
approach, the judge may look to a "limited class of documents "--such as the charging document, jury
instructions, or plea agreement--to determine the elements underlying the defendant's prior conviction .
While providing the modified categorical approach as a way to apply the career offender Guideline to divisible statutes, the Supreme
Court held in Descamps v. United States that judges cannot use the approach for indivisible but overbroad statutes. Albeit in the
context of the ACCA, the Court stated that a conviction under the overbroad statute could "never" count as the enumerated predicate
crime. In this sense, the enumerated clause leads to completely arbitrary results for defendants .
Defendants convicted of the same prior conduct but under differently worded statutes may receive vastly different sentences--one
convicted under the overly broad statute may receive no enhancement while one convicted of the same conduct under a narrow or
divisible statute will receive the career offender enhancement.

Vagueness causes excessively and inconsistently severe sentences

Veronica Saltzman, Summer 2018, [ J.D. Candidate at Harvard Law School, " Note:
REDEFINING VIOLENCE IN THE FEDERAL SENTENCING GUIDELINES, 55 Harv. J. on
Legis. 525", No Publication, https://advance-lexis-com.proxy.lib.umich.edu/document/?
pdmfid=1516831&crid=06383c78-335e-451f-9a6d-47abaf26def9&pddocfullpath=%2Fshared
%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A5SST-NM80-00CW-22FH-
00000-
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1&prid=6aef769a-bf15-44ac-aab9-8ab14f3e24bc //Weese]
D. Severe Sentence Discrepancies Result From Incorrect Career Offender Designation Vague and
incomprehensible Guidelines have real impacts on defendants , thus necessitating clearer standards for
judges to follow. As mentioned, Beckles's sentence would have been 33 to 98 months shorter had the
Court held the residual clause unconstitutionally vague and ordered a resentencing. [*538]
Moreover, many district courts, believing the residual clause in the Guidelines was unconstitutional
after Johnson, resentenced defendants designated career offenders under the residual clause .
Eight circuits have already resentenced defendants without the residual clause in the Guidelines. These resentencings
illustrate the severe discrepancies in sentencing with and without the career offender Guideline .
In their recent paper concerning Beckles and the Sentencing Commission, Leah M. Litman and Luke C. Beasley surveyed these
resentencings. They found that, in
a group of eight defendants spanning the eight circuits that had
already resentenced, the defendants collectively had their prison sentences reduced by 288
months (an average of 36 months). Of the more striking reductions, the Tenth Circuit reduced one defendant's sentence from 120
months to 63 months, and the Ninth Circuit reduced another's sentence from 87 months to 35 months. These reductions illustrate
the sheer magnitude of the disparity between career offender and non-career offender sentences. Further illustrating this disparity
are defendants
in three circuits, none of which, prior to Beckles, had yet resentenced defendants given
enhancements under the residual clause before the Commission amended the Guidelines . In the
Fourth Circuit, one defendant's Guidelines range would be reduced from 322 to 387 months to 181 to 211 months without the career
offender enhancement; in the Seventh Circuit, another's range would be reduced from 262 to 327 months to 92 to 115 months; and
The difference between
in the D.C. Circuit, another's range would be reduced from 360 months to life to 92 to 115 months.
a career offender designation and a normal [*539] sentence under the Guidelines is staggering.
As a result, amending the career offender Guideline to produce the clearest possible instructions
to judges is critical.
Guidelines are completely arbitrary
Albert W. Alschuler, October 2005, [Julius Kreeger Professor of Law and Criminology,
University of Chicago., "The Normative And Empirical Failure Of The Federal Guidelines",
Stanford Law Review https://www.jstor.org/stable/40040253 //DMcD]
II. The Disparities that the Guidelines Create
Sentencing researchers typically announce that their goal is to study unwarranted disparity and that unwarranted disparity does not
include the differences in punishment authorized by legislatures and sentencing commissions. It is of course a truism that legally
authorized sentencing considerations are warranted by law (whether or not they are warranted by common sense), and the
researchers have no desire to quarrel with legislatures and sentencing commissions about sentencing policy. From the researchers'
perspective, the disparities created by sentencing guidelines are warranted simply because the sentencing commission has said they
are. This perspective, however, cuts off half the action. Adopting
the viewpoint of a person of ordinary moral
sensibilities rather than of the Sentencing Commission leads quickly to the conclusion that the
Sentencing Guidelines have substituted new disparities for old ones . This perspective suggests in fact that
the Guidelines have seriously aggravated the problem of disparity . Consider, for example,
Chapman v. United States, in which a defendant maintained that guidelines designed to promote equality violated the constitutional
requirement of equal protection. At the time of the decision in Chapman, both the Federal
Guidelines and federal mandatory
minimum sentencing statutes determined an LSD dealer's sentence by weighing the "mixture or
substance" containing the drug. A "hit" [*90] of LSD impregnated in a sugar cube, however, weighs
much more than the same hit in a square of blotter paper or a gelatin capsule . Under the Guidelines, a
dealer who sold 100 grams of LSD in sugar cubes was sentenced three times more severely than one who sold the same quantity in
blotter paper, seven times more severely than one who used gelatin, and nineteen times more severely than one who sold the LSD in
pure form. Judge Richard Posner commented, "To base punishment on the weight of the carrier medium
makes about as much sense as basing punishment on the weight of the defendant ." Judges in the pre-
Guidelines period may have been quirky, but determining how many years to imprison someone by weighing
sugar cubes was madness. In Chapman, the Supreme Court construed the term "mixture or substance" to include sugar
cubes and held that this construction did not call the Guidelines' constitutionality into question. Although a post-Chapman
amendment to the Sentencing Guidelines has eliminated some of the disparities created by weighing "carrier media," disparities
pervade the Guidelines. Mark Osler provides some illustrations: Under
[the Guidelines], a woman who holds just
six grams of crack for her own use is assigned a higher offense level than someone who commits
criminal sexual abuse of a minor, a man who commits negligent homicide by [*91] recklessly
shaking a baby to death, a woman caught stealing six million dollars of public money, or the
executive who orders employees to dump a truckload of toxic waste knowing that people may die
as a result. The crack possessor, in fact, receives the same offense level as that applicable to
those who finance terrorist organizations … . In child pornography cases, the sentence for an individual
who sends a computer image of "virtual" child pornography, made without the use of actual children, would face a sentence twice as
harsh as that allowed under the Guidelines for a defendant who actually rapes a child… . The unreported transfer of large amounts of
cash is illegal because it may support other outlawed activities such as theft. But … the sentence for such a cash transfer, even in the
complete absence of proof that there was any underlying illegal activity, leads to greater punishment than that allocated to the
woman who actually steals the same amount of money… . The
danger of illegally possessed firearms is clear -
they may be used for violence. Under the Guidelines, however, the punishment for possessing
the weapon … is often more severe than that for actually using a gun in a violent crime .
Sentencing judges sometimes have departed from the Guidelines to redress the unequal or
disproportionate treatment they mandate for codefendants and co-conspirators convicted of the same crime.
Appellate courts have nearly always reversed these judges, declaring that disparity between
codefendants is not a permissible reason for departure. The offenses most frequently prosecuted in the federal courts are drug
crimes (40.4% of the caseload ) and economic crimes, including white-collar crimes (21.6% ). In both of these offense categories,
sentences are driven by measures that often allocate punishments arbitrarily. Sentencing reformers imagined that guidelines would
take into account the [*92] same things that judges previously had taken into account but would do so in a more uniform way. The
guidelines would rein in outliers, minimize the role of prejudice, and perhaps, if an expert commission saw the need, make some
changes in sentencing policy. Otherwise they would leave sentencing pretty much unchanged. This vision was probably hopeless
from the beginning. It rested on the assumption that mental processes can be captured in an algorithm. As the reformers saw it, a
commission would need only to determine the components of judges' sentencing decisions and give them the proper weight. Of
course, because the commission might not think of everything, the judges should be allowed to depart in truly exceptional cases. It
was as though reformers noticed that a reviewer named Ebert often gave more stars to a motion picture than a reviewer named
Roeper. The reformers could create a commission to determine how motion picture reviewers made their decisions and prepare a
grid to guide them. The belief
that detailed, mandatory guidelines could largely duplicate the process
by which pre-Guidelines judges made sentencing decisions failed to consider how the human
mind differs from a sentencing commission and how decisions made ex ante differ from those
made ex post. In drafting general guidelines, the Sentencing Commission lists aggravators when doing so "seems like a good
idea at the time." Of course a criminal should receive a harsher sentence if he employs a weapon, and of course he should receive a
harsher sentence if he abducts his victim. Most criminals who abduct their victims use weapons, however, and the Commission may
not notice that the two aggravators together produce a far greater enhancement than it has prescribed for a criminal who inflicts a
life-threatening injury. The Sentencing Commission cannot fully foresee how its sentencing factors will overlap, interact, and
compare with one another. A well-functioning human being who simply assesses "desert" in one case after another is likely to avoid
the Commission's moral errors and inequalities. Some algorithm may be hidden in this person's mind, but if so, it is too complex and
elusive to be brought to the surface and written down. Moreover, a large
number of Guideline factors can itself
generate inequalities when judges differ in applying these factors and their differences cumulate
rather than cancel each other out. Finally, the belief that the Guidelines could largely replicate the process by which pre-
Guidelines judges made their decisions overlooked the inability of language to capture recognized differences. Describing in general
terms the appropriate [*93] influence of situational and personal characteristics on sentences is often impossible. Quantifying
harms, however, seems easy. Just count the stolen dollars and weigh the drugs. The Federal Sentencing Guidelines became crime
tariffs mostly because the Sentencing Commission found it easier to write them that way. The quantity of unlawful drugs possessed
by a dealer and the amount of money stolen by a thief usually are relevant to the sentences they should receive. A thief who reaches
into a till, however, generally takes whatever is there, be it fifty dollars or five thousand. Moreover, when the Guidelines sweep in
drugs and losses tenuously connected to the crimes of which offenders have been convicted, sentences driven by weights and
measures can be especially arbitrary. A later Part of this Article discusses sentencing in white-collar crime cases. The remainder of
this Part discusses drug crimes. A drug courier often does not know what drug is inside the package she carries, let alone how much
of that drug there is. The courier may be a woman traveling with children who was recruited partly because she seemed unlikely to
fit a drug-courier profile or to be searched thoroughly by a customs agent. After being apprehended by a diligent customs agent, this
courier might be taken to court to play a game called "Sentencing Guidelines" or "Wheel of Fortune." In this game, the host opens
the sealed packages of the courier-contestants and weighs their contents. The weights determine which contestants win twenty-year,
all-expense-paid visits to Leavenworth, Kansas, and which receive lesser prizes. To determine the sentence of a crop duster who
knowingly sprayed a field of marihuana, a court now must count the plants in the field and multiply by 100 grams. The Guidelines
declare, "In the case of an offense involving marihuana plants, treat each plant, regardless of sex, as equivalent to 100 G of
marihuana." What constitutes a plant, however, has been the subject of extensive litigation. In one case, a marihuana grower with
very bad timing made 502 small cuttings from larger plants shortly before his arrest. To support his contention that the appropriate
standard was "viability," he offered expert testimony that most of his cuttings would not have survived and that "[a] [*94] cutting
becomes a plant when it develops a root system sufficient to allow the cutting to maintain open stomas so that it can exchange gas
and provide for energy requirements." The Tenth Circuit rejected the grower's contention, declaring, "If a cutting has a root ball
attached it will be considered a plant." The Sentencing Commission later endorsed the Tenth Circuit standard, noting that "this issue
arises frequently." In the cases of drug couriers and others, the Sentencing Guidelines may yield disparate sentences even when they
direct a judge to weigh only the drugs the offender himself possessed at the time and place of his crime. The Guidelines, however,
frequently require courts to weigh drugs possessed at other times and places and drugs possessed by other people. In constructing
the Guidelines, the Sentencing Commission used a principle it called "real-offense sentencing." This term had come into use as a
matter-of-fact recognition that a legal system dependent on plea bargaining frequently fails to convict offenders of their real crimes.
When a bargain has enabled an offender to avoid conviction for his most serious crimes, a judge must sentence him within the limits
applicable to the less serious crimes to which he has pleaded guilty. Before the Guidelines, scholars and judges debated whether, in
selecting the sentence for these crimes, the judge should take account of the offender's "real" crimes. The Sentencing Commission
extended the concept of "real-offense sentencing" much more broadly - to everything it called "relevant conduct." It defined relevant
conduct to include, among other things, "all acts and omissions … that were part of the same course of conduct or common scheme
or plan as the offense of conviction." Under this provision, courts often weigh drugs the prosecutor never charged as part of the
offender's "real offense" and even drugs the jury acquitted the offender of possessing. Relevant conduct also includes "all reasonably
foreseeable acts and omissions of others in furtherance of … jointly undertaken criminal activity." The elasticity of terms like
"reasonably foreseeable," "same course of conduct," and "common scheme or plan" gives judges some practical discretion in
deciding which drugs to weigh. The Sentencing Commission notes, "Evidence from field research suggests that … ambiguity in the
rule, and reluctance to … subject defendants to … severe penalties … limits the rule's [*95] application." When judges exercise their
discretion in differing ways, unequal sentences occur. More
troubling disparities arise, however, when there is no
play in the rule and judges must apply it. In San Francisco, a steadily employed, forty-nine-year-old dockworker with
no criminal record accommodated a friend by driving him to a drug transaction. Because this friend sold more than fifty grams of
crack cocaine, a federal judge was required to sentence the dockworker to ten years. The next case before the judge might have
involved an otherwise identical offender with a less high-rolling friend. In this case, the judge would have imposed a substantially
smaller sentence. A small-time street dealer was arrested in New York with two vials of crack. Then the dealer's supplier was
apprehended with 586 additional vials in his hat. Another dealer's supplier might have been arrested with only ten vials; a third
dealer's supplier might not have been arrested; and a fourth dealer's supplier (or the supplier's supplier) might have been found with
a warehouse full of cocaine. To
people of ordinary moral sensibilities, sentencing the four street dealers
to very different prison terms would seem arbitrary. Federal court lawyers and judges, however,
get used to it.

Federal sentencing guidelines are unclear and cause inconsistent

sentencing
William W. Berry III, February 2008, [D. Phil Candidate at University of Oxford; JD at
Vanderbilt University; BA at University of Virginia , "ARTICLE: Discretion Without
Guidance:The Need to Give Meaning to § 3553 after Booker and its Progeny, 40 Conn. L. Rev.
631", No Publication, https://advance-lexis-com.proxy.lib.umich.edu/document/?
pdmfid=1516831&crid=20fb720d-7ea8-472a-940a-651754e866a9&pddocfullpath=%2Fshared
%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A4S1S-MJ60-00CV-T0K0-
00000-
00&pdcontentcomponentid=138398&pdteaserkey=sr0&pditab=allpods&ecomp=kb63k&earg=s
r0&prid=3b631fbd-14c8-40f2-8001-f23458a63d69 //Weese]
Assessing the weight that should be accorded to the guidelines does not address the central flaw
in federal sentencing: the failure to adopt a primary principle by which to sentence criminal
defendants, or at least by which to prioritize competing principles. The failure of Congress, the Sentencing
Commission, or the federal judiciary to adopt a measure by which to frame sentencing discretion has
inhibited the consistent application of such discretion , regardless of who possesses it. This is true under either
post-Booker approach. Because the Sentencing Commission did not implement the § 3553(a)(2) objectives, the sentencing
ranges for a given offense can be based on different objectives, or more likely, not based on any
objective at all. As a result, the incorporation approach will not result in a coherent approach to
sentencing. Similarly, the broad discretion approach provides no guidance as to which § 3553(a)(2)
objective should be applied when they conflict, and further provides no guidance when the §
3553(a)(2) objectives conflict with the recommended guideline sentence or any of the other §
3553 factors. This shortcoming is both one of philosophical and practical import. As explained earlier , the Sentencing
Commission eschewed its responsibility to set up the guidelines so that they meaningfully
applied the purposes enunciated by Congress in the Sentencing Reform Act . On a theoretical level, it is
troubling because the federal sentencing guidelines are intellectually bankrupt -they
contain no intelligible philosophical principle by which sentences are considered or justified .
Andrew von Hirsch and Andrew Ashworth, among others, have emphasized the importance of choosing a purpose or set of purposes
failure of the
to guide the sentencing process in order to make sentencing decisions both principled and coherent. The [*662]
Sentencing Commission to use any purpose to devise the guidelines has been the subject of
significant criticism, even before the purposes became one of the means by which the sentences were determined after
Booker. Of course, the practical import of these purposes becomes even more important
and in need of remedy in a post-Booker world, and cannot be ignored if federal
sentencing aspires to be coherent and principled in its application. Additionally, because the philosophical ideals
overlay the sentencing process, the purposes are central to the application of 18 U.S.C. § 3553 in determining the appropriate
sentence. The parsimony
provision mandates that the sentence be "sufficient, but not greater than
necessary" to achieve the stated purposes. The statute, however, is silent on the question of how
to determine a sentence range when the purposes indicate different results . For instance, a ten-year
sentence for cocaine possession may be sufficient but not greater than necessary to deter others from committing the same crime
(serving the purpose of general deterrence), but it also may be greater than necessary to achieve the purposes of just punishment,
rehabilitation, or incapacitation. Thus, establishing priorities among purposes is paramount because the statute plainly requires that
the court
the actual sentencing determination apply these purposes. So, as is the practice in most district courts after Booker,
follows the process explained above: it calculates
the guideline sentence and then must apply the statute to
determine whether the sentence should [*663] be increased or decreased. The Supreme Court has
given no substantive guidance on how this process is to work, simply adopting a "totality of the circumstances approach,"
allowing the district court to choose which of the conflicting provisions , if any, to use in adjusting
the Guideline calculation. How should a district court reconcile conflicting outcomes from the application of § 3553(a)? For
instance, what principle should a court use when a proposed guideline sentence is both "greater than necessary" to achieve the
purpose of rehabilitation as well as "not sufficient" to achieve the purpose of deterrence? In addition to serving as a basis for
analyzing the appropriateness of a Guidelines sentence, the purposes of sentencing are likewise a method of informing what factors
may be considered at sentencing. A pure just deserts model, for instance, considers only the culpability of the offender and the harm
committed by the crime, and precludes consideration of personal characteristics of the offender such as future dangerousness or the
effect of the sentence on family members. While the guidelines attempt to articulate favored and disfavored grounds for departure,
it is unclear after Booker whether some of the disfavored grounds are now a basis for applying a
sentence above or below the recommended guideline range, where such factors are part of the application of
the parsimony principle. Thus, identifying the priority and respective weight of the purposes informs the determination of what
criteria can serve as grounds to aggravate or mitigate a sentence.

Guidelines lead to politicization, lower transparency, and

congressional and executive overreach.
Evangeline A. Zimmerman, 2010, [University of Michigan Law School, J.D. 2009; Yale
University, B.A. 2004, "The Federal Sentencing Guidelines: A Misplaced Trust In Mechanical
Justice", University Of Michigan Journal Of Law Reform
https://repository.law.umich.edu/mjlr/vol43/iss3/8/ //DMcD *Edited for ableist language]
A. A Stillborn [Hopeless] Measure: Why the FSG Were Always Doomed
The FSG were crippled [weak] from the beginning. Regardless of whether they actually conflicted with the Sixth Amendment, they
lacked a clear underlying purpose, had a misplaced trust in uniformity, and were born of compromise. This
Note addresses each of these issues in turn, specifically arguing that the FSG failed because (1) they did not ask and answer the
central questions that are necessary for any set of regulations to function properly, (2) [*856] they confused the perception of
homogeny with fairness, and (3) they were too closely tied to political interests to meet the SRA goals of
transparency and fairness. 1. Why Do We Really Want Sentencing Guidelines? First, this Note pushes back on the
unchallenged assumption (and a basic premise of the SRA) that uniformity should be a primary goal of
sentencing reform. A Dworkinite might argue that clear, unambiguous sentencing - like the strict reading of a
statute or a set of rules - provides judges with firmer ground on which to stand when making other
decisions. However, this argument ignores the reality that federal courts sit within states that
have their own set of rules and presumes that federal judges need not (and will not) consider how
various sentences will be received within their own community . Some sentencing discrepancies
from state to state may, in actuality, accurately reflect the circumstances of the crimes committed
and be more commensurate with the local populace's understanding of criminal justice. In other words, as is explored
infra Part III.A.2, varying sentences may be more fair . Regardless of one's view on the propriety of allowing disparities,
the reality must be acknowledged that federal courts sit in individual states. Legislation must understand how a system actually
works to be effective. How could the FSG be successful if, when designed, the Sentencing
Commission and Congress were
unwilling to consider that other approaches, besides the strict view minimizing discretion, might have merit?
Perhaps allowing judges to make discretionary sentencing decisions , to "legislate at the margins," gives the
system greater legitimacy by enhancing the community's perception of its fairness . If federal
sentences are far more severe than those administered within the state, it could have a negative [*857] impact on the federal system
as well as the general criminal justice goals of deterrence, rehabilitation, and so on. In any event, these queries cannot be answered if
they are never considered. Second, if
a sentencing regime is to fully function - especially one of such broad scope and
sweeping effect - it
needs to be animated by an underlying theory of criminal justice . Our current
system is fragmented; no one clear justification for criminal punishment exists .
Retributivism was en vogue in the 1970s, deterrence in the 1980s, incapacitation in the 1990s, and "a muddle in the early years of
the twenty-first century." In 1984, the Federal Sentencing Commission sewed together a complicated patchwork to mete out
sentences, but it never
gave the FSG a clear purpose; it never gave it life. As a result, the final legislation was a
mutable text from which one could read out that which had already been read in. Politically, finding
one theoretical justification for the FSG may have been too difficult (as discussed infra Part III.A.3). Nonetheless, providing
all
four common - and often conflicting - justifications for punishment (those popular in the "70s, "80s, and
"90s) added little. If anything, it made the Guidelines harder to apply by obfuscating the real reasons for
their passage. Are the sentences prescribed by the FSG the best means of retribution for the crimes committed, or will fixed
sentencing deter criminals since they know exactly what type of sentence they will receive? Is the aim of fixed sentencing to
incapacitate as many criminals as possible, or are these sentences the best means of reforming and rehabilitating prisoners? These
are basic, fundamental questions that the SRA left unanswered in 1984 and still has yet to address. Judge Frankel initially criticized
indeterminate sentencing for its lack of clear purpose. In 1972 he scathingly wrote, "Nothing tells [*858] us … when or whether any
of these several goals [retribution, deterrence, denunciation, incapacitation or rehabilitation] are to be sought, or how to resolve
such evident conflicts as that likely arise in the effort to punish and rehabilitate all at once." However, the Sentencing Commission
never solved this problem. In fact, it never even addressed it. Thirty years later, Judge Frankel had to acknowledge that this difficulty
remained: The Commission had done little or nothing about the hardest problem of all : it has not
advanced the education of Congress, or any of us, about what we mean to achieve, and what we in
fact achieve, as we continue to mete out long prison sentences. … … We still scarcely know what
we're doing or why we're doing it, when we inflict punishment for a crime. This strongly contributed to the FSG's
failure. One cannot ask for uniformity without knowing why it is desirable. This leaves judges and prosecutors without any real
guidance and opens the FSG to the same opaque application that led to the near-complete eradication of indeterminate sentencing.
Michael Tonry, one of the leading scholars on sentencing, discusses this problem in depth in his article, Purposes and Functions of
Sentencing. He reiterates that fair and just sentencing systems require a basic understanding of "what sentencing is for and what it
can do." He concludes that "unless we are clear about [the purposes and functions of sentencing], we will
not have much success at designing sensible, effective, and workable systems for the twenty-first
century." In applying Tonry's standards to the FSG, one sees clearly that the Guidelines were all form with minimal underlying
function. [*859] 2. Outcome-Only Focus Misses the Point When passing the FSG, Congress equated similar sentences
for similar crimes with certainty and fairness. However, simply because two individuals receive
the same approximate sentence for the same crime charged does not mean that the potential for
injustice and discrepancy has been removed. Our current justice system is premised on the idea that fair sentences
involve a full consideration of the particular facts in each case. If this was not true, and we strictly equated predictability with justice,
Congress would do away with discretion in sentencing altogether and proscribe a set sentence for each offense with no possibility of
deviation. That is not how our system works, however. Even the FSG left room for some variation. As some critics have noted, "the
fixation on reducing sentencing disparity that results from the exercise of judicial discretion has been a
mistake of tragic proportions." A fair sentence is more than its outcome; instead, "[a] just sentence
must also be a reasoned sentence and a proportional sentence, imposed through procedures that comport with basic understandings
of fairness and due process of law in a constitutional scheme of checks and balances." A mechanical sentence, prescribed by a grid
that lines up an individual's prior history with the level of the offense charged, blindly assumes that the discretion used to bring
those charges - and to set the sentence stipulated - is fair. Such blind
faith demonstrates either a deep naivete or a
willful ignorance of the way our system functions in two central ways . First, large bureaucracies require
compromise, flexibility, and inexactitude to operate. As Hart pointed out, statues cannot be [*860] written to cover every possible
outcome. A grid dictating sentences cannot account for all variables. Further, Congress is an inherently political body.
As discussed infra Part III.A.3, one should not - indeed, cannot - assume that the framework used in the Guidelines is free from bias.
In crafting the FSG, Congress created the appearance of simplicity and, by proxy, fairness. However, just
because something
is easy to apply does not mean it is evenhanded . Even if the framework created by the Sentencing Commission was
fair, basing the assessment of success (i.e., a decrease in bias) on the uniformity of the outcome keeps hidden the process involved in
bringing the matter to trial. Second, prosecutors are not only advocates in the adversarial system, they are executive branch
advocates. Shunting sentencing-related discretion from judges to prosecutors disregards this basic premise of our criminal system.
As discussed supra Part II.B, judges are designated as neutrals. They are removed from the political process and are meant to
evaluate each case with the aim of being impartial. Whether or not one believes this actually happens, it is one of the central
mandates of their position. This is not the mandate for federal prosecutors. Internal guidelines for U.S. Attorneys require them to be
fair and rationally objective, and general ethics demand nothing less. At the same time, they serve at the pleasure of the President
and the U.S. Attorney General. If the Attorney General decides to set an agenda based on political views, the prosecutors must follow
it. [*861] The clearest example of this took place in 2003. Then-acting Attorney General John Ashcroft issued a memorandum
sharply limiting prosecutorial discretion in charging so as to align all the U.S. Attorneys' Offices with the current presidential
administration's political views on crime. Specifically, he instructed the attorneys to charge each defendant with the maximum
sentence possible in almost all cases and also said they were not to depart downward from the FSG's recommendation without
permission from a superior. Prosecutors were no longer tied to their own personal sense of what was fair, and instead were shackled
to the political machinations of the executive branch. As Professor Kate Stith wryly, and rightly, noted, "perhaps it is politically
inevitable that if called upon to respond in one sentence to the question, "What should prosecutors charge?', officials at Main Justice
must answer "the most serious charge available.'" The administration of our criminal justice system, and the
locking up of criminals, has
been a strong political platform for a long time . It seems foolish to assume
that federal prosecutors can remain completely immune to these political pressures.
Unlike federal judges, they are not appointed to lifetime terms and they are tied to the executive
branch, even if they seek to minimize that connection . Moreover, should the executive branch overstep the
bounds of its power (by firing attorneys solely for their political views, for example) it will take a while before this overreaching can
Due to the
be effectively curbed. The FSG failed to fully consider the relationship between prosecutors and the executive branch.
nature of a prosecutor's role in the criminal system, he has a great deal of discretion in
charging the defendant, a power which is intended to be a safeguard against improper prosecutions. But, as demonstrated
[*862] by Ashcroft's memorandum, if the executive branch decides to flex its muscles and curb that discretion, it can. Even with an
internal code of ethics, prosecutors can be directly impacted by the will of the executive branch and forced to make charging
decisions they may, personally, think are unfair. The FSG
provided prosecutors with a great deal of power ,
tying sentences to the crimes charged instead of those committed , and the Commission
acknowledged that this had the potential for abuse by prosecutors . However, it ignored the power it
would be giving the executive and neglected to recognize the potential for abuse if an
administration decided to strongly intervene in the decisions made by its attorneys . When
sentencing, judges act as gatekeepers, individuals who oversee a wide variety of cases and are explicitly given the instruction to be
impartial and fair. For this reason, takingsentencing discretion from judges and giving it to prosecutors , as
the FSG did, removes one of the necessary safeguards from the criminal justice system . This is
particularly worrisome when one recognizes - as the Commission failed to do - that this also gives the executive
branch a power formerly reserved for the judiciary. 3. Politicization Undermines
Transparency and Fairness The Sentencing Commission was intended to be both independent and a part of the judicial
branch. In practice, neither really occurred. Justice Scalia characterized the Commission as "a new Branch altogether, a sort of
junior-varsity Congress." Some scholars question the Commission members' actual ties to the judiciary, and the Supreme Court has
affirmed that the Commission serves a more legislative than judicial function. Judge Frankel acknowledged outright Congress'
political power in influencing the Commission, noting that Congress is the "principal villain" for [*863] the FSG's
severity. This cannot have come as a surprise to those familiar with the political climate surrounding the passage of the SRA and
the creation of the Commission. The Sentencing Commission was born out of the increasing crime rate, poor race relations, and
growing national drug problem of the 1970s. These circumstances led politicians to run for office on "tough on crime" platforms and,
once elected, they then focused on sentencing to fix high crime rates, making prison sentences longer and doing away with judicial
discretion. The FSG and accompanying sentencing matrix came out of this political climate and further politicized the sentencing
system in a manner that directly challenged the "fairness" that the SRA was meant to produce. The Commission took sentencing
from third-party neutrals, let Congress approve the "appropriate" sentencing structure, and then allowed for a charge-based system
It is a
that gave prosecutors and their charging documents the power to choose a defendant's potential sentence pre-trial.
stretch to claim that this is more fair and untainted by outside interests than a judge issuing an
indeterminate sentence. The politicization of the Guidelines, and the resulting obfuscation of just sentences, is
clearest in the sentencing disparity found between crack and cocaine powder . Under the FSG, as
originally written, every gram of crack cocaine was treated as the equivalent of 100 grams of powder cocaine, commonly
known as the 100-to-1 ratio. Judge Frankel argued that the Commission was not entirely at fault for the failures like these.
Instead, "the excessiveness of our sentences stems from a recurrent mass hysteria in which American citizens and their
representatives are led to act as if savage punishments will "solve' the "crime problem.'" He goes on to [*864] argue that the
Commission might still be a good idea, and it could creatively get around this problem. This Note disagrees. The Commission did try
Congress is, by its very
to amend the FSG's lopsided treatment of crack three times, and was rebuffed by Congress each time.
nature, a political body that is meant to represent the general public - regardless of its make-up or its fear of
criminals. In effect, by putting sentencing in the hands of a Congress-controlled Commission, Judge Frankel turned criminal
defendants over to that mob of "mass hysterics." It was not until 2007, when the Supreme Court stepped in and issued its decision
Kimbrough v. United States, that judges were explicitly allowed to deviate from the FSG in cases related to the crack/cocaine powder
discrepancy. In coming to that decision, the Court explicitly acknowledged that some of the sentences set out under the Guidelines
were not in line with the purposes of the SRA. The
criminal justice system has been inherently political for a
long time. It is folly to assume that a Commission, created by Congress, and whose suggestions
must be approved by Congress, can be truly independent. Anyone familiar with politics and crime should know
that the FSG could not remain free from strong political influence and compromise . As Justice Stephen
Breyer emphasized in The Federal Sentencing Guidelines and the Key Compromises upon Which They Rest, written before his
appointment to the Supreme Court, "those individuals disappointed by the compromises [in the FSG] may have failed to adequately
consider the way in which governmental processes must inevitably work." This inevitability should have made clear that the FSG
could never meet the SRA's goals of clarity and transparency .
 Guidelines Bad – Bias
The guidelines are a relic from the “tough on crime” era and inflict
excessively harsh sentences
Rory Fleming, 2-18-2020, [licensed Minnesota attorney and former employee for the Fair
Punishment Project, "Can Roger Stone Case Spark Debate on the Dreadful US Sentencing
Guidelines?", Filter, https://filtermag.org/roger-stone-sentencing-guidelines/ //Weese]
Vast numbers of people in the criminal justice system, overwhelmingly from more marginalized populations, are more deserving of
our advocacy. Yet Stone’s high-profile case serves as an entry-point to discuss the near-infinite sway of the US Sentencing
Guidelines, from which all of us deserve protection. On February 10, federal prosecutors recommended that Stone serve a within-
guidelines sentence of seven-to-nine years in prison for his serious but nonviolent offense. Under the US Sentencing Guidelines he
was hit with many aggravating factors that bumped up his sentencing range on the “grid,” such as the determination that his offense
was significant in “scope, planning, or preparation.” Federal
prosecutors usually recommend Guidelines
sentences in a mechanical fashion, without regard to whether the application of aggravating factors is just given the
circumstances of the case. And federal judges are usually quick to comply, because issuing a Guidelines
sentence is the easiest way to not get reversed on appeal—essentially being slapped down by more powerful
judges for having bad judgment. Reversals of federal judges who show relative leniency are typical. Then on February 11, President
Trump tweeted, calling the recommended sentence “unfair” and slamming federal prosecutors. And hey presto, the Department of
Justice retracted its original recommendation that day, filing a new recommendation for a lesser sentence. Specifically, the DOJ
wrote that the original seven-to-nine recommendation was inappropriate, due to a person Stone allegedly threatened saying that
Stone did not deliver a “true threat,” Stone’s age of 67, his lack of criminal history, the need to avoid sentencing disparities, and
other factors. The reaction of the federal line prosecutors assigned to Stone’s case illustrated how unaccustomed they are to having
their recommendations challenged. Four of them left the case, and at least one seems to have left his job completely. [Update,
February 20: Stone was eventually sentenced to 40 months in prison.] Trump’s intervention—amid justified alarm about his many
overreaches and much else—extended to seemingly calling for a retrial on February 18. It is wildly inappropriate and complicates
everything. Yet it has still been curious to see some of the reactions from Democrats in Congress to the prospect of Stone facing a
lower number of years in prison for his crimes. Senate Minority Leader Chuck Schumer (D-NY), for example, appealed to the “grand
tradition in this wonderful Justice Department.” to ensure that “Roger Stone should get the full amount of time the prosecutors
recommended.” Schumer has otherwise called for sentencing reform legislation, which federal line prosecutors adamantly oppose
through their professional organization, the National Association of Assistant US Attorneys. The US Sentencing
Guidelines are almost everything on the federal level . The federal prosecutors, it should be
emphasized, did not produce their original sentencing recommendation for Stone out of some principled concern for American
Under the Guidelines,
democracy or justice. The US Sentencing Guidelines are almost everything on the federal level.
judges are encouraged to look at a defendant not as a person but a number of factors which add or
detract from an offender “score.” For example, the main guidelines for drug-law violations set a base offense level based
on the crime of conviction, the type of drug distributed and the weight. Let’s explore a hypothetical example of how the Guidelines
might apply. Defendant One is convicted for being a part of a drug distribution conspiracy that sold more than 40 grams but less
than 60. His base offense level would usually get set at “18,” which, for someone with no criminal history, would mean a guidelines
sentence of 27 to 33 months in federal prison. But say Defendant One has a friend who asked the defendant if he could score him
some anabolic steroids. He tried to dissuade his friend, but caved after his friend pleaded. His offense level is now “20.” If he also
gave his friend a masking agent, his offense level is “22,” meaning a guidelines sentence of 41 to 51 months. Few judges, in this
context, would revert to the original 27 to 33 months. Here is a more extreme hypothetical. Defendant Two lives in a rural location
not close to other homes with her teenage daughter. She starts using meth and makes her own batch for personal use on exactly one
occasion. She never does it again because she is afraid of the risk to her and her daughter. But a concerned family member finds out
and calls the FBI. Regardless of the very small quantity of meth Defendant Two created, she will be treated like a high-volume
trafficker, with a new offense level of at least “30.” That translates to 97 to 121 months in federal prison. Even with a three-level
decrease for acceptance of responsibility, her score is still at least “27,” meaning 70 to 87 months of hard time. Unsuccessful
attempts are punished the exact same way as successful ones under federal law. Yet at a state level,
in contrast, one real-life woman just received a year and a half in New York state prison for attempted manufacture of
methamphetamine. The Guidelines were created as a move toward “tough on crime” policies and are
still decried by some federal judges as devastatingly harsh . The US Sentencing Guidelines have,
since 1984, been set by a supposedly-neutral US Sentencing Commission They were created as a move toward “tough on crime”
policies and are still decried by some federal judges as devastatingly harsh. The seven commissioners are appointed by the president
and confirmed by the Senate, and receive staggered six-year terms. The acting chair when the most recent Guidelines were
published, in 2018, was Alabama judge William H. Pryor, Jr.—a Federalist Society ally who once fought to have Anthony Ray Hinton
executed for a murder he didn’t commit and thinks gay people should be jailed for having sex. While Congress
can mandate
increases or decreases in harshness for specific offenses —usually increases—it’s up to the commissioners
to determine what the aggravating and mitigating factors are. Shockingly, the guidelines were mandatory until
the Supreme Court made them advisory in 2005 through its decision in United States v. Booker, citing constitutional concerns. (Yet
there are still many people in federal prison who are serving unconstitutional pre-Booker drug sentences to this day.) At the same
time, according to former federal judge and current Harvard Law Professor Nancy Gertner, the
federal judiciary, which once
overwhelmingly opposed the guidelines, has since become “passive” in mostly following them. Arguably the
worst part is that federal sentencing under the Guidelines takes into account all the defendant’s “relevant
conduct”—including conduct as a kid, including whether or not the conduct was charged and
including charges that have resulted in acquittal. And the standard of proof in court for aggravators is
”proof” by the preponderance of the evidence—which means considered more likely than not—rather than “beyond a reasonable
doubt.” Adherenceto these guidelines is one of the main reasons why the federal system inflicts unconscionably
long prison sentences for nonviolent drug-law violations—up to and including life without
parole for supplying marijuana.

Commission’s guidelines are bad – they’re wrought with bias and

flawed science
Jalila Jefferson-Bullock, 2016, [Jalila Jefferson-Bullock is an Associate Professor of
Law at Arizona Summit Law School. She received her A.B. from Harvard College in 1997, M.A.
in the Humanities from the University of Chicago in 1999, and J.D. from Harvard Law School in
2001., "How Much Punishment Is Enough?: Embracing Uncertainty In Modern Sentencing
Reform", Journal Of Law And Policy
https://brooklynworks.brooklaw.edu/jlp/vol24/iss2/2/ //DMcD]
B. The Problem of Bias
Scholars agree that the
Sentencing Commission "failed to give the task [of developing Sentencing
Guidelines] the serious attention that it deserves." Surprisingly, length of confinement and severity
of sentence was not premised on any evidence-based data, and "[n]owhere in the forest of
directives that the Commission has promulgated over the last decade can one find a discussion
of the rationale for the particular [sentencing] approaches." Instead, Commissioners relied on the
same "outmoded" sentencing structure they wished to reform, and employed data that
reformers themselves deemed biased. In the words of sentencing scholar Professor Jelani Jefferson Exum, "the
Commission adopted an 'empirical approach that used as a starting point data estimating pre-guidelines sentencing practice.'
However, developing sentencing ranges based on past practices was not done in any
regularized fashion." Instead, "[t]he Commission increased penalties for white-collar crimes and violent crimes, finding
that the existing sentences were [*377] inadequate." Penalties for drug offenses relied on "weight rather than
empirical data related to the type of sentences being imposed for such offenses or the harms ,"
thereby resulting in much harsher penalties. In some instances, Commissioners averaged existing sentences. However, in doing so,
"the Commission retained the same biases in the Guidelines ranges that led to disparate
sentencing in the first place," and "allowed problematic sentences to serve as the basis for the new
sentencing ranges, as though those problems could be averaged away." Law and policy makers'
biases are largely to blame for the unreasoned exercise that begat Guidelines formulation , and
for why judges followed suit. 1. Confirmation Bias Scholars note that Guidelines formulation and
application represents psychologically biased responses to the widely accepted problem of
unfairness and inconsistency in federal sentencing . Since liberal and conservative "sensibilities"
had already abandoned rehabilitation, the necessity of its demise needed only be gently
"confirmed." This is known as "confirmation bias." Criminologist Frank Cullen explains: Psychologists use the term
"confirmation bias" to refer to the process of deliberately searching for "confirming evidence . . . people and scientists quite often
seek data that are likely to be compatible with the beliefs they currently hold." At that time [during sentencing reform], the
confirmation bias was writ so large that any evidence of [rehabilitative] program
success was attacked through an array of selectively applied methodological and ex post
facto criticisms . . . called "treatment destruction techniques." Despite being on shaky empirical
grounds, . . . the "conventional wisdom" about [*378] rehabilitation's ineffectiveness had become so
widespread that it was "agreed upon by criminologists of nearly every persuasion and theoretical
orientation." This is true even though much of the popular data supporting rehabilitation's
ineffectiveness was blatantly unreliable and "opponents of rehabilitation grossly overstated"
their case. Enlightened studies explain that true comprehension of recidivism rates involve "focusing not just on whether an
offender committed an additional offense, but also whether an offender continued to commit new crimes at the same frequency after
contact with the criminal justice system." Even Martinson's seminal What Works? is subject to scrutiny because, according to
criminologists, it inaccurately "define[s] 'recidivism rate' as 'proportion who fail,' and neglects to account for other factors." The
"regrettable fact that many researchers had failed to follow rigorous scientific procedures while evaluating these [rehabilitation]
programs" was "buried deep" inside Martinson's article for the world to see. These studies found that diversion from high security
facilities into less crowded halfway houses can help reduce recidivism rates for low-risk offenders, and that strict post-release
supervision can reduce youth recidivism rates. Nevertheless, confirmation bias allowed Martinson's work to
effectively "nail[] the door shut on rehabilitation's coffin." Even more shockingly, Martinson
subsequently retracted his findings and advocated for sentencing reform based on his new
research. His new, fully developed study concluded that rehabilitation does work in particular
situations, and that sound [*379] methods can be implemented to determine helpful, individualized treatments. Martinson also
advocated for the integration of parole and rehabilitation into a more rational, determinate sentencing scheme.
Despite its availability , his new research was ignored. Instead, "rehabilitation was unintentionally
sabotaged by evaluation researchers (including many academics) who relied on weak or faulty
methodological procedures." Confirmation bias had already won. And it was supported by its
brethren, status quo bias. 2. Status Quo Bias The Guidelines' starting point is also the product of
unsound psychological factors. In writing the Guidelines, Commissioners "took 'average current
practice' as the starting-point," and, "by analysis of many thousands of cases, []ascertained broadly . . . the existing ranges
of sentences, the recurrent factors influencing actual sentences imposed, and the actual amounts of time served under incarcerative
sentences." Even
sentencing commissioners extensively criticized this strategy in the immediate
aftermath of Guidelines creation. According to Judge Frankel: One of the seven Commissioners, in a
dissent, charges that the guidelines were preceded by little or no empirical study ; that the
starting-point of 'averaging' past sentences is not rationally acceptable ; that the Commission has
failed to rank offenses systematically, to chart a course that will in fact reduce disparities, or to
control departures effectively or sufficiently. Coming from an opposite direction, lawyers and judges have charged
that the Commission's guidelines are an exercise in 'robotics ,' substituting mechanics and arithmetic
for 'human' sentencing; that the effort to administer the guidelines will be uselessly complex and a source of [*380] voluminous
litigation over issues never known before; and that the claimed goal of reducing irrational disparities will not be approached through
these formulations. Studies
reveal that even in today's era of advisory Guidelines , judges still
feverishly cling to the Guidelines, thereby exhibiting status quo bias in making sentencing
decisions. Many scholars have noted the presence of status quo bias in the Guidelines
formulation. Professor Jelani Jefferson Exum writes that status quo bias empowers people to anchor
numerical judgments in initial values already available to them. Judges do the same--their
sentencing decisions are greatly influenced by suggested sentences . However, a court's reliance on
the Guidelines as an anchor becomes problematic when that anchor is biased in some fashion .
Nevertheless, the Supreme Court continues to insist that the Guidelines be used as the baseline in
rendering sentencing determinations, and is "hesitant to let go of a familiar sentencing
instrument." More disturbingly, status quo bias is the central factor underlying the assumption
that incarceration is an appropriate punishment form. In formulating new, reformed sentences, law and
policy makers retained incarceration as the primary punishment vehicle, never seriously
considering its efficacy. Reformers bashed rehabilitation, yet relied on its principal distributive tool in devising
new, "improved" guidelines. "[T]he Guidelines were designed to be a work in progress, [yet thirty] years after their [*381] inception,"
similar problems exist. The Guidelines
have "fallen short of their intended goals to bring uniformity,
honesty, and proportionality to sentencing, even after years of use and many opportunities for
improvements." Yet, the Supreme Court has continued to advocate for the Guidelines to "play a
prominent position."
 Guidelines Bad – Racial Disparity
No unique disparities offense from any Neg CP – the guidelines
dramatically increased racial gaps
Paul Hofer, Spring 2016, [Senior Policy Analyst, Sentencing Resource Counsel Project of the
Federal Public and Community Defenders., "After Ten Years Of Advisory Guidelines, And Thirty
Years Of Mandatory Minimums, Federal Sentencing Still Needs Reform", Toledo Law Review
https://heinonline.org/HOL/LandingPage?
handle=hein.journals/utol47&div=40&id=&page= //DMcD]
D. Booker Increased Some Types of Disparity but Decreased Others The legislative history of the SRA describes "shameful disparity"
as a "major flaw in the existing criminal justice system," and for many eliminating disparity was the primary goal of the SRA. Given
these concerns it is natural that the Guidelines'
success at reducing disparity, both before and after Booker,
has been the subject of much research and analysis . Commentators have not reached a consensus, however. Some
of the disagreements are methodological, and some are over definitions, i.e., over what counts as unwarranted disparity and what
types of disparity sentencing reform should control. Most people agree that we should treat similar offenders similarly, but this is an
empty formula until we define which offense and offender characteristics are relevant to equal treatment. If we define disparity in
terms of the purposes [*684] of sentencing, and examine all of its sources, there is good evidence that unwarranted disparity was
greater after the SRA, the ADAA, and promulgation of the distorted guidelines than it had been prior to their implementation.
Mandatory guidelines modestly reduced inter-judge disparity, but dramatically increased
prosecutor-created and structural disparity - disparity that results from unsound sentencing
rules. The shift of discretion to prosecutors resulted in charging and bargaining decisions that could
not be controlled by the Department of Justice's policies and that went unchecked by judicial
review. Most important, unsound mandatory minimums with profound adverse impacts, especially on African-
Americans, created a new type of structural disparity that had much greater discriminatory
effects than did unstructured judicial discretion. Research following Booker suggests that
some forms of disparity have increased. As discussed in the next section, the primary judge effect has crept up, as
might be expected in a system that increases judicial discretion without increasing sound guidance, and where standards of
substantive appellate review have failed to emerge. Much has been made, by the Commission and others, of an
increase in a particular type of "race effect" following Booker, but this fails to withstand close
scrutiny. There are reasons to believe that disparity from prosecutorial decisions remains significant
today, as it was prior to Booker. And the adverse impact of mandatory minimums, though lessened
somewhat in cases of crack cocaine, remains troubling. Booker has also provided new opportunities to
reduce unwarranted disparity. The gap in average sentences between black and white defendants
has shrunk in recent years, from a combination of Commission actions, congressional reform of the crack statutes, and the
decisions of many judges to reject guideline recommendations based on unsound and discriminatory policies. 1. Inter-Judge
Disparity One of the notable features of research on federal sentencing disparity is that, until very recently, it has
largely focused on a single source - disparity created by judicial decision making. There are no good reasons to
believe this is the only, or even the greatest, source of disparity. But for a variety of reasons, including the
greater availability of data, it has received the most attention. One area where the mandatory guidelines claimed modest success was
in reducing disparity due to philosophical differences among judges. This has been called inter-judge disparity and is measured as
the "primary judge effect" - the difference in average sentences among judges sentencing groups of similar cases. The best estimate is
that the primary judge effect was reduced by about one month under the mandatory guidelines system. The Commission viewed
[*685] this reduction as "modest" but nonetheless "significant progress." Others, however, viewed this measure as missing the most
important types of normative disparity. It is unsurprising that the transition to advisory guidelines has resulted in an increase in the
primary judge effect. An early "first look" at post-Booker sentencing by judges in one federal courthouse found such an increase. A
more recent nationwide study found that under the mandatory guidelines, the differences between harsher and more lenient judges
sentencing similar caseloads varied on average, depending on the time period, by 2.5. to 2.8 months. Following Booker, this
increased to 4.8 months, and following Kimbrough and Gall it increased to 5.9 months. Differences among judges were linked to
some extent to judicial characteristics, such as appointing president and whether the judge had sentenced under the mandatory
Disentangling
guidelines. This suggests that differences in sentencing philosophies and judicial experience can affect sentences.
the influences of judges and prosecutors is tricky, however, and "some of the interjudge disparities may be
attributable to prosecutors' uneven application of mandatory minimums." One author concluded that "the effect of the judge
remains relatively modest," and noted that "inter-judge sentencing disparity is but one consideration among many in evaluating the
federal sentencing system. It is entirely possible to conclude that Booker, Kimbrough, and Gall have improved federal sentencing, on
balance, by allowing judges greater flexibility to reject unjust guidelines and impose just sentences." Although Booker increased
judicial discretion and, as a result, inter-judge disparity, it also gave judges tools to combat structural disparity and other sources. In
fact, some of the inter-judge disparity today results from judges deploying these tools in different ways. For example, imagine that
prior to Booker, ten judges in a district were constrained to sentence within the guideline range for so-called career offenders. After
Booker, five of these judges review the evidence showing that increasing sentences based on prior drug offenses fails [*686] to track
the purposes of sentencing and has a significant adverse racial impact. If these five judges sentence below the range, while the other
five continue their prior practice, there would be an increase in inter-judge disparity. However, the structural disparity caused by the
unsound guideline would be reduced by half. A
better solution would be for the Guidelines to be revised to
reflect the research and the statutory purposes. It seems likely that many, if not most, judges who
today feel bound to impose the guideline sentence would be happy to impose sentences within
the amended guideline range. In that case, both structural and inter-judge disparity would
be eliminated. Complete elimination of unwarranted disparity is possible only when judges follow guidelines that properly
track the statutory purposes. 2. Prosecutor-Created Disparity As discussed in Part II, Congress was concerned about
disparity caused by prosecutors as well as by judges. Precisely measuring and quantifying the amount of disparity created by
prosecutorial discretion is difficult because there are no data comparable to the rich information available on judicial sentencing
decisions. The evidence available in the pre-Booker era suggested that "disparate treatment of similar offenders is common at
presentencing stages." The mechanisms intended to prevent disparity from a transfer of discretion from judges to prosecutors did
not work. Judges rarely reject plea agreements partly because they felt reluctant, and in some cases not institutionally empowered,
to infringe on prosecutors' decisions regarding which charges to bring and which guideline facts to press. Moreover, given the harsh
penalties contained in mandatory minimum statutes and mandatory guidelines, and the tight restrictions on judges' ability to depart
from the Guidelines, plea bargains were often the only means to achieve reasonable sentences. Research on disparity following
Booker has been notable for a new emphasis on disparity arising at pre-sentencing stages. It suggests that [*687] concerns
about the disparate effects of charging and plea bargaining remain relevant today. Indeed, the switch
to advisory guidelines may have increased the role of charging and mandatory minimums in
creating racial disparity. As judges have increased sentencing below the guideline range, mandatory minimums that trump
the guideline range or limit the ability to reduce sentences disproportionately affect the group most subject to mandatory minimums
- African-American defendants. 3. Racial Disparity Discrimination - different treatment of races, genders, or ethnicities,
unrelated to the purposes of sentencing - is a particularly egregious type of unwarranted disparity . Potential
racial disparity, especially in the decision making of judges, has been the most studied aspect of federal sentencing, both prior to
Booker and after. As long as average sentences among groups differ, policy makers will rightly question how much of the gap is
warranted, and how much represents discrimination or some other type of unwarranted racial disparity. A comprehensive review of
studies of racial disparity in judicial decision making published in 1993 found that, prior
to the Guidelines when
judges had complete discretion, sentencing differences by race or ethnicity were
uniformly small or insignificant . The Commission's Fifteen Year Review examined research during the guidelines
era and found methodological differences and contradictory findings: "Different studies yield different answers as to whether
discrimination influences sentences at all and, if so, how much. These studies also disagree on which racial and ethnic groups are
discriminated against and exactly where in the criminal justice process this discrimination occurs." After noting that its own results
fluctuated from year to year, the Commission concluded that "there is reason to doubt that these racial and ethnic effects reflect
deep-seated prejudices or stereotypes among judges." Because they are technical, statistical models can go wrong and can easily be
misunderstood. [*688] In the post-Booker era, research on racial disparity has attempted to answer even more difficult questions. In
addition to whether judicial decisions create racial disparity at a given time, some researchers have attempted to determine whether
the Booker decision itself increased or decreased such disparity. The result has been more contradictory findings, greater confusion,
and some methodological innovations. All this attention on judicial decision making is somewhat surprising, given that it has been
apparent for quite some time that judicial decision making is far from the most serious source of unwarranted racial disparity.
Figure 4: Average Time Served By Black, White, and Hispanic Offenders All Felonies FY1984 - FY2015 The most shocking
fact of the guidelines era has been that, rather than reducing gross racial disparities, the gap
between the average sentences of African-American and other defendants dramatically
widened after implementation of the sentencing guidelines . As shown in Figure 4, average
sentences varied relatively little among racial and ethnic groups in the pre-guideline era. But average sentences for
African-Americans soared above the others once the Guidelines and mandatory minimums were in
place. The types of offenses and offenders prosecuted in federal court change over time, which contributes to changes in the gaps
among various groups. But the dramatic widening at the very time the Guidelines were implemented makes clear that the most
important factor was a change in sentencing policies. Sentences simply got [*689] more severe, and especially for
crimes that are disproportionately committed by African-Americans. Rules that properly track the
purposes of sentencing may contribute to racial and ethnic differences, but these are not considered sources of unwarranted
disparity. But rules with a severe adverse impact on certain groups that over-punish relative to the seriousness of the crime or the
dangerousness of the defendant are properly considered discriminatory. Most
notorious of these policies, of course,
was the 100-to-1 ratio between powder and crack cocaine, now reduced to 18-to-1 . But there are
other unsound rules that contribute to the gap, such as the career offender guideline, and certain
statutes and guidelines for firearms offenses. This type of disparity has been called "structural,"
"institutionalized," or "embedded" bias. It remains the greatest source of unwarranted racial
disparity in federal sentencing today. It is noteworthy that the gap between black and white defendants has begun to
narrow in the last six years. Some of this narrowing reflects the decrease in crack cocaine statutory and guideline penalties, as well as
increases in penalties for some offenses committed disproportionately by whites. But some of the decrease is attributable to judges
rejecting guidelines recommendations that are unsound and excessive. In this way, Booker contributed to a decrease in
the most significant source of racial disparity. Unfortunately, there are reasons to doubt that the gap, and excessive
sentences for all groups, will disappear entirely because they result from a mechanism which Booker, the Commission, and judges
can do nothing about - mandatory minimum penalty statutes.

The guidelines created disparities – they were better pre-Booker.

Their reading of studies is incorrect.
Mona Lynch, 2019, [Professor and Chair, Department of Criminology, Law & Society and
Professor, School of Law (by courtesy), University of California, Irvine., "Booker Circumvention?
Adjudication Strategies In The Advisory Sentencing Guidelines Era", New York University
Review Of Law & Social Change https://socialchangenyu.com/wp-
content/uploads/2019/05/Mona-Lynch_RLSC_43.1.pdf //DMcD]
II. The Evolution of Federal Sentencing Guidelines
The 1984 Sentencing Reform Act (SRA) authorized the establishment of the United States Sentencing Commission, which was
directed to develop a set of sentencing guidelines that would "rationalize" sentencing in the federal criminal system by constraining
judicial discretion in sentencing. The Commission drafted an intricate and rigid set of mandatory guidelines that was put into effect
on November 1, 1987. The ideal of uniformity in criminal case outcomes underpinned the passage of the
SRA and was the driving force in the Commission's initial guideline development . It has guided
federal criminal justice policy ever since. [*64] Despite the intentions of Congress and the efforts of the
U.S. Sentencing Commission, "extra-legal" sentencing disparities persisted after the
implementation of the guidelines. Under the new system, a significant share of discretionary power
shifted from judges to prosecutors , as judicial sentencing discretion was constrained by the
new mandatory sentencing guidelines and statutes. Charging decisions became highly
determinative of ultimate outcomes, and federal prosecutors came to control most of the
adjudication process, including "making the relevant factual findings, applying the law to the facts, and selecting the
sentence or at least the sentencing range." At the micro-organizational level, the 1980s' policy reforms triggered
dramatic changes in day-to-day federal criminal legal practice. The shift in power incentivized
prosecutors to bring many more criminal matters to federal court, where they could get
easy convictions by wielding their enhanced adjudicatory power. The most dramatic charging
increases were to drug and immigration caseloads , where racial and ethnic minorities quickly
came to make up the majority of the defendant pools . Indeed, as the power to punish
became concentrated in the prosecutorial role, the federal defendant pool shifted from majority
white to majority non-white. The sentences meted out after the 1980s' sentencing reform also significantly diverged as a
function of defendants' race. A Commission study indicated that while white and African-American
defendants were sentenced to similar sentence lengths in the pre-guidelines federal system ,
within ten years of the reforms, the average sentence had quadrupled for African-
American defendants, while only doubling for white defendants. These disparities were a
direct consequence of the guidelines' design in that the legal factors deemed most
punishment-worthy also tended to correlate with the race of the defendant . A large body of
empirical [*65] scholarship has documented various kinds of demographic disparities in
formal sentence outcomes under the mandatory guidelines , including as a function of
defendants' racial or ethnic identity, gender, citizenship status, and interactions between those
factors. Empirical scholarship has also documented geographic variations in sentence outcomes
for otherwise-similar defendants, despite the Commission's efforts to standardize sentencing
across federal jurisdictions. Beginning in 2005, the entire landscape of the federal guidelines regime
was dramatically transformed. First, in United States v. Booker, the U.S. Supreme Court ruled that the federal sentencing
guidelines as then implemented violated defendants' 6th amendment rights, and it proposed a constitutional remedy of rendering
them advisory. In subsequent decisions, the Court refined this ruling to [*66] make explicit that judges were free to
sentence outside of the guidelines' prescribed range for a variety of reasons, including on the basis of policy
disagreements; and it mandated deference by appellate courts to sentencing judges' decisions to depart from the guidelines. The
potential impact of these decisions was momentous, in that it shifted
considerable sentencing discretion back to
judges. As a consequence, legal commentators and some practitioners expected that the extreme imbalance of power between the
prosecution and defense in plea negotiations would be lessened under advisory guidelines. The Booker line of cases has inspired
several empirical examinations, particularly regarding its impact on disparities in sentence outcomes. Thus, the primary question
driving the "Booker-effect" studies has been whether, and to what extent, various kinds of "unwarranted" disparities between
sentenced offenders have increased as a consequence of the Booker policy changes. The Commission itself has conducted several
such studies. In the year immediately following Booker, the Commission's analysis suggested that sentencing had not changed
Commission
dramatically from the immediate pre-Booker period. In two subsequent analyses, however, the Sentencing
inferred from its analysis that there has been an increase , post-Booker, in sentence disparity
between similar offenders, particularly as a function of defendant's race . Several social scientists
conducted independent analyses of the Commission's data , finding fewer - and different -
issues around unwarranted disparities than [*67] those found by the Commission. For instance, Jeffery
Ulmer and his colleagues analyzed the Booker/Gall effects using a series of multi-level regression models that added relevant
district-level variables. Generally, their findings
indicated that post-Booker racial disparities were equal to
or less than those observed during the period prior to the 2003 PROTECT Act, with the one notable exception
that non-white defendants' rate of incarceration increased relative to white defendants after the 2007 Gall decision. Some
researchers' analyses indicated that the locus of increased racial disparities post-Booker may have been due to "prosecutorial
discretion, as opposed to judicial discretion." Following Booker, prosecutors altered their practices in arenas where they still
maintained discretionary power, such as charging decisions. Legal scholars Joshua Fischman and Max Schanzenbach
more directly tested the source of observed racial disparities in sentence outcomes over time by specifying
various discretionary decisions (the application of mandatory minimums, departures, safety valve use) as dependent variables. Their
analyses suggested that increased disparities in sentence length between Black and white
defendants was due to prosecutors' expanded use of mandatory minimum statutes after Booker ,
which set a floor on judicial sentencing discretion . Conversely, their findings on the impact ofBooker
and Gall "suggest that judicial discretion does not contribute to , and may in fact mitigate,
racial disparities in Guidelines sentencing ." Along [*68] similar lines, legal scholar Crystal Yang found that
while judicial decision-making partially accounted for increased racial disparities post-Booker, prosecutorial use of mandatory
minimums also contributed to those disparities.

The guidelines’ focus on quantity leads to disparities in sentencing,

excessively harsh sentences, and reduced judicial discretion
Dan Honold, Summer 2014, [J.D. Candidate at Harvard Law School, "NOTE*: QUANTITY,
ROLE, AND CULPABILITY IN THE FEDERAL SENTENCING GUIDELINES, * Dan Honold,
B.A., American University, 2011; J.D. Candidate, Harvard Law School, Class of 2015. The author
is thankful to his family for their support and to the Honorable Nancy Gertner (Ret.) for her
guidance along many stages of the drafting and writing process., 51 Harv. J. on Legis. 389", No
Publication, https://advance-lexis-com.proxy.lib.umich.edu/document/?
pdmfid=1516831&crid=ed66fa3c-827b-49b2-8c7e-fc3181155da5&pddocfullpath=%2Fshared
%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A5D2G-4DK0-00CW-21F5-
00000-
00&pdcontentcomponentid=143841&pdteaserkey=sr0&pditab=allpods&ecomp=kb63k&earg=s
r0&prid=95067489-5b2e-4620-a3ff-f608a1ad48a1 //Weese]
The current form of the Guidelines suffers from various problems. Perhaps most apparent to the
American public are the issues of severity and racial disparity that underlie the quantity-based
narcotics sentencing regime. This Part acknowledges these issues as serious, and in need of reform. [*398] However,
another set of problems with the current Guidelines deserves equal attention, both because it presents issues regarding criminal
justice generally and because dealing with these problems may go far towards resolving the severity and racial justice issues
previously mentioned. The Guidelines are seriously flawed in that the basis of the sentence is derived
from the quantity of the drugs present in the particular case. This is a poor foundation upon which to base a
sentence for many reasons, most importantly because quantity does not track culpability in many
cases. If culpability is not being tracked by the main sentencing factor for a category of offenses, then in the aggregate Section
2D1.1 will fail to properly differentiate between defendants of differing culpabilities . If Section 2D1.1 is
not capable of differentiating in that way, then much of the fairness in sentencing is lost. The problems
started at the outset of the Sentencing Commission's efforts to construct a sentencing guideline for narcotics. Two initial errors
caused Section 2D1.1's severity and its inability to account for culpability. First, and perhaps in response to the tragic overdose of
soon-to-be NBA athlete Len Bias in 1987: Congress promptly enacted the Anti-Drug Abuse Act of 1986 ("ADAA"), which established
a two-tiered scheme of mandatory minimum and enhanced maximum sentences that have now become central features of the
federal drug sentencing landscape. The ADAA's five-year mandatory minimum, with a maximum enlarged from twenty to forty
years, was specifically intended for the managers of drug enterprises, while the ten-year mandatory minimum, with a maximum of
life, was intended for the organizers and leaders. [*399] In practice these mandatory minimums are applied to many narcotics
violations defendants due to the linkage of the Guidelines with the ADAA. Instead of differentiating between defendants with
different roles, the
Sentencing Commission used the ADAA's mandatory minimums as baselines for
sentencing ranges. This linkage increased the penalties for many narcotics violations
defendants, collapsing the least culpable defendants' sentences upward into those originally
reserved for kingpins and organizers. "As a result, the vast majority of federal drug offenders who
are neither managers nor leaders are subjected to the harsh sentencing scheme that Congress
intended only for those who occupy such roles ." Given these facts, it is clear that the Guidelines fail in many
cases to further the goals envisioned by Congress when they passed the ADAA and the Sentencing Reform act of
1987. More importantly for this Note, the Sentencing Commission used controlled substance type and quantity as proxies for role in
the formulation of Section 2D1.1. By coupling severe sentences with a lack of consideration of role, the Sentencing Commission
created a regime that "accepted the ADAA's flawed premise that drug quan tity is the predominant factor in determining a
defendant's true culpability." A. Over-Inclusivity and Under-Inclusivity The
Guidelines in their current form allow for
both under-inclusivity and over-inclusivity at the sentencing phase. According to the Commission, the
measure of a sentence should be the culpability of an individual defendant [*400] as measured by the severity of their conduct. If
this culpability is based on a defendant's role in the illegal market of controlled substances, or based on the harms a defendant's
actions cause to society, then the
current weight-based regime excludes some defendants society may
want to punish more severely and includes some defendants society may want to punish less
severely. Let us compare the fates of two defendants under the current Guidelines. Suppose defendant A is caught deplaning at
JFK airport and is found to have ingested eighty grams of heroin, and is then found to have an additional two kilos of heroin in the
lining of her suitcase, when she believed she was only carrying an additional ounce of heroin in her suitcase. Let us also assume the
most sympathetic possible motivations for her choosing to partake in this venture. Under the Guidelines she will be found to have a
base offense level of thirty-two due to the quantity of heroin involved, for a Guidelines range of 121-151 months (had she only been
charged with the eighty grams she knowingly ingested her base offense level would be twenty-four, or fifty-one to sixty-three
months). Now suppose defendant B is a first-time manufacturer with very few connections to drug distribution rings. She plans to
manufacture methamphetamine and to sell it to other locals and some friends of hers, and perhaps use it as well. On her first try she
successfully produces 200 grams of useable product. She is also busted on her first sell by an undercover agent. She will (and
rightfully so) be charged with all 200 grams of methamphetamine, and will have a base offense level of twenty-eight. This results in a
seventy-eight to ninety-seven month sentencing range, representing a maximum difference of seventy-three months between her
and defendant A, and at least a twenty-four month difference. It would seem by many measures that defendant B is more culpable
than defendant A: B willfully created and introduced new drugs into her community, whereas A is acting as a (semi-unwitting) agent
of a more responsible, B-like party. Yet in no case under the Drug Table can her sentence be less than defendant A's. From a relative
standpoint, either the Guidelines have resulted in an improperly harsh sentence to A, an improperly lenient sentence to B, or both.
An improved sentencing guide would be able to correct the differentiation issues presented by a plausible case like this one, and not
simply rely on [*401] prosecutorial discretion to omit the extra controlled substances found in A's suitcase. B. Lack of Judicial
Discretion in Sentencing Decisions Another issue with the quantity based-regime is that under it judges
lack discretion to
set sentences without departing or varying from the Guidelines . Judicial discretion is important at
sentencing because the sentencing judge is the only actor capable of rendering a sentence after hearing all
of the facts and circumstances of an individual case. The lack of judicial discretion at this level leads to a lack of
differentiation between defendants of varying culpability. It will be helpful to distinguish between several
different types of discretion available in varying degrees to sentencing judges. The Guidelines at issue here, specifically Section
2D1.1, do not have much impact on a judge's discretion to depart or vary from the Guidelines; the balancing of this discretion takes
place in other portions of the Guidelines and in judicial opinions. Rather, the types of judicial discretion at stake in the formulation
of Section 2D1.1 are what this Note will refer to as vertical and horizontal discretion. Vertical discretion refers to a judge's discretion
to decide the offense level in a particular case. Horizontal discretion refers to a judge's discretion to choose the exact place within the
range set out by the offense level. Given the way the Guidelines are written, vertical
discretion is important because
moving the offense level up and down along the Sentencing Table makes for large changes in
sentencing ranges with only small overlap [*402] between adjacent ranges. Horizontal discretion, on the other hand,
matters less in terms of the final sentence given. This is because once cabined in by the offense level, the Guidelines provide a range
of several months--often only six months--within which to account for the whole spectrum of culpability of defendants with that
base offense level. If for narcotics violations the base offense level is set by the quantity of controlled substances then the Guidelines
give judges very little room within which to account for a variety of other factors bearing on culpability--such as the role the
Under the
defendant played in the market for controlled substances--before the judge has to vary or depart from the Guidelines.
current sentencing regime for narcotics violations, a sentencing judge has virtually no vertical
discretion. Aside from upward adjustments in Subsection (b), the judge only has two opportunities to depart
downward, both of which are dependent on considerations independent of Section 2D1.1. This is nominal vertical discretion. As
a result, the judge is almost entirely boxed-in by the weight of the controlled substances found to
be involved in a particular case. Furthermore, the narrow ranges involved in each offense level render the judge's
horizontal discretion nearly meaningless. An improved guideline for narcotics violations sentencing will provide the judge with a
reasonable amount of both vertical and horizontal discretion, which will allow the judge to properly differentiate between offenders
of varying culpability who nonetheless are found to possess the same or similar quantities of controlled substances. The
balance of sentencing discretion is currently in the hands of prosecutors. The
Assistant United States Attorney has an arsenal of tools at his or her disposal to limit the judge's discretion,
including the invocation of mandatory minimums, the use or non-use of a Substantial Assistance to Authorities motion under
Section 5K1.1, and of course the quantity-based [*403] sentencing guideline itself . Because a judge is essentially
faced with a yes-or-no type of question regarding the quantity of controlled substances at sentencing, a judge effectively has
no discretion to adjust the sentencing range after the prosecutor has dictated the quantity of
controlled substances involved in the case. Put another way, a sentencing judge is not free to see evidence that a defendant
possessed eight grams of cocaine base (for a base offense level of eighteen) and find that he really had 5.5 grams (for a base offense
level of sixteen), though the judge may well believe that a lower offense level is appropriate based on the defendant's culpability. An
improved sentencing guideline will place more discretion in the hands of judges by allowing them to make factual determinations at
sentencing that bear directly on a defendant's culpability, such as the role the defendant played in the market for controlled
the
substances. C. Lack of Mens Rea for the Quantity and Type of the Controlled Substance From the defendant's perspective,
Guidelines can seem unfair because they are essentially a set of strict liability rules that do not
include a mens rea element. Because "quantity and type of drugs are not generally essential elements of drug offenses and
therefore are not relevant at the conviction stage," the prosecutor does not have to prove type, quantity, or the defendant's awareness
of possession to a jury beyond a reasonable doubt. As a result the
government can side-step proving what will
eventually become a crucial factual determination for the final sentence . As explained [*404] earlier, this
means that a defendant can be charged with a type or quantity of controlled substances that is
different or greater than the defendant was aware of and he or she will not have the opportunity to rebut that
assertion at trial. The lack of a need to prove mens rea with respect to type and quantity at sentencing is a serious flaw in the
sentencing process because it represents a two-step attenuation from reaching a just result in a case: not only is quantity a bad proxy
for culpability, the measurement of this bad proxy is then artificially inflated by the lack of a mens rea requirement at sentencing. An
improved sentencing guideline will account for the mens rea of an individual defendant, which will better distinguish between
differently-situated defendants and will lead to less severe sentences overall. D. The
Problems Associated with a
Quantity-Based Regime Lead to Unwarranted Disparity in Sentencing Outcomes
The base offense levels have no empirical grounding . This creates a situation where a particular
defendant's conduct may not match the severity of the punishment that results from the
quantity of controlled substances he or she is found to have at the sentencing phase . Furthermore,
grouping defendants together based primarily on quantity has the double-edged effect of creating disparity in sentences
between similarly culpable defendants while maintaining the appearance of equality . Here an
important distinction must be made between grouping defendants based on the crimes of which they are convicted and grouping
defendants [*405] based on culpability. One may note the similarity with which the Guidelines treat defendants
who have been found to possess the same quantity (or marihuana-equivalent value) of a controlled
substance, but that is not equality in a meaningful sense, since the basis of the aggregation is not
grounded in empirics or experience. The Guidelines' focus on seemingly objective factors, such
as quantity, as well as the use of finely-sliced sentencing ranges, creates an illusion of equality .
Rather than fostering equality in sentencing, however, these Guidelines allow for defendants of different culpability
to receive similar sentences (or for an arguably more culpable defendant to receive a lower sentence than an arguably less
culpable defendant; see Part III(A), supra) based in large part on the fortuitous condition of how much of a controlled substance is
found to be relevant to the conviction.

Despite Booker, the guidelines cause inconsistent and discriminatory

sentencing
Dan Honold, Summer 2014, [J.D. Candidate at Harvard Law School, "NOTE*: QUANTITY,
ROLE, AND CULPABILITY IN THE FEDERAL SENTENCING GUIDELINES, * Dan Honold,
B.A., American University, 2011; J.D. Candidate, Harvard Law School, Class of 2015. The author
is thankful to his family for their support and to the Honorable Nancy Gertner (Ret.) for her
guidance along many stages of the drafting and writing process., 51 Harv. J. on Legis. 389", No
Publication, https://advance-lexis-com.proxy.lib.umich.edu/document/?
pdmfid=1516831&crid=ed66fa3c-827b-49b2-8c7e-fc3181155da5&pddocfullpath=%2Fshared
%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A5D2G-4DK0-00CW-21F5-
00000-
00&pdcontentcomponentid=143841&pdteaserkey=sr0&pditab=allpods&ecomp=kb63k&earg=s
r0&prid=95067489-5b2e-4620-a3ff-f608a1ad48a1 //Weese]
The United States Sentencing Guidelines ("the Guidelines") have had and continue to have a
tremendous impact on federal sentencing practice . Because the Guidelines factor into
every sentencing decision in the federal system, it is important to the personal liberty of thousands of defendants
and to the working of the federal criminal justice system as a whole that the Guidelines operate in a just way. Unfortunately, for the
many narcotics offenders who come through the federal system every year, the Guidelines do not serve the ends of
justice as effectively as they could. The portion of the Guidelines that informs narcotics offense sentencing is Chapter 2,
part D, Section 1.1 ("Section 2D1.1"). Under Subsection (a)(5) of Section 2D1.1, the sentencing judge determines the type and
quantity of controlled substances attributable to the defendant and plugs them into the Drug Quantity Table. The Table is a list of
different quantity ranges for several controlled substances that correspond to different base offense levels. Base offense levels
correspond to partially overlapping sentencing ranges on the Sentencing Table. As a result, higher
quantities of a
particular kind of controlled substance tend to lead to higher base offense levels and to higher
sentences. The Drug Table previously held the infamous hundred-to-one ratio for crack cocaine sentencing that resulted in
widely criticized harsh sentences and racially disparate impact. [*390] An often-overlooked aspect of Section 2D1.1 is its focus on the
quantity of controlled substances as the primary sentencing factor for most narcotics offenders. The
focus on quantity is a
problem because quantity is a poor proxy for the seriousness of the crime committed, and
differentiating between defendants who have committed crimes of different seriousness is one of
the purposes of sentencing. In order to achieve fairness in sentencing, the Guidelines must be able to differentiate between
defendants of differing culpability in addition to creating advisory sentences that are "not greater than necessary." Changing the
focus of Section 2D1.1 to the role the defendant played in the offense could properly differentiate offenders by culpability and reduce
the harshness of the current quantity-anchored narcotics sentencing regime. The United States Sentencing Commission ("the
Commission") is the independent agency responsible for formulating and promulgating the Guidelines. Since the first set of
Guidelines was introduced to Congress in April 1987 and later made law, the Guidelines have fluctuated in the degree to which they
bind judges' sentencing decisions. Though today the Guidelines are advisory, judges are still required to
calculate and consider the proper Guidelines range for each defendant . Perhaps for this reason the
ranges prescribed by the Guidelines continue to have [*391] a significant anchoring effect
on judges, meaning that judicial sentences in the aggregate tend to follow the Guidelines, despite the fact that the Guidelines
are advisory. This makes a functional Guidelines regime important because sentencing judges are influenced by the Guidelines, even
if they are not obligated to follow them. Jurists have criticized Section 2D1.1 since the first iteration of the Guidelines. Much
of the focus has been on the overall severity of Section 2D1.1 and the racially disparate impact of some of
its provisions. For instance, the provision that deals with cocaine base--crack cocaine--has received significant attention for its
racially disparate impact on black communities generally and on young black males specifically. These issues have led to calls for
various reforms, some of which have been partially implemented. These include reducing the use of mandatory minimum sentences
for narcotics violations and reducing or eliminating the infamous hundred-to-one ratio for cocaine base sentencing.
 Guidelines Bad – Severity
The guidelines are unfounded and the Sentencing Commission
follows Congress’ lead to ratchet up the length of sentences
Lynn Adelman, 1-23-2018, [District judge in the United States District Court, "How
Congress, the U.S. Sentencing Commission and Federal Judges Contribute to Mass
Incarceration", American Constitution Society, https://www.acslaw.org/expertforum/how-
congress-the-u-s-sentencing-commission-and-federal-judges-contribute-to-mass-incarceration/
//Weese]
Unsurprisingly, the Commission that the bill created proceeded to promulgate very harsh guidelines. Only one
of the seven commissioners had any previous sentencing experience, and all seven regarded the
Justice Department and the most law and order members of Congress as their principal
constituencies. Although the Commission stated that it based the guidelines on past sentencing practice, it had limited
data on past practice and, in many cases, ignored past practice entirely . To the extent that the
Commission relied on past practice, it counted only past prison sentences, ignoring that approximately
50% of pre-guideline sentences were sentences of probation . Strongly biased in favor of prison sentences, the
Commission created guidelines that barred judges from putting defendants on probation except in the rarest instances. To this day,
the guidelines do not affirmatively recommend probation in any case ; rather, the penalty for every
offense references the number of months in prison. Nearly all of the guidelines were
excessively severe. The drug guideline is an example. Before the Commission formulated the guidelines, Congress enacted
the Anti-Drug Abuse Act of 1986, which established a three-tier sentencing structure calling for sentences
of ten years to life, five to forty years and zero to twenty years, depending on the quantity of drugs. The Commission,
which was supposed to be independent of Congress, quickly followed suit, establishing punitive
guidelines based on the identical quantities. The result was increased prison terms far above previously
typical lengths. The child pornography guideline is another example. Over time, a combination of Congressional
directives and guideline changes caused the mean sentence for possession of child pornography
to increase from thirty-six to one hundred and ten months. As for fraud and theft offenses, like drug offenses, the
Commission treated amount as a proxy for seriousness . Focusing so exclusively on quantity, however, often led
to the unfair over-simplification of complicated facts as well as to many enormously long
sentences. The Commission also discounted congressional directives that could have softened the
guidelines. For instance, the SRA stated that a probationary sentence would generally be appropriate for first offenders who had
not been convicted of a crime of violence or an otherwise serious offense. The Commission viewed this language as a problem, which
it solved by simply reclassifying as “serious” many offenses for which defendants had previously received probation. Over the next
twenty years the Commission regularly amended the guidelines to make them even more severe . As
one scholar put it, the guidelines were subject to a one-way upward ratchet in which sentences were raised easily and often, and
lowered rarely and with difficulty. Thus, the average federal sentence increased from twenty-eight to fifty
months. With the SRA’s abolition of parole, the average time that a defendant served increased from thirteen to forty-three
months. While in the pre-guideline era, judges sometimes imposed excessively harsh sentences, under the guidelines,
harshness became a rule of law. Between 1987 and 2013, the federal prison population increased
from about 50,000 to almost 220,000, before dropping slightly. In its landmark decision in United States v. Booker,
the Supreme Court in 2005 struck down the mandatory feature of the guidelines, thus giving judges the opportunity to establish a
less punitive sentencing regime. In subsequent decisions, the Court made clear that judges had no obligation to follow the
guidelines. Unfortunately, however, judges have almost totally failed to take advantage of Booker to
ameliorate the harshness of the federal sentencing regime. After Booker, judges slightly reduced the length of
sentences, from 47.9 months in fiscal year 2003, to 44 months in 2016. Shockingly, however, the number of offenders
receiving prison-only sentences actually increased, from 83.3% in fiscal year 2003 to 88.1% in
fiscal year 2016.
The guidelines are dysfunctional and excessive – complexity,
incremental sentencing, adjustments, Congressional influence,
prosecutorial discretion, and modified real offense
Jon O. Newman, Spring 2018, [Senior Judge in the United States Court of Appeals for the
Second Circuit, "COLLOQUIUM: THE FEDERAL SENTENCING GUIDELINES: A GOOD IDEA
BADLY IMPLEMENTED, 46 Hofstra L. Rev. 805", No Publication, https://advance-lexis-
com.proxy.lib.umich.edu/document/?pdmfid=1516831&crid=9312bf47-3ca0-4c4f-8a59-
09364d7ec3cc&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials%2Furn
%3AcontentItem%3A5SFW-0CJ0-00CW-G2C1-00000-
00&pdcontentcomponentid=7342&pdteaserkey=sr0&pditab=allpods&ecomp=kb63k&earg=sr0
&prid=20248775-8714-402f-b904-854091782f94 //Weese]
What's Wrong with the Guidelines A. Complexity Themost serious defect of the Guidelines is their
complexity. No other Guidelines system has such extraordinary detail. The Guidelines of many states, such as Minnesota
and Pennsylvania, have sensible guidelines requiring only a few pages . It has been argued that the Federal
Guidelines needed to be so detailed because there are so many federal statutory offenses. However, the parole guidelines managed to
provide parole release dates for those convicted of federal crimes and did so in a three-page document. Furthermore, the Guidelines
became needlessly complicated when the Commission endeavored to provide numerical offense level
adjustments for hundreds of factors such as carrying a weapon and inflicting injury. Although such factors are relevant
to sentencing, there was no need to have them precisely quantified . Doing so led the Commission to
require sentencing judges to make detailed findings on all sorts of matters and to make fine
distinctions, such as whether a defendant's role in an offense was "minor" or "minimal" or something in between. B.
"Incremental Immorality" At a philosophical level, a more fundamental defect was the Guidelines' adoption of a
sentencing principle that required every increment of wrongdoing to result in an increment of
punishment. For example, even under the Guidelines' current loss table with its 16 levels of loss for theft offense, a theft of more
than $ 6,500 requires an upward adjustment of two offense levels and a theft of more than $ 15,000 requires an upward adjustment
of four offense levels. Furthermore, the
impact of an increment of money or drug quantity increases
significantly as the base offense level increases for various offenses . At offense level 22, for example, a two-
level increase for that second $ 5,000 raises the minimum sentencing range from 41 to 51 months, nearly one year. At offense level
36, however, the same two-level increase for that second $ 5,000 raises the minimum sentencing range from 188 to 235 months,
nearly four years. As I tried to explain to the Commission many years ago, no
thief wakes up in the morning and
decides whether to steal $ 5,000 or $ 10,000. He might choose between robbing a convenience store or a bank, but
if he selects a convenience store, he takes whatever is in the till. The fortuity of that added $ 5,000 being there should not
result in added punishment. Of course, crimes involving very large sums of money should incur more punishment than crimes
involving small amounts, but 16 gradations of loss carry that principle to an absurd length and require
sentencing judges to make detailed findings about the amount of loss . The Commission's finely
graded loss tables implement a philosophy I have called "incremental immorality" - every increment of criminal
conduct deserves a precise increment of punishment. This is a principle unknown to any punishment system in
the world. One vice of this approach is that punishments will often vary, not by the venality of the
offender, but by the work schedule of the investigating agent . A busy postal inspector might end a mail fraud
investigation after three months, but an inspector not so busy might keep his case going much longer, resulting in more violations
(one for each fraudulent mailing) and therefore a higher sentence. C. Weighting Money and Drug Quantities More Than Role in the
Offense The numerous levels of the monetary loss tables and the many levels of the similarly multi-layered tables for narcotics
quantities reveal another basic defect of the Guidelines. Amounts
of money and quantities of narcotics are the
major determinants of sentencing ranges for financial and drug crimes, while role in the offense
is relegated to a slight adjustment. The amount of money can increase a theft offense from
offense level 6 to level 36; being the kingpin of a criminal drug enterprise adds just four levels
more than the level for an ordinary soldier in the ranks. This has the tail wagging the dog. Bean-counters count beans, and the
architects of the Guidelines counted amounts of money and quantities of drugs with great precision because such items could be
readily counted. Role in the offense could not be so easily quantified, so the drafters settled for just three gradations of
organizational leadership. D. Cumulation of Adjustments The Guidelines' identification of scores of factors that
warrant primarily upward adjustments created a possibly unintended consequence - very high sentencing ranges
resulting from the cumulation of factors frequently found in the same case. The Commission identified most of these factors by
noting that at
least one of them was present in many of the 10,000 cases that were examined in
formulating sentencing ranges and appeared to have persuaded the sentencing judges in those
cases to enhance particular sentences. Requiring increased offense levels was reasonable for Guidelines calculations
where one or perhaps two factors were both present in the same case. But the Commission appears not to have appreciated that
several factors were likely to be present in some cases . And, because of the structure of the sentencing table, a
factor that might result in a modest increase in the sentencing range if it was the only factor,
resulted in a large increase when cumulated with other factors. I encountered this phenomenon in an appeal
by a defendant, Gregory Sofsky, who pled guilty to receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). His base
offense level was 17. To this level, the following levels were added: two for photos of a minor under age twelve, five for trading
pornographic images, four for depiction of violence, two for images transmitted by computer, and two for obstructing justice by
erasing some computer files. These adjustments increased his offense level to 32. At Sofsky's base offense level, 17, with no prior
convictions, his sentencing range would have been 24 to 30 months. At the adjusted level, 32, his sentencing range was 121 to 151
months. His adjustments raised his minimum sentencing range by eight years and one month. Yet most, and sometimes all, of
Sofsky's adjustments are present in every case of a defendant who sits at a computer and views child pornography. Moreover, if the
five-level adjustment for trading images had been the only adjustment, it would have raised his minimum sentencing range by 17
months (a year and a half), but because this adjustment was cumulated with other adjustments, it increased his minimum
sentencing range by 51 months (more than four years). Even the two-level adjustment for using a computer, a factor common to
virtually every case of receiving pornography, would have raised his minimum sentencing range by only six months had it been the
only adjustment, but when combined with the other adjustments, it raised his minimum sentencing range by 17 months. Sofsky
received a sentence of ten years and one month, the bottom of his Guidelines sentencing range. I understand the argument that
those who view downloaded child pornography at their computers deserve punishment because they are indirectly supporting the
market for such images, but that market will continue to exist whether someone like Sofsky serves less than two years, his base level
sentencing range, or more than ten years, his adjusted level sentencing range. Is ten years an appropriate sentence? One way to
answer that question is to note that had Sofsky been convicted of producing child pornography, an activity that directly risks harm to
children, his base offense level would have been 32, resulting in a sentence of 70 months, just under six years. Even before Booker
made the Guidelines advisory, I wrote an opinion for the Second Circuit allowing sentencing judges to make a departure where a
cumulation of adjustments produced a significant increase in the calculated sentencing range. Now, under the advisory Guidelines
regime, a cumulation of adjustments, such as occurred in Sofsky, would obviously be an appropriate basis for a non-Guidelines
sentence. E. Building on Statutory Mandatory Minimum Sentences One defect of the Guidelines is required by Congress, and the
Sentencing Commission had to accept it, but did not need to make it worse. The defect concerns mandatory minimum sentences.
Congress has enacted several statutes establishing mandatory minimum sentences for certain offenses e.g.,
twenty years for a second conviction for selling more than fifty grams of methamphetamine; seven years imposed consecutively for
brandishing a weapon during a drug trafficking offense. With respect to the Guidelines, Congress
required the
Commission "for each category of offense" to "establish a sentencing range that is consistent
with all pertinent provisions of title 18, United States Code." Thus, for offenses subject to statutory mandatory
minimums, the Guidelines were required to set a sentencing range no lower than those mandatory
minimums. However, instead of just conforming sentencing ranges to these minimums, the Guidelines
needlessly built upon them and set sentencing ranges on top of them . For example, for
trafficking in at least three kilograms of heroin the statutory mandatory minimum penalty is ten years, and the base offense level
under the Guidelines is 32, which, without a prior record, translates to a minimum sentencing range of 121 months (ten years and
one month). Upward adjustments, for example for role in the offense, will raise the minimum sentencing
ranges higher than the minimums established by Congress. Building sentencing ranges higher than statutory
mandatory minimum is inconsistent with the Commission's reason for existence . The Commission was
established to provide its expert view as to the appropriate ranges of sentences for various combinations of offenses and offender
characteristics. To have been faithful to that responsibility, the Commission should have begun setting the minimum range for
selling narcotics by using the number of years Congress required and then made a final determination based on whether or not it
believed, in the exercise of its expertise, that any more severe punishment was appropriate. Instead, the Commission
imposed its entire system of adjustments on top of statutory mandatory minimums that were
already high. It is possible that the Commission believed that the statutory minimums were too low and wanted higher
sentences, but it has never said so, and I think that explanation is unlikely. By building on top of mandatory minimums, the
Commission missed an opportunity to lead, rather than follow . F. Leniency for Cooperating with the
Prosecution The Guidelines authorize a departure for a defendant who "has provided substantial
assistance in the investigation or prosecution of another person who has committed an offense." That departure,
however, is available only "upon motion of the government." By giving the government control over whether a
defendant's cooperation can be rewarded with a lower sentence, the Guidelines place enormous
power in the hands of a prosecutor. The motion for a 5K1.1 departure can be withheld even after a
defendant cooperates if he has not provided as much information as the prosecutor thinks he could give. Several years ago, I learned
of a case where a defendant had given useful information about six participants in the offense. The prosecutor nevertheless refused
to make a 5K1.1 motion because the defendant had not given information to help convict a seventh participant. The defendant
explained his reluctance: "She's my sister." No prosecutor should be given so much leverage over a defendant. The government
motion requirement is not only unfair, it creates an incentive for false accusations. The
Commission might have given
this power to prosecutors out of ignorance. At a sentencing institute many years ago attended by all the Commission
members, I asked why a cooperation departure required a prosecutor's motion. "We did that," a commissioner replied, "because it
was always required before the Guidelines." There were gasps of disbelief from a roomful of district judges, many of whom had been
federal prosecutors and knew that, before the Guidelines, sentencing judges could reward cooperation without a prosecutor's
permission. A prosecutor could object, or dispute the extent of cooperation, but had no veto power. Such power should be
eliminated. G. Acquitted Conduct My last critique of the Guidelines concerns a matter most people are unaware of and would be
surprised to learn about. The
Guidelines provide that once a defendant is convicted on even one count ,
his punishmentshould be based on "relevant conduct," a category that courts have interpreted to include
criminal conduct described in counts of which a defendant was acquitted . The Second Circuit
encountered an extreme example of this aspect of the Guidelines in United States v. Concepcion. In that case, Nelson Frias was
charged with three offenses that affected his sentence: conspiracy to distribute heroin in violation of 21 U.S.C. § 841(a)(1)(A),
possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d), and possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1). He was convicted of the two weapons offenses and acquitted of the heroin conspiracy. If he had
been convicted of all three offenses, his Guidelines sentencing range would have been 210 to 262 months (17[fr1/2] to 22 years). If
he had been sentenced only for the conduct resulting in the two firearms convictions, his Guidelines sentencing range would have
been 12 to 18 months (1 to 1[fr1/2] years). However, because the Guidelines permit conduct of which he was acquitted, the heroin
conspiracy, to be considered in determining his sentence, his Guidelines sentencing range was 210 to 262 months (17[fr1/2] to 22
years), exactly the same as if he had been convicted of the heroin conspiracy count. He was sentenced to 20 years, resulting from
consecutive maximum sentences on the two firearms counts. The Second Circuit, applying its precedents, ruled that conduct
underlying counts of which a defendant had been acquitted was properly considered in determining an adjusted offense level, and
hence a sentencing range. Bound by circuit precedent to accept this use of acquitted conduct, I concurred, but wrote separately to
explain how this bizarre result came to be. First, I pointed out that in
adopting a "modified real offense" approach,
the Guidelines had used the concept of "relevant conduct," that was broad enough to include
acquitted conduct. Second, the Guidelines "price" relevant conduct at the same level of severity as
convicted conduct. By that I meant that base offense levels and adjustments, notably those determined by the multi-graded
levels of the monetary and narcotics quantity tables, counted acquitted conduct in exactly the same way they counted convicted
conduct, as long as the latter qualified as relevant conduct. The third reason that acquitted
conduct can
significantly increase sentences is not directly attributable to the Guidelines. Long before the Guidelines, courts
had used the preponderance-of-the-evidence standard to establish proof of facts relevant to sentencing on counts of conviction,
whether or not the facts were the basis for a conviction. That was defensible when those facts were only eligible for consideration by
sentencing judges, but, under
the Guidelines, the standard is used to establish facts that are required
to be considered at sentencing and that affect sentencing to as great (or even greater) an extent
as convicted conduct. At least this was true before the Supreme Court ruled in Apprendi that facts used to enhance
sentences, other than prior convictions, had to be found by a jury. But once Booker rendered the Guidelines advisory and avoided
the Apprendi problem, sentencing judges were free to resume using facts that they found by a preponderance of the evidence in
calculating the applicable sentencing range. And these facts include acquitted conduct. My opposition to use of acquitted
conduct in making Guideline calculations, especially pricing it as severely as convicted conduct, has been shared by
other judges. Of course, after Booker, a sentencing judge can circumvent all of the defects outlined
above (except complexity) by imposing a non-Guidelines sentence. However, many judges, required to start with
a Guidelines calculation in every case, stop their analysis at a point and impose a Guidelines
sentence.

Current Sentencing Guidelines reduce judicial discretion and allow

for increased sentencing severity
Richard S. Frase, December 2019, [Benjamin N. Berger Professor of Criminal Law at
University of Minnesota, "SENTENCING REFORM HISTORY: Sentencing Guidelines in
American Courts: A Forty-Year Retrospective", No Publication, https://advance-lexis-
com.proxy.lib.umich.edu/document/?pdmfid=1516831&crid=bcec5ed7-8098-4d3e-b954-
c6bf0997b49e&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials%2Furn
%3AcontentItem%3A5XV6-BN01-JSC5-M2J3-00000-
00&pdcontentcomponentid=155032&pdteaserkey=sr1&pditab=allpods&ecomp=kb63k&earg=s
r1&prid=026aa3ca-ce39-4862-bbb5-25d8bd136d75 //Weese]
Prosecutorial Charging and Plea Bargaining. In 2019, it remains true that no guidelines jurisdiction places
effective limits on prosecutorial decisions. Indeed, only the federal guidelines address these issues in any
way--the much-criticized "relevant conduct" provision formerly required (and, post-Booker, still encourages) federal judges to
enhance sentences on the basis of aggravating, nonelement details of conviction offenses, and on the basis of other crimes that were
never charged, were dismissed, or resulted in acquittal; such aggravating facts, if not admitted by the defendant, need only be found
by the sentencing judge under a preponderance-of-the-evidence standard. (As noted above, no other guidelines system allows so
much real-offense sentencing.) The federalapproach violates fundamental due process norms, and it also
seems to be designed to address a largely nonexistent problem: unwarranted prosecutorial
leniency. First of all, such leniency is often fully warranted; in a system as heavily criminalized and
punitive as most American systems, prosecutorial discretion to decline or reduce charges is necessary in order to
prioritize the use of limited law enforcement, court, and punishment resources, focusing on the most serious and readily provable
crimes. Of course, the discretion to be lenient can be abused. But American prosecutors view themselves as
advocates for severity in a strongly adversarial system; moreover, since most chief prosecutors are
elected, they are unlikely to engage in any selective failure to press provable charges that could
be portrayed as favoritism by the media or by an electoral opponent . For the same reasons,
prosecutors are not likely to unduly engage in systematic leniency , except in two ways: prosecutors
occasionally decline to fully enforce certain laws that are widely viewed as too harsh or otherwise unfair; and prosecutors
regularly offer leniency to offenders who plead guilty or who help to convict other offenders.
Plea bargaining has been much criticized, and rightly so, but it persists in all American jurisdictions ,
not only because of resource limits but also, I suspect, because most people believe the sentences given to guilty-pleading offenders
are adequate. However, given the adversarial and political dynamics noted above, the opposite scenario-- unwarranted
prosecutorial severity--is a very real problem, especially for offenders who refuse to plead guilty. But, as I argued in
the 1999 survey, unwarranted severity is a less serious problem in a well-balanced guidelines system
like the ones found in several states. Such a system embodies reasonable (at least by American standards) levels
of overall sentencing severity, has relatively few mandatory minimum statutes, and retains a substantial
amount of judicial discretion to mitigate sentencing severity (within recommended sentencing ranges, or by departure). Prior
to Booker, all three of these conditions were lacking in the federal system , and the first two are still mostly
lacking post-Booker (although the circuit-breaker statute and the First Step Act have softened the effects of mandatories, and some
drug penalties have been reduced). 2. Non-prison ("Intermediate") Sanctions. As shown in Table 1, intermediate
sanctions
remain unregulated in eleven of the nineteen guidelines jurisdictions . And as noted earlier, the degree
of regulation in the other eight systems varies considerably : two systems regulate the amounts of jail or other
intermediate sanctions imposed; two systems only regulate custodial sanctions; and four systems define two or three categories of
non-prison sanctions (however, more than one category may be authorized for a given case, and there are no recommendations as to
the choice or amount of specific sanctions in each category). Moreover, two of these eight systems provide no guidance on the use of
non-prison sanctions at the "back end" of the sentencing process--to sanction violations of probation conditions. The 1999 survey
recommended that guidelines
systems should try to develop more detailed standards to guide judges
in the use of non-prison sanctions, at both the front end (sentencing) and back end (enforcement of probation
conditions); equally important, all systems (with or without guidelines) need to make sure that judges and probation officers have
adequate resources to support a full range of community-based front-end and back-end sanctions. Otherwise, local judges,
prosecutors, and probation officials will be sorely tempted--or even required--to order a "correctional free lunch" by sending
offenders to state-funded prisons who do not really belong there. The 1999 survey also cautioned, however, that detailed guidelines
for intermediate sanctions may make more sense in some jurisdictions than in others. In particular, the advisability
and
workability of such guidelines will depend not only on the availability of adequate community-
based resources, but also on the degree of field support for intermediate-sanctions guidelines ; the
degree to which such guidelines incorporate rules to effectively control the risk of "net-widening" (unnecessary probation
conditions; diversion of more offenders into than out of prison); and the extent to which a given jurisdiction values the competing
goals of simplicity of guidelines application (especially for high-volume, low-severity crimes), tailoring of penalties to individual
offender risks and needs, and local control of community-based sanctions (an issue that includes but goes beyond questions of
available resources).
The guidelines increase severity, disparities, and result in prison
overcrowding
Ken Lamance, 2-14-2019, [former lawyer and writer for LegalMatch, "Criticism of Federal
Sentencing Guidelines", LegalMatch Law Library, https://www.legalmatch.com/law-
library/article/criticism-of-federal-sentencing-guidelines.html //Weese]
Today, federal sentencing guidelines are still very much the subject of a great amount of debate and
criticism. Before the United States Congress passed the federal sentencing guidelines that went into effect on November 1, 1987,
federal judges imposed indeterminate sentences with nearly unlimited discretion, so long as they stayed within the broad statutory
ranges of punishment prescribed by Congress. The Supreme Court of the United States even recognized that this broad discretion of
sentencing courts and federal judges had led to significant sentencing disparities among similarly situated offenders and that judges
had an “unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under
similar circumstances.” For instance, a federal judge in one district could have determined the crime of robbery warranted a 1 year
sentence in prison, while the judge in another, or the same, district found that the same crime committed under similar
circumstances warranted a 20 year prison sentence. As a result of these inconsistencies in federal sentencing of crimes, many
citizens began to lobby for federal guidelines and more consistent sentencing, resulting in Congress passing the Sentencing Reform
Act of 1984. As noted above, the
objective of the Sentencing Reform Act was to completely overhaul and correct
the federal sentencing disparities nationally, but the result were that punishmentsbecame more severe
and disparities were still rampant throughout the nation . Congress also created the United
States Sentencing Commission in 1984, which is directed by the SRA to establish sentencing policies and practices by
promulgating and amending the federal sentencing guidelines and issuing reports to Congress recommending changes in federal
legislation related to sentencing. Although the newly formed commission claimed to base the federal sentencing guidelines on
existing practice, their data was limited, so they simply took
existing sentencing lengths and increased them. For
instance, the commission chose to use Congress’ mandatory minimum sentences as the base level
for federal sentencing guidelines, resulting in the requirement of sentence even above the levels
that Congress had set. Further, the federal sentencing guidelines resulted in a significant increase
in the percentage of all defendants sentenced to prison, and with longer sentences of
imprisonment, rather than alternative forms of punishment , such as probation or community service. The
guidelines made it mandatory that judges consider past criminal history as a means of
increasing the punishment and terms of imprisonment for repeat offenders . Thus, a repeat
offender for a petty crime, would now face much harsher penalties and have their sentences
enhanced, similar to that of an offender convicted of a much more severe and heinous crime. The inevitable result was and
still is the very heavily debated topic of prison overcrowding. Next, the federal sentencing guidelines
still had rampant sentencing disparities. For example, before 2010 one person may be convicted of
possession of 5 grams of cocaine and receive a 5 year prison sentence, while a different person was convicted and received the same
5 year prison sentence for possession of 500 grams of cocaine.
 Determinate Bad – Prison Growth
Determinate sentencing increases prison population and
explode recidivism rates – empirics.
Matthew Green, 1-23-2012, [Matthew Green is a digital media producer for KQED News. He
previously produced The Lowdown, KQED’s multimedia news education blog. "How One Law
Helped Pack California's Prisons", KQED https://www.kqed.org/lowdown/775/the-law-that-
help-pack-californias-prisons //DMcD]
A single state law from the 1970s completely transformed the way California sentences its
criminals. The Uniform Determinate Sentencing Law was signed in 1976 by Governor Jerry Brown (yes, same
guy). Shortly thereafter the prison population metastasized. Here's what happened: The language of the
law literally says: "the purpose of imprisonment for crime is punishment." Beforehand, the penal system's primary agenda was
rehabilitation. But with the new law, punishment became the explicit goal. How it used to be Prior to 1977, California
judges would typically sentence convicted offenders to very broad-ranging prison terms (say, five years to life for armed robbery).
After an inmate had served a minimal period amount of time, a parole board would then determine the remaining sentence length.
The board's decision was supposed to be influenced by how the inmate had behaved during his/her sentence and the demonstrated
degree of “rehabilitation” (for instance: completing classes and job training, attending counseling, etc.). Interestingly, this process –
known as indeterminate sentencing – became increasingly unpopular among both conservative and liberal politicians: conservatives
expressed concern that parole boards were releasing inmates too early, while liberals alleged that the boards too often made
Determinate sentencing was intended to
discriminatory decisions based on factors like race. Determinate sentencing
make that process less arbitrary. After1977, the vast majority of convicted felons received fixed -- or
"determinate" -- prison terms, and no longer appeared before a parole board prior to release . The
legislature decided on "triads" of specific sentence lengths for certain crimes. So, whereas previously, a specific crime might have
gotten you one to 20 years, the exact same crime was now punishable by a strictly defined term of, say, two, four, or six years. Trial
judges were required to impose the middle sentence unless overriding evidence justified a lower or higher term. In 2007, however
the U.S. Supreme Court in Cunningham v. California invalidated this last part of the law, ruling it in violation of the Sixth
Amendment's trial by jury requirement. California's
new sentencing system effectively diminished many
of the incentives inmates had to seek rehabilitative services . Prison terms were now pretty much set
in stone regardless of good or bad behavior (with the exception of a very modest fixed reduction for basic good conduct). And as a
result, increasingly fewer resources were directed towards rehabilitative services. The big increase As
violent crime rates
around the country rose in the 1970s and 1980s, so too did tough on-crime political positions , especially in
California. Determinate sentencing gave state lawmakers the authority to decide on and change the
length of prison sentences. And because few elected officials wanted the liability of appearing soft
on crime, the legislature kept jacking up prison terms for a variety relatively minor offenses . In the
two decades after the enactment of determinate sentencing, state legislators enacted nearly 100 laws that significantly enhanced
sentences for various felonies. In particular, harsher punishments for non-serious, non-violent crimes like drug offenses resulted in
the long-term incarceration of thousands of offenders who, previous to 1977, may have received only very brief terms or not gone to
prison at all. When interviewed in 2007, three
decades after signing the determinate sentencing law, Jerry
Brown expressed regret. He noted that “determinate sentencing, as it has worked out, is itself
arbitrary." During that thirty year period, the state’s prison population increased by
nearly 900 percent. The Parole Factor The nature of parole changed as well after determinate
sentencing took effect. Parole used to basically mean early release. Determinate sentencing
pretty much eliminated that possibility. Since 1977, almost all released offenders (non-lifers) get placed under
parole supervision for up to three years, during which time the ex-offender is "supervised" by a parole agent and required to follow
specific conditions. In theory, the system is intended as much to make sure ex-offenders stay out of trouble as it is to help with their
transition back into society. But In actuality, the parole system is sorely lacking in the extent of the very needed resources it's able to
provide. And many parolees get sent back to prison as a result of minor technical violations (called "administrative returns"). In
short, parolees receive few services and walk on very thin ice. They can be sent back to prison for slip-ups as mundane as not
showing up for parole visits or failing drug tests. California's
recidivism rate in 1977 was about 15 percent.
Today, close to 70 percent of all ex-offenders return to prison within just three
years, among the highest rates in the country .
Determinate sentencing creates undue sentences and
disincentivizes individual rehabilitation.
Ryan King, December 2015, [Senior Fellow, Justice Policy Center, Urban Institute,
"Balancing The Goals Of Determinate And Indeterminate Sentencing Systems", Federal
Sentencing Reporter https://online.ucpress.edu/fsr/article/28/2/85/43380/Balancing-the-
Goals-of-Determinate-and //DMcD]
II. The Consequences of the Determinacy Movement
This twin evolution of structured and determinate sentencing, including outright abolition of parole, was rooted in a justifiable
desire for greater certainty, transparency, and consistency in sentencing. However, this shift
toward determinacy came
with a cost. Determinate sentencing greatly reduced judicial discretion, but it did not completely
eliminate discretion from the criminal court system. In fact, it simply shifted discretion from the
sentencing phase, where the judge held sway, to the charging phase, controlled by the prosecutor. With
sentence lengths tightly prescribed through statute and guidelines, the charging decision became largely dispositive
of length of stay in prison. This moved an important part of the court process from the public
sphere of judicial sentencing to the private sphere of the office of the prosecutor. At sentencing, the effort to
standardize sentences in a guidelines grid proved difficult to operationalize as the nuances of criminal
history, personal background, and the characteristics of the underlying offense were not easily
reducible to a numeric scale. Layer on top of the guidelines a number of statutory mandatory
minimums, and you had a system that was sacrificing individuality in sentencing for
uniformity. Most notable are mandatory minimum sentences for drug offenses, where the type
and quantity of drug are frequently used as proxies for the role played in the offense . Unfortunately,
these blunt indicators are imperfect, and stories abound of persons who played a peripheral role in
drug transactions facing long sentences because the full weight of the drug was applied to calculate their sentence.
Additionally, mandatory sentencing enhancements for offenses such as weapon possession
during a drug crime rapidly ratcheted up the length of stay in prison. This led to some sentences
that were disproportionately severe, and relying on judicial departures as a remedy was greatly restricted. Finally,
under an indeterminate sentencing model with parole release, program participation and
evidence of positive change while in prison can be incentivized with substantial reductions in
length of stay. Under a determinate system, the maximum that can be earned is capped, sometimes
at 15 percent of the sentence. For individuals in prison, this can result in a greatly reduced incentive
to take advantage of programming opportunities.
 Determinate Bad – Prosecutorial
Discretion
Plea bargaining has more disparities – prosecutors give white
people more lenient deals.
CARLOS BERDEJÓ, April 2018, [Professor of Law and J. Howard Ziemann Fellow, Loyola
Law School, Los Angeles. "Criminalizing Race: Racial Disparities In Plea-Bargaining", Boston
College Law Review https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?
article=3659&context=bclr //DMcD]
INTRODUCTION The treatment of African Americans in the criminal justice process has been the subject of intense scrutiny in both
academic literature and the popular press. Many have argued that policing practices disproportionately target black individuals, who
are also more likely to be arrested and become defendants in criminal cases. These black defendants are incarcerated more often and
sentenced to longer terms in prison relative to white defendants. [*1190] The end result of these disparities is a pair of dispiriting
statistics that are well-known to many--black
males are incarcerated at a rate that is five times that of white
males, and one third of black males can expect to be imprisoned at some point in their lives . Much of
the recent empirical work on racial disparities in the criminal justice process has centered on its two endpoints--the arrest and initial
charging of individuals and sentencing decisions by judges. These studies generally find that black individuals are more likely to be
arrested and charged than white individuals and that black defendants receive harsher sentences than white defendants. The
reasons for these observed disparities are the subject of vigorous academic debate. Setting that debate aside, merely focusing on
these endpoints ignores critical steps in the criminal justice process that follow an individual's detention but precede the sentencing
hearing. Critically, judges make their sentencing decisions conditional on the crime (or crimes) for which the defendant was
convicted, which, together with other factors, determines a sentencing range. The crime of ultimate conviction is the result of a
process controlled by a different set of actors in the system. Surprisingly, few studies have examined the role of race
in determining defendants' outcomes in these pre-sentencing stages of the criminal justice
process. This Article fills this gap in the literature by examining disparities in the plea-bargaining process
that precede judges' sentencing decisions and constrain their sentencing discretion . Using data
obtained from the Wisconsin [*1191] Circuit Courts, this Article documents striking racial disparities in these
earlier stages. White defendants are twenty-five percent more likely than black defendants to
have their most serious initial charge dropped or reduced to a less severe charge (i.e., black defendants
are more likely than white defendants to be convicted of their highest initial charge). As a result, white defendants who
face initial felony charges are approximately fifteen percent more likely than black defendants to
end up being convicted of a misdemeanor instead. In addition, white defendants initially charged
with misdemeanors are approximately seventy-five percent more likely than black defendants to
be convicted for crimes carrying no possible incarceration , or not to be convicted at all. More in-
depth analyses reveal two patterns that may shed light as to the underlying dynamics behind these racial disparities. First,
disparities in plea-bargaining outcomes appear to be driven by cases in which defendants have no prior convictions. In cases
involving defendants with prior convictions there are no significant racial disparities in plea-bargaining outcomes. This pattern
suggests that in the absence of evidence of a defendant's recidivism risk (for example, when there is no criminal history), prosecutors
may be using race as a proxy for the defendant's likelihood to recidivate. Second, racial
disparities in plea-bargaining
outcomes are greater in cases involving misdemeanors and low-level felonies relative to cases
involving more severe offenses. This second pattern suggests that prosecutors may be using race as
a proxy for a defendant's latent criminality (for [*1192] example, propensity to commit a severe offense in
the future) in cases involving low-level offenses. In addition to uncovering racial disparities in the plea-bargaining process, this
Article contributes to a pair of current policy debates in the criminal law arena. First, the evidence presented in this Article sheds
light on the question surrounding the role that the disparate impact theory should play in equal protection claims under the
Fourteenth Amendment. Historically, courts have been reluctant to accept statistical evidence showing patterns of racial
discrimination to establish an equal protection claim, instead requiring plaintiffs to show a racially discriminatory intent or purpose.
Several scholars have been critical of the high burden placed on plaintiffs as a result of this requirement, which often renders the
equal protection clause an ineffectual tool for combating racial discrimination in the criminal justice process. Critics of this
evidentiary standard argue that its focus on discriminatory purpose and intent ignores the growing evidence on the impact of
implicit racial biases on an individual's actions, which often contradict an individual's conscious or express intentions. If
subconscious racial biases do contribute to racial disparities [*1193] (for example, by the use of race as a proxy for a defendant's
latent criminality), there would be no constitutional means to address these under the evidentiary requirements articulated by the
courts. The nature of the biases documented in this Article affirms the need to re-examine the role of evidence showing disparate
impact in equal protection claims. The evidence presented in this Article also touches upon a second current
policy debate--the treatment of misdemeanors in the criminal justice process and their role in
perpetuating racial disparities. Unlike other studies that have focused on more serious felony crimes, this Article
stresses the importance of racial disparities in misdemeanor cases , both in plea-bargaining and
sentencing. Although misdemeanors have traditionally been overlooked due to the low-level nature of the
offenses, sheer volume of cases, and the shorter sentences involved, recent work has highlighted their significant
role in the criminalization of black males . The fact that the racial disparities in plea-bargaining and
sentencing documented in this Article are greater in cases involving misdemeanors adds further urgency to the debate surrounding
their regulation and decriminalization. The Article proceeds as follows. Part I summarizes the existing evidence on racial disparities
in criminal case outcomes, highlighting the limited attention that has been devoted to the plea-bargaining process. Part II provides
background information on the criminal justice process in Wisconsin and describes the dataset and the construction of the variables
used in the analyses. The results of these analyses are then presented in Part III. [*1194] The policy implications of these results and
avenues for future research are discussed in the Conclusion.

Determinate sentencing takes away the only check on

prosecutors
Ely Aharonson, 2013, [Assistant Professor, University of Haifa, "Determinate Sentencing
And American Exceptionalism: The Underpinnings And Effects Of Cross-National Differences
In The Regulation Of Sentencing Discretion", Law And Contemporary Problems
https://scholarship.law.duke.edu/lcp/vol76/iss1/8/ //DMcD]
This brief overview of some of the key differences between the institutional contexts in which American and continental judges
operate helps to clarify both the conditions under which determinate sentencing legislation has proliferated in the United States (but
not in Europe) and the differences in how this legislation is implemented within these very different institutional settings. First,
even under the assumption that American determinate sentencing laws are successful in
bringing judges to comply with the sentencing standards they prescribe, it is clear that the
American approach to the governance of sentencing discretion is structured in a lopsided
manner, with tight regulation of judicial discretion and weak checks on the exercise of
prosecutorial discretion. The problem is not only that the exclusive focus on tightening the regulation of judicial
discretion is too narrow (covering only a tip of the very big iceberg of "discretion in sentencing") but also that the curtailment
of the discretionary powers of judges restricts their ability to mitigate the abuse of prosecutorial
discretion. Combined with the tendency of determinate sentencing laws to increase prosecutorial
leverage in plea bargaining, there is reason to suspect that these laws have exacerbated the
peril that the arbitrary, discriminatory, or simply unsystematic use of discretion by
prosecutors will cause sentencing disparities. The tendency of determinate sentencing laws to shift power from
judges to prosecutors is likely to be less pronounced in continental systems than it has been in the United States. Although many
European systems have recently adopted arrangements of "negotiated judgments" that have some similarities with the adversarial
model of plea bargaining, these arrangements retain a much greater level of judicial scrutiny over prosecutorial decisions and only a
minority of criminal cases are settled by these methods. In addition, because European systems have adopted only one form of
determinate sentencing legislation - mandatory penalties, applied to a narrow class of severe offenses - prosecutors in continental
systems are unlikely to gain similar degrees of [*185] influence over sentencing outcomes to those possessed by American
prosecutors. In the United States, the negative impact of determinate sentencing laws in this context
has been particularly conspicuous because of their synergetic interactions with other
institutional arrangements that also work to empower prosecutors. For example, as emphasized by
William Stuntz in a series of seminal works, the breadth and depth of criminal codes in the United States
create a wealth of overlapping offense definitions and provides prosecutors with useful
bargaining chips to extract guilty pleas. When a greater ambit of offenses is subjected to mandatory penalties, the
impact of the mutually reinforcing institutional deficiencies identified by Stuntz is exacerbated, and prosecutors are provided with
greater control over the determination of sentencing outcomes. Moreover, the ideological values that legitimize state punishment in
continental systems have posed additional barriers to the reception of determinate sentencing laws in these systems. These values
ground the justifiability of state punishment on its being an outcome of a rigorous inquisition of the relevant facts. The authority of
the judge to determine the penal sanction proportional to the perpetrator's proven guilt is inherently linked to the proactive role that
he plays in earlier stages of the fact-finding inquisition, as well as to his professional commitment to protect the defendant against
the excesses of state power throughout these earlier stages. Indeed, the power of inquisitorial ideals in shaping the practices and
professional consciousness of European jurists is in decline. However, they probably still pose some significant barriers to the
reception of the more stringent versions of determinate sentencing laws. "Truth in sentencing" laws, mandatory penalties, and other
schemes that prevent the judge from being able to individualize the penalty pose a fundamental challenge to the way in which
European jurists define the values and legitimize the authority of their criminal justice systems. In this regard, the failure of
determinate sentencing laws to gain momentum in continental Europe reflects a profound difference in how each of these
procedural systems seek to promote values of equality and to reduce sentencing disparities. European systems seek to tackle
disparities by vesting with the judge broad powers to review the decisions of other legal officials and to consider whether these
decisions are consistent with the manner in which similar cases have been administrated. The
imposition of statutory
constraints on judicial discretion in sentencing is likely to damage the effectiveness of these
mechanisms of review. In the United States, by contrast, the egalitarian ideal of treating like cases alike is pursued by means
of establishing a standard of uniformity with respect to entire classes of offenders. These uniform standards [*186] are increasingly
dictated by the legislature, which is presented as ideally positioned to guarantee the compatibility of sentencing rules with
widespread public views of the relative gravity of different offenses. The problem is that as the mechanisms used to ensure judicial
compliance with these generalized prescriptions of required penalties take a more formalistic and binding character, the ability of
the legal system to deliver the other dimension of Aristotle's egalitarian ideal - treating unlike cases differently - is being diminished.

The guidelines are fundamentally corrupted – they were always

intended to increase prosecutorial power
Albert W. Alschuler, October 2005, [Julius Kreeger Professor of Law and Criminology,
University of Chicago., "The Normative And Empirical Failure Of The Federal Guidelines",
Stanford Law Review https://www.jstor.org/stable/40040253 //DMcD]
E. Prosecutors
In 1989, I wrote that although the Federal Sentencing Guidelines were likely to increase the power of prosecutors, "guilty plea rates
are currently so high that even substantial increases in prosecutorial bargaining power cannot yield great increases in these rates." I
was wrong. Guilty pleas, which accounted for 87% of all federal convictions in the years before the
Guidelines, account for 97% today. Marc Miller remarks that the Guidelines have "achieved the
virtual elimination of criminal trials in the federal system." The Sentencing Guidelines and mandatory
minimum sentences have set the stage for the "good-cop, bad-cop" stratagem on a grand scale. Congress and the
Sentencing Commission play the bad cops, threatening the accused with harsh [*113] treatment.
The prosecutor takes the part of the good cop, promising to protect the defendant if he abandons
the right to trial and cooperates. Substantial sentencing discretion remains except for defendants who resist the
prosecutor's will. The Sentencing Commission's policy statements admonish judges to reject plea agreements that undermine the
Guidelines. One study concluded, however, that "key participants in the sentencing process were generally unfamiliar with … the
policy statements." The Sentencing Commission observes that "judicial review of plea agreements pursuant to the policy statements
… appears to be very limited." In each of the years between 1997 and 2002, the reason judges gave most often or next-most often for
departing from the Guidelines was "pursuant to plea agreement." Most
plea agreements, moreover, do not require
departure from the Guidelines. Bending the Guidelines is enough. Federal Rule of Criminal Procedure 11(c)
(1)(C) provides: The plea agreement may specify that an attorney for the government will … agree that a specific sentence or
sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy
statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the
plea agreement). In 2003, a memorandum by Attorney General John Ashcroft declared, "Any sentencing recommendation made by
the United States in a particular case must honestly reflect the totality and seriousness of the defendant's conduct and must be fully
consistent with the Guidelines and applicable statutes and with the readily provable facts about the defendant's history and
conduct." Like similar directives from Attorneys General before him, Ashcroft's apparent restriction of plea bargaining made
headlines. On the surface, it appeared to be a significant reform. The memorandum's exceptions, however, largely swallowed its rule.
Prosecutors could bargain when their cases were weak, when they could get useful information
from a defendant, when immigration and drug cases clogged the courts, when enhancements
would remove any incentive for a defendant to plead guilty, or when the prosecutors [*114] could
get written approval from their superiors. The prosecutors apparently could bargain whenever
doing so would advance their interests. The only thing they could not consider was the merits of a case. I am
told that, in one federal district, the United States Attorney circulated the Ashcroft memorandum to the other lawyers in his office
with a note saying that it appeared to require no change in "what this office is doing already." In this district, prosecutors and
defense attorneys often bargained directly about how much time a defendant would serve and then determined what Guidelines
applications would implement their bargains. The Sentencing Commission notes that prosecutors have viewed directives like
Attorney General Ashcroft's with skepticism and that "nationwide DOJ policies … were less determinative of prosecutorial conduct
Guidelines have
than internal U.S. Attorney's office policies." Together with mandatory minimum sentencing legislation, the
added to the prosecutors' armaments. They have given prosecutors more leverage partly by
increasing the severity of criminal sentences. The Sentencing Reform Act provides, "The sentencing guidelines
prescribed under this chapter shall be formulated to minimize the likelihood that the Federal prison population will exceed the
capacity of the Federal prisons," but the
number of inmates in federal prisons has more than quadrupled
since 1985. This growth in the federal prison population is not attributable to increased crime rates but is attributable in part to
larger federal caseloads. It is also partly attributable to the fact that a higher proportion of convicted offenders go to prison. What
has driven the explosion in the prison population even more than these developments, however, is the greater length of prison
terms. The Sentencing Commission notes that "federal offenders sentenced in 2002 will … spend about twice as long in prisons as
did offenders sentenced prior to passage of the [Sentencing Reform Act]." Congress allows departures from both the Guidelines and
mandatory minimum sentences for "substantial assistance in the investigation or prosecution of another person," but it allows these
departures only when prosecutors request them. When a prosecutor seeks a substantial assistance departure, the bottom is the limit.
No statute or guideline constrains the extent of the defendant's reward. Departures for substantial assistance occur in about [*115]
17% of all cases and other departures in about 18% more. Substantial assistance departures, however, are larger and account for
twice as much variation in federal sentences (4.4% of all variation versus 2.2%). The frequency of substantial assistance departures
varies greatly from one district to the next. Congress provided another escape route from mandatory minimum sentences in a
"safety-valve" provision for low-level drug offenders. This escape route is open, however, only for offenders who cooperate with
prosecutors. As initially approved, the Sentencing Guidelines offered a two-level reduction for "acceptance of responsibility." The
Sentencing Commission later provided another one-level reduction for "timely" notification of an intent to plead guilty. In the
PROTECT Act of 2003, Congress prohibited judges from granting a reduction for timely notification of an intent to plead guilty
unless a prosecutor requested it. In several federal jurisdictions with high immigration and drug caseloads, prosecutors created what
they called "fast-track" programs offering sentences far below Guidelines levels to defendants who waive almost all of their
procedural rights. In the PROTECT Act, Congress authorized departures from the Guidelines of no more than four levels to
implement these programs. Prosecutors control whether mandatory minimum sentences will be imposed. In a recent case, a twenty-
two-year-old defendant was arrested on two occasions for possessing both drugs and a firearm. Although he had no criminal record
before these arrests, his conviction of the second offense required the court to impose a mandatory minimum sentence of twenty-five
years, which the offender would be required to serve after he completed his first sentence. When Judge Myron H. Thompson
imposed the total sentence of forty years required by section 924 of Title 18, he called this sentence "draconian." He noted that not
only would the offender's child grow up without a father but his grandchildren, if he had any, would be teenagers or young adults
before he was [*116] released. Judge Thompson and other judges are required to impose the mandatory minimum sentences
specified by section 924, but prosecutors have a choice. The Sentencing Commission reports that, after the exercise of prosecutorial
discretion in charging and plea bargaining, only 20% of the offenders who used firearms to commit drug crimes received the
mandatory sentences that section 924 prescribes, and offenders who carried firearms without using them received the section 924
enhancements even less often. It
is difficult to believe that Congress cares about sentencing disparity in
the slightest. After many of its members ringingly denounced disparity, Congress enacted the PROTECT Act restricting
downward departures by judges. The same statute, however, validated "fast-track" programs that effectively jettisoned the
Guidelines. The PROTECT Act followed the pattern of the previous twenty years - jeering
disparities created by judges while cheering those created by prosecutors . Judge William
G. Young remarks, "Enhanced plea bargaining is actually the central goal of the guidelines."
When Senators Thurmond and Kennedy co-sponsored the Sentencing Reform Act, observers wondered which one was selling the
farm. Today we know the answer, and it was not Senator Thurmond. Increasing
prosecutorial power and the
severity of criminal punishments was not the unintended consequence of Guidelines designed to
reduce sentencing disparity. Instead, it was the point all along. Disparity was just a code
word.

Determinate sentencing fails – decreases individual leniency and

increases prosecutorial power.
Kate Stith, May 2008, [Stith is a Professor of Law at Yale Law School. "The Arc of the
Pendulum: Judges, Prosecutors, and the Exercise of Discretion", Yale Law Journal
https://www.yalelawjournal.org/feature/the-arc-of-the-pendulum-judges-prosecutors-and-the-
exercise-of-discretion //DMcD]
Introduction
In the federal criminal justice system, both prosecutors and judges have historically exercised
broad discretion—prosecutors in charging (or not charging), and judges in sentencing. Both prosecutorial
and judicial discretion in the criminal process date back to the very beginnings of the Republic.1 For most of our history, the exercise
of discretion has simply been taken for granted by judges, by prosecutors, and most importantly, by Congress, which has created a
system of criminal laws that requires—and has always required— the exercise of discretion. Unlike the civil system in continental
Europe, the common law has never featured or claimed to feature mandatory exercise of prosecutorial power. In the modern
era, we have grown suspicious of discretion. To a formalist, discretion seems the very antithesis of law. To a realist
who views law as simply power, discretion is, at best (in Judge Marvin Frankel’s memorable book title), “law without order.”2 A
central campaign of the modern age— extending far beyond sentencing and the criminal justice system—has been to reduce the
discretion of government officials.3 I use the term “power” to refer to lawful authority to take action against an individual.
“Discretion,” on the other hand, is the authority not to exercise power. In the context of the criminal law, to
exercise
discretion means, most simply, to decide not to investigate, prosecute, or punish to the full extent
available under law. Discretion in federal criminal law enforcement is so great and so difficult to constrain
because it is a necessary concomitant of the substantive federal criminal law .4 That is, federal statutory
criminal law has great breadth and has always included both lesser-included offenses and overlapping offenses. Moreover, the
federal criminal law has always been an adjunct to state criminal law; most conduct that violates federal law also violates state law.
Thus, in many instances, federal prosecutors must decide both whether to intervene in potential state prosecutions and, if they do
choose to intervene, which crimes to charge. Federal prosecutorial decision makers (whoever they may be—line
prosecutors, U.S. Attorneys, or officials and bureaucrats in the Department of Justice) necessarily
have broad charging
discretion. Concomitantly, sentencing authorities (whoever they may be— judges, administrative agencies, or prosecutors)
necessarily have broad discretion over punishment. As Congress well understands when it enacts federal criminal proscriptions,
both prosecutorial and sentencing discretion are inevitable because of the broad reach of these proscriptions and the severity of
authorized punishments.5 Resource constraints as well as prudence dictate the conclusion that the federal criminal law cannot be
applied in its full rigor.6 Someone has to exercise authority to decide what to investigate, what to prosecute, what to charge, and how
great punishment will be. The inevitable
exercise of charging and sentencing discretion in the federal
criminal justice system has been a recurring theme in the saga of the Federal Sentencing
Guidelines, whose recent transformation by the Supreme Court from a “mandatory” to an “advisory” regime7 I consider in this
essay. I do not view the Court’s recent Guidelines decisions only from an internal perspective—that is, in terms of the competing
constitutional doctrines expounded in these cases. Rather, I consider the recent decisions against the backdrop of inevitable,
ongoing institutional rivalries. The institutions in play include not only the inferior federal courts (both trial and appellate),
Congress, and the U.S. Sentencing Commission, but also the Supreme Court, federal prosecutors in the ninety-four U.S. Attorneys’
offices, and, importantly, the U.S. Department of Justice in Washington, D.C. (“Main Justice”). Early scholarship on the Federal
Sentencing Guidelines focused on the transfer of sentencing authority from judges to the Sentencing Commission; later studies have
examined the transfer of discretion from judges to prosecutors. Of equal significance are two other
ongoing competitions
for power: one between local federal prosecutors and officials in Main Justice , the other between
Congress and the Supreme Court. In its 2005 decision in United States v. Booker8 and its recent decisions elaborating
the new sentencing regime constructed in Booker, the Supreme Court asserted the significant responsibility and authority of
sentencing judges, local prosecutors, and the Supreme Court itself. In Part I, I seek
to identify the critical decisions
made in constructing and implementing the Guidelines , decisions that ultimately resulted in
increased prosecutorial power and discretion. This discretion could, and would, be used to
influence defendants to plead guilty or face remarkably severe Guidelines sentences . Although it
was not the goal either of sentencing reformers or of Congress, the actual result of the Guidelines regime that
took effect in late 1987 was to transfer sentencing authority not to the U.S. Sentencing Commission, but to
federal prosecutors in general and—particularly in recent years—to Main Justice. Because I have elsewhere expressed
skepticism about the project of uniform application of sentencing rules,9 I do not dwell here on the issue that motivated the
Sentencing Reform Act10—the existence of “disparity” among judges in sentencing. Disparity unquestionably exists. But
requiring judges to apply national sentencing rules risks masking both the continued
significance of the individual judge in sentencing and the increased leverage over defendants
afforded to prosecutors in plea bargaining. The federal effort to stamp out judicial disparity
through the Guidelines was probably not successful.11 In any event, the decades-long enterprise provided
prosecutors with indecent power relative to both defendants and judges, in large part because of prosecutors’ ability to threaten full
application of the severe Sentencing Guidelines. Part II explains why neither appellate decisions nor raw sentencing data are an
accurate tool to measure the Guidelines’ success in achieving greater national uniformity in sentencing—nor even for measuring the
extent to which the Guidelines are actually implemented. Each criminal sentencing is ultimately highly “local,” a result of the
strategic decisions of the prosecutor, the defense attorney, and the judge—all acting within the factual confines of the case at hand as
well as the larger norms and practices of the judge’s courtroom, of the federal district, and of the relevant circuit. Further, the
sentencing decisions of the courts of appeals—including the “win/loss” ratio for defendants and the government—tell us very little
about law on the ground. Few sentencing decisions are appealed by defendants, and even fewer are appealed by the government.12
While courts of appeals may use these cases to signal to district courts how rigorously they should apply the Guidelines, this signal is
imperfect at best and may be ignored altogether in cases that are not likely to be appealed. Indeed, even
ground-level
sentencing data—the sort of data assiduously compiled by the Sentencing Commission for every sentence in the
federal courts—is a poor measure of the extent of Guidelines implementation and compliance . Although
we can count the case reports submitted by judges, and thereby determine the ratio of reported Guidelines sentences to reported
non-Guidelines sentences, there is no way to judge how accurate these reports are—or even what “complying” with the Guidelines
would mean. The unreliability of appellate decisions and raw sentencing data as portrayals of actual practice has not always been
appreciated. Interested political observers, in particular, have looked to appellate case law and to the frequency of reported non-
Guidelines sentences as a measure of the extent to which judges have “complied” with the Guidelines and thus implemented
Congress’s design to reduce sentencing disparity. Part III recounts Congress’s 2003 decision—in reaction to sentencing decisions in
particular white-collar cases and to nationwide data that appeared to reveal that sentencing judges were willfully ignoring the
Guidelines in a growing proportion of cases—to enact legislation that represented a direct challenge to every level of the federal
judiciary, the Sentencing Commission, and local prosecutors. By design, this legislation, known as the Feeney Amendment
(“Feeney”),13 simultaneously empowered Main Justice, which was Congress’s partner in the endeavor to limit if not eliminate the
exercise of discretion by decision makers in the field. Feeney added language to the Sentencing Reform Act to overturn a unanimous
Supreme Court case, Koon v. United States, 14 that appeared to encourage judicial disregard of the Guidelines. Feeney also directed
the Sentencing Commission to amend the Guidelines to reduce judicial discretion to impose below- Guidelines sentences, and
directed the Department of Justice to monitor the sentencing advocacy of prosecutors and the sentencing decisions of judges—all in
aid of reducing the opportunities for individual judges and prosecutors to exercise discretion outside the confines of the Guidelines. I
explain in Part IV why Booker (as well as Booker’s immediate predecessor, Blakely v. Washington, 15 and Booker’s progeny of
200716) can be understood as an institutional response by the Supreme Court—which for more than a decade had been loath to
intervene or even seriously analyze constitutional and other issues raised by the Guidelines—to several developments that
threatened the integrity of federal criminal sentencing and, indeed, of the whole federal criminal justice system. In a dramatic
exercise of judicial power, Booker undid the Feeney Amendment, limited the power that inheres in prosecutors in a regime of
mandatory sentencing rules, and counteracted the centralizing impulse of Main Justice. The doctrinal basis of Booker’s holding that
mandatory Guidelines are unconstitutional, sounding primarily in the jury- trial right of the Sixth Amendment, had been elaborated
over the course of several years—beginning in the late 1990s, continuing with Apprendi in 2000,17 and most importantly with
Blakely in 2004. But it is nota mere coincidence, in my view, that both Blakely and Booker—including the
latter’s unexpected remedy that left the Guidelines in place but assertedly made them “advisory”— occurred in the wake of
Congress’s own extraordinary intervention in 2003 and Main Justice’s subsequent restrictions
(required by Feeney) on local prosecutorial autonomy . The Supreme Court’s three federal sentencing decisions of 2007
reaffirm that Booker restored significant judicial power, and thus permits the exercise of judicial discretion, over sentencing; post-
Booker discretion is greater even than that which existed under the pre-Feeney Guidelines, though not nearly as great as that which
existed in the pre-Guidelines era. By introducing the opportunity for federal trial judges openly to exercise judgment independent of
the Guidelines, Booker and its progeny not only allow judges to provide a counterweight to prosecutorial leverage over defendants,
but also counteract the constraints that Main Justice imposed on line prosecutors in the wake of the Feeney Amendment.18 Once
again, sentencing is to a significant extent a “local” event. After Booker, the Sentencing Commission and Main Justice may still be
calling signals but the decision makers on the playing field—judges and prosecutors—need not follow them.
 Prosecutorial Discretion (Mand Mins)
Mandatory minimums coerce defendants into plea bargains and fuel
police misconduct as plea bargains prohibit the defendant’s right to
challenge police actions
Scott Hechinger, 9-25-2019, senior staff attorney and the director of policy at Brooklyn
Defender Services, a public defense law firm representing 30,000 people arrested in Brooklyn
each year., How Mandatory Minimums Enable Police Misconduct, New York Times,
https://www.nytimes.com/2019/09/25/opinion/mandatory-minimum-sentencing.html, 6-25-
2020/Khan
police officers willfully
To those who do not work in criminal court, Jacob’s decision may not seem particularly momentous. Yet everyday across the country,

violate people’s rights, in large part because of their certainty of never having to take the stand
to answer for their actions. Police departments rightfully get blamed for the crisis in violent and corrupt policing. The recent firing of Daniel Pantaleo, the
New York Police Department officer who strangled Eric Garner to death, lied about it, kept his job for five years and got terminated only after international pressure and the

recommendation of a Police Department judge, underscores why. But the near impossibility of getting fired is only part of the
crisis of impunity. An overlooked but significant culprit is mandatory minimum sentencing. In
criminal courts throughout this country, victims of police abuse — illegal stops and frisks, car stops and searches, home raids, manufactured charges and

excessive force — routinely forgo their constitutional right to challenge police abuse in a pretrial hearing

in exchange for plea deals. They do so because the alternative is to risk the steep mandatory
minimum sentence they would face if they went to trial and lost. Prosecutors use the fear of
these mandatory minimums to their advantage by offering comparatively less harsh plea deals
before pretrial hearings and trials begin. The result is not only the virtual loss of the jury trial —
today, 95 percent of convictions come from guilty pleas instead of jury verdicts — but also the loss of the only opportunity to confront

police misconduct in criminal proceedings. In New York City, for example, less than 5 percent of all felony arrests that are prosecuted have
hearings to contest police misconduct. For misdemeanor arrests that are prosecuted — a third of which are initiated by the police — less than .5 percent of cases go to a hearing.

A guilty plea also has the effect of insulating police from any civil rights lawsuit asserting false
arrest because a plea of guilty serves as an admission that the officers’ arrest was justified. A year
before his court appearance, Jacob was heading home when undercover detectives stopped a car he had borrowed. They ordered him and his three friends out of the car,
handcuffed them and searched the car without justification. The officers later claimed that he failed to signal and that they smelled a strong odor of marijuana emanating from
the vehicle when they approached, both common police lies used as pretexts to stop and search predominately black and Latinx people. During the search, the officers recovered
a handgun from inside the spare tire compartment in the trunk. Jacob adamantly denied knowledge of the gun — it was not his car, other people used the vehicle, and there were
multiple passengers — but he was charged with possession of a loaded firearm, a “violent felony” under New York law. The stakes were significant for this 21-year-old with no
criminal record. At a pretrial hearing, where the legitimacy of the stop and search of the vehicle would be examined and a judge would determine whether to suppress (preclude
the prosecutor from using any evidence relating to the firearm at trial), it would be his word against the officers’. And if he lost and went to trial, he would face the mandatory
minimum of three and a half years in prison. On the day of the hearing, the prosecutor in Jacob’s case offered a last-minute plea deal: a nonviolent felony with a sentence of
probation. But if he turned it down that day, the deal would forever be off the table. Prosecutors call this a “one-time offer,” a routine pressure tactic that undermines a

meaningful opportunity to make a truly voluntary decision. Most people take the deal. The framers of the Constitution envisioned a far
different system. They knew well from British rule that the government’s power to stop, search, detain, accuse, judge and punish people suspected of committing
crimes presented unique risks for abuse. While they did not envision plea bargaining or the kind of policing we have today, three of 10 amendments in

our Bill of Rights — the Fourth, Fifth and Sixth — when read together, collectively describe the view that government power
should be vigorously challenged, without fear of reprisal or punishment, at every turn when it
threatens the liberty of individuals. This original intent becomes meaningless if defendants
cannot seek and receive judicial protection. As the United States Supreme Court warned nearly 60 years ago in the landmark Mapp v. Ohio:
“Nothing can destroy a government more quickly than its failure to observe its own laws, or

worse, its disregard of the charter of its own existence.” Jacob got his public hearing. Two of the officers involved in his stop, search
and arrest were compelled to testify. I cross-examined them over three days. They were visibly uncomfortable, even upset at times. It was clear that they never expected to
testify. The judge found the officers’ testimony “implausible,” holding that the search violated Jacob’s constitutional rights, and granted Jacob’s motion to suppress the firearm.
Soon after, the prosecution dismissed all charges. A month later, however, I learned that the same prosecutor was relying on the same team of officers to prosecute another man.
He, too, was charged with possession of a gun found under similar circumstances. A week after that, I passed by the officer whose testimony under oath the judge had rejected as
“implausible.” He was sitting in court, waiting for another judge to sign off on a search warrant — to enter and search someone’s home — sworn out by him. The message that the

system sent to this officer and continues to send to others is clear: You can do anything and the system will not hold you accountable. In fact, the system will protect you. We
must abolish mandatory minimum sentences. Aside from denying individualized justice and
driving mass punishment, they usurp the role of the jury, coerce guilty pleas and, yes, insulate
police misconduct. But as Jacob’s case underscored, even in the rare cases where officers are forced to testify and a judge finds them unbelievable, there is no
mechanism to ensure that they are halted from being able to contribute to future prosecutions.

Mandatory minimums and the federal sentencing guidelines create

excruciatingly high penalties which provide leverage to prosecutors to
coerce defendants into pleading out – whether they’re actually guilty
or not
Andrew Birrell et al, 2018, Birrell-Mr. Birrell is an accomplished and seasoned appellate
lawyer. He has argued before the United States Supreme Court in Washington, D.C., the federal
appeals court, and has won reversals of convictions and orders for new trials in the Minnesota
Court of Appeals and Supreme Court. Ramon de la Cabada, and Martín A. Sabelli; and Members
John Cline, James Felman, Daniella Gordon, JaneAnne Murray, David Patton, Marjorie Peerce,
Barry J. Pollack, and Todd Pugh, all seasoned criminal defense attorneys with the NACDL,
National Association of Criminal Defense Lawyers,
https://www.nacdl.org/getattachment/95b7f0f5-90df-4f9f-9115-520b3f58036a/the-trial-
penalty-the-sixth-amendment-right-to-trial-on-the-verge-of-extinction-and-how-to-save-it.pdf,
6-25-2020/Khan
For decades, criminal justice in this country has remained largely hidden from public scrutiny, relegated to backroom “negotiations” between prosecutors and defendants, where

trend has seen the

the defendant agrees to forego fundamental constitutional rights in exchange for the hope of leniency in sentencing. Year after year, the

percentage of federal defendants pleading guilty continuing to rise . In 2016, 97.3% of defendants
in the federal criminal justice system opted to concede their guilt. And in 2017, that number held
steady at 97.2%. That means that in recent years fewer than 3% of federal criminal defendants
chose to take advantage of one of the most crucial constitutional rights. 18 Plea bargaining has become so widely
accepted that these statistics are unlikely to shock the average reader. But they should be deeply troubling. In a recent article in the New York Times, one federal judge

highlighted the important role of the jury trial “not only as a truth-seeking mechanism and a means of
achieving fairness, but also as a shield against tyranny. As Thomas Jefferson famously said, ‘I consider [trial by jury] as the only
anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.’”19 Indeed, jury trials offer the average

citizen an opportunity to directly participate in the criminal justice process to prevent the
government from overstepping its authority . The public may still decry overcriminalization and the soaring prison population from afar. But
the proliferation of plea bargaining has largely eliminated the public’s traditional ability to nullify

the government’s overreach in individual cases. Despite the clear intentions of the country’s founders, American society has willingly
handed their authority back to the very institutions that juries were meant to keep in check. What’s more, they have done so not in the name of

justice but of efficiency. The current public attitude echoes the same justification the Supreme Court gave when it jettisoned its historical skepticism of plea
bargaining: “‘If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and

the efficiency argument may be, it completely eviscerates the myriad

court facilities.’”20 However appealing

protections secured by a jury trial. Defendants who go to trial enjoy the right: u To be found
guilty only by a jury of their peers, selected with the input of defendants’ counsel and under restrictions to prevent
discrimination that could cause the jury’s decision to be unfairly biased; 21 u To discover exculpatory and impeachment
evidence that jurors would likely find material; 22 u To confront and cross-examine witnesses to
ensure live, adversarial testing of the prosecution’s case; 23 In 2016, 97.3% of defendants in the federal criminal justice system
opted to concede their guilt. And in 2017, that number held steady at 97.2%. That means that in recent years fewer than 3% of federal criminal defendants chose to take

u To eliminate any adverse comments by the

advantage of one of the most crucial constitutional rights. 18 14 / Trial Penalty Report

prosecution regarding the defendants’ choice to remain silent; 24 u To be found guilty only by a
unanimous decision from the jury that they found evidence of guilt beyond a reasonable doubt
after proper instructions to ensure that they understand the necessary level of proof and the
burden on the prosecution to prove its case. 25 u To raise constitutional and other legal
challenges to the manner in which the government acquired evidence to support prosecution;
and u To appeal the conviction and any ancillary rulings underlying the conviction. None of
these protections is available to a defendant who pleads guilty. 26 Popular arguments about greater
efficiency thus inevitably lead to an uncomfortable conclusion: however important these
constitutional rights are, this country cannot afford to uphold them save in 3% of criminal cases.
There are undoubted advantages in allowing defendants to plead guilty — for the government, for society, and for
defendants themselves. But do those advantages come at the expense of fairness and justice ? The astounding percentage

of defendants who so willingly relinquish important Constitutional protections alone demands closer scrutiny of plea bargaining. Despite the nominal right

of individual defendants to insist on a trial, recent studies have revealed that the plea bargaining
process can be so coercive it can influence even innocent defendants to plead guilty. As this
report details, there is ample evidence that many defendants are compelled to forego their right
to a trial because the penalties they would otherwise face are too steep to risk. This “Trial
Penalty” — the discrepancy between the sentence offered during plea negotiations and the
sentence a defendant will face after trial — has received much attention in recent years . In 2013, Human
Rights Watch published a report detailing how prosecutors use the trial penalty to force federal drug defendants to plead guilty. 27 Joining that effort, NACDL has undertaken its
own study to examine the mechanisms that contribute to the trial penalty in federal criminal cases across the board. The United States Sentencing Commission’s data on federal

the average post-trial sentence was

sentencing confirms the existence of a trial penalty. In 2015, in most primary offense categories,

more than triple the average post-plea sentence. In antitrust cases, it was more than eight times as high. (See Figure 1,
below.) Although these averages do not represent the precise choice faced by any individual defendant, NACDL has also conducted a survey and identified numerous real-world
instances of the trial penalty — where defendants who went to trial faced extreme penalties compared to the sentences they were offered during plea negotiations or the
sentences of their similarly-situated co-defendants. Because plea negotiations are off the record and because most cases plead out, data regarding plea offers is largely
unavailable, so there is no way to accurately calculate the full extent of the trial penalty. Nevertheless, a combination of anecdotal evidence and an analysis of prosecutorial
practices, sentencing laws, and judicial decisions strongly suggests that coercion plays a major role in the ever-increasing percentage of defendants who forego their right to a

prosecutors, who are already personally incentivized to achieve speedy convictions, have
trial. Federal

virtually unbridled discretion over decisions that will dictate a defendant’s ultimate sentence . They
possess nearly exclusive authority in selecting what charges to bring, and in most cases, any number of criminal statutes could apply to a defendant’s conduct, each carrying a

Prosecutors thus have wide discretion to choose to add or drop charges in an

different potential sentence.

effortto achieve a guilty plea. On the other hand, defendants presented with plea offers are often at an
informational disadvantage and are unable to adequately assess the likelihood thatthey could be
acquitted of the charges the prosecutor has selected, even with the benefit of effective assistance
of counsel. The federal sentencing laws in turn provide prosecutors with an arsenal of tools that
can be manipulated to convince defendants to plead guilty. The federal Sentencing
Guidelines, which are the starting point for sentencing in all federal cases, can
result in excruciatingly steep penalties that are frequently disproportionate to a
defendant’s actual culpability, and important reductions from those penalties are
generally only available to defendants who plead guilty . Although judges retain ultimate authority over final
sentences, mandatory minimum sentencing statutes — which are only triggered by a

prosecutor’s decision to charge under the statute — curb judges’ discretion in

many instances. Even when there is no mandatory penalty in play, many judges are reticent to meaningfully exercise
their discretion and instead cling to the familiar Guidelines calculations which are unlikely to be
overturned on appeal. In short, the system is stacked against a defendant who insists
on [their] right to a trial because the only way to ensure a fair sentence is to plead guilty.

Guidelines and mandatory minimums have corrupted

sentencing and doubled the average sentence length.
Paul Hofer, Spring 2016, [Senior Policy Analyst, Sentencing Resource Counsel Project of the
Federal Public and Community Defenders., "After Ten Years Of Advisory Guidelines, And Thirty
Years Of Mandatory Minimums, Federal Sentencing Still Needs Reform", Toledo Law Review
https://heinonline.org/HOL/LandingPage?
handle=hein.journals/utol47&div=40&id=&page= //DMcD]
I. Introduction
FEDERAL sentencing is a tragic mess. Thirty years of conflicting legislative experiments
began with high hopes but resulted in mass incarceration . Ten years of Supreme Court tinkering
increased some forms of judicial discretion, but left
in place mandatory minimum statutes and advisory
guidelines that rarely give good advice. Guideline recommendations for many common
crimes were set by Congress instead of by the United States Sentencing Commission , either indirectly
through mandatory minimums or directly through specific statutory directives to the Commission. Significant sentencing
discretion remains with prosecutors, who use it for reasons outside the recognized purposes of
punishment. In 1984, Congress enacted the Sentencing Reform Act (SRA), which created the Sentencing Commission and
directed it to promulgate sentencing guidelines. The SRA contained procedures for guideline development that might have produced
fair and effective guidelines, but these were frequently overridden by Congress itself or were not fully implemented by the
Commission. The same year it enacted the SRA, Congress began passing mandatory minimums, which overrode the Guidelines,
distorted their development, and ultimately betrayed sentencing reform. Two years later, Congress enacted the Anti-Drug Abuse Act
of 1986 (the ADAA), which established many of the mandatory minimum penalties based on drug type and quantity that remain
operative today. [*650] As a result of these Acts and others, the
Guidelines for most crimes require prison
terms much longer than judges had previously imposed . The average prison time served by
federal defendants more than doubled after the Guidelines became effective. The rate of probation
plummeted to less than half the rate in 1987. The federal prison population grew 400%. Today, the Federal Bureau of Prisons is the
largest prison system in America, and the United States has the highest incarceration rate in the world. In the case of United States
v. Booker, the Supreme Court returned some sentencing discretion to judges. The Court held that the Guidelines violated the
Sixth Amendment right to jury trial because judges, not juries, found facts that increased the guideline range. To remedy the
problem, the Court held that judges could continue to find the facts needed to determine the guideline range, but should
treat the Guidelines as "effectively advisory." Judges are required to calculate and consider the
Guidelines, but may also take account of mitigating factors the Guidelines deem irrelevant . And
judges may reject guideline recommendations that are more severe than necessary to achieve the purposes of sentencing. Booker
did not, however, establish the balance needed in federal sentencing . Mandatory minimums
remain in effect and continue to override judicial discretion, and the guidelines recommendations, in thousands of cases a year.
Many guidelines continue to be distorted by mandatory minimum statutes , most notably for drug
trafficking offenses, where the guidelines recommendations remain linked to the drug quantity
thresholds in the statutes. Other guidelines recommendations reflect congressional directives, or
the Commission's own unsound decisions. The advisory guidelines exert a gravitational
pull even when they recommend sentences far greater than necessary. Sentencing reform was a
good idea, but the federal system has yet to try it.

Mandatory minimums uniquely drive up the guideline

recommendations.
Paul Hofer, Spring 2016, [Senior Policy Analyst, Sentencing Resource Counsel Project of the
Federal Public and Community Defenders., "After Ten Years Of Advisory Guidelines, And Thirty
Years Of Mandatory Minimums, Federal Sentencing Still Needs Reform", Toledo Law Review
https://heinonline.org/HOL/LandingPage?
handle=hein.journals/utol47&div=40&id=&page= //DMcD]
V. Evaluating the System Before and After Booker Neither the Commission nor the appellate courts embraced
the potential to critically scrutinize and rationalize federal sentencing that Booker seemed to
offer. But sentencing judges did disregard the Guidelines' recommendations in a larger share of cases. This raises both hopes and
concerns. Do sentences better track the purposes of sentencing? Has sentencing disparity increased? Are the powers of judges,
defendants, and prosecutors in better balance? Answering these questions requires comparing the current system with the system
prior to Booker, not to some imaginary ideal. And it requires careful analysis of the many sources of sentencing disparity and
institutional unbalance. A. Guidelines and Mandatory Minimums Remain
the Focus at Sentencing Booker did
nothing to relax the statutory penalties. Judges remain bound by the mandatory minimums and
can sentence below them only in limited circumstances prescribed by statute. Prosecutors remain in control of the major mechanism
for relief - motions to waive the statutory minimum to reward defendants' assistance in the prosecution of other persons. And
prosecutors remain in control of the most important decision of all: whether to charge
statutes carrying mandatory minimums in the first place . Policy changes by Attorney General Holder in the
Obama administration may turn out to have as much effect on sentence severity and prosecutor-created disparity as did Booker. The
mandatory minimums continue to be reflected in the Guidelines themselves, as described above, and
when applicable in a particular case they continue to "trump" any inconsistent guideline
recommendation. Regarding the Guidelines themselves, post-Booker jurisprudence is clear that the
sentencing judge "should begin all sentencing proceedings by correctly calculating the applicable
Guidelines range." They are the "starting point and initial benchmark." This means that as a practical matter,
the Guidelines have [*679] substantial gravitational pull. The guideline range acts as a
psychological "anchor" against which alternative sentences are measured. The statutes' and
Guidelines' continuing influence is reflected in average sentence lengths in the years following
Booker. As shown by the lower line in Figure 2, average sentences in the overall caseload actually increased for over two years
after Booker until reversing course in FY 2008. This might appear puzzling given that rates of sentences below the guideline range
increased after Booker. The explanation can be found in the upper line, which tracks the average minimum of the guideline range,
including any statutory trumps. It shows that until the last two years, the Guidelines have driven both upward and downward trends.
Figure 2: Mean Sentence Length and Guideline Minimum FY1992 - FY2015 [*680] The increase in sentence length in the first two
years after Booker was a result of increased guideline ranges for several types of crimes, particularly economic and sex crimes. The
subsequent decrease is the result of amendments to the drug guidelines, starting with crack cocaine, and of lower guideline
calculations in immigration cases. For most of the post-Booker era, changes in the length of sentences
imposed have mirrored changes in the length of sentences recommended by the Guidelines . Only
in the most recent year have Guidelines' recommendations and sentences diverged. B. Booker Has Not Ended
Excessive Severity Figure 2 also makes clear that Booker has not radically reduced prison terms in the
federal courts. Average sentences are only marginally lower in 2015 than they were in the years just prior to the PROTECT Act.
Data from the Commission's Fifteen Year Review show that average prison time actually served by federal
offenders, after allowing for parole in the pre-guidelines era and good time reductions today, more than doubled after
implementation of the Guidelines, from 26 months in 1986 to 59 months in 1992. Today's average sentence of 46
months translates into an estimated time served of 41 months, meaning that average prison time served remains far
higher than the pre-Guidelines level. The SRA directed the Commission to "minimize the likelihood that the Federal
prison population will exceed the capacity of the Federal prisons." But the Bureau of Prisons has been over its rated
capacity throughout the guidelines era, including after Booker . One of the reasons for the
increase in prison population under the Guidelines has been the increased portion of offenders
sentenced to imprisonment, rather than probation or alternative sanctions, such as home or community
confinement. [*681] Figure 3: Percentage of Defendants Receiving Various Types of Sentences All Felonies FY1984 - FY2015 Figure
3 displays data from the Fifteen Year Review and recent Sourcebooks showing the percentages of offenders receiving imprisonment,
probation, or alternative sanctions from fiscal years 1985 through 2015. In the first four years of guidelines implementation, the use
of simple probation was cut in half. In 1987, 29% of offenders received sentences of probation, while in 1991 only 14% received
simple probation. Remarkably, the portion of offenders receiving probation has continued to fall after
Booker. In 2015, only 7.2% received simple probation. C. Advisory Guidelines Highlight Longstanding Problems with Mandatory
Minimums and Congressional Directives and Create Some New Ones The move to advisory guidelines has
highlighted conflicts between mandatory minimums and the sentencing system envisioned by
the SRA and by the Supreme Court in its post-Booker decisions . The credibility of the Guidelines
depends on their recommending sentences that comply with the factors at 18 U.S.C. § 3553 (a).
When judges sentence within that range, they generally rely "upon the Commission's own
reasoning" to explain and justify the sentence, on the theory that the Commission designed the
guideline to achieve those same factors, using the procedures for research and consultation
outlined in the [*682] SRA. But when a guideline is based on a mandatory minimum or a
congressional directive, the real explanation is that Congress set a policy , which the Commission
incorporated into the Guidelines. Mandatory minimums and other congressional micro-
management thus undermine the basis for compliance with the Guidelines . Two of the most
frequently applied guidelines - drug trafficking, § 2D1.1, and possession, receipt or distribution of child pornography, §
2G2.2 - were linked to mandatory minimum penalties that apply to a large portion of offenders sentenced under
them. In 2015, just 34.9% of defendants falling under § 2D1.1 and 28.4% under § 2G2.2 were sentenced within the guideline range.
Mandatory minimums and specific statutory directives also impede the Commission's ability to
receive and take account of feedback from judges, and to use empirical research to make its
guidelines persuasive. As Justice Breyer has described, mandatory minimums thwart the evolution of the
Guidelines: "Statutory mandatory sentences prevent the Commission from carrying out its basic,
congressionally mandated task: the development, in part through research, of a rational, coherent set of punishments.
Mandatory minimums will sometimes make it impossible for the Commission to adjust
sentences in light of factors that its research shows to be directly relevant … They skew the entire
set of criminal punishments, … and their existence then prevents the Commission from … writing a
sentence that makes sense." The Commission's incorporation of mandatory minimums into
the Guidelines ratcheted sentences far above sentences that would best comply with 18 U.S.C. §
3553(a). For example, in drug cases, incorporation of the quantity thresholds from the statutes into the Drug Quantity Table meant
that many low-level mules or street dealers receive guideline recommendations that are more appropriate for kingpins. In
addition, statutory minimums create sentencing floors that prevent the few mitigating
adjustments in the Guidelines from operating as the Commission intended and prevent judges
from considering additional mitigating factors that might lower the sentence below the range .
This problem of statutory override affects thousands of cases a year and is even worse under the advisory guidelines than it was
earlier in the guidelines era. In its 1991 report, the Commission found that the statutory minimum was greater than the bottom of
the guideline range in 22.4% of cases with a conviction carrying a mandatory penalty, and that in 5.8% of cases, the [*683]
In the 13,814
mandatory minimum was greater than the top of the guideline range. In FY2015, the problem was far worse.
cases with a conviction under a statute carrying a mandatory minimum , the minimum was
higher than the bottom of the guideline range in 45.1% of cases , and was higher than
the top of the guideline range in 32.4% of cases. Many of these offenders will qualify for a waiver of the minimum,
due to the "safety valve" or because they assist in the prosecution of other persons. But 1,718 defendants, or 38.3% of those whose
statutory minimum is greater than the maximum of the guideline range, do not receive such a waiver, meaning that judges could not
sentence the defendant even within the range recommended by the Guidelines. Mandatory
minimums cause a large
number of sentences to be outside the guideline range, and thus disparate by the Commission's
own definition.

Mandatory minimum sentences prevent judges from exercising

power and increases sentences
VanDinter 17 (Wes VanDinter, Tyler Morning Telegraph, May 15, 2017. “Editorial:
Mandatory minimums are still a bad idea” https://tylerpaper.com/opinion/editorial-
mandatory-minimums-are-still-a-bad-idea/article_00788165-ba67-5857-955e-
9ae087e5f54f.html)
Attorney General Jeff Sessions is wrong. Mandatory minimum sentences are a bad idea
and they undermine justice by throwing a one-size-fits-all solution at a problem with an infinity
of variables. They prevent judges from doing their jobs -administering justice that fits
the crime - and they subvert local control. “In a memo to staff, Attorney General Jeff
Sessions ordered federal prosecutors to ‘charge and pursue the most serious, readily provable
offense’ - a move that marks a significant reversal of Obama-era policies on low-level drug
crimes,” NPR reported last week. “The two-page memo, which was publicly released Friday, lays
out a policy of strict enforcement that rolls back the comparatively lenient stance established by
Eric Holder, one of Sessions’ predecessors under President Barack Obama.” It sounds as if
Sessions wants the government to get tough on crime. And that’s good, as far as it goes. But
mandatory minimums are well-intentioned - yet ultimately misguided - efforts by
legislators to crack down on crime. First, one size never fits all. Passing mandatory
minimum legislation makes for good politics, but not good policy. Every criminal case is
different, and judges should have the power to tailor their rulings to each specific
case and each specific defendant. We must not bind the judges’ hands with mandatory
minimums or a three-strikes rule. “The Armed Career Criminal Act and the Anti-Drug Abuse Act
of 1986 are the two principal modern federal statutes requiring mandatory minimum terms of
imprisonment - but they are by no means the only ones,” explains the Heritage Foundation.
“Mandatory minimums have proliferated and have increased in severity. Since 1991, the number
of mandatory minimums has more than doubled. Entirely new types of offenses have become
subject to mandatory minimums, from child pornography to identity theft. During that period,
the percentage of offenders convicted of violating a statute carrying a mandatory minimum of 10
years increased from 34.4 percent to 40.7 percent.” This has led to increasing examples of
injustice. “A financially desperate single mother of four with no criminal history was paid $100
by a complete stranger to mail a package that, unbeknownst to her, contained 232 grams of
crack cocaine,” Heritage notes. “For that act alone, she received a sentence of 10 years in prison
even though the sentencing judge felt that this punishment was completely unjust and
irrational.” Mandatory minimums don’t work.

Mandatory minimums make guidelines impossible – ending is

key.
Paul Hofer, Spring 2016, [Senior Policy Analyst, Sentencing Resource Counsel Project of the
Federal Public and Community Defenders., "After Ten Years Of Advisory Guidelines, And Thirty
Years Of Mandatory Minimums, Federal Sentencing Still Needs Reform", Toledo Law Review
https://heinonline.org/HOL/LandingPage?
handle=hein.journals/utol47&div=40&id=&page= //DMcD]
VI. Mandatory Minimums Ruin Sentencing Reform
As the Sentencing Commission noted in 1991, mandatory minimum statutes and sentencing
guidelines are "policies in conflict." The problems the mandatory minimums create are even more obvious now that the
Guidelines are advisory. Federal sentencing will never achieve the promise of the SRA , or the
renewed promise of Booker, as long as mandatory minimums remain on the books . [*690] A.
Mandatory Minimums Have a Corrosive Effect on the Entire Criminal Justice Process In addition to
their contribution to sentencing disparities, mandatory minimums are the biggest factor creating an
unfair and unbalanced system. They vest prosecutors with enormous power to coerce
defendants into foregoing important constitutional rights. These rights are not only crucial to
ensure fair procedures but also central to the truth-seeking function of the criminal justice
system. Because they deprive judges of any ability to check prosecutorial decisions ,
mandatory minimum penalty statutes are the most susceptible to abuse. Prosecutors file, or
threaten to file, charges with harsh mandatory minimum sentences not because they result in
appropriate sentences, but for the purpose of extracting guilty pleas, cooperation, appeal waivers,
and various other concessions. Indeed, the Department has sought more and harsher mandatory
sentencing laws, "not because the enhancements are inherently just or required for adequate deterrence, but precisely
because higher sentences provide increased plea bargaining leverage ." Federal trial and acquittal
rates are at historic lows because sentencing power in the hands of prosecutors make it too
costly to go to trial, even for those with an excellent defense. When the difference between the sentence
after trial and the sentence after plea is as high as it is in the federal system, and prosecutors have a monopoly on
granting the discount, the system produces less reliable results. Plea bargaining pressures
even innocent defendants to plead guilty to avoid the risk of high statutory sentences. And
those who do take their case to trial and lose receive longer sentences than even Congress or the
prosecutor might think [*691] appropriate, because the longer sentences exist on the books largely
for bargaining purposes. Mandatory minimums also threaten the truth-seeking function of the
criminal justice system by creating powerful incentives for informants and cooperators to
provide exaggerated and false information - information that in most cases will never be tested because the
risk of challenging it is too great. The Innocence Project has found that in "more than 15% of cases of wrongful conviction overturned
by DNA testing, an informant or jailhouse snitch testified against the defendant. Often, statements from people with
incentives to testify … are the central evidence in convicting an innocent person ." The risk of false
and embellished testimony is heightened in cases involving mandatory minimums because the
penalties are so severe. Although prosecutors often claim, and may well believe, that mandatory minimums
are essential to their ability to obtain cooperation from defendants, there is no sound evidence that
this is so. Assessing the effects of mandatory minimums on cooperation by examining statistics is very difficult because the
effects can pull in opposite directions and affect different offenders in different ways. We do know from Commission statistics that
cooperation is routinely obtained in cases involving types of offenses that do not carry
mandatory minimums. B. Mandatory Minimums Are Incompatible with Advisory Guidelines Mandatory minimum
statutes cannot be reconciled with sentencing guidelines , whether advisory or mandatory. The problems begin
with the way mandatory penalties are enacted. The principle of "just deserts" requires that the severity of the sentence should be
proportionate to "the nature and seriousness of the harm … and the offender's degree of culpability in committing the crime, in
particular, his degree of intent (mens rea), motives, role in the offense, and mental illness or other diminished capacity." For judges
to be able to impose the full range of sentences needed to comply with this principle, the statutory maximum must be sufficiently
severe for the most serious offense that might arise under the broad terms of a statute. Conversely, the minimum punishment must
be sufficiently low for the least harmful offense that might arise under a statute, committed by the least culpable and least dangerous
offender. Mandatory minimum statutory penalties, however, are not set with the least serious offenses in mind. The penalties are
attached to only one or two facts, such as drug type and quantity, while the details of the offenses that will be [*692] subject to the
penalties are left to the imagination. The generic crime categories to which the penalties are attached -
whether "child pornography" or "drug trafficking" - evoke stereotypes and misconceptions and extreme
examples rather than the most mitigated cases. The result is that the penalties are applicable to many far less
serious offenses than what legislators had in mind when setting them. Mandatory minimums are often used in a
partisan competition to prove who is the "toughest" on a particular type of offense or offender .
Thus, most mandatory minimums are set with the most serious offenses in mind - precisely the
opposite of what would be required to establish a rational punishment scheme designed
to sentence proportionately. Apart from overall severity, integrating mandatory minimums with
guidelines is impossible due to the simplistic way the statutes characterize different crimes . By
requiring a minimum punishment for any crime involving just one fact, the statutes give disproportionate weight to
that fact while ignoring others equally or more important . In theory, guidelines can take into account many
considerations and weigh each according to its importance compared to the others. In addition, particularly when they are advisory,
guidelines recognize that no set of rules can anticipate every relevant fact or how the real circumstances may combine to affect the
appropriate sentence. Mandatory minimums , in contrast, assume that every single defendant whose crime involves that one fact
deserves at least the minimum punishment. For all of these reasons, any
hope that existing mandatory minimums
might "work together" with a guidelines system is unfounded.

Only complete overhaul of guidelines and mandatory minimums

solves.
Paul Hofer, Spring 2016, [Senior Policy Analyst, Sentencing Resource Counsel Project of the
Federal Public and Community Defenders., "After Ten Years Of Advisory Guidelines, And Thirty
Years Of Mandatory Minimums, Federal Sentencing Still Needs Reform", Toledo Law Review
https://heinonline.org/HOL/LandingPage?
handle=hein.journals/utol47&div=40&id=&page= //DMcD]
C. The Guidelines Still Give Bad Advice
The guidelinerange remains the "starting point and the initial benchmark" for all sentencing
proceedings. Yet for most defendants sentenced in federal [*693] court, the applicable guideline range does not
reflect the expertise the authors of the SRA expected it would . Booker empowered judges to critically evaluate
the Guidelines' recommendations, but many sentencing judges continue to be anchored to the Guidelines'
distorted starting point, and reluctant to engage in the critical policy analyses needed to evaluate
the Guidelines' fairness and effectiveness. Appellate courts have not encouraged, let along required, this analysis. Ten
years after Booker, the opportunity to use increased judicial discretion to rationalize sentencing may be slipping away. But Booker
alone was never enough. As
long as the Commission and the Guidelines remain bound to statutory
directives and mandatory minimums, the federal system can never function as intended. At this
writing, limited reform of mandatory minimums is stalled before Congress , but even it is
relatively little, and far too late. What is needed is total repeal of mandatory minimum
statutory penalties and specific statutory directives that have shackled the Commission from the
time of the SRA. Sentencing reform is still a good idea. Let's hope the federal system tries it sometime soon.
Terminals – Mandatory Minimums
 Mandatory Minimums Bad – Excessive
Mandatory minimums deny defendants the case by case analysis
they’re entitled to, leading to excessive sentencing
Bennett 12 (Judge Mark Bennett, The Nation, Oct 24, 2012 (“How Mandatory Minimums
Forced Me to Send More Than 1,000 Nonviolent Drug Offenders to Federal Prison,”
http://www.thenation.com/article/how-mandatory-minimums-forced-me-send-more-1000-
nonviolent-drug-offenders-federal-pri/ )
Growing up in blue collar Circle Pines, Minnesota, in the 1950s, raised by parents from the
“Greatest Generation,” I dreamed only of becoming a civil rights lawyer. My passion for justice
was hard-wired into my DNA. Never could I have imagined that by the end of my 50s, after
nineteen years as one of 678 federal district court judges in the nation, I would have sent 1,092
of my fellow citizens to federal prison for mandatory minimum sentences ranging from sixty
months to life without the possibility of release. The majority of these women, men and young
adults are nonviolent drug addicts. Methamphetamine is their drug of choice. Crack cocaine is a
distant second. Drug kingpins? Oh yes, I’ve sentenced them, too. But I can count them on one
hand. While I’m extremely proud of my father’s service in World War II, I am greatly conflicted
about my role in the “war on drugs.” Crack defendants are almost always poor African-
Americans. Meth defendants are generally lower-income whites. More than 80 percent of the
4,546 meth defendants sentenced in federal courts in 2010 received a mandatory minimum
sentence. These small-time addicts are apprehended not through high-tech wiretaps or
sophisticated undercover stings but by common traffic stops for things like nonfunctioning
taillights. Or they’re caught in a search of the logs at a local Walmart to see who is buying
unusually large amounts of nonprescription cold medicine. They are the low-hanging fruit of the
drug war. Other than their crippling meth addiction, they are very much like the folks I grew up
with. Virtually all are charged with federal drug trafficking conspiracies—which sounds ominous
but is based on something as simple as two people agreeing to purchase pseudoephedrine and
cook it into meth. They don’t even have to succeed. I recently sentenced a group of more than
twenty defendants on meth trafficking conspiracy charges. All of them pled guilty. Eighteen
were “pill smurfers,” as federal prosecutors put it, meaning their role amounted to regularly
buying and delivering cold medicine to meth cookers in exchange for very small, low-grade
quantities to feed their severe addictions. Most were unemployed or underemployed. Several
were single mothers. They did not sell or directly distribute meth; there were no hoards of cash,
guns or countersurveillance equipment. Yet all of them faced mandatory minimum sentences of
sixty or 120 months. One meth-addicted mother faced a 240-month sentence because a prior
meth conviction in county court doubled her mandatory minimum. She will likely serve all
twenty years; in the federal system, there is no parole, and one serves an entire sentence minus a
maximum of a 15 percent reduction rewarded for “good time.” Several years ago, I started
visiting inmates I had sentenced in prison. It is deeply inspiring to see the positive changes most
have made. Some definitely needed the wake-up call of a prison cell, but very few need more
than two or three years behind bars. These men and women need intensive drug treatment, and
most of the inmates I visit are working hard to turn their lives around. They are shocked—and
glad—to see me, and it’s important to them that people outside prison care about their progress.
For far too many, I am their only visitor. If lengthy mandatory minimum sentences for
nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no
evidence that they do. I have seen how they leave hundreds of thousands of young children
parentless and thousands of aging, infirm and dying parents childless. They destroy families and
mightily fuel the cycle of poverty and addiction. In fact, I have been at this so long, I am now
sentencing the grown children of people I long ago sent to prison.
 Mandatory Minimums Bad – Racial
Disparities
Mandatory minimums drive mass incarceration and
disproportionately affect Black Americans
Montz 15 (Rob Montz; 9-3-2015; “How mandatory minimums helped drive mass
incarceration“; Vox; https://www.vox.com/2015/9/3/9254545/mandatory-minimums-mass-
incarceration; Accessed 7-6-2020)
Mandatory minimums were supposed to help crack down on drug crime in the '80s. But they've
had huge unintended consequences: These statutes dictate specific prison terms for certain
crimes deemed uniquely harmful to society. By design, they bar judges from using discretion
during sentencing. Minimums have been around since America’s founding, but the most
consequential ones were erected in the 1980s in response to the ravages of the inner-city drug
trade. The idea was to establish uniformly stringent punishments to both deter drug offenses
and lock away kingpins. And a central feature of this framework was the now-infamous
minimum sentencing disparity between crack and powder cocaine violations. In the US, crack
consumption is tied to income, and income is tied to race. So this arbitrary sentencing disparity
has forced courts to punish black Americans much more harshly than white Americans for
basically the exact same crime. As a result, tens of thousands of young men, most of whom are
black, have been snatched up by law enforcement on low-level drug offenses and thrown into
prison for mandatory terms that make a mockery of any sense of proportionality.
 Mandatory Minimums Bad – Resource
Trade-Off
Mandatory minimums tradeoff resources that could be placed into
anti-crime programs.
Knafo 13 (Saki Knafo, Huffington Post, July 17, 2013. “Mandatory Minimum
Sentencing Wastes Money And Resources, Say Former Federal Prosecutors and Judges”
https://www.huffingtonpost.com/2013/07/17/mandatory-minimum-
sentencing_n_3612081.html)
In a letter sent to Capitol Hill on Thursday, 53 former judges and prosecutors endorsed
the Justice Safety Valve Act of 2013, a bill that would allow judges to ignore the sentencing
guidelines in cases where the minimum is deemed unjust and unnecessary to protect public
safety. In the letter, they argued that “the money wasted on keeping nonviolent and
nonthreatening offenders locked behind bars for years longer than necessary
could be better spent on anti-crime programs that actually will enhance public
safety. “This is especially true in the current budget climate,” the letter says. “We
think public safety will be improved if limited government resources are targeted
on prosecuting and incarcerating violent and repeat criminals.” The bill has garnered
support from a number of prominent conservatives, including columnist George Will and
Americans for Tax Reform president Grover Norquist. The former prosecutors and judges who
sent the letter have “helped to make our country safer by prosecuting and sentencing dangerous
criminals,” Julie Stewart, the president of Families Against Mandatory Minimums, said in a
statement. “They know that to improve public safety we must focus our scarce anti-crime
resources on violent and repeat offenders.” Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.)
introduced the legislation in the Senate; Reps. Bobby Scott (D-Va.) and Thomas Massie (R-Ky.)
introduced a companion bill in the House. Last week, the United States Department of
Justice warned that rising prison expenditures have drained much-needed
resources from prosecutors and law-enforcement agencies. In a letter to the U.S.
Sentencing Commission, DOJ Office of Policy and Legislation director Jonathan J. Wroblewski
urged the federal government to provide alternative forms of sentencing to “non violent, less
serious offenders.”
 Terminals – Mass Incarceration
Hyper-incarceration constitutes gross structural violence – compromising the
health of communities of color
Karandinos and Bourgois 19. George Karandinos is an MD/PhD student in
anthropology at Harvard University. He is currently co-authoring a book, Cornered
(forthcoming from Princeton University Press) based on fieldwork in the open-air narcotics
markets of inner-city Philadelphia. Philippe Bourgois is professor of anthropology and director
of the Center for Social Medicine and Humanities in the Department of Psychiatry at the
University of California at Los Angeles. 1-17-19, "The Structural Violence of Hyperincarceration
— A 44-Year-Old Man with Back Pain," New England Journal of Medicine,
https://www.nejm.org/doi/full/10.1056/NEJMp1811542 - AM
Mr. M., an uninsured, 44-year-old Puerto Rican man with chronic back pain, diabetes, hypertension,
asthma, and a history of incarceration presented to a free clinic with acute exacerbation of back pain triggered by carrying heavy
loads of trash at work. A premedical student acting as his health care advocate accompanied him. Mr. M. was hesitant to seek health
care because he had no health insurance and mistrusted institutions as a result of his extensive negative
experiences with the criminal justice system. He was visibly nervous in the unfamiliar
institutional environment of the clinic, which had no Latino staff and was located in a middle-class neighborhood far from his
home. The advocate reassured him in Spanish that the doctor was trustworthy and urged him to speak frankly about his health problems, including his
challenges in obtaining medication. Embarrassed, Mr. M. reported that during recent back-pain exacerbations he occasionally resorted to purchasing
one or two 5-mg oxycodone tablets in the open-air drug market operating on the inner-city block where he lived. The physician gave Mr. M. ibuprofen
and a prescription for five 5-mg oxycodone tablets, enrolled him in the clinic’s diabetes and hypertension programs, and scheduled a follow-up visit.
Mr. M. never filled the prescription and did not return to the clinic , despite repeated entreaties by the advocate
both in person and over the phone. Mr. M.’s pain had eased, and he claimed to be managing his diabetes,
hypertension, and asthma by splitting medication with insured family members. To stretch their supply,
they rationed their doses for use only on the days when they “felt symptoms.” Finally, 8 months later,
Mr. M. admitted that he had not dared fill his prescription or return to the clinic
for fear of being rearrested after admitting to the doctor that he had purchased
oxycodone illegally. Background Mr. M. — whom we met while conducting anthropologic fieldwork on HIV, violence, and substance
abuse in a poor, segregated Puerto Rican neighborhood in Philadelphia1 — had sold drugs as an adolescent before being incarcerated for 10 years for
When
manslaughter. In prison, he witnessed rape, fought off predatory inmates with homemade shanks, survived a riot, and was beaten by guards.
he was treated for injuries in the prison clinic, he perceived the medical staff as hostile and
aligned with prison authorities. In 2000, Mr. M. was released with 5 years of parole. Determined to stay free, he stopped all
substance use and resisted temptations to support his family by reentering his neighborhood’s narcotics trade. He obtained a part-time job cleaning
office buildings downtown for minimum wage to obtain the tax-declared paycheck required by his parole officer. Mr. M.’s work schedule, however,
occasionally made him a few minutes late for his appointments, and his parole officer repeatedly threatened to reincarcerate him for the minor
administrative infraction of tardiness despite Mr. M.’s otherwise conscientious legal adherence to the terms of his supervision. A 1972 U.S. Supreme
Court case, Morrissey v. Brewer, reduced the rights of parolees and granted parole officers the discretionary authority to reincarcerate supervisees on
such technicalities without a trial or access to legal counsel. For 4 years, Mr. M. qualified for health benefits through a second job as an industrial
welder, until he injured his back moving equipment and was subsequently laid off as part of Philadelphia’s ongoing industrial downsizing. His criminal
record disqualified him from better-paid service-sector employment, and his part-time income disqualified him from Medicaid because Pennsylvania
initially declined to expand eligibility under the Affordable Care Act (ACA). Social Analysis Concept: Structural Violence and Hyperincarceration
Structural violence is the infliction of physical harm by social, political, institutional, and economic systems
that produce social inequality and expose specific populations to higher risks for disease, injury,
and death (see box). The concept, as defined by Farmer et al., draws attention to large-scale social forces such
as poverty, racism, gender inequality, and harmful public policies that “often determine who
falls ill and who has access to care.”2 In medicine, the term “violence” denotes individual actions that cause trauma or injury;
implicit in the notion of “structural violence” is a parallel between such immediately visible, direct, interpersonal violence and the ways in which social,
political, institutional, and economic structures cause damage by producing unequal exposure to risk and disparities in access to resources and care.
Because this violence results from durable systems of inequality rather than from isolated
actions of individuals, it manifests in statistically observable patterns of harm to identifiable
population groups that link their structural vulnerability to death and disability. 3 STRUCTURAL
VIOLENCE Structural violence is the imposition of unequal risk for disease, injury, and death by social, political, institutional, and economic
configurations and policies on identifiable population groups. This violence is structural because it results from
durable systemic inequality produced by large-scale social forces, including racism, gender
inequality, poverty, and harmful public policies rather than from isolated individual actions or
serendipity. The disproportionate incarceration of African Americans, Latinos, and
Native Americans represents a form of structural violence that social scientists call
“hyperincarceration.”4 Overall, the United States imprisons greater numbers of people and a higher
proportion of its population than any other country. An estimated 70 million U.S. citizens have criminal records as a
result of the phenomenon often referred to as “mass incarceration.” The term hyperincarceration highlights more
precisely that punitive criminal justice policies disproportionately target the poor and particular
racial and ethnic minorities. For example, in Pennsylvania, African Americans, Latinos, and Native
Americans have incarceration rates that are, respectively, nine times, five times, and three times
that of whites. A growing epidemiologic literature documents negative health outcomes among
formerly incarcerated population s, suggesting that hyperincarceration may cause health
disparities. Nosrati et al., for example, calculate that between 2001 and 2014, deindustrialization and incarceration together
reduced the lifespans of poor people in the United States by 2.5 years. 5 Incarceration harmed
Mr. M.’s health directly and also alienated him from health care providers. Multiple additional
manifestations of structural violence further undermined his access to health care: declining industrial labor markets in the Rust Belt, prohibitions
against hiring people with felony records, high dropout rates at inner-city high schools, and expensive health insurance.

Mass incarceration and disparities in sentencing prop up economic and social

inequality in society
Western and Petit 10. Bruce Western is an Australian-born American sociologist and a
professor of sociology at Columbia University. Becky Pettit is an American sociologist with
expertise in demography. She has been a professor of sociology at the University of Texas-
Austin, as well as an affiliate at its Population Research Center, since 2014. , Summer 2010,
"Incarceration & Social Inequality," American Academy of Arts & Sciences,
https://www.amacad.org/publication/incarceration-social-inequality - AM
In the last few decades, the institutional contours of American social inequality have been transformed
by the rapid growth in the prison and jail population. 1 America’s prisons and jails have
produced a new social group, a group of social outcasts who are joined by the shared
experience of incarceration, crime, poverty, racial minority, and low education . As an outcast group, the
men and women in our penal institutions have little access to the social mobility available to the
mainstream. Social and economic disadvantage, crystallizing in penal confinement, is sustained
over the life course and transmitted from one generation to the next . This is a profound
institutionalized inequality that has renewed race and class disadvantage. Yet the scale
and empirical details tell a story that is largely unknown. Though the rate of incarceration is historically high, perhaps the most important
social fact is the inequality in penal confinement. This inequality produces extraordinary rates of
incarceration among young African American men with no more than a high school education. For these young men, born
since the mid-1970s, serving time in prison has become a normal life event. The influence of the penal system on social and
economic disadvantage can be seen in the economic and family lives of the formerly
incarcerated. The social inequality produced by mass incarceration is sizable and
enduring for three main reasons: it is invisible, it is cumulative, and it is intergenerational. The
inequality is invisible in the sense that institutionalized populations commonly lie outside our
official accounts of economic well-being. Prisoners, though drawn from the lowest rungs in society, appear in no measures of
poverty or unemployment. As a result, the full extent of the disadvantage of groups with high
incarceration rates is underestimated. The inequality is cumulative because the social and
economic penalties that flow from incarceration are accrued by those who already have the
weakest economic opportunities. Mass incarceration thus deepens disadvantage and
forecloses mobility for the most marginal in society. Finally, carceral inequalities are
intergenerational, affecting not just those who go to prison and jail but their families and
children, too. The scale of incarceration is measured by a rate that records the fraction of the population in prison or jail on an average day.
From 1980 to 2008, the U.S. incarceration rate climbed from 221 to 762 per 100,000. In the previous five decades, from the 1920s through the mid-
1970s, the scale of punishment in America had been stable at around 100 per 100,000. Though the incarceration rate is now nearly eight times its
historic average, the scale of punishment today gains its social force from its unequal distribution. Like criminal activity, prisons and jails are
overwhelmingly a male affair. Men account for 90 percent of the prison population and a similar proportion of those in local jails. The incarceration
rate has been growing faster among women in recent decades, but the social impact of mass incarceration lies in the gross asymmetry of community
and family attachment. Women remain in their communities raising children, while men confront the possibility of separation through incarceration.2
Age intensifies these effects: incarceration rates are highest for those in their twenties and early thirties. These are key years in the life course, when
most men are establishing a pathway through adulthood by leaving school, getting a job, and starting a family. These years of early adulthood are
important not just for a man’s life trajectory, but also for the family and children that he helps support. Age and sex are the staples of demographic
analysis, and the relative youth of the largely male incarcerated population foreshadows much about the effects of mass incarceration. Still, it is the
profound race and class disparities in incarceration that produce the new class of social outsiders. African Americans have always been incarcerated at
higher rates than whites, at least since statistics were available from the late nineteenth century. The extent of racial disparity, however, has varied
greatly over the past century, following a roughly inverse relationship to the slow incorporation of African Americans as full citizens in American
society. In the late nineteenth century, U.S. Census data show that the incarceration rate among African Americans was roughly twice that of whites.
The demographic erosion of Jim Crow through the migration of Southern African Americans to the North increased racial disparity in incarceration
through the first half of the twentieth century. (Racial disparities in incarceration have always been higher in the North than the South.) By the late
1960s, at the zenith of civil rights activism, the racial disparity had climbed to its contemporary level, leaving African Americans seven times more likely
to be in prison or jail than whites. Class inequalities in incarceration are reflected in the very low educational level of those in prison and jail. The
legitimate labor market opportunities for men with no more than a high school education have deteriorated as the prison population has grown, and
prisoners themselves are drawn overwhelmingly from the least educated. State prisoners average just a tenth grade education, and about 70 percent
have no high school diploma.3 Disparities
of race, class, gender, and age have produced
extraordinary rates of incarceration among young African American men with little schooling. Figure 1 shows prison and
jail incarceration rates for men under age thirty-five in 1980, at the beginning of the prison boom, and in 2008, after three decades of rising
incarceration rates. The figure reports incarceration separately for whites, Latinos, and African Americans and separately for three levels of education.
Looking at men with a college education, we see that incarceration rates today have barely increased since 1980. Incarceration rates have increased
among African Americans and whites who have completed high school. Among young African American men with high school diplomas, about one in
ten is in prison or jail. Most of the growth in incarceration rates is concentrated at the very bottom, among young men with very low levels of education.
In 1980, around 10 percent of young African American men who dropped out of high school were in prison or jail. By 2008, this incarceration rate had
climbed to 37 percent, an astonishing level of institutionalization given that the average incarceration rate in the general population was 0.76 of 1
percent. Even among young white dropouts, the incarceration rate had grown remarkably, with around one in eight behind bars by 2008. The
significant growth of incarceration rates among the least educated reflects increasing class inequality in incarceration through the period of the prison
boom. These incarceration rates provide only a snapshot at a point in time. We can also examine the lifetime chance of incarceration – that is, the
chance that someone will go to prison at some point in his or her life. This cumulative risk of incarceration is important if serving time in prison confers
an enduring status that affects life chances after returning to free society. The lifetime risk of imprisonment describes how many people are at risk of
these diminished life chances. We calculated the cumulative chance of imprisonment for two birth cohorts, one born just after World War II, from 1945
to 1949, and another born from 1975 to 1979 (Table 1). For each cohort, we calculated the chances of imprisonment, not jail incarceration. Prisons are
the deep end of the criminal justice system, now incarcerating people for an average of twenty-eight months for a felony conviction. While there are
about ten million admissions to local jails each year – for those awaiting trial or serving short sentences – around seven hundred thousand prisoners
are now admitted annually to state and federal facilities. These cumulative chances of imprisonment are calculated up to age thirty-four. For most of
the population, this represents the lifetime likelihood of serving prison time. For the older postwar cohort who reached their mid-thirties at the end of
the 1970s, about one in ten African American men served time in prison. For the younger cohort born from 1975 to 1979, the lifetime risk of
imprisonment for African American men had increased to one in four. Prison time has become a normal life event for African American men who have
dropped out of high school. Fully 68 percent of these men born since the mid-1970s have prison records. The high rate of incarceration has redrawn the
pathway through young adulthood. The main sources of upward mobility for African American men – namely, military service and a college degree –
are significantly less common than a prison record. For the first generations growing up in the post–civil rights era, the prison now looms as a
significant institutional influence on life chances. The ubiquity of penal confinement in the lives of young African
American men with little schooling is historically novel, emerging only in the last decade. However, this new reality is
only half the story of understanding the significance of mass incarceration in America. The other half of the story concerns the
effects of incarceration on social and economic inequality. The inequalities produced by contemporary patterns of
incarceration have three characteristics: the inequalities associated with incarceration are invisible to our usual accounting of the economic well-being
of the population; the inequality is cumulative, deepening the disadvantage of the most marginal men in society; and finally, the inequality is
intergenerational, transmitting the penalties of a prison record from one generation to the next. Because
the characteristic
inequalities produced by the American prison boom are invisible, cumulative, and
intergenerational, they are extremely enduring, sustained over lifetimes and passed through
families. Invisible Inequality. The inequality created by incarceration is often invisible to the
mainstream of society because incarceration is concentrated and segregative . We have seen that steep racial
and class disparities in incarceration have produced a generation of social outliers whose collective experience is wholly different from the rest of
American society. The extreme concentration of incarceration rates is compounded by the
obviously segregative function of the penal system, which often relocates people to far-flung facilities distant
from their communities and families. As a result, people in prison and jail are disconnected from the
basic institutions – households and the labor market – that dominate our common understanding and
measurement of the population. The segregation and social concentration of incarceration thus help conceal its effects. This fact is
particularly important for public policy because in assessing the social and
economic well-being of the population, the incarcerated fraction is frequently
overlooked, and inequality is underestimated as a result. The idea of invisible inequality is illustrated by
considering employment rates as they are conventionally measured by the Current Population Survey, the large monthly labor force survey conducted
by the Census Bureau. For groups that are weakly attached to the labor market, like young men with little education, economic status is often measured
by the employment-to-population ratio. This figure, more expansive than the unemployment rate, counts as jobless those who have dropped out of the
labor market altogether. The Current Population Survey is drawn on a sample of households, so those who are institutionalized are not included in the
survey-based description of the population. Figure 2 shows the employment-to-population ratio for African American men under age thirty-five who
have not completed high school. Conventional estimates of the employment rate show that by 2008, around 40 percent of African American male
dropouts were employed. These estimates, based on the household survey, fail to count that part of the population in prison or jail. Once prison and jail
inmates are included in the population count (and among the jobless), we see that employment among young African American men with little
schooling fell to around 25 percent by 2008. Indeed, by 2008 these men were more likely to be locked up than employed. Cumulative Inequality.
Serving time in prison or jail diminishes social and economic opportunities. As we have
seen, these diminished opportunities are found among those already most socioeconomically
disadvantaged. A burgeoning research literature examining the economic effects of incarceration finds that incarceration is
associated with reduced earnings and employment.4 We analyzed panel data from the National Longitudinal
Survey of Youth (NLSY), one of the few surveys that follows respondents over a long period of time and that interviews incarcerated respondents in
prison. The NLSY began in 1979, when its panel of respondents was aged fourteen to twenty-one; it completed its latest round of interviews in 2006.
Matching our population estimates of incarceration, one in five African American male respondents in the NLSY has been interviewed at some point
between 1979 and 2006 while incarcerated, compared to 5 percent of whites and 12 percent of Latino respondents. Analysis of the NLSY showed that
serving time in prison was associated with a 40 percent reduction in earnings and with reduced job tenure, reduced hourly wages, and higher
unemployment. The
negative effects of incarceration, even among men with very poor economic opportunities to begin with, are
related to the strong negative perceptions employers have of job seekers with criminal records.
Devah Pager’s experimental research has studied these employer perceptions by sending pairs of fake job seekers to apply for real jobs.5 In each pair,
one of the job applicants was randomly assigned a résumé indicating a criminal record (a parole officer is listed as a reference), and the “criminal”
applicant was instructed to check the box on the job application indicating he had a criminal record. A
criminal record was found to
reduce callbacks from prospective employers by around 50 percent, an effect that was larger for
African Americans than for whites. Incarceration may reduce economic opportunities
in several ways. The conditions of imprisonment may promote habits and behaviors that are
poorly suited to the routines of regular work. Time in prison means time out of the labor
force, depleting the work experience of the incarcerated compared to their
nonincarcerated counterparts. The stigma of a criminal conviction may also repel employers who prefer job applicants with
clean records. Pager’s audit study offers clear evidence for the negative effects of criminal stigma. Employers, fearing legal liability or even just
unreliability, are extremely reluctant to hire workers with criminal convictions. A simple picture of the poor economic opportunities of the formerly
incarcerated is given by the earnings mobility of men going to prison compared to other disadvantaged groups. The NLSY data can be used to study
earnings mobility over several decades. We calculated the chances that a poor man in the lowest fifth of the earnings distribution in 1986 would move
up and out of the lowest fifth by 2006. Among low-income men who are not incarcerated, nearly two-thirds are upwardly mobile by 2006 (Figure 3).
Another group in the NLSY has very low levels of cognitive ability, scoring in the bottom quintile of the Armed Forces Qualifying Test, the standardized
test used for military service. Among low-income men with low scores on the test, only 41 percent are upwardly mobile. Upward mobility is even less
common among low-income high school dropouts. Still, we observe the least mobility of all among men who were incarcerated at some point between
1986 and 2006. For these men, only one in four rises out of the bottom quintile of the earnings distribution. FIGURE 3 TWENTY-YEAR EARNINGS
MOBILITY AMONG MEN IN THE BOTTOM QUINTILE OF EARNINGS DISTRIBUTION IN 1986, NATIONAL LONGITUDINAL SURVEY OF YOUTH
(NLSY) MEN Figure 3 Twenty-Year Earnings Mobility among Men in the Bottom Quintile of Earnings Distribution in 1986, National Longitudinal
Survey of Youth (NLSY) Men AFQT stands for Armed Forces Qualifying Test. Source: Becky Pettit, Bryan Sykes, and Bruce Western, "Technical Report
on Revised Population Estimates and NLSY79 Analysis Tables for the Pew Public Safety and Mobility Project" (Harvard University, 2009).
Intergenerational Inequality. Finally,
the effects of the prison boom extend also to the families of those who
are incarcerated. Through the prism of research on poverty, scholars find that the family life of the
disadvantaged has become dramatically more complex and unstable over the last few decades.
Divorce and nonmarital births have contributed significantly to rising rates of single parenthood, and these changes in American family structure are
concentrated among low-income mothers. As a consequence, poor children regularly grow up, at least for a time, with a single mother and, at different
times, with a variety of adult males in their households. High
rates of parental incarceration likely add to
the instability of family life among poor children . Over half of all prisoners have children under the age of
eighteen, and about 45 percent of those parents were living with their children at the time they were sent to prison. About two-thirds of prisoners stay
in regular contact with their children either by phone, mail, or visitation.6 Ethnographer Megan Comfort paints a vivid picture of the effects of men’s
incarceration on the women and families in their lives. She quotes a prisoner at San Quentin State Prison in California: Nine times out of ten it’s the
woman [maintaining contact with prisoners]. Why? Because your homeboys, or your friends, if you’re in that lifestyle, most the time they’re gonna be
sittin’ right next to your ass in prison. . . . The males, they don’t really participate like a lot of females in the lives of the incarcerated. . . . They don’t deal
with it, like first of all they don’t like to bring to reality that you’re in prison; they don’t wanna think about that . . . Or some of ’em just don’t care. So the
male’s kinda like wiped out of there, so that puts all the burden on the woman.7 Partly because of the burdens of incarceration on women who are left to
raise families in free society, incarceration is strongly associated with divorce and separation. In addition to the forced separation of incarceration, the
post-release effects on economic opportunities leave formerly incarcerated parents less equipped to provide financially for their children .
New
research also shows that the children of incarcerated parents, particularly the boys, are at
greater risk of developmental delays and behavioral problems.8 Against this evidence for the negative effects of
incarceration, we should weigh the gains to public safety obtained by separating violent or otherwise
antisocial men from their children and partners. Domestic violence is much more
common among the formerly incarcerated compared to other disadvantaged men.
Survey data indicate that formerly incarcerated men are about four times more likely to assault
their domestic partners than men who have never been incarcerated. Though the relative risk is very high,
around 90 percent of the partners of formerly incarcerated report no domestic violence at all. The scale of the effects of parental incarceration on
children can be revealed simply by statistics showing the number of children with a parent in prison or jail. Among white children in 1980, only 0.4 of 1
percent had an incarcerated parent; by 2008 this figure had increased to 1.75 percent. Rates of parental incarceration are roughly double among Latino
children, with 3.5 percent of children having a parent locked up by 2008. Among African American children, 1.2 million, or about 11 percent, had a
parent incarcerated by 2008 (Figure 4). The spectacular growth in the American penal system over the last three decades was concentrated in a small
segment of the population, among young minority men with very low levels of education. By the early 2000s, prison time was a common life event for
These
this group, and today more than two-thirds of African American male dropouts are expected to serve time in state or federal prison.
demographic contours of mass imprisonment have created a new class of social outsiders whose
relationship to the state and society is wholly different from the rest of the population. Social
marginality is deepened by the inequalities produced by incarceration. Workers with prison
records experience significant declines in earnings and employment. Parents in prison are likely to divorce or
separate, and through the contagious effects of the institution, their children are in some degree “prisonized,” exposed to the routines of prison life
through visitation and the parole supervision of their parents. Yet much of this reality remains hidden from view. In social life, for all but those whose
incarceration rates are highest, prisons are exotic institutions unknown to the social mainstream. Our national data systems, and the social facts they
produce, are structured around normative domestic and economic life, systematically excluding prison inmates. Thus we define carceral inequalities as
invisible, cumulative, and intergenerational. Because they are so deeply concentrated in a small disadvantaged fraction of the population, the social and
economic effects of incarceration create a discrete social group whose collective experience is so distinctive yet unknown that their disadvantage
remains largely beyond the apprehension of public policy or public conversation. The redrawing of American social
inequality by mass incarceration amounts to a contraction of citizenship – a contraction of
that population that enjoys, in T. H. Marshall’s words, “full membership in society.”9 Inequality of this kind threatens to
be self-sustaining. Socioeconomic disadvantage, crime, and incarceration in the current
generation undermine the stability of family life and material support for children. As adults,
these children will be at greater risk of diminished life chances and criminal involvement, and at
greater risk of incarceration as a result. Skeptics will respond that these are false issues of social justice: the prison boom
substantially reduced crime, and criminals should forfeit their societal membership in any case. The crime-reducing effects of incarceration are hotly
debated, however. Empirical estimates of the effects of incarceration on crime vary widely, and often they turn on assumptions that are difficult to test
directly. Researchers have focused on the sharp decline in U.S. crime rates through the 1990s, studying the influence of rising prison populations.
Conservative estimates attribute about one-tenth of the 1990s crime decline to the growth in imprisonment rates.10 Though the precise impact of
incarceration on crime is uncertain, there is broad agreement that additional imprisonment at high rates of incarceration does little to reduce crime.
The possibility of improved public safety through increased incarceration is by now exhausted. Studies of the effects of incarceration on crime also focus
incarceration
only on the short term. Indeed, because of the negative effects of incarceration on economic opportunities and family life,
contributes to crime in the long run by adding to idleness and family breakdown among released
prisoners. Scale matters, too. If the negative effects of incarceration were scattered among a small number of serious criminal offenders, these
effects may well be overwhelmed by reduction in crime through incapacitation. Today, however, clear majorities of the young men in poor communities
are going to prison and returning home less employable and more detached from their families. In this situation, the institutions charged with public
safety have become vitally implicated in the unemployment and the fragile family structure characteristic of high-crime communities. For poorly
educated young men in high-incarceration communities, a prison record now carries little stigma; incentives to commit to the labor market and family
life have been seriously weakened.

Mass incarceration disproportionately affects people of color and

increases recidivism
Julia Bowling, 4-28-2015, [Research Associate at CUNY Institute for State & Local
Governance, "It's Time to Stop Mass Incarceration", Brennan Center for Justice,
https://www.brennancenter.org/our-work/analysis-opinion/its-time-stop-mass-
incarceration //Weese]
In March, the Justice Department released a shocking report about the Ferguson Police Department and criminal justice system.
The report found repeated violations
of constitutional rights, including stopping and handcuffing people without
probable cause, using stun guns without provocation , frequent racial slurs and a court system that
disproportionately imposes fees, fines and imprisonment for debt on people of color. According to the
report, court fines are a large source of Ferguson’s revenue. In fact, emails showed city officials pushed for more tickets and fines.
These fines and fees have serious consequences for people. “Poor, mostly African-American residents described being trapped in the
court system for years as they are repeatedly jailed,” one report said, “even when trying to make payments.” Fines
and fees
create an overwhelming challenge to those who cannot afford them. Non-payment creates
criminal justice debt that follows individuals and seriously limits economic opportunity. Debt enforcement leads
to bad credit, which can prevent an individual’s ability to secure housing . It can result in suspension of a
driving license, which impedes someone’s ability to secure a job and lead a normal life. Fees also
prolong entanglement in the criminal justice system, as people are arrested and jailed as
punishment for not being able to pay. Ferguson residents are not alone. Most states charge inmates for
their jail stay, electronic monitoring, probation or supervision and public defense . Not only are those
entangled in the system facing the potential loss of their freedom, they are increasingly expected to foot the bill for the
process. Failure to pay these fines perpetuates a cycle of poverty and incarceration that worsen
the country’s mass incarceration problem. Despite the fact that mass incarceration has little to no
effect on reducing crime, the U.S. still spends tens of billions of dollars a year on our prison system —
$80 billion in 2010 alone — not to mention the costs to affected individuals and communities . An
arrest or night in jail can cause one to miss work and lead to loss of employment. Outstanding
warrants for unpaid traffic tickets show up on background checks and hold people back from getting a job,
paying the fine itself and moving on with their lives. In the long term, a criminal record reduces chances of finding work
and causes a person’s wages to fall. Americans who have cycled through the system and “paid their debt” to society
face harsh job markets. Families with loved ones in prison are also affected. One in nine Black
children has a parent in prison, leading to a generation of Black children disproportionately bearing the
effects of parental incarceration. In fact, one in 28 children has an incarcerated parent, almost one child in every
classroom in America.

Mass incarceration disproportionately affects black communities and

must be rejected – recidivism, physical and mental illness, and
economic struggle
CCANO, 10-25-2016, [Catholic Charities Archdiocese of New Orleans, "How Does Mass
Incarceration Affect Communities?", CCANO, https://www.ccano.org/blog/how-mass-
incarceration-affects-communities/ //Weese]
Without question, incarcerationis life changing. Those 2.3 million individuals have lost their
jobs, homes, family connection and freedom . While a prison sentence is supposed to be rehabilitating,
many prisoners fall into a cycle of crime due to either being pulled into gang activity, or simply
turning to illegal activities for financial aid. Roughly 600,000 prisoners are released each year, but did they come
out healthier than when they were incarcerated? The answer, unfortunately, tends to be “no.” Whether it is physical health or mental
health, inmates are at risk of exiting prison unhealthier than they went in . For example, in
2010, inmates were five times more likely to be infected by HIV than the general population .
Approximately 10 percent to 20 percent of inmates suffer from a serious mental illness, which is
often made worse during incarceration . Along with health issues, many prisoners are released back into
society without being properly rehabilitated and with a severe lack of resources . Homelessness,
joblessness and a lack of family connections often set a newly released inmate up for re-offending. On
average, over a five-year period, 76.6 percent of released inmates will return to prison . Consequently,
society is being asked to pay for millions of prison sentences that are truly not rehabilitating inmates.
Communities pay the price of mass incarceration . Economics aside, the toll that mass incarceration
takes on communities is immeasurable. Children losing one or more parent to incarceration can set a
child up for a life of poverty and detrimental mental health issues. Further, communities that suffer
from a high rate of mass incarceration often are impacted by “zero-tolerance” policies in schools.
Thus, children often experience their first arrest in their early teenage years. This means that they quickly
find themselves on a path of repeated incarceration . One of the most heartbreaking pieces of the mass
incarceration story is the repeated injustices that inmates find themselves faced with. 1 in 5 individuals serving
time in federal prison was charged with a drug offense. Almost 3 percent of black male U.S residents of all ages were
imprisoned in 2013. When released and searching for a job, many felons aren’t even given the chance to apply
to many jobs. Clearly, the odds are stacked against a certain segment of society.

Mass incarceration threatens democracy and equality – racial

disparities, political disenfranchisement, and recidivism
Jess Rigelhaupt, 4-22-2012, [Associate Professor of American Studies, Oral History, Urban
Politics, Comparative Ethnic Studies at University of Mary Washington, "Mass incarceration
hasn't made us safer", Deseret Morning News, https://advance-lexis-
com.proxy.lib.umich.edu/document/?pdmfid=1516831&crid=2a8c98da-1d61-42a5-bad3-
7516e17e099a&pddocfullpath=%2Fshared%2Fdocument%2Fnews%2Furn%3AcontentItem
%3A55G8-XV51-JBRG-X50G-00000-
00&pdcontentcomponentid=164282&pdteaserkey=sr0&pditab=allpods&ecomp=kb63k&earg=s
r0&prid=ffb81170-fddc-4a33-bce9-e25243f86435 //Weese]
The current political debates in the lead up to the 2012 presidential election should focus our attention on the need to reconsider
prisons and criminal justice policy. The United States is the largest jailer in the world. With more than 2.3
million people behind bars, it has an unrivaled incarceration rate. One in 100 adults is locked up: The incarceration rate is
750 per 100,000 residents. The second highest incarceration rate is in Russia at 628 per 100,000, and not a single other Western
industrial nation has a rate of more than 148 per 100,000. We imprison people at a rate five times higher than comparable Western
industrial nations. The country accounts for 5 percent of the world's population, but 25
percent of people in jail or
prison. Is this a form of American exceptionalism that we want to continue? At a time when the size and role of
government are being debated, we need to question whether mass incarceration is wise policy and a good use
of taxpayer dollars. More important is that we think about how mass incarceration threatens democracy
and equality, two ideas central to our country. Although social scientists have long recognized the prison epidemic, there has
been a growing number of voices across the political spectrum calling for a review of mass incarceration . In 2007,
Sen. Jim Webb, D-Va., conducted a hearing on the rise of the prison population and the economic and social costs of mass
incarceration. After another hearing in 2009, Sen. Webb introduced the National Criminal Justice Commission Act to form a
bipartisan commission to analyze the criminal justice system. Sen. Webb reintroduced the bill in 2011 with bipartisan support and
Republican co-sponsorship, and it has not as yet been passed. Brian Walsh, a senior legal research fellow at the Heritage
Foundation, testified in favor of forming the commission. In 2011, Grover Norquist, head of Americans for Tax Reform, joined
NAACP President Benjamin Jealous in a discussion on prison spending. Although the two disagreed on numerous points, Norquist
concluded that reforms are needed and said, "When taxpayer activists look at it, we say, let's not waste money on prisons and the
judicial system, if it's
not getting us safer streets and safer cities." Norquist's comments and social scientific studies
indicate the need to disaggregate crime and mass incarceration . Allen J. Beck, deputy director of the Bureau of
Justice Statistics, explained in 2007, "The growth wasn't really about increasing crime but how we chose to respond to crime."
Beginning in the mid-1970s, legislators implemented "tough on crime" polices that created longer sentences,
mandatory minimums, and new prison sentences for drug violations. Then the U.S. launched a "war on drugs" in 1982, at a time of
declining drug use. The war on drugs is often thought to be a response to the crack cocaine epidemic, but it preceded the horrible
problems crack cocaine caused for users and people around them. The war on drugs ? increased drug arrests, convictions, and
prison sentences ? is the central factor in mass incarceration . More than half of new prison sentences to state prisons
between 1985 and 2000 were for drug offenses. The U.S. spends more than $70 billion a year on corrections without clear evidence
of the benefits. Marc Mauer, director of the Sentencing Project, notes that the growth of prisons and prisoners has not had a
dramatic effect on crime rates. Between 1960 and 1990 the United States, Germany, and Finland had comparable crime rates, while
Finland decreased its incarceration rate and Germany held its rate steady. The incarceration rate in the U.S., conversely, quadrupled.
The war on drugs and mass incarceration have exacerbated longstanding forms of racial
inequality. Michelle Alexander, professor of law at Ohio State University and author of "The New Jim Crow," argues that this
combination of events have formed a "system of racialized social control that functions in a
manner strikingly similar to Jim Crow." More than half of prisoners are African-American
and 19 percent are Latino, which is significantly out of proportion to the population of the country. Some of the
statistics are alarming: One in 30 men ages to 20 to 34 is incarcerated, but one in nine black men in that age group is behind bars.
More than half of young African-American men in major cities are under the control of the criminal justice system or have criminal
records. The racial disparities in mass incarceration are troubling, especially because they have little connection to
crime rates. The major cause of prison growth has been the war on drugs, and it has disproportionately affected
people of color. Yet drug use and drug selling rates are similar across racial lines. One government study has shown that white
youths are a third more likely to have sold illegal drugs than African-American youths. "Although the majority of drug
users and dealers nationwide are white," Alexander explains, "three-fourths of all people imprisoned for drug offenses
have been black or Latino." Why is there such a disparity? The war on drugs has been fought in urban
communities of color. Despite reliable data that shows drug use (which would logically include drug selling) is highest
in rural America, the war on drugs has not been fought on this terrain. Urban communities of color have borne the brunt of
America's failed war on drugs and the subsequent effects of mass incarceration. The problems of mass incarceration do not end at
the prison walls. There are 7.3 million people under correctional control above and beyond the 2.3 million behind bars. A person
labeled a criminal can lose citizenship rights. Mass incarceration has led to increased
political disenfranchisement for African-Americans: One in seven African-American
men has lost the right to vote, and in some states that rate is one in four. In addition, the Census
Bureau counts prisoners as residents of the jurisdiction in which they are incarcerated. Through
redistricting, mass incarceration has provided increased political power to largely
white and rural regions where prisons are built. Many states bar felons from jury service
for life; Alexander estimates that 30 percent of African-American men have a lifetime ban from jury
service. A criminal record can legally exclude a person from public benefits , including educational, food
and housing assistance. Mass incarceration threatens the country's fiscal health, our
democracy and our belief in equality. We must end it. We need to think beyond prisons as economic
development. We need to stop investing taxpayer dollars in failed policies and failed institutions. Ending mass
incarceration can better focus investment in institutions ? schools, early childhood education, drug and alcohol
treatment, housing and job programs ? that are vital to America's future and more effectively address social
problems. A good start would be the passage of Sen. Webb's legislation for a bipartisan commission to study the problem of mass
incarceration. Grounded in his views on love and forgiveness, Dr. Martin Luther King Jr. explained that systems of inequality rely on
"conscientious blindness" and indifference. There are alternatives to prisons, and we cannot be indifferent to ending
mass incarceration. Jess Rigelhaupt is an assistant professor of history and American studies at the University of Mary Washington.
Readers may send him email at jmrumw.edu. He wrote this for The Free Lance-Star in Fredericksburg, Va.

The harms of mass incarceration extend beyond release and targets

communities of color – coercive mobility, transitional planning and
parental incarceration
Jason Silverstein, 3-1-2013, [contributor for The New York Times, The Atlantic, The
Guardian, The Nation, and others covering health, justice, and race; Instructor at the Harvard
T.H. Chan School of Public Health and holds a PhD in anthropology from Harvard, "How Mass
Incarceration Threatens Public Health", HuffPost, https://www.huffpost.com/entry/how-mass-
incarceration-th_b_2787298 //Weese]
We have a problem, you know, and it’s only getting worse. It doesn’t strike us equally - it’s a problem that mostly
affects young men, minorities, and people without high school diplomas . It’s worse in the US than
anywhere else in the world - and five times as bad in the state of Louisiana than it is in Iran. Its survivors usually don’t make
good advocates - not while they fight for employment, hold onto their families, and, in some states,
lose the right to vote. The problem of mass incarceration is a problem some don’t want to address, because the felon class
represents those who must have known they would trade for their crimes a piece of their lives. But the health risk of prison
doesn’t end when their sentences do. In some cases, it has only just begun - and not just for
them. It is one of the great ironies of American society: prisoners are constitutionally guaranteed healthcare,
but former prisoners are not. The prison health paradox is one dramatic way to think about the health disparities
of impoverished minorities in the United States. In 2010, Evelyn Patterson found that “prison appears to be a
healthier place than the typical environment of the nonincarcerated black male population.” Indeed, during incarceration,
black-white mortality differences vanish. But once released, we see something else entirely . The
mortality rate skyrockets. The deadliest time is the first two weeks after release , when former inmates have a 12.7
times higher risk of death than the general population and a 129 times higher risk of drug overdose. One explanation is that
prisoners are often returned to their old neighborhoods - and returned to their old risk factors for
homicide and drug overdose. This cycling to and from prison has been called “coercive mobility,” as it
concentrates people with fewer and fewer resources into smaller and smaller areas . But another
explanation is poor transitional planning. For example, poor transitional planning for prisoners with mental
illness translates into an excess risk of suicide within the first weeks that follow release. But this is
not only a short term problem. Because there is a long term health problem that former prisoners face that is not
infectious, mental, or violent: the problem of being former prisoners. Former prisoners pay a social penalty for
incarceration - and it affects their health and their community. Former prisoners are doubly disadvantaged as
they struggle for employment and they are eliminated from welfare . In a recent Annual Review of Public
Health article, we learn that “a prison record eliminates eligibility for public assistance such as food
stamps, public housing, and student loans.” A prison record also reduces the ability of former prisoners to find
employment - especially employment that provides suitable health care coverage. Medicaid may not be an option for them, or at
least not an easy one, since 90% of states withdraw Medicaid coverage once an inmate’s sentence begins. Not only does
incarceration disrupt employment, which we know affects health status, but also marriage, which is another
indicator of physical health. Marriage and employment are “two key tenets of adult health ,”
Michael Massoglia writes, which disproportionately impact African Americans. In the Du Bois Review‘s special issue on “Racial
Inequality and Health,” three sociologists discuss the ‘spillover effect’ of incarceration. That is, parental
incarceration harms children, especially those who live in areas highly concentrated with former prisoners. In her article,
“Punishment Beyond the Offender,” Megan Comfort shows how children may be collateral damage in the exercise
of the state’s punishment. Beyond the offender, their children become exposed to risky behaviors that
decrease their life chances and increase their risk for mental illness. These children often
end up funneled into the criminal justice system themselves. The people most likely to
suffer the negative health effects of incarceration are also the people most likely to already suffer from
health disparities. Because African Americans are incarcerated at a rate higher than whites, racial health
disparities are ultimately worsened by the effects of incarceration. In their Du Bois Review
piece, Schnittker, Massolgia, and Uggen remind us that the mass in mass incarceration “is indeed ‘mass’ in the sense that it is
now large enough to affect an entire demographic group .” In Michelle Alexander’s The New Jim Crow: Mass
Incarceration in the Age of Color Blindness, we learn that more African American men are imprisoned today
than enslaved in 1850. Incarceration does not only threaten the long-term health of individuals, but entire
communities. In a justice system plagued by racial bias, incarceration threatens the health of an entire race.

Mass incarceration negatively affects the health of inmates’ physical

and mental health, families and communities
Julia Acker et al, 12-1-2018, [research analyst at University of California San Francisco,
"Mass Incarceration Threatens Health Equity in America",
https://www.rwjf.org/en/library/research/2019/01/mass-incarceration-threatens-health-
equity-in-america.html //DMcD //Weese]
With approximately 2.2 million U.S. adults and youth behind bars, the United States incarcerates many more
persons—both in absolute numbers and as a percentage of the population—than any other nation in the world. Mass
incarceration disproportionately impacts lower-income communities, communities of color, and
persons with disabilities, creating a barrier to achieving health equity. People who are incarcerated
face greater chances for chronic health conditions, both while confined and long after their
release. Incarceration exposes people to a wide range of conditions, such as poor sanitation and
ventilation and solitary confinement, that are detrimental to long-term physical and mental
health. After release, previously incarcerated individuals often face higher mortality rates and
experience limited opportunities for gainful employment, stable housing, education, and other
conditions needed for good health. Mass incarceration’s reach extends far beyond the jail cell, impacting
not only those behind bars, but their families, their communities, and the entire nation . Almost 10 million
children have experienced having one or both parents incarcerated at some point in their lives—impacting
their health and future opportunities. Within communities, mass incarceration disrupts social and
family networks and economic development while across the country it consumes large portions
of government budgets with negligible impact on crime rates. Produced in partnership with the University of
California, San Francisco, this report examines the links between mass incarceration and health equity. Through pairing data with
examples of successful approaches, this report shows how mass incarceration negatively impacts everyone’s health and well-being
Mass
and also suggests solutions for reducing both incarceration and crime rates and increasing opportunities for all. Key Findings
incarceration’s effects on health last far beyond the period of imprisonment. It impacts social, educational, and
economic opportunities; increases the prevalence of chronic health conditions; and decreases
life expectancy, with a 2015 study suggesting that each year spent in prison corresponds with a
two-year reduction in life expectancy. Parents’ incarceration influences their children’s
educational, economic and social opportunities , which in turn shape their children’s health
throughout life. Parental incarceration increases children’s risk of substance abuse and involvement
in crime as they mature and contributes to future health problems, such as HIV/AIDS, high
cholesterol, and post-traumatic stress disorder, limiting children’s opportunities for a healthy life. Mass
incarceration disproportionately impacts people of color, people with disabilities, and people of lower economic status. People of
color represent 39 percent of the national population, but make up 60 percent of incarcerated persons, and
people with disabilities are 4 times as likely as non-disabled people to end up in jail .
Incarcerated people have a pre-incarceration median income 41 percent lower than that of non-
incarcerated people. Many people are incarcerated because they cannot afford bail or court-imposed fees or
fines.

Mass incarceration has adverse health effects on inmates, families

and officers – only reducing incarceration solves
Emily Nagisa Keehn and J. Wesley Boyd, 2-1-2018, [Assistant dean of graduate programs
at University of San Diego and former associate director of the Harvard Law School’s Human
Rights Program; MD, PhD, associate professor of psychiatry at Harvard Medical school and staff
psychiatrist at Cambridge Health Alliance "How Mass Incarceration Harms U.S. Health, in 5
Charts", Psychology Today, https://www.psychologytoday.com/us/blog/almost-
addicted/201802/how-mass-incarceration-harms-us-health-in-5-charts //Weese]
The U.S. incarcerates a higher percentage of its citizens than any other country in the world .
There’s little doubt among researchers that mass incarceration is wreaking havoc on our society, in
particular on people of color, LGBTQ and the poor. What’s often overlooked in this discussion is the damage
that prisons and jails do to our health— from those who are incarcerated to their family members
waiting at home to those who work in detention settings . As researchers and advocates, we have studied mass
incarceration issues and started discussions on the ethics of this practice. To us, the evidence is clear: Mass incarceration
is a public health scourge in the U.S. The only reasonable response is to limit the
unnecessary use of incarceration across the board—as lawmakers in New Jersey and Maryland are
attempting to do. Incarceration and health Each year, an estimated 1,000 people die while incarcerated in local
jails. A majority of those who died were not convicted of any crimes and were being held pretrial, often because they were too
poor to afford bail. Those awaiting trial in jail have nearly twice the mortality rate of people who
have been convicted and are serving their sentence. This appears to be a testament to the stress
associated with being held pretrial. Perhaps not surprisingly, suicide is the leading cause of mortality in
U.S. jails, accounting for 34 percent of all deaths. Again, the vast majority of these individuals have not been convicted of
any crime. Suicide rates among incarcerated individuals are three to four times higher than the
general public. Many individuals in jail and prison suffer from mental illness . A majority of sentenced
people in jail and prison meet the criteria for drug dependence and abuse. Even though incarceration often forces individuals to
remain sober, being incarcerated generally exacerbates mental health disorders . Research
has shown that those with mental illness and substance use disorders have better treatment
outcomes outside of correctional facilities. When individuals who have been receiving mental health care end up
in correctional facilities, they often experience a large disruption in their care. They might lose access to
medication or be forced to switch to entirely different ones. Their relationship with a mental
health provider might also be severed. The food—which tends to be high-calorie and high-fat—often has poor
nutritional value. This, combined with restrictions on physical movement and the stress of
incarceration and overcrowding, can have adverse effects on both mental and physical health . Lack
of privacy, poor sanitation and poor ventilation often only make matters worse. Incarceration also
puts individuals at risk for physical and sexual assault. Furthermore, the U.S. faces the burgeoning crisis of
a geriatric incarcerated population. According to the Federal Bureau of Prisons, almost 19 percent of inmates
are over 50 years of age. To make matters worse, several states—including Massachusetts, where we are based—do not
have compassionate release procedures for terminally ill or medically incapacitated people who
are sick and dying in our prisons. Family and employees It’s not just the incarcerated individual who
suffers. Over half of people behind bars are parents. Most incarcerated mothers were primary
caregivers to minor children before their incarceration . An estimated 2.7 million U.S. children have
an incarcerated parent. Having a parent incarcerated is considered to be an “adverse childhood experience.” This
is linked to multiple negative health outcomes throughout life, including poor mental health,
substance abuse, disease, disability and even early death. Children with an incarcerated household member are
also likelier to experience poor mental and physical health in adulthood . Since prisons and jails are
high-stress environments to work in and are often overcrowded and understaffed, correctional officers
too can experience serious mental and physical health problems. A recent survey of 8,300 correctional officers
found that 10 percent have seriously considered or attempted suicide . That’s three times the rate of
the general population. Correctional workers also experience higher levels of hypertension from
elevated stress levels and higher levels of obesity than the national average.

Mass incarceration increases mental health issues – it directly trades

off with investment in the community mental health movement and
inmates aren’t treated properly
Vera Institute, 6-21-2016, [Vera Institute of Justice is an organization dedicated to reducing
mass incarceration and mitigating its effects, "The Burden of Mental Illness Behind Bars", Vera,
https://www.vera.org/the-human-toll-of-jail/inside-the-massive-jail-that-doubles-as-chicagos-
largest-mental-health-facility/the-burden-of-mental-illness-behind-bars //Weese]
Although people in correctional facilities are mostly excluded from national health surveys, an extensive literature review
reveals that this population has dramatically higher rates of disease—especially mental illness and
substance use disorders—than the general population, and that correctional facilities too often serve as ill-
equipped treatment providers of last resort for medically underserved and marginalized people .
Mental Illness For nearly a century, state psychiatric hospitals were the primary institutions for treating people with mental health
problems. These state asylums were established as the result of a 19th-century national crusade to decrease the extent that people
with mental illness were being housed and abused in jails and poorhouses. Unfortunately, these institutions created additional
problems, often warehousing patients in deplorable living conditions against their will. In the late 1950s, states began closing their
asylums in large numbers with the promise that they would be replaced with a robust network of behavioral health care centers
where people could receive the services they needed, while continuing to live in the community—a movement known as
deinstitutionalization. Deinstitutionalization was the result of advances in psychotropic medication, stronger due-process
protections against civil commitment, the growing influence of community psychiatry, and the enactment of Medicaid in 1965. The
newly created community centers were envisioned to offer a range of services: inpatient, outpatient, emergency, partial
hospitalization, and consultation and education on mental health. The promise of the community mental health
movement fell short of its ambitions due to underfunding at the federal and state levels, preventing
many people from accessing the services they needed. Dramatic cuts to a variety of social safety-net programs in the
1980s—which led to increases in homelessness and the number of people with untreated mental illness on the street— coincided
with massive government spending on the War on Drugs and prison construction . These changes
contributed to a disproportionate number of underserved people with mental health problems
becoming entangled in the criminal justice system and correctional facilities becoming their
default treatment providers. Today, about 14.5 percent of men and 31 percent of women in jails have
a serious mental illness, such as schizophrenia, major depression, or bipolar disorder, compared to 3.2 and 4.9
percent, respectively, in the general population. While estimates vary, the prevalence of serious mental
illnesses is at least two to four times higher among state prisoners than in community populations .
Substance Use Disorders The punitive sentencing laws and aggressive policing practices that emerged from the national
War on Drugs were perhaps the single greatest factor responsible for surging prison populations . Starting in
the early 1970s and accelerating over the following decades, a series of new state and federal policies led to
unprecedented numbers of people being sent to prison to serve long custodial sentences for drug
offenses. The concentration of drug arrests in urban communities of color is a primary driver of pervasive racial disparities
in the criminal justice system. African Americans are significantly more likely to be arrested, 13 times more likely than
whites to go to prison for a drug conviction, and represent 62 percent of people imprisoned for a drug conviction, despite negligible
differences in reported drug use. The increase in incarceration following arrest on drug charges accounted for about two-thirds of
the increase in the federal prison population and one-half of the increase in the state prison populations from 1985 to 2000. Today,
nearly 68
percent of people in jail overall and more than 50 percent of those in state prisons have a diagnosable
substance use disorder, compared to 9 percent of the general population . Moreover, most people
who have a serious mental illness also have a co-occurring substance-use diagnosis . For instance, in
jails an estimated 72 percent of people with a serious mental illness also have a substance use disorder. Despite this high need,
less than 15 percent of people who are incarcerated receive appropriate treatment .
For instance, although a significant body of research shows that pharmacological treatments such as methadone and buprenorphine
effectively treat opioid addictions, most correctional facilities choose not to offer them, subjecting people with chronic addictions to
higher risk of withdrawal while in custody and of overdose when released to the community. Adapted from Vera’s 2014 report On
Life Support: Public Health in the Age of Mass Incarceration, pages 5-10.
 Terminals – Plea Bargaining/Justice
Plea Bargains constitute the vast majority of cases and
disproportionately affect minority defendants
Somil Trivedi, 1-13-2020, [senior staff attorney at the ACLU’s Criminal Law Reform Project
and a former federal prosecutor, “Coercive Plea Bargaining Has Poisoned the Criminal
Justice System. It’s Time to Suck the Venom Out”, American Civil Liberties Union,
https://www.aclu.org/news/criminal-law-reform/coercive-plea-bargaining-has-poisoned-the-
criminal-justice-system-its-time-to-suck-the-venom-out/ //Weese]
The vast number of cases brought under our system of mass incarceration means that plea bargaining is the only way for
courts to get through the sheer number of cases in their dockets. This system lacks process, fairness, and often
even rule of law. In 2006, George Alvarez was charged with assaulting a prison guard while awaiting trial on public
intoxication. He knew he didn’t do it — the guards actually jumped him — but the ten year mandatory minimum sentence at trial
scared him so much that he pled guilty. Little did he know that the government had a video proving his innocence, but they buried it
long enough for prosecutors to extract the plea first. George spent almost four years behind bars fighting for his innocence before
finally being exonerated. In 2015, Lavette Mayes got in a fight with her mother-in-law. She had no criminal history and had
sustained injuries herself, yet a prosecutor charged her with aggravated assault, and a judge set her bail at $250,000. Unable to pay,
she spent fourteen months in jail awaiting trial, unable to see or touch her children once. She lost her job. She developed health
problems. Even after getting released on bond and downgraded to an ankle monitor, she struggled to resume her previous life due to
the trauma she’d experienced while incarcerated. So instead of spending years fighting her case in failing health, she pled guilty to
end the ordeal. Just last year, the state of Georgia executed Ray Cromartie for a 1994 murder. The case against him was paper thin
and Cromartie maintained his innocence until the end, but Georgia denied every request for DNA testing that could have set the
record straight. A lesser-known fact about the case is that 20 years ago, Georgia prosecutors offered Cromartie a plea deal under
which he could have been paroled after seven years and free by now. But Cromartie refused to admit guilt, and so the state retaliated
by seeking the death penalty and ultimately killing him. *** These heartbreaking stories illustrate the damned
if you do,
damned if you don’t nature of criminal justice in America today . Succumb to coercive tactics like
evidence suppression and pretrial detention like George and Lavette, and begrudgingly accept a conviction
with lifetime consequences. Or assert your constitutional rights, like Ray, and face certain
retribution. This impossible choice we call plea bargaining takes place tens of thousands of times every
day in America. It’s how over 95 percent of all state and federal convictions occur , with minority
defendants receiving disproportionately worse offers . In fact, in 2012, the Supreme Court
said that “plea bargaining . . . is not some adjunct to the criminal justice system; it is the criminal justice
system.” Criminal case dockets have become so bloated in the last fifty years as Americans have disastrously
over-relied on the criminal legal system to solve all our problems. Pressure-packed, conveyor-belt plea bargaining has become the
only release valve. The grossly divergent
sentences offered to defendants who plead guilty versus those
who don’t — often called the “trial penalty” — proves just how divorced from public safety, justice,
or even rationality this system is.

Plea Bargains coerce innocents into pleading guilty and undermine

the integrity of sentencing
Tina Wan, 10-1-2007, [J.D. Candidate, University of Southern California Gould School of
Law, 2008; B.A., Criminology, Law & Society, University of California, Irvine, "NOTE: THE
UNNECESSARY EVIL OF PLEA BARGAINING: AN UNCONSTITUTIONAL CONDITIONS
PROBLEM AND A NOT-SO-LEAST RESTRICTIVE ALTERNATIVE, 17 S. Cal. Rev. L. & Social
Justice 33", No Publication, https://advance-lexis-com.proxy.lib.umich.edu/document/?
pdmfid=1516831&crid=12a51851-70bd-418a-94c8-16266eec2d5c&pddocfullpath=%2Fshared
%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A4S3P-DJ60-00CV-D07C-
00000-
00&pdcontentcomponentid=148897&pdteaserkey=sr0&pditab=allpods&ecomp=kb63k&earg=s
r0&prid=38fc5e25-49ea-494c-8405-06d8aeb6fe3b //Weese]
The most important criticism of plea bargaining is that plea bargaining can
coerce innocent defendants into
pleading guilty. The prosecutor's unlimited discretion to pick and choose which charges to bring
against defendants and ability to create significant sentencing differentials between similar
defendants can lead to the practice of overcharging and the use of threats to seek the harshest
sentence to keep defendants from going to trial . Innocent, risk-averse defendants may not be willing to risk going
to trial to receive an exceedingly severe sentence, and instead, will choose to plead guilty to ensure a more lenient sentence. [*41]
Critics also argue that plea bargaining "undermines the integrity of the criminal justice system ." They
contend that plea bargaining allows the government to evade the "rigorous standards of due process
and proof imposed during trials." Instead of establishing a defendant's guilt and sentence though an impartial process
with a complete investigation and an opportunity for the defense to present its case, prosecutors take on the role of
judge and jury, making all determinations based on the probability of whether they will win or
lose at trial. The end result is a decision that has little to do with the primary objectives of the criminal justice system. Another
criticism of plea bargaining is that it allows defendants to escape full punishment by providing them with
more lenient sentences. This sends a message to other offenders that justice can be bought and sold and
that they can easily "beat the system," leading critics to believe that plea bargaining can weaken the
deterrent effect of punishment. Critics further contend that the lenient sentences given to those defendants who plea
bargain, and the harsh sentences doled out to similar defendants who refuse and are convicted at trial, lead to large sentencing
disparities among those convicted for similar offenses, which "undermine the entire criminal system."

Plea bargains circumvent justice as well as constitutional rights and

turns the U.S. into a totalitarian and regulatory state
Inga Ivsan, 2017, [J.D./LL.M University of Miami School of Law & Philip E. Heckerling
Scholarship Recipient; Associate at Black, Srebnick, Kornspan & Stump, PA, "ARTICLE: TO
PLEA OR NOT TO PLEA: HOW PLEA BARGAINS CRIMINALIZE THE RIGHT TO TRIAL AND
UNDERMINE OUR ADVERSARIAL SYSTEM OF JUSTICE, 39 N.C. Cent. L. Rev. 135", No
Publication, https://advance-lexis-com.proxy.lib.umich.edu/document/?
pdmfid=1516831&crid=f14fb945-20dc-406a-a15a-04761507e0db&pddocfullpath=%2Fshared
%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A5PD7-54C0-00CW-41MX-
00000-
00&pdcontentcomponentid=140723&pdteaserkey=sr5&pditab=allpods&ecomp=kb63k&earg=s
r5&prid=e574f806-8f1f-4146-8954-fb594b2d7f1a //Weese]
Plea bargains are replacing trials in modern criminal cases at an astonishingly fast pace. Statistics confirm that
approximately 97% of all federal criminal cases subject to minimum sentencing guidelines resolve in
plea agreements between defendants and prosecutors. Once rare and disfavored by judges, plea bargains
are now universally used with too much judicial participation via a "partnership with the prosecution." Trial lawyers are
evolving into "plea lawyers." Jury trials are seen primarily in the movies. The plea mentality has even manifested itself in
civil litigation: the number of civil cases going to trial in federal courts has declined from 11.5% in 1962 to around merely 1%. What
explains this recent phenomenon? Severe sentencing guidelines and mandatory minimum sentences have armed
prosecutors with the near unilateral power to compel a defendant to forego the jury trial and
instead enter into a plea agreement. Such unchecked discretion in the hands of prosecutors effectively
criminalizes the defendant's exercise of his right to a jury trial . Moreover, the prosecutorial authority to
compel defendants, especially those charged with white-collar crimes, into plea bargains has fundamentally converted the
adversarial system of criminal justice into an inquisitorial legal system. Plea bargaining is not an
acceptable substitute for jury trials. Trials rely on the adversarial process to seek out the truth, expose corruption, and
protect individual rights. The presence of a jury acts as a constitutional safeguard, shining a light on the actions of prosecutors and
judges. By contrast, plea bargaining operates
more like an inquisitorial system in which the prosecutor
assumes the dual role of fact finder and ultimate decisionmaker , [*137] selecting who to indict, what charges
to bring, and what sentence to impose. While trials seek to discern guilt from innocence, the plea bargain seeks to expedite the case,
relieving the prosecutor from the burden of conducting a trial or meeting the evidentiary burden required for conviction. Unlike
trials conducted in open court, plea bargaining is conducted in secrecy. Plea bargaining is not necessarily bad in and
of itself, but its extreme overuse raises concerns about the U.S. criminal justice system . The plea
bargaining process does not afford any constitutional or ethical protections. For example, suppose police obtain evidence illegally,
without a warrant. Prosecutorswould prefer to keep a case built on warrantless evidence out of court
rather than have the illegal police conduct exposed at trial . A defendant arrested on the basis of
illegally obtained evidence, and facing the threat of significant jail time, may be pressured to
accept a plea agreement without having had any opportunity to review evidence meaningfully .
Modern plea bargain practice encourages a defendant to admit guilt to a lesser offense on
questionable evidence, and accepts a lesser punishment in exchange for sacrificing the
defendant's Sixth Amendment right to trial. As the Fifth Circuit once observed, "[j]ustice and liberty are not the
subjects of bargaining and barter." The current criminal justice system adopts bargaining as naturally as if the Founding Fathers had
indeed incorporated it into the Sixth Amendment. While plea bargains originally were used as a practical compromise between an
overburdened prosecutor and a defendant of certain guilt, modern day plea bargains resemble one-sided
contracts of adhesion favoring a prosecutor too often holding insufficient evidence against a
criminal defendant, particularly a white-collar defendant, who is reasonably and understandably unwilling to risk being
sentenced to purgatory under current sentencing [*138] guidelines. A rational defendant, particularly in federal court,
cannot risk refusing a prosecutor's plea offer: prosecutors punish those who reject plea agreements by stacking
additional charges and, particularly in the cases of white-collar crimes, rely on sentencing guidelines that take into account the size
the defendant
of the financial loss without any requirement that the defendant be found to have intended the loss. On average,
who turns down a plea offer and is later convicted receives a sentence three times longer than
under a plea agreement. Combined with a growing list of vague and poorly drafted statutes defining various crimes,
prosecutors can target individuals and coerce them into plea bargains by promising to drop
charges against family members and freezing assets. By punishing the defendant with a sentence three times
longer if convicted at trial, modern day plea bargaining does not entail the same degree of "voluntary"
and "intelligent choice" made by the defendant as authorized by the Supreme Court in Brady v.
United States. While acknowledging the utility or impossibility of getting rid of plea bargains in the modern criminal justice system,
this article stresses the unconstitutional effect of the unchecked discretion enjoyed by prosecutors
when coupled with incredibly long sentences for those who risk conviction at trial , especially in
complex white-collar criminal cases. The enormous disparity in sentencing resulting from this practice
effectively criminalizes the defendant's right to trial and fundamentally alters the adversarial
legal system. First conceived as a convenient procedural tool of expediency, modern plea bargain practice has
supplanted trials altogether, severely punishing those few who dare exercise their Sixth
Amendment right to trial. This article proposes a practical solution, one borrowed from the business world, to restore
parity between prosecutors and defendants charged in complex cases popularly associated with white-collar crime. Totalitarian
societies, such as those envisioned by George Orwell in the novel 1984, rely on an inquisitorial legal system in
which the government has absolute, unfettered discretion to selectively punish anyone and
every-one. [*139] Orwell grew up in the Soviet Union, where an inquisitorial-style judicial system sought to maximize
government power at the expense of individual rights. The government enjoyed immense discretion to apply vaguely-written laws to
political opponents and other disfavored individuals. Even today, countries
such as Iran continue to exploit such
prosecutorial mechanisms to suppress freedom of discourse. The sad irony is that, while the United
States may have won the Cold War, its legal institutions have gravitated toward resembling the
inquisitorial system of its vanquished foe. In a true Orwellian twist, no citizen of modern
American society can possibly know all of his or her individual legal obligations . For
example, the Internal Revenue Code, inclusive of criminal and civil statutes, comprises 73,000 pages of fine print. With over 5,000
federal criminal laws on the books, one legal scholar has determined that the
average person unknowingly commits
three felonies every day. Doctors accepting Medicare payments, directors of publicly-traded companies, and tax lawyers,
among other white-collar professionals, often operate in perpetual fear of the regulation state . Should their
behavior attract the interest of a prosecutor, the prosecutor may find some crime, such as obstruction of
justice or conspiracy, to threaten in order to gain cooperation . Thus, under the current system of
plea bargaining, the adversary legal system is being severely undermined and an innocent
individual is sacrificed for the pretense of the public good and its insatiable need
to regulate every aspect of individual life . As the hero in Arthur Koestler's Stalinist critique novel Darkness
at Noon, pleads, "I plead guilty to having rated the question of guilt and innocence higher than that of utility and harmfulness.
Finally, I plead guilty to having placed the idea of man above the idea of mankind."

Plea Bargains increase prosecutorial discretion and avoid oversight –

there is an obligation to end them
Dylan Walsh, 5-2-2017, [freelance writer and contributor to The Guardian and The New York
Times, "On Plea Bargaining, the Daily Bread of American Criminal Courts", Atlantic,
https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-
prosecutors/524112/ //Weese]
Shondel Church was arrested in Kansas City, Missouri, last July, accused of stealing a generator and a tool box from his stepmother.
He sat in Lafayette County Jail for six weeks before his first conversation with a public defender, Matthew Gass. Gass was reportedly
hopeful that he could win the case at trial, but explained that the intensity of his workload meant he would need six months to
prepare—six months during which Church would remain jailed. As a father of four and his family’s primary breadwinner, Church felt
he couldn’t wait that long and instead pled guilty to a misdemeanor. He received two years of probation and a $2,600 bill for his stay
in pretrial detention. Ninety-seven percent of federal cases are settled the way Church’s was, by plea bargain.
State-level data suggest similar numbers nationwide. Though access to a public trial is enshrined in the Sixth
Amendment, taking a plea forecloses that possibility . “This constitutional right, for most, is a myth,”
U.S. District Judge John Kane wrote in 2014—one voice among a chorus of jurists, advocates, and academics all calling for reform.
Some want tweaks to the regulation and oversight of pleas; others urge more ambitious overhaul of the way trials are conducted,
streamlining the process to make it accessible to greater numbers of people. Plea bargains were almost unheard of prior to the Civil
War. Only in its aftermath, as waves of displaced Americans and immigrants rolled into cities and crime rates climbed, did appellate
courts start documenting exchanges that resemble the modern practice. The plea became a release valve for mounting caseloads.
Appellate courts “all condemned it as shocking and terrible” at the time, said Albert Alschuler, a retired law professor who has
studied plea bargains for five decades. The courts raised a range of objections to these early encounters, from the secretiveness of the
process to the likeliness of coercing innocent defendants. Pleas, wrote the Wisconsin Supreme Court in 1877, are “hardly, if at all,
distinguishable in principle from a direct sale of justice.” The practice nonetheless continued, and, by the turn of the century, a
minor economy had settled in its orbit. “Fixers” could be hired to arrange for alternatives to a prison sentence. Police regularly
toured jails to “negotiate” with the inmates. One New York City defense attorney and friend to local magistrates loitered in front of
night court hawking 10 days in jail for $300, 20 days for $200, and 30 days for $150. By the 1920s, as violations of the federal liquor
prohibition flooded court dockets, 88 percent of cases in New York City and 85 percent in Chicago were settled through pleas. When
the Supreme Court in 1969 finally heard a case concerning the legality of the issue, it unanimously ruled that pleas are
constitutionally acceptable. They are “inherent in the criminal law and its administration,” the Court declared. A few justifications
are used to explain the widespread use of pleas. In cases that involve organized crime, prosecutors can use plea bargains to advance
the case, extracting information from low-level offenders and pushing further up the criminal hierarchy. Pleas can also provide
genuinely good deals to people facing long prison sentences. Most fundamentally, basic economics supports their use. Trials are
expensive and protracted. Two rational parties, goes the logic, can more cheaply and quickly come to an agreeable outcome through
stripped-down bartering: The prosecutor offers a lenient charge if the defendant foregoes trial and admits guilt. This final
rationale raises tough moral questions , which were perhaps best articulated by Chief Justice Warren Burger
in 1971: “An affluent society ought not be miserly in support of justice, for economy is not an objective of the system,” he wrote.
The court, in other words, should prioritize its profound responsibility to sort the guilty
from the innocent over the efficient dispatch of criminal defendants . (“Miserly” may be how Church
would describe the state’s dealings with him in Missouri; he’s involved in a class-action lawsuit that argues its understaffed public-
defender system doesn’t provide sufficient legal counsel.) But there is also a central practical concern reformers want to mitigate:
that spareoversight of the process invests prosecutors with broad, opaque powers . Judges are not
regularly allowed to take part when a plea deal is made, and written records of a deal are almost
never required. Though jury trials demand proof of guilt beyond a reasonable doubt, pleas follow no standards of
evidence or proof; the prosecutor offers a break in exchange for a guilty plea, the defendant decides whether to
take it without knowing the merits of his case. Indeed, the only bargaining restriction placed on
prosecutors is that they cannot use illegal threats to secure a plea . “So if a prosecutor says, ‘I’ll shoot you if
you don’t plead guilty,’ then the plea is invalid,” Alschuler explained. “But if he threatens to charge someone with a crime punishable
prosecutors can
by death at trial and the defendant pleads guilty, then the plea is lawful.” Assuming they have probable cause,
even threaten to bring charges against a defendant’s family in order to extract a plea . For instance, if
a defendant’s spouse or sibling is complicit in drug trafficking—perhaps they took a call related to the case—a prosecutor can offer to
reduce or dismiss charges against the family member if the defendant pleads guilty. This dynamic, combined with national
trends over the last 30 years favoring lengthy mandatory sentences, gives prosecutors inordinate leverage. If a
defendant considers going to trial, a prosecutor might hang overhead some charge that carries a mandatory life sentence. A plea of
guilty might instead get eight years, or 10 years, “or pick a number,” said Matt Sotorosen, a senior trial attorney at the Office of the
San Francisco Public Defender. “Even if you have an innocent client, most don’t want to take that chance. They’ll just take eight
years. What if things go south at trial?” The results of this lopsided calculus are evident in data from the National Registry of
Exonerations: Of 2,006 recorded exonerations since the project started keeping track in 1989, 362 of those, or 18 percent, were
based on guilty pleas.

The coercive plea bargain system leads to explosive prison growth and
stark racial disparities
Danny Weil, 11-7-2012, writer for Project Censored and Daily Censored, Widespread Use of
Plea Bargains Plays Major Role in Mass Incarceration, Truthout,
https://truthout.org/articles/overwhelming-use-of-plea-bargains-plays-major-role-in-mass-
incarceration/, 7-7-2020/Khan
The plea bargain system is really based upon coercion, a legal form of extortion by the state.
Prosecutors coerce defendants into pleading guilty by piling on charge after charge, and judges
coerce those charged by making it known that the punishment will be much milder if you plead
guilty than if you lose after exercising your supposed constitutional rights and go to trial.
Retribution can be as swift. Like the Inquisition, this system of duress too frequently results in
innocent individuals entering guilty pleas they never would have if the constitution was really
put into play.
The current system of plea bargaining has corrupted criminal defense law as it stampedes the
constitution, leaving in its wake intimidation and fear. In practice, a defense lawyer’s main job is
negotiating guilty pleas and subsequent sentences, not defending the criminally accused, as
many would believe. Instead, because over 90 percent of criminal cases are resolved through
plea bargains, the economics of defense lawyers depends on pushing paper and maintaining
good relationships with prosecutors; therefore, it is not uncommon for defense attorneys to
allow a client to “take a fall” rather than accuse a prosecutor of misconduct and risk legal
retaliation in future cases. Crony legalism is an essential part of crony capitalism, and nowhere
is this better seen than in the halls of justice.
Do Plea Bargains Allow Criminals to Get Off Easy?
Popular culture, disseminated by Hollywood movies and television series, depict plea bargains
as a way of allowing those accused of a crime to escape justice and “get off easy.” In reality,
usually the opposite is true.
Plea bargains allow prosecutors to bring charges against far more people than the legal system
could process through a system of judicial trials. Thus, they create the material conditions for
their own replication. Because less than 10 percent of criminal cases, federal and state, go to
trial, plea bargains in effect allow the state to prosecute ten times more cases than they could
handled at trial.
Plea bargains are also essential for stocking for-profit prisons with a steady supply of
“customers” for their corporate shareholders. Plea bargaining both enlists and perpetuates the
principles of mass production, deception and mendacity, which in turn are applied quite readily
in the whole of our system of criminal “justice.”
Plea bargaining has also become an essential element of both mushrooming prison growth and
the racially disparate state of American prison populations, with the gravity of the burden
falling on the backs of blacks and Latinos. Without plea bargaining, the explosion
in prison populations of color, especially those of for-profit prisons, could never
be possible.
In his paper, “The Problem With Plea Bargaining: Differential Subjective Decision Making as an
Engine of Racial Stratification in the United States Prison System,” attorney and sociologist
Douglas Savitsky argues that:
The bargains struck by Black defendants tend to be worse than those struck by similarly situated
white defendants. There are several reasons for this. Black defendants are generally poorer, and
they are thus less able to afford a competent defense.

Deconstructing the efficiency mindset that guides plea bargaining is

capable of subverting the fundamental unfairness of the entire CJS.
Weil 12 - Danny Weil is a writer for Project Censored and Daily Censored. He received the Project Censored "Most Censored" News Stories of 2009-10 award for his
article: "Neoliberalism, Charter Schools and the Chicago Model / Obama and Duncan's Education Policy: Like Bush's, Only Worse," published by Counterpunch, August 24,
2009. Dr. Weil has published more than seven books on education in the past 20 years. http://www.truth-out.org/news/item/12556-overwhelming-use-of-plea-bargains-plays-
major-role-in-mass-incarceration November 07, 2012

What Would Happen if Defendants Crashed the Court System by Refusing to "Plea Out"? As
long as plea bargains are
used as a club to coerce defendants into abdicating their right of the constitutional guarantee to a
fair trial, the prison-industrial complex will continue to grow exponentially . Plea bargains are one
big woodpile that serves to fuel the ever-expanding prison-industrial complex , rendering transparent
the American political resolve to incarcerate more and more people even if it means bankrupting their municipalities, cutting
education and devoting their budgets to subsidizing the for-profit prison industry. If this resolve represents the mens rea (criminal
intent) of the political will for mass incarceration, then plea bargaining can be said to represent the actus reus, the physical act of
carrying out the industrial carceral state. If
plea bargains were eliminated, or even severely monitored and reduced, the
states and the federal government would then be required to carry out their burden under the
constitution of proving the guilt of a criminal defendant in accordance with the law. If this
happened, there would be a whopping reduction in prosecutions, not to mention incarcerations .
Such a shift would be an important step in ending the current carceral culture of mass
confinement and cruelty. Michelle Alexander, a civil rights lawyer and bestselling author of the book, The New Jim Crow: Mass
Incarceration in the Age of Colorblindness, recently wrote in The New York Times that in her phone call with Susan Burton, a
formerly incarcerated woman who took a plea bargain for drug use, Burton
asked: What would happen if we
organized thousands, even hundreds of thousands, of people charged with crimes to refuse to
play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to
trial? Couldn't we bring the whole system to a halt just like that? Believe me, I know. I'm asking
what we can do. Can we crash the system just by exercising our rights? Burton has the right to ask this
question. It took her 15 years after pleading to a drug charge to get her life back together. The organization she recently started, A
New Way of Life, offers a much-needed lifeline to women released from prison. But it does much more than this: it is also helping to
start a movement against plea bargaining and the restoration of the constitution as it applies to citizens. All of Us or None is another
such group that is organizing formerly incarcerated people and encouraging them to demand restoration of their basic civil and
human rights. But the question Burton asks remains: could criminal defendants really crash the system if they demanded their
constitutional rights and refused to plea to crimes they did not commit? From
the point of view of American
University law professor Angela J. Davis, the answer is yes. The system of mass industrial
incarceration is entirely dependent on the cooperation of those it seeks to control. If everyone
charged with crimes suddenly exercised their constitutional rights, then there would not be
enough judges, lawyers or prison cells to deal with the flood tide of litigation . As Davis notes, not
everyone would have to join for the revolt to have an impact: "if the number of people exercising their trial rights suddenly doubled
or tripled in some jurisdictions, it would create chaos." The
entire carceral system is riddled with corruption
and broken beyond comprehension. Davis and Burton might be right: crashing the judicial
system by refusing to get roughhoused into phony plea bargain deals could be the most
responsible route to cleaning up the courts and restoring constitutional rights. It is daunting,
and it takes guts, but with more than 90 percent incarcerated for plea bargains, it is courage we
need. One thing we do know: there are many people falsely accused of crimes doing time in for-
profit American gulags, and many more waiting to replace them. This situation might be good for the for-
profit prison system and a few major stockholders but it spells Dante's Inferno for those forced to take the plea, as Alford, Banks,
Burton and far too many others know.

Only justice provides the virtuous basis to reject the most unjust
practices of the world.
SEP ’17 [Stanford Encyclopedia of Philosophy; The Stanford Encyclopedia of Philosophy
organizes scholars from around the world in philosophy and related disciplines to create and
maintain an up-to-date reference work; 6-26-2017; “Justice (Stanford Encyclopedia of
Philosophy)“; Stanford.edu; https://plato.stanford.edu/entries/justice/; Accessed 7-7-2020;
RG-Camp]
The idea of justice occupies centre stage both in ethics, and in legal and political philosophy. We
apply it to individual actions, to laws, and to public policies, and we think in each case that if they
are unjust this is a strong, maybe even conclusive, reason to reject them. Classically, justice
was counted as one of the four cardinal virtues (and sometimes as the most important of the four);
in modern times John Rawls famously described it as ‘the first virtue of social institutions’
(Rawls 1971, p.3; Rawls, 1999, p.3). We might debate which of these realms of practical philosophy has first claim on justice: is it
first and foremost a property of the law, for example, and only derivatively a property of
individuals and other institutions? But it is probably more enlightening to accept that the idea has
over time sunk deep roots in each of these domains , and to try to make sense of such a wide-ranging concept by
identifying elements that are present whenever justice is invoked, but also examining the different
forms it takes in various practical contexts. This article aims to provide a general map of the ways in which justice
has been understood by philosophers, past and present.

Rightful corrective justice is crucial to maintain structures of equality

and retribution.
SEP ’17 [Stanford Encyclopedia of Philosophy; The Stanford Encyclopedia of Philosophy
organizes scholars from around the world in philosophy and related disciplines to create and
maintain an up-to-date reference work; 6-26-2017; “Justice (Stanford Encyclopedia of
Philosophy)“; Stanford.edu; https://plato.stanford.edu/entries/justice/; Accessed 7-7-2020;
RG-Camp]
2.2 Corrective versus Distributive Justice
A second important contrast, whose pedigree reaches back at least as far as Aristotle, is between justice as a
principle for assigning distributable goods of various kinds to individual people, and justice as a remedial
principle that applies when one person wrongly interferes with another’s legitimate holdings. Thus
suppose Bill steals Alice’s computer, or sells Alice faulty goods which he claims to be in perfect order: then Alice
suffers a loss, which justice demands that Bill should remedy by returning the computer or
fulfilling his contract honestly. Corrective justice, then, essentially concerns a bilateral relationship
between a wrongdoer and his victim, and demands that the fault be cancelled by restoring the
victim to the position she would have been in had the wrongful behaviour not occurred ; it may also
require that the wrongdoer not benefit from his faulty behaviour. Distributive justice, on the other hand, is multilateral: it assumes a
distributing agent, and a number of persons who have claims on what is being distributed. Justice here requires that the resources
available to the distributor be shared according to some relevant criterion, such as equality, desert, or need. In Aristotle’s example, if
there are fewer flutes available than people who want to play them, they should be given to the best performers (Aristotle, The
Politics, p. 128). In modern debates, principles of distributive justice are applied to social institutions such as property and tax
systems, which are understood as producing distributive outcomes across large societies, or even the world as a whole.

The conceptual distinction between distributive and corrective justice seems clear, but their normative
relationship is more difficult to pin down (see Perry 2000, Ripstein 2004, Coleman 1992, chs. 16–17). Some
have claimed that corrective justice is merely instrumental to distributive justice : its aim is to
move from a situation of distributive injustice brought about by the faulty behaviour to one that is more
nearly (if not perfectly) distributively just. But this view runs into a number of objections. One is that so long as
Alice has a legitimate title to her computer, her claim of corrective justice against Bill does not
depend on her having had, prior to the theft, the share of resources that distributive justice ideally
demands. She might be richer than she deserves to be, yet corrective justice still require that the computer be
returned to her. In other words, corrective justice may serve to promote conservative rather than ideal
justice, to use the distinction introduced in 2.1. Another objection is that corrective justice requires the wrongdoer himself to
restore or compensate the person he has wronged, even if the cause of distributive justice could be better served by transferring
resources from a third party – giving Alice one of even-more-undeservedly-rich Charles’s computers, for example. This underlines
the bilateralnature of corrective justice , and also the fact that it comes into play in response to
faulty behaviour on someone’s part. Its primary demand is that people should not lose out
because others have behaved wrongfully or carelessly, but it also encompasses the idea that ‘no man should
profit by his own wrong’. If Alice loses her computer in a boating accident, she might, under an insurance scheme, have a claim of
distributive justice to a new machine, but she has no claim of corrective justice.

If corrective justice cannot be subsumed normatively under distributive justice, we need to

explain its value. What is achieved when we make Bill return the computer to Alice? Aristotle
(Nicomachean Ethics, Book V, ch. 4) suggested that corrective justice aims to restore the two parties to
a position of equality; by returning the computer we cancel both Bill’s unjustified gain and Alice’s
unjustified loss. But this assumes that the computer can be returned intact. Corrective justice
requires that Alice be made no worse off than she was before the theft, even if that means Bill suffering an absolute loss
(e.g. by paying for a new computer if he has damaged Alice’s). Aristotle himself recognized that the idea of evening
out gain and loss made no literal sense in a case where one person assaults another and has to compensate him
for his injury – there is no ‘gain’ to be redistributed . It seems, then, that the value of corrective justice
must lie in the principle that each person must take responsibility for his own conduct, and if he
fails to respect the legitimate interests of others by causing injury, he must make good the harm. In that way, each
person can plan her life secure in the knowledge that she will be protected against certain kinds of external setbacks. Philosophers
and lawyers writing on corrective justice disagree about what standard of responsibility should apply – for example whether
compensation is required only when one person wilfully or negligently causes another to suffer loss, or whether it can also be
demanded when the perpetrator displays no such fault but is nevertheless causally responsible for the injury.
 Terminals – Racial Disparities
Racist sentencing practices destroy communities of color and exacerbate crime
and victimization
Crutchfield and Weeks 15. Robert D. Crutchfield is a professor in the Department of
Sociology at the University of Washington. Gregory A. Weeks is a retired judge for the Fourth
Division of the Superior Court of North Carolina. Fall, 2015, "The Effects of Mass Incarceration
on Communities of Color," Issues in Science and Technology, VOL. XXXII, NO. 1,
https://issues.org/the-effects-of-mass-incarceration-on-communities-of-color/ - AM
Understandably, most
of us would expect that removing criminals—those who would victimize others—from a
community would be welcomed by the populace , and that both residents and their property would be better off as a result.
For most places, that is likely true. Removing a person who has hurt others or who does not respect the property of others is tantamount to removing a
thorn from a tender foot. But there
is a growing body of evidence that suggest that this may not always be
the case, because of the effects that time in prison has on individuals and their home
communities. There are collateral consequences that accrue to imprisoned people even after their sentences are completed, and some
criminologists believe that when the number of felons removed from a community is “too
high,” it may actually harm the places where they use to live. And, since most people who are
incarcerated return to the same neighborhoods, or very similar places as those they were removed from, their presence in large numbers, when they go
home, adds a substantial burden there, too. Although the
United States has made some progress, it remains a substantially
racially segregated nation residentially. And, the country stays very economically segregated as well. It is not surprising
that poor people of color have been incarcerated disproportionately during the massive increase
in imprisonment that has occurred in the nation since the early 1980s. It is from poor communities of color that a
very large number of felons are removed, and to these same neighborhoods that they return
when their sentences end. This population churning has been called “coercive
mobility” by criminologists. Although it is the intent of legislatures, judges, police, and prosecutors to protect citizens and communities, there is
reason to believe that coercive mobility has the unintended consequence of actually
increasing crime and victimization. Some of the changes during this period of increased incarceration that disadvantaged
people of color coming into the justice system were implemented with the help and support of African American political leadership, with the express
purpose of protecting black and brown communities. Perhaps the best example of this is the initial federal sentences for crack cocaine offenses:
conviction for crack selling (more heavily sold and used by people of color) resulting in a sentence 100 times more severe than for selling the same
amount of powder cocaine (more heavily sold and used by whites). A long-running academic debate among criminologists has gone on during this same
period about race and justice, the central question being how much of high minority incarceration is a consequence of differential involvement in
criminal behavior versus a biased criminal justice system. That debate is not settled. But one factor is pretty much agreed upon: There is
overrepresentation of minority group members among those engaging in crime , but even after this is
taken into account, people of color are overrepresented in U.S. prisons and jails. The question is how much of the
high levels of incarceration of African Americans and Latinos is warranted by higher levels of crime and what proportion is unwarranted. The best
research indicates that the answers to these questions should be answered by looking specifically at types of crimes. Among the most serious violent
crimes, the evidence suggests that unwarranted racial disparity is modest. For less serious crimes, the proportion of unwarranted racial disparity
increases. This can be seen clearly by considering the evidence on drug imprisonments resulting from the war on drugs. Good evidence indicates that
racial and ethnic groups use and sell drugs proportionally to their representation in the population; so about 13percent of drug users and sellers are
African Americans, about 17 percent are from the various Latino groups, and approximately 65 percent are whites (whites tend to sell to whites; blacks
to blacks). But, more than 50 percent of those imprisoned for drug sales or possession are people of color. In fact, one study by the group Human
Rights Watch found that black men are sentenced on drug charges at a rate that is more than 13 times higher than white men. Some observers have
claimed that African American and Latino drug dealers are more likely to be arrested because their activities are more likely to occur in open air public
drug markets than does the dealing of whites. But at least one study has found that police elect to pursue open air drug markets with minority dealers
and ignore those where whites are selling. Overall,
the war on drugs has been especially hard on minority
individuals and communities, and this cannot be justified by overrepresentation of these groups in this particular form of criminal
behavior. Contrary to what some casual observers might think, residents of African American and Latino communities want crime control, as well as
effective and fair policing and a criminal justice system that removes crime perpetrators but that is also accountable to those communities. Popular
media reports that focus on the “don’t snitch” norm of some segments of those communities mask important distinctions. First, the belief that a don’t
snitch mindset exists in black communities tends to “criminalize” the entire population. This feeds into the historical experience of many law abiding
citizens living in these communities that as far as “the system” is concerned, they are all criminals. Most people living in communities of color are law
abiding citizens who have little in the way of other housing options. They feel that they are stopped, hassled, and disrespected by police just as often as
those who are actually committing crimes. For these folks, there
is little incentive to cooperate with a system they
believe will ultimately abandon them when a case is over. Second, people in these communities have to live there 24
hours a day, seven days a week. They know that law enforcement won’t be there to protect them forever. They have to live with the very real fear of
retaliation from criminals in the community if they cooperate. It is not unusual for witnesses, and even victims, to a crime to refuse to testify or
cooperate because they believe that the system will abandon them when a case is over. To the extent that a don’t snitch norm exists, it is primarily
observed among some young people in very socially and economically disadvantaged communities. Also, the populations
in even the
most disadvantaged sections of cities are very heterogeneous with respect to views of police and
criminal justice agencies and institutions. Young African Americans who wear “don’t snitch” t-shirts are no more representative
of their communities than young whites with multiple piercings and tattoos are of theirs. Some observers perceive the “black lives matter” movement to
include a demand to remove police from black neighborhoods. Nothing could be further from the truth. That movement is calling for effective and
accountable policing. So when serious criminals—those who victimize and terrorize black and brown communities—are arrested, convicted, and
imprisoned, there are multiple responses in the places where they lived and, more often than not, engaged in their predatory behavior. There may be
those who see and lament “another brother oppressed by the man, but the vast majority of people who live there will be pleased that someone who hurt
and victimized others is, at least for a time, no longer roaming their streets free to wreak more havoc. PROBLEMS WITH THE “SOLUTIONS” As is the
case for every community, when criminals are removed from socially and economically disadvantaged African American and Latino communities, there
is a benefit to those places. Not only is a person who would victimize others not able to do so, but crime, especially high levels of crime, are bad for the
collective good of communities. Crime can destabilize neighborhoods. When people live in fear of
personal or property victimization, they view their environment as a threatening, scary place.
Such spaces do not promote the kind of cohesion and closeness among neighbors that is
important for healthy and productive social engagement. When residential areas , and even commercial
districts, are cohesive and individuals are engaged with each other, people can participate in the
kinds of social life that make crime less likely. So, too much crime actually increases the likelihood of more crime. What some
criminologists fear is that going too far in the opposite direction— with the criminal justice system
removing too many residents from a neighborhood —potentially causes two separate but related
types of problems. With incarceration there is collateral damage to those locked up, as well as to
those who they are connected to: partners, children, extended family, and any positive
friendship networks they had. Also, and perhaps less obvious, removing too many people from a
troubled neighborhood can have a detrimental, crime-causing effect. The overwhelming
majority of inmates will be released from prison after serving their sentences, and the nation has struggled with how to help them reenter society.
Generally, released prisoners must return to the county where they last lived, which, for most, means returning to a poor and socially isolated inner-city
neighborhood or community. The unprecedented numbers now being released have compounded the problem. Many prisoners entered the system with
drug, alcohol, or mental problems. In the vast majority of instances, they received little or no treatment or counseling during their incarceration
because of reduced funding for rehabilitation programs as well as the closing or scaling back of state mental facilities. Prisons, and even jails, have
become the dumping grounds of necessity for those who have mental health issues. On another level, general health care within prisons, including
mental health care, has been woefully inadequate, resulting in a number of lawsuits against both federal and state corrections systems. Unfortunately,
this means that prisoners released back into their old communities return no better off—or, in many instances, worse off—than they were before being
incarcerated. In addition, released prisoners face collateral consequences that they were largely unaware of at the time they were originally sentenced.
Collateral consequences to the imprisoned are the effects that remain after the formal sentence has been served. These damages are inflicted by law and
by social practice. Among the former, some of the more onerous consequences are the legal denial of some social benefits—public housing access,
welfare benefits, some college loans and grants, the right to vote, the right to live or work in certain places (school zones for some offenders), and
requirements to register with local authorities. These damages were enacted by legislative bodies to punish those convicted of crimes, in the belief that
those who violate “the social contract” should not benefit from the public’s largess, or in the belief that barring convicted felons from some of the things
that others have access to is for the good of the broader community. But, not having access to these “privileges” will inhibit some who have been
released from prison from taking the straight, narrow, and legitimate path, and thus increase the likelihood of them becoming again involved in
criminal behavior. In addition to legally specified collateral consequences of felony convictions (and in some jurisdictions some misdemeanor
convictions), there are informal consequences as well. Those who are convicted frequently lose intimate relationships with partners or access to their
children, and they are less likely to find employment. Significantly, these consequences accrue even among inmates who do not spend long sentences in
“the big house.” There
are also collateral damages to the families of those imprisoned, both while they
are locked up and when they are released. One study, for example, found that the financial and time strain on the wives
and girlfriends of inmates in upstate New York prisons imperiled relationships with both the
women in prisoners’ lives and their children. Since families are a good anchor for prisoners when they are released,
disruptions in family life increase the chances of recidivism. Another study comparing neighborhoods with high and
low rates of incarceration, found that in the former, the gender ratio is sufficiently thrown off by the number of men going into and coming out of
prison that marriage markets are negatively affected. It has long been known that adding too many new residents to cities and neighborhoods can have
a “criminogenic” effect, because when there are more new faces, when there are ever changing faces, the integration of new arrivals into the community
is inhibited, allowing greater individual anonymity. Such circumstances create fertile ground for crime to occur and perhaps flourish. To be clear, this
does not mean that migrants bring crime with them. In fact, the evidence has long suggested that movers have less of the characteristics that are
predictive of criminal behavior. The problem is the lack of social integration. Similarly, when
communities lose too large
of a segment of their population, this same important, crime-inhibiting social
integration can be disrupted. It is important to remember that even people who break the law occupy
many different roles. They are husbands or wives or girlfriends or boyfriends, sons, daughters, friends, coworkers, and neighbors.
Families and the neighborhoods in which they reside struggle to fill the void when members are
no longer there. The removal of too many people from communities can be disruptive. The nation has
seen this in recent years when sections of formerly industrial capitals, such as Detroit, Cleveland, St. Louis, and Pittsburgh, have lost population as
people left in search of jobs. Some criminologists believe that when
people from a community are imprisoned at a high
enough number—coercive mobility—the effect may also be criminogenic. So there are two countervailing
forces or arguments: that removing problem criminal people improves the life of neighborhoods, and that removing too many people and then
returning them can be criminogenic. The two most prominent researchers who have made the case regarding coercive mobility and its deleterious
effects are Dina Rose and Todd Clear. They
believe that there is a tipping point, below which imprisonment is
normally good for a community, but above which it becomes criminogenic. This effect, coercive
mobility leading to crime, is not thought to happen everywhere, but in severely socially and
economically disadvantaged places. This is, in part, because a large amount of serious crime occurs there, but also because such
places have very limited resources and do not have the collective resiliency to overcome high levels of imprisonment and large numbers of released men
and women returning to the same problematic neighborhoods from which they came, or ones very much like them. An important way to address the
problems for communities of color is to reduce the residential racial and economic segregation that continues to cause problems for social life in the
U.S. Before considering the evidence for coercive mobility’s effects on communities, one more very important negative force should be highlighted: the
diminished state—human capital, in the words of sociologists—of most returning former prisoners. It is generally accepted that having a good, solid
family life lowers the probability of a person becoming involved in crime, and that having employment (especially good employment) does the same.
Predictably, those most likely to be sentenced to a term in prison are less likely than others of their age, race, and gender to be involved in a stable
relationship or to have been employed in a high-quality job prior to their incarceration. When men and women return from prison, their family life has
an even higher likelihood of having been disrupted, and their competitiveness on the job market is even more diminished than it was before they were
incarcerated. Time
in prison means that these already marginal people are more marginalized, and
they tend to return to living in neighborhoods that are already distressed by the presence of too
many disrupted families and high levels of joblessness. They add to the already overcrowded pool of residents likely to
not be in good relationships, to not be good prospects as mates, and to be not competitive for the desirable good jobs that will help them stay out of jail
or prison and might help their community’s dismal economic state. Which brings things back to the coercive mobility argument, as it may be critically
important. If its proponents are correct, the
very effort to reduce crime in some of the nation’s
highest crime communities is doing the opposite in the context of mass
incarceration. As a consequence, the National Research Council (NRC) committee charged with studying the causes and consequences of
high rates of imprisonment took some time to evaluate the evidence for and against this thesis. The evidence is not conclusive, but it is suggestive. As
observed in cities across the country, incarceration is very concentrated geographically.
 Solvency – Indeterminate Sentencing
Increasing judicial discretion decreases prosecutorial discretion
– that’s net better for solving disparities.
CARLOS BERDEJÓ, April 2018, [Professor of Law and J. Howard Ziemann Fellow, Loyola
Law School, Los Angeles. "Criminalizing Race: Racial Disparities In Plea-Bargaining", Boston
College Law Review https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?
article=3659&context=bclr //DMcD]
CONCLUSION
The results presented in this Article document
the existence of racial disparities in the plea-bargaining
stage of the criminal justice process. White defendants are more likely than black
defendants to receive a reduction in their principal initial charge. As a result, white defendants
who face initial felony charges are more likely than black defendants to end up being convicted
of misdemeanors rather than more serious crimes. Similarly, white defendants initially charged
with misdemeanors are more likely than black defendants to be convicted for crimes carrying no
possible incarceration or not being convicted at all. These disparities in plea-bargaining appear to be driven by
cases in which defendants have no prior convictions [*1241] and cases which involve less serious offenses. These patterns suggest
that in "low information" cases, a
defendant's race may be used as a proxy for their likelihood to
recidivate and latent criminality. These results inform the evaluation of various current policy
debates. Efforts to mitigate racial disparities in sentencing and incarceration rates
should consider disparities in the plea-bargaining process and initial charging
decisions. Proposals aimed at restricting prosecutorial discretion by increasing judicial
discretion, for example via the elimination of statutory minimum sentences, would seem to remedy these
disparities. The results presented in this Article also highlight how racial disparities might run deeper in
misdemeanor cases, adding an empirical dimension to the concerns of those scholars who have called for the
decriminalization of misdemeanors and for increased scrutiny of the misdemeanor adjudication process. More generally, the
possible implicit nature of the biases driving these racial disparities lends support to those who have argued that the weight afforded
to evidence showing disparate impact in equal protection claims should be re-examined. The results and conclusions presented in
this Article are subject to some caveats. As with most empirical work in this area, it is difficult to establish a causal link between a
defendant's race and a criminal case outcome (in this case, charge reductions). One concern is that the models estimated above may
not be accounting for certain crime and defendant characteristics that play a role in determining plea-bargaining outcomes and that
are also correlated with the race of the defendant. Failing to control for such unobservable variables could be skewing the results.
One variable for which the earlier analyses do not control is whether a defendant was [*1242] granted bail. If black defendants in the
sample are less likely to be granted bail than white defendants, then some of the observed racial disparities in charge reduction rates
could be attributed to the fact that defendants facing pre-trial detention are more likely to plead guilty to their initial top charge.
Similarly, it could be that prosecutors are relying on defendant characteristics other than race--but that are correlated with race--to
assess the risk posed by a defendant. More generally, one must consider the possibility that the results are driven not by prosecutors
showing more mercy for white defendants, but by defense attorneys being less zealous (whether consciously or subconsciously) in
their representation of black defendants. Finally, the dataset includes cases from 2000-2006 and the results may not necessarily be
representative of Dane County's current criminal justice process. In 2010, the Wisconsin governor appointed Dane County's first
African American district attorney. And starting in 2016, Dane [*1243] County has provided implicit bias training for judges,
prosecutors and public defenders. It will be interesting to see whether recent changes in policies and personnel training have been
effective in addressing the disparities documented earlier. Setting these caveats aside, there
is no reason why the
exercise of prosecutorial discretion and the plea-bargaining process should not be subject to the
same rigorous empirical scrutiny that has been applied to judicial decision making and the
sentencing process. It would be interesting to see whether the patterns in racial disparities documented in this Article are
replicated in other jurisdictions. Empirical work should also examine more closely any disparities in plea-bargaining outcomes along
gender lines and explore the intersection of gender and race in this regard. Future work can also focus more closely on the role of the
prosecutor by examining, for example, which attributes and characteristics of prosecuting attorneys (if any) explain differences in
plea-bargaining outcomes or documenting the existence [*1244] of significant heterogeneity across individual prosecuting attorneys.
Conducting this type of empirical work requires detailed data that provides information on pre-
sentencing decisions made by prosecutors. One of the reasons why so much empirical work has focused on judges'
sentencing decisions is the fact that public entities at the state and federal levels collect and maintain comprehensive data on
sentencing. There needs to be a similar level of transparency with respect to decisions taken by actors in the pre-sentencing stages of
the criminal justice process. Collecting and maintaining such data certainly presents a more complex and challenging endeavor than
collecting data on sentencing decisions, both in terms of the number of observations and variables. Nevertheless, the Wisconsin
Circuit Courts' CCAP shows that this can be achieved. And a number of district attorney offices across the nation have tried to collect
and use data to internally identify and address instances of racial bias in the exercise of prosecutorial discretion. The availability of
this type of information would also allow courts and other external groups to scrutinize prosecutorial decisionmaking, an area that
traditionally has been less open to the public than sentencing. Decision-makers exercising discretion in a transparent criminal
[*1245] justice process can be held accountable and this accountability can help legitimize the system in the eyes of all citizens.

Prosecutorial discretion is net-worse than judicial discretion.

Independently, be wary of “empirical studies” – most fall fault to
two errors that significantly skew results.
Sonja B. Starr and M. Marit Rehavi, October 2013, [Sonja B. Starr is a Professor at the
University of Michigan Law School. M. Marit Rehavi is an Assistant Professor of Economics at
the University of British Columbia and a Fellow of the Canadian Institute for Advanced
Research., "Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and
the Effects of Booker", Yale Law Journal https://www.yalelawjournal.org/article/mandatory-
sentencing-and-racial-disparity-assessing-the-role-of-prosecutors-and-the-effects-of-
booker //DMcD]
INTRODUCTION
In the United States, one of every nine black men between the ages of twenty and thirty-four is behind
bars,1 and, in 2003, the Bureau of Justice Statistics projected that one in every three young black men could expect to be
incarcerated at some point in his life.2 These rates far exceed those of any other demographic group —for
instance, black males are incarcerated at nearly seven times the rate of white males.3 The impact of demographically concentrated
incarceration rates on offenders, families, and communities is a critical social concern.4 But why do these gaps exist? Can they be
explained by differences in criminal behavior, or by differences in how the criminal justice system treats offenders? If it is the latter,
can the process be improved by reforms, such as changes to sentencing law? These questions are not new. For decades, racial and
other “legally unwarranted” disparities in sentencing have been the subject of considerable empirical research, which has in turn
helped to shape major policy changes. Most importantly, the U.S. Sentencing Guidelines and their state counterparts were
adopted with the goal of reducing such disparities . In 2005, when the Supreme Court’s decision in United
States v. Booker rendered the formerly mandatory Guidelines merely advisory , Justice Stevens’s
dissent predicted that “[t]he result is certain to be a return to the same type of sentencing
disparities Congress sought to eliminate in 1984.”5 Whether this prediction was accurate is perhaps the foremost
empirical question in sentencing policy today. The most prominent study to date, a 2010 report of the U.S. Sentencing
Commission, gave an alarming answer: Booker and its judicial progeny had quadrupled the
black-white sentencing gap among otherwise-similar cases, from 5.5% to 23.3%.6 In January 2013, the Commission
issued an update with similar figures (revising the latter figure slightly downward, to 19.5%), this time combined with explicit calls
for legislation in effect returning the Guidelines to something fairly close to their prior binding status.7 This
Article
introduces a new empirical approach and gives a very different answer. The Commission’s
methods are hobbled by two serious limitations that also pervade the broader
empirical literature on sentencing disparity.8 First, these studies consider the judge’s final
sentencing decision in isolation, ignoring crucial earlier stages of the justice process. Those
earlier stages have important sentencing consequences , and yet these studies exclude the portions
of the ultimate sentence gap that result from earlier-stage decision-making from their estimates. Second, studies of
changes in disparity after legal changes (like Booker) have failed to disentangle the effects of the
legal change from surrounding events and background trends. This Article develops these two
critiques and discusses our own research on racial disparities among federal arrestees , which
uses a method that avoids these problems. We first highlight some findings from our recent study showing that while
a black-white gap appears to be introduced during the criminal justice process, it appears to stem largely from
prosecutors’ charging choices, especially decisions to charge defendants with “mandatory
minimum” offenses. These findings highlight the importance of taking into account the early parts of
the justice process. With that in mind, we then present our new findings on Booker, estimating its effects
not only on sentencing, but also on charging, plea-bargaining, and sentencing fact-finding, an
analysis no prior studies have performed. Far from finding evidence that judges’ use
of expanded discretion worsens disparity, we fail to find an increase in disparity and find
suggestive evidence cutting in the opposite direction.9 Our research seeks to close a surprisingly wide
gap that separates two bodies of scholarship: the theoretical and qualitative literature on how the criminal justice system functions
(which uniformly recognizes the critical role of prosecutors) and empirical research on sentencing
disparities (which effectively ignores that role). The modern criminal justice process is prosecutor-
dominated. Prosecutors have broad charging and plea-bargaining discretion, and their choices have a
huge impact on sentences. A central claim made by critics of mandatory sentencing is that
restricting judicial discretion further empowers prosecutors , who tend to exercise that
power in ways that perpetuate or worsen disparity. This “hydraulic discretion” theory has been described as a
near-consensus view of sentencing scholars.10 Yet the empirical research on sentencing disparity has not tested these claims
and fails to account for the role of prosecutorial discretion . Researchers typically estimate
sentencing disparities in federal and other courts subject to sentencing guidelines after
controlling for (among other things) the recommended guidelines sentence. But the guidelines
recommendation is itself the end product of charging , plea-bargaining, and sentencing fact-
finding. Controlling for it filters disparities in those processes out of the sentencing-disparity
estimates and gives an incomplete view of the scope and sources of sentencing disparity .11 In effect,
the existing literature focuses on disparities in compliance with the sentencing guidelines . While
this is an important piece of the sentence-disparity picture, it is far from the only piece , because decisions made
throughout the process ultimately affect the sentence. Moreover, sentencing-stage disparities might either offset
or exacerbate disparities arising earlier, making it hard to interpret them in isolation. We accordingly take a broader, process-wide
approach, constructing a dataset that links records from four different federal agencies and allows us to trace criminal cases from
arrest through sentencing. We focus on the gap between black men and white men in non-immigration cases. Instead of controlling
for the Guidelines sentence, we control for the arrest offense and other characteristics that are fixed at the beginning of the justice
process. The arrest offense is an imperfect proxy for underlying criminal behavior, but we believe it is the best proxy available for
this purpose. Our
method allows us to assess aggregate disparities introduced throughout the post-
arrest justice process, from charging through sentencing. Further, it also allows us to analyze the
contribution of each procedural stage (as well as underlying case differences) to the total black-white gap.
The problem with the prevailing method is not merely an academic concern. In Part II of this Article, we highlight and discuss key
findings of our analyses of charging and sentencing in federal criminal cases from 2007 to 2009.12 That research shows that
after controlling for the arrest offense, criminal history, and other prior characteristics, there remains a black-
white sentence-length gap of about 10%. But judges’ choices do not appear to be principally
responsible. Instead, between half and the entire gap can be explained by the prosecutor’s
initial charging decision—specifically, the decision to bring a charge carrying a “mandatory
minimum.” After controlling for pre-charge case characteristics, prosecutors in our sample were nearly twice as
likely to bring such a charge against black defendants.13 In other words, studies that focus only
on the judicial sentencing decision exclude what appears to be the most important
procedural source of disparity in sentences. A proper analysis of Booker’s effects on disparity ,
then, should take the whole justice process into account , to the extent possible. In Part III, we present the
results of such an analysis. We begin that inquiry with a simple linear time-trend analysis, which shows that, when one
measures sentence disparity in the broader way that we recommend, unexplained black-white disparity
did not grow between 2003 and 2009, the period in which the Sentencing Commission found
that it quadrupled. Indeed, our estimate of the disparity trend is negative, although imprecise. That is,
the gap in sentences for similar black and white arrestees was , if anything, slightly smaller by the
end of 2009 than it was just before Booker . The Commission’s claim that disparity grew
over that same period is an artifact of its flawed way of measuring disparity. Beyond the
question of whether disparity has changed during the period surrounding Booker, we must further ask whether it has changed
because of Booker.The two questions are not the same, but they are too often confused. In addition to the disparity-measurement
question, a second serious flaw pervades the empirical literature on sentencing-law changes : the
failure to provide a sound basis for causal inferences . This second problem is exemplified by the
Sentencing Commission’s analysis. The Commission found that disparities after Booker (averaged
over a period of years) were larger than disparities before it . Even assuming that were true, it would
still be a huge logical leap to conclude that Booker caused this increase—a classic confusion
of correlation and causation. Many things change over time—for instance, the mix of cases, the composition of the
bench and of U.S. Attorneys’ and public defenders’ offices, substantive criminal legislation and case law, and the Department of
Justice’s (DOJ’s) enforcement priorities and internal policies—and any of these changes could have racially disparate impacts on
sentences. The greater disparity in the post-Booker period, therefore, could easily have nothing to do with Booker .
Indeed, even if Booker had slowed an underlying trend of increasing disparity, the Commission’s methods would incorrectly imply
that Booker led to greater disparity. Accordingly, we
employ a different approach that can disentangle the
effect of Booker from underlying trends: a regression discontinuity-style estimator. Specifically, we
assess whether, in the immediate aftermath of Booker, there is a sharp break in an otherwise
continuous trend, which would provide a much stronger basis for inferring causality . Our method
focuses on Booker’s immediate effects, not its long-term effects, which admittedly is both a strength and a weakness. The long-term
effects are presumably what policymakers care most about, but there is no good way to identify Booker’s relationship to longer-term
trends in disparity—the causal inference problem is too serious. The immediate effects can be more rigorously assessed. Fortunately,
there is good
reason to believe that if Booker had substantially changed racial disparity patterns in
judicial decision-making, we would have seen at least part of the effect right away . Booker’s
effects on Guidelines compliance were not slow or subtle—departure rates immediately and
dramatically spiked. That is, Booker was a sudden shock to the scope of judicial discretion, and, if judges were inclined to
exercise their discretion in ways that widen the black-white gap, one would expect to see disparity jump in response to that shock,
right after Booker. We
do not see such a jump. Right after Booker, sentencing disparity did not
increase, and may have modestly dropped. If Booker did have any adverse effects on black defendants relative to white
defendants, it was probably a second-order result of charging changes: the use of mandatory minimum charges increased for black
defendants immediately after Booker, but this effect appears to have been quite short-term. We are very cautious about these
findings. Even with our approach, identifying Booker’s effects is hard. While Booker has been described as a “natural experiment,”14
as an experiment it leaves much to be desired—it changed the legal regime for every non-petty federal offense at once, leaving no
plausible control group. Our method does not require a control group and filters out longer-term trends effectively, but it could be
tricked by month-to-month fluctuations. Moreover, Booker was not a clean break in settled law; it came on the heels of a period of
serious lower-court confusion, further complicating causal inference. We conduct tests to evaluate these problems, but we cannot
erase the noise in the data or the complexity of the history. Still, what we can say is that nothing in these data suggests that judges’
use of their post-Booker discretion exacerbated racial disparity. Understanding the relative role of prosecutors and judges in
producing disparities is important. The specter of increased disparity after Booker has been prominently cited to support new
constraints on judicial discretion. For instance, the Department of Justice in the George W. Bush Administration advocated
mandatory topless guidelines—effectively, mandatory minimums but no maximums.15 The Sentencing Commission has
recently advanced a multi-pronged proposal to strengthen legislative and appellate court
constraints on judicial sentencing discretion—a proposal that in effect would restore the Guidelines very nearly to
the legal status they enjoyed before Booker.16 Such “solutions” could be counterproductive . Constraints on
judges generally empower prosecutors by making their choices more conclusive
determinants of the sentence. Our research suggests that prosecutorial decisions are important
sources of disparity—especially the decision to file mandatory minimum charges, which are prosecutors’ most powerful tools
for constraining judges. Note that we do not claim our findings prove “discrimination” by prosecutors or anyone else. We are limited
to what our data can capture, and unobserved differences between cases could justify different charging decisions or sentencing
outcomes. Still, we have rich controls, including detailed arrest offense information; criminal history; and other demographic,
geographic, and socioeconomic fields, yet substantial unexplained racial differences remain. In Part I, we briefly introduce the
federal sentencing framework and review the legal scholarship on prosecutorial and judicial discretion. In Part II, we present our
critique of the “sentencing only” approach used by the current empirical literature and discuss our preferred process-wide approach,
its strengths and limitations, and some insights that can be gleaned from it. In Part III, we present our critique of the causal
inference methods used by existing sentencing-reform research. We then pair our process-wide approach to estimating disparity
with our regression discontinuity-style approach to causal inference in order to estimate Booker’s effectson racial disparity. We
conclude with possible policy implications.
It's a zero-sum game – the more judicial discretion the better.
Sonja B. Starr and M. Marit Rehavi, October 2013, [Sonja B. Starr is a Professor at the
University of Michigan Law School. M. Marit Rehavi is an Assistant Professor of Economics at
the University of British Columbia and a Fellow of the Canadian Institute for Advanced
Research., "Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and
the Effects of Booker", Yale Law Journal https://www.yalelawjournal.org/article/mandatory-
sentencing-and-racial-disparity-assessing-the-role-of-prosecutors-and-the-effects-of-
booker //DMcD]
I. PROSECUTORS, SENTENCING, AND THE “HYDRAULIC DISCRETION” THEORY
Federal prosecutors, like their counterparts in the states, have always possessed very broad discretion.
Prosecutors choose what charges to bring, and the complex criminal code often provides a wide range of choices. Over
95% of convictions result from guilty pleas , and prosecutors control the terms of the deals they
offer defendants.17 These can include the charges of conviction (charge bargaining), sentence
recommendations and requests for departures from the usual range, and stipulations about
sentencing-relevant facts (fact bargaining). Traditionally, prosecutors’ discretion was matched by vast judicial discretion in
choosing sentences, which was constrained only by broad statutory ranges—for instance, zero to twenty years. Statutory
minimumsentences were not widespread before the 1980s, and still apply in only a minority of cases.18 Within
the statutory ranges, judges were free to tailor sentences to the facts and the offenders’ circumstances. The disadvantage was that
there was no good way to ensure that similar cases resulted in similar sentences. In 1984, citing studies finding widespread racial,
gender, inter-judge, and inter-district disparities in sentencing, Congress adopted the Sentencing Reform Act, which created a
Sentencing Commission to devise binding Sentencing Guidelines.19 Under
the Guidelines, complex rules
determine the offense level, which is based on the conviction offense plus additional aggravating
or mitigating sentencing facts, such as drug quantity or the defendant’s role in a group offense. The offense level is one of
two axes of a sentencing grid; the other is the defendant’s criminal history category. Within each grid cell is a narrow range: eight to
fourteen months, for instance.20 Prior to Booker, departures from this range were permitted only for specified reasons. By greatly
reducing judges’ discretion, the
Guidelines concentrated tremendous power in prosecutors’ hands. As Kate
Stith explains, “when
judges had discretion to impose any sentence [in the statutory range],
prosecutorial power was potentially limited or counterbalanced by the possibility of
judicial discretion.”21 But under the Guidelines, plea-bargaining much more tightly constrained
the sentence.22 The one feature of the Guidelines that was intended to limit prosecutorial power was the judge’s sentencing
fact-finding authority. This system (called “real-offense” sentencing)23 allows the judge to base a sentence even on uncharged
conduct, so long as the sentence falls within the statutoryrange for the crime of conviction. In principle, this system should reduce
prosecutors’ ability to offer to understate the defendant’s culpability in exchange for a guilty plea. Still, studies suggest that real-
offense sentencing has not constrained prosecutors very much, because in practice prosecutors very strongly
influence judges’ findings of fact. Plea agreements usually include factual stipulations, and, even though DOJ has long directed
prosecutors not to bargain over these facts, many studies have documented the persistence of fact-bargaining.24 Judges are not
bound by the factual stipulations, and the power to diverge from them (relying on sentencing-stage evidence or a probation office
report) is an important aspect of judicial discretion. Judges typically lack the incentive, however, and may lack the information, to
diverge from what the parties have agreed upon.25 One 1996 survey found that only 8% of judges said they “go behind” plea
agreements “somewhat or very frequently”; 25% said they never do, while the rest said they did so “infrequently.”26 As Nancy King
put it, “Establishing facts in an adversarial system without the assistance of adversaries is an awkward business.”27 To the
Guidelines’ many critics, this empowerment of prosecutors was a serious flaw, leading to harsh results
for defendants generally and undermining the Sentencing Reform Act’s disparity-reduction
goals. As Albert Alschuler argued, “[T]he price of whatever success the Guidelines have achieved in
reducing judge-created sentencing disparities has been the burgeoning of prosecutor-created
disparities.”28 Scholars often refer to discretion in the criminal justice system as being “hydraulic,” such that
attempts to constrain it in one place will merely shift it to another . Stephanos Bibas, for example, wrote,
“The criminal justice system operates like a toothpaste tube, and departures that are squeezed out of the judge’s end of the tube will
wind up in the prosecutor’s domain. This hydraulic pressure means that departures will still exist, but they will now occur more
often on prosecutors’ terms.”29This theory has long pervaded scholarship about the Guidelines. As Terance Miethe wrote in 1987,
“[T]his ‘hydraulic’ or ‘zero-sum’ effect is so firmly entrenched as a criticism of current reform
efforts that most researchers begin with the assumption that the displacement of discretion
exists . . . .”30 Note that, although scholars’ language often refers to shifts in “discretion,” this is a slight misnomer; the Guidelines
did not really increase prosecutors’ discretion, which was already almost boundless. Rather, they increased their power: the choices
prosecutors made more conclusively determined the sentence.31 In a 1996 survey, approximately 75% of district judges and chief
probation officers said that prosecutors were now the actors with the most influence on final sentences—more than judges
themselves.32 Prosecutors thereby obtained greater leverage in plea-bargaining —they could nearly promise
that defendants would get more lenient sentences if they pled guilty and harsher ones if they refused. In 2004, Marc Miller wrote,
“The overwhelming and dominant fact of the federal sentencing system . . . is the virtually
absolute power the
system has given prosecutors . . . . There is a lot of evidence to support this claim, but it can be
demonstrated with one simple and awesome fact: Everyone pleads guilty.”33 After the
implementation of the Guidelines in the early 1990s, plea rates rose from 87% of all federal
convictions to 97% by 2004.34 Since then, however, federal sentencing law has undergone another major change. In January
2005, the Supreme Court decided United States v. Booker, which rendered the formerly mandatory Guidelines
merely advisory.35 The Court held that a mandatory sentencing scheme in which a defendant’s maximum sentence could be
increased based on judicial fact-finding violated the Sixth Amendment right to a jury trial.36 The Court could have remedied that
defect by requiring more jury fact-finding, but it chose an alternate remedy: maintaining real-offense sentencing, but severing the
provision of the Sentencing Reform Act that rendered the Guidelines mandatory.37 The Court’s remedial choice remains reversible
by Congress,38 which has so far not taken action to reverse Booker. District courts today may depart from the Guidelines so long as
the ultimate sentence is not “unreasonable.”39 In December 2007, in Gall v. United States and Kimbrough v. United States,the
Supreme Court further clarified that courts of appeals should not deem sentences unreasonable merely because they fall outside the
Guidelines,40 and that sentencing judges may depart from the Guidelines on the basis of policy disagreements.41 Booker was widely
seen as an earthquake in federal sentencing law. Still, rendering the Guidelines advisory is not the same as eliminating them. Federal
judges are still required to calculate the Guidelines sentencing range, and, although they are then
free to depart from it, they usually do not.42 There are many possible reasons for this continued conformity: federal
judges might believe that the Guidelines meet the goal of reducing disparity,43 wish to avoid open-ended, subjective sentencing
assessments, seek insulation from criticism or reversal, or simply treat the Guidelines as an “anchor.”44 To the extent that judges
continue to follow the Guidelines, the
power the Guidelines conferred on prosecutors will presumably
remain largely intact. In addition, even if judges felt totally unconstrained by the Guidelines ,
prosecutors would retain at least two powerful sources of sentencing influence . First, their
charging and charge-bargaining choices shape the statutory minimum and maximum sentences ,
which remain mandatory. Second, because they negotiate the factual stipulations accompanying pleas and may introduce evidence
at sentencing hearings, prosecutors have enormous influence over the information that gets to judges , and
what judges know presumably will influence sentencing regardless of whether they follow the Guidelines. Thus, even in the post-
Booker era, prosecutors should be expected to play a crucial role in the processes that shape sentencing. In short, then, legal scholars
and justice system participants widely agree both that prosecutorial choices are key drivers of sentences and that sentencing law
reforms involve tradeoffs between judicial and prosecutorial power. One might expect that this broad consensus would shape
empirical research on sentencing disparities and sentencing reforms, but, as we demonstrate below, it has not.

Current federal sentencing is a massive failure. Creating new

parole-based sentencing schemes resets the logic of
incarceration and creates alternatives to incarceration for the
majority of defendants.
Jalila Jefferson-Bullock, 2016, [Jalila Jefferson-Bullock is an Associate Professor of
Law at Arizona Summit Law School. She received her A.B. from Harvard College in 1997, M.A.
in the Humanities from the University of Chicago in 1999, and J.D. from Harvard Law School in
2001., "How Much Punishment Is Enough?: Embracing Uncertainty In Modern Sentencing
Reform", Journal Of Law And Policy
https://brooklynworks.brooklaw.edu/jlp/vol24/iss2/2/ //DMcD]
INTRODUCTION
It has now become fashionable to loudly proclaim that the U.S. criminal justice system is irreparably broken and requires a complete
dismantling and total reconfiguration. The evidence is robust and the record is clear. Prisons are bloated and bursting with
prisoners; budgets are ill endowed to support them; and offenders, due to excessive periods of unfruitful incapacitation,
reenter society lacking in contributable and marketable skills . Racial disparities continue to
corrupt charging and sentencing decisions; police brutality and human massacre are, woefully,
commonplace; and the cycle continues. [*348] The United States' criminal sentencing laws too often fail
to advance any legitimate law enforcement objective. Criminologists, judges, practitioners, political leaders
on both sides of the aisle, social scientists, other impartial observers, and even President Obama point to wasted fiscal
resources, overcrowded prisons and [*349] court dockets, growing recidivism rates, and overly
punitive punishment as significant failures that sentencing reform must correct immediately.
After decades of imposing an ill-reasoned sentencing regime on multiple generations of offenders, federal sentencing
reform is finally upon us. Federal lawmakers are poised to reform criminal sentencing laws now.
There are many roots of this criminal justice crisis and numerous injurious fruits borne of it. Countless well-intended
proposals have emerged to cure federal punishment of its ills, yet one simple remedy emerges as a leader in
overhauling our outmoded, unjust sentencing structure: abolishing lengthy, determinate
federal [*350] criminal sentences will cure a litany of America's criminal justice ills . The
enactment of lengthy criminal sentence legislation relied on two misguided beliefs : (1) that long
sentences can achieve utilitarian and retributive punishment purposes ; and (2) that law and policy
makers and judges can accurately predict how much punishment is enough at sentencing . In an
effort to appear tough on crime, lawmakers chose long sentencing periods almost arbitrarily, with no
empirical foundation or justification for sentence length. It is now painfully obvious that lawmakers
indiscriminately created an overly punitive sentencing scheme with disastrous outcomes.
Strict, determinate sentencing ignores the indispensable and often overlooked principle of
uncertainty. While we know that the current [*351] federal sentencing scheme is broken, we are unsure of how to design a
new sentencing structure. The goals of federal punishment, as expressed in 18 U.S.C. § 3553(a), rely on both
utilitarian and retributivist principles that profess to punish offenders for both a larger societal
benefit and to properly penalize moral blameworthiness. The statute offers deterrence of specific
offenders, incapacitation, crime prevention, distribution of just punishment, and effective
offender rehabilitation as appropriate sentencing goals. According to 18 U.S.C. § 3553(a), federal criminal
punishment must align with the aforementioned objectives, and they should directly inform the length of criminal sentences.
Regrettably, our current
federal incarceration scheme fails to fully achieve the purposes of 18 U.S.C. §
3553(a) or any other U.S. penal code, and it has become evident that the damage
done to society and offenders
due to these exorbitantly long sentences is a substantial enough reason to restructure the
components of federal sentencing. As modern-day reformers attempt to reinvent federal sentencing laws, myriad
questions must be answered: is incarceration still the preferred punishment method? If so, how long must an offender remain
incarcerated? If not, how should offenders be punished? Where should the punishment floor or point of departure begin? And
notwithstanding the punishment mode, how much punishment is enough? This article submits that the current sentencing
reform debate must embrace the "principle of uncertainty" by admitting the impracticality of
determining the appropriate duration of incarceration at sentencing. When attempting to solve a
problem involving a high degree of doubt or improbability, the principle of uncertainty
acknowledges what we do not yet know, accepts the uncertainty, and then borrows from
experimentalist theory to create best practices that will assist in resolving the problem . This
principle must be honored in order to properly reapportion federal criminal sentencing
laws. [*352] Determinate sentencing was instituted, in part, to remedy the unfairness and lack of uniformity inherent in
indeterminate sentencing. In its present form, however, determinate sentencing has proven too rigid and
far too excessive. This is its critical defect. Its predecessor, indeterminate sentencing, while flawed
in application, was more ideologically sound. Indeterminate sentencing permitted, through
federal parole review, evaluations of [*353] whether continued incapacitation was necessary post-
incarceration. Indeterminate sentencing acknowledged that it is impossible to accurately
determine duration of incapacitation at sentencing . Creation of a new sentencing
structure that utilizes a sentencing effectiveness assessment tool post-sentencing will assist
lawmakers in formulating rational sentences that appropriately punish offenders and benefit
society. This article proposes an alternative federal sentencing model that embraces the principle of uncertainty. This new
model will punish the illegal behavior of offenders, while accepting that , currently, tools do not
exist to accurately apportion punishment at sentencing. It will also argue that probation or home
incarceration is an appropriate floor or point of departure for most federal offenses . Part I of this
article provides lessons learned from the pre-Sentencing Reform Act ("SRA") rehabilitative sentencing model by presenting a
glimpse of the history of criminal sentencing in the United States, emphasizing the shift from indeterminate to determinate
sentencing. Part II considers the failures wrought by the SRA and questions the logic of that reform. Part III examines current
criminal sentencing reform-seeking legislation, assesses the oft-neglected principle of uncertainty, and argues for its inclusion in the
current sentencing reform debate. Part IV critiques the presumption of prison, examines the impact to offenders and
the entire community of lengthy, determinate sentences, and argues that none of these outcomes are aligned with stated goals of
federal sentencing. Finally, Part V offers an alternative model of federal criminal sentencing that both promotes sentencing goals
and supports offender and community success by embracing uncertainty. This article
does not propose the total
abolition of incarceration. Instead, it proposes a new model of sentencing, which ensures that
offenders are adequately and fairly punished and prepared to successfully reenter society .

Empirics prove indeterminate sentencing with parole review is

successful – it only got rolled back because of manufactured
“tough on crime” rhetoric.
Jalila Jefferson-Bullock, 2016, [Jalila Jefferson-Bullock is an Associate Professor of
Law at Arizona Summit Law School. She received her A.B. from Harvard College in 1997, M.A.
in the Humanities from the University of Chicago in 1999, and J.D. from Harvard Law School in
2001., "How Much Punishment Is Enough?: Embracing Uncertainty In Modern Sentencing
Reform", Journal Of Law And Policy
https://brooklynworks.brooklaw.edu/jlp/vol24/iss2/2/ //DMcD]
Scrutiny of the rehabilitative model jeopardized indeterminate sentencing's future. Beginning in the
1960s, scathing criticisms of the rehabilitative model arose. By the 1970s and 1980s, increased recidivism and a tide of drug-related
violent crime drove law enforcement, academics, political leaders, and the public to begin [*365] doubting whether true
rehabilitation of offenders was occurring or even achievable. In response, the Parole Commission implemented targeted reforms
aimed at combatting allegations of rehabilitation's ineffectiveness and unfettered discretion inherent in indeterminate sentencing.
[*366] Reforms, however, proved unpersuasive, and in an attempt to ensure uniformity in
sentencing, Congress responded by wholly abolishing federal parole in the SRA . The SRA placed
sentencing exclusively under the domain of the courts , with guidance from the newly formed
Sentencing Commission. By 1987, sentencing reforms limited the Parole Commission's authority to only a few cases.
Under new, stringent criminal justice reforms, offenders would be sentenced to determinate
terms of confinement, and were required to complete 85 percent of their sentence, subject to
limited "good time" credit. Consequently, harsh punishments were arbitrarily created. [*367]
The abolition of indeterminate sentencing was fueled , in part, by the sentiment that judges
exercised unwarranted and dangerously unfettered discretion in crafting sentencing decisions .
During the pre-SRA era, judges reserved the right to consider, more heavily, offenders' ability to
rehabilitate in making sentencing decisions. That is, judges could tender sentences with a higher
regard for offenders' individual characteristics and could offer indeterminate sentences, with the benefit of
parole review. After a period of years short of the maximum sentence, parole boards would determine whether
an offender was sufficiently rehabilitated for release. In this way, the indeterminate sentencing
model acknowledged that judges were ill equipped to determine how much punishment was
enough at sentencing. Judges imposed a shorter sentence of incarceration, and then evaluated whether an offender was
appropriately rehabilitated through parole board review. If [*368] administered properly, the rehabilitative,
indeterminate sentencing model could have been wildly successful . Critics, however, argued
that indeterminate sentences were unjust and ineffective; that they were too soft on crime and were administered inconsistently
across judicial districts.

Indeterminate sentencing improves rehabilitation and conduct

while decreasing incarcerations.
Portman ‘09 [Janet; undergraduate and graduate degrees from Stanford University and a
law degree from Santa Clara University School of Law. Before joining Nolo in 1994, she
practiced law as a public defender; 6-2-2009 *created by carbon dating the web; “Indeterminate
vs Determinate Prison Sentences Explained“; criminaldefenselawyer;
https://www.criminaldefenselawyer.com/determinate-sentences.cfm; Accessed 6-25-2020; RG-
Camp]
Indeterminate sentencing used to be the rule in every state and for the federal courts as well .
Crimes usually carried a maximum sentence, but judges were free to choose among various options —
imprisonment, probation, and fines. Parole boards decided on release dates.
The principle behind indeterminate sentences is the hope that prison will rehabilitate
some offenders, and that different people respond very differently to punishment. Prison officials generally like
indeterminate sentencing because the prospect of earlier release gives prisoners an incentive to
behave while incarcerated.
With indeterminate sentencing, the goal is that offenders
who show the most progress will be paroled closer to
the minimum term than those who do not. The decision takes into account the individual offender’s
crime (including mitigating or aggravating circumstances), criminal history, conduct while in prison,
and efforts toward rehabilitation. The victims of the offender’s crime may also submit statements. There is, at least in theory, a
careful and specific evaluation before the offender is released back to the community.

Indeterminate sentencing that relies on expert decisions is best

– promotes rehabilitation and reduces recidivism.
Christopher Slobogin, Fall 2011, [Milton Underwood Professor of Law, Vanderbilt
University Law School, "Prevention As The Primary Goal Of Sentencing: The Modern Case For
Indeterminate Dispositions In Criminal Cases", San Diego Law Review
https://digital.sandiego.edu/sdlr/vol48/iss4/4/?utm_source=digital.sandiego.edu%2Fsdlr
%2Fvol48%2Fiss4%2F4&utm_medium=PDF&utm_campaign=PDFCoverPages //DMcD]
I. Introduction
Prevention of crime is clearly a legitimate goal of government. As the title to this Symposium intimates, however, pursuit of that goal
through restrictions on liberty can raise serious moral quandaries. In previous work, I have developed a set of principles describing
how the government's interest in avoiding harm to its citizens may be achieved through the individual prevention mechanisms of
incapacitation, specific deterrence, and rehabilitation without unduly undermining deontological, retributive precepts. I have
applied those principles to civil and criminal commitment regimes, detention of enemy combatants, and the death penalty. Here, the
focus is on noncapital sentencing. Sentencing
can act as a mechanism for achieving individual prevention
objectives in at least four ways. The first approach, found in determinate sentencing regimes, is to punish
people proportionate to their desert based on the nature of their crime and their culpability ; in
this type of [*1129] regime, prevention of crime is a by-product, not a goal, of punishment . A
competing approach, commonly called indeterminate sentencing, is to base disposition explicitly on
risk assessment and risk management, with release or conditional release dependent on periodic
review of the degree of risk posed. A hybrid "limiting retributivism" approach, recently recommended by the American
Law Institute, involves setting a range of punishment according to desert, but allowing a risk assessment at the front end of the
process to determine the period of confinement within that range. Another hybrid, the "post-sentence commitment" approach
represented by sexually violent predator (SVP) statutes that currently exist in the United States, is to intervene based on risk after a
desert-based sentence has been served. Among the electorate and legislatures in the United States, all of these sentencing schemes
have been popular, with the states close to evenly split as to which of the regimes, or combination thereof, is adopted. Among
modern-day legal academics, in contrast, determinate sentencing and limiting retributivism tend to be preferred over indeterminate
sentencing and post-sentence commitment, at least in part because the latter two options are viewed as immoral. This Article
contends to the contrary that, properly constituted, indeterminate sentencing is both a morally
defensible method of preventing crime and the optimal regime [*1130] for doing so, at least for crimes
against person and most other street crimes. More specifically, the position defended in this Article is that, once a person is
convicted of an offense, the duration and nature of sentence should be based on a back-end
decision made by experts in recidivism reduction, within broad ranges set by the legislature. Compared
to determinate sentencing, the sentencing regime advanced in this Article relies on wider
sentence ranges and explicit assessments of risk, cabined only very loosely by desert. Compared to limiting
retributivism, the key difference is that risk assessments are periodic rather than made at the front end, thus producing sentences
that are much more individualized and flexible. Finally, post-sentence commitment based on risk would not make sense in an
indeterminate sentencing regime that is already focused on that criterion. The territory covered in this Article, particularly as it
addresses the debate between deontological retributivists and utilitarians, is well trodden. But this Article seeks to provide new
perspectives on the morality, legality, and practicality of indeterminate sentencing. It starts with an outline of what a properly
constituted indeterminate sentencing regime would look like. It then defends this regime against numerous objections.

Indeterminate sentencing spills over to plea bargains – it takes

away prosecutors’ power to coerce defendants into acceptance
George Fisher, March 2k, [Law Professor at Stanford University. "Plea Bargaining's
Triumph", Yale Law Journal https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=7943&context=ylj //DMcD]
There is no glory in plea bargaining. In place of a noble clash for truth, plea bargaining gives us a
skulking truce. Opposing lawyers shrink from battle, and the jury's empty box signals the system's
disappointment. But though its victory merits no fanfare, plea bargaining has triumphed. Bloodlessly and
clandestinely, it has swept across the penal landscape and driven our vanquished jury into small
pockets of resistance. Plea bargaining may be, as some chroniclers claim, the invading barbarian. But it has won all the same.
The battle has been lost for some time . It was lost at least by the time prominent observers of the 1920s first lamented
our "vanishing jury," and in some places it was lost decades before then. In the years since the jury succumbed in a war few knew it
was waging, advancing waves of who-lost-the-jury scholarship have tried to retrace the path of defeat. Much of this work has
charged that the ever-weightier burden of modern jury trials overbore the system, which surrendered to the plea bargain's efficiency
to avert collapse. Another, newer collection of studies looks beyond the courtroom to spy out broader social forces that aided plea
bargaining's cause. But in the breadth of its scope, this work overlooks the first principle of conflict: that victory goes to the powerful.
And so while we can find many worthy accounts of why the jury fell, we must ask as well why plea bargaining triumphed. Like most
of history's victors, plea bargaining won in great part because it served the interests of the powerful . In the
battlefield of the criminal courts, the kind of power that mattered most was the authority to dictate sentences, which judges held in
great measure and prosecutors in a compromised but still substantial way. To track the course of plea bargaining's rise, we must
discover how prosecutors, who had an almost inherent interest in plea bargaining, secured the power
to make it happen, and why judges, who inherently had the power to make it happen, began to see it
as in their interest. In this account of plea bargaining's rise, legislators will play a large role, for their power to allocate
sentencing authority between prosecutor and judge tilted the terms of battle. And criminal defendants, who held a nominally
absolute power to plead or not to plead but who often found themselves hopelessly undefended, must play a real if complicated part.
This is not, then, a "social history" of plea bargaining's rise, if by that we mean a story that highlights the play of social forces and
minimizes the role of human actors. Although recent scholars have put forth appealing accounts of the electoral pressure of new
immigrants or the analogical force of new industry in the creation of "assembly-line justice," these 1theories either stand without
evidence or fall beside the point. Plea bargaining's triumph was manifestly the work of those courtroom actors who stood to gain
from it. To the extent that external actors, especially legislators, played [*860] a conscious role in the struggle, they mainly took
sides with the ultimately defeated jury trial. And to the extent that broader social forces, such as immigration and industrialization,
influenced the outcome of the conflict, they did so by increasing the criminal caseload on the one hand and the civil caseload on the
other, thereby altering the interests and options of prosecutors and judges. And yet in one striking way, the story of plea bargaining's
rise is bigger than the actors who made it happen. Plea bargaining, once it took hold, possessed a power of its own. That power
derived ultimately from the individual power of those whose interests plea bargaining served, but in its collective form that power
made plea bargaining a dominant force in the evolution of modern American criminal procedure. Sometimes, plea bargaining's
influence appears on the face of the historical record. This is most true in the case of probation, one of the most enduring
nineteenth-century contributions to our penal mechanisms. I will argue that the birth of probation was in some part, and perhaps in
large part, the work of prosecutors who sought a new way to expand their power to bargain for pleas. Once in place, probation grew
in symbiosis with plea bargaining and became in time one of the most useful tools of lawyers cutting deals. Plea bargaining's role in
shaping other procedural institutions appears more subtly in the historical record. But the unmistakable correlation between those
procedural changes that have survived and thrived and those that aided plea bargaining's cause compels a conclusion that plea
The demise of the
bargaining has so fast a grip on our institutions of justice that antagonistic institutions cannot survive.
indeterminate sentence, one of the most promising of the late nineteenth century's
progressive brainchildren, bears the mark of plea bargaining's malice. A true indeterminate
sentence, in which only prison officials and parole boards could set the length of criminal sentences, would have
stripped both judges and prosecutors of the power to bargain over the length of terms
and would have hobbled the plea-bargaining regime. But though widely promoted, true
indeterminate sentences never emerged, and even the half-measure that we have come to know as parole
found its development stunted when it threatened plea bargaining's dominance. Probation's rise and the indeterminate
sentence's fall are but two of plea bargaining's victories.

American sentencing is corrupted – a shift to true indeterminate

sentencing would undermine the plea bargaining regime.
George Fisher, March 2k, [Law Professor at Stanford University. "Plea Bargaining's
Triumph", Yale Law Journal https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=7943&context=ylj //DMcD]
B. Principles: The Effects of Probation and Parole
Even if judges came to feel the caseload pressure long felt by prosecutors, a principled judge nonetheless might have refused to commit himself to a particular sentence without first hearing all the information
normally supplied by a trial or sentencing hearing. The legislature may have resolved any such conscientious objection to plea bargaining, however, when it institutionalized the public probation officer as a reliable
and arguably impartial source of information about the defendant's background and alleged offense. The 1878 act that created a probation officer for Suffolk County charged that person with the "duty...to attend
the sessions of the courts of criminal jurisdiction...,to investigate the cases of persons charged with or convicted of crimes and misdemeanors, and to recommend to such courts the placing on probation of such
persons as may reasonably be expected to be reformed without punishment." The 1880 act extending probation officers to the rest of the state required them "to [*1002] carefully inquire into the character and
offence of every person arrested for crime" and assigned them "the special duty...to inform the court, so far as is possible, whether a person on trial has previously been convicted of any crime." With this
information in hand, a judge could settle on a sentence in good conscience without the court proceedings that once supplied the same information. From the beginning, probation officers fulfilled the duties
assigned them by these acts to gather information and relay it to the court. Boston's first public probation officer, Edward H. Savage, reported in 1881 on his investigatory activities the year before: I have visited
the City Prison every morning, taken a list of the names, and offences of those in custody, and the names of arresting officers, seen the prisoners at their cells, then repaired to the court, had interviews with officers
and others interested, in order to be prepared to take action in any case that seemed to demand attention. Several years later, Savage elaborated: It becomes the important duty of the [probation] officer to make a
thorough investigation into the reputation and true character of the offender. It is not enough to learn what people say; but the officer should have a personal interview with the prisoner, study his disposition, his
intentions, his constitutional make-up, and, as far as possible, learn the probabilities of reform. Savage repeated this investigatory course for 698 defendants in 1879 and for more than 3000 in 1882 and each of
several years to follow. Of course, none of this well-collected information could have helped the court to reach an appropriate sentence unless the probation officer passed it on. And although both the 1878 and the
1880 statutes gave probation officers the duty to "recommend" to the courts which defendants should be placed on probation - and no doubt envisioned that probation [*1003] officers would convey the results of
their investigations at that time - neither statute made it clear whether probation officers could make those reports before conviction. It would have done little to assist plea bargaining if the judge heard the needed
information only after a trial or guilty plea. The 1880 law's imposition of a "special duty [on] each probation officer to inform the court...whether a person on trial has previously been convicted of any crime" surely
seems to require a report before conviction, but a 1916 probation manual declared it to be "doubtful if even...[this provision] authorizes such information to be given prior to a determination of guilt." The manual
adds that "with this doubtful exception, the probation officer's duty in cases before the court begins after conviction." The probation manual perhaps protests too much. Why instruct probation officers to withhold
information from the court until after conviction unless there was pressure on them to do otherwise? An English observer's 1899 report to the House of Commons on the activity of Boston's probation officers
seems to confirm our suspicions. The observer quoted from a "statement of the methods employed in carrying out his duties [that] was prepared for me by Mr. Keefe, the Chief Probation Officer," and that was
"confirmed" by the presiding judge of the Boston courts: The probation officer visits the prison daily at 7 o'clock, a.m., talks with each prisoner, ascertaining the facts of his connection with the offence charged, his
address, his former record (if any) and any information of benefit to the prisoner, keeping in mind the good of the Commonwealth. The records of drunkenness are looked over, former arrests recorded and given
to the presiding Judge for reference when the prisoner is called. The assistant probation officers (in the cases of drunkenness) visit the homes each morning, reporting to the Judge, when the prisoner is called,
facts ascertained at the homes. If the prisoner provides for his family and has steady work,...[he] is usually placed on probation… In many cases the Judge cannot get at the true facts when the case is presented to
the Court and depends upon the probation officer's investigation in deciding the case. Contrary to the probation manual's admonitions, probation officers apparently disclosed a great deal of information to the
court before conviction - information that might have gone far to ease the qualms of conscientious judges who thought it wrong to pass sentence with less than full information. Perhaps, therefore, we have come
upon another way, beyond encouraging first offenders to plead guilty, in which probation assisted plea bargaining's rise. The nineteenth century's other distinctive contribution to penal practices also may have

In 1870, a prominent
meeting in Cincinnati of the American Prison Association, chaired by
eased judges' principled objections to plea bargaining.

future President Rutherford B. Hayes, launched the indeterminate-sentencing movement in America. The
reality of the indeterminate sentence, had it ever taken hold in its truest form, would have done much
to wreck the plea-bargaining regime: If the judge had no other role than to dispatch the
defendant to prison and if other authorities determined the date of release , then the only
meaningful promise the judge could make in exchange for the defendant's guilty plea would
have been to put the defendant on probation rather than send him to prison. Plea bargaining would
not have died in such a setting - we already have seen that defendants often pled guilty to win a chance at probation - but neither
would it have flourished, for no conscientious judge could promise to spare serious criminals from serving any time at all. In Part
VII, I will return to this clash between plea bargaining and the indeterminate sentence to show how
the plea-bargaining regime succeeded in putting down this challenge to its forward march. [*1005] Now,
though, it is important to see what sustenance plea bargaining drew from the principles of the indeterminate sentence. For
even as the true indeterminate sentence fell to history's dust heap, the concept survived in corrupted forms, and its
theoretical underpinnings proved more lasting than the institution itself . Those underpinnings were quite
simple: First, punishment should look to the future and not the past. That is, the critical concern in arriving at a just sentence was
not what the defendant had done, but when it would be safe again to release him upon the community. The second underpinning
followed from the first: Because the judge, even after trial, knew little more about the defendant's capacity for reform than what one
could learn from a study of his past behavior, the judge was distinctly unqualified to pass a fixed sentence. "It is absurd," wrote a
former Massachusetts prison commissioner and a leading advocate of the indeterminate sentence in 1899, " to
suppose that
any judge can tell in 1900 whether a criminal will or will not be fit to return to the community in
1905." [*1006] No doubt this assertion of judicial incapacity to fix the right sentence aroused judges' indignation. Making matters
worse, state legislatures in fact began to carve away at judicial sentencing authority. Massachusetts helped lead the trend: In 1857
and 1858, long before the Cincinnati Congress, the legislature provided for "statutory good time" - a fixed reduction from the judge's
sentence that convicts could earn by their good behavior in prison. In 1880, the legislature granted probation officers the power to
recommend the release of any misdemeanant with less than six months left to serve and required the district attorney, not the judge,
to approve the release under this act of any person sentenced in superior court. An 1884 law permitted the prison commissioners to
release any convict they deemed "reformed." The legislature created its first almost-genuine indeterminate sentence in 1886, but as
judges could use this sentencing option or not as they pleased, the balance of sentencing power did not shift greatly. Finally, by acts
of 1894 and 1895, the legislature put in place the parole regime that most of us know today as the "indeterminate sentence," which
required judges to set minimum and maximum terms when they sent a convict to state prison and gave prison authorities the power
to choose a release date between those bounds. The same English observer I quoted earlier expressed his astonishment at American
parole laws that "violated the fundamental principle that… [*1007] the sentence of the court shall be the final arbitrament of the
case." He concluded that they sprang in part from a "want of respect for, and confidence in, the State's Judiciary." It is hard to
imagine that American judges missed the slight these laws implied. To the extent that the gravity of their sentencing power had ever
held them back from casting it among the lots of the gaming table, the considered judgment of legislators that the judges' word
should not be the last must have weakened their resistance. Moreover, the knowledge that another authority would later adjust the
sentences of the court must have made it seem at least a little less important to get those sentences exactly right. Hence both
probation and the indeterminate sentence eased judges' principled objections to engaging in plea bargaining's human trade. Even as
probation officers supplied information that let judges set an appropriate sentence without hearing evidence, the principles of the
indeterminate sentence released judges from their obligation to set that sentence with precision. With their moral guard down and
with alarming civil caseloads pressing them to cut deals where they could, judges perhaps gave in to temptation and dealt.
 Indeterminate – AT: Clemency
Parole is key – it’s statistically proven to have higher release rates
than clemency.
Morrow et. al. ‘19 [Katherine Puzauskas & Kevin Morrow; Professors for the Sandra Day
O'Connor College of Law; 2019; “NO INDETERMINATE SENTENCING WITHOUT PAROLE“;
Ohio Northern University Law Review, Volume 44 Issue 2 Article 3;
https://digitalcommons.onu.edu/cgi/viewcontent.cgi?article=1015&context=onu_law_review;
Accessed 7-6-2020; RG-Camp]
Statistics provided by the Arizona Board of Clemency show that between 2004 and 2016 the Board heard
an average of 594.9 clemency hearings per year, recommended an average of 48.2 prisoners a year
to the governor who granted clemency to an average of 6.7, or 1.5% of all applicants.179 During that same
period, the Board granted an average of 88 out of 436 parole applications a year, or 21.3%.180 The data in
Figure 1 and Figure 2 clearly shows that parole offers a significantly higher opportunity for
release than clemency.
Clemency in Arizona does not offer the same consideration for release that parole does.
Prisoners described by the Arizona courts as “eligible for other forms of release, such as executive clemency,”182 are denied
a fundamental requirement of due process.183 Unlike the Arizona courts, the Supreme Court of the United
States’ Solem decision determined the defendants “argument that he is not likely to actually be released”
is relevant.184 Arizona data comparing the likelihood of obtaining a commutation of sentence versus parole shows that a
prisoner is fifteen times more likely on average to be released on parole than clemency and in
some years parole applicants are thirty-one times more likely to be released.185 Clemency is neither
legally nor factually comparable to parole as an opportunity to be heard or released.

IV. ANALYSIS

Arizona’s lack of parole consideration after Truth-in-Sentencing creates three legal deficiencies depending on
the sentenced imposed: (1) capital defendants denied their due process right under Simmons and Lynch
III to inform the jury they would be ineligible for parole are entitled to a new jury sentencing; (2) prisoners sentenced by
the court to life with the possibility of “parole” after twenty-five years that are denied a parole hearing are
denied a due process right to be heard; and (3) defendants who pled guilty with a stipulated
sentence of life with the possibility of “parole ” after twenty-five years are likely able to either withdraw
from their plea agreements when those deals are breached by the state’s inability to uphold the promised parole
hearings or request the judiciary to order specific performance on their pleas .186
 Indeterminate – AT: Deterrence
Deterrence fails – empirics.
Christopher Slobogin, Fall 2011, [Milton Underwood Professor of Law, Vanderbilt
University Law School, "Prevention As The Primary Goal Of Sentencing: The Modern Case For
Indeterminate Dispositions In Criminal Cases", San Diego Law Review
https://digital.sandiego.edu/sdlr/vol48/iss4/4/?utm_source=digital.sandiego.edu%2Fsdlr
%2Fvol48%2Fiss4%2F4&utm_medium=PDF&utm_campaign=PDFCoverPages //DMcD]
D. Objections 5 and 6: Indeterminate Sentencing, Deterrence, and Norm Compliance One might
assume that if potential offenders know that any sentence they receive will be indeterminate
rather than a time certain, they may be more likely to roll the antisocial dice . In fact, the effect of
criminal law doctrine on crime is much more complex. Research strongly suggests that for most offenders
concern about punishment has very little impact on the decision to commit crime .
As one study of imprisoned offenders found, the vast majority of criminals "are impervious to
harsher punishments because no feasible detection rate or punishment scheme would arrest
the impelling forces behind their behaviors, which might include drugs, fight-or-flight
responses, or irrational thought." To the extent criminal sanctions are able to buy deterrence, indeterminate sentencing
may even maximize it. Potential first time offenders cannot know ahead of time either the nature or
the duration of their disposition if convicted, an uncertainty that could increase reluctance to
commit crime. In the meantime, potential reoffenders, if they think about punishment at all, will
probably guess - often correctly - that the government's response to new crimes will be progressively
tougher, which should also enhance deterrence. The deterrence objection to indeterminate sentencing is closely
related to the concern alluded to above that it undermines the expressive function of the criminal law. As Henry Hart put it years
ago, a criminal justice system based on prevention rather than desert might "undermine [*1164] the foundation of a free society's
effort to build up each individual's sense of responsibility as a guide and a stimulus to the constructive development of his capacity
for effectual and fruitful decision." A more instrumental argument along these lines, made by Paul Robinson and John Darley, is that
if sentences depart dramatically or consistently from consensus views on the punishment that is deserved, people will lose respect
for the law and perhaps even become more willing to disobey it. Both of these points suggest that indeterminate sentences could lead
to more criminal activity among the general population, not just among those who are intrinsically predisposed to antisocial
behavior but also among those who are typically law-abiding. A system that did not visit any sanction on those who commit crime, or
that routinely released serious offenders after a short time and confined minor offenders for prolonged periods, might well produce
the hypothesized effects. But there is virtually
no empirical support for the position that an
indeterminate sentencing regime of the type proposed here would foster
noncompliance with the law. Certainly the indeterminate regimes that have existed throughout the
first three-quarters of the twentieth century have not been associated with lessened deterrence , a
loosening of society's moral structure, or greater disdain for the law and government authorities. It is also worth noting that the
criminal law is only a minor player in shaping societal character; family, peers, schools, churches, and various other institutions are
much more likely to function in such a role. Nonetheless, the concerns discussed here may require sentences longer than those
strictly necessary as a prevention measure, in two situations. First, it may turn out, contrary to the assertions just made, that
indeterminate sentencing in its pure form is so poor at capturing the urge to condemn that noncompliance, even by normally law-
abiding [*1165] citizens, increases. If so, legislatures could authorize and courts could impose high sentencing maxima, graded
among crimes according to desert. This arrangement would probably satisfy expressive retributive urges but at the same time allow
earlier release if a risk assessment so dictates; it would also allay the concerns of those worried about de facto lifetime confinement
based on risk assessments uncapped by any dispositional limitation. Second, when they know risk is the sole focus of sentencing,
some people who believe they have few risk factors may calculate that they get at least one free bite at the apple and commit crime as
a result. In these situations, some prison time might be necessary even in the absence of significant risk. The combination of these
concerns might result in a sentencing system similar to the original Model Penal Code's scheme, which established wide sentencing
ranges for felonies that all began at one year and increased in breadth according to crime severity, with the caveat that even one-year
sentences could be reduced in light of the crime and the history and character of the defendant. This type of system would differ
from limiting retributivism because no particular minimum sentence would be required, the sentence range would be broader, and
most importantly, risk would be determined at the back end by an expert panel rather than at the front end by a judge.
 Indeterminate – AT: Dignity/Victims
No internal to dignity or victims.
Christopher Slobogin, Fall 2011, [Milton Underwood Professor of Law, Vanderbilt
University Law School, "Prevention As The Primary Goal Of Sentencing: The Modern Case For
Indeterminate Dispositions In Criminal Cases", San Diego Law Review
https://digital.sandiego.edu/sdlr/vol48/iss4/4/?utm_source=digital.sandiego.edu%2Fsdlr
%2Fvol48%2Fiss4%2F4&utm_medium=PDF&utm_campaign=PDFCoverPages //DMcD]
C. Objections3 and 4: Indeterminate Sentencing andOffender-Victim Dignity Because
indeterminate sentences are based on risk rather than culpability , another concern is that they
denigrate the dignity of the offender and the victim. Herbert Morris, for instance, insisted that desert-
based punishment is necessary to affirm the responsibility, and therefore the humanity, of the
person who violates the law. Jean Hampton argued that desert-based punishment is required to affirm the victim's worth.
Antony Duff has similarly focused on the "communicative purpose" of punishment; to him, punishment is a necessary expression of
"what we, as a polity, owe to victims, to offenders, and to ourselves as a political community" as well as an effort to further the
offender's "moral rehabilitation" through persuasion as opposed to brute control. The fact that an indeterminate
sentence must be preceded by a conviction that announces the offender's moral culpability may
meet the goals expressed by Morris, Hampton, and Duff. The verdict tells the offender, the victim, and society
at large that the offender has been found accountable . If it is still felt that sentencing must also serve that function,
a closer look at how indeterminate sentencing works should allay concerns about whether it
adequately attends to offender dignity and victim vindication (the impact of indeterminate sentencing on
societal views is considered in Part III.D). As a matter of constitutional law, an indeterminate sentence must include
treatment designed to reduce risk - or to use modern nomenclature, a risk-needs management program - that will
concomitantly reduce the duration of the intervention. Otherwise, the least drastic means principle would be violated. Risk
management can take a number of different forms. But a consistent feature of any such program is that it stresses
offender responsibility for criminal actions, in a much more direct manner than a pronouncement by a judge that the offender
deserves a [*1162] particular sentence for what he or she has done. For instance, in the sex offender context, a very
common risk management technique is cognitive behavior therapy, which stresses the offender's ability to change behavior through
cognitive restructuring and avoiding risky situations. The primary message of this type of therapy is that actions have consequences
and that offenders are accountable for those consequences. As one article described this type of therapy, Treatment focuses on
reducing denial and cognitive distortions or minimizations, which are the rationalizations that offenders use to justify and maintain
their behavior … . [and also] attempts to develop victim empathy within the offender under the assumption that recognition of
risk management
victim impact will serve as a motivator to avoid future offending behavior. As this last comment indicates,
programs do not ignore the victim's concerns either. Indeed, compared to determinate sentencing,
where the victim is forgotten once sentence is imposed - and perhaps even before that point - risk
management often incorporates victims into the dispositional process . The best known method of doing so
is most commonly called "restorative justice," a term meant to describe an array of programs that include offender-victim
mediation and offender apology and restitution. Restorative justice not only is designed to reduce offenders' risk by impressing upon
them the palpable harm they have caused and facilitating their reintegration into the community but also is meant to empower the
victim by allowing him or her to confront the offender and perhaps even to help fashion disposition. [*1163]
 Indeterminate – AT: Judicial Disparity
Judicial disparity is insignificant, but the guidelines don’t solve it
anyway.
Albert W. Alschuler, October 2005, [Julius Kreeger Professor of Law and Criminology,
University of Chicago., "The Normative And Empirical Failure Of The Federal Guidelines",
Stanford Law Review https://www.jstor.org/stable/40040253 //DMcD]
A. Judicial Variation
The Sentencing Commission notes, "The legislative history of the [Sentencing Reform Act of 1984] clearly shows … that different
treatment by different judges was the chief problem the Act was designed to address, as well as regional differences in sentencing."
The first
post-Guidelines study to focus on how much sentencing outcomes depended on the
identity of the sentencing judge is also the study whose methodology is the easiest for nonprofessionals to understand.
Joel Waldfogel examined sentences in three federal districts in which cases were assigned randomly to judges and every judge
appeared to have a comparable mix of cases over time. Waldfogel determined the length of the average sentence imposed in each
found that
district before and after the Guidelines and then how much each individual sentence deviated from the average. He
the judges who imposed below-average sentences before the Guidelines imposed below-average
sentences thereafter. The judges who formerly imposed above-average sentences still imposed
them too. Waldfogel averaged the amount by which all sentences in each court deviated from the court's overall average to
determine the "mean absolute deviation." If the Sentencing Guidelines had reduced the influence of the judge's identity on
sentencing - that is, if they had brought judges closer together - this measure of disparity should have declined following
implementation of the Guidelines. Waldfogel found, however, that judicial disparity increased significantly
in two of the three districts studied and remained essentially unchanged in the third . In the District
of Connecticut, the mean deviation increased from 4.2 months before the Guidelines to 9.9 months
after; in the Southern District of New York, it rose from 5.8 to 10.4 months; and in the Northern District of California, it rose
insignificantly from 4.2 to 4.4 months. Critics of the Federal Sentencing Guidelines warned of the evils the
Guidelines would produce, but none of them suggested (or imagined) that the Guidelines would
increase interjudge disparity. Three later studies did report some reductions of disparity in the sentences judges imposed,
but the reductions ranged from small to negligible. [*97] Abigail Payne examined interjudge disparity in three federal district courts.
She concluded that the disparity
attributable to differences among the judges before the Guidelines
was small - less than 5% of the total variation in sentences. A consistent finding of the post-
Guideline studies has been that interjudge variation before the Guidelines was much smaller than
sentencing reformers evidently believed it to be. The sentencing reformers relied in significant part on differences
in judicial responses to hypothetical cases, and real-world sentencing is apparently different. Although the level of interjudge
disparity declined in two of the districts studied, Payne described the decline as negligible. A distinctive feature of Payne's study was
its effort to distinguish the influence of the Sentencing Guidelines from that of mandatory minimum sentencing legislation that
became effective at about the same time. Like the Sentencing Guidelines, mandatory minimum sentences can reduce disparity - for
example, by requiring all judges to impose more severe sentences than any of the judges would have chosen if allowed to consider
cases on their merits. Payne studied drug crimes and property crimes separately because, although the Sentencing Guidelines
applied to both sorts of crime, the mandatory minimums applied only to the drug crimes. In two of her three districts, Payne
found no reduction of disparity in property-case sentences . She inferred that the overall reduction of disparity
was attributable mostly to the mandatory minimums. A public defender, an economist, and a prominent critic of the Federal
Sentencing Guidelines conducted the study most supportive of the hypothesis that the Guidelines had reduced interjudge disparity.
These authors reported [*98] that the expected difference in the sentence lengths of two judges receiving comparable cases was
sixteen to eighteen percent in the pre-Guidelines period. This difference fell to somewhere between eight and thirteen percent after
the Guidelines were implemented. In temporal terms, the expected interjudge difference dropped from 4.9 months before the
Guidelines to 3.9 months after. The study conducted by Paul Hofer and other members of the Sentencing Commission's staff
examined more courts and more cases than any other study. In the first part of this study, the Hofer group focused on the nine cities
in which at least three judges had imposed sentences in both the pre-Guidelines and post-Guidelines periods. (These periods were
separated by ten years.) The researchers
reported that, before the Guidelines, only 2.32% of the variation
in sentences was explained by the identity of the sentencing judge . This figure fell to an even
smaller 1.24% in the post-Guidelines period, a reduction of 1.08%. In the pre-Guidelines period, offenders
could expect the identity of the sentencing judge to make a difference of about 7.87 months in their sentences. With
the
Guidelines in effect, the expected difference in sentence attributable to the judge fell to 7.61
months - 0.26 months less. In other words, in the average case, the Guidelines might have reduced
interjudge sentencing disparity by about a week. A second part of the Hofer study focused on the forty-
one cities that had three or more judges on the bench during both the pre-Guidelines and post-Guidelines periods (whether or not
they were the same judges). In the pre-Guidelines period, the identity of the sentencing judge explained 2.40% of the variation in
sentences. This figure fell to 1.64% in the post-Guidelines period - a 0.76% reduction. In temporal terms, the variation among
judges in the forty-one-city study increased in the post-Guidelines period - from 8.89 months before the
Guidelines to 9.69 months after, an increase of approximately three weeks. The explanation for this apparent anomaly (a
larger temporal variation attributable to the judge but a smaller percentage of total variation attributable to the judge) is that the
sentences judges imposed in the post-Guidelines period were more severe than the sentences
judges imposed before the Guidelines. A larger number of months was therefore a smaller
percentage of the total average sentence, and a larger numerical variation in months was also a smaller variation
in the percentage of variation explained. A judge who is more severe than his colleagues in white-collar crime cases [*99] may be
more lenient in drug cases. The sentencing disparities resulting from this judge's idiosyncrasies could disappear in the analysis
described above - an analysis focusing on what Hofer and his colleagues called the "primary judge effect." The researchers therefore
also sought to study what they called "offense type by judge interaction." They reported, however, that "the offense type by judge
interaction fell in the forty-one-city analysis but actually increased in the nine-city analysis." The Hofer group did not attempt to
separate the effects of the Sentencing Guidelines from those of mandatory minimum sentences. It seems likely, however, that most
or all of the reported reduction in interjudge disparity was attributable to the mandatory minimums rather than the Guidelines. By
far the largest reductions in interjudge disparity occurred in the two offense categories affected by the mandatory minimums - drugs
and firearms. Reductions were smaller in fraud and larceny cases, and interjudge disparity actually increased substantially in
immigration and robbery cases. All
of the post-Guidelines studies focused on the sentences judges
imposed rather than the sentences offenders actually served. The reported reductions in disparity in the
sentences imposed were small, and if the Parole Commission reduced disparity at all in the pre-Guidelines period, its leveling was
likely to have matched or exceeded that accomplished by the Guidelines. The
Sentencing Guidelines do not
appear to have lessened disparity at all in the variable that matters most to offenders: how
much time they must serve. Despite its flaws, the Sentencing Commission's 1991 report did address whether the
Guidelines had reduced disparity in the time offenders served. The Hofer group and the Commission's Fifteen-Year Report did not
consider this question although the data were apparently at hand. The Hofer group reported that it had "conducted some analyses
using as outcome the expected time to be served" and that it calculated the time to be served for the pre-Guidelines period by
simulating the parole-release guidelines. After this pregnant announcement, however, Hofer and his co-authors said no more. A
reader of the Sentencing Commission's Fifteen-Year Report would not learn that, according to one study by the Commission's staff,
interjudge disparity decreased by only one week per case. This reader also would not learn that, according to another staff study, this
disparity actually increased by three weeks per case. Instead, the reader would discover statements like this: Rigorous statistical
study both inside and outside the Commission confirm [sic] that the guidelines have succeeded at the job they were principally
designed to do: reduce unwarranted disparity arising from differences among judges… . The "primary judge effect" was reduced by
approximately one third to one half with the implementation of the guidelines, and "interaction [*100] effects" have been reduced
even more substantially. The Commission's assertion to the contrary notwithstanding, the
best judgment is that the
Sentencing Guidelines have failed at the job they were principally designed to do. The small
reduction in interjudge disparity reported by the Commission seems attributable mostly to the mandatory minimum sentences
rather than the Guidelines, and the reduction accomplished by both devices together was probably less than the Parole Commission
achieved in the pre-Guidelines period. The Sentencing Commission's 258-box sentencing grid appears to have lived in vain.
 Indeterminate – AT: Rehabilitation Fails
Rehabilitation works and saves money.
Christopher Slobogin, Fall 2011, [Milton Underwood Professor of Law, Vanderbilt
University Law School, "Prevention As The Primary Goal Of Sentencing: The Modern Case For
Indeterminate Dispositions In Criminal Cases", San Diego Law Review
https://digital.sandiego.edu/sdlr/vol48/iss4/4/?utm_source=digital.sandiego.edu%2Fsdlr
%2Fvol48%2Fiss4%2F4&utm_medium=PDF&utm_campaign=PDFCoverPages //DMcD]
E. Objections 7, 8, and 9: Indeterminate Sentencing and Treatment, Cost, and Offender Morale
Indeterminate sentencing would be focused on reducing risk through rehabilitative efforts . Two
traditional objections to this approach are that rehabilitation seldom works and that, in any
event, it is extremely costly. A related objection is that when release decisions depend on back-end calculations by
correctional officials - as is the case with indeterminate sentencing - rather than front-end evaluations by judges - as occurs under
either determinate sentencing or limiting retributivism - unequal treatment, demoralized offenders, and cynicism about the system
are more likely. [*1166] Rehabilitation is not a panacea. But even
the criminal behavior of sex offenders, who are
a particularly difficult group to treat, can be reduced through modern treatment programs. For
instance, a review of sex offender treatment programs around the world found that, on average,
treatment cut sexual recidivism almost by half, from 17% to 10%, and general recidivism by more
than a third, from 51% to 32%. Metareviews of other offender treatment programs , especially those using
cognitive-behavioral therapy, show similar reductions in recidivism. These figures represent a major public
health improvement in all senses of the term. Comprehensive correctional programs obviously cost more than a prison
system that merely aims at exacting punishment. Indeterminate sentencing, correctly implemented, requires periodic
evaluations and hearings, treatment teams, and rehabilitation resources in the community as well as in places of confinement.
Once established, however, community programs are less expensive on a per capita basis than
institutions and are much better at reducing recidivism than institutions , which tend to
exacerbate it. Overarching societal costs must also be taken into account. The cost of a typical life of crime is estimated to be at
least $ 1.3 million. Rehabilitation shortens that type of life. It also shortens time spent incarcerated and under state
supervision, resulting in further savings. Of course, all of these programs can take place in a determinate sentencing
regime as well. But the legal basis for treatment in a determinate regime is much weaker. A constitutional right to treatment,
designed to reduce risk, does not exist in a system in which desert is the goal because treatment is not relevant to that goal; offenders
do not "deserve" treatment. In any event, a treatment orientation does not sit [*1167] well in a retributive framework. Treatment in
the community, which should be a dispositional staple of indeterminate sentencing, does not translate easily into retributive
punishment, which is usually associated with some type of institutionalization. Furthermore, because
sentences are set at
the front end in both a determinate sentencing regime and a regime based on limiting retributivism, success
at treatment has no effect on release, a feature that presumably diminishes the incentive to
participate in rehabilitative programs in the first instance. The front-end nature of determinate systems is seen by
some as a major benefit, however, because it eliminates the potential for discriminatory or arbitrary decisions about release.
Undoubtedly, such a potential exists, especially if correctional personnel are ill-trained, risk-averse, or lethargic. Furthermore, even
a well-run program may strike some offenders as unfair when they see another offender convicted of the same offense released
before they are, or when they are not released despite what they perceive to be good faith efforts to reform. The latter phenomenon
can be exacerbated by risk assessment techniques that rely primarily or wholly on static factors such as age at time of offense,
gender, and prior criminal history, about which the offender can do nothing. These concerns can be addressed in part by ensuring
that trained professionals conduct periodic reviews based on structured professional judgments that take into account clinical and
management risk factors as well as historical ones. An additional advantage of these structured [*1168] assessments is that they
ensure transparency about the decisionmaking process. Together with the periodic review requirement, they are arguably much less
subject to abuse than the everyday charging and bargaining decisions made by prosecutors, which are notoriously difficult to
monitor and result in extremely disparate verdicts, yet form the sole bases for sentences in determinate sentencing regimes.
Unfortunately, abuses
of discretion occur in any system. It is not clear that indeterminate sentencing
is worse than any other system in that regard.
 AT: Discretion Bad – Checks
Sentencing commissions and higher justice appeals check disparate
sentencing.
Paratore et. al. ’14 [JASON M. PARATORE and JOURDAN E. BOWMAN; Experts in
indeterminate sentencing guidelines and criminology, writing for the Encyclopedia of
Criminology and Criminal Justice, an international, comprehensive reference tool for the field of
Criminology and Criminal Justice that is both cutting edge as well as of very high scientific
quality and prestige; 1-22-2014; Volumes 1-5; The Encyclopedia of Criminology and Criminal
Justice,; https://onlinelibrary.wiley.com/doi/abs/10.1002/9781118517383.wbeccj167; Accessed
6-26-2020; RG-Camp]
In an effort to eliminate disparity in sentencing, commissions were established to develop
guidelines to assist judges with sentencing. The United States Sentencing Commission (USSC) was created
by the 1984 Sentencing Reform Act (SRA) and is responsible for overseeing and evaluating federal-court
sentencing procedures. The Commission is responsible for the creation of the Federal Sentencing Guidelines, which replaced
indeterminate sentencing. Unlike some commissions that were created by Congress, the USSC began as a permanent, seven-member
committee, whose members are appointed by the President and approved by Congress. Further, each member serves a six-year term.
Passage of the SRA essentially eliminated indeterminate sentencing in the federal judiciary. It has been suggested that the basis for
SRA was the belief by some that politics and ideology influenced federal trial-court judges’ sentencing decisions in criminal cases.
Interestingly, no more than four members with the same political party affiliation can serve on the Commission at any one time
(Bibas, Schanzenbach, and Tiller 2009). The
mandate of the sentencing commission was to establish
sentencing guidelines for federal offenses. As a result, sentences of federal district
court judges are currently guided by determinate sentences prescribed in the
Federal Sentencing Guidelines (Thompson 2006).
Following the establishment of a federal sentencing commission, many states
established sentencing
commissions to oversee the development of sentencing guidelines and review
sentences of offenders convicted in major trial courts; depending on the jurisdiction, these courts are referred
to as criminal courts, district courts, orfelony courts.

State sentencing commissions

established sentencing guidelines , based on criminal statutes in the respective state,
to assist sentencing authorities with sentencing. In most states the commissions also examine
patterns of sentencing, review sentences, and provide recommendations for sentencing to the courts. One
of the main criticisms of judges regarding indeterminate sentencing is that the sentences allowed agencies external to the judiciary,
that is, parole boards, authority to release offenders from prison prior to the end of their sentences. For example, agents of parole
boards, through the process of early release, allowed offenders to be released from prison and to serve the remainder of their
sentences in the community under the supervision of parole officers. In most states, the granting of parole is based on facts that are
considered at a parole hearing. Usually three or five agents of parole boards arrive at decisions based on information presented to
the panel, for example, offenders’ achievements and/or problems in prison, presentations by victims and/or victims’ families, and
recommendations from representatives of local law enforcement agencies. Some scholars believe parole subverts the intent of the
Sixth Amendment of the Constitution; however, the unconstitutionality of early release by agents of parole has not been successfully
challenged. Some argue that allowing agents of parole to determine when prisoners are released diminishes the authority of judges
and juries. Although the Supreme Court has ruled that judges and juries have authority to prescribe indeterminate sentences, it has
not ruled on the authority of parole boards to release offenders from prison before the end of their sentences (Ball 2009). In most
cases, judges
and juries prescribe the length of sentences; however, decisions by parole boards
often result in offenders not serving the prison time prescribed by sentencing authorities.
All trial-court judges demonstrate some level of concern about their decisions being challenged.
Federal district court judges are no exception; in fact they face this threat not only from convicted offenders
but also from the federal sentencing commission’s automatic review of sentences and appellate review.
Some believe that adding the additional layer of review, that is, automatic review of federal court sentences,
pressures federal district court judges to follow sentencing recommendations. Further, the outcome
of this process is less disparity in sentencing and greater legitimacy in sentences .
Sentencing guidelines, enforced by appellate review, also result in criminal sentencing that is more
transparent (Bibas et al. 2009).
The Supreme Court has rendered decisions in several landmark cases that also guide judges and juries with sentencing. For example,
the Court’s ruling in Apprendi v. New Jersey (2000) requires that sentencing authorities be guided by the
legal standard, guilt beyond a reasonable doubt, when considering any substantial fact that could
result in an increase in the maximum punishment of an offender (Ball 2009). New Jersey statute provided for a prison
sentence of 5–10 years for Apprendi’s crime; however, Apprendi was sentenced to twelve years by a judge based on the New Jersey
law that allowed enhanced sentencing if the crime met the requirements of a hate crime in which guilt is determined by a
preponderance of evidence. When appealed, the Supreme Court ruled New Jersey’s enhanced-
sentencing statute was unconstitutional because a finding of guilt based on a preponderance of
evidence violated due process. This resulted in New Jersey changing the standard of guilt in the statute from
preponderance of evidence to beyond a reasonable doubt. Convictions in similar cases, that is, United States v. Booker and
United States v. Fanfan (2005), were also overturned when the Court determined that increases in maximum
penalties in each case had been based on the lesser standard of guilt , preponderance of the evidence
(Champion 2009).

One criticism of the Apprendi decision is that the sentencing authority must find an offender’s crime to be unnecessarily heinous or
cruel in order to deny the offender the option of parole; however, some parole boards are not guided by the same standard when
denying parole. This is not true in all states. In states where a prisoner is presumptively entitled to parole release, the denial of
parole usually results in inmates serving maximum sentences. During 2007, a lawsuit was filed for New York inmates alleging they
were being denied parole based on the severity of their offenses. Subsequent
to the lawsuit, parole authorities,
adhering to corrected parole guidelines, granted new hearings for all eligible offenders (Roberts
2007).

Indeterminate sentencing among states is characterized by considerable variation. Depending on the state, it may be described as
discretionary or nondiscretionary, guided or unguided, and structured or unstructured. Discretionary indeterminate sentencing
occurs when judges choose sentences from ranges within the authorized spectrum of punishments. Nondiscretionary indeterminate
sentencing occurs when the legislature has set an indeterminate range of punishments that the judge must use based on an
offender’s charge. Unguided and discretionary indeterminate sentencing reflects how indeterminate sentencing was first
approached, that is, judges had complete discretion for sentencing. Guided and discretionary indeterminate sentencing is based on 4
Indeterminate Sentencing guidelines, established by legislators, that sentencing authorities must follow when setting sentencing
ranges (Chanenson 2005). Even so, most
offenders serving parole-eligible sentences are released from
prison early based on decisions by parole boards.
 AT: Discretion Bad – It’s Good
Discretion is good – only specialized judges with direct contact
with offenders can tailor sentences.
Tonry ’99 [Michael; Papers from the Executive Sessions on Sentencing and Corrections No.
2; U.S. Department of Justice Office of Justice Programs National Institute of Justice; 9-1999;
“Reconsidering Indeterminate and Structured Sentencing“; Sentencing & Corrections Issues for
the 21st Century; https://www.ncjrs.gov/pdffiles1/nij/175722.pdf; Accessed 6-25-2020; RG-
Camp]
Delegation of authority. Indeterminate sentencing places decision making authority in the hands of
officials who are in direct contact with the offender and his or her circumstances. This parallels
developments in the private sector, where in recent years shifting authority downward—as close to the customer as
possible—has commonly come to be seen as desirable. The closer decision making is to individual
customers (or prisoners), the less likely it is that decisions will be based on inaccurate or
incomplete information or stereotypes.

Professionalization. Indeterminate sentencing assumes that judges and corrections officials have
specialized knowledge and experience that can be used to design effective programs, control risks to the
public, and aid in offender reform. The satisfaction, professional self-esteem, and effectiveness of
corrections officials are probably enhanced as a result.

Indiscriminate sentencing minimizes disparities by toning down

public influence in trials.
Tonry ’99 [Michael; Papers from the Executive Sessions on Sentencing and Corrections No.
2; U.S. Department of Justice Office of Justice Programs National Institute of Justice; 9-1999;
“Reconsidering Indeterminate and Structured Sentencing“; Sentencing & Corrections Issues for
the 21st Century; https://www.ncjrs.gov/pdffiles1/nij/175722.pdf; Accessed 6-25-2020; RG-
Camp]
Insulation from public emotion. Indeterminate sentencing removes the important decisions about
individual offenders from public attention. Trials (or arraignments and guilty pleas) take place in
public and can easily be reported in the mass media, but decisions about parole release and good time are made in
settings where public attention is much less likely to be focused . Especially for notorious crimes or for
behaviors temporarily receiving heightened attention, this enables judges to announce sentences
that appear to be harsh when public passions are aroused but allows parole and corrections
officials later on to finetune sentences after these passions have abated.

Administrative efficiency. Indeterminate sentencing allows corrections managers to deal with

problems of overcrowding or with changes in resource allocation by adjusting policies governing award of
good time, setting of parole release dates, or releasing offenders on furloughs or to intermittent or partial
confinement.
 AT: Deserved Punishment/Retribution
Retribution as a justification is immoral – rehabilitation should be
the goal
Tonry 18 [Michael Tonry is professor of law and public policy, University of Minnesota,
“ Punishment and Human Dignity: Sentencing Principles for Twenty-First-Century America, 47
Crime & Just. 119”, 2018, https://www.journals.uchicago.edu/doi/abs/10.1086/696948?af=R&]
Those stark contrasts are recent. They date from the 1970s and 1980s. Before that, the American approach was different from
those of other countries but principled and coherent. Every
jurisdiction had an indeterminate sentencing
system in which treatment of offenders was to be individualized in every case and at every stage. There was wide support
for rehabilitation as the primary goal; for judges, parole boards, and prison officials to take account of individuals'
circumstances and interests in making decisions about them; and for imposition of the least restrictive appropriate sentence.
Retribution per se was not a goal. Retribution is "the unstudied belief of most men," observed Jerome Michael and
Herbert Wechsler (1940, pp. 7, 11), two of the twentieth century's most influential criminal lawyers, but that, like any other ignoble
intuition, should be ignored. "No
legal provision can be justified merely because it calls for the
punishment of the morally guilty by penalties proportioned to their guil t," they
continued, "or criticized merely because it fails to do so."

"Rehabilitation," observed Wechsler, later the primary draftsman of the Model Penal Code (American Law Institute 1962), "is
in itself a social value of importance, a value, it is well to note, that is and ought to be the prime goal"
(1961, p. 468). Under the code, judges in every case could  [*122]  impose any lawful sentence from unsupervised probation to the
maximum authorized by law. There were no mandatory minimum sentences and no probation ineligibility laws. Parole boards could
release prisoners any time after they became eligible. The code created presumptions against the use of imprisonment in every case,
including homicides, and in favor of parole release. Prison officials could grant time off for good behavior.

There are conceptual impediments that retributive mindsets cannot

solve:

a. The Multiple Offenses Paradox

Tonry 18 [Michael Tonry is professor of law and public policy, University of Minnesota,
“ Punishment and Human Dignity: Sentencing Principles for Twenty-First-Century America, 47
Crime & Just. 119”, 2018, https://www.journals.uchicago.edu/doi/abs/10.1086/696948?af=R&]
The Multiple Offense Paradox. The emerging if exiguous literature on punishment for multiple crimes exposes a
paradox that retributive theories, whether positive ones that specify punishments that must be imposed or negative ones
that set upper limits, cannot adequately address or explain . Punishments of people convicted of
multiple crimes are often discounted if sentences are imposed at one time (a "bulk
discount") but enhanced if imposed at different times (a "recidivist premium" ; Reitz
2010). This is perverse. Exactly the same sets of crimes can be handled either way--in one omnibus prosecution or in a series--
depending on how prosecutors choose to proceed or on the happenstance of when offenses come to light. This
is a serious
problem because it arises in a majority of cases. Most convicted offenders are concurrently convicted of multiple
offenses, have been previously convicted, or both.

a. The Recidivist Premium. Some writers, including George Fletcher (1978), Richard Singer (1979), and Mirko Bagaric (2010), reject the
recidivist premium in principle. Their logic is that punishing repeat offenders more severely because of their prior convictions is double counting. The
increment of additional punishment for the new crime is in effect additional punishment for earlier ones. The constitutional doctrine of double
jeopardy forbids the state to try someone twice for the same crime. By extension, the state should not punish someone twice for the same crime .
The few efforts that have been made by retributivists to justify the recidivist premium are
unpersuasive. I am not alone in my skepticism. Richard Lippke (2016, p. 17) surveyed the arguments and similarly concluded,
"Like others, I find the arguments given on behalf of recidivist premiums unconvincing."

One unconvincing argument is that repeat offenders who commit new offenses are more
blameworthy than first offenders because previous convictions impose special obligations not to offend again (Lee 2010).
Everyone, however, has a civic responsibility not to commit crimes. It is hard to explain why the
responsibility to obey the law is greater for the previously convicted. It cannot be because greater knowledge or selfcontrol can
reasonably be imputed to them. Most repeat offenders no doubt know that behavior they contemplate is unlawful, but so do most
first offenders. Members
of both groups sometimes commit offenses under extreme social,
economic, or circumstantial pressures, or influenced  [*34]  by deviant subcultural norms, that
make law-abidingness especially difficult. This might or might not make individuals less blameworthy, but it offers
no basis for differentiating between first-time and repeat offenders.

Other unconvincing arguments supporting the recidivist premium assert that repeat offending is
evidence of bad character or constitutes disrespect or defiance of the court, the criminal law, or the state (Bennett 2010;
Lee 2017). If any of these considerations were taken seriously, it would require that specific increments of punishment be attributed
to character flaws or traits. Punishments for a subsequent crime could be deconstructed into the conventional X months that would
be imposed for a first robbery and an increment of Y months, for example, for bad character. Defiance, disrespectfulness,
and bad character, however, are not criminal offenses. They might be punishable in China, but not in a liberal
democratic state.

Von Hirsch (1986, 2017) has argued that punishments should be discounted for first offenses, and possibly one or a few more. This is
a different kind of argument than those justifying the recidivist premium even though the result, punishing repeat offenders more
severely than first offenders, is the same. It is based on the premise that first and early offenses may have resulted from
extraordinary circumstances or otherwise have been "out of character" and thus warrant less-than-deserved punishment. This is a
contingent characterological claim about first offenders: they may, on average, be more responsible people than recidivists are and
should be given the benefit of the doubt. There may be good policy reasons to give first offenders benefits of doubts, and this often
happens (Braithwaite 2018), but justifying them as reflections of hypothesized good or bad character is as troubling here as
elsewhere. Von Hirsch in any case, once the first or early offender discount is exhausted, would not allow increased punishments on
account of former offenses.

Contrary to any argument that can be made for the recidivist premium, an empirically grounded
argument can be made that prior convictions should mitigate rather than aggravate
punishments for subsequent crimes. Collateral social and legal effects of convictions make it foreseeably more difficult
for former offenders than for nonoffenders to live law-abiding lives (Ashworth and Wasik 2017). Research showing that
imprisonment makes people more, not less, likely to commit subsequent offenses confirms this (e.g., Nagin, Cullen, and Jonson
2009).

b. The Bulk Discount. No one rejects the bulk discount in principle, with the tentative exception of Jesper Ryberg (2017),

who canvasses possible  [*135]  arguments for it and finds none he judges to be persuasive. 15  Lippke (2011) offers the most
extensive analysis to date of what a jurisprudence of bulk discounts, taken seriously, might look like and shows that it would be
immensely complex and not generally justifiable.

Policy justifications have been offered. One is that no punishment should be so "crushing" that it
deprives a person of a large fraction of his or her remaining life ( Jareborg 1998; Ashworth and Wasik 2017)
or a high proportion of the prime years of life (Bottoms 1998 ). A second is that bulk discounts can be justified as
extensions of mercy based on judges' holistic assessments of offenders' lives and
blameworthiness (Bottoms 2017). These propositions, however, are ad hoc, unimbedded in broader
general theories, and ungeneralizable. The policy they try to justify is no doubt desirable, lest individuals suffer
extreme punishments based on the fortuity that they have been charged with more rather than fewer offenses, but it cannot be
justified in terms of retributive theories.

There is convincing empirical evidence that majorities of the public, judges, and offenders approve of both the bulk discount and the
recidivist premium (Roberts 2008; Roberts and De Keijser 2017). Some argue that those broadly shared intuitions justify the
paradox either because democratic values require acknowledgment of and deference to widely shared beliefs or because failure to do
so will undermine the legitimacy of law and the legal process in citizens' minds (Roberts 2011; Ryberg and Roberts 2014). Common
intuitions, however, by themselves cannot offer a principled justification for anything. Widely shared intuitions, for example, about
racial, gender, ethnic, and sexual preference differences, or in our time about the moral worthiness of immigrants, are often
empirically indefensible and normatively repellent.

c. Empirical Reality. No one has satisfactorily offered principled justification for why punitive
punches should be pulled when people are sentenced for multiple offenses but swung harder
when they have previously been convicted. This is not a small failure. These issues arise in a large
majority of criminal cases. The typical defendant is not a first-timer charged with a single offense but a recidivist
offender charged with multiple offenses.

b. An assessment of blameworthiness
Tonry 18 [Michael Tonry is professor of law and public policy, University of Minnesota,
“ Punishment and Human Dignity: Sentencing Principles for Twenty-First-Century America, 47
Crime & Just. 119”, 2018, https://www.journals.uchicago.edu/doi/abs/10.1086/696948?af=R&]
Blameworthiness. Most
retributive theories assume that assessments of blameworthiness can be
made more or less objectively, on the basis of the offense of conviction perhaps modified by circumstances
such as weapon use, gratuitous violence, or a victim's special vulnerability that seem inextricably related to moral assessment of the
seriousness of the crime. Serious
arguments have been made, however, that decisions about
punishment should incorporate subjective assessments of the offender's
blameworthiness and of the foreseeable effects of contemplated punishments on
him or her as a unique individual.
Assessments of blameworthiness are difficult and contested. Nothing inherent in any retributive theory entails a particular
approach. Assessments and resulting punishments might be based, objectively, solely on the
seriousness of the crimes of which individuals are convicted or, subjectively, on crimes' distinctive
features and the social, psychological, economic, and situational circumstances causally related to their
commission (von Hirsch 1976; Tonry 2014). Criminal law in English-speaking countries takes no account of motives, caring only
about the classic mens rea categories of intention, knowledge, recklessness, and negligence, and allows only limited space for
defenses of duress, necessity, immaturity,  [*138]  emotional distress, and mental disability and usually none at all for harms
resulting from imperfect self-defense and other honest but unreasonable mistakes.  If
the substantive criminal law does
not take account of these and other complexities of human lives, decisions about punishment can
incorporate what Hart (1968) approvingly called informal mitigation. Nigel Walker (1991) proposed that, if retributivists
take moral blameworthiness seriously, assessments should be subjective. That, he observed, is how the Recording Angel would do it.

A similar question can be asked about the effects of punishments on individuals . Adam Kolber (2009)
and others have proposed that judges making punishment decisions take account of their foreseeable
subjective effects on individuals.  Otherwise, the suffering caused by seemingly generic
punishments will be radically different. Claustrophobic and mentally ill people, for example, will be affected by close
confinement substantially differently than are people who are not similarly afflicted. Confinement of people with dependent children
will have substantially different direct and collateral effects than does confinement of the childless. Imprisonment may mean very
different things to a young gang leader, a flamboyantly gay man, an employed middle-aged parent, and someone who is seriously ill.
To ignore such things in relation to comparably culpable people, however culpability is measured, is to accept huge differences in the
pains imposed on them.

Walker, Hart, and Kolber make much the better arguments. Systems
of punishment that ignore
fundamental differences in offenders' subjective blameworthiness, or radical
differences in the effects on them of ostensibly generic punishments, cannot be
reasonably described as just.
 AT: Mandatory Minimum Alt Cause
The guidelines are specifically key – they’re harsher than
mandatory minimums and supercharge Congressional mistakes.
Paul Hofer, Spring 2016, [Senior Policy Analyst, Sentencing Resource Counsel Project of the
Federal Public and Community Defenders., "After Ten Years Of Advisory Guidelines, And Thirty
Years Of Mandatory Minimums, Federal Sentencing Still Needs Reform", Toledo Law Review
https://heinonline.org/HOL/LandingPage?
handle=hein.journals/utol47&div=40&id=&page= //DMcD]
III. Reform Goes Wrong
The SRA was signed into law on October 12, 1984, and the Commission set to work. Even before the Guidelines became
effective on November 1, 1987, problems began to arise. Congress passed mandatory minimum legislation that was
piecemeal and reactive and betrayed the SRA's thoughtful approach. The Commission made highly consequential
decisions that, in retrospect, must be considered tragic mistakes. The resulting system of both
sentencing guidelines and mandatory minimums shifted significant discretion to
prosecutors and routinely required judges to impose sentences far greater than
necessary to achieve the purposes of sentencing. A. An Unbalanced System The failure of the SRA
has been widely recognized. Even the Commission's own fifteen-year evaluation noted that "the goals of sentencing reform
have been only partially achieved." Outside observers were far less [*658] measured. Practitioners and evaluators declared the
federal system a "disaster," a "mess," and "a cure worse than the disease." Others were more
moderate, but very few found things to like. Some who initially defended the Guidelines grew
disillusioned. Judges, including some who liked the idea of guidelines, rejected the version promulgated as
"pseudo-scientific," "unduly rigid[]," and a "dismal failure." Judge Frankel, the "father of sentencing reform,"
called upon the Commission to identify "what we mean to achieve, and what we may in fact achieve, as we continue to mete out long
prison sentences." An inescapable conclusion emerged: "Twenty-five years have produced a strong and
informed consensus that the first bold and hopeful round of federal sentencing reform has
largely failed." How did a reform born of good intentions lead to such a bad result? Michael Tonry, a leading scholar of
sentencing law, has noted that sentencing and sentencing policy can serve both "overt" and "latent" functions. The [*659] purposes
of sentencing outlined in the statutes are the overt goals used to justify punishment. However, sentencing can also serve latent
functions, such as personal career advancement, partisan political advantage, and the promotion of ideological agendas. Members of
Congress legitimately want to assure the public they are committed to public safety, but may also play on public fears to gain
political advantage. Without contact with real cases and defendants, they envision extreme cases. The Department of Justice
legitimately enforces the laws, but also wants to minimize the time and effort needed to process cases. Individual prosecutors
legitimately want to win meritorious cases, but also may want to advance their careers. Ensuring that a fearsome government power
like criminal sentencing is exercised according to our highest ideals requires a system of checks and balances. The SRA envisioned
such a system, with power to make sentencing rules and set individual sentences distributed among the Commission, Congress, the
Department of Justice, sentencing judges, courts of appeals, probation officers, prosecutors, and defense counsel. Unfortunately,
federal sentencing reform has demonstrated the dangers of imbalances of power among key players. A former supporter of the
guideline has noted: "The failures of the guidelines can be traced to the breakdown of the institutional
balance the Sentencing Reform Act was supposed to create . Power has consolidated in the hands of
prosecutors at the case level and an alliance of the Department of Justice with Congress at the policy level." The balance began
to break down immediately. By the time the original Commissioners began their work, the SRA's vision of neutral expert
policymaking had faded in favor of "tough on crime" politics. The political branches began to undermine the
Commission's independence. The [*660] Commission did not or could not insulate itself from these influences, and
sought ways to accommodate the new environment. For example, in one of the most consequential of its early decisions, the
Commission responded to the ADAA by promulgating guidelines for drug trafficking that adopted the quantity thresholds in the
statute and went even farther, resulting in a guideline even more severe than the statute. Early amendments to other guidelines, in
the words of a Commissioner who resigned, inflicted "gratuitous punishment" for reasons that were "overtly political and inexpert."
Instead of insulating sentencing and policy making from political pressures, the Guidelines and mandatory minimums became new
vehicles for centralized, political control. B. Guidelines Disconnected from the Purposes of Sentencing
Congress deliberately declined to prioritize one purpose of sentencing over another in the SRA. It was up to the Commission to
reconcile the purposes in cases of conflict, explain what purposes the Guidelines aimed to accomplish, and how the specific
provisions were meant to accomplish them. But the original Commissioners could not agree , and eventually claimed
it didn't matter. One commentator summarized the Commission's position like this: "Since people disagree over the aims of
sentencing, it is best to have no rationale at all." Another noted that " the
federal sentencing guidelines have not
been designed or applied in a manner explicitly intended to achieve specific purposes of
sentencing," and this failure "underlies many of the system's critics' strongest complaints. " Soon after
the Supreme Court declared the Guidelines advisory, the Commission asserted that the Guidelines somehow implement all of the
Commission
purposes of sentencing without explaining how they do so. [*661] 1. The Myth of Past Practice The original
claimed that it solved its philosophical impasse by adopting an "empirical approach" that based
the Guidelines largely on past practice. Post-Booker Supreme Court decisions have accepted this claim as a reason
why judges may find the Guidelines' recommendations worth following. The Commission's research on past practice appears in The
Supplementary Report on the Initial Sentencing Guidelines and Policy Statements. Commission staff conducted statistical analyses
of a sample of 10,500 cases sentenced in 1985, and established guideline "offense levels" and "specific offense characteristics" based
on this data. But this account greatly overstates the initial guidelines' relation to average past practice, a relation that is even more
tenuous today after hundreds of amendments have increased severity. In the words of a former Commissioner, " the
methodology described in the original introduction less aptly reflects most of the current
guidelines than the U.S. Supreme Court seems to realize . The proliferation of congressional directives and other
statutory changes, and the Commission's implementation of both, along with some important Commission initiatives along
the way have changed sentences for many offenses substantially from the averages of pre-guideline
practice." The initial guidelines diverged from past practice in ways that almost always resulted in
greater severity. Analyses of past practice focused on aggravating factors, and largely ignored
mitigating ones. The Commission [*662] intentionally departed from the data when a
majority of Commissioners decided to do so, most famously for "white collar" offenses but also
for others. And most consequentially, as the Supreme Court has noted, the Commission abandoned the use of past
practice for offenses subject to mandatory minimums . 2. The Linkage to Mandatory Minimums For most of the
guidelines era, drug trafficking offenses were the largest category of crime sentenced in the federal courts. Under the drug trafficking
guideline the starting point for determining the guideline range is the Drug Quantity Table, and offense levels in this Table were
legislation
linked to the thresholds and penalties in the ADAA. This set a pattern repeated throughout the guidelines era in which
frequently overrode or micromanaged Commission policymaking . The penalties in the ADAA were among
the first, and arguably the most egregious, instance of congressional actions disconnecting the Guidelines from sentencing purposes.
Publicity and anxiety surrounding the death of basketball star Len Bias from a cocaine overdose led Congress to hastily enact the
ADAA, and it made some major mistakes. The penalty scheme in the Act was based [*663] on two false assumptions: first, that a
defendant's role in the offense necessarily corresponds to the quantity of drugs with which they are involved; and second, that the
quantity thresholds chosen for the ten-year minimum reflected the role of "kingpin" and the thresholds for the five-year minimum
reflected the role of "middle-level dealer[]." These flaws were compounded two years later, when the Omnibus Anti-Drug Abuse Act
of 1988 expanded the quantity-based approach to convictions for conspiracy to distribute drugs. This had the effect of attributing
large quantities to even minor players, such as someone hired to drive a vehicle loaded with drugs, over which they had no control,
from which they would not profit, and of which they may not have even been aware. These were only the earliest of the
mandatory minimums Congress would enact in the guidelines era. Mandatory consecutive sentence
enhancements of five, seven, or ten years, and even life imprisonment, were added for possession or use of various types of weapons
in connection with drug trafficking or violent crimes. Mandatory minimums were added for sexual abuse and child pornography
offenses, aggravated identity theft, and more. By 2008, the total number of mandatory penalty provisions in the federal code
numbered at least 171. Problems with mandatory minimums were compounded by the way the
Commission responded to them. By law, whenever a statutory minimum is above the applicable guideline range,
the statute trumps the range. The Commission added Guideline § 5G1.1 to acknowledge this legal reality
and technically incorporate the statutory limits into the Guidelines . But more than that, the original
Commission chose to peg the Guidelines for offenses subject to mandatory minimums to the statutes. Guidelines for drug
trafficking were set so that penalties for first offenders with drug amounts meeting the statutory
[*664] thresholds exceeded the statutory minimum penalties, even if no other aggravating
factors were present. It also expanded the two statutory thresholds into a Drug Quantity Table (DQT) with 17 levels, with
corresponding punishments below, between, and above the thresholds specified in the statutes. The Commission later found that
this incremental expansion contributed 25 percent of the average prison time for drug offenders, and it reduced DQT offense levels
by two, at first for crack cocaine and later for all drugs. But the 17 levels and linkage to statutory thresholds still remains. According
to the Commission's Fifteen Year Review: No other decision of the Commission has had such a profound impact on the federal
prison population. The drug
trafficking guideline … in combination with the relevant conduct rule … had the effect of
increasing prison terms far above what had been typical in past practice , and in many cases above
the level required by the literal terms of the mandatory minimum statutes. Because drug
sentences were so severe, "proportionality" with other types of offenses was destroyed, leading to pressure to ratchet up sentences
for other crimes. Mandatory sentence enhancements for possession or use of a firearm during an
offense also created additional increases in severity, as well as many other problems. At the very
dawn of the guidelines era, the Commission's policymaking was crucially shaped by mandatory
minimum penalties that were fundamentally incompatible with the guidelines system envisioned by
the SRA. 3. Statutory Directives Congress made frequent use of an additional legislative tool - statutory directives
to the Commission - to shape the Guidelines. Statutory directives range from general to specific. General directives
instruct the Commission to study a particular issue and report back to Congress or amend the Guidelines if [*665] the Commission
determines it is needed. General directives have been encouraged by the Commission as an alternative to mandatory minimums and
specific directives. In contrast, specific directives require the Commission to take particular actions. Some direct the Commission to
study an issue but then increase guideline ranges in any event; others require the Commission to increase guideline ranges for
certain categories of offenders, or set a guideline at a particular level of severity, or add particular adjustments to the Guidelines. It is
noteworthy that unambiguous statutory directives are even more binding on the Commission (though
not on sentencing judges) than are mandatory minimum penalties . The Commission must comply with unambiguous
congressional directives, even if it determines that the directive is contrary to the goals of the SRA. A few specific directives were
included in the SRA itself. But after initial promulgation of the Guidelines, the Act contemplated the Commission would revise them
based on research and consultation, and send the results to Congress for review after a period of notice and comment. The
amendments would then become law absent congressional action. The Act did not anticipate continued and frequent congressional
intervention in the Guidelines. As things turned out, however, Congress
has enacted well over a hundred
directives, generating nearly as many guideline amendments. The overwhelming majority
either directly increased guideline ranges or had that [*666] effect. Moreover, "not only has the
frequency of congressional directives increased, but their content has pushed progressively deeper into the core functions of the
Sentencing Commission." Congressional micro-management of the Guidelines reached a peak in the
PROTECT Act of 2003, where Congress directly amended several provisions of the Guidelines Manual, completely
bypassing the notice and comment procedures that the Commission itself must use when it amends the Guidelines. Early in the
guidelines era, the Commission sometimes resisted congressional micromanagement and sought to
assert the role envisioned for it in the SRA. One Commissioner resigned in frustration as political
considerations dominated and research was neglected. In an important 1991 report, the Commission
made a case for its institutional role and explained how the Guidelines and mandatory minimums are "policies in conflict."
Congress, however, continued to enact mandatory minimums and specific directives and to influence the Commission's actions in
other less visible ways. By the time of the Booker decision, the Commission seemed resigned to its diminished policy-making role
and became an active apologist for congressional policies it had once resisted. 4. Disconnected and Unexplained
Guidelines To decide whether to follow the Guidelines in a particular case, judges need to understand how they were intended to
achieve the statutory purposes of sentencing. Without this, applying the Guidelines is merely mechanical, an end
in itself rather than a means to the statutory ends. To recognize when a guideline is missing the mark, judges need an explanation
of how this particular offense level, with these particular adjustments, were meant to track the seriousness of the offense, or identify
offenders who need to be incapacitated for public safety, or rehabilitate the offender. The statutory purposes are stated [*667]
generally, but the Guidelines are very detailed, adding small and large units of punishment for numerous aggravating factors. There
are countless ways for the many different adjustments to go wrong or to interact in
unpredictable ways. The original Commission could not agree on a consistent theory underlying
the Guidelines and neither they nor subsequent Commissions have explained the purposes of
sentencing are advanced by the Guidelines as a whole, or any particular guideline or guideline
amendment. The failure to clearly explain and justify the Guidelines also meant the Commission
had no principles with which to resist political interference . As one of many examples, in
response to a perceived epidemic of use among the young, Congress directed the Commission in 2000 to increase penalties for
"ecstasy." The Commission amended the Guidelines to treat ecstasy more severely than powder cocaine and to treat a typical dose of
ecstasy as severely as four to ten doses of heroin. But the Commission had received extensive information from the scientific and
medical communities in public comment and testimony showing that ecstasy is less harmful than cocaine or heroin, so this
treatment could not be justified by the sentencing purpose of punishment proportionate to the seriousness of the crime. It is also
well-established that increases
in punishment for a crime do not deter others from committing it , so
this purpose can also not justify the amendment . If the Commission had designed the drug guidelines based on a
theory of punishment - for example, matching the severity of punishment to the harmfulness of the drug - it would have been in a
better position to explain to [*668] Congress why its directive was misguided. But, when "there is little sense that the Guidelines
have been carefully calibrated to punish proportionately to the seriousness of the crime, then Congress, or the Commission itself,
feels less pressure to avoid actions that would distort proportionality." The Commission's explanations of its amendments have
generally been minimal and often inscrutable. The chief reason the Commission cannot provide specific
explanations of how the Guidelines achieve the statutory purposes is that it cannot honestly
do so, given that the origin of many of the guidelines lies in mandatory minimums and congressional directives. Any other
explanation would be post hoc rationalization. Unlike the Commission, Congress is under no obligation to ensure that its policies
meet the purposes of sentencing, to conduct empirical research, or to consult with all stakeholders. Nor is Congress obliged to
ensure that its various enactments are consistent with each other, or with the Guidelines, or with any overarching theory of how to
best achieve the purposes of sentencing. Congress is free to legislate piecemeal in response to a highly publicized case, or in response
to lobbying by the Department of Justice or other interest groups seeking sentence increases for purposes other than those set forth
in § 3553(a). If the Commission cannot be persuaded to increase penalties, the Department has not hesitated to threaten, and to
seek, the necessary legislation from Congress. In the words of Professor Frank Bowman, a former federal prosecutor, the truth is
that the Guidelines have been amended in a "one-way upward ratchet increasingly divorced from considerations of sound public
policy and even from the commonsense judgments of frontline sentencing professionals who apply the rules." Another consequence
of congressional micromanagement has been that the sources and responsibility for the sentences reflected in the Guidelines has
been obscured. When defendants receive mandatory minimum sentences, Congress's responsibility for the sentences is clear. Many
judges have felt compelled to explain to defendants that their judgment is that a mandatory minimum sentence [*669] is unfair and
excessive. The public then understands the basis for the sentence and the political mechanisms that created and could change the
penalties. But given the roles defined for judges and the Commission by the SRA, responsibility for guideline sentences is not clear.
Does the guideline recommendation reflect the Commission's institutional expertise and the procedures outlined in the SRA? Does
the sentence reflect the judge's reliance on that expertise to conclude that the sentence is fair and achieves the purposes of
sentencing? Defendants and the public should be able to expect that the Guidelines reflect careful study by an expert agency located
in the Judicial Branch charged with marshalling the best empirical research available for the development of sentencing policy.
Congressional micromanagement of guideline development confounds these expectations and has risked violating a warning in
Mistretta, the case that upheld the guidelines against a Separation of Powers constitutional challenge: "The legitimacy of the Judicial
Branch ultimately depends on its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the
political Branches to cloak their work in the neutral colors of judicial action." Unfortunately, today's
Guidelines do cloak
penalties created by the political branches as the product of an independent agency in the
Judicial Branch.
 AT: States CP
No solvency – states use indeterminate sentencing to apply LWOP
sentences
Mark Mauer and Ashley Nellis, 2018, Mauer-executive director of the Sentencing Project,
a group that advocates for criminal justice reform and addressing racial disparities in the United
States criminal-justice system, Nellis- senior research analyst for The Sentencing Project, The
Meaning of Life, https://thenewpress.com/books/meaning-of-life, 6-25-2020/Khan
States with indeterminate sentencing structures that allow for a greater degree of judicial
discretion have also contributed to the expansion of life sentences by extending sentencing
ranges up to life imprisonment. Such policies have led to high proportions of lifesentenced
prisoners with the possibility of parole in Colorado, Nevada, and Utah. Utah’s sentencing
scheme calls for a range of five years to life imprisonment for first-degree felony convictions
(which include categories of non-capital murder, sex offenses, and kidnapping). Nearly a third
(30 percent) of people in prison in Utah are serving life with the possibility of parole, the highest
proportion in the country. The state Board of Pardons and Parole notes on its website that the
Board assumes jurisdiction over the individual upon admission, and, “when a person is sent to
prison in Utah, the offender must serve the entire sentence imposed, unless the Board acts to
release the offender prior to the expiration of the sentence.” 1 Though most individuals are
considered for parole, the Board has the authority to deny future parole hearings for anyone
who appears before them. Thus, a life with parole sentence can be transformed into a life
without parole sentence
 Framing
**Their reading of the history of incarceration is flawed – the
prison can be used for rehabilitation, it’s recent shifts to
retributionist mentalities that led to current problems.
Jalila Jefferson-Bullock, 2016, [Jalila Jefferson-Bullock is an Associate Professor of
Law at Arizona Summit Law School. She received her A.B. from Harvard College in 1997, M.A.
in the Humanities from the University of Chicago in 1999, and J.D. from Harvard Law School in
2001., "How Much Punishment Is Enough?: Embracing Uncertainty In Modern Sentencing
Reform", Journal Of Law And Policy
https://brooklynworks.brooklaw.edu/jlp/vol24/iss2/2/ //DMcD]
The American prison system is borne of the rehabilitative model , and "[t]he concept of rehabilitation
[has] decisively determined Western society's preference for incarceration as a mode of
punishment." Historically, prisons and jails were institutions where offenders could separate from
society to reflect on their misdeeds and contemplate return following an improved moral
condition. Oddly, the principal purpose of punishment radically changed while the
punishment distribution tool remained unaffected. SRA reforms abandoned
rehabilitation, thereby promoting retribution and deterrence to punishment purpose
prominence. However, this shift in punishment purpose was not accompanied by any contemplated
or realized shift in punishment method. The new Sentencing Guidelines strongly favored
custody over probation for most offenses. Reformers concluded that prisons lacked the capacity to
rehabilitate, yet failed to fully consider whether prisons were capable of successfully deterring
[*390] crime or properly punishing moral blameworthiness. Confirmation and status quo bias contributed to this
phenomenon. Status quo bias allowed reformers to rely on an established prison regime, while
confirmation bias permitted reformers to rest comfortably in that decision . This is best illustrated
in the case of drug offenses: There is no empirical evidence that prior drug trafficking convictions
are better predictors of future offending than other types of convictions . Nor is there reason to
believe that incapacitation of drug traffickers is a sound crime control policy , since most
incarcerated offenders are readily replaced by others willing to satisfy the unmet demand for
drugs. The best explanation, which is no justification, is that a 'war on drugs' mentality led to the
harsher treatment of drug trafficking offenses apart from any reason grounded in . . .
incapacitation theory. Likewise, recent studies reveal that "there is little evidence of any link between crime
rates and imprisonment," yet status quo bias continues to justify excessive prison terms . Federal
sentencing guidelines purport to meld utilitarian and retributivist theories of punishment, as expressed in the provisions of 18 U.S.C.
§ 3553(a). Among the governing principles of punishment enumerated in the statute are deterrence of specific offenders, crime
prevention, distribution of just punishment, and effective offender rehabilitation. Together, the 3553(a) factors [*391] work
collaboratively to guide judge and Sentencing Commission decisions. According to the Supreme Court: In instructing both the
sentencing judge and the Commission what to do, Congress referred to the basic sentencing objectives that the statute sets forth in
18 U.S.C. § 3553(a) . . . . The provision also tells the sentencing judge to "impose a sentence sufficient, but not greater than
necessary, to comply with" the basic aims of sentencing as set out above. Congressional statutes then tell the Commission to write
Guidelines that will carry out these same § 3553(a) objectives. The Guidelines themselves explicitly proclaim that "[t]he continuing
importance of the guidelines in the sentencing determination is predicated in large part on the Sentencing Reform Act's intent that,
in promulgating guidelines, the Commission must take into account the purposes of sentencing as set forth in 18 U.S.C. § 3553(a)." It
is clear that federal sentences must reflect the 3553(a) factors. Congress
desired that the 3553(a) factors would contribute to a
sentencing scheme that advanced its overarching goal of achieving honesty, proportionality, and
uniformity in sentencing. The 3553(a) factors encompass the two major theories of criminal punishment: utilitarianism
and retributivism. According to 18 U.S.C. § 3553(a)(2): The court shall impose a sentence sufficient, but not greater than necessary,
to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be
imposed, shall consider . . . (2) the need for the sentence imposed-- [*392] (A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to
protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective manner. Paragraph (2) expresses both utilitarianism and
retributivism. In declaring that criminal sentences should "reflect the seriousness of the offense" and "provide just punishment for
the offense," paragraph (2)(A) communicates the retributivist concept that an offender should only be
punished according to his individual moral blameworthiness. Paragraphs (2)(B), (2)(C), (2)(D), and the
remainder of (2)(A) illustrate utilitarian concepts. All four sections discuss future crime prevention
through general and specific deterrence and detection, by proclaiming that federal criminal sentences should
"promote respect for the law," "afford adequate deterrence to criminal conduct," "protect the public from further crimes of the
defendant," and "provide the defendant with needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner." All of these factors can be appreciated as abstract theories upon which punishment must
rely. Further, the beginning of § 3553(a)
highlights that imprisonment should both be informed and
shaped by utilitarianism and retributivism. Despite the express provision that rehabilitation is
a governing federal punishment principle, it is in fact not a goal of modern-day
incarceration. Similarly, neither deterrence nor retribution support today's imprisonment model .
Our current sentencing scheme does not deter crime effectively, nor does [*393] it fairly punish
moral blameworthiness. This is troubling, especially because incarceration has emerged as the United
States' chief punishment distribution vehicle. According to Professor Paul H. Robinson, "the system's
general shift . . . has not been accompanied by a corresponding shift in how the system presents
itself."
NEG
Case Answers
 No Solvency – Rehabilitation Fails
Inadequate treatments, funding, and training render rehab
impossible.
Tonry ’99 [Michael; Papers from the Executive Sessions on Sentencing and Corrections No.
2; U.S. Department of Justice Office of Justice Programs National Institute of Justice; 9-1999;
“Reconsidering Indeterminate and Structured Sentencing“; Sentencing & Corrections Issues for
the 21st Century; https://www.ncjrs.gov/pdffiles1/nij/175722.pdf; Accessed 6-25-2020; RG-
Camp]
Inadequate implementation. Some critics argue that corrections
systems seldom if ever carry through on the
implied promises of indeterminate sentencing. Vocational training is often not relevant to the job
market. Psychiatric, psychological, and medical services often are of low quality. Funds are seldom
sufficient to provide a rich array of services tailored to offenders’ needs in prison or in the community. During the height of
indeterminate sentencing, many American prisons were squalid, brutal places.
 Turn – Deserved Punishment
Conversely, the aff lets criminals off easy.
Tonry ’99 [Michael; Papers from the Executive Sessions on Sentencing and Corrections No.
2; U.S. Department of Justice Office of Justice Programs National Institute of Justice; 9-1999;
“Reconsidering Indeterminate and Structured Sentencing“; Sentencing & Corrections Issues for
the 21st Century; https://www.ncjrs.gov/pdffiles1/nij/175722.pdf; Accessed 6-25-2020; RG-
Camp]
Deserved punishments. An additional criticism is that indeterminate sentencing severs the link
between seriousness of crime and severity of punishment. This is not quite the same criticism as the one
leveled at disparities, since severity of offense is only one way in which sentences can be disparate (or comparable). For example,
disparities might be measured in terms of treatment needs or risk assessments. The “deserved punishment” criticism holds that
people should receive particular punishments and that anything less, in the Model Penal Code’s phrase,
“depreciates the seriousness of the crime.” Put more colloquially, a “coddling criminals” complaint has
regularly been lodged against indeterminate sentencing since its beginnings.
 Turn – Judicial Discretion => Racial
Disparities
Advisory guidelines are bad – lead to harsher punishments and
increase racial disparities.
Ryan W. Scott, Spring 2016, [Professor, Indiana University Maurer School of Law, "Booker's
Ironies", Toledo Law Review https://www.repository.law.indiana.edu/facpub/2597/ //DMcD]
Introduction
IN January 2005, when the Supreme Court issued its highly anticipated decision in United States v. Booker, few observers were
surprised by the Court's constitutional decision. By a 5-4 margin, the same Justices who had found constitutional defects in state
determinate sentencing schemes in Apprendi v. New Jersey and Blakely v. Washington concluded that the United States Sentencing
Guidelines ("Guidelines") violated the Sixth Amendment right to a jury trial by allowing a judge to find certain aggravating facts that
increased an offender's sentence. By a different 5-4 majority, however, the Court selected a surprising remedy for that constitutional
defect. The Court rendered the Guidelines "effectively advisory," striking down statutory provisions that made the Guidelines
binding on judges. That remedy was unexpected: neither the respondents, nor the government, nor members of Congress, nor any
other amici curiae had suggested it. Booker rocked the federal criminal justice system , generating furious
speculation about its long-term effects. Critics of the Guidelines hailed the [*696] decision as a surprise death blow to a system they
reviled. Judges who had chafed at the Guidelines' mandatory and inflexible rules saw the decision as "a sort of Emancipation
Proclamation." The defense bar was "ecstatic." Supporters of the Guidelines in Congress and the Department of Justice, on the other
hand, issued dire warnings of "wildly divergent" sentencing outcomes and a return to "pre-guideline chaos." Several newspaper
editorials reacted more cautiously, suggesting that the Court "may have stumbled into a reasonable compromise" and urging a wait-
and-see approach. Scholars hoped the decision and its aftermath would afford an opportunity to fix
the federal sentencing system's flaws. But for better or worse, many observers saw the decision as "the end of federal
criminal sentencing as we know it." One immediately apparent feature of the Booker remedy, however, was a
basic irony. According to the Court, the mandatory guidelines were unconstitutional because they
deprived offenders of their Sixth Amendment right to trial by jury. Yet rendering the Guidelines
advisory did not enhance the role of juries at sentencing. To the contrary, in the advisory system,
judicial fact [*697] finding and discretion play an even more prominent role in sentencing
decisions. How could a constitutional holding that judges exercised too much discretion morph into a remedial holding that
judges should enjoy even greater discretion? Eleven years later, Booker's ironies have grown even deeper, calling
into question important premises of the Court's remedial opinion . This Article, drawing on trends in federal
sentencing outcomes and a growing body of empirical research, reevaluates the winners and losers under the advisory guidelines'
regime. In doing so, it highlights two fresh ironies in Booker that have become apparent only after more than a decade of experience.
First, the class
of offenders most harmed by Booker is precisely the class of offenders whose
constitutional rights were being violated under the mandatory guidelines . Under the advisory guidelines,
offenders with credible mitigating facts have emerged as clear winners: average sentence length has declined, while below-range
sentences have tripled in frequency. Yet over the same period, the rate of above-range sentencing has
likewise tripled, meaning that offenders with credible aggravating facts find themselves worse off, both at sentencing and
during plea negotiations that take place in its shadow. Meanwhile, the Court has exacerbated that effect by
stripping defendants with aggravating facts of the procedural right to pre-hearing notice of a
possible above-range sentence. That result is ironic because the Sixth Amendment right to jury fact finding at issue in
Booker concerns only aggravating facts, not mitigating facts. The Constitution, in other words, has nothing to do with the most
important consequences of Booker. Second, contrary to the Court's insistence that advisory guidelines would best vindicate
Congress's intent, it has become clear in the last decade that the Booker
remedy marks a setback for Congress's
key goals. The Sentencing Reform Act was animated by concerns about unwarranted disparity in sentencing decisions, especially
inter-judge disparity and racial disparities. Yet a substantial body of empirical research confirms that inter-
judge sentencing disparity has increased under the advisory guidelines, with numerous studies
finding an increase in the "judge effect." At the same time, a number of researchers have found
that racial disparity in sentencing outcomes has increased [*698] since Booker. That conclusion is
contested, but there is good reason for concern that racial
disparities have worsened under the
advisory guidelines. Those developments suggest that Booker's remedial opinion may have accomplished the opposite of
its stated objective. This Article proceeds in three parts. Part I ("Booker's Background") briefly summarizes the constitutional and
remedial opinions in Booker, taking note of some of the immediately obvious ironies of the remedial opinion. Readers familiar with
the decision and its aftermath should feel free to skip ahead. Part II ("Booker's Casualties") and Part III ("The Booker Backslide") set
out the newly apparent ironies described above. The Conclusion ("Booker's Bargain") acknowledges that some commentators will
find these ironies of the Booker remedy untroubling in light of the decision's other consequences, but urges that they be
incorporated into critical assessments of the decision and its legacy.

They have it backwards – Booker proves that advisory guidelines

increase racial disparities and strengthen prosecutors in plea
bargains.
Ryan W. Scott, Spring 2016, [Professor, Indiana University Maurer School of Law, "Booker's
Ironies", Toledo Law Review https://www.repository.law.indiana.edu/facpub/2597/ //DMcD]
B. Losers under the Advisory Guidelines
Not all offenders, however, have benefited from Booker. To the contrary, another group of offenders is
unambiguously worse off under the advisory guidelines: offenders with credible aggravating facts. The
change is evident not only in sentencing outcomes, which have worsened, but also in changes that have made the sentencing process
more hazardous for offenders with plausible aggravating circumstances. 1. Sentencing Outcomes Just
as rates of below-
range sentencing have increased since Booker, rates of above-range sentencing have increased
as well. As shown in Figure 5, the rate of above-range sentencing for offenders has more than tripled
since 2005. [*709] Figure 5: Rate of Above-Range Sentencing FY 2003-2015 Before Booker, in 2004, judges imposed upward
departures in a tiny fraction of cases, less than 0.8%. After Booker, however, the percentage of sentences above the guideline range
doubled to 1.6%, and in the wake of Gall it has continued to climb to 2.2%. The trend
is even clearer for firearms and
drug trafficking offenses, where the effects of Booker should be most evident . For firearms offenses,
above-range sentencing stood at 1.3% before Booker, but quickly doubled to 2.5% by 2007, before surging
to 5.0% by 2015, triple its pre-Booker levels. For drug trafficking offenses, above-range sentences
were vanishingly rare before Booker, imposed in just 0.2% of cases. But the rate leapt to 0.7% by 2006 and
has climbed to 1.4% of cases by 2015, an increase of nearly 700%. Scholars and commentators
have almost entirely ignored the increase in above-range sentencing, despite extensive discussions
of the increase in below- [*710] range sentencing. Consider a few possible explanations - one practical, one cynical, and one
substantive - for that omission. One possibility is practical: sentences above the guideline range have tripled in frequency, but they
remain rare. The rate of above-range sentencing was very low before Booker (under 0.8%) and remains low today (just above 2.2%).
That is not to say the number of above-range sentences is trivial. In 2015, more than 1,000 offenders received above-range sentences
that would have been impermissible before Booker, and because their above-range sentences are especially long, they account for a
disproportionate share of the federal prison population. Still, below-range sentences outnumber above-range sentences by a 10-to-1
margin, and commentators naturally focus on trends that affect a larger segment of offenders. Another possibility is cynical:
offenders with credible aggravating facts tend to elicit little sympathy. Common grounds for an upward departure include an
extensive criminal history, additional uncharged criminal conduct, acts causing serious injuries or death, and the like, and judges
likely reserve above-range sentences for offenders they consider the "worst of the worst." Unlike offenders with credible cases for
mitigation, who can count on support from progressive scholars and reformers, offenders with serious aggravating facts have few
advocates. A final possibility, however, is more substantive. Scholars
may have mistakenly assumed that judges
universally consider the Guidelines too severe and will therefore exercise their discretion under
Booker entirely in one direction. In fact, judges' views of the Sentencing Guidelines have always
been divided, with a substantial contingent of judges expressing agreement with the most
controversial guidelines or even finding them too lenient . The fact that above-range sentencing
has tripled since Booker thus reveals an underappreciated function of the mandatory
guidelines. For an enormous number of offenders, the mandatory guidelines forced judges to impose sentences they
considered too severe. Yet for a smaller group of offenders, the mandatory guidelines forced judges to
impose sentences they considered too lenient. The Booker remedy empowered judges to follow their conscience as
to both groups. [*711] 2. Sentencing Process As sentencing outcomes have worsened, the sentencing process
also has become more challenging for offenders with credible aggravating facts . Because above-
range sentences have become more prevalent, the plea bargaining position of those
offenders has weakened. At the same time, the Court has extended the logic of Booker to strip offenders with
aggravating facts of a valuable notice requirement. First, Booker has weakened the plea bargaining position of
offenders with credible aggravating facts. Under the advisory guidelines, judges have greater discretion
to impose above-range sentences, and their sentences are almost never reversed on appeal. As
noted above, judges have not hesitated to exercise that discretion , with the rate of above-range
sentencing tripling since Booker. As a result, defendants with credible aggravating circumstances face far
greater risks at sentencing - and everybody knows it, including prosecutors and defense
counsel. That dynamic necessarily affects plea negotiations , which take place in the shadow of the sentencing
hearing. Defendants are risk-averse and understandably anxious about a sentence above the
guideline range. To obtain the same results they would have secured under the mandatory Guidelines, defendants must
now make greater concessions to the prosecution . At the margins, offenders with serious aggravating facts thus
have less leverage to secure the dismissal of charges, to engage in "fact bargaining" over the profile of facts presented at sentencing,
and to extract favorable sentence recommendations from the government. Those effects are difficult to measure, since sentencing
data treat charges and facts as inputs rather than outputs. But in a system where more than 97% of convictions result from a guilty
plea rather than trial, ripple effects on the plea bargaining process are important. Second,
offenders with credible
aggravating facts have been stripped of a useful notice protection they enjoyed under the
advisory guidelines. In 1991, citing due process concerns, the Supreme Court held in Burns v. United States that criminal
defendants were entitled to prior notice of a possible upward departure . Notice was essential, the Court
reasoned, to enable defense counsel to prepare effectively for the sentencing hearing, given that an upward departure could rest on
any number of factual grounds not adequately taken into account by the Commission. The Court therefore announced a rule, later
codified as Rule 32(h) of the Federal Rules of Criminal Procedure, that a criminal defendant is [*712] entitled to advance notice of
any possible upward departure not identified in the presentence report or a party's submissions .
After Booker rendered
the Guidelines advisory, however, the Court repudiated that protection. In Irizarry v. United States, the
Court held by a 5-4 margin that in light of the Booker remedial opinion, advance notice of a possible
above-range sentence was no longer required. It reasoned that Booker had eliminated "any expectation subject to
due process protection … that a criminal defendant would receive a sentence within the presumptively applicable guideline range."
The same feature of the Guidelines that triggered the Sixth Amendment defect in Booker - the "expectation" of a sentence no higher
than the guideline range without further fact finding - also was the source of the entitlement to notice recognized in Burns.
Rendering the Guidelines advisory in Booker had neatly solved both constitutional problems. The Court also considered it
unnecessary and inefficient for a sentencing court to provide offenders with advance notice of the grounds for a possible upward
departure. Under the advisory guidelines, after all, there is no limit to the number of reasons a judge might impose a sentence above
the guideline range. In essence, Booker itself puts everyone on notice of every possible sentence in every case. As a practical matter,
however, advance notice of the specific grounds for an above-range sentence is quite valuable to defense counsel. Indeed, the Court's
reasoning seems exactly backward in light of Burns. The fact that the grounds for a possible above-range sentence have multiplied
exponentially makes a notice requirement more important, not less. Although only a small segment of offenders would benefit from
a broader notice requirement, the Court's unwillingness to recognize one reinforces that Booker has made the sentencing process
more challenging for offenders with credible aggravating facts. C. Booker's Deepening Irony The starkly different results for
offenders with aggravating and mitigating circumstances reveal a deepening irony of the Booker remedy. At the time of the decision,
the primary criticism of the remedial opinion was that it went further than necessary. In dissent, Justice Stevens blasted the majority
for the "extraordinary overbreadth" of its "unprecedented" remedy. Rendering the Guidelines advisory in toto went too far, he
argued, by conferring a windfall on [*713] the majority of defendants who had not suffered any constitutional injury. On that view,
Booker might be compared to Miranda v. Arizona, another decision criticized on the ground that its remedy - "prophylactic rules"
about warnings for the custodial interrogation of suspects - conferred a windfall on defendants who had not necessarily suffered any
constitutional violation. But Booker is even more peculiar because, by its terms, the remedy extends a benefit only to offenders who
had not suffered any constitutional violation. The fact finding process for aggravating circumstances, after all, remains exactly the
same under the advisory guidelines: the sentencing judge must make all determinations, and only by a preponderance of the
evidence. The experience of respondent Freddie Booker on remand offers a powerful illustration. Booker's Sixth Amendment rights
had been violated, and he demanded a jury trial concerning the quantity of drugs for which he was responsible. The Court gave him
advisory guidelines instead. On resentencing, the judge was tasked with making the same findings, based on the same evidence,
under the same evidentiary standards. To the surprise of no one, the judge entered the same sentence. Eleven years of
experience under the advisory guidelines reveal that the irony of the Booker remedy has grown
deeper. Not only have offenders with credible aggravating facts received no tangible benefit from the advisory guidelines, but also
their position has actually worsened. The class of offenders whose constitutional rights were trampled under the advisory guidelines
face more severe sentencing outcomes and a more challenging sentencing process, under a system designed by the Court for their
benefit. Instead, the primary beneficiaries of the new system are offenders with credible mitigating facts, who find it easier to obtain
a below-range sentence. That is a remarkable outcome, considering that the Sixth Amendment violation in Booker was unrelated to
mitigating facts. More than a decade later, the most important consequences of Booker have nothing to do with the Constitution.

Studies go NEG – indeterminate sentencing worsened

disparities.
Ryan W. Scott, Spring 2016, [Professor, Indiana University Maurer School of Law, "Booker's
Ironies", Toledo Law Review https://www.repository.law.indiana.edu/facpub/2597/ //DMcD]
III. The Booker Backslide In another ironic development, the Booker remedial opinion has coincided
with a setback for
Congress's key objectives in the Sentencing Reform Act. A growing body of empirical research
has found post-Booker increases in inter-judge disparity and racial disparity, two forms of
unwarranted disparity Congress sought to reduce through the Guidelines . Those developments are in
tension with the remedial opinion's contention that advisory guidelines would best vindicate Congress's intent. A. Inter-Judge
Disparity Among Congress's primary objectives in the Sentencing Reform Act was the reduction of inter-judge disparity, differences
in sentencing outcomes driven not by characteristics of the offense or offender but by the identity of the sentencing judge. Troubled
by research indicating that judges sometimes reached widely disparate conclusions about identical case facts, Congress hoped
that the Sentencing Reform Act would promote consistency and minimize the effects of
individual judges' philosophy, personality, or biases. On that score, the mandatory guidelines achieved
some measure of success. Two large-scale studies of federal sentences in the mid-1990s
concluded that inter-judge sentencing disparity had decreased, using a "natural experiment"
method that compared levels of disparity before and after the promulgation of the Guidelines .
Using data from district courts that use a random case distribution system, one study found that the
estimated expected difference between the average sentences of any two judges in 1986-1987
was 16% to 18%, but under the mandatory guidelines in 1988-1993, the difference had fallen to
8% to 13%. Another study focusing on cities where judges receive a random distribution of cases found that the identity of the
judge explained 1.24% of variation in sentences in 1994-1995, compared with 2.32% in 1984-1985, a reduction "almost by half under
the guidelines." Although the improvement was modest, the authors concluded that " Congress
successfully
achieved [its] goal" of reducing inter-judge disparity under the Guidelines. According to a series of
recent studies, however, inter-judge disparity has increased in the years since Booker. My own
study of sentencing in a single district court offered a first look at the problem, again using a natural experiment [*715] method. It
found that the
percentage of variance in sentence length explained by the identity of the judge had
nearly doubled, from 3.1% before Booker in 2002-2004 to 6.1% after Gall and Kimbrough in 2007-2008. It also analyzed the
below-range sentences of individual judges before and after Booker, noting that some followed a "free at last" pattern, while others
followed a "business as usual" or "return to form" pattern. Subsequent
research has confirmed that finding on a
nationwide scale. The best study, by Crystal Yang, compiled an impressive dataset of sentences from
2000 to 2009 by linking sentencing records from the Sentencing Commission , case records from the
Transactional Records Access Clearinghouse (TRAC), and judge data from the Federal Judicial Center. Testing for random case
assignment yielded a sample of more than 158,000 cases from 156 courthouses in 74 federal district courts. Using an analysis of
variance methodology, Yang
calculated the standard deviation of judge effects on sentence length , after
controlling for offense and offender characteristics, in
four time periods before and after Booker. She found that
offenders randomly assigned to a one-standard-deviation harsher judge received an average
sentence 2.5 months longer before Booker, but the difference jumped to 4.8 months immediately after
Booker and grew to 5.9 months after Kimbrough and Gall . Similarly, offenders randomly assigned to a one-
standard-deviation more lenient judge were 4.1% more likely to receive a judge-initiated below-range sentence in the period before
Booker but 6.9% more likely after Booker. The study also concluded that the application of mandatory minimums may be a large
contributor to inter-judge disparity, finding larger
"judge effects" in cases not subject to a mandatory
minimum after Booker. The Sentencing Commission's own research reinforces those findings. For each federal district, the
Commission has analyzed the "spread" between the judges on the court with the highest and lowest levels of judge-initiated, below-
range sentencing. In two-thirds of districts, its analysis found, the spread was smallest in the period before Booker and largest in the
period following Gall, indicating that "sentencing outcomes increasingly depend upon the judge to whom the case is assigned."
[*716] Most recently, a team of researchers released a Bureau of Justice Statistics ("BJS") working paper addressing a range of
disparity questions based on sentencing data from 2005-2012. Although the study relies entirely on post-Booker data and does not
purport to evaluate the effects of the decision, it covers the period before and after Gall, when the Court clarified judges' sentencing
 statistically
discretion is subject to deferential, abuse-of-discretion review. For virtually all offenses, the BJS paper found a
significant trend toward higher dispersion in sentencing outcomes in the eight years following
Booker, meaning that "similarly situated offenders convicted of similar crimes are increasingly
sentenced differently." That finding tends to reinforce the earlier research, which frequently reported
that increases in inter-judge disparity accelerated after Gall. None of these studies conclusively proves a causal relationship between
Booker and a subsequent increase in inter-judge disparity. Yet collectively, they offer
something close to a consensus
that increasing inter-judge disparity has followed on the heels of the switch to advisory
guidelines. That represents a setback with respect to one of Congress's central goals. B. Race Disparity Disparity
between offenders of different race, and in particular more severe sentencing of African-American offenders, is
another form of unwarranted disparity targeted by the Sentencing Reform Act . Congress hoped that a
set of mandatory sentencing guidelines would eliminate conscious or unconscious bias in the sentencing process by focusing judges'
attention on a standard set of legitimate offense and offender characteristics. The switch to advisory guidelines in
Booker, however, has prompted renewed concern about race disparity in federal sentencing. No
consensus has emerged among scholars who have examined trends in race disparity under the advisory guidelines. But four
major studies by the Sentencing Commission, Crystal Yang, Joshua Fischman and Max [*717] Schanzenbach, and the team
commissioned by the BJS each have found that race disparities have increased in the wake of
Booker. The studies differ in their methodological details and in their assessments of the relationship between judicial discretion,
prosecutorial behavior, and race disparity. But they broadly agree that racial disparities have increased in the
aftermath of Booker, especially after the extent of judges' sentencing discretion became clear in Gall. The Sentencing
Commission's Booker Report includes results of a multivariate regression analysis that
compares the effects of race on sentence length across time periods . The Commission concluded
that, after controlling for offense and offender characteristics including the guideline sentencing
range, sentences for black male offenders exceeded sentences for white male offenders by 5.5%
in the period before Booker, but the difference had grown to 15.2% in the first years after
Booker and to 19.5% in the years following Gall. Yang's study likewise found an increase in race disparity after
Booker, albeit a more modest one. Again using regression models that control for various offense and offender characteristics, the
study found that, after Gall, black offenders received sentences 1.9 months longer than those of white offenders, representing a 75%
increase in the size of the racial cap in sentence length. Fischman and Schanzenbach reached a similar conclusion, finding post-Gall
increases in race disparity in sentence length, offense levels, and downward departure rates. The BJS study, which focused
exclusively on changes in racial disparity after Booker from 2005 to 2012, found that by the end of the period studied, black male
offenders received sentences that were significantly longer than white males. Sentences have become more lenient for all offenders
during the 2005-2012 period, the researchers found, but race disparity has increased because black offenders have not benefited
from that lenience to the same extent as white offenders. Although all four studies find evidence of increased in race disparity after
Booker, several of the authors caution that the problem may not be judicial discretion, but prosecutorial charging decisions, and in
particular the use of mandatory minimum sentences. Noting that black offenders are more likely to face mandatory minimums than
white offenders, and that the gap widened after Booker, Yang concludes that "prosecutorial charging is likely a substantial
contributor to recent increases in racial disparities." Fischman and Schanzenbach go further, finding that "most of the post-[Gall]
increase in [race] [*718] disparity … is due to the increased relevance of statutory minimums under a system of advisory Guidelines."
They suggest that "judicial discretion does not contribute to, and may in fact mitigate, racial disparities in Guidelines sentencing,"
and urge policymakers to focus their attention on mandatory minimums instead.

Yes racial disparity – both from judges and prosecutors.

Crystal S. Yang, January 2015, [CRYSTAL S. YANG is Assistant Professor of Law, Harvard
Law School., "Free At Last? Judicial Discretion And Racial Disparities In Federal Sentencing",
The Journal Of Legal Studies https://www.jstor.org/stable/10.1086/680989?
seq=1#metadata_info_tab_contents //DMcD]
1. INTRODUCTION
Sentencing disparities by race, gender, education, and socioeconomic status are prevalent in the
federal criminal justice system. Black defendants are sentenced to 5 months longer in prison
than white defendants who commit similar offenses and have similar observable demographic
traits [*76] and criminal histories. Male defendants are sentenced to over 5 months more in prison
than similar female defendants, and defendants with lower educational attainment and income
receive significantly longer sentences than otherwise similar offenders (Mustard 2001). Even in the same
court, judges appear to vary significantly in their treatment of defendant race (Abrams, Bertrand, and
Mullainathan 2012), which suggests that racial disparities in the criminal justice system may be a
source of the overrepresentation of blacks in the prison population . In response to concerns that judges
were introducing unwarranted disparities in sentencing (Frankel 1973), Congress adopted the US sentencing
guidelines under the Sentencing Reform Act (SRA) of 1984. While the guidelines reduced interjudge sentencing disparities in
their early years (Anderson, Kling, and Stith 1999), many criticized them for being rigid (for example, Freed 1992; Stith
2008) and for shifting power to prosecutors in their charging and plea-bargaining decisions (Stith
and Cabranes 1998; Alschuler 1978; Nagel and Schulhofer 1992). After almost 2 decades of mandatory-guidelines sentencing, the
guidelines were struck down in United States v. Booker (543 U.S. 220 [2005]). Booker greatly
increased the degree of judicial discretion afforded to judges (see, for example, Berman 2005), with
subsequent cases further increasing judicial discretion by reducing the degree of appellate scrutiny. Empirical work on the
impact of Booker suggests increases in interjudge sentencing disparities (Scott 2010; Yang 2014) but has yielded mixed
results on racial disparities, with some researchers finding large racial disparities in the
aftermath of Booker (USSC 2006, 2010a) and others finding no significant impact on racial disparities
in sentence length (Ulmer, Light, and Kramer 2011). Most recently, Starr and Rehavi (2013) find no change in racial
disparities in the immediate aftermath of Booker. In contrast, Fischman and Schanzenbach (2012) find evidence of increased racial
disparities after later Supreme Court decisions that further encouraged judges to depart from the guidelines, although they attribute
the disparities to the increased relevance of mandatory minimum sentences. In light of possible evidence of increasing disparities
after Booker, the US Sentencing Commission (USSC) and policy makers have considered ways to constrain judicial [*77] discretion,
such as resurrecting the mandatory guidelines (Sessions 2011). This paper estimates the impact of increased
judicial discretion via Booker on racial disparities in federal sentencing using data on the
universe of defendants sentenced between 1994 and 2010. Comparing the sentence disparities between similar
defendants within a district court before and after Booker, I find that Booker significantly increased racial
disparities after controlling for extensive offender and crime characteristics . The black-white
sentencing gap increased by 2 months in the post-Booker period, a 4 percent increase in the average
sentence length and a doubling of the baseline racial gap . Increased racial disparities in sentence
length can be attributed to black defendants being more likely to be sentenced above the
guidelines-recommended range and less likely to be sentenced below the guidelines-
recommended range, compared with similar white offenders. Even conditional on being sentenced within the
guidelines range, black defendants received significantly longer sentences than similar white
defendants after Booker. After Booker, disparities also emerged by defendants' educational
attainment and gender, but racial disparities persist even after accounting for differential
treatment of offenders based on other observable traits. Results are also robust to controlling for offense
determined at the time of arrest, which suggests that differential fact finding at the sentencing stage cannot
fully explain the increase in racial disparities. I also consider the longer-term effects of Booker after the Supreme
Court reduced the degree of appellate scrutiny for sentencing decisions in late 2007. I find evidence that the racial sentencing gap
expanded most prominently after periods of more deferential appellate review, which indicates that judges are responsive to changes
in the likelihood of appellate reversal. I also examine some sources of increasing disparities after Booker by studying how different
types of judges respond to increased judicial discretion. Many scholars suggest that judges have different sentencing philosophies
(for example, Hofer, Blackwell, and Ruback 1999), which may be affected by the standard of appellate review (Fischman and
Schanzenbach 2011), with correlations between sentencing practices and judicial characteristics such as race, gender, and political
affiliation (Welch, Combs, and Gruhl 1988; Schanzenbach 2005; Schanzenbach and Tiller 2007, 2008). However, prior empirical
research on interjudge disparity and the impact of judicial demographics on sentencing practices has been hampered by the lack of
judge identifiers. Relying on aggregate district-level variation in judicial demographics can lead to biased estimates [*78] if districts
with different judicial compositions differ in ways that affect all judges in the district court. I surmount these issues by utilizing a
novel data set constructed for this study. Matching three data sources, I construct a data set of almost 400,000 criminal defendants
linked to sentencing judges from 2000 to 2010. Given that cases are randomly assigned to judges in a district court, any difference in
I find that increases
sentencing practices across judges can be attributable to judge differences rather than case composition.
in racial disparities after Booker were larger among post-Booker-appointed judges , even after
accounting for the fact that these judges were appointed by George W. Bush. Nor are the sentencing patterns of post-Booker-
appointed judges explained by the fact that these judges were relatively new to federal sentencing. My findings suggest that judges
with experience sentencing under the guidelines may have become relatively acculturated to the guidelines regime compared with
newer judges who began their tenure in a post-Booker regime. I conclude by considering the impact of judicial discretion on other
actors in the criminal justice system. Arrest, charge, trial, and pleabargaining decisions made earlier in the process are all ripe
avenues for unwarranted bias (Anwar, Bayer, and Hjalmarsson 2012; Rehavi and Starr 2014). After
Booker, prosecutors
commented that they were far less willing to forgo charging mandatory minimum sentences
when judges ultimately sentence defendants to terms far below the guidelines-recommended
minimum sentence. Consistent with this story, I find evidence that increased judicial discretion via
Booker changed the prosecutorial treatment of statutory mandatory minimum sentences , which
Booker left intact. Black offenders are generally more likely to be charged with
mandatory minimum sentences than are similar white offenders. After Booker, black defendants
were significantly more likely to face binding mandatory minimum sentences than were white defendants and subsequently more
likely to be sentenced at the mandatory minimum, consistent with the findings of Fischman and Schanzenbach (2012). Accordingly,
prosecutorial charging is likely a substantial contributor to recent increases in racial disparities.

Increased racial disparities turns the AFF – studies control for

other factors.
Crystal S. Yang, January 2015, [CRYSTAL S. YANG is Assistant Professor of Law, Harvard
Law School., "Free At Last? Judicial Discretion And Racial Disparities In Federal Sentencing",
The Journal Of Legal Studies https://www.jstor.org/stable/10.1086/680989?
seq=1#metadata_info_tab_contents //DMcD]
5. RESULTS 5.1. Sentence Length Figure 2 presents trends in sentence length by defendants' race in the raw data using quarterly
averages. Figure 2 indicates preexisting trending differences in sentence lengths across defendants of different races. Average
sentence lengths were relatively constant for black defendants before Booker but increased over time for white defendants. The gap
in sentence length between black and white defendants changed after Booker as [*91] Figure 2.
Defendants' sentence lengths in months by race sentence lengths for black and white defendants diverged. The evidence is
even more striking when excluding cases with mandatory minimum sentences , as it is apparent that
sentence lengths for white defendants decreased [*92] after Booker while sentence
lengths for black defendants continued to rise , increasing racial disparities in sentence
length. Table 3 presents regression results for the impact of increased judicial discretion via Booker on disparities in sentence
length. Column 1 presents results controlling only for the Booker indicator, defendant race, an interaction between the two, and
race-specific trends; column 2 adds demographic controls. In addition to controls for offense type, column 3 includes all interactions
between criminal history category and final-offense-level severity as well as an indicator for the application of a mandatory
minimum sentence. Column 4 presents results for the preferred specification. Across
all specifications, the
coefficients on Booker interacted with defendant race suggest growing racial disparities
after Booker. The preferred specification indicates that black offenders received sentences that are 1.9
months longer than those of white offenders after Booker , an increase of over 75 percent in
the racial gap in sentence length and a 4 percent increase in the average sentence length for all
offenders. The coefficients on defendant race are consistent with prior findings regarding
disparities in sentencing. On average, black offenders receive sentences that are approximately 2.5
months longer than those of comparable white offenders, who are the omitted category . Hispanic
offenders receive prison sentences that are over 1.9 months longer than those of similar white offenders. Table 4 investigates the
sensitivity of the results to alternative specifications that include district-by-sentencing-year fixed effects to capture unobserved
geographically correlated shocks, control for base offense level instead of final offense level, utilize log sentence as the dependent
variable, and exclude immigration cases, which increased in the post-Booker period. Racial
disparities are robust
across all these specifications. A specification using Blakely as the treatment date (column 5) tests whether judges
anticipated the holding in Booker and endogenously responded before the decision, which potentially biases the main findings
downward. Results using the timing of Blakely are almost identical to the main Booker results. [*93] Table 3. Sentence Length in
Months Source. For data in columns 1-5 for 2002-2010, see US Sentencing Commission, Commission Datafiles
(http://www.ussc.gov/research-and-publications/ commission-datafiles); data for 1994-2001 are on file with the author. Data in
column 6 are from the linked arrest-through-sentencing data set for 1994-2009 (US Department of Justice 2012). Note. All
regressions contain district, sentencing-year, and sentencing-month fixed effects. Standard errors, in parentheses, are clustered at
the district level. * Significant at the 5 percent level. ** Significant at the 1 percent level. [*94] Table 4. Sentence Length: Robustness
Checks Source. For data in columns 1-5 for 2002-2010, see US Sentencing Commission, Commission Datafiles
(http://www.ussc.gov/research-and-publications/commission-datafiles); data for 1994-2001 are on file with the author. Data in
column 6 are from the linked arrest-through-sentencing data set for 1994-2009 (US Department of Justice 2012). Note. All
regressions contain district, sentencing-year, and sentencing-month fixed effects. Standard errors, in parentheses, are clustered at
the district level. * Significant at the 5 percent level. ** Significant at the 1 percent level. [*95] Table 4 also tests the robustness of my
results using a more plausibly exogenous measure of offense severity--the arrest offense. Using data from the US Marshals Service,
the Executive Office for US Attorneys, the Administrative Office of the US Courts, and the USSC and linking files provided by the
Bureau of Justice Statistics, I match federal defendants from the arrest through sentencing stage from 1994 to 2009. Using this
linked data set, I determine for each sentenced offender a highly detailed offense type determined at the time of arrest (399 total),
exogenous to the sentencing stage. Column 6 replicates the preferred specification controlling for arrest offense rather than final
offense level. Results
are robust to controlling for arrest offense, which indicates that recent
increases in racial disparities are likely not driven by endogenous offense-level determinations .
While racial disparities in sentence length have increased as a whole, a more disaggregated analysis reveals that the growing racial
disparities after Booker do not appear uniformly across all offenses. Table A4 in the online appendix presents results on sentence
Racial
lengths disaggregated into the most prevalent seven offenses, which make up 84 percent of all offenses in the data set.
disparities increased significantly among defendants convicted of drug-trafficking offenses ,
controlling for primary type of drug. Black defendants convicted of drug offenses received sentences that are an additional 2.2
months longer than those of white defendants after Booker. Given that almost 70 percent of drug offenders receive a mandatory
minimum sentence, the increase in racial disparities in drug offenses after Booker may reflect differential application of mandatory
minimum sentences, explored further in Section 5.6. 5.2. Departures from the Guidelines Table 5 presents results on how Booker
impacted departures from the guidelines. Column 1 replicates the preferred specification from Table 3. [*96] Table 5. Sentencing
Departures from the Guidelines Source. For 2002-10 data, see US Sentencing Commission, Commission Datafiles
(http://www.ussc.gov/research-and-publications/commission-datafiles); data for 1994-2001 are on file with the author. Note. All
regressions contain controls for offense type, dummies for each offense level and criminal history combination, and district,
sentencing-year, and sentencing-month fixed effects. Standard errors, in parentheses, are clustered at the district level. * Significant
at the 5 percent level. ** Significant at the 1 percent level. [*98] For the results for below-range departures, which occur
approximately 40 percent of the time, I separate the effect of judicial departures from government motions by excluding downward
departures that are the result of a government-sponsored substantial assistance motion. Below-range departures exhibit a
black defendants were
discontinuous increase at the timing of Booker by over 11 percent for white defendants. However,
1.2 percent less likely than similar white offenders to be sentenced below range after Booker (p = .
06). Racial disparities also increased in the rate of above-range departures , which occur
approximately 2 percent of the time. Column 3 indicates that after Booker, black defendants were .7 percent more
likely than white defendants to receive an above-range departure, an increase of more than 30
percent from the mean rate. Column 4 of Table 5 suggests that, conditional on being sentenced within
range, black offenders received a .8-month-longer sentence than their white counterparts after
Booker. Similarly, Hispanic defendants received a .2-month-longer sentence than did similar white offenders after Booker. Recall
that prior to Booker, judges were generally not allowed to consider factors such as the defendant's age, education, physical or mental
problems, or family in making sentencing decisions, except for within-range sentences. The finding that disparities increased after
Booker even for the subset of within-range sentences suggests that disparities are not driven solely by the ability of judges to
consider various unobservable factors in the aftermath of Booker. Thus, it
appears that increased racial disparities
in sentencing after Booker occurred in the differential application of upward and downward
departures as well as disparate sentence lengths for within-range sentences .

Higher discretion means higher disparity – Booker proves.

Crystal S. Yang, January 2015, [CRYSTAL S. YANG is Assistant Professor of Law, Harvard
Law School., "Free At Last? Judicial Discretion And Racial Disparities In Federal Sentencing",
The Journal Of Legal Studies https://www.jstor.org/stable/10.1086/680989?
seq=1#metadata_info_tab_contents //DMcD]
6. CONCLUSION
After almost 2 decades of mandatory-guidelines sentencing, the Supreme Court struck down the guidelines in United States v.
Booker, which greatly increased the degree of judicial discretion. In subsequent decisions, the Court further
increased judicial discretion by reducing the degree of appellate review and granting judges explicit permission to reject the policies
of the USSC. Using
comprehensive data on federal defendants sentenced from 1994 to 2010 , I find
evidence that increased judicial discretion after Booker has led to large and robust
increases in racial disparities in sentencing , particularly after periods of reduced appellate scrutiny. After
changes in appellate review, the
racial sentencing gap increased to over 3 months, a 6 percent increase
in the average sentence length. I also find that recent increases in racial disparities in sentencing
were larger among judges appointed after Booker, which is consistent with a story in which
judges who are experienced with sentencing under rule-based sentencing continued to follow
the guidelines even when given more discretion. These findings should, however, be interpreted cautiously, as they
apply predominantly to new Bush appointees. Obama-appointed judges may exhibit different sentencing patterns. Finally, my
results suggest that prosecutors
charged black defendants with higher rates of binding mandatory
minimum sentences compared with white defendants after Booker , consistent with prosecutors
attempting to bind judges to prevent them from departing downward from the guidelines in
response to increased judicial discretion. Despite the increase in racial disparities in federal sentencing after Booker,
75 percent of federal district judges believe that the current advisory regime better achieves the purposes of sentencing than did the
mandatory-guidelines regime prior to Booker (3 percent) or the indeterminate-sentencing regime before the implementation of the
guidelines (8 percent). Only
14 percent of judges believe that a new mandatory-guidelines regime that
complies with the Sixth Amendment would best achieve sentencing goals (USSC 2010b). The findings in
this paper suggest that while most federal district judges prefer the expanded judicial discretion under the current advisory system
to the mandatory-guidelines regime, discretion
comes with potentially undesirable consequences. An
increase in disparities in the wake of increased judicial discretion can reflect unwarranted
disparities if judicial bias enters into decision making. On the other hand, disparities may be [*109] warranted if
expanded discretion allows judges to tailor a sentence to the unique circumstances of an offender. For instance, warranted
disparities may emerge if judges are sentencing according to defendants' characteristics, both observed and unobserved, that are
correlated with recidivism risk. In fact, recidivism rates are higher among nonwhite offenders, offenders with more extensive
criminal histories, and offenders with lower levels of educational attainment, and I find that judges sentenced these defendants to
longer prison terms after Booker. Not conditional on other characteristics, black offenders are more likely to recidivate (32.8
percent) than Hispanic offenders (24.3 percent) and white offenders (16.0 percent) (USSC 2004). Even controlling for basic
demographics, criminal history, and severity of offense, blacks are about 3.2 percentage points more likely to recidivate than white
offenders (Kuziemko 2013). If
the mandatory guidelines constrained judges' ability to equalize
recidivism risk across defendants, a shift to advisory guidelines may have allowed
judges to tailor sentences more accurately to recidivism risk. Future work could analyze the extent to
which disparities in sentencing are warranted by looking at rates of recidivism in the federal criminal justice system. More generally,
the framework in this paper can be applied to analyzing the impact of increased discretion on many other actors in the criminal
justice system. Further work on the interactions of actors at various stages in the criminal process is critical to a thorough
exploration of disparities in the criminal justice system.

Judge bias and stereotyping creates arbitrarily justified

disparate sentencing.
Tonry ’99 [Michael; Papers from the Executive Sessions on Sentencing and Corrections No.
2; U.S. Department of Justice Office of Justice Programs National Institute of Justice; 9-1999;
“Reconsidering Indeterminate and Structured Sentencing“; Sentencing & Corrections Issues for
the 21st Century; https://www.ncjrs.gov/pdffiles1/nij/175722.pdf; Accessed 6-25-2020; RG-
Camp]
Disparities. A
principal criticism of indeterminate sentencing is that it too often results in stark
differences in sentences for people who have committed similar crimes, and these disparities
often result more from differences in the values, beliefs, and personalities of the judges or
parole board members than from indeterminate sentencing views human beings as malleable and redeemable. differences among
offenders. Proponents of indeterminate sentencing might respond
that while it is undesirable that different
sentences result from caprice or idiosyncrasy, there
is nothing inherently wrong if offenders convicted of the
same crimes receive different sentences when this is justified by their respective risk profiles or
treatment needs.

Bias and stereotypes. A second recurring criticism is that the broad discretion accorded judges and corrections
officials gives too much rein to their conscious biases or unconscious stereotyping. Offenders
whose lives and backgrounds are far removed from officials’ personal knowledge and experience might receive less
empathy and understanding than those with whom officials have more in common.

When judges depart from the guidelines, it systematically hurts

minorities – we have studies.
Bryan Holmes, Ben Feldmeyer and Teresa C. Kulig, 2-25-2020, [Ben Feldmeyer is
an Associate Professor of Criminal Justice at the University of Cincinnati. His research focuses
on criminal behavior and criminal sentencing across demographic groups, social class, and
macro-level contexts. Bryan Holmes is a Ph.D. student in the School of Criminal Justice at the
University of Cincinnati. Teresa C. Kulig is an Assistant Professor in the School of Criminology
and Criminal Justice at the University of Nebraska at Omaha. "Sentencing departures and focal
concerns: The joint effect of race and gender on departures in United States district courts, 2014
– 2016", Taylor & Francis https://www-tandfonline-
com.proxy.lib.umich.edu/doi/full/10.1080/0735648X.2020.1730933 //DMcD]
The current studyaims to examine the joint effects of defendant race and gender on (1) downward
sentencing departures (likelihood and length) and (2) upward sentencing departures (likelihood
and length) in federal criminal courts. Using federal criminal cases sentenced between October 1, 2014 and September 30, 2016,
a series of multivariate logistic and ordinary least squares regression models are used to isolate the effects of defendant race and
gender (and their intersections) on departure decisions. Findings
indicate that greater punitiveness for
minorities in departure decisions are exclusive to Black males. Further, females of all race/ethnic
groups examined are consistently advantaged in departure decisions when compared to White men. Findings
regarding Hispanics indicate little difference in departure decisions compared to Whites, but where differences exist it is to the
advantage of Hispanics. Findings and implications are discussed in light of focal concerns perspective and prior research.
Criminologists have had a longstanding interest in identifying and explaining unwarranted disparities in punishment within the
criminal justice system. As a result, there
now exists a large body of research examining how sentencing
outcomes are shaped by "extralegal" characteristics, such as defendant gender or race . Prior research
on these topics has shown that while "legal" case characteristics (e.g., offense severity, prior record) are typically the primary
determinants of sentencing decisions, a defendant’s
gender and race often carry additional weight in punishment
decisions, even after accounting for legal factors. Specifically, research indicates that minorities
and males are
disadvantaged in sentencing decisions and are more likely to receive incarceration (Griffin and Wooldredge 2006;
Spohn 1999, 2000; Spohn and Holleran 2000; Zatz 2000), longer sentences (Feldmeyer and Ulmer 2011; Steffensmeier, Ulmer, and
Kramer 1998), and unfavorable departure decisions (Spohn and Brennan 2011; Ulmer, Light, and Kramer 2011) than are Whites and
women. In sum, despiteextensive efforts aimed at creating fairness in sentencing, evidence to date
suggests that unwarranted racial and gender disparities in sentencing continue, which has
contributed to persistent concerns about equity in criminal processing . Although prior sentencing
research indicates that defendant race and gender both shape sentencing outcomes (Johnson 2003; Kramer and Ulmer 1996), these
factors have often been examined separately. There has been far less research examining the intersecting effects of gender and race.
In addition, the existing sentencing studies that have examined the intersecting effects of race and gender have focused almost
exclusively on incarceration and sentence length decisions (Freiburger and Hilinski 2013; Steffensmeier and Demuth 2006;
Steffensmeier, Kramer, and Streifel 1993; Ulmer, Painter-Davis, & Tinik 2016). By contrast, there are remarkably few analyses that
have examined the effects of gender and race combinations on sentencing guideline departure likelihood and length (for exceptions,
see Spohn and Brennan 2011). This is a noteworthy gap in research for several reasons. First, prior research indicates that
sentencing guideline departures may be particularly fertile opportunities for unwarranted
disparities in punishment based on extralegal factors such as defendant race and gender (Albonetti 1997;
Johnson, Ulmer, and Kramer 2008). Unlike incarceration and sentence length decisions, which are more rigidly controlled by
guideline recommendations (especially in federal courts), departure decisions allow greater flexibility and greater room for the
influence of non-legal factors (United States Sentencing Commission 2015a). Thus, there is a pressing need to examine how
defendant gender and race (and their combination) shape both the likelihood of receiving a departure and the length of those
departures in federal criminal courts. Second, although prior studies have separately examined race and gender effects on departure
decisions, research is needed that explores their combined effects because they often intersect to shape sentencing in important ways
that are not visible when examining either characteristic alone. In addition, the research examining the combined effects of race and
gender on sentencing outcomes has found mixed results with some suggesting that being female is an advantage regardless of
race/ethnicity (Doerner and Demuth 2010; Steffensmeier and Demuth 2006) and others finding that the same leniency afforded to
White women is not extended to minority women (Crawford 2000; Steffensmeier, Ulmer, and Kramer 1998). Thus, the way that
race/gender combines to influence sentencing outcomes is far from a "settled issue." Third, outside of several select studies (see
Spohn and Brennan 2011), there have been no analyses of sentencing departures in federal courts that simultaneously (a) examine
both gender and race effects and (b) examine both the likelihood of receiving a departure and the length of that departure (for state-
level analyses, see Kramer and Ulmer 2002). Moreover, these studies (though highly informative) have focused almost entirely on
the use of downward departures and have not included analyses of upward departures or departure length (either downward or
upward). Last, prior research on departures from federal sentencing guidelines have often focused on a single offense type, such as
drugs (Albonetti 1997) or violence (Kramer and Ulmer 2002), used a small set of sentencing districts (Spohn and Brennan 2011),
and have largely used data pre-United States v. Booker (2005) – which made federal guidelines advisory rather than mandatory (a
point which we return to below). The current
study seeks to extend prior research and address the gaps in
scholarship identified above using federal criminal court data from the United States Sentencing Commission
(USSC) from 2014 to 2016. Specifically, this research examines the joint effects of defendant race and gender on (1) downward
sentencing departures (likelihood and length) and (2) upward sentencing departures (likelihood and length) in federal criminal
courts. As a natural extension of the research and to further exhaust the data, we also include a supplemental analysis which
partitions downward departures into (1) government-sponsored (prosecutor initiated) substantial assistance departures and (2)
judge-initiated departures. The remainder of the paper is structured as follows. First, we provide an overview of the development of
federal sentencing guidelines, review the existing research on departures, and discuss the role of focal concerns theory in explaining
sentencing disparities. Second, we provide hypotheses for the current study and describe the data and method used to test those
hypotheses. Third, we present descriptive statistics and estimate multivariate regression models to isolate the effects of race and
gender (and their intersections) on sentencing departure decisions. We conclude by discussing the implications of the current
findings, outlining caveats of the analysis, and recommending avenues for future research.

Minorities get fewer departures – there’s tons of lit.

Bryan Holmes, Ben Feldmeyer and Teresa C. Kulig, 2-25-2020, [Ben Feldmeyer is
an Associate Professor of Criminal Justice at the University of Cincinnati. His research focuses
on criminal behavior and criminal sentencing across demographic groups, social class, and
macro-level contexts. Bryan Holmes is a Ph.D. student in the School of Criminal Justice at the
University of Cincinnati. Teresa C. Kulig is an Assistant Professor in the School of Criminology
and Criminal Justice at the University of Nebraska at Omaha. "Sentencing departures and focal
concerns: The joint effect of race and gender on departures in United States district courts, 2014
– 2016", Taylor & Francis https://www-tandfonline-
com.proxy.lib.umich.edu/doi/full/10.1080/0735648X.2020.1730933 //DMcD]
Prior research on sentencing departures
Despite the growing use of departures in federal criminal courts, research examining sentencing departures remains relatively
limited. As noted above, studies of departure decisions have focused almost exclusively on the likelihood of a defendant to receive a
downward departure (Kramer and Ulmer 2002; Ulmer, Light, and Kramer 2011; Holmes and D’Amato 2019). These studies have
found that both legal and extralegal factors are significant predictors of downward departures. Similar to other sentencing decisions
(i.e., incarceration, sentence length), the strongest predictors of downward departures are legally proscribed case characteristics,
such as offense type, offense severity, criminal history, pre-trial detention, and mode of disposition (Kramer and Ulmer 1996).
However, research finds that race and gender (in addition to other extralegal characteristics) also influence the application of
sentencing departures (Johnson, Ulmer, and Kramer 2008). Specifically, these findings
indicate that cases with a
Black defendant are less likely to receive a downward departure than comparable cases with a
White defendant (Johnson 2003). Similarly, cases with a female defendant are more likely to receive a downward departure from
sentencing guidelines than cases with a male defendant, net of other case characteristics (Albonetti 1997; Kramer and Ulmer 2002).
Specific to the federal system, there are several
noteworthy and relatively recent studies that have begun to explore
federal sentencing departures in more detail. First, Johnson, Ulmer, and Kramer (2008) examined
inter-district
variation in the likelihood and length of downward sentencing departures from federal sentencing
guidelines from 1997 to 2000. They found that Black and Hispanic defendants were less likely to receive
downward departures (compared to Whites), and female defendants were more likely to receive downward departures
(compared to males). In addition, Black and male defendants received significantly shorter departures than
White and female defendant’s, respectively. However, they did not examine joint race-by-gender combinations. In addition, they
found the prevalence and utility of downward departures varied by jurisdiction and were related to the size of the caseload, racial
composition of the court district, and political context of the court district. In turn, these contextual factors appear to shape the
impact that race and gender have on downward departure decisions across U.S. federal courts. Second, Hartley, Maddan, and Spohn
(2007), using federal sentencing data from 2000, examined the likelihood of substantial assistance
departures by federal prosecutors in cases where a drug offense for either powder or crack-
cocaine was present. They found that the odds of receiving a substantial assistance departure was statistically
indistinguishable between Black and Hispanic males. However, Black males were significantly less likely than
White males to receive a substantial assistance departure . Furthermore, in cases that did not involve
mandatory minimums, females (regardless of race) were more likely than Black males to receive a substantial assistance departure.
However, they did not examine the length of those departures. Third, Spohn and Brennan (2011) tested the joint effects of defendant
race and gender on the use of substantial assistance departures (5K1.1) using cases with a drug conviction in three U.S. District
Courts from 1998 to 2000. In general, they found that Black and Hispanic male defendants were more likely to receive substantial
assistance departures and received significantly shorter departures than White males and females of all races. Although this study
focused on a select set of cases (substantial assistance departures for drug offenders in three courts), the findings illustrate the
importance of looking at the joint effects of defendant race and gender in departure decisions. Fourth, Ulmer, Light, and Kramer
(2011) examined racial disparities in various sentencing outcomes (including the likelihood of downward
departure but not departure length) across U.S. District Courts in the wake of the 2005 Booker ruling. They found
significant
race-by-gender disparities in downward departure decisions across both modes of downward departure:
government-sponsored and judge-initiated departures. Specifically, Black males were less likely to receive both
government-sponsored and judge-initiated downward departures compared to similarly-
situated White males. By contrast, use of departures was more mixed for women and differed by type of downward
departure. White and Black females were both more likely to receive judge-initiated departures than White males. However, Black
females were significantly less likely to receive a government-sponsored (e.g., 5K1.1) departure than White males, net of other
factors. Similar to Spohn and Brennan (2011), these findings again stress the importance of assessing the joint effects of defendant
race and gender in departure decisions. Taken
together, the studies highlighted above suggest that
extralegal disparities in the application of departures exist in both state and federal courts and
that race and gender both influence the use of sentencing departures. Their findings generally
suggest that minorities and men are both (generally) less likely to receive downward sentencing departures .
In addition, the effects of gender and race may combine to create more pronounced disadvantages for minority males and greater
advantages for White females in departure decisions. However, the findings for gender by race across sentencing studies are
somewhat mixed, with regards to (a) Hispanics and (b) females. For example, some research finds that the minority male
disadvantage in sentencing outcomes is more consistent/larger for Black males than Hispanic males (Spohn 2000; Mitchell and
MacKenzie 2004), some find that the Hispanic male disadvantage in sentencing is on par with the Black male disadvantage
(Brennan and Spohn 2008; Doerner and Demuth 2010), and others find that minority male disadvantage in sentencing outcomes
are exclusive to Black males (Feldmeyer and Ulmer 2011; Holmes and Feldmeyer 2019). Findings are similarly mixed for females,
with some studies finding that the female advantage is exclusive to White females (Crawford 2000; Brennan 2006) and others
finding that the female advantage extends to all race/ethnicities (Doerner and Demuth 2010; Spohn and Brennan 2011) – sometimes
with minority females receiving the most preferential treatment (Spohn and Beichner 2000). Furthermore, the past studies on
departures largely focus on the likelihood of departure – not departure length.

White men get more and more substantial downward

departures.
Bryan Holmes, Ben Feldmeyer and Teresa C. Kulig, 2-25-2020, [Ben Feldmeyer is
an Associate Professor of Criminal Justice at the University of Cincinnati. His research focuses
on criminal behavior and criminal sentencing across demographic groups, social class, and
macro-level contexts. Bryan Holmes is a Ph.D. student in the School of Criminal Justice at the
University of Cincinnati. Teresa C. Kulig is an Assistant Professor in the School of Criminology
and Criminal Justice at the University of Nebraska at Omaha. "Sentencing departures and focal
concerns: The joint effect of race and gender on departures in United States district courts, 2014
– 2016", Taylor & Francis https://www-tandfonline-
com.proxy.lib.umich.edu/doi/full/10.1080/0735648X.2020.1730933 //DMcD]
Results
Descriptive statistics Table 1 presents the descriptive statistics for all variables included in analyses. In the full sample, a downward
departure occurred in 62% of cases and an upward departure occurred in 3% of cases.10 Of the cases that were downward departed
(n = 42,126), the average length of departure from the minimum proscribed guideline range was 36.78 months (Standard Deviation
[SD] = 45.32). Of the cases that were upward departed (n = 1,780), the average length of departure from the guideline maximum was
29.03 months (SD = 33.25). In general, defendants were mostly male (83%), had an average age of approximately 37 years, and were
most often White (38%) (with slightly smaller shares of Black [33%] and Hispanic [23%] defendants). Among race by gender
subgroups, the majority of cases included White males (30%), followed by Black males (29%), and Hispanic males (19%). Among
cases with a female defendant, White females (7%) made up the largest proportion of cases, followed by Hispanic females (5%) and
Black females (4%). Most defendants were held in custody pending trial (65%), had a single conviction at sentencing (77%), were
disposed of via plea deals (96%), and were sentenced for either drug (40%) or white-collar (21%) offenses, followed by other (18%),
firearm (16%), and violent (5%) offenses. Table 1 illustrates some key differences in the types of cases and defendants who received
downward versus upward departures. Females made up a larger percentage of downward departed cases (21%) compared to upward
departed cases (8%). In addition, downward
departed cases tended to involve White defendants (40%) more
often than Black or Hispanic defendants (30% and 24%, respectively). Conversely, upward departed cases
tended to involve Black defendants (41%) more often than White or Hispanic defendants (35% and 14%,
respectively). Looking beyond gender and race, Table 1 also reveals several other noteworthy differences in downward and upward
departure cases. Downward departure cases generally tended to involve more educated defendants
(10% with college degree) than upward departure cases (6% with college degree). Downward departures also tended to occur for
cases with higher guideline minimum scores (82.65) versus upward departure cases (59.50). Compared to upward departed cases,
downward departure cases were also more common for defendants with drug charges, white-collar offenses, and for defendants who
were not detained prior to sentencing. In sum, Table 1 shows there are clear differences in those who receive sentencing departures
and the types of departures that they receive across both gender and race within federal courts. We now turn to multivariate analyses
to assess whether differences in sentencing departure decisions across race, gender, and race-by-gender combinations remain after
accounting for the full set of control variables included in our analyses. Multivariate models predicting downward departure Odds of
downward departure Table 2 presents the multivariate models predicting the odds of receiving a downward departure (Models 1 and
2) and the length of downward departure (Models 3 and 4) from federal sentencing guidelines from 2014 to 2016. We turn first to
Model 1, which provides our full model predicting the use of downward departures but with gender and race entered separately, to
examine their independent effects and to mirror practices commonly used in prior research. As the reader may recall,
Hypotheses 1 and 2 predicted that Black and Hispanic defendants and men would be less likely
to receive downward departures than Whites and women (respectively), net of other factors. The results of Model 1
generally support Hypotheses 1 and 2 and show several noteworthy effects of race and gender on
downward departure decisions. Specifically, cases with a Black defendant have 22% lower odds of
receiving a downward departure than cases with a White defendant, net of other predictors. However, the
odds of receiving a downward departure do not significantly differ for Hispanic versus White defendants. In addition, cases with a
female defendant have 73% greater odds of receiving a downward departure from federal sentencing guidelines compared to cases
with a male defendant (see Model 1, Table 2). Model 2 mirrors Model 1 but shows the combined race-by-gender groupings in order
to show the joint effects of race and gender combinations on downward departure decisions (Table 2). Here we test Hypothesis 3(a),
which predicted that Black and Hispanic males would be least likely to receive downward departures and White women would be
most likely to receive downward departures (with White males and minority females falling between these groups). Notably, the
results of Model 2 provide only partial support for Hypothesis 3(a). Model 2 indicates that Black
men have significantly
lower odds of receiving a downward departure than White men (25% lower odds). However, there is no
significant difference in the odds of downward departure for Hispanic versus White males. As predicted, White female defendants
are more likely to receive a downward departure than White males (49% greater odds). However, in contrast to Hypothesis 3(a), this
gender effect is fairly consistent across racial/ethnic groupings, with the greatest odds of downward departure occurring for
Hispanic females (OR = 1.88), followed by White females (OR = 1.49), and then Black females (OR = 1.42). In sum, Model 2 shows a
fairly consistent gender effect and indicates that, regardless of race, women are more likely to receive downward departures (net of
other factors). In addition, the minority
disadvantage in the application of downward departures
appear to exist exclusively for Black men. Length of downward departure Turning next to our downward
departure length models, Model 3 (Table 2) provides the full OLS model predicting downward departure length with gender and
race entered independently to observe their separate effects. Model 3 generally provides support for Hypotheses 1 and 2, showing
both race and gender effects on departure length. As predicted in Hypothesis 1, Black defendants receive 7% smaller
downward departures clompared to similar cases involving White defendants when a downward departure is applied.
However, Hispanic and White defendants do not significantly differ in downward departure length, net of other factors.
Furthermore, in support of Hypothesis 2, cases with a female defendant receive 13% larger sentencing discounts, on average, than
similar cases with a male defendant. To put this into context, consider a male who receives downward departure of 20 months.
According to our estimates, a female defendant who is the exact same as the male on all measured characteristics besides gender
should expect an average downward departure length of 22.6 months. To address Hypothesis 3(b), Model 4 (Table 2) replicates the
previous model but includes combined race-by-gender groupings to predict downward departure length. The results provide only
partial support for Hypothesis 3(b), which predicted that Black and Hispanic males would receive the shortest downward departures
and White females would receive the greatest sentencing discounts (with White males and minority females falling between these
groups). Model 4 shows that Black male defendants receive 8% smaller downward departures (when one is given) compared to
similarly-situated White male defendants. However, Hispanic male departure length does not differ significantly from White male
departure length, net of other factors. Similar to the analysis of downward departure odds, female defendants are again advantaged
in departure length decisions compared to their White male counterparts, with Hispanic women receiving 12% longer downward
departures, White women receiving 11% longer downward departures and Black women receiving 6% longer downward departures.
Thus, Model 4 shows that (1) across all race/ethnic categories, female defendants tend to receive significantly larger downward
departures than similarly-situated White males and (2) Black
men alone receive shorter departures than their
White male counterparts, net of other factors. With respect to the control variables, effects of these predictors were
consistent with findings from prior sentencing research and were uniform across all downward departure odds and length models
(see Table 2). The likelihood and length of downward departure decreased as the age of defendant increased in early adulthood, net
of other factors. However, consistent with prior research (Doerner and Demuth 2010), this effect is curvilinear, with more favorable
downward departure outcomes given to the youngest and oldest defendants.

Black men get fewer downward departures and more upward

departures.
Bryan Holmes, Ben Feldmeyer and Teresa C. Kulig, 2-25-2020, [Ben Feldmeyer is
an Associate Professor of Criminal Justice at the University of Cincinnati. His research focuses
on criminal behavior and criminal sentencing across demographic groups, social class, and
macro-level contexts. Bryan Holmes is a Ph.D. student in the School of Criminal Justice at the
University of Cincinnati. Teresa C. Kulig is an Assistant Professor in the School of Criminology
and Criminal Justice at the University of Nebraska at Omaha. "Sentencing departures and focal
concerns: The joint effect of race and gender on departures in United States district courts, 2014
– 2016", Taylor & Francis https://www-tandfonline-
com.proxy.lib.umich.edu/doi/full/10.1080/0735648X.2020.1730933 //DMcD]
Discussion
The U.S. criminal justice system has long sought to create fairness and equity in the application of punishment across demographic
groups. However, despite
extensive efforts to eliminate unwarranted disparities in punishment within
state and federal courts, researchers
have consistently found that extralegal factors such as race and
gender continue to sway sentencing decisions. Research exploring these disparities has focused largely on
incarceration and sentence length decisions, with limited attention to departure decisions. The small body of research that has
explored race/ethnicity and gender effects on sentencing departures has been limited to analyses of (1) a single/select region or
offense type, (2) use of downward departures exclusively (excluding upward departures and departure length outcomes), (3) data
pre-Booker – which rendered the federal sentencing advisory, and (4) separate examinations of race and gender, rather than
analyses of their combined effects, which could mask key differences across groups. In addition, findings on departure decisions for
Hispanic defendants and minority female defendants have been mixed, with some studies showing that these groups are
disadvantaged in departure decisions (Johnson, Ulmer, and Kramer 2008; Ulmer, Light, and Kramer 2011) but others showing that
departure disadvantages occur primarily for Black males (Hartley et al. 2007; Holmes and Feldmeyer 2019). The current study
sought to address these gaps in research by examining the joint effects of defendant race and gender on the likelihood and length of
both downward and upward departures from federal sentencing guidelines for the 2014 to 2016 fiscal years. Consistent
with
prior research on sentencing disparities, our analyses revealed significant race, gender, and race-by-
gender differences in both downward and upward departure decisions (Engen et al. 2003;
Kramer and Ulmer 1996; Spohn and Brennan 2011; Ulmer, Light, and Kramer 2011). The current study identified two key findings.
First, race/ethnicity and gender separately are important factors when examining sentencing departures. With respect to
race/ethnicity, Black
defendants were less likely to receive downward departures and tended to
receive shorter sentencing discounts when downward departures were given, net of controls. However,
Hispanic defendants were not disadvantaged in downward departure decisions and were actually less likely to receive an upward
departure than White defendants. With respect to gender, female defendants were consistently more likely to receive downward
departures and less likely to receive upward departures than male defendants. In addition, when they did receive downward
departures, female defendants tended to receive larger sentencing discounts than similarly situated male defendants. In short,
being Black meant more adverse sentencing departures and Hispanic defendants fared either similarly or
slightly better than Whites in departures decisions. Meanwhile, females were consistently treated more leniently
than males. Second, when examining race and gender in combinations, we found that race was particularly
important for men (and especially Black men) but less so for women. Our findings indicated that minority
disadvantages in departure decisions appear to be reserved exclusively for Black men. Black men were the only group less likely to
receive downward departures and the only group to receive shorter discounts compared to White men. Similarly, they were also the
only group more likely to receive upward departures than White men. No other minority (by gender) group experienced a
disadvantage in departure decisions relative to White men. Hispanic men had slightly more favorable outcomes than White men, net
of other factors. And for women, race/ethnicity appeared to carry little weight on departure decisions. The results showed a
consistent female advantage in departure decisions regardless of race/ethnicity, with Hispanic women actually receiving the most
lenient departure outcomes. When we extended our main analysis of downward departures to examine whether the effects of
race/gender were consistent across government-sponsored (prosecutor-initiated) substantial assistance departures and judge-
initiated departures, it became evident that some race/gender effects depend on the type of departure examined. Particularly, the
null Hispanic male effect on the likelihood of departure found in Table 3 is exclusive to judge-initiated departures, with Hispanic
males actually being less likely to receive prosecutor-initiated substantial assistance departures. However, the
overall story of
the main analysis remains fairly consistent. Black males are the only race/gender group less
likely to receive both substantial assistance and judge-initiated departures . Black males receive
significantly shorter judge-initiated sentencing departures than White males. Furthermore, females of all races
are more likely to receive both substantial assistance and judge-initiated departures. Taken together, these findings have
noteworthy implications for research on sentencing and for broader considerations about the role of gender and race
in sentencing and punishment. First, our results clearly show that race/ethnicity and gender play a role in federal
sentencing departure decisions despite concerted efforts to remove such unwarranted
disparities. Moreover, our findings suggest there is clear value in examining the combined effects of gender and race/ethnicity.
The results of our study show important differences in departure decisions across race-by-gender subgroups that are not observable
when examining these variables separately. Specifically, the unique disadvantages reserved for Black men in departure decisions
that we observed here would be masked in analyses that separately examine race and gender (as seen in our first set of models in
each analysis). Second, and related to the previous point, our findings suggest that gender may play a larger (or at least more
consistent) role than race in shaping disparities in departures. Prior sentencing research has often focused on race/ethnic disparities
in sentencing. However, race differences in departure decisions were limited mostly to disadvantages for Black men and did not
work as predicted for Hispanic defendants or women. By contrast, gender had a more consistent effect on departure decisions, with
women of all race/ethnic groups experiencing more favorable outcomes than White men. This runs counter to some research which
has suggested that White women are particularly advantaged and that Black women may fare worse or be treated equally to White
men (see Spohn, Welch, and Gruhl 1985). Throughout our models, results for Black and White women closely mirrored one another.
Thus, our findings suggest that women broadly receive more favorable outcomes in departure decisions and that race/ethnicity may
carry less weight than expected in female departures. Notably, this finding has key implications for focal concerns theory and
suggests that race-based perceptions about dangerousness and risk to the community may not apply to women in the same way they
have been applied to (minority) men (see Steffensmeier and Demuth 2000, 2001). Third, in contrast to some research indicating
that Hispanic disadvantages in sentencing are growing and that Hispanic defendants may be replacing Black defendants as the most
disadvantaged group in sentencing (see reviews in Feldmeyer and Ulmer 2011; Feldmeyer, Warren, Siennck, & Neptune. 2015;
Steffensmeier and Demuth 2000, 2001), we do not find evidence of such patterns. Our results suggest that while there is some
Hispanic disadvantage in prosecutor-initiated substantial assistance departure likelihood, departure length, and judge-initiated
departure decisions do not appear to be disparately leveraged against Hispanics. Moreover, Hispanic defendants actually received
more favorable upward departure outcomes than Whites (less likely to receive upward sentencing departures). Instead, Black
male disadvantage is consistent across both prosecutor- and judge-initiated departures . Notably,
this finding for Black men is wholly consistent with the focal concerns perspective and with prior
research indicating that Black males may be particularly vulnerable to stereotypes about
culpability, criminality, and risk of recidivism (Steffensmeier, Ulmer, and Kramer 1998). However, the finding that
Hispanic men and women are not disadvantaged in most departure decisions raises important theoretical questions about the
situations in which these "perceptual shorthands" apply to Hispanic defendants.

Booker proves discretion increases disparity.

Ryan W. Scott, Spring 2016, [Professor, Indiana University Maurer School of Law, "Booker's
Ironies", Toledo Law Review https://www.repository.law.indiana.edu/facpub/2597/ //DMcD]
Conclusion: Booker's Bargain This Article has highlighted mounting ironies in Booker's choice of
remedy, explaining how the results produced by the system of advisory guidelines are
in tension with the remedial opinion's stated purposes . The Court found a constitutional violation
affecting offenders deprived of their right to jury fact finding for potential aggravating facts. Yet that class of offenders is
worse off under the advisory guidelines, while the remedial opinion has benefited offenders with strong cases in
mitigation that had suffered no constitutional violation. The Court defended its choice of remedy as a means of advancing Congress's
intent to reduce unwarranted sentencing disparity. Yet by
two key measures, inter-judge disparity and race
disparity, Booker appears to mark a setback for that goal. Both of those arguments, it must be acknowledged,
are intrinsic criticisms of the Booker remedy. No doubt most scholars and commentators evaluating [*721] Booker
after 11 years under the advisory guidelines are more concerned with extrinsic considerations. Have federal sentences grown more
just and effective, or less? How has institutional power shifted among judges, prosecutors, defendants, and the Sentencing
Commission? And are the changes desirable? Is the system today more practical, efficient, and comprehensible? Or has it grown
even more cumbersome and complex? Answers to those questions, rather than tensions in the opinion's internal logic, will inform
most critical assessments of the advisory guidelines. Nonetheless, the
ironies of the remedial opinion ought to
affect Booker's legacy. This will not be the last case in which a closely divided Court confronts a difficult remedial question,
uncertain of the consequences of its selection. At the time Booker was decided, the Court rested its choice of remedies in large part
on judgments - perhaps misjudgments - about the implications for offenders and for Congress's intended goals. Reconsidering
Booker's bargain with the benefit of hindsight may help sharpen the Court's discussion the next
time.

Judicial Discretion results in discriminatory sentencing

Dara Lind, 10-25-2015, [Senior Correspondent at Vox covering the criminal justice system
and immigration, "Prison sentences are getting shorter. But racial disparities are getting
worse.", Vox, https://www.vox.com/2015/10/25/9608620/race-prison-sentencing //Weese]
Black defendants are still getting longer sentences than white ones for the same crimes — and
the racial gap is actually growing. That's the conclusion of a new study conducted for the Bureau of Justice Statistics,
based on data from 2005 — after a Supreme Court decision gave judges more flexibility in sentencing — through 2012. But it's
certainly not the first study to find that even when the criminal justice system as a whole is getting more lenient, that leniency
varies depending on the race of the defendant. And it's a big challenge for criminal justice reformers — who end up
caught in a terrible double bind. Judges are using their discretion to help white defendants
more than black ones After someone's convicted of a crime in federal court, the judge determines a prison sentence by
consulting a set of federal guidelines. The guidelines consider a bunch of factors related to the defendant's criminal history and the
seriousness of the crime, plug them into some complicated calculations, and spit out a recommended range for the prison sentence
to fall into. This study looked at how judges responded to those recommendations. What they found was not great. For pretty much
every type of crime, white
offenders who get a certain recommended sentence (under the guidelines) end up getting a
shorter sentence than black offenders who get the same recommendation . And the difference
between white and black sentences has grown since 2005. How big the disparity is depends on the type of
crime and how severe it is. For a relatively minor drug offense that doesn't involve weapons — something where the recommended
sentence might be around two and a half years — a black man and a white man would actually get around the same sentence in
2005. In 2012, the black man would be sentenced to about two months longer than the white man would. For a relatively minor
crime that doesn't involve drugs but does involve weapons — something where the recommended sentence might be a little over four
years — a black man would have gotten about five months longer in prison than a white man in 2005. In 2012, the black man would
get a sentence over a year and a half longer than his white counterpart. As judges get more discretion, this is
becoming a bigger problem The sentencing guidelines, like the name says, are supposed to be guidelines. But for
decades, most judges followed them as rules, and rarely (if ever) gave out sentences that were higher or lower than the guidebook
recommended. In
2005, the Supreme Court clarified that judges really could go above or below the
recommended sentence if they thought it was appropriate for the case. (A second decision, at the end of
2007, clarified that judges were supposed to calculate the sentencing range recommended by the guidelines, but could then decide
whether to follow it or not.) That's why this study's time period matters: It's looking at the era in which judges have had more power
in sentencing. It'sbecome incredibly common for judges to hand out shorter prison sentences than the
guidelines recommend. Over the summer of 2015, judges actually handed out "below-guideline"
sentences in a majority of all cases (50.6 percent); they handed out "above-guideline" sentences only 2.6 percent of the
time. When judges get to decide whether someone deserves to get a shorter sentence than the
guidelines recommend, they might find some kinds of defendants more deserving than others — based on
factors that happen to be racially skewed (like education or employment), or based on plain old implicit racial bias. It's hard to
judge this just by looking at average sentence length for a given crime, just because there's so much variation in the recommended
sentences for each crime. Two people can be convicted of robbery, but if one of them has a long criminal history and the other one
was coerced into the robbery by an abusive boyfriend, federal policy says the second one should get a shorter sentence for it. To
actually calculate whether judges are using their discretion to favor white defendants more than black ones requires some serious
statistical analysis. But other researchers who've done that analysis, just like the authors of the new study, have found that racial
disparities have persisted. Interestingly, the researchers found that prosecutors' behavior didn't appear to change much
over this time. The difference was because judges had more power to use their discretion, and they appear
to have exercised that discretion to help white defendants more than black ones.
 Guidelines Good
The Guidelines reduce sentencing disparities and excessively harsh
punishments
Jon O. Newman, Spring 2018, [Senior Judge in the United States Court of Appeals for the
Second Circuit, "COLLOQUIUM: THE FEDERAL SENTENCING GUIDELINES: A GOOD IDEA
BADLY IMPLEMENTED, 46 Hofstra L. Rev. 805", No Publication, https://advance-lexis-
com.proxy.lib.umich.edu/document/?pdmfid=1516831&crid=9312bf47-3ca0-4c4f-8a59-
09364d7ec3cc&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials%2Furn
%3AcontentItem%3A5SFW-0CJ0-00CW-G2C1-00000-
00&pdcontentcomponentid=7342&pdteaserkey=sr0&pditab=allpods&ecomp=kb63k&earg=sr0
&prid=20248775-8714-402f-b904-854091782f94 //Weese]
What's Good About the Guidelines A. Reducing Sentence Disparity Before turning to my criticisms of the Guidelines, I think it's only
fair to point out their virtues. First, the
Guidelines achieved some reduction in sentence disparity.
This is difficult to measure, but my impression is that some sentences vary less from the sentences imposed on
similarly situated defendants than would have occurred before the Guidelines . B. Modified Real Offense
The Guidelines also reflect a sensible compromise between two views as to what criminal conduct should
be considered in making a Guidelines calculation. One view was that the range should be calculated
based only on the conduct for which the defendant had been convicted , what the Guidelines called
""charge offense' sentencing." Under the other view, the range would be calculated based on all criminal
conduct associated with the offense (for example, possession of a weapon) that the prosecution, at sentencing, could
prove by a preponderance of the evidence, what the Guidelines called "" real offense' sentencing." Rejecting both views, the
Guidelines adopted what has been called a "modified real offense" approach, whereby the offense level was
based on all acts of the defendant relevant to the offense and the foreseeable acts of others in
furtherance of the offense. C. Consecutive Sentences One benefit of the Guidelines, rarely mentioned, is their response to
the often abused power of sentencing judges to impose consecutive sentences upon defendants convicted of multiple counts. The
most extreme case I encountered as an appellate judge was a sentence of twenty-six years resulting from eleven two-year sentences
and one four-year sentence, all imposed to run consecutively. The Second Circuit remanded to require the sentencing judge to
reconsider. The
Guidelines curb abusive use of consecutive sentences by providing that
sentences for defendants convicted of multiple counts should run concurrently , with just two
exceptions. One exception is for sentences required by statute to be imposed consecutively. The other exception is for situations
where the highest statutory maximum for any count is less than the highest calculated Guidelines range for any one count; in that
circumstance, sentences are to be imposed consecutively, but only to the extent necessary to achieve the Guidelines sentencing
range. Of course, before Booker, sentencing judges could impose consecutive sentences by making "departures," and, after Booker,
could do so by imposing non-Guidelines sentences.
 AT: Public Influence
Unseen sentencing wrecks public and official input.
Tonry ’99 [Michael; Papers from the Executive Sessions on Sentencing and Corrections No.
2; U.S. Department of Justice Office of Justice Programs National Institute of Justice; 9-1999;
“Reconsidering Indeterminate and Structured Sentencing“; Sentencing & Corrections Issues for
the 21st Century; https://www.ncjrs.gov/pdffiles1/nij/175722.pdf; Accessed 6-25-2020; RG-
Camp]
Public sentiment. Some critics contend that indeterminate
sentencing allows the “behind closed-doors”
decisions of judges and others to frustrate realization of the public’s (or elected officials’) views. This
criticism is the converse of the “positive” attribute discussed above—that indeterminate
sentencing insulates decisions about individuals’ lives from the influence of short-lived passions and political
pressures.
 AT: Fisher Ev
Fisher’s reading of indeterminacy is incorrect – different models
strengthen plea bargaining.
Fiona Doherty, April 2019, [Clinical Professor of Law, Yale Law School, "Testing Periods
And Outcome Determination In Criminal Cases", Minnesota Law Review.
https://www.minnesotalawreview.org/wp-content/uploads/2019/04/Doherty_FINAL.pdf
//DMcD]
B. Harnessing the Powers of Indeterminate Sentencing
The reliance on Testing Periods to determine outcomes in criminal cases changes the orientation of decision-making in these cases
from a retrospective analysis, to a prospective one. I argue that the
shift from retrospective to prospective
decision-making has produced indeterminate sentencing authority for prosecutors and judges .
My focus on indeterminate sentencing represents a radical departure from Fisher's
formative account of the rise of plea bargaining in U.S. courts. In tracing the history of plea bargaining,
Fisher relied on two interrelated factors to chart the growing tide of plea bargaining's influence :
the compatibility between plea bargaining and probation, and the incompatibility between plea
bargaining and the indeterminate sentence. In Fisher's telling, probation flourished because it increased the
power of prosecutors and judges to control outcomes when negotiating cases. The indeterminate sentence, meanwhile,
disappeared because it threatened to diminish the power of prosecutors and [*1717] judges to
control those very same outcomes. Thus, according to Fisher, "probation's rise and the
indeterminate sentence's fall" are "two of plea bargaining's victories ." The notion that plea
bargaining killed the indeterminate sentence, however, relies on an outdated
understanding of indeterminacy. It is true that early forms of indeterminate sentencing - in which a parole board
could shorten a prison sentence imposed by a judge - did not coexist easily with plea bargaining. As Fisher has explained, any system
that relegated the power to determine the length of the sentence to a parole board would have "stripped both judges and prosecutors
of the power to bargain over the length of terms and would have hobbled the plea-bargaining regime." This
mode of
indeterminacy, in which a parole board has the power to adjust the length of the prison term, however, is not the only
form of the indeterminate sentence. A sentencing system is indeterminate to the extent that
judgments about punishment are forward-looking in nature. A system is indeterminate, for
example, if the length and nature of the penalty for a crime can be adjusted on the basis of
prospective (and renewable) "assessments of the rehabilitative progress of the offender and the
danger posed to the public by his or her presence in the community ." The identity of the party empowered
to make these assessments - whether it is the parole board or some other body - does not affect whether or not the sentence is
indeterminate. Indeterminacyrests on whether the penalty for a crime can be adjusted based on
events that occur in the future, not on the identity of the party who is designated to make those
adjustments. Different models of testing have enabled prosecutors and judges to claim for
themselves the powers inherent in the indeterminate sentence. Under these models, a parole
board does not decide when a defendant has become sufficiently rehabilitated to merit the end
of his or her punishment. Instead, prosecutors and [*1718] judges retain direct control over the
case while the defendant undergoes a Testing Period that will determine the length and character of his or her
punishment. This type of indeterminate sentencing , far from diminishing the influence of
prosecutors and judges, provides them with new lines of authority to affect case
outcomes. The sentencing process created by these Testing Periods is indeterminate . The scale of the
punishment is determined not primarily by the defendant's past conduct (i.e., the offense of conviction), but by the defendant's
future conduct (i.e., the extent to which the defendant obeys the rules of the game going forward). The amount of the punishment, in
other words, is not knowable at the time the defendant pleads guilty to a crime. Instead, the punishment will vary depending on how
the defendant performs during the Testing Period, and, more specifically, on the extent to which the defendant is deemed compliant
with the post-plea requirements laid out by the prosecutor or judge. The first hints at the consequences of this change in orientation
are contained in a critical, but unexamined, aspect of the Jerusha Chase case. Scholars have cited this case as the first recorded
example of probation, but no one has emphasized that the case also contains the first recorded example of a prosecutor and judge
deciding that a defendant has failed the test of probation. The particulars of Chase's violation reveal the kinds of authority created by
the shift in emphasis towards compliance with prospective rules. In the court's May 1831 term, more than a year after Chase's
conviction for stealing a cloak went "on file," the prosecutor charged Chase with a new count of larceny. The record reflects that
Chase was indicted on this charge, "and upon her trial, was acquitted." Following the acquittal on the larceny charge, however, the
prosecutor moved for Chase to be sentenced on her [*1719] prior February 8, 1830, guilty plea - the one that had remained "on file" -
on the basis that she had violated the rules of her Testing Period by getting into trouble again. In granting this motion, the court
determined that the prosecutor had retained full authority to move for Chase to be sentenced at any time, and that the acquittal on
the larceny charge was not relevant. The
court also emphasized that it had retained the power, upon motion, to
sentence Chase on the old conviction. Exercising this power, the court sentenced Chase to five days solitary
confinement and six months of hard labor in the house of correction based on the guilty plea from the previous year. In this way,
probation had unleashed a system that would allow the prosecutor and judge to evade the jury twice over. The on-file mechanism
helped persuade Chase to give up her jury trial rights in the first case. The breadth of the conditions governing the on-file Testing
Period then enabled the prosecutor and judge to disregard the outcome of the jury system in the second case.
 AT: Hofer Ev
Hofer’s framing is misleading at best and blatantly false at worst.
Ryan W. Scott, Spring 2016, [Professor, Indiana University Maurer School of Law, "Booker's
Ironies", Toledo Law Review https://www.repository.law.indiana.edu/facpub/2597/ //DMcD]
Along the same lines, Paul Hofer has criticized the BJS study for overstating the effects of judicial discretion while
underestimating the influence of mandatory minimums. In his view, Booker merely "revealed the discriminatory effects of
mandatory minimums and prosecutorial discretion that had been there all along." Understanding
the role that
prosecutorial decisions and mandatory minimums play in driving race discrimination is
essential. It is misleading, however, to frame judicial discretion and mandatory
minimums as competing explanations for the increase in race disparity that the studies
have identified. Prosecutors' charging decisions are not made in a vacuum , and any changes since
Booker may be responses to judicial discretion . The shift to advisory guidelines weakened prosecutors' control over
sentencing outcomes, and it should come as no surprise if they fight back using the tools they have available. Indeed, some
prosecutors have acknowledged that they select charges with mandatory minimum sentences more frequently after Booker to
prevent judges from imposing sentences they consider too lenient. It is entirely possible that greater judicial discretion has
prompted the changes in charging decisions that, in turn, have increased race disparity. They can be mutually reinforcing, rather
than mutually exclusive, explanations. To be sure, not all researchers agree that race disparity has increased since Booker.
 AT: Starr and Rehavi Ev
Starr and Rehavi are wrong – their study had fundamental flaws.
Ryan W. Scott, Spring 2016, [Professor, Indiana University Maurer School of Law, "Booker's
Ironies", Toledo Law Review https://www.repository.law.indiana.edu/facpub/2597/ //DMcD]
Standing athwart the other studies is a competinganalysis by Sonja Starr and Marit Rehavi, finding, based on data
through 2009, that unexplained race disparity has not increased since Booker and may have even decreased. Their
study is a
tour-de-force attack on the kind of regression analysis performed by other researchers,
especially the Sentencing Commission, and marks a major step forward for the empirical investigation of sentencing
disparities. Nonetheless, it does not dispel concerns about changes in racial disparity
under [*719] Booker. A detailed assessment is beyond the scope of this Article, but three key methodological
choices divide the Starr and Rehavi study from the others . First, Starr and Rehavi criticize studies of sentence
disparity that evaluate the sentencing stage in isolation, without taking into account earlier sources of disparity like prosecutorial
actions (charging, bargaining, and other decisions). They take a broader approach that supplements the Commission's sentencing
data with information from other agencies, including arrest files from the U.S. Marshals Service and case files from the Executive
Office for U.S. Attorneys. Conceptually, incorporating the decisions of prosecutors into the analysis of race disparity offers obvious
advantages and better reflects theoretical work on "hydraulic discretion" in sentencing. They deserve credit for assembling a unique
and impressive dataset. Previous studies, including my own, are indeed hampered by the lack of data about earlier prosecutorial
decisions. Second, Starr and Rehavi criticize studies of race disparity that use the guideline range, or closely related values like
offense level and criminal history score, as control variables in regression models. They correctly note that those values are shaped
by charging, bargaining, and judicial fact finding processes that may themselves produce race disparities, which the studies fail to
Starr and
capture. The guideline range incorporates a wide range of factual findings, but only in a blunt and indirect manner.
Rehavi, therefore, exclude those variables, measuring offense seriousness instead only by reference
to the arrest offense and charge severity, along with an indicator of a mandatory minimum. The
superiority of that approach depends, however, on the richness of factual information available at the arrest and charging stage.
Starr and Rehavi downplay the offense information that their dataset lacks , but the omissions
sound quite serious. Drug quantities, the amount of loss in fraud cases, and the offender's role
in group offenses are crucial measures of offense severity in the largest categories of federal
offenses. Failing to control for those variables risks missing an important source of race
disparity, and the calculated guideline range - however clumsily and belatedly - takes them into account.
The BJS study also questioned Starr and Rehavi's reliance on U.S. Marshals Service
charge records, which the authors deemed too vague to serve as a basis for an analysis of
disparity. Third, Starr and Rehavi fault other researchers for drawing a causal inference about the effects of Booker based on a
comparison of race disparity across time periods. They correctly observe that many other changes in the complex federal criminal
justice system may contribute to race disparity across a [*720] period of years, making it hazardous to attribute any trends to
Booker. Accordingly, they focus their attention on evidence of "immediate sharp changes" within "a couple of months" after Booker.
Their premise is that Booker acted as a sudden shock to the sentencing system, and if judges were inclined to use their
discretion in ways that exacerbate race disparity, some evidence of that behavior should have been immediately obvious. That view,
however, is unduly pessimistic. "Natural experiments" that draw comparisons across time periods must be interpreted
with caution, as there is no control group of federal courts in which the Guidelines remained mandatory. Clever researchers,
however, can help to address those concerns by anticipating and correcting for known sources of potential interference. Moreover,
an insistence upon an "immediate sharp change[]" in disparity is particularly misguided when examining the effects of Booker, a
decision that initially left many questions about the extent of judges' discretion unanswered. For example, it was not until Gall -
nearly three years after Booker - that the Court finally sorted out the basic features of appellate review, and made clear that
sentencing judges enjoyed broad discretion. Starr
and Rehavi's approach risks missing effects of Booker that
operated as a slow burn, rather than a sudden shock. Accordingly, there is at least reason for concern
that race disparity, like inter-judge disparity, has worsened in the wake of Booker . Because concerns
about unwarranted disparity were the driving force behind the Sentencing Reform Act, it is ironic that the remedial opinion in
Booker defended the switch to advisory guidelines as a way to honor Congress's intent.
 CP – State Commissions
State commissions solve – empirics.
Michael Tonry, 2-12-2019, [Michael Tonry is professor of law and public policy, University
of Minnesota. "Fifty Years Of American Sentencing Reform: Nine Lessons", Crime And Justice
https://www.journals.uchicago.edu/doi/abs/10.1086/701798?journalCode=cj //DMcD]
1. SENTENCING GUIDELINES.-- Presumptive sentencing guidelines developed by sentencing
commissions are the most effective means to improve consistency, reduce disparity,
and control corrections spending. Judge Frankel proposed the establishment of specialized administrative
agencies, now usually called sentencing commissions, to develop, promulgate, monitor, and, as needed,
revise presumptively applicable guidelines for sentencing . He reasoned that legislatures lack the
specialized knowledge, staff continuity, and attention spans needed to do those things well and are too
vulnerable to day-to-day political and media influence. He expected appellate courts to review contested
sentences and gradually to develop a "common law of sentencing " to deal with difficult kinds of cases. What
Judge Frankel proposed worked. Commissions in Kansas, Minnesota, North Carolina, Oregon, and Washington created
presumptive guidelines systems that established sentencing standards for typical cases , made
the process fairer and more consistent, reduced disparities, including by race and gender, and
managed prison population sizes and correctional spending . They accomplished these things in somewhat
different ways and more and less successfully, but showed that presumptive guidelines can remedy many of the problems of
indeterminate sentencing. Richard Frase (2019, p. X), summing up the most exhaustive and authoritative survey of guidelines
experience ever published, observes, "The preguidelines
regime of unstructured, highly discretionary
sentencing is unacceptable. Guidelines offer the only proven sentencing reform model ." Frankel's
was but one of six contending sentencing reform proposals in the 1970s. None of the five others proved effective. Most were
abandoned. The first was creation, under judicial leadership, of voluntary guidelines based on research documenting prior
sentencing patterns. The logic was that judges would want to observe local conventions once they knew what they were. The second,
an alternative to voluntary guidelines, [*5] was to establish computerized "sentencing information systems" that judges could
consult to learn how they and their colleagues had previously dealt with particular kinds of cases. They were quickly abandoned
everywhere they were tried. The third, adopted in Arizona, California, Colorado, Illinois, Indiana, and North Carolina, was to amend
criminal codes to specify recommended sentences for typical cases. No other state enacted a "statutory determinate sentencing law"
after 1979, and Colorado and North Carolina repealed theirs. The fourth, without guidelines, was to create sentence appeal systems,
sometimes involving appellate courts and other times involving "sentencing councils" composed of trial judges. The fifth was for
sentencing commissions rather than judges to develop voluntary sentencing guidelines systems. Except for Judge Frankel's
presumptive sentencing guidelines, none of those efforts demonstrably improved consistency, reduced racial and other disparities,
or effectively controlled correctional resource planning and spending. The early voluntary guidelines and sentencing information
systems failed because, as Anthony Doob observed after evaluating information systems, "Judges do not, as a rule, care to know
what sentences other judges are handing down in comparable cases" (1989, p. 6). The early appeal systems failed because of
"lawlessness." In the absence of standards indicating what sentence should ordinarily be imposed, there was no basis for deciding
whether a particular one was appropriate or not. Some sentences were overturned, but on the ad hoc bases that they were too severe
or inappropriate under the circumstances. Those rationales are not generalizable and provided little guidance for subsequent cases.
Evaluations of the early voluntary guidelines systems in Colorado, Vermont, Maryland, and Florida uniformly concluded that they
had no discernible effects on sentencing disparities. Nonetheless, most of the 16 current state systems are voluntary (now usually
called "advisory"). No subsequent research has shown that the newer voluntary systems have reduced disparities compared with
sentencing patterns before their adoption. Proponents argue that they improve consistency for two reasons: newly appointed judges
without prior sentencing experience are socialized into the idea that the guidelines express local conventions, and over time the
guidelines become points of reference around which "going rates" take shape and charging and plea bargaining take place (Ulmer
2019). [*6] Every
American state should establish a sentencing commission and direct it to develop
presumptive guidelines, as the recently approved Model Penal Code--Sentencing proposes (Reitz
and Klingele 2019). Auguries are not promising, however, at least in the short term. The newest of the presumptive guidelines
systems, in Kansas and North Carolina, took effect in 1993 and 1994. Practitioners generally oppose major law reforms for fear of the
unknown, judges oppose presumptive guidelines for fear they will lose discretion, and prosecutors oppose them for fear they will
lose plea bargaining leverage. Frase (2019, p. X), on the rationale that half a loaf is better than none, observes, "But even if we can
eventually agree on what an ideal guidelines system should look like, some jurisdictions will be unable or unwilling to adopt all of its
features. In some, an incomplete system may be 'as good as it gets.' Such guidelines may be better than if there were no guidelines at
all."
State commissions solve better – they have experience.
William Pryor 2011 [Circuit Judge, United States Court of Appeals Eleventh Circuit and
visiting professor for University of Alabama Law School. “Federalism and Sentencing Reform in
the Post-Blakely/Booker Era” Ohio State Journal of Criminal Law
https://kb.osu.edu/handle/1811/73216 //DMcD]
Ironically, the federal
sentencing guidelines were adopted as a result of the earlier and otherwise
unsuccessful effort to create a modern federal criminal code, and in many respects the guidelines became the
new code. 03 "The guidelines are a systematic body of law in which a large corpus of material relating to offenses and the sentences
that should be im osed on defendants convicted of them have been collected and organized," 1 but the guidelines serve as a complex
tail-wagging-the-dog effort to reform the federal criminal laws.'05 The drafters of the federal guidelines were faced with the task of
rationalizing the buzzing confusion of the federal criminal "code," which by then had added to the dense jungle of common-law
distinctions and traditional statutes any number of novel genetically[] engineered products of the mad legislator's laboratory-RICO,
money laundering, carjacking, and a host of jurisdictionally warped variants involving mail, travel[,] and the high SCS106 seas.10
The unwieldy and disorganized nature of the federal criminal laws is a major reason that the federal guidelines rely on real-offense
findings; it is difficult to devise a sensible system of sentencing for broad crimes, like mail fraud, that involve a wide range of
schemes, offenders, and victims. The federal government still needs "a code of offenses that is brief, easy to understand, and easy to
apply."l 07 The states
have had a decided advantage in creating workable guidelines based on a
modem criminal code. 08 Most states adopted the Model Penal Code long ago, and the coherence of
their codes has made the task of developing corresponding guidelines easier . 109 Their successful
experiences with sentencing reform corroborate the view that our hodgepodge collection of thousands of federal
criminal laws badly needs reform.
 CP – Independent Commissions
Independent sentencing commissions solve by balancing the scale of
power while lowering mass incarceration.
Roseberry ‘3/8 [Cynthia Roseberry; testified this past week at a House hearing about
clemency, has this extended Hill commentary on the topic under the headline "If applied
equitably, clemency power can begin to fix damage caused by a broken system.”; 3-8-2020;
“Sentencing Law and Policy: Making the case for an improved and independent federal
clemency process“; SENTENCING LAW AND POLICY;
https://sentencing.typepad.com/sentencing_law_and_policy/2020/03/making-the-case-for-
an-improved-and-independent-federal-clemency-process.html; Accessed 7-2-2020; RG-Camp]
The clemency process must be completely independent of the system employed to
incarcerate millions of people. A first step is an independent commission with
representation from all stages of the criminal justice system, including those who are formerly
incarcerated, prosecutors, defense lawyers, corrections experts, and members of the public with
appropriate resources to review the inevitable deluge of petitions from the masses. Independence would ensure that
one actor could not put a thumb of the scales of justice , as is the case in our current system, where
the same person who prosecuted the case in the Department of Justice has this power.

This commission would promulgate clear and equitable criteria for release. Applicants would
have notice of the evidence necessary to successfully support a petition for clemency. Newly incarcerated persons would
have an incentive to immediately work to achieve necessary rehabilitation. The general public
would understand and believe that the system is just and broadly available, and not reserved for a privileged few under a secret
process.

Paramount among the criteria would be the consideration of anyone suffering under a sentence because of a failure to retroactively
apply reform. If we, the people, determine that we are no longer willing to seek incarceration for certain
acts, then those who were previously incarcerated for those acts must go free in order for equal
justice under the law to have meaning. Categorical clemency could be granted, for example, to those
serving enhanced sentences where the penalty no longer applies and for those serving long sentences because of a trial
penalty after electing to exercise their constitutional right to trial. Although there is a mechanism for compassionate
release, it is underutilized and when employed, release is often denied. The clemency commission
could be used to clear this backlog of the elderly or inform who deserves to be released.

The executive has the opportunity to remove the scourge of mass incarceration from our
justice system. That scourge informs one in three black boys born today that they can expect to be incarcerated. That
scourge prevents $80 billion from being spent on their education because it is being spent to
incarcerate. When historians look back on what we did during our watch, let them record that we were
enlightened; may they extol the virtue of our quest for equal justice for all and may they
marvel at the expediency with which it was achieved.

Federal follow-on of successful independent sentencing commissions

ensures fair review.
Bala ’13 [Nina Bala; bachelor’s degree in human biology from Stanford University, graduating
with distinction. She completed her juris doctor at Yale Law School & previously served as an
assistant public defender in Baltimore, Maryland. She also was a recipient of the Yale Public
Interest Law Fellowship; 2-28-2013 *obtained by carbon dating the web; “Judicial Fact-Finding
in the Wake of Alleyne“; N.Y.U. Review of Law & Social Change;
https://socialchangenyu.com/review/judicial-fact-finding-in-the-wake-of-alleyne/; Accessed 6-
30-2020; RG-Camp]
Minnesota has long been a pioneer in developing legally binding sentencing guidelines, and it was the
first state to create a permanent and independent sentencing commission to monitor
sentencing. Many states have followed the “Minnesota model” to varying degrees.243 In contrast, the
federal system offers little guidance to trial courts about what sorts of departures are appropriate. Thus,
in many circuits, appellate review of substantive reasonableness has become an empty exercise. The
Supreme Court has provided little useful guidance about what substantive reasonableness means,
except that courts are supposed to engage in a substantive reasonableness inquiry. In fact, during the oral argument for Gall v.
United States, Justice Scalia said, if he were sitting on a court of appeals, he would “have no idea” what would
be allowed under a substantive reasonableness review if he applied the standard the Justice Department was advocating.244
Some appellate judges have expressed frustration with the degree of deference accorded to trial court
sentencing.245 Circuits that do implement substantive reasonableness review are criticized for substituting the appellate court’s
judgment for the district court’s without rhyme or reason.246 At least one scholar suggests that we
should get rid of
substantive reasonableness review altogether and let a robust procedural reasonableness
review suffice.247
Substantive reasonableness, however, provides an important check upon sentencing, a form of review that cannot be provided with
just a procedural checklist. The Supreme Court has already suggested a number of substantive channels of review: that district
courts may evaluate the extent of the sentence’s deviation from the guidelines,248 whether the § 3553(a) factors emphasized by the
district court can bear the weight assigned to them,249 and whether a policy disagreement is contributing to the sentence.250 First,
circuit courts must take initiative and utilize the tools provided to them to conduct a meaningful appellate review, similar to the
Astronomo case. Second, the
courts, in conversation with the Sentencing Commission,252 must provide more
guidance—for example, by clarifying that the extent of a sentencing deviation should be a relative and
absolute inquiry.

The recent Supreme Court jurisprudence, in combination with an executive branch willing to take on harsh sentencing
laws, signals an opportunity to revitalize our federal sentencing regime. There is a rising
recognition that the effects of sentencing on defendants’ lives are just as significant as the
adjudication of innocence or guilt. During the same term that the Court resolved Alleyne, the Court held in Peugh v.
United States that the Ex Post Facto Clause is violated when a defendant is sentenced under new Sentencing Guideline provisions
that result in an increased risk of greater punishment.253 The Court noted that, while the Guidelines are advisory,
judges are still required, under Gall and by statute, to begin their sentencing determination by correctly
calculating the applicable Sentencing Guidelines range.254 While a defendant does not have an “expectation
subject to due process protection” that he will be sentenced within the Guidelines range,255 four Justices recognized that a
defendant charged with an increased punishment for his crime is likely to feel enhanced pressure
to plead guilty.256 Though the Supreme Court did not go so far as to extend this reasoning to uncharged conduct, the
Court did recognize that sentencing guidelines must abide by fundamental concerns of
fairness that animate the Ex Post Facto Clause.257
 CP – Judicial Review
Congress should enable judicial review of the guidelines – that brings
transparency to the process and decreases incarceration
Stegner 18. Henry D. Stegner, University of Idaho College of Law J.D., 4-20-2018, "An End
to Arbitrary and Capricious Federal Sentencing Guidelines," University of Idaho Law Review,
https://digitalcommons.law.uidaho.edu/idaho-law-review/vol53/iss3/6/ - AM
VI. A CALL FOR CONGRESS TO MAKE THE GUIDELINES SUBJECT TO THE ARBITRARY AND CAPRICIOUS STANDARD OF JUDICIAL REVIEW

Agencies are not perfect. The Sentencing Commission is not perfect. This is why there needs to be
meaningful judicial review of the Guidelines passed by the Commission . When a rule
is passed without proper consideration, or with no consideration, of the relevant factors set out in the
SRA, a party aggrieved by the rule— most typically a sentenced defendant—should have a meaningful
opportunity to challenge the rule as arbitrary and capricious .212 This would force reviewing courts to provide a
meaningful review of the Commission’s decision-making process. The appellate courts are uniquely capable of reviewing
the Sentencing Commission’s decisions because these courts routinely exercise review of
criminal sentencings. This is unlike many other administrative agency actions where the courts might not have expertise in the substance of
the agency action. To institute arbitrary and capricious review of the Guidelines, Congress should
create a special review provision that can be incorporated in the SRA. “ The APA was meant to bring uniformity
to a field full of variation and diversity.”213 “Some facets of an administrative decision, because they raise issues within the courts'
area of competence, are well suited to judicial oversight.” 214 The standard of judicial review of an agency
action will depend on the agency’s competence in the area. 215 Some facets of administrative decisions are suitable to
stringent judicial oversight, while others require more deference to the agency’s decision.216 Many existing statutes provide the standard of judicial
review that applies to agency rulemaking or adjudications. One example is the judicial review provision of the Consumer Product Safety Act, which
states “The . . . safety rule shall not be affirmed unless the Commission’s findings . . . are supported by substantial evidence on the record taken as a
whole . . . .”217 Another review statute subjecting agency rulemaking to judicial review under the arbitrary and capricious standard is 5 U.S.C. § 7703,
which regulates the Merit Systems Protection Board.218 The statute reads: In any case filed in the United States Court of Appeals for the Federal
Circuit, the court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be— (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law . . . .219 The language under subection (1) is identical to that of the APA,
which also calls for arbitrary and capricious review.220 The APA states: “The reviewing court shall . . . hold unlawful and set aside agency action,
findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law . . . .”221 As these statutes
demonstrate, courts are accustomed to this kind of language and this type of judicial review. Because
the problems with the
Guidelines identified in Part IV warrant heightened review, 222 Congress should amend the
SRA and create a special review statute to that affect. An example of the review statute
would be as follows: 28 U.S.C. § 999. Judicial Review (a) Any person adversely affected by a rule or order
promulgated by the Commission, may file a petition with the Court of Appeals within the district
that such party resides, or with the Court of Appeals within the district that the sentence was
imposed. (b) The reviewing court shall hold unlawful and set aside any action by the
Commission found to be— (1) arbitrary, capricious, an abuse of discretion, or not otherwise in
accordance with law. (c) This section is not intended to modify or supersede any other provision
under this Act, including § 994(x).223 A. The Proposed Standard Would Enable Courts to Meaningfully Review the Commission’s
Rationale Creating the above special review provision would alleviate problems caused
by arbitrary Guidelines. First, it would require reviewing courts to determine if the
Commission engaged in reasoned decision-making in promulgating the Guidelines. The SRA conveniently
states the purposes of the Commission and the Guidelines, and the Commission would be forced
to consider these purposes in its decision-making. Furthermore, this provision would force the
Commission to state its reasons behind certain Guidelines , bringing a long-awaited and
much-needed level of transparency to this enigmatic judicial branch agency . In theory,
this record-keeping requirement will promote cautious and well-reasoned decisions by the
Commission. Under the proposed amendment, the reviewing court would first look to see if the
Commission considered the relevant factors when creating the Sentencing Guidelines. The relevant
factors to be considered were mandated by Congress in the SRA in two main places.224 First, Congress gave the purposes to the Commission in 28
U.S.C. § 991(b): The purposes of the United States Sentencing Commission are to— (1) establish sentencing policies and practices for the Federal
criminal justice system that— (A) assure the meeting of the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code; (B)
provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar
records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when
warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices; and (C) reflect, to the extent
practicable, advancement in knowledge of human behavior as it relates to the criminal justice process; and (2) develop means of measuring the degree
to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing as set forth in section 3553(a)(2) of title
18, United States Code.225 The second source of relevant factors the Commission must consider, as mentioned twice in the language of § 991(b), are
the § 3553(a)(2) factors. These factors are the following: The court, in determining the particular sentence to be imposed, shall consider— the need for
the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B)
to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with
needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. . . .226 Under the proposed
statute the reviewing court would ask whether the Commission adequately considered the purposes of § 991(b) and the § 3553(a)(2) factors.227 To
meet the former, a Guideline must meet the following purposes: avoid unwarranted disparities in the Guidelines while maintaining flexibility in
sentencing when necessary. To
meet the latter, the Guideline must reflect the seriousness of the
offense, promote deterrence, protect the public from future crimes, and promote
rehabilitation.
 CP – Rewrite Guidelines
Federal sentencing guidelines preclude any reform, BUT
rewriting the guidelines themselves spills over to broader
change.
Michael Tonry, 2-12-2019, [Michael Tonry is professor of law and public policy, University
of Minnesota. "Fifty Years Of American Sentencing Reform: Nine Lessons", Crime And Justice
https://www.journals.uchicago.edu/doi/abs/10.1086/701798?journalCode=cj //DMcD]
3. FEDERAL SENTENCING.-- Federal sentencing guidelines have been remarkably
unsuccessful; they should be rebuilt from the ground up. The federal guidelines were the most
controversial and disliked sentencing reform initiative in American history . Within 2 years of
their taking effect, more than 200 federal district judges invalidated the guidelines and declared
all or part of the Sentencing Reform Act of 1984 unconstitutional. In Mistretta v. United States, 488 U.S. 361 (1989),
however, the US Supreme Court rejected the lower courts' holdings. Little changed until the Court in U.S. v. Booker, 543 U.S. 220
(2005), reversed course, declaring major parts of the 1984 act unconstitutional after all and converting the guidelines from
"mandatory," as the federal sentencing commission called them, to "advisory." The federal guidelines' failure is ironic;
prospects for success could not have been better. Senate Bill 2699, introduced by Senator Edward
Kennedy in 1975, was the first legislative proposal for a sentencing commission anywhere. The bill, developed by Yale Law School
When the
faculty in collaboration with Judge Frankel, quickly obtained bipartisan support; the Senate approved it several times.
1984 act took effect, the future looked rosy . The commission had a staff of 70 (state commissions had five to 10), a
correspondingly large budget, and the good fortune that Kay A. Knapp, director of the successful Minnesota commission, signed on
as executive director. After that, it was all downhill. The
initial commission was poorly led and faction-ridden .
Knapp was forced out within months. The
commission made no effort to learn from the experiences of
existing commissions in Minnesota, Pennsylvania, and Washington . Most importantly, although Frankel
viewed administrative agencies' partial insulation from political influence as a key element--and benefit--of his proposal, the
commission and key commissioners openly pursued personal and partisan political ends. The " tough-on-crime" politics of
the 1980s displaced the original goals of reduced disparities and greater fairness . [*10] Detailed
discussions of how and why the guidelines proved so unsuccessful and unpopular are available elsewhere. They were too
severe, too complex, and too detailed. Most sitting federal judges hated them. The
guidelines nearly eliminated the use of probation as a federal sanction. Half of federal offenders received
probation before the guidelines took effect; 7 percent did in 2017. The commission's unprecedented
"relevant conduct" policy required sentencing judges to take account of alleged crimes that were not prosecuted or that resulted in
acquittals. Federal judges in recent years have imposed sentences that fall within applicable guideline ranges about half of the time.
Paul Hofer (2019), in the most exhaustive analysis to date of federal sentencing data, concludes that sentencing
disparities,
including racial disparities, are probably greater now than before the guidelines took
effect. The existence of numerous mandatory sentencing laws in the federal system is part of the
explanation, but the US Sentencing Commission deserves most of the blame. The federal
guidelines are not salvageable. Fundamental problems result from decisions made when they
were initially developed. The US Sentencing Commission's guidelines are much too detailed . They
divide offense severity into 43 categories; most states use eight to 12. They attempt to
micromanage judges' decisions concerning the pertinence of offenders' personal characteristics and backgrounds; state
guidelines simply identify aggravating and mitigating characteristics judges may take into account, among others, when they believe
it appropriate. They authorize probationary sentences for only 5-7 percent of federal offenders ; states
authorize use of probation for any offender not subject to a mandatory minimum sentence law. Finally, they direct judges to increase
sentences on the basis of "relevant conduct" whether or not it was proven at trial or admitted, including conduct occurring in crimes
of which the offender was acquitted. No state guidelines contain a comparable provision. Those
provisions are
straitjackets. Just, fair, and accountable sentencing will remain an impossible dream in federal
courts until they are repudiated. [*11] If and when that happens, state experience can guide a new commission in
creating a new system of federal guidelines.